THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2010-205
PARTIES
Tadas Venckus and Ricardas Kuprelis
(represented by Richard Grogan
& Associates, Solicitors)
and
Joe Wilson Plastering Limited
File Reference: EE/2007/606
Date of Issue: 22nd October, 2010
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - race - conditions of employment - training - discriminatory dismissal - failure to establish a prima facie case of discrimination
1. Dispute
1.1 These cases concern complaints by Mr. Tadas Venckus and Mr. Ricardas Kuprelis, who are Lithuanian nationals, that they were discriminated against by Joe Wilson Plastering Limited on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of conditions of employment, training and in relation to discriminatory dismissal.
2. Background
2.1 Mr. Tadas Venckus and Mr. Ricardas Kuprelis referred complaints under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 19th November, 2007. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the cases on 28th September, 2010 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. A written submission was received from the complainants on 3rd November, 2008 and a written submission was received from the respondent on 16th December, 2008. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 29th September, 2010.
3. Summary of the Complainants' case
3.1 Mr. Tadas Venckus stated that he was employed by the respondent as a plasterer from July, 2005 until 27 July, 2007. Mr. Ricardas Kuprelis stated that he was employed by the respondent as a plasterer from June, 2005 until 27 July, 2007. The complainants stated that there were a number of other employees of Lithuanian, Slovakian and Irish origin employed by the respondent as plasterers during their respective periods of employment. The complainants stated that they received no written contract or terms of employment and they contended that this constitutes unlawful discrimination of them on the grounds of race contrary to the Acts. The complainants submitted 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 written contract of employment in a language which they can understand. The complainants stated that they were not aware if the respondent had provided any of the other employees engaged at the same time as them with a contract of employment or other similar documentation.
3.2 The complainants submitted that the respondent failed to provide them with any proper health and safety documentation or training. Mr. Ricardas Kuprelis stated that he obtained a Safepass qualification during his period of employment with the respondent. He stated that the respondent refused to cover the cost of his participation in this course despite his subsequent request for recompense. Mr. Tadas Venckus stated that he did not have a Safepass during his period of employment with the respondent and that the respondent did not inform him of the requirement under health and safety legislation to have such a qualification. The complainants submitted that they were treated less favourably by the respondent than a notional Irish worker would have been in similar circumstances in terms of the Safepass qualification and the provision of health and safety documentation and training. The complainants also submitted that the respondent did not make them aware as to whether or not they had been joined into the Construction Workers Pension and Sick Pay Scheme which they claimed amounted to less favourable treatment on the grounds of their nationality.
3.4 The complainants claimed that they were dismissed from their employment by the respondent on 27 July, 2007. The complainants claim that they were dismissed without any proper procedures and that they were informed by the respondent on the date of their dismissal that there was no further work available for them. The complainants stated that work on the main site where they had been employed by the respondent ceased shortly prior to their dismissal. The complainants stated that they subsequently worked on a few smaller jobs but were informed by the respondent on the date of their dismissal that it didn't have any further work. The complainants stated that a number of Irish employees had been "let go" by the respondent prior to their dismissals and that the Lithuanian workers were the only workers left in the employment of the respondent at that juncture. The complainants claim that they were dismissed from their employment on the grounds of their nationality.
3.5 The complainants also referred to a number of cases in support of his case, including Campbell Catering Ltd. -v- Rasaq (EED048), 58 Complainants -v- Goode Concrete (DEC-E2008-020), Khumalo -v- Cleary & Doyle Limited (DEC-E2008-003), Golovan -v- Porturlin Shellfish Limited (DEC-E2008-032) and Ning Ning Zhang -v- Towner Trading t/a Spar Drimnagh (DEC-E2008-001).
4. Summary of the Respondent's case
4.1 The respondent did not attend nor was it represented at the Hearing of the complaints. However, the respondent did furnish a written submission to the Tribunal on 16th December, 2008 in response to the alleged discrimination by the complainants which can be summarised as follows.
4.2 The respondent submitted that it employed both Irish and non-Irish national workers during the period of the complainants' employment. The respondent submitted that it did not issue written contracts of employment to any of its workers, either the Irish or non-Irish national workers. The respondent submitted that it employed a safety officer and that all relevant health and safety information was provided in Lithuanian and Russian. The respondent submitted that it employed a large number of individuals over the years and the last three individuals which were let go were the complainants. The respondent submitted that it indicated to the complainants on the date their employment was terminated that it hoped to re-employ them shortly thereafter; however, when the respondent subsequently contacted them to come back to work it was advised that they had obtained alternative employment and were not interested in returning to work with it.
