EQUALITY OFFICER'S DECISION NO: DEC-E/2010/203
PARTIES
PRUSINSKAS, SURKAS, ASMONTAS AND KRUPAVICIUS
(REPRESENTED BY RICHARD GROGAN AND ASSOCIATES - SOLICITORS)
AND
ASHAVON DEVELOPMENTS LTD
File No: EE/2007414-415, EE/2007/435 &
EE/2007/483
Date of issue:18 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 claims by (i) Mr. Vaida Prusimskas, (ii) Mr. Evaldas Asmontas, (iii) Mr. Mindaugas Surkas and (iv) Mr. Tomas Krupavicius, who are all Lithuanian nationals, that they were (a) discriminated against by Ashavom Development Ltd (hereafter called "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 - 2007 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 - 2007 and contrary to section 8 of those Acts.
2. BACKGROUND
2.1 The complainants were employed by the respondent as Labourers (Mr. Prusinskas and Mr. Krupavicius) and Brickleyers (Mr. Surkas and Mr. Asmontas) on a number of sites in North County Dublin and County Louth for varying periods between March 2005 and April, 2007, 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. Prusinskas and Mr. Krupavivius each referred complaints under the Employment Equality Acts, 1998 - 2007 to the Equality Tribunal on 13 August, 2007. Mr. Surkas referred his complaint under the same legislation to the Tribunal on 15 August, 2007 and Mr. Asmonstas referred his complaint to the Tribunal on 8 October, 2007. In accordance with her 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 22 October, 2009 - the date they were delegated to me. Some difficulties arose as regards postal details for the respondent and notification of the Hearing was posted to the respondent at its registered address (as per documentation submitted by the complainants' representative) on 20 April, 2010 advising that the Hearing on the complaints would take place on 21 June, 2010. The Hearing proceeded as scheduled. The respondent was neither present nor represented at the Hearing. At the outset of the Hearing the complainants' representative withdrew those elements of their complaints connected with the non-application of aspects of the REA for the Construction Industry and victimisation.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 All four complainants, who are Lithuanian nationals, state that they were employed by the respondent for varying periods between March, 2005 and April, 2007 - 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 periods of employment the respondent engaged other employees of differing nationalities - Irish, Polish, Lithuanian and African - although the numbers involved varied between 15-40 depending on the location of the site. The complainants were unable to say whether or not any of these employees received a contract of employment or other documentation containing terms and conditions of employment.
3.2 The complainants further state that the respondent failed to provide them with a health and safety statement/documentation or training in a language which they could understand. In the course of the Hearing Mr. Prusinskas and Mr. Asmontas stated that the received a Safety Booklet from their Supervisor when they worked on a site in Ashbourne, Co. Dublin. A copy of the Booklet, which is in English, was submitted in evidence to the Tribunal. The two complainants state that other employees on that site were also given this Booklet. They add that the contents of the Booklet was not explained to them and no translation of it was provided. In the course of the Hearing both Mr. Krupavicius and Mr. Surkas stated they received no health and safety statement/ documentation and were unable to say whether or not any of the other employees of a different nationality to them received same. None of the complainants were able to say if any of the employees of a different nationality to them received any health and safety training at any time during their periods of employment. 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 were each handed a letter by the respondent (a man named Dominic) when they received their wages on 9 February, 2007. They add that these letters advised them that from 1 January, 2007 they were to be paid "in accordance with the C45 format". They state that they did not understand this process and when the queried Dominic about it they were told they would now be responsible for paying their own taxes. In the course of the Hearing none of the complainants could confirm whether or not they had been paying tax and social insurance prior to this but documentation was submitted in respect of Mr. Surkas and Mr. Prusinskas which shows that they were PAYE employees in 2006. The complainants were also unable to say if any of the other employees of a different nationality engaged by the respondent at that time as tradesmen or labourers were treated differently. It is submitted on the complainants' behalf that they do not satisfy the criteria to be regarded as self employed contractors and that the respondent's efforts to reclassify them as such constitutes less favourable treatment of them contrary to the Acts. It is further asserted that an Irish employee would have been aware of what was happening and would have been in a position to dispute such a change.
