THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
DEC - E2010-199
Maris Riekstins, Martin Velins, Gintas Cehovics, Mareks Cehovics, Andrejs Barbins, Eduards Kozlovs, Gatis Jevdokimovs, Andris Mednis and Janis Kurmholcs
(represented by Grogan and Associates Solicitors)
versus
Drumgoan Developments Ltd
(represented by Reidy Stafford Solicitors)
File reference: EE/2007/309, EE/2007/345 and EE/2007/371
Date of issue: 15th October 2010
Keywords: Employment Equality Acts, Race, No prima facie case, Conditions of employment, Dismissal, Time limits.
Dispute
1.1. The case concerns claims by eight Latvian Nationals against Drumgoan Developments Ltd. Their claim is that they was discriminated against regarding conditions of employment and training and that they were discriminatorily dismissed on the grounds of race contrary to 6(2) (h) of the Employment Equality Acts 1998 - 2008 [hereinafter referred to as 'the Acts']. The complaints of harassment were withdrawn at the hearing
1.2. Through their legal representative, the complainants referred their complaints under the Acts to the Director of the Equality Tribunal on different dates (see Appendix). On 16th November 2009, in accordance with her powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, 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. Written submissions were received from both sides and a joint hearing was held on 19th May 2010 as required by Section 79(1) of the Acts. I requested information from the respondent and the correspondence on this issue ended on 2nd July.
Preliminary issue - Non-attendance of 2 complainants
2.1 I notified the parties of the date of the hearing, by registered post, on 25th February 2010. I am satisfied that all reasonable efforts had been made to inform all eight complainants of the hearing. However, two complainants - Maris Riekstins and Andrejs Barbins - did not attend the hearing. In the light of the foregoing and in accordance with Section 79(6) of the Act I issue the following decision:
As part of my investigation under Section 79 of the Act, I am obliged to hold a hearing. I find that the failure of Maris Riekstins and Andrejs Barbins to attend such a hearing was unreasonable in the circumstances and that any obligation under Section 79 has ceased. As no evidence was given at the hearing in support of the allegation of discrimination in relation to these complainants, I conclude the investigation of their complaints and find against the complainants Maris Riekstins and Andrejs Barbins.
Summary of the complainants' case
3.1 The complainant were employed on various dates (see Appendix)
3.2 They maintain that they never received Health and Safety training or documentation. Neither did they receive a contract of employment. In relation to these issues, the complainants cite 58 complainants v Goode Concrete .
3.3They submit that they were dismissed and that this was done contrary to fair procedures. The complainants state they were obliged to sign settlement agreements on termination of their employment which took advantage of their vulnerable status as foreign nationals.
3.4 Other cases cited were Khumalo v Cleary and Doyle , Campbell Catering Ltd and Aderonke Rasaq , Zhang v Towner Trading , Golovan v Porturlin Shellfish Ltd .
Summary of the respondent's case
4.1 The respondent submits that Janis Kurmholcs ceased employment with Drumgoan Developments Ltd on 4th August 2007. This was the date of the most recent occurrence of discrimination. His claim was not submitted until 6th March 2008 which is outside the statutory 6-month time limit. No application for an extension of time has been made on the complainant's behalf and the respondent submits that there is not reasonable cause for same.
4.2 The respondent submits that no employee be they Irish or otherwise received a contract of employment. They conducted Health and Safety induction training - evidence of which was provided.
4.3 The respondent submits none of the complainants were discriminatorily dismissed. Drumgoan Developments Ltd point out that there was a downturn in the construction industry in late 2006/early 2007. The respondents submit that employees knew that the site they were working was about to be closed down and many left voluntarily when they obtained alternative work. Selection for redundancy was based on the work carried out by individual employees e.g. roofers were made redundant first. The respondent submitted evidence to show that the Janis Kurmholc, Eduards Kozlovs and Andris Mednis were among the last to be made redundant.
4.4 Regarding the settlement agreements, the respondent submits that all employees, irrespective of nationality, were asked to sign these.
Conclusions of the Equality Officer
5.1 One of the complainants Janis Kurmholcs ceased employment with the respondent on 4th August 2007. No evidence was adduced that the respondent discriminated against him after this date. His claim was not submitted until 6th March 2008 which is outside the statutory initial 6-month time limit. No application for an extension of time was been made on the complainant's behalf. Therefore, I have no jurisdiction to investigate Janis Kurmholc's complaints.
5.2 Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is race. Therefore, the issues for me to decide are:
a. Were the complainants discriminated in relation to conditions of employment and training on ground of race in terms of 8(1)(b) and 8(1)(c) of the Acts?
b. Did the respondent discriminatorily dismiss two of the complainants (Eduards Kozlovs and Andris Mednis) on the ground of race contrary to Section 8(6)(c) of the Acts?
5.3 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:
Section 85A of the Act provided 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. While those facts will vary from case to 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 establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.
Conditions of employment and training
5.4 Regarding conditions of employment, Section 8(6) of the Acts states that an employer shall be taken to discriminate against an employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee the same treatment [my emphasis] in relation to overtime, shift work, short time, transfers, layoffs, redundancies, dismissals and disciplinary measures as the employer offers or affords to another person where the circumstances in which both such persons are employed are not materially different.
5.5 The first issue raised by the complainants relates to the respondent's failure to furnish the complainants with a written contract of employment. 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 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 a Rights Commissioner (at first instance) and not this Tribunal. Regarding the written statement of terms and conditions of employment, the complainants have failed to establish a difference of treatment between them and the other employees in the company. In direct evidence, it emerged that no employee (no matter what nationality they were) received a written contract of employment. Therefore, this strand of their complaint fails.
5.6 Regarding Health and Safety training, the respondent brought the Health and Safety Officer from the relevant site as a witness. I found his evidence regarding the provision of training to be more compelling than that of the complainants. This was corroborated by employee acknowledgments forms signed by the complainants as well as employees of other nationalities following the receipt of health and safety training and accompanying relevant statements. Therefore, the complainants have not established a prima facie case of discrimination on the ground of race regarding training.
Discriminatory dismissal
5.7 Regarding the complainants' dismissal, find that the complainants have failed to establish a prima facie case of discrimination based on their nationality. The respondent provided me with a list of people who were made redundant. Some Irish people were let go before the complainants and some after. I am satisfied that selection for redundancy was done in a transparent and fair manner and nationality was not a factor. In relation to the settlement agreements, the respondent provided copies of these agreements signed by Irish former employees. Therefore, the complainants have failed to establish a difference in treatment between themselves and actual Irish comparators regarding their dismissal.
Decision
I have concluded my investigation of the complaints of Martin Velins, Mareks Cehovics, Eduards Kozlovs, Gatis Jevdokimovs and Andris Mednis. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i) Martin Velins, Mareks Cehovics, Eduards Kozlovs, Gatis Jevdokimovs and Andris Mednis have failed to establish the facts from which it may be presumed that the respondent discriminated against them on the grounds of race in relation to conditions of employment and training
(ii) Eduards Kozlovs and Andris Mednis have failed to establish the facts from which it may be presumed that they were discriminatorily dismissed on the grounds of race.
Therefore, I find against the complainants.
________________
Orlaith Mannion
Equality Officer
15th October 2010