THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
DEC - E2010-216
Vytautas Skirka
(represented by Grogan and Associates Solicitors)
versus
Structural Concrete Bonding Services Ltd
File reference: EE/2008/082
Date of issue: 5th November 2010
Keywords: Employment Equality Acts, Race, Conditions of employment, Discriminatory Dismissal, No prima facie case
Dispute
1.1. The case concerns a claim by Mr Vytautas Skirka, a Lithuanian National, against Structural Concrete Bonding Services Ltd. His claim is that he was discriminated against regarding conditions of employment and training and that he was discriminatorily dismissed on the grounds of race contrary to 6(2)(h) of the Employment Equality Acts 1998 - 2008 [hereinafter referred to as 'the Acts']. His complaint regarding training was withdrawn at the hearing.
1.2. Through his legal representative, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 8th February 2008. On 6th May 2010, in accordance with her powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, 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 this date, my investigation commenced. A written submission was received from the complainant. No submission was received from the respondent. A Hearing was held on 16th September 2010 as required by Section 79(1) of the Acts.
Summary of the complainant's case
2.1 The complainant was employed as a general operative from January 2007 until 22nd November 2007. His work mainly involved mending concrete e.g. bridges, buildings, etc.
2.2 He submits that he did not receive a contract of employment either. In relation to this, the complainant cites 58 complainants v Goode Concrete . Mr Skirka also maintains that he never received a health and safety statement.
2.3 Mr Skirka submits that he received a training salary of €10 @ hour while the Irish were entitled to a salary of €15 @ hour.
2.3 He submits that he was dismissed and that this was done contrary to fair procedures. While on holiday in Latvia, he tore ligaments and so could not return to work. Mr Skirka maintains that he emailed the respondent with his medical certificates. He received no response to the emails. When he returned to Ireland, he was told by his supervisor that there was no work this month and to enquire again next month. This he did and he was told then told that there was still no work available. Therefore, he looked for an other job.
2.4 Other cases cited were Khumalo v Cleary and Doyle , Campbell Catering Ltd and Aderonke Rasaq , Zhang v Towner Trading , Golovan v Porturlin Shellfish Ltd .
Summary of the respondent's case
3.1 The respondent did not engage with the investigation.
Conclusions of the Equality Officer
4.1. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is race. Therefore, the issues for me to decide are:
(i) whether Mr Skirka was discriminated against in relation to his conditions of employment by the respondent
(ii) whether he was discriminatorily dismissed by the respondent
4.2 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 Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:
Section 85A of the Act provided for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.
Conditions of employment and training
4.3 The first issue raised by the complainant relates to the respondent's alleged failure to furnish the complainant with a written contract of employment. It should be noted that there is no general obligation on an employer to provide an employee with a written contract of employment. There is however, a requirement on employers to provide employees with a written statement of certain terms of their employment under the Terms of Employment (Information) Act 1994. Enforcement of rights under this statute rests with a Rights Commissioner (at first instance) and not this Tribunal. Regarding the written statement of terms and conditions of employment as well as the health and safety statement, the complainant has failed to establish a difference of treatment between him and the other employees in the company. In direct evidence, he admitted that as far as he was aware no employee (no matter what nationality they were) received a written contract of employment or any documentation regarding health and safety. Therefore, this strand of his complaint fails.
4.4 A complainant cannot bring an equal pay complaint disguised as a discriminatory conditions of employment complaint. Section 8(6)(a) specifically states:
(6) Without prejudice to the generality of subsection (1), an
employer shall be taken to discriminate against an employee or prospective
employee in relation to conditions of employment if, on any
of the discriminatory grounds, the employer does not offer or afford
to that employee or prospective employee or to a class of persons of
whom he or she is one --
(a) the same terms of employment (other than remuneration
and pension rights), [my emphasis]
Therefore, I cannot examine his allegation in relation to being paid a different salary to that paid to the Irish employees as no comparator was named.
Discriminatory Dismissal
4.5 In relation to the dismissal, no evidence of a discriminatory dismissal on the race ground was shown. The complainant did not show any medical documentation to support his claim that he was delayed returning to work. He did not produce at the hearing the emails he sent to the respondent explaining the delay or any other documentary evidence to support his claim. While I accept that the employment relationship ended in the manner that complainant states it did, I have not been presented with supporting evidence to substantiate an argument that an Irish comparator would have been treated more favourably in similar circumstances. Accordingly, I find that the complainant has failed to establish a prima facie case of discriminatory dismissal on grounds of race contrary to the Acts.
Decision
I have concluded my investigation of Vytautas Skirka's complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i) the complainant has failed to establish facts discriminated against by the respondent regarding his conditions of employment on the ground of race.
(ii) the complainant has failed to establish the facts that the respondent discriminatorily dismissed him on the ground of race.
________________
Orlaith Mannion
Equality Officer
5th November 2010