EQUALITY OFFICER'S DECISION NO: DEC-E/2010/194
PARTIES
SAKOVICS
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES - SOLICITORS)
AND
(1) COUNTRY DOOR DESIGN LTD (IN LIQUIDATION)
&
(2) FOIL WRAP PRODUCTS LTD
File No: EE/2009/192 & 902
Date of issue: 12 October, 2010
Headnotes: Employment Equality Acts, 1998- 2008 - sections 6,8 &77 - race- discriminatory treatment - conditions of employment - dismissal - prima facie case - timelimits - reasonable cause
1. DISPUTE
This dispute involves a claim by Mr. Viktors Sakovics, who is a Latvian national, that he was (i) discriminated against by the respondent(s) in respect of his conditions of employment 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 and (ii) dismissed by the respondent(s) in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 77 of those Acts.
2. BACKGROUND
2.1 The complainant states that he commenced employment with the first named respondent as a Machine Operator in August, 2007 and was employed on a continuous basis at the same location until his employment was terminated on 7 January, 2009. He contends that during his period of employment he was (i) treated less favourably by the respondent as regards his conditions of employment on grounds of race and (ii) discriminatorily dismissed by the respondent on grounds of race (Latvian nationality) contrary to the Acts.
2.2 The complainant referred a complaint against the first named respondent under the Employment Equality Acts, 1998- 2008 to the Equality Tribunal on 24 February, 2009. In accordance with her powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, 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 3 November, 2009 - the date the complaint was delegated to me. On 10 November, 2009 the Liquidator appointed to the first named respondent wrote to the Tribunal advising that the first named respondent had ceased trading on 24 June, 2008 and that all employees, including the complainant, ceased employment on that date. This information raised timelimit issues for the complainant and the correspondence was copied to his legal representative for attention. The Tribunal received a letter from the complainant's representative on 1 December, 2009 referring a complaint against the second named respondent and arguing that in the circumstances there was "reasonable cause" to extend the period for referral of both complaints in accordance with section 77(5)(b) of the Employment Equality Acts, 1998-2008. In accordance with her powers under the Acts the Director also delegated this complaint to the undersigned - Vivian Jackson, 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 14 January, 2010 the date the complaint was delegated to me.
2.3 In light of the above circumstances the Hearing with the first named respondent, which had been scheduled for 11 December, 2009 was postponed. The complainant's solicitor filed a submission in respect of the second named respondent - which was copied to that respondent on receipt - and a Hearing on both complaints was scheduled for 11 May, 2010 at a venue in Dundalk. All parties were notified in writing on 13 April, 2010 of the arrangements for the Hearing. This correspondence was sent by recorded delivery. I am satisfied that the correspondence was received by the complainant's representative and the Liquidator appointed to the first named respondent. The envelope addressed to the second named respondent was returned to the Tribunal on 16 April, 2010 marked "refused" by the addressee. I note that previous correspondence sent to the second named respondent by recorded delivery was received and signed for by the Company Secretary (as per the records in the Companies Registration Office submitted to the Tribunal) on 30 March, 2010. It appears therefore that the second named respondent made a conscious decision not to accept the correspondence advising of the Hearing arrangements. In the circumstances, I was satisfied that the Tribunal had made all reasonable efforts to notify the second named respondent of the Hearing arrangements and the Hearing proceeded on 11 May, 2010 as scheduled. Neither of the respondents were present or represented at the Hearing. At the outset of the Hearing the complainant's legal representative withdrew those elements of his complaints in respect of health and safety training and documentation. A small number of issues arose at the Hearing which required further clarification and gave rise to subsequent correspondence between the Equality Officer and the parties. This process concluded in mid-July, 2010.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is a Latvian national, states that he commenced employment as a Machine Operator with the first named respondent in August, 2007. He adds that during that period he reported for duty at the same location (Kilnaleck, Co. Cavan) until he was advised by his Supervisor on 7 January, 2009 that his employment was being terminated due to shortage of work. The complainant further states he was unaware that the first named respondent had ceased trading on 24 June, 2008 and he did not receive any P45 in respect of that employment at that time. He adds that nobody told him his employer may have changed during his period of employment, that there was no appreciable change of employees between end June, 2008 and when he left and that during this time his Supervisor always remained the same. In the course of the Hearing the complainant stated that he could not remember if he ever received the P45 from Country Door Designs (dated 12 February, 2009) which had been submitted by the Liquidator appointed to the first named respondent and submitted a different P45 dated 7 January, 2009 which he states he received from his employer at that time.