3.4 The complainants state that they continued to work for the respondent for another six weeks. They add that they met with Dominic at a site in Drogheda on 27 April, 2007. In the course of the Hearing Mr. Prusinskas stated that when he spoke with Dominic that day he sought clarification about the tax issue. He adds that he was told by Dominic that "we don't need you anymore - you are no longer working for us". Mr. Prusinskas added that no further explanation was offered to him. Mr. Krupavicius states that he went to see Dominic to clarify what the situation was about his tax affairs. He adds that because his English was not good he brought a friend (Ms. A) to interpret for him. He states that when he enquired of Dominic what the situation was he was immediately dismissed. Mr. Asmonstas states that he also enquired about his tax affairs and was promptly dismissed by Dominic. Mr. Surkas states that when he met with Dominic he was told he was "finished" and "to come back when you have paid your taxes". The complainants state that as far as they were aware no other employees were dismissed that day. They further state that there were other Lithuanian employees retained by the respondent. It is submitted on their behalf that the actions of the respondent amount to discriminatory dismissal of them on grounds of race contrary to the Employment Equality Acts, 1998-2007.
3.5 It was submitted on behalf of the complainants that a couple of days after their alleged dismissal occurred, the respondent reported them to the Garda Síochána accusing them of being involved in racketeering and it was further submitted that this constitutes less favourable treatment of them on grounds of race contrary to the Acts. It was further stated that this information had been passed to them by Ms. A. In the course of the Hearing only Mr. Surkas stated that Ms. A had mentioned this to him. Mr. Prusinskas stated that Ms. A never communicated this to him and the other two complainants had no recollection of any such conversation. In addition, all four complainants stated at the Hearing that none of them had been subsequently contacted by the Gardaí.
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 - 2007 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 - 2007 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 - 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 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- 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.
5.4 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 (see Glasgow City Council v Zafar [1998] 2 All ER 953) before the burden of proof shifts to the respondent. On the basis of the complainants' own evidence it is clear that there were at least fifteen other employees of varying nationalities (including Irish) engaged by the respondent during their periods of employment.
5.5 It is submitted on behalf of the complainants that the failure of the respondent to provide them with contracts of employment (or terms and conditions of employment) constitutes discrimination of them 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. Having evaluated the evidence adduced by the complainants on this matter I find that they have each failed to show 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 . Consequently, they have failed to establish a prima facie case of discrimination in respect of this aspect of their complaints and they must fail. I have reached a similar conclusion as regards the alleged failure of the respondent to provide them with health and safety training and the alleged failure of the respondent to provide Mr. Krupivivius and Mr. Surkas with a health and safety statement/documentation.
5.6 The evidence of Mr. Prusinskas and Mr. Asmontas is that they received a Safety Booklet from their Supervisor when they worked on a site in Ashbourne, Co. Dublin, that this Booklet was given to other employees at the time and that the respondent provided them with no translation or explanation of its contents to them. In 58 Complainants v Goode Concrete the Equality Officer held, in effect, that where an employer provides documentation to its employees in English only and does not provide some form of translation or explanation of the contents of that documentation in a language with some of the employees understand, it constitutes less favourable treatment of those employees contrary to the Acts. From my observation of the complainants at the Hearing I am satisfied that their command of English was not good and I am further satisfied, on balance, that it would have been poorer during the time they were employed by the respondent. In the circumstances I find that the uncontested evidence of Mr. Prusinskas and Mr. Asmontas establishes a prima facie case of discrimination on this issue and that the respondent's failure to attend the Hearing means it cannot rebut the inference so raised. Accordingly, these complainants are entitled to succeed on this element of their complaints.
