EQUALITY OFFICER'S DECISION NO: DEC-E/2010/195
PARTIES
VALDAS BARTKEVICIUS
(REPRESENTED BY RICHARD GROGAN AND ASSOCIATES - SOLICITORS)
AND
COOLASH CONSTRUCTION LTD
File No: EE/2007/132
Date of issue, 13/10/2010
Headnotes: Employment Equality Acts, 1998&2007 sections 6, 14A and 77 - discriminatory dismissal - harassment - discriminatory treatment - race ground
1. DISPUTE
This dispute involves a claim by Mr.Valdas Bartkevicius , who is a Lithuanian national, that he was (i) dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004, (ii) discriminated against on the grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004, and (iii) harassed by the respondent on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 14A of the Acts.
2. BACKGROUND
2.1 The complainant was employed by the respondent as a General Operative between February 2006 and January 2007. He contends that during his period of employment he was (i) dismissed by the respondent in circumstances amounting to discrimination on grounds of race and that he was (ii) discriminated against in not being provided with the training necessary to do his job. He also contends that he was (iii) harassed by the respondent contrary to the Employment Equality Acts, 1998 and 2004.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 13 March 2007. In accordance with her powers under the Acts the Director delegated the complaint to the undersigned - Brian O'Byrne, 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 12 May, 2009, the date the complaint was delegated to me. Submissions were received from both parties and a Hearing of the complaint took place on 28 July 2010.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is a Lithuanian national, commenced employment as a General Operative in February 2006. He was based at Huntstown Power Station where his employers were engaged as sub-contractors. He said that he was the only foreign national in his work-group although other foreign nationals were employed on the site. He said that his duties involved pouring concrete as well as driving and operating dumper trucks and roller vehicles. He said that he received very little on-site training and that he had been forced to drive and operate dumpers and rollers on site by his immediate foreman without a proper licence. He said that he had been told that if he refused he would either be sacked or be put manning the gates to the site. When he asked to be sent on a dumper training course, his employer refused to send him. The complainant believes that he was the only person pressurized into driving the dumpers and rollers without a licence and that this was because he was the only non-Irish member of the work-group.
As he knew that the Health and Safety Officer on site could have him fired for driving a dumper or roller without a licence, he decided to source and pay for his own Site Dumper training course which cost him €500. He said that he completed this training in November 2006 and was able to continue to drive the trucks thereafter as a licensed driver.
On a Friday evening, 12 January 2007, he said that he accidentally reversed into a fire hydrant when driving a dumper lorry. He said that he was trying to negotiate a narrow path between cones when this happened. The incident created a major water geyser which led to the site being shut-down because of the close proximity of the water to electricity generators. He said that his boss them arrived and told him to "f**k off from the site". As he appreciated the serious nature of the incident, he took it that he was being fired. When he called to the site the following week he was given his P45.
During his time with the company, he said that he and other foreign nationals were constantly being verbally harassed by his boss and foreman during the course of their duties, for example whenever they sought permission to visit the toilet which was on the other side of the site.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondents state that the complainant was employed as a General Operative from March 2006. They produced written evidence to show that the complainant had received relevant training on health and safety issues and manual handling. They claim that the complainant was at no time instructed to operate dumpers or rollers without a licence as the work-group already had its own licensed operator, an Irish employee, who was always available to drive the machinery involved (at the Hearing the complainant denied that this was the case and said that the Irish operator was missing much of the time and that he was required to drive the trucks in his absence). The respondents also stated that they had no recollection of the complainant asking to be sent on dumper driving training and that he undertook the dumper training of his own volition.
4.2 On 12 January 2007 the respondents state that the complainant caused a total site shutdown when he reversed a dumper into a fire hydrant and caused major flooding near a live ESB sub-station. The respondents state that he was validly driving the dumper truck at that point as he had attained his driver's certificate some months previously. On account of the seriousness of the incident, the complainant was told to leave the site. He was also told that the matter would be investigated and it was possible that his Access Safety Pass would be rescinded because of the serious nature of the accident.
A full independent investigation was undertaken that evening by the site owners and the subsequent report noted that the main contributing factor to the incident appeared to be driver error. The report also recommended that the complainant's site pass be removed from him. On foot of this report, he was dismissed the following week.
With regard to the allegation of harassment, the respondents deny that any harassment occurred and point to the fact that, if the complainant had been unhappy with any treatment he received, that he had the option of availing of the company's grievance procedure, but no complaint had been made.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the complainant was (i) dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004, (ii) discriminated against on the grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004, in being instructed to operate dumper trucks and roller vehicles without a proper licence and (iii) harassed by the respondent on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 14A of the 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 of the parties at the Hearing.
5.2 Section 6(1) of the Employment Equality Acts, 1998 and 2004 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 he is Lithuanian.
5.3 Section 85A of the Employment Equality Acts 1998 and 2004 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.
5.4 The first issue raised by the complainant relates to the circumstances surrounding his dismissal from the company. The evidence before me indicates that the complainant was the direct cause of a serious accident on site on 12 January 2007 and the subsequent report on the incident clearly recommended that he be sanctioned as a result. I am also satisfied from the complainant's own testimony that he realised the seriousness of the incident at the time and knew that it was a "sackable offence". On the basis of the foregoing, I am satisfied that the respondents had justification for dismissing the complainant.
Accordingly, I am satisfied that the complainant has not adduced evidence from which a prima facie case of discrimination could be inferred in relation to his dismissal from the company and this element of his complaint must fail.
5.5 The second issue raised by the complainant relates to an allegation that he was treated less favourably because of his nationality in being instructed to operate dumper trucks and roller vehicles without receiving the training necessary to do so. In this regard, I received conflicting reports as to whether the complainant was asked to drive trucks on site without a licence. Having heard the evidence of both sides at first hand, I find the complainant's evidence to be more compelling and I am prepared to accept that he was required to drive dumper and roller vehicles prior to him attaining a licence to do so. I also consider that it was because of his nationality that pressure was put on him to do this work ahead of Irish workers.
In reaching my decision, I have been influenced by the fact that the company have acknowledged that the complainant was required to drive dumpers and rollers after he got his licence which calls into question the respondent's claim that an Irish licensed driver was always available to drive the machinery involved.
Accordingly, I am satisfied that the complainant has adduced evidence from which a prima facie case of discrimination on the race ground can be inferred. I also find that the respondents have failed to rebut the allegation.
5.6 The final element of the complainant's claim concerns the alleged harassment of Lithuanian workers by supervisors. In this regard, I note that no supporting evidence has been provided to uphold the allegation.
Accordingly, I am satisfied that the complainant has not established a prima facie case in relation to the allegation of harassment and I find, therefore, that this element of his claim must also fail.
6 DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint 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 that he was dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004. Consequently, this element of his claim fails.
(ii) that the complainant has established a prima facie case of discrimination on the race ground and I am satisfied that the respondent has failed to rebut the allegation. As I have stated above, I found the complainant's evidence more compelling and I am satisfied that the respondent gave an instruction to the complainant, rather than to an Irish worker, to operate dumper trucks and roller vehicles without the necessary training or licence, I consider that this action amounts to discrimination on the race ground under the Employment Equality Acts and, accordingly, this element of the claim succeeds.
(iii) that the complainant has failed to establish a prima facie case of harassment on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 14A of those Acts. Consequently this element of his claim also fails.
6.2 In considering the level of compensation that would be appropriate in relation to the discrimination suffered, I have taken into account the fact that the complainant himself had to pay the €500 required for the dumper training and I order that the sum of €2500 be paid in compensation..
_______________________________________
Brian O'Byrne
Equality Officer
13 October 2010