THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010-215
PARTIES
Andzejs Polis
(Represented by Peter Leonard BL
instructed by Richard Grogan & Associates, Solicitors)
-V-
Elephant Haulage Limited
(represented by ESA Consultants
File Reference: EE/2008/228
Date of Issue: 05/11/2010
Keywords
Employment Equality Acts 1998-2008, Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 6(2)(h) - Race, Section 8(6)(c) discriminatory dismissal, prima facie case.
1. Dispute
1.1 This dispute concerns a claim by a complainant that he was discriminated against by the above named respondent on the race ground, in terms of Sections 6(1), 6(2) (h) of the Employment Equality Acts 1998-2008 and contrary to section 8 in relation to his conditions of employment and dismissal. At the commencement of the hearing a complaint about pay was withdrawn.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 15th April 2008 alleging that the respondent discriminated against him contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 13th May, 2010 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the complainant on the 15th October 2008 and from the respondent on the 5th December 2008. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 27th August, 2010.
3. Summary of the Complainant's Case
3.1 The complainant is a Latvian national and was employed as a truck driver by the respondent from the 14th of September 2007 until the 12th February 2008. He worked for the respondent on the M50 construction works. The complainant's case is that the respondent failed to provide him with a contract of employment, health and safety documentation and training and he was require to work excessive hours without proper breaks. He also submitted that he was dismissed without proper procedures and for no good reason. He said that the truck that he was provided with for the first five months of his employment was in a bad state of repair and had a broken seat. He said that he got back pain from the broken seat. He was then given a different truck. On the evening of the 12th of November 2008 he was working for the respondent on the M 50 and one of the Directors of the company, Mr. English, was driving behind him. He could not get past him because of the roadworks. When Mr. English eventually passed he started shouting at him and accused him of breaking the truck and told him that he should be driving faster. When he returned to the yard Mr. English accused him of being a bad driver and breaking the truck. The complainant said that he was upset about the way he was treated.
3.2 The complainant said that he telephoned his supervisor the following day to tell him he would not be in because he had a pain in his back and because Mr. English had accused him of being a bad driver. Later he telephoned his supervisor to say he would be in the following day. He said that he was then told by his supervisor that he was dismissed. He said that he got a medical certificate but he did not forward it to the respondent because at that stage he was dismissed
3.3 The complainant said that he was an experienced driver and had driven similar vehicles for other employers. He said that he raised the condition of the seat with the mechanic on a number of occasions, but the seat was not repaired. The complainant denied that he was obstructing the emergency lane on the M50 when he was chastised by the Director. He also denied that he was involved in an accident with a car on the M50 some time previously and that he was responsible for it. He said that he was not aware the company insurers had to pay the insurance claim lodged by the woman whose car was damaged. On the evening in question when Mr. English spoke to him he denied that he was in any way responsible for damage to the truck which was raised by Mr. English. He stated that the foreign workers were treated differently to the Irish workers. He said only the problems were due to the fact that the truck was old and the seat was in bad condition.
3.2 The complainant's solicitor, in legal submission to the Tribunal, referred me to a number of cases in support of her case, including Campbell Catering Ltd. -v- Rasaq (EED048), 58 Complainants -v- Goode Concrete (DEC-E2008-020), Khumalo -v- Cleary & Doyle Limited (DEC-E2008-003), Golovan -v- Porturlin Shellfish Limited (DEC-E2008-032) and Ning Ning Zhang -v- Towner Trading t/a Spar Drimnagh (DEC-E2008-001), Council Directive 91-533-EEC of 14 October1991, Judgement of the ECJ in the case of Wolf Gang & Georg Schunemann Gmbh Case C-350-99.
Counsel for the complainant submitted at the hearing that the evidence supported the contention that the complainant was a good employee and an experienced driver and that the warning letter was not warranted. He submitted that an investigation should have been carried out before it issued. He submitted that the emergency lane was used by all the drivers working on the site and was not raised as an issue before. He submitted that the would not have been treated in such a manner and summarily dismissed if he was an Irish worker and therefore he has established a prima facie case of discrimination.
