THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 227
PARTIES
Aukscionis, Kaluzuvicius, Andriejaitis and Kriauciunas
(represented by Richard Grogan and Associates, Solicitors)
and
ARA Construction Ireland Ltd
File Reference: EE/2008/489
EE/2008/490
EE/2008/547
EE/2008/736
Date of Issue: 16th November 2010
Claim
1.1. The case concerns a claim by Mssrs Arunas Aukscionis, Giedrius Kaluzevicius, Darius Andriejaitis and Jonas Kriauciunas that ARA Construction Ireland Ltd discriminated against them on the ground of race contrary to Section 6(2)(h) of the Employment Equality Acts 1998 to 2008, in terms of training, conditions of employment, and discriminatory dismissal.
1.2. The complainant referred their complaints under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 21 July 2008, 18 August 2008 and 10 November 2008, respectively. Submissions were received on behalf of Mr Aukscionis and Mr Kaluzevicius on 24 November 2008, on behalf of Mr Andriejaitis on 1 December 2008 and on behalf of Mr Kriauciunas on 18 March 2009. No submission was received from the respondent. 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. The respondent did not attend the hearing.
2. Summary of the Complainant's Written Submission
2.1. The complainants submit that they are Lithuanian nationals. Mr Kaluzevicius and Mr Aukscionis are carpenters. The other two complainants do not identify their roles in their submissions. The complainants submit that they did not receive a contract of employment, or proper health and safety documentation or training. They submit that they were at times paid in cash, and received no P45 forms when their employment with the respondent came to an end. As a result, they submit that they are disadvantaged in claiming their social welfare entitlements.
2.2. The complainants further submit that they were dismissed without any reason or procedure.
3. Summary of the Respondent's Written Submission
3.1. No submission was received from the respondent in the above complaints.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainants were 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. The complainants gave extensive evidence during the hearing of the complaint. The respondent had two Irish workers who were general operatives, and also employed an Irish electrician and an Irish plumber. All other workers were Lithuanian, and staff turnover was high. None of the complainants were in a position to say whether any of these Irish workers had received a contract of employment. With regard to pay, all complainants gave evidence that when they worked on small projects, they would be paid cash, and on larger projects, a combination of cheque and cash payments. The respondent asked for their PPS numbers repeatedly and collected everybody's details, but they had no evidence that he ever made use of them. None of the complainants could say how the respondent's Irish workers were treated in this regard. Accordingly, these aspects of their complaints, i.e. the provision of a contract of employment and the treatment of their tax affairs, must fail for lack of prima facie evidence of less favourable treatment vis-à-vis their Irish co-workers.
4.4. With regard to health and safety issues, the complainants gave evidence that they received no health and safety information or training. This was the same for all staff. However, from the complainants' evidence, a picture emerged of differential treatment when it came to the provision of health and safety equipment, and the matter of the complainants being forced to work in unsafe circumstances. Mr Aukscionis, who is a carpenter, gave evidence that the scaffolding was inadequate and that he was supposed to use ladders in situations were this was unsafe. Mr Kaluzevicius, who is also a carpenter, gave evidence that no harnesses were made available when he needed to do roof work, but rather, that he found himself tied to the chimney with a simple rope to ensure his safety. He further stated that there was no railing on the scaffolding for a two-storey house. Mr Aukscionis and Mr Kaluzevicius said that the Irish workers were not in this situation because it did not arise with their jobs. Both complainants asserted convincingly that the most dangerous work was routinely assigned to them and other Lithuanian workers, and that the respondent took no steps to provide proper safety equipment. They stated that in their view, this was less favourable treatment directly linked to their nationality.
4.5. This was also supported by the evidence of Mr Andriejaitis, who related an incident where the roof was frozen and slippery, yet he was instructed to go up on the roof regardless. He also spoke of being instructed to tear down walls in a demolition project without any additional supports to the wall. Mr Kriauciunas gave evidence that he burned his hands on chemicals due to the non-provision of appropriate gloves. All complainants related how no lifts or forks were provided for heavy lifting, or any steel-capped boots. The complainants were unanimous in their evidence that Irish workers did not have to do lifting or demolition work.
4.6. I found all four complainants compelling in their evidence that the most dangerous tasks were consistently assigned to them and other Lithuanian workers, without proper safety equipment, and that these tasks were not demanded of the respondent's Irish workers. Accordingly, I find that they have established a prima facie case of less favourable treatment in their terms and conditions of employment on the ground of race, and that this has not been rebutted.
4.7. The complainants also stated that they were expected to work on Saturdays, Sundays and Bank Holidays for no extra pay, whereas the Irish workers told Mr Kaluzevicius (who had the best English of all the complainants) that they were receiving additional compensation for working on such days. I found their statements credible. Section 8(6)(c) of the Acts expressly includes less favourable treatment in relation to overtime to be discrimination if it is linked to the protected grounds. Accordingly, I find that the complainants have established a prima facie case of less favourable treatment on the ground of race with regard to how their weekend and holiday work was not appropriately remunerated, and that this has not been rebutted.
4.8. The complainants also gave evidence of less favourable treatment with regard to break times. They were unanimous that they were given only 30 minutes for their lunch breaks and were threatened with dismissal for the slightest infractions in terms of reporting back to work, and that their Irish co-workers could take up of an hour for lunch without being disciplined. Mr Andrejaitis gave evidence how he once went to a nearby shop to buy lunch for himself and his co-workers. He returned within time, but the respondent owner instructed him to bring his own lunch instead of "wasting time" and dismissed Mr Andrejaitis on the spot. Two weeks later, Mr Andrejaitis was taken back on again.
