The Equality Tribunal
Employment Equality Acts
Decision DEC-E2010-218
PARTIES
Vladas Gruodis
(Represented by Richard Grogan & Associates)
- V -
M & G Groundworks Contractors Limited
(Represented by David Walsh & Co., Solicitors)
File reference: EE/2007/399
Date of issue: 8 November 2010
Keywords - Employment Equality Acts - Discriminatory Treatment - Harassment - Race - Prima Facie case
1. DISPUTE
1.1 This dispute concerns a claim by Mr Vladas Gruodis that he was subjected to discriminatory treatment and harassment by M & G Groundworks Contractors Limited on the grounds of his race in terms of Section 6(2) of the Employment Equality Acts and contrary to Section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 3 August 2007 under the Employment Equality Acts. On 14 September 2010, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - 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. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 17 September 2010. Additional written information was received from the complainant on 27 September 2010. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that he was employed by the respondent from 29 August 2005 until 7 February 2007. The complainant is a Lithuanian National and it is on this basis that this complaint is being taken. The complainant submitted that he did not receive a proper contract, or a contract at all, nor Health & Safety documentation and/or training. In addition, the complainant submitted that he received no P60 for 2005.
2.2 The complainant submitted that he received only three payslips in the proper format when he raised queries concerning his payments. He further submitted that he is concerned that his tax affairs are not in order.
2.3 The complainant submitted that certain payslips do not correspond with the payroll documentation produced by the respondent and that he is concerned that any effect on his tax and social welfare situation will affect his future social welfare entitlements.
2.4 The complainant submitted that, although he was covered by the Registered Employment Agreement for the Construction Industry, he was not paid in accordance with the agreement or advised of his rights under it. The complainant submitted that, in the case of a foreign national, there is an obligation on an employer to make them aware of their statutory rights.
2.5 The complainant submitted that he must establish a prima facie case and cited the Labour Court case of Southern Health Board v Mitchell in support of this contention.
2.6 The complainant referred to the Equality Tribunal case 58 named Complainants v Goode Concrete Ltd. in relation to dismissal, contract of employment and Health & Safety.
2.7 The complainant submitted a list of authorities citing 6 cases and a European Council directive as follows:
- Khumalo-v-Cleary & Doyle Limited DEC-E2008-003
- Campbell Catering Limited -&-Aderonke Rasaq ED/02/52
- Ning Ning Zhang -&-Towner Trading DEC-E2008-001
- 58 Named complainants -v- Goode Concrete Limited DEC-E2008-020
- Golovan -v- Porturlin Shell Fish Limited DEC-E2008-32
- Council Directive 91-533-EEC of 14 October 1991
- Wolf Gang Lang -&-Georg Schunemann Gmbh - Judgement of the European Court of Justice 8th February 2001. Case C-350-99
2.8 The complainant submitted that he is seeking compensation.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent made no submissions in advance of the hearing.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent subjected Mr Gruddis to discriminatory treatment and harassment on grounds of race, in terms of Section 6 and 14A of the Employment Equality Acts, and contrary to Section 8 of those Acts.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 The respondent did not attend the hearing of this matter. The Tribunal sent notification of the hearing to the respondent's representative. This notification was acknowledged. Therefore, I was satisfied that the respondent was appropriately notified of the hearing of this complaint and I proceeded to hear the matter in the absence of the respondent. Notwithstanding the foregoing, it remains the case that the complainant must establish facts from which discrimination may be inferred.
4.4 In the hearing the complainant stated that he was subjected to adverse treatment in relation to his pay, conditions, social insurance and taxation matters. He claimed that he was paid in a different manner to the other workers who were Irish in that he received two cheques, one for travelling and one for his pay. The complainant stated that he was concerned about his tax affairs as he was only getting a payslip showing total amounts not deductions. He stated that he reported his employer to the Revenue Commissioners and that he received a letter from the Revenue Commissioners and that his employer was also contacted by them. He stated that following this, his employer was very angry that he contacted the Revenue Commissioners and cursed at him. The complainant stated that he didn't know how the others were paid and whether they paid taxes. He also stated that he had received correspondence from the Revenue Commissioners and would forward it to the Tribunal.
4.5 The complainant stated that he was not provided with a contract of employment, but in response to questions from the Equality Officer, he admitted that he didn't know if anyone else was provided with a contract either.
4.6 The complainant said that he was bullied by the other workers on account of his nationality. He stated that he didn't understand what they said to him but that the tone of their remarks was not nice or pleasant. The complainant stated that towards the end of his employment, one of his colleagues hit him on the head with the bucket of a digger and just laughed at him. He believed that this treatment was a result of his nationality. Following this, he handed in his notice and worked out his last two weeks before finding employment elsewhere.
4.7 The complainant stated that for the duration of his employment, he was treated differently, his colleagues would make his into the butt of their jokes, knowing that he did not understand what they were saying. He also added that his employer would shout at him a lot of the time.
4.8 The complainant stated that he was most concerned as to his entitlement to a pension when he returned home to Lithuania and whether his contributions were made towards his tax in Ireland.
4.9 The complainant's representative suggested that a foreign national is at a particular disadvantage when it comes to the tax treatment given to him by an employer. The representative suggested that the employer tried to mislead the employee as regards tax and although it had no evidence relating to actual comparators level of pay or taxation, the Tribunal was invited to conclude that the complainant was treated badly in this regard.
4.10 Shortly after the hearing, the complainant submitted the correspondence that he had received from the Revenue Commissioners. This was a the customary PAYE Notice of the Determination of Tax Credits and the Standard Rate Cut-off Point.
4.11 I found the complainant to be a credible witness, who gave further detail where possible and where requested, even when such detail undermined the case put forward on his behalf. His evidence was given without embellishment and in a concise manner.
4.12 Having considered all the available evidence, I am satisfied that the complainant has not established that he was treated differently to others in relation to the provision of work related documentation or training. The written evidence of payslips and taxation details provided to the Tribunal undermines any case put forward that he was treated in an adverse fashion in this regard, on the contrary they indicate that he was not required by the Revenue Commissioners to pay tax and that any deduction from his pay appears to relate to Social Insurance contributions. Therefore, I do not consider that the complainant has established facts from which discriminatory treatment may be inferred from the foregoing.
4.13 However, the complainant also claimed that he was harassed in the course of his employment. Section 14A (7) (a) of the Acts, inter alia, defines harassment as
"any form of unwanted conduct related to any of the discriminatory grounds ... being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person"
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
4.14 Having considered the evidence given by the complainant, I am satisfied that the complainant has presented evidence of treatment that amounts to 'conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person'. The detail of the treatment received by the complainant during his employment from his colleagues and his employer, includes elements of isolation and bullying and, to my mind, culminates in a incident of physical mistreatment which resulted in the complainant handing in his notice. The complainant also indicated that this treatment was directly linked to his lack of English language competency related to his nationality. He further indicated that his Irish national colleagues were not treated in the same manner. The evidence given was credible. Accordingly, I consider that the complainant has established a prima facie case of harassment on the race ground.
4.15 Where a prima facie case has been established, the onus shifts to the respondent to rebut the inference of discrimination raised. As the respondent was not present at the hearing to rebut or address these issues, the harassment element of the complaint succeeds.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the race ground has not been established and this element of the complaint fails.
5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of harassment on the basis of the race ground has been established and this element of the complaint succeeds.
5.3 In accordance with section 82 of the Acts I award the complainant €7,500 in compensation for the discrimination suffered in relation to the harassment. As this does not include any element of remuneration, it is not subject to income tax.
Conor Stokes
Equality Officer
8 November 2010