4. Summary of the Respondent's case
4.1 The respondent denies that the complainant was discriminated against in relation to his conditions of employment. Mr. David English one of the Directors of the company said that following an interview he employed the complainant. The complainant had a "Safe Pass" card. On commencement of the employment the complainant was given a contract of employment, provided with the necessary induction training and made aware of all the respondent's health and safety documentation which is the same procedure the company follows with all of its employees. During the course of his employment the complainant also attended an M50 induction course and a "tool box" talk which related to the safety aspects of working on the M50. He also attended a manual handling training course. He was also given documentation in relation to these courses. The respondent stated that the complainant could not have been required to work excessive hours because the land fill site where the complainant took material from the M50 operated under a strict license from the EPA and was only open from 8am to between 4:30 and 5pm. The complainant came to the yard to pick up the lorry between 6:30am and 7am and arrived at the site around 8am and was usually back in the yard between 5pm and 5:30pm. He got a half an hour for lunch and also got 2 paid tea breaks. All the lorry drivers worked the same hours. Mr English said that the lorry provided to the complainant was only 3 years old and was in good condition and had passed the vehicle testing procedures and had a valid certificate of roadworthiness. He said that the complainant was very hard on the truck and caused damage to it and did not look after it as required by the company. He was also involved in an accident with a car on the M50 and the company insurance paid out on an insurance claim made by the driver.
4.2 On the 12th February 2008 the complainant returned to the yard and Mr. English said that he noticed that the lorry was damaged. When the complainant got out he asked him what happened to the lorry the complainant started shouting and roaring at him and he denied that he caused the damage to the lorry. The complainant complained to him that he, Mr English, had shouted at him earlier in the day on the M50. Mr English said that he was not on the M50 that day but he understood his brother, another company director, was there.
4.3 Mr. English said that he told the complainant that he would investigate the matter. The complainant left work that day. He telephoned his supervisor the following day and said that he was out sick and he did not return to work after that.
On the 13th of February 2008 the complainant was issued with a letter of confirmation of a verbal warning given to him by the health and safety officer concerning an obstruction of the M50 site. Mr. Dermot English a Director of the company was on the M50 on the 12th of February 2008 and observed the complainant obstructing the emergency lane. He spoke to him about it and his failure to follow the correct safety procedures. In particular he was spoken to about being the fact that he was in the emergency lane which the company was required, as part of their contract, to keep free at all times for the emergency services.
4.4 Mr. David English said that he asked the complainant's supervisor to contact him, but the complainant was not contactable. He then asked the office staff to write to him to find out where he was and no reply was received. Mr. English said that in the absence of a response from the complainant a decision was taken to dismiss him and his P45 issued on the 22nd February 2010. Mr. English said that the complainant was in breach of company procedures by failing to contact them about his absence and providing a medical certificate after 3 days of absence.
4.5 The respondent representative referred me to the decision in the case of Kunar Trel v A.I.B.P. Cahir DEC-E2007-001 in which the equality officer found against the complainant on similar facts to this case. I was also referred to the decision in the case of Melbury Developments v Valpeters (Det. No. EDA O917) and I was asked to apply the reasoning set out in that case in relation to establishing a prima facie case of discrimination.
5. Conclusions of the Equality Officer
5.1 The issues for decision in this case is whether or not the respondent discriminated against the complainant on the grounds of race in terms of section 6(1) and 6(2)(h) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts as regards his conditions of employment, training and discriminatory dismissal. Section 6 of the Acts inter alia provides:
6. -- (1) "For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
discrimination shall be taken to occur where --
(a) a person is treated less favourably than another person is,
has been or would be treated in a comparable situation
on any of the grounds specified in subsection (2) (in this
Act referred to as the ''discriminatory grounds'') which --
(2) As between any 2 persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are --
......
(h) that they are of different race, colour, nationality or ethnic
or national origins (in this Act referred to as ''the ground
of race''),"
and Section 85A of the Acts provides:
"(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary".
5.2 This requires the Complainants to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only when they have discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required of him his case cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.3 Firstly, I will consider the issues raised by the complainant in relation to his conditions of employment which he contends constitutes unlawful discrimination on the race ground contrary to the Acts. He submits that the respondent's failure to provide him with a written contract of employment, a health and safety statement or health and safety training and the fact he was forced to work long hours and did not get proper meal breaks constituted discriminatory treatment on the race ground. It was therefore submitted that the Tribunal should infer that the complainant has been subjected to less favourable treatment on the race ground and accordingly, that the burden of proof should shift to the respondent to rebut the inference of discrimination. I was referred to the above mentioned cases and in particular to the case of 58 Complainants -v- Goode Concrete (DEC-E2008-020) and asked to apply the reasoning in that case.
