THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 226
PARTIES
Mr Nerijus Verbus
(represented by Richard Grogan and Associates, Solicitors)
and
Precast Building Systems Ltd (insolvent)
(represented by Tom Smyth and Associates, Human Resources Consultants)
File Reference: EE/2008/283
Date of Issue: 16th November 2010
Claim
1.1. The case concerns a claim by Mr Nerijus Verbus that Precast Building Systems Ltd discriminated against him on the ground of race contrary to Section 6(2)(h) of the Employment Equality Acts 1998 to 2008, in terms of access to employment, training, conditions of employment and discriminatory dismissal.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 6 May 2008. A submission was received from the complainant on 3 November 2008. A submission was received from the respondent on 3 December 2008. On 22 October 2010, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 27 October 2010.
2. Summary of the Complainant's Written Submission
2.1. The complainant submits that he is a Lithuanian national, and that he is a welder, but that he does not hold any formal qualifications in this trade. He submits that he did not receive a proper contract of employment, that he did not receive health and safety documentation or training, and that his employment was terminated without proper procedures when he was called into an office with the foreman and an architect, told there was no more work and given his P45. The complainant further states that three months before his employment came to an end, an Irish welder was taken on. He therefore contends that he was unfairly selected for dismissal on the ground of race.
3. Summary of the Respondent's Written Submission
3.1. The respondent disputes discriminating against the complainant. It states that the complainant worked for the respondent as a general operative, whereas the named Irish employee was a fully qualified welder who was employed as a welding supervisor for the respondent's whole manufacturing process. The respondent states that it was due to his role and qualified that the named Irish worker was among the last employees to be laid off when the respondent ceased operating. The respondent further submitted the photocopy of a signed letter to the complainant, offering him work for a minimum of 3 months when the respondent had succeeded in securing a major contract. The letter was sent on 30 May 2008, and the complainant was given until 10 June 2008 to revert. The respondent submits that it never heard from the complainant in this matter.
3.2. With regard to a contract of employment, the respondent accepts that no written contract of employment was ever issued to the complainant, but states that a detailed verbal induction was provided to the complainant.
3.3. The respondent further states that the complainant received detailed health and safety training from the company's safety officer, and that a Lithuanian interpreter was on hand to interpret the instructions to the respondent's Lithuanian workers. With regard to the complainant's competence in the English language, the respondent submitted a letter from the safety officer, in which it is stated that the complainant was competent in the English language to the extent that he had no trouble filling in forms in English.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against and discriminatorily dismissed on the ground of race within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
4.3. At the beginning of the hearing, all complaints were withdrawn except for the provision of health and safety equipment, and the complaint of discriminatory dismissal.
4.4. With regard to the provision of health and safety equipment, the complainant alleged that expensive welding masks with an in-built ventilation function were only provided for Irish staff.
4.5. The respondent's owner and managing director, Mr O., strongly refuted this. He explained that the complainant, since he had not produced any documentation to show that he was a fully qualified welder, was deployed to do spot-welding, that is, welding bits of steel rope together which would subsequently form a "cage" around which concrete would be poured. The complainant would do this work in an open factory space which was appropriately ventilated. Other welders would undertake more complex welding work in enclosed spaces, and they would use the ventilated welding masks as a matter of health and safety. Mr O. categorically denied that the access to, and use of, these welding masks was in any way related to the user's nationality and asserted that it was wholly task-dependent.
4.6. I find Mr O.'s explanations on the matter cogent and credible. They are further supported by the complainant's own evidence that while he was a qualified welder in his home country, he had never undertaken steps to have his qualification recognised by the relevant Irish authorities or bring it to the attention of the respondent. Furthermore, he did not challenge the respondent on the type of welding work he was tasked to do.
4.7. With regard to the complainant's complaint of discriminatory dismissal, the complainant alleges discriminatory selection for redundancy. However, it was the complainant's own evidence that while he and another Lithuanian national were dismissed for reason of redundancy, he also stated that another Lithuanian worker, with two years more service than himself, was kept on. The complainant further accepted that he had received an offer for temporary work from the respondent some time later, but had not responded to the offer in any way.
4.8. Mr O., for the respondent, explained that redundancies were effected in the LIFO (Last-In-First-Out) pattern except for specifically trained workers who needed to be kept in the respondent's workforce in order for the respondent companies to retain their ISO9000 quality certification. The complainant did not challenge this.
4.9. From the above evidence, I am satisfied that the complainant's race or nationality had no bearing on his selection for redundancy and that the respondent was willing to offer him work when the opportunity arose. Accordingly, I find that there is no prima facie case for discriminatory dismissal on the ground of race.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent did not discriminate against, or discriminatorily dismiss, Mr Nerijus Verbus on the ground of race, contrary to S. 8(1) or 8(6) of the Employment Equality Acts 1998-2008.
______________________
Stephen Bonnlander
Equality Officer
16 November 2010