4.9. Mr Andrejaitis related three more incidents where he was dismissed, only to be taken back on again shortly afterwards. One occurred when he was told to make coffee for ten workers, including the boss. The boss was in a bad mood to begin with, and complained about the lack of sugar in his coffee when he received it. He threw the coffee against the wall and sacked Mr Andrejaitis on the spot. The two other dismissals with subsequent re-hires occurred while Mr Andrejaitis was on holiday in Lithuania, and Mr Andrejaitis, in evidence, said that he is unclear to this day as to what actually caused them. However, I found Mr Andrejaitis' assertion that the respondent's Irish workers did not receive such treatment, to be credible.
4.10. Mr Kaluzevicius gave evidence relating only to himself, how the respondent blamed him for any problems that occurred on site, everything from a sandwich lying around to more serious problems. He asserted that he was put under unreasonable pressure, and that no similar pressure was brought to bear on the Irish workers on site.
4.11. I find that the complainants' evidence in these matters establishes further elements of their prima facie case of less favourable treatment in their terms and conditions of employment, in terms of break times, and for Mr Andrejaitis and Mr Kaluzevicius, in terms of discriminatory application of discipline, contrary to S. 8(6)(c) of the Acts.
4.12. With regard to the complainants' complaint of discriminatory dismissal, Mr Kaluzevicius gave evidence that he received a text message from the respondent on a Saturday, with a proposal to cut everybody's pay to €50 per day. Before this, Mr Aukscionis and Mr Kaluzevicius, as carpenters, had received €150 per day, and the two other complainants had received €100 per day. Mr Kaluzevicius had saved the message on his mobile phone and was able to produce it in evidence; it reads: "Have to cut labours pay to 50 euro a day ask them is that ok or not prices for work are not good". Mr Kaluzevicius stated that when all workers reported for work on Monday and asked for reasons for the pay cut, they were told: "If you are not happy, everyone go home". According to Mr Kaluzevicius, nine workers, all Lithuanians, felt they had no other option but to leave the respondent's employment that day. The respondent's Irish workers were kept on.
4.13. I find that by putting his Lithuanian workers before the alternative to have their pay cut between one half and two thirds, or else to leave his employment, the respondent effected their constructive dismissal as defined in S. 2 of the Acts:
"Dismissal" includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee would have been entitled to terminate the contract without giving such notice, or it would have been reasonable for the employee to do so, and "dismissed" shall be construed accordingly.
4.14. The Labour Court, in the case An Employer v. A Worker (Mr O)(No. 2) [EED0410], has addressed the issue of constructive dismissal under the Acts comprehensively. It set out the main applicable tests, these being the "contract" test and the "reasonableness" test, and held that these tests may be used either in combination or in the alternative. I find that in this case, the "contract test" is the relevant one.
4.15. The Labour Court set out the contract test as follows: "The contract test was described by Lord Denning MR in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 332 as follows:
"If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance"
This passage describes a situation in which an employer commits a repudiatory breach of contract. In such circumstances, the employee is entitled to accept the repudiation and consider him or herself dismissed. However, not every breach of contract will give rise to repudiation. It must be a breach of an essential term which goes to the root of the contract. This is a stringent test which is often difficult to invoke successfully."
4.16. However, in the situation on hand, I find that the respondent was clearly reneging on the implied contract that had been performed by him and the complainants, whereby he would pay the qualified tradesmen €150 per day and the general operatives €100 per day, which, as the consideration paid for the work performed, is clearly an essential term of the contract. I therefore find that the complainants were constructively dismissed.
4.17. While the complainants could not say whether the respondent's Irish workers were threatened with the same pay cut, I find it reasonable to infer that they were not. This is supported by the complainants' evidence that Irish workers were in receipt of proper overtime payments whereas the Lithuanian workers were not. (See paragraph 4.7 above.) Furthermore, it seems highly unlikely that they, unlike their Lithuanian colleagues, would have been content to sustain pay cuts between 50% and 66% depending on whether they were general operatives or skilled workers, and still elected to continue in the respondent's employment. Yet the complainants were unanimous that all Irish workers stayed in the respondent's employment, and that it was all Lithuanian workers who were offered work for €50 per day and subsequently left. Accordingly, I find that the complainants have established a prima facie case that their employment relationship with the respondent came to an end in a manner that amounts to discriminatory constructive dismissal on the ground of race, and that this has not been rebutted.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that ARA Construction Ireland Ltd
(i) discriminated against Arunas Aukscionis, Giedrius Kaluzevicius, Darius Andriejaitis and Jonas Kriauciunas in their terms and conditions of employment contrary to S. 8(1) and S. 8(6) of the Acts, on the ground of race, in terms of non-provision of safety equipment, forcing unsafe working practices, overtime and disciplinary measures and
(ii) discriminatorily dismissed Arunas Aukscionis, Giedrius Kaluzevicius, Darius Andriejaitis and Jonas Kriauciunas on the ground of race contrary to S. 8(6) of the Acts.
5.2. In accordance with S. 82(1)(c) of the Acts, I hereby order that the respondent pay the complainants compensation as follows:
(i) Mr Arunas Aukscionis €2000 for discriminatory treatment and €5000 for discriminatory dismissal;
(ii) Mr Giedrius Kaluzevicius €7,500 for discriminatory treatment and €7,500 for discriminatory dismissal;
(iii) Mr Darius Andrejaitis €7,500 for discriminatory treatment and €7,500 for discriminatory dismissal;
(iv) Mr Jonas Kriauciunas €2000 for discriminatory treatment and €7,500 for discriminatory dismissal.
The differences in the awards reflect the different lengths of service of the four complainants and the differences in the discriminatory treatment they experienced. All awards are in compensation for the discrimination endured, and are not in the nature of pay and therefore not subject to tax.
______________________
Stephen Bonnlander
Equality Officer
16 November 2010