THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2010-192
PARTIES
Vidas Sinkunas
(represented by Richard Grogan
& Associates, Solicitors)
and
M. McGuire Haulage Limited
(represented by ESA Consultants)
File References: EE/2007/531
Date of Issue: 12th October, 2010
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - race - conditions of employment - training - harassment - discriminatory dismissal - failure to establish a prima facie case of discrimination
1. Dispute
1.1 This case concerns a complaint by Mr. Vidas Sinkunas, who is a Lithuanian national, that he was discriminated against by M. McGuire Haulage Limited on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of conditions of employment, harassment and discriminatory dismissal.
2. Background
2.1 Mr. Vidas Sinkunas referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 21st September, 2007. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the cases on 25th May, 2010 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. A written submission was received from the complainant on 15th October, 2008 and from the respondent on 21st September, 2010. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 30th September, 2010.
3. Summary of the Complainant's cases
3.1 The complainant, Mr. Vidas Sinkunas, who is a Lithuanian national, submitted that he was employed by the respondent as a truck driver from 18th June, 2007 until 2nd August, 2007. The complainant stated that he received no written contract or terms of employment and he contended that this constitutes unlawful discrimination of him on the grounds of race contrary to the Acts. The complainant submitted that following the Decision of this Tribunal in 58 Complainants -v- Goode Concrete there is an obligation on an employer to provide employees with a written contract of employment in a language which they can understand.
3.2 The complainant submitted that the respondent failed to provide him with any proper health and safety documentation or training during the course of his employment. The complainant submitted that the respondent's failure to provide him with a health and safety statement in a language which he could understand amounts to discrimination within the meaning of the Acts.
3.3 The complainant submitted that he was required to work approximately 12 hours a day without proper rest periods or breaks and that he was working up to six days a week. The complainant submitted that he was required to do 15 deliveries per day in his truck and he was informed that if he didn't do 15 deliveries per day that he would be fired from his job. The complainant claimed that this treatment amounted to discrimination against him on the grounds of his nationality as the Irish truck drivers employed by the respondent were afforded proper rest and break periods and were not required to do 15 deliveries per day.
3.4 The complainant submitted that he was summarily dismissed from his employment on 2nd August, 2007 after the truck he was driving was involved in a road traffic accident during the course of his work. The complainant stated that his truck was involved in a collision with a motor car after he had attempted to change lanes on a motorway. The complainant accepted that he was responsible for the accident. However, he submitted that it was not unreasonable to assume that there was every likelihood he would be involved in an accident taking into account the long hours and pressurised conditions under which he was working. The complainant submitted that he was informed by the respondent on the day of this accident that he was not to come to work the following day. The complainant submitted that he was dismissed without any proper procedures and he claimed that the respondent's treatment of him constitutes discrimination on the grounds of his nationality contrary to the Acts.
3.5 The complainant also claims that he was subjected to harassment by the respondent on the basis of threats that he would be fired from his position if he did not do 15 deliveries in his truck each day. The complainant submitted that this treatment constitutes harassment on the grounds of his nationality contrary to the Employment Equality Acts.
3.6 The complainant also referred to a number of cases in support of his case, including Campbell Catering Ltd. -v- Rasaq (EED048), 58 Complainants -v- Goode Concrete (DEC-E2008-020), Khumalo -v- Cleary & Doyle Limited (DEC-E2008-003), Golovan -v- Porturlin Shellfish Limited (DEC-E2008-032) and Ning Ning Zhang -v- Towner Trading t/a Spar Drimnagh (DEC-E2008-001).
4. Summary of the Respondent's case
4.1 The respondent operates a sand and gravel haulage company and it has been in business since 2001. The respondent submitted that it employed approx. ninety members of staff in August, 2007 which comprised of truck drivers from Poland, Lithuania, Romania and Ireland. The respondent stated that the complainant was employed from 22nd June, 2007 until 3rd August, 2007 and that he worked as a truck driver carrying out deliveries between two sites in Co. Limerick during the period of his employment.
4.2 The respondent submitted that it provides all of its employees with written contracts of employment within eight weeks of the commencement of their employment (in accordance with its obligations under the Terms of Employment (Information) Act, 1994). The respondent stated that the complainant was provided with a written contract of employment on 22nd June, 2007 setting out the terms and conditions of his employment but that he failed to sign and return the document to it. The respondent accepts that this contract was drafted in the English language. However, it stated that the document was translated for him into his native language by another of it's workers, Mr. A, who was fluent in this language. The respondent stated that it relied upon Mr. A, who was the complainant's friend, to communicate with him on its behalf during the course of his employment.
4.3 The respondent submitted that the complainant was provided with the same health and safety training as all of its other truck drivers (including the Irish drivers) when he commenced employment. The respondent stated that the complainant was taken on a trial run with another established driver who could speak his language, upon the commencement of his employment, and that all aspects of the relevant health and safety requirements were explained to him in his native language during this trial run.
