EQUALITY OFFICER'S DECISION NO: DEC-E/2010/200
PARTIES
LOMSARGIS, JARASUIS, RAMANAUSKAS AND BARKAUSKAS
(REPRESENTED BY RICHARD GROGAN AND ASSOCIATES - SOLICITORS)
AND
CLOUGHREA WASTE DISPOSAL LTD
File No: EE/2008/543-545 and 640
Date of issue 19 October, 2010
Headnotes: Employment Equality Acts, 1998- 2007 - sections 6& 8 - race- discriminatory treatment - conditions of employment - dismissal - prima facie case
1. DISPUTE
This dispute involves complaints by (i) Mr. Arturas Lomsargis, (ii) Mr. Grazuydas Jarasuis, (iii) Mr. Renatas Ramanauskas and (iv) Mr. Rimas Barkauskas, who are all Lithuanian nationals, that they were (a) discriminated against by the respondent in respect of their 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 (b) dismissed by the respondent 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 8 of those Acts.
2. BACKGROUND
2.1 The complainants were employed by the respondent as Lorry Drivers for varying periods between March 2008 and 2 May, 2008, when the contend they were dismissed in circumstance amounting to discrimination on grounds of race contrary to the Acts. They further contend that during their periods of employment they were treated less favourably as regards their conditions of employment on grounds of race (Lithuanian nationality) contrary to the Acts.
2.2 Mr. Lomsargis, Mr. Jarasuis and Mr. Ramanauskas each referred complaints under the Employment Equality Acts, 1998 - 2008 to the Equality Tribunal on 18 August, 2008. Mr. Barkauskas referred his complaint under the same legislation to the Tribunal on 29 September, 2008. In accordance with his powers under the Acts the Director delegated the complaints 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 complaints commenced on 20 September, 2010 - the date they were delegated to me. The parties were advised, by letter dated 14 July, 2010, that the Hearing on the complaints would take place in Chapter House, Dublin on Wednesday 22 September, 2010 commencing at 2.30pm. This correspondence was sent by registered post - and I am satisfied that it was received by the respondent on 15 July, 2010. As I was satisfied that the respondent had received the letter of 14 July, 2010 the Hearing proceeded as scheduled. The respondent was neither present nor represented at the Hearing. A small number of points arose at the Hearing which required further clarification from the complainants. This process concluded on 1 October, 2010.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 All four complainants, who are Lithuanian nationals, state that they were employed by the respondent as Lorry Drivers for varying periods between March, 2008 and 2 May, 2008 - when they contend they were discriminatorily dismissed. They state that during their periods of employment they did not receive a written contract or terms of employment and contend that this constitutes unlawful discrimination of them on grounds of race contrary to the Acts. It is submitted on their behalf 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 complainants stated that during their period of employment the respondent engaged approximately six/seven other employees - comprising Lithuanian, Polish and Romanian. The complainants were unable to say whether any of these employees received a contract of employment or other documentation containing terms and conditions of employment.
3.2 The complainants state that the respondent failed to provide them with a health and safety statement/documentation or training in a language which they could understand. They further state that they received no payslips or tax documentation. In the course of the Hearing none of the complainants were able to say whether or not any of other employees of a different nationality who were employed at the same time as them received any health and safety training or documentation. They were also unable to say if those employees received payslips or tax documentation. It is submitted on the complainants' behalf that the respondent's actions constitute less favourable treatment of them on grounds of race, contrary to the Acts. They seek to rely on the Decision of this Tribunal in 58 Complainants v Goode Concrete in this regard.
3.3 The complainants state that they received their salaries each week by cheque. They add that on Friday 2 May, 2008 they became aware that the cheques which they had received from the respondent in respect of their salary for the previous week, which they had lodged to their accounts, had been returned to their banks as "unpaid" by the respondent's bank. They add that Mr. Lomsargis tried to contact the respondent by telephone to see what was happening and after a number of unsuccessful attempts to do so the respondent texted him (Mr. Lomsargis) and asked him and the three other complainants to come to his house later that evening and he would rectify the situation. The complainants state they went to the respondent's house at about 8pm that evening as requested. They add they met with the respondent in his kitchen and were expecting to have the value of the unpaid cheques made good in cash. When this did not happen they decided to leave and told the respondent that they were going to bring the matter to the attention of the Gardaí. They add that during this conversation the respondent told them that they no longer worked for him. They state that they got back into their cars but were unable to leave the premises as it was secured by electronic gates which were closed. The complainants further state that the respondent refused to open the gates when requested and released dogs into the yard where their cars were parked - effectively imprisoning them. They add that the Gardaí were contacted by one of their sons and when the Gardaí arrived a couple of hours later and the respondent then opened the gate and they left. The complainants submit that the actions of the respondent constitute less favourable treatment of them and that the manner in which their employment was terminated by the respondent constitutes discriminatory dismissal contrary to the Acts.
3.4 It is stated on the complainants' behalf that all of the employees engaged by the respondent were Eastern European. It is submitted therefore that the Tribunal should examine how a hypothetical Irish employee would have been treated by the respondent in the circumstances. It is further submitted that the respondent would not have treated a hypothetical Irish employee in the same manner and consequently, the alleged treatment and subsequent dismissal of the complainants constitutes discrimination of them on grounds of race contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
The respondent neither attended the Hearing nor was it represented at same.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainants 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 as regards their conditions of employment and (ii) dismissed the complainants 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. 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.