3.2 In the course of the Hearing it was accepted on behalf of the complainant (although unknown to him at the time) that the first named respondent ceased trading on 24 June, 2008 and that a Liquidator was appointed to it on 16 January, 2009. It was further accepted on the complainant's behalf that in those circumstances his complaint against that respondent was not referred within the six month timelimit prescribed at section 77(5)(a) of the Acts. It was submitted on his behalf that the period for referral of the complaint should be extended in accordance with section 77(5)(b) of the Acts as there was "reasonable cause" for the delay. The complainant's representative also accepted that the complainant against the second named respondent was also referred outside of the timelimit prescribed at 77(5)(a) of the Acts. It was also submitted that there was "reasonable cause" for this delay and an extension of the timelimit in accordance with section 77(5)(b) of the Acts was appropriate. In support of the argument that the timelimits in respect of both complaints should be extended it was submitted on behalf of the complainant that he was never informed of any change of ownership of the company and any change that did occur, occurred seamlessly and did not affect the complainant's day to day employment or routine. It was further submitted that the complainant acted promptly in respect of both complaints - referring the first complaint within six weeks of the termination of his employment and the second one within three weeks of becoming aware of the fact that the first named respondent had ceased trading in June, 2008 and his employment had transferred to the second named employment at that time.
3.3 The complainant states that he did not receive a written contract or terms of employment and contends that this constitutes unlawful discrimination of him on grounds of race contrary to the Acts. He contends 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 contract of employment in a language which they understand. In the course of the Hearing the complainant stated that there were approximately twenty other employees engaged at the site - Irish, Polish, Latvian and Lithuanian - but was unable to confirm whether or not the respondent had provided any of these employees with a contract of employment or other documentation.
3.4 The complainant states that he arrived for work on 7 January, 2009 and was called to the office by his Supervisor, Vinny. The complainant adds that Vinny told him that he (the complainant) was a good worker but there was a shortage of work and he had to let him go. The complainant adds that he was aware there were two other employees performing the same type of work as him - one Polish and the other Latvian - who had commenced work with the respondent after him - and when he raised this matter with Vinny he ignored him. His evidence on this point was corroborated by the aforementioned Latvian employee - who stated that he left the employment of his own volition in January, 2010. The complainant states that he was not aware of any policy on dismissal in the respondent organisation which provided for a practice other than "last in- first out" and contends therefore that one of the employees with less service than him should have had the employment terminated instead of him. It is submitted therefore that the dismissal of the complainant constitutes discrimination of him on grounds of race contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
Neither of the respondents attended the Hearing or were represented at same. However, the Liquidator appointed to the first named respondent engaged with the Tribunal and whilst he did not file a submission he did provide information as requested. He states that he was appointed as Liquidator to the first named respondent on 16 January, 2009 and that the first and second named respondents are separate legal entities and the Liquidator has no role in the commercial activities of the latter. He adds that the first named respondent ceased trading on 24 June, 2008 and that all staff ceased to be employed by it on that day. Copies of P45 for those employees were furnished to the Tribunal. The Liquidator further states that (from his investigations) the second named respondent commenced trading in the same premises as the first named respondent in July, 2008, that it purchased the stock and certain assets of the first named respondent on a commercial basis and that many of the employees previously employed by the first named respondent were re-employed by it. The Liquidator adds that as far as he understood there was no formal undertaking to hire these staff as part of an agreement to purchase the stock etc. and he was unable to comment on the employment arrangements of any specific employee - including the complainant.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are whether or not (i) the complainant has valid complaints before this Tribunal against either, or both, of the named respondents, (ii) either, or both, of the respondents discriminated against the complainant 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 as regards his conditions of employment and (iii) either of the respondents dismissed the complainant in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 77 of those Acts. 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.