4.4 The respondent denied the complainant's contention that he was not afforded proper rest periods or breaks during his period of employment. The respondent stated that the complainant was afforded the same rest periods and breaks as all of its other drivers (including those of Irish origin). The respondent submitted that all of its truck drivers, regardless of their nationality, were required to do 15 deliveries each day as this was the standard workload requirement for all truck drivers. The respondent stated that it never received any complaints, either from the complainant or any of its other drivers, regarding the requirement to do 15 deliveries each day. The respondent stated that it was clearly explained to the complainant upon the commencement of his employment that he would be required to do 15 deliveries each day.
4.5 The respondent stated that the complainant was dismissed from his employment as a result of his involvement in a road traffic accident during the course of his work on 3rd September, 2007. The respondent submitted that the complainant's truck was involved in a collision with a motor car when he was attempting to change lanes on a motorway. The respondent stated that there was extensive damage caused to the motor car and the truck the complainant was driving as a result of this accident. The respondent stated that the complainant was completely at fault for this accident and given that road safety is of paramount importance to the respondent it was decided to terminate his employment due to gross misconduct. The respondent denies that this dismissal was in any way connected to the complainant's nationality and it stated that other drivers (including a driver of Irish origin) had been summarily dismissed in similar circumstances after being involved in road traffic accidents during the course of their work.
4.6 The respondent also denied that the complainant was subjected to harassment within the meaning of the Employment Equality Acts. The respondent denied that the complainant was ever threatened that he would be fired if he did not do 15 deliveries each day. The respondent stated that the complainant never made any complaint of harassment in relation to this issue during his period of employment.
5. Conclusions of the Equality Officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 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)(h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins".
5.3 At the outset of the hearing of the complaint, the complainant's representative withdrew the complaint in relation to training. Accordingly, the issues for decision in this case is whether or not the respondent discriminated against, discriminatorily dismissed and harassed the complainant on the ground of his race contrary to the Employment Equality Acts. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
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 Act 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.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
Conditions of Employment
5.5 Firstly, I will consider the issue that has been raised by the complainant in relation to the respondent's alleged failure to provide him a written contract of employment in a language he could understand which he contends constitutes unlawful discrimination on the grounds of race contrary to the Acts. In the present case, the issue of whether or not the complainant actually received a written contract of employment was in dispute between the parties. The complainant claims that he did not receive a written contract (either in English or his native language) whereas the respondent claims that the complainant was, in fact, issued with a written contract of employment on 22nd June, 2007.
5.6 In considering this issue, I note the respondent's evidence that it issued all of its employees with a contract of employment within eight weeks of their commencement in employment. The respondent submitted in evidence a copy of the written contract of employment which it claims was given to the complainant on this date. Having regard to the evidence adduced, I have found the respondent's evidence to be more credible in relation to this issue and I am satisfied, on balance, that the complainant was issued with a contract of employment by the respondent on 22nd June, 2007.
5.7 The complainant has submitted that the Decision of this Tribunal in 58 Complainants -v- Goode Concrete places an obligation on an employer to furnish non-Irish employees with a contract of employment in a language which they understand. I am of the view that this is an incorrect interpretation of that Decision. In that case the Equality Officer found that in circumstances where an employer furnishes its employees with contracts of employment it constitutes less favourable treatment of non-Irish employees if the respondent provides them with a contract of employment in English and not in a language which they can understand.
5.8 In the present case, the respondent accepted that the contract which was issued to the complainant was drafted in the English language. However, the respondent stated that it had requested Mr. A to translate the contents of the contract to the complainant. The respondent stated in evidence that Mr. A had confirmed that this contract was translated for the complainant into his native language and that the complainant did not have any difficulties with it. I have found the respondent's evidence to be credible in relation to this issue and I am satisfied that the measures taken by the respondent to ensure that the complainant fully understood the contract of employment which it provided to him were reasonable in the circumstances of this case. In the circumstances, I find that the complainant has failed to establish that he was treated less favourably than an Irish person was treated or would have been, in similar circumstances, on the grounds of his nationality in relation to this aspect of his conditions of employment. Accordingly, I find that the complainant has failed to establish a prima facie case in relation to this element of his complaint.
5.9 The next issue that I must consider relates to the complainant's claim that the respondent failed to provide him with any proper health and safety training or documentation in a language which he could understand which he contends constitutes unlawful discrimination of him on the grounds of race contrary to the Acts. The respondent gave evidence that the complainant was afforded the same level of health and safety training as any of its other workers (including those of Irish origin). The respondent stated that the complainant, as was the situation with all new truck drivers, was taken on a trial run with another established driver who could speak his language upon the commencement of his employment. It stated that all aspects of the relevant health and safety requirements were explained to him in his native language during this trial run.
5.10 Having regard to the evidence adduced, I have found the respondent's evidence to be more compelling in relation to this issue and I am satisfied that the complainant was treated in the same manner as all of the respondent's other truck drivers (including those of Irish origin) in terms of the provision of health and safety training and documentation. In the circumstances, I find that the complainant has failed to establish that he was treated less favourably than another person would have been, in similar circumstances, on the grounds of his race in relation to this aspect of his conditions of employment. Accordingly, I find that the complainant has failed to establish a prima facie case in relation to this element of his complaint.
