The Equality Tribunal
Employment Equality Acts
Decision DEC-E2010-233
PARTIES
Gediminas Tamilis, Sergejs Belajevs, & Arnoblas Jucevicius
(Represented by Richard Grogan & Associates)
- V -
Bastian Hubrich T/A Kyser Paving Contractors
File references: EE/2008/331, EE/2008/335 & EE/2008/426
Date of issue: 23 November 2010
Keywords - Employment Equality Acts - Discriminatory Treatment - Discriminatory Dismissal - Race - Prima Facie case
1. DISPUTE
1.1 This dispute concerns a claim by Mr Gediminas Tamilis, Mr Sergejs Belajevs, & Mr Arnoblas Jucevicius that they were subjected to discriminatory treatment by the respondent on the grounds of their race in terms of Section 6(2) of the Employment Equality Acts and contrary to Section 8 of those Acts. The second-named complainant is also claiming discriminatory dismissal on the race ground.
1.2 The complainants referred claims of discrimination to the Director of the Equality Tribunal on 23 June 2008, 26 May 2008, & 3 June 2008 respectively under the Employment Equality Acts. On 25 March 2010, in accordance with his powers under section 75 of the Acts, the Director then delegated the cases 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 30 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 complainants submitted that they were employed by the respondent and are non-Irish nationals (being from Lithuania and Latvia) and it is on this basis that these complaints are being taken. The complainants submitted that they did not receive a proper contract nor Health & Safety documentation and/or training.
2.2 The complainants submitted that they were not paid the correct rate of pay and further that at times they were not paid in full or at all. The complainants submitted that they did not receive terms and conditions that complied with the registered employment agreement for the construction industry
2.3 The complainants submitted that they did not receive proper employment documentation and were not joined into the CWPS pension and sick pay scheme. The complainants also submitted that they did not receive a P60.
2.4 In addition the second-named complainant submitted that he was dismissed without any proper reason or procedure.
2.5 The complainants submitted that they 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 complainants 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 Lange -&- Georg Schünemann Gmbh - Judgement of the European Court of Justice 8th February 2001. Case C-350-99
2.8 The complainants submitted that they are seeking compensation.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent submitted substantial documentation relating to the employee/employer relationship 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 the complainants discriminatory treatment, and in one case discriminatory dismissal 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 legal representatives on record at that time. The receipt of this notification was acknowledged by the former representatives of the respondent who indicated that they were coming off record and confirmed that the respondent had been notified of the hearing details. 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 At the start of the hearing the complainant's representative was asked what, if any, evidence there was of discrimination as all of the allegations contained in the written submissions appeared to refer to infringements of employment law other than the Employment Equality Acts. In response the complainant's representative stated that all matters except one before the Tribunal were being withdrawn. The complainant's representative indicated that the only matter being left for consideration by the Tribunal in relation to all three complainants, was that the complainants had received a contract in English only and it was stated that this, in and of itself, amounts to discrimination.
4.5 The Tribunal proceeded on that basis and questioned the complainants as regards their capacity in English and as regards the circumstances of their employment. The complainants were afforded the opportunity to provide and additional evidence that they thought relevant but did not do so. The complainants were found to be credible in delivering their evidence.
4.6 As regards the submission on behalf of the complainants that issuing contracts in English only amounts to discrimination per se, I am not satisfied that giving staff members whose mother tongue is not English contracts in English only can amount to discrimination in and of itself. Each case must be considered in light of the circumstances that pertain to the employment relationship in its entirety. Factors such as, but not limited to, the employee's knowledge of the language of the contract, the employees knowledge of the business and the work environment, the employer's knowledge of the employee's mother tongue, the availability of translation services - both formal and informal, the size of the company in relation to the numbers of language spoken, the line management structure within the company (in terms of language competence and nationality) and the common language used within the company, all contribute to consideration of what amounts to discrimination in the circumstances of the employment relationship.
4.7 In this case, the first named complainant gave evidence in relation to his competence in English. This complainant was employed as a foreman. He had studied written and spoken English in school for eight years and had developed his ability further while in an English speaking environment in Ireland. It was apparent from his evidence that he had developed a good capability in English. Accordingly, I cannot find that he would be at a disadvantage when presented with a contract that was only written in English. As no less favourable treatment has been established, the claim of the first-named complainant fails.
4.8 In relation to the second- and third-named complainants, they gave evidence that they only had a very basic level of English and did not understand the contents of their contracts. They also gave evidence that that they were assigned to work with an experienced foreman (the first-named complainant) who had a good knowledge of a language in common with the complainants, and of English. As such, an informal translation service was available to the complainants. The complainants gave no evidence of being adversely affected by being provided with a contract in English only. On this basis, and having regard to 4.6 above, I find that no evidence establishing that these complainants were less favourably treated has been put before the Tribunal and I do not accept that the complainants have established facts from which discrimination may be inferred. As no prima facie case has been established, the claims of the second- and third-named complainants fail also.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory dismissal on the basis of the race ground fails for want of prosecution.
5.2 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 three named complaints case fails.
Conor Stokes
Equality Officer
23 November 2010