Time Limits
5.2 It is accepted on behalf of the complainant that each of his complaints against the respondents is out of time in that neither of them were referred to this Tribunal within the six month timelimit prescribed at section 77(5)(a) of the Acts. It is submitted on his behalf however, that there is "reasonable cause" to extend the period within which to refer each of his complaints in accordance with section 77(5)(b) of the Acts. The complainant stated that during his period of employment he reported for duty each day to the same premises, performed the same duties, worked with the same colleagues and was supervised by the same people. He adds that he was unaware his employment had ceased with the first named respondent on 24 June, 2008 until his solicitor received a letter from this Tribunal dated 11 November, 2010 enclosing correspondence from the Liquidator to that effect. Consequently, when he referred his complaint against the first named respondent on 24 February, 2009 he named whom he believed to be his employer in January of that year and his complaint was therefore in time. The complainant further states that he was unaware he had been re-engaged by the second named respondent in July, 2008 until mid November, 2009, when following receipt of the correspondence form this Tribunal dated 11 November, investigations by his solicitor suggested that the second named respondent was operating from the premises and a separate complaint against that respondent was immediately referred to the Tribunal on his behalf.
5.3 On the basis of the evidence adduced by the parties I am satisfied that the last possible date of discrimination in respect of the first named respondent is 24 June, 2008 - the date that company ceased trading. The last date of discrimination in respect of the second named respondent is 7 January, 2009 - the date of the complainant's alleged dismissal. As both complaints were referred to this Tribunal outside of the six month timelimit prescribed at section 77(5)(a) of the Employment Equality Acts, 1998 - 2007, the complaints will only be validly before this Tribunal if the complainant can demonstrate "reasonable cause" and avail of the extended timelimit provided at section 77(5)(b) of the Acts. In Cementation Skanska v Tom Carroll the Labour Court addressed the issue of "reasonable cause" in terms of the Organisation of Working Time Act, 1997. However, the rationale adopted by the Court in that case is applicable to the instant case. The Court stated that in considering if reasonable cause exists -
"it is for the complainant to show that there are reasons which explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the complainant at the material time. The complainant's failure to present the claim within the six-month timelimit must have been due to the reasonable cause relied upon.....and the complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present, s/he would have initiated the claim in time. The length of delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.....".
5.4 This test requires the complainant to provide reasons which both explain the delay and offer an excuse for the delay. However, the test must be applied to the circumstances which prevailed and the facts known to the complainant at the relevant time. In the first instance I note the Liquidator's evidence that the second named respondent purchased the stock of the first named respondent in June/July, 2008 and re-engaged many of the employees whose employment terminated when it (the first named respondent) ceased trading around that time. This evidence supports the complainant's argument that there was a seamless change of ownership of the activities between the two respondents. I also note that the dates on the P45's prepared by the first named respondent are dated with several dates in February, 2009 - all of which postdate the date the complainant contends he was dismissed - and are approximately 8 months after the first named respondent ceased trading. I am satisfied, on balance, that the complainant never received this P.45. I accept the complainant's evidence that he was unaware of any change in the identity of his employer during his period of employment and that he reported for duty each day at the same location, completing the same tasks and working with the same people. In light of the foregoing I am satisfied that the complainant has shown "reasonable cause" in respect of his complaint against the first named respondent and consequently I find that the time for referral of that complaint should be extended in accordance with section 77(5)(a) of the Acts and that his complaint is validly before the Tribunal for investigation. To find otherwise would deny the complainant his statutory rights due to an omission (deliberate or otherwise) by the first named respondent to advise him of the prevailing circumstances.
5.5 The complainant referred his complaint against the first named respondent to this Tribunal on 24 February, 2009. In accordance with the normal procedures of the Tribunal the complaint form was copied to the respondent on 4 March, 2009. On 10 March, 2009 the Tribunal received an e-mail from the Liquidator appointed to the first named respondent advising that respondent was in liquidation. On 16 June, 2009 the complainant's solicitor filed a submission on his behalf in respect of the complaint. This submission was copied to the Liquidator on the same day for response. No response was received and the Liquidator requested - by letter dated 22 October, 2009 - that the Hearing of the complaint be expedited as it was one of only a few issues remaining to be concluded in the liquidation process. The Liquidator was requested (for a second time) on 4 November, 2009 to file a response to the complainant's submission in advance of the Hearing - which had been scheduled for 11 December, 2009. In response to this request the Liquidator advised (by letter dated 10 November, 2009) that the first named respondent had ceased trading on 24 June, 2008 with the termination of the employment of all staff on that day. This was copied to the complainant's solicitor on 11 November, 2009. I am satisfied that this was the first occasion that this matter had been raised with the Tribunal - despite the fact that the Liquidator had received the complainant's submission on 16 June, 2009 - and thus I accept it was the first occasion on which the complainant's solicitor became aware of the situation. Had the Liquidator raised this issue in June, 2009 it would have been open to the complainant to investigate the matter - as subsequently happened in November, 2009 - and refer a complaint to this Tribunal immediately and in doing so, would have complied with the six month timelimit prescribed at section 77(5)(a) of the Acts. As I have said in the preceding paragraph I am satisfied that the complainant was unaware that there had been a change in his employer (in June/July, 2008) until mid-November, 2009. He acted promptly in referring a complaint against the second named respondent on 1 December, 2009. In the circumstances I am satisfied that he has demonstrated "reasonable cause" for the delay in referring his complaint and is entitled to avail of the extension of the period for referring a complaint as provided at section 77(5)(b) of the Acts. Accordingly, I find that the complaint against the second named respondent is validly before the Tribunal for investigation.