5.11 The next issue that I must consider relates to the complainant's claim that he was not afforded proper rest periods and breaks during the working day and that he was required to carry out a greater number of deliveries each day than the Irish truck drivers. The complainant gave evidence that he was aware the Irish drivers were afforded proper rest periods and breaks and he stated that the Irish drivers told him that they did not do as many deliveries as the "foreigners". The respondent denied that the complainant was not afforded proper rest periods and breaks and it stated that all of its truck drivers (including those of Irish origin) were required to comply with the standard of 15 deliveries each day. The respondent's Managing Director, Mr. B, gave evidence that he had test driven the route which the complainant worked and was satisfied that it was absolutely possible to do 15 deliveries within the working day (from 8 a.m. to 6 p.m.) and that it was also possible to take proper rest periods whilst doing so.
5.12 Having regard to the evidence adduced, I have found the respondent's evidence to be more credible regarding this issue and I am satisfied that the complainant was treated in the same manner as all of the respondent's other truck drivers (including those of Irish origin) in terms of the provision of rest periods/breaks and the requirement to do 15 deliveries each day. I am of the view that all the complainant has proffered in relation to this issue is an assertion unsupported by any evidence - a scenario which the Labour Court found to be insufficient in the Melbury case to satisfy the initial probative burden required in terms of section 85A of the Acts. In the circumstances, I find that the complainant has failed to establish that he was treated less favourably than another person would have been, in similar circumstances, on the grounds of his race in relation to this aspect of his conditions of employment. Accordingly, I find that the complainant has failed to establish a prima facie case in relation to this element of his complaint.
Discriminatory Dismissal
5.13 The next issue that I must consider relates to the complainant's claim that he was subjected to a discriminatory dismissal by the respondent on the grounds of his nationality. In considering this issue, I note that the facts surrounding the circumstances of the complainant's dismissal were not disputed between the parties. It was accepted by both parties that the complainant was summarily dismissed by the respondent following his involvement in a road traffic accident when the truck he was driving struck a motor car after he had attempted to change lanes while driving on a motorway. The respondent stated that it was satisfied the complainant was completely at fault for the accident and that it decided to dismiss him on the basis that he was guilty of gross misconduct. The complainant accepted in evidence that he was responsible for the accident; however, he argued that the respondent treated him in a discriminatory manner by failing to apply any proper procedures in relation to his dismissal.
5.14 Having regard to the evidence adduced, I am satisfied that the complainant has not adduced also evidence to substantiate his claim that his dismissal was in any way attributable to his nationality. In coming to this conclusion, I have taken into consideration the respondent's evidence that a number of other workers (including an Irish driver) had been summarily dismissed as a result of their involvement in road traffic accidents during the course of their employment. Indeed, I also note the complainant accepted that he was aware of an Irish driver who had been dismissed by the respondent in such circumstances. I accept that the respondent may not have adhered to proper procedures in terms of the manner in which the complainant's dismissal was effected. However, the issue for decision in this claim is whether or not the complainant was discriminated against on the grounds of race in relation to dismissal. This Tribunal has no jurisdiction to decide on the unfairness or otherwise of the dismissal; the complainant needs to prove that it was connected to his race. The Labour Court has recently stated in the case of Mulleadys Ltd -v- Aidotas Gedrimas that "the complainant has presented no evidence of racial discrimination to the Court. The Court is not satisfied that others of a different nationality to the complainant were/would be treated any differently. The Court has dealt with many cases where employers are accused of dismissing employees without recourse to appropriate disciplinary procedures and such cases are by no means confined to workers whose national origin is outside of Ireland".
5.15 Having regard to the totality of the evidence adduced, I am not satisfied that the complainant has adduced any evidence to support his assertion that his nationality was a factor which influenced the respondent's decision to dismiss him from his employment. Accordingly, I find that the complainant has failed to establish a prima facie case in relation to this aspect of his complaint.
Harassment
5.16 The final issue that I must consider relates to the complainant's claim that he was subjected to harassment by the respondent on the grounds of race contrary to section 14A of the Acts. The complainant claims that he was threatened by the respondent that he would be dismissed from his employment if he did not carry out 15 deliveries each day. The complainant claims that he was informed of these threats through other workers who were employed by the respondent. The respondent denied that it had made any such threats to the complaint during the course of his employment or that it had instructed any of its employees to convey such a message to him on its behalf.
5.17 Having regard to the evidence adduced, I have found the respondent's evidence in relation to this issue to be more credible and I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that he was subjected to harassment within the meaning of the Acts by the respondent. Accordingly, I find that the complainant has failed to establish a prima facie case of harassment on the grounds of his race.
6. Decision
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
(i) 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 and contrary to section 8(1) of the Acts;
(ii) the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2)(h) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts;
(ii) the respondent did not subject the complainant to harassment contrary to section 14A of the Acts.
Accordingly, I find in favour of the respondent in this case.
______________
Enda Murphy
Equality Officer
12th October, 2010