5.4 The respondent submitted that the complainant received a contract of employment, he received induction training where he was made aware of all the health and safety documentation and he received specific health and safety training in relation to working on the M50 site. The representative submitted that the complainant failed to establish any facts from which discrimination could be inferred and I was asked to apply the Labour Court reasoning in the Melbury case cited above.
5.5 I note that the respondent produced in evidence a copy of a contract with the complainant's name on it which was signed by a company representative but not by the complainant. I note that the complainant accepted that he signed documentation that he attended at health and safety training and acknowledged receiving documentation at these training sessions. I also note from the complainant's pay slips that during the period of employment he was paid for an average of 6 hours overtime per week. The complainant also stated that he did not get proper breaks. It is clear from the pay slips that he was entitled to an unpaid lunch break of half an hour and two paid tea breaks. The respondent evidence it was up to the complainant to take his breaks as provided for in his contract of employment and if he happened to be driving when he was due a break he was perfectly entitled to pull in and take his break.
5.6 There was a conflict of evidence in relation to this aspect of the complaint. I found the respondent's witnesses more compellable than the complainant. I am satisfied that the complainant received a contract of employment, that he received appropriate health and safety documentation and training and that he has not substantiated his complaint about having to work excessive overtime or that he did not received appropriate breaks. Furthermore he has produced no evidence to support his contention that he was treated less favourably than an Irish worker or a worker of a different nationality was treated or would have been treated in similar circumstances. Accordingly, I find that the complainant has failed to establish a prima facie case in relation to this aspect of his complaint.
5.7 The next matter I have to consider is whether the termination of the complainant's employment was motivated by discriminatory factors relating to his nationality. The complainant submitted that he was dismissed without any proper procedures He further submitted that the would not be treated like that if he was an Irish worker and the fact that he was a foreign national influenced the way he was treated and for this reason asked me to infer from the evidence that the complainants dismissal was for discriminatory reasons. The respondent's representative submitted that the complainant failed to establish facts from which discriminatory dismissal could be inferred. The complainant submits that he was dismissed on the 12th of February 2008 following a discussion about damage to the lorry where he said that the respondent accused him of a bad driver. The respondent submits that the complainant failed to return to work after a day's sick leave absence and they were unable to contact him. When the complainant failed to respond to a letter and telephone calls the respondent decided that he was not returning to work and they decided to dismiss him by issuing his P45. The respondent submitted that other employees were dismissed for failing to contact the company when they had not turned up for work. The date of dismissal on the P45 was the 22nd of February 2008.
5.8 I note that the complainant received a verbal warning from Mr. Dermot English on the 12th February 2008 concerning the obstruction of the M50 emergency lane. This warning was followed up by a letter dated 13th February 2008 from the Health and Safety Officer. In that letter a number of breaches of site rules were brought to his attention and he was reminded of the training he had received. There is a conflict of evidence in relation when the dismissal occurred and having examined the evidence I found the evidence of the respondent more compelling than the evidence of the complainant. I am of the view that the complainant was upset following the discussion with the Directors of the company, the first discussion on the M50 about obstructing the emergency lane and breaches of safety procedures and the second in the yard about damage to the lorry. It is clear from the complainant's evidence that it was for this reason he decided to take a sick day the following day. The complainant then received a letter the following day from the safety officer confirming the verbal warning given to him in relation to safety breaches on the M50. I am satisfied that the complainant was not dismissed by the respondent either on the 12th or 13th of February. He was dismissed when his P45 issued on the 22nd of February following his failure to contact the company and provide an explanation for his absence. I am of the view that the complainant decided for his own good reasons to leave the employment. I am satisfied that the complainant has failed to establish that he was treated him less favourably than an Irish employee or an employee of a different nationality was treated or would have been treated in similar circumstances. Accordingly, I find that the complainant has failed to establish a prima facie case of discriminatory dismissal.
6. Decision
6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
(i) the respondent did not discriminate against the complainant on the race ground pursuant to sections 6(1), and 6(2)(h) of the Acts in terms of his conditions of employment contrary to section 8(1) of the Acts.
(ii) the respondent did not discriminate against the complainant on the race ground pursuant to sections 6(1)and 6(2)(h) of the Acts and contrary to section 8(6) of the Acts in respect of his dismissal
_______________________
Marian Duffy
Equality Officer
5th November 2010