Allegations of Discriminatory Treatment and Discriminatory Dismissal
5.6 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.
5.7 I propose to examine the discriminatory treatment aspect of the complainant's claim in the first instance. 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 his is Latvian
5.8 The complainant states that he did not receive a contract of employment or other written terms and conditions of employment during his entire period of employment and submits that this constitutes less favourable treatment of him on grounds of race contrary to the Acts. In the first instance it should be noted that there is no general obligation on an employer to provide an employee with a written contract of employment. There is however, a statutory requirement on employers to provide employees with a written statement of certain terms of their employment under the Terms of Employment (Information) Act, 1994. Enforcement of rights under this statute rests with the Rights Commissioner (at first instance) and not this Tribunal. In the course of the Hearing the complainant stated that there were approximately twenty other employees engaged by the respondent at the same time as him - Irish, Polish, Latvian and Lithuanian - but was unable to confirm whether or not the respondent had provided any of these employees with a contract of employment or other documentation.
5.9 In Melbury Developments v Arturs Valpetters , 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.
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."
5.10 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. In the instant case the complainant was unable to say if any of the other employees engaged by the respondent during his period of employment received contracts of employment (or written terms of employment). All that the complainant has proffered therefore is an assertion unsupported by any evidence - a scenario which the Labour Court found to be insufficient to satisfy the initial probative burden required in terms of section 85A of the Acts. In the circumstances I am not satisfied that the complainant has established as a fact that he was treated differently to any of those employees. Accordingly, he has failed to establish a prima facie case of discrimination in respect of this element of his complaint and he cannot therefore succeed.
5.11 I shall now examine the complainant's assertion of discriminatory dismissal. On the basis of the evidence adduced by the Liquidator appointed to the first named respondent I am satisfied that it ceased trading on 24 June, 2008 at which time the employment of the twenty two employees was terminated. The complaint stated that these employees comprised Irish, Polish, Latvian and Lithuanian and the details contained on the P45 documentation submitted by the Liquidator supports this position. Consequently, employees of a different nationality to the complainant were treated in the same fashion as the complainant and no less favourable treatment occurred. The complainant has therefore failed to establish a prima facie case of discriminatory dismissal against the first named respondent and his claim therefore fails.
5.12 The complainant states that he was dismissed from his employment in the second named respondent on 7 January, 2009. He submitted a copy of a P45 issued to him at that time and I am therefore satisfied that his employment was terminated on that date. The complainant contends that there were two other employees performing the same work as him - one Polish and the other Latvian - who had less service than him and they were retained in employment. His evidence on this matter was corroborated (independently) by the aforementioned Latvian employee. As the complainant and this employee were the same nationality - Latvian - the termination of his employment cannot be linked to that factor. I found both the complainant and the witness to be credible and they gave their evidence in a clear and forthright manner. Whilst I accept that there was a Polish employee with less service than the complainant was retained in employment by the second named respondent at the time, the fact that the respondent also retained a Latvian employee with less service than the complainant means that whilst the termination of his employment may be unfair, his nationality was not a factor which influenced the decision. I find therefore that the complainant has failed to establish a prima facie case of discriminatory dismissal and his complaint must fail.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of these complaints and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find -
(i) that the complainant has failed to establish a prima facie case of discrimination 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 in respect of his conditions of employment in respect of either the first named respondent or the second named respondent.
(ii) that the complainant has failed to establish a prima facie case of discriminatory dismissal on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998- 2007 and contrary to section 77 of those Acts in respect the first named respondent or the second named respondent.
and his complaints fail in their entirety
______________________________________
Vivian Jackson
Equality Officer
12 October, 2010