5.2 Section 6(1) of the Employment Equality Acts, 1998 - 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) 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 complainants must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because they are Lithuanian.
5.3 Section 85A of the Employment Equality Acts 1998- 2008 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 In Melbury Developments v Arturs Valpetters the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule". 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 who does not possess the relevant protected characteristic, (see Glasgow City Council v Zafar [1998] 2 All ER 953) before the burden of proof shifts to the respondent. It is submitted on behalf of the complainants that the Tribunal should consider these complaints on the basis of a notional Irish comparator as all the employees engaged by the respondent at the time were Eastern European. In Arturas Businkas v Eupat Ltd (In Liquidation) the Labour Court affirmed the Equality Officer's approach that it was not sufficient to ignore the existence of actual comparators and apply the concept of a notional Irish comparator in evaluating whether or not discrimination had occurred - whilst acknowledging that circumstances might exist where such an approach might be appropriate. The Court further elaborated on this in Toker Developments v Edgars Grods when it held that "is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances of a particular case. ... It would clearly be impermissible for the Court to reach conclusions of fact based upon mere supposition or speculation.". Having carefully considered the evidence adduced by the complainants in the instant case, I am satisfied that there were employees of a different nationality to them engaged by the respondent at the relevant time. Moreover, they have failed to adduce any evidence to support the assertion that an Irish employee would have been treated differently by the respondent in similar circumstances.
5.5 I will first consider those aspects of the complaints connected with the complainants' conditions of employment. I have carefully considered the evidence adduced by them in respect of those elements of their complaints connected with the alleged failure of the respondent to provide them with contracts of employment (or terms and conditions of employment), health and safety training and documentation, payslips and tax documentation and I am not satisfied that it is sufficient to discharge the initial probative burden required of them. In particular they have failed to show that they were subjected to any difference in treatment in comparison with other employees of a different nationality to them who were engaged by the respondent at the time and have merely asserted that they were treated as alleged - a proposition which was rejected by the Labour Court as insufficient to discharge the initial burden of proof. In addition, I note in respect of the complainants' issues around the alleged failure of the respondent to provide them with contracts of employment (or terms and conditions of employment), that the statutory period within which the respondent was required to comply with the provisions of the Terms of Employment (Information) Act, 1994 in that regard had not elapsed in any of their cases. In light of the foregoing I find that they have failed to establish a prima facie case of discrimination in respect of those aspects of the complaints and they must fail.
5.6 The complainants further submit that the alleged treatment of them when they attended at the respondent's home on 2 May, 2008 constitutes less favourable treatment of them. As I stated above the initial burden of proof rests with the complainants. In the course of the Hearing they gave evidence on the events of that evening independently of each other. Whilst there were similarities in their evidence there were also inconsistencies in their respective versions of what happened. At the Hearing the complainants' representative was requested to furnish documentary evidence to me (which the complainants stated existed and was in its possession) in support of the complainants' assertion that they were employees of the respondent at the relevant time. In response to this request the complainants' solicitor submitted a letter dated 27 May, 2008 from a firm of solicitors who represented the respondent at that time to a firm of solicitors who represented the complainants at that time (not the firm currently on record). Whilst this documentation confirms that the complainants were employed by the respondent at the time, it also sets out the respondent's (differing) version of events of the evening of 2 May, 2008. As it was submitted as part of my investigation by the complainants' solicitor, I am satisfied that it is appropriate for me to have regard to its contents in reaching my Decision, although as it was not put to the complainants at the Hearing it can have limited probative value. In the course of the Hearing each of the complainants stated that the Gardaí were called by them on the night in question and further stated that they attended at a local Garda station the following day to give statements. These statements represent a contemporaneous note of the alleged events recorded by an independent member of the Gardaí and would have been of considerable assistance to this Tribunal in its deliberations. Given the complainants' assertion that such documentation existed the complainant's legal representative was requested (at the Hearing) to furnish a copy of those statements and was given a period within which to do so. However, the statements were not submitted in evidence by the deadline set. I have given careful consideration to the aforementioned circumstances and I find, on balance, that the complainants have failed to establish a prima facie case of discrimination in respect of this element of their complaints and cannot therefore succeed.
5.7 Finally, I shall examine the complainants' allegation that they were dismissed in circumstances amounting to discrimination on grounds of race contrary to the Acts. On the basis of the evidence adduced by the complainants at the Hearing on this matter, I am satisfied, on balance, that the respondent terminated their employment in the course of the discussion between them all on the evening of 2 May, 2008. However, I am not satisfied that the actions of the respondent were influenced by the fact that the complainants were Lithuanian. I find it more probable that the summary dismissal of the complainants was motivated by the confrontation with the respondent which had ensued that evening when the complainants sought to have the money owed to them paid in cash and the respondent either refused or failed to do so. Moreover, I do not accept the proposition advanced by the complainants that the respondent would have acted differently had Irish employees been involved in similar circumstances. Accordingly, I find that the complainants have failed to establish a prima facie case of discriminatory dismissal contrary to the Acts.
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 that the complainants have -
(i) 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 - 2008 and contrary to section 8 of those Acts in respect of their conditions of employment and
(ii) failed to establish a prima facie case that they were dismissed 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 8 of those Acts
and their complaints fail in their entirety.
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Vivian Jackson
Equality Officer
19 October, 2010