5.7 It is submitted on behalf of the complainants that the reclassification of them as self employed contractors by the respondent in February, 2007 constitutes discrimination of them on the basis of their nationality contrary to the Acts and that an Irish employee would not have been similarly treated. Documentation was submitted to the Tribunal in respect of two of the complainants which shows that the respondent was treating them as self employed contractors in February, 2007. Documentation was also submitted to the Tribunal which confirms that the Revenue Commissioners had treated two of the complainants as PAYE employees in 2006. I am therefore satisfied, on balance, that the respondent did seek to reclassify all the complainants as self employed contractors in February, 2007. The Labour Court examined this issue in Melbury Developments v Arturs Valpetters and held that it "From its own experience over many cases it appears to the Court that many employers in the construction industry wrongly classify workers who are in reality employees as sub contractors as a device to avoid their responsibilities under employment, tax and social welfare legislation. This practice is by no means confined to workers whose national origin is outside Ireland.". In reaching this conclusion the Court stated "It is well established that the Court, as an expert tribunal, is entitled to take account of the knowledge and experience of its members in concluding facts." reaffirming its decision in this regard in Inoue v NBK Designs - which echoed a similar approach adopted by the Court of Appeal for England and Wales in London Underground v Edwards (No.2) . Accordingly, the Labour Court held, based on its knowledge and experience that "the complainant's assertion that his classification as a sub contractor was discriminatory is not well founded.". The Court's approach on this matter was recently confirmed by the High Court in Bunclody Electrical Contracting Ltd & Ors v Labour Court & Ors . The Labour Court's rationale is therefore persuasive and is one which I readily adopt in the instant case. I note that the complainants were unable to indicate how the respondent treated any of the other employees engaged by the respondent at that time - and they are therefore unable to establish as a fact that they were subjected to different treatment by the respondent. In light of all the aforementioned circumstances 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.
5.8 It is submitted on behalf of the complainants that the respondent dismissed them on 27 April, 2007 in circumstances amounting to discrimination on grounds of race contrary to the Acts. On the basis of the evidence adduced by each of the complainants as regards the content of their discussions with Dominic that day, it is clear that each of them were dismissed when they raised the issue of their tax affairs with the respondent and consequently I am of the view that the fact they raised this matter was central to their dismissal. It is clear that the termination of the complainants' employment falls short of the procedures required by the Code of Practice on Grievance and Disciplinary Procedures . However, the claim before this Tribunal is not one of unfair dismissal, rather it is that the complainants' dismissal was contrary to the employment equality legislation on grounds of race. As the Labour Court commented in Muleadys Ltd v Aidotas Gedrimas it has dealt with many cases "where employers are accused of dismissing workers without resorting to the appropriate disciplinary procedures and such cases are by no means confined to workers whose national origin is outside Ireland." In light of my comments in the previous paragraph I am not satisfied that the complainants' nationality was a factor which influenced their dismissal - indeed it appears to me that the respondent was likely to dismiss any employee who had raised the matter of taxation. In addition, the complainants stated that the respondent retained other Lithuanian nationals in employment when they were dismissed. Consequently, I find, on balance, that the complainants have failed to establish a prima facie case that their dismissal constitutes a discriminatory dismissal on grounds of race contrary to the Acts.
5.9 The final element of the complainants' claims refers to the alleged actions of the respondent a couple of days after their employment ceased in reporting them to the Gardaí for racketeering. It is well established that bodies such as this Tribunal and the Labour Court are not subject to the full rigours of court procedures and can adopt their own procedures and processes, provided it does not imperil a fair hearing. It is clear from the evidence of the complainants that they were informed by another person - Ms. A - that the respondent had reported them to the Gardaí and consequently any such evidence is hearsay. Only one of the complainants stated (at the Hearing) that Ms. A had communicated this information to him and all four of the complainants stated that they were never subsequently questioned by the Gardaí on the matter. In the circumstances I am not satisfied that the complainants have established facts from which discrimination can be inferred and this element of their complaints fails.
6. DECISION OF THE EQUALITY OFFICER
6.1 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 -
(i) all four complainants have 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 those conditions of employment related to a contract of employment and health and safety training.
(ii) Mr. Krupivivius and Mr. Surkas have 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 those conditions of employment related to health and safety documentation.
(iii) the respondent discriminated against Mr. Prusinskas and Mr. Asmontas 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 those conditions of employment related to health and safety documentation.
(iv) all four complainants have 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 the alleged treatment of them by the respondent in relation to reporting them to An Garda Síochána.
(v) all four complainants have 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 consequently the complaints of Mr. Krupivivius and Mr. Surkas fail in their entirety and the complaints of Mr. Prusinskas and Mr. Asmontas fail except for the matter set out at (iii) above.
6.2 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2008 I order that the respondent pay both Mr. Prusinskas and Mr. Asmontas the sum of €750 each by way of compensation for the distress suffered by them as a result of this discrimination. This award does not include any element in respect of remuneration and is not therefore subject to the PAYE/PRSI Code.
_______________________________________
Vivian Jackson
Equality Officer
18 October, 2010