1. Dispute
1.1 This dispute involves a claim by Mr. Serguis Plonkins that he was discriminated against by Peter O'Brien & Sons Landscaping Limited on grounds of race, in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts, in relation to conditions of employment. It is further submitted that the complainant was dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2)(h) and contrary to section 8 of those Acts.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 15 May 2008 alleging that the respondent had discriminated against him on grounds of race when he was dismissed from his job without any reason or proper procedure. The complainant further submitted that he did not receive any proper contract of employment Health & Safety documentation or training.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 23 September, 2010 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to a Hearing on the 1st of October, 2010.
3. Summary of complainant's case
3.1 The complainant states that he is a Latvian national and submits that he was employed by the respondent from August 2006 to January 2008.
3.2 The complainant states that he did not receive any contract of employment, Health & Safety documentation or training. The complainant submitted in advance of the hearing that he was dismissed on his return from holidays in January 2008 without any proper procedure. However upon questioning the complainant indicated that he was dismissed along with a number of other employees in December 2007.
On the day of the hearing the representative for the complainant reduced the scope of the claim as outlined in the EE1 form and indicated that he was no longer pursuing a claim in relation to training.
3.3 The complainant submitted that he must establish a prima facie case and cited the Labour Court case of Southern Health Board v Mitchell in support of this contention.
3.4 The complainant referred to the Equality Tribunal case 58 named Complainants v Goode Concrete Ltd. in relation to dismissal, contract of employment and Health & Safety. The complainant seeks to rely on the Campbell Catering case in his contention that there is a requirement that the respondents take special measures to advise the complainant as a foreign national of his rights.
4. Summary of respondent's case
4.1 The respondent submits that the complainant was employed by them from August 2006 to December 2007 as a general operative /landscape gardener.
4.2 The respondent accepts that the complainant was not furnished with a contract of employment and states that this was an oversight on the part of the employer. The respondent submits that this was also the case in relation to two other employees who were hired around the same time, two Latvian and one South African employee and who did not receive contracts. The respondent further submits that he had furnished the complainant with a safety statement together with details in relation to dismissal and grievance procedures. It is also submitted that the complainant had completed Safe Pass training.
4.3 The respondent submits that the complainant along with sixteen other employees were notified of the termination of their employment on 17th of December 2007. The reason given was due to the inclement weather and lack of work. It is submitted that the employees dismissed at the time were of varying nationalities, Irish, Lithuanian and Latvian (details supplied) and the respondent submits that there was no discriminatory behaviour.
5. Conclusions of the Equality Officer
5.1 The issues for decision by me are now whether or not Peter O'Brien & Sons Landscaping Limited (i) discriminated against the complainant on grounds of race, in terms of section 6(2)(h) of the Employment Equality Acts, 1998 and 2004 in relation to conditions of employment and (ii) dismissed the complainant in circumstances amounting to discrimination on grounds of race in terms of section 6(2)(h) 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 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)(h) 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... "
Thus 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. 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.
5.3 Conditions of employment
5.3.1 On the day of the hearing the complainant indicated that he did not receive a contract. The Respondent at the hearing submitted that the complainant was one of 3 employees, two Latvian and one South African who were hired at the same time and who did not receive contracts. The Respondent submitted that this was an Administrative error and a matter which had already been the subject of a Rights Commissioner decision in which the Complainant was awarded and paid compensation. The Respondent indicated that it has other Latvian employees who did receive contracts and that the failure to issue a contract in this instance was an oversight. Thus it would appear from the evidence given that the failure to provide the complainant with a contract was an error acknowledged by the respondent and that fact that other Latvian employees did receive contracts leads me to conclude that the failure to provide the complainant with a contract was not because of his nationality. Accordingly, based on the totality if the evidence given I do not find that the complainant has established a prima facie case of less favourable treatment on the ground of race in relation to this matter.
5.3.2 On the day of the hearing the complainant indicated that he did not receive a Health and Safety statement. When presented with a copy of the respondents Health and Safety statement the complainant indicated that he had not received same. The Respondent at the hearing advised that as the Health and Safety statement (presented to the hearing) is a bulky and lengthy document, copies of it are not provided to individual employees. The Respondent submitted that copies are kept in the office and in the company vans for employees to refer to when necessary. When asked whether this document has been translated into languages other than English the respondent advised that a condensed 2 page version is available in Latvian and is usually attached to the back of the contract of employment which the complainant did not receive (as he did not receive a contract) but which has been provided to other Latvian employees. The Respondent also presented to the hearing a booklet on general Health and Safety in the workplace which has been produced by the Health and Safety Authority in Latvian, the respondent submitted that copies of this booklet are kept in the office for use by employees. The complainant at the hearing indicated that he had seen this booklet. It would appear from the evidence given that the Respondent has not provided any employee with a copy of its Health and Safety statement irrespective of their nationality and that it does in the normal course of events provide a translation of a condensed version of the document to its Latvian employees. I am satisfied that the respondents evidence on this point was credible and accurate. Accordingly, based on the totality if the evidence given I do not find that the complainant has established a prima facie case of less favourable treatment on the ground of race in relation to this matter.
5.4 Discriminatory Dismissal
5.4.1 Turning to the complaint of discriminatory dismissal. At the hearing the complainant outlined his version of events surrounding his dismissal. He indicated that he went home for the Christmas holidays and after he came back he was told there was no job. On cross examination the complainant agreed that he was called to a meeting in December 2007 where he was told that there would be no more work for some period. The complainant indicated that there were about ten others at this meeting. The complainant at the hearing indicated that he understood from this meeting that there would be no work for a while but that he did not know that it was "no work for good". The complainant indicated that he did not return to work the next day and the day after he left for holidays and did not return until January. The Respondent submits that this meeting was called on the 17th of December 2007 and that the complainant along with 16 other employees of varying nationalities, Irish, Lithuanian and Latvian (details supplied) were advised that there would be no more work for a period but that if things picked up they would be called back. The respondent at the hearing indicated that the system for selecting employees for dismissal was Last In First Out (LIFO). The respondent indicated that a letter outlining this situation was provided to all employees later that week (copy supplied). It is submitted by the respondent that the complainant did not receive this letter as he left work straight after the meeting and did not show up for work on the following two days after which he left for holidays. The complainant at the hearing agreed that he did leave after the meeting and did not return until after Christmas. The complainant also indicated that he was not aware that the situation was permanent and that he thought it was temporary. The respondent when questioned indicated that the announcement to the employees regarding their dismissal was made in English but indicated that there were Russian and Latvian employees present at the meeting who have been with the company for many years and who act as translators when necessary but submitted that they received no request for such translation at the meeting. The respondent further submitted that there had never been a problem with communicating with the complainant in English and that he had on a number of occasions during his employment with them requested references for accommodation, bank accounts etc which they had willingly provided (copies supplied). The complainant agreed that such references had been provided.
5.4.2 Having regard to the totality of the evidence adduced in the present case, I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that he was treated less favourably than an Irish person or a person of a different nationality was treated in similar circumstances, in relation to his dismissal. I am satisfied that the reasons put forward by the respondent for the dismissal of the complainant were in no way connected to his nationality and that Irish employees and employees of a different nationality were dismissed in similar circumstances. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to his dismissal.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -
(i) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against him on the ground of race pursuant to section 6(2) of the Acts in terms of his conditions of employment contrary to section 8 of the Acts
(ii) the complainant has failed to establish the facts from which it may be presumed that he was dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) and contrary to section 8 of those Acts.
____________________
Orla Jones
Equality Officer
18 October 2010