THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 -225
PARTIES
Nicolai Visnivetski
(Represented by Richard Grogan & Associates - Solicitors)
v
J & M Healy Construction Ltd.
Date of issue:16 November 2010 File reference: EE/2008/493
Headnotes: Employment Equality Acts, 1998-2008 - sections 6,8 and 77 - race- employment status - conditions of employment - prima facie case - discriminatory dismissal - burden of proof.
1. DISPUTE
This dispute involves a claim by Mr. Nicolai Visnivetski who is an Estonian national, that he was (i) discriminated against by the respondent in respect of his conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts and (ii) dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and which he brought under section 77 of those Acts.
2. BACKGROUND
2.1 The complainant states that he was employed by the respondent from 30 April 2005 until 13 February, 2008. He further states that during his period of employment, he was treated less favourably as regards his conditions of employment and was dismissed by the respondent in circumstances amounting to discrimination on grounds of race (Estonian nationality) contrary to the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2007 to the Equality Tribunal on 17 July, 2008. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Valerie Murtagh, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 20 July, 2010 the date the complaint was delegated to me. Submissions were received on behalf of both parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 24 September, 2010. The complainant withdrew the dismissal element of his complaint at the hearing.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is an Estonian national, states that he commenced employment with the respondent in April, 2005. He states that he was employed as a general operative on a construction site. He asserts that he did not receive a written contract of employment and contends that this constitutes unlawful discrimination of him on grounds of race contrary to the Acts. He submits that following the Decision of this Tribunal in 58 Complainants v Good Concrete there is an obligation on the employer to provide employees with a contract of employment in a language which they understand.
3.2 The complainant states that the respondent failed to provide him with a health and safety statement or documentation in a language which he could understand. He further states that he received no health and safety training at all during his employment. It is submitted on his behalf that the respondent's action constitute less favourable treatment of him on grounds of race, contrary to the Acts. He seeks to rely on the Decision of this Tribunal in 58 Complainants v Good Concrete in this regard.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent states that the complainant was employed with the company in April, 2005 as a general operative. The respondent submits that sixty percent of his workforce comprised non-Irish nationals. He states that the complainant did receive a contract of employment and on the day the contract was issued, there was an employee with linguistic skills available to translate the document for him and both the complainant and the respondent signed a copy of same. The respondent states that the complainant was given an hour long induction on to the site by the foreman. The respondent further states that the complainant was given a detailed copy of the health and safety statement in his own language and a signed copy of same was made available to the Tribunal. The respondent submits that his company went from being a small company to a huge company almost overnight during the boom period. The respondent company was very involved with government contract work and SIPTU became involved with the company in mid 2008 and employees were given the option of joining the union. The respondent states that SIPTU gave them advice and guidelines regarding their work practices and in relation to putting proper procedures in place. In relation to the availability of interpretation/translation services, the respondent states that there was a full-time employee available in the office to provide interpretation services to Eastern European nationals. The respondent submitted that his brother-in-law who is an Estonian national was best friends with the complainant at that time and therefore the complainant would have had more opportunities than most to approach and raise any concerns or issues he had with members of the respondent company. However, the respondent submits that no such issues were raised. The respondent denies the allegation of discrimination on the grounds of race.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts as regards his conditions of employment. In reaching my Decision, I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
5.2 Section 6(1) of the Employment Equality Acts, 1998 - 2007 provides that discrimination shall be taken to occur where "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)....."
Section 6(2) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins... "
It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because he is Estonian.
5.3 Section 85A of the Employment Equality Acts 1998- 2007 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of him, his case cannot succeed.
5.4 In a recent Determination the Labour Court , whilst examining the circumstances in which the probative burden of proof operates held as
follows -
"Section 85A of the Acts provides 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. What those facts are will vary from case to case 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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
That Court more recently extended this analysis when it affirmed the approach adopted by this Tribunal in Businkas v Eupat Ltd that one of the facts which a complainant must establish is that there was a difference in treatment between him/her and another person (see Glasgow City Council v Zafar [1998] 2 All ER 953) before the burden of proof shifts to the respondent.
5.5 The first issue raised by the complainant relates to the respondent's alleged failure to furnish him with a written contract of employment. In the instant case, the respondent has provided a signed copy of the contract of employment to the Tribunal. In addition, the respondent provided information in relation to another employee who was available to provide interpretation services to the complainant. I am satisfied, on balance, that the complainant did receive a copy of his contract of employment and that the employer had arrangements in place with regard to translation services. Therefore, I am not satisfied that the complainant has adduced evidence from which a prima facie case of discrimination in respect this element of his complaint could be inferred.
5.6 The complainant submits that he did not receive health and safety documentation in a language he could understand and that he received no health and safety training. The respondent gave evidence regarding an hour long induction training session provided by the foreman to the complainant and has also provided the Tribunal with a copy of the health and safety document signed by the complainant in his own language. The respondent submits that the complainant had also attended a safe pass training course. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of his complaint.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that:
the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2) of the Acts in terms of his conditions of employment contrary to section 8(1) of the Acts.
Accordingly, I find in favour of the respondent in this matter.
_____________________
Valerie Murtagh
Equality Officer
16 November, 2010