The Equality Tribunal
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Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
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Website: www.equalitytribunal.ie
Employment Equality Acts
1998-2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2010-212
PARTIES
Bronins, Visockis and Silins
(Represented by Richard Grogan and Associates)
- V -
Concrete Ergon Limited
File references: EE/2008/279, EE/2008/323 and 324
Date of issue: 8 November 2010
EE/2008/279, EE/2008/323, EE/2008/324 - DEC-E2010-212
Keywords
Employment Equality Acts 1998 to 2008 - Discriminatory Treatment - Race - Conditions of Employment - Discriminatory dismissal - Prima facie case
1. Dispute
1.1. This dispute concerns claims by Messrs Edgar Bronins, Raivis Visockis and Janis Silins (hereafter "the complainants") that they were subjected to discriminatory treatment contrary to the Employment Equality Acts by Concrete Ergon Limited (hereafter "the respondent") on the ground of their race. The complainants maintain that the respondent discriminated against them in relation to their conditions of employment and discriminatorily dismissed the first and second complainant on 1 February 2008 and the third on 8 February 2008.
1.2. The first complainant referred his claim of discrimination to the Director of the Equality Tribunal on 6 May 2008 and the second and third on 19 May 2008. These claims were made on the race ground. On 27 May 2010, in accordance with his powers under section 75 of the Acts, the Director then delegated these cases to Tara Coogan- an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 28 September 2010.
2. Case for the complainant
2.1. The complainants, all Latvian nationals, worked with the respondent on dates around early September 2007 and 8 February 2008. The work consisted of fixing steel and pouring concrete on a site in Dublin. It was submitted that the respondent employed a number of Romanian nationals, some Irish and Latvians.
2.2. The complainants submitted that they received no contract of employment, health and safety documentation or training. All complainants submitted that they had a Safe Pass.
2.3. The complainants contended that the respondent dismissed them without any proper procedure and failed to provide the complainants with a P45 and P60. It was submitted that as a result, the complainants were unable to claim social welfare payments. Furthermore, it was submitted that the respondent issued the complainants with bogus pay slips. These pay slips indicate that the complainants had been paying taxes but that when Mr Bronins sought social welfare he was told that no taxes had been paid.
3. Case for the respondent
3.1. The respondent company did not attend the hearing.
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of 'sufficient significance' before a prima facie case is established and the burden of proof shifts to the respondent. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule". In Goode Concrete v Oksana Shaskova EDA/0919 the Labour Court, in reliance of Mulcahy v Waterford Leadership Limited [2002] 13 ELR 12, accepted that the mere coincidence of the complainant's nationality and his/her alleged discriminatory treatment is not sufficient, on its own, to shift the probative burden from the complainant to the respondent.
4.2. The complainants have shown no evidence of less favourable treatment in relation to their claims concerning documentation and/or training. There is no evidence to support an argument that the complainants were treated any less favourably than an employee of different nationality would have been treated in similar circumstances. The complainants stated in their own direct evidence that they were treated the same as the other employees.
4.3. No evidence was provided to support an argument that the complainants were dismissed in a discriminatory manner. I note that it was submitted that the proper action would have been to place the complainants on a lay-off rather than to dismiss them. It was submitted that Irish workers would have been treated fairly. No evidence was provided to support such an argument. The evidence given by the complainants suggested that they were aware that the site that they had been working on was completed. It was submitted that the respondent was operating on a site in Galway and on the M50. The complainants knew of another Latvian national who was offered further employment at another site in Galway. In such circumstances, I do not accept, on the balance of probabilities, that the complainants were not offered further work because of their nationality.
4.4. I note that the copies of the pay slips shown at the hearing by the complainants do indicate that the complainants' taxes were paid. However, the complainants were not able to show any proof to indicate to the contrary. other than to state that they were told by an agent of the Revenue Commission that this was the case. In any case, no evidence was provided to link such allegations to the complainants' nationality.
5. Decision
5.1. Having investigated the complainants made by Messrs Edgar Bronins, Raivis Visockis and Janis Silins, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainants have been unable to establish a prima facie case of discrimination. Therefore, these claims fail.
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Tara Coogan
Equality Officer
8 November 2010