5. Conclusions of the Equality Officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainants to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to them. If they succeed in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainants. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 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)(h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins". Accordingly, the issues for decision in this case is whether or not the respondent discriminated against and discriminatorily dismissed the complainants on the ground of their race contrary to the Employment Equality Acts. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.3 In a recent Determination the Labour Court whilst examining the circumstances in which the probative burden of proof operates held as follows:-
"Section 85A of the Act provides 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. 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. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
Conditions of Employment and Training
5.4 Firstly, I will consider the issue that has been raised by the complainants in relation to the alleged failure of the respondent to provide them with a written contract of employment in a language which they could understand which they contended constitutes unlawful discrimination of them on the grounds of race contrary to the Acts. The complainants submitted that the Decision of this Tribunal in 58 Complainants -v- Goode Concrete places an obligation on an employer to furnish non-Irish employees with a contract of employment in a language which they understand. I am of the view that this is an incorrect interpretation of that Decision. In that case the Equality Officer found that in circumstances where an employer furnishes its employees with written contracts of employment it constitutes less favourable treatment of non-Irish employees if the respondent provides them with a contract of employment in English and not in a language which they can understand.
5.5 In the present case, I note the complainants stated in evidence that there were workers of Irish, Lithuanian and Slovakian nationality employed as plasterers by the respondent during their respective periods of employment. The complainants stated that they were not aware if the respondent had issued any of the other employees, including those of Irish origin, engaged at the same time as them with a written contract of employment. The complainants submitted that an Irish employee would have been aware of his/her rights under both employment and health and safety legislation, and therefore, would have insisted that the respondent comply with its obligations in terms of this aspect of their conditions of employment. It was therefore submitted that the Tribunal should infer that the complainants have been subjected to less favourable treatment on the grounds of their nationality and accordingly, that the burden of proof should shift to the respondent to rebut the inference of discrimination.
5.6 In the present case, I accept that the complainants have adduced evidence to suggest that they may have been treated badly by the respondent in terms of the provision of a contract of employment. However, I do not have any jurisdiction to decide whether or not the respondent was in breach of its obligations under the relevant employment legislation. Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that unfavourable treatment, in the absence of evidence of less favourable treatment, is insufficient to establish a prima facie case of discrimination under the Employment Equality Acts. I am therefore not satisfied that the complainants, in the present case, have adduced any evidence from which I could reasonably conclude that they were treated less favourably than other workers of a different nationality (including those of Irish origin) in terms of the respondent's failure to provide them with a written contract of employment. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination in relation to this element of their complaints.
5.7 The next issue raised by the complainants relates to the respondent's alleged failure to provide them with any proper health and safety documentation or training. In relation to this issue, Mr. Ricardas Kuprelis stated that he obtained a Safepass qualification during his period of employment of the respondent; however, he also stated that the respondent refused to cover the cost of his participation in this course despite his request for recompense. Mr. Tadas Venckus stated that he did not have a Safepass during his period of employment with the respondent nor did the respondent inform him of the requirement to have such a qualification under health and safety legislation.
5.8 In considering this issue, I note that the complainants did not present any evidence to suggest that the Irish workers employed by the respondent were provided with any proper health and safety documentation or training. Neither did they present any evidence to suggest that the Irish workers were treated any differently by the respondent in terms of a Safepass qualification. I am therefore not satisfied that the complainants, in the present case, have adduced any evidence from which I could reasonably conclude that they were treated less favourably than other workers of a different nationality (including those of Irish origin) in terms of the respondent's failure to provide them with health and safety documentation and training or in terms of the manner in which their Safepass qualification was dealt with by the respondent. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination in relation to this element of their complaints.
5.9 The complainants have also claimed that they were subjected to discrimination on the grounds of their nationality on the basis that the respondent did not make them aware as to whether or not they had been joined to the Construction Workers' Pension and Sick Pay Scheme. In considering this issue, I note that the complainants could not confirm whether or not the other employees (including those of Irish origin) engaged by the respondent during their respective periods of employment were joined to this Scheme. Having regard to the evidence adduced, I am not satisfied that the complainants have established any facts from which it could be inferred that they were treated less favourably than other workers of a different nationality (including those of Irish origin) in relation to this aspect of their conditions of employment. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination in relation to this element of their complaints.
Discriminatory Dismissal
5.10 The final issue that I must consider relates to the complainants' claim that they were subjected to a discriminatory dismissal by the respondent on the grounds of their nationality. The complainants stated in evidence that they were dismissed by the respondent without any proper procedures on 27 July, 2007. The complainants also stated that they were informed by the respondent on this date that there was no further work available for them. In considering this issue, I accept the complainants' evidence that their employment was terminated by the respondent on this date. However, I am not satisfied that they have adduced any evidence to substantiate their claims that they were dismissed because of their nationality, especially in light of their evidence that a number of the Irish workers had been "let go" by the respondent prior to the termination of their respective periods of employment. I have also taken into consideration the complainants' evidence that the Lithuanian workers were the last workers to be let go by the respondent.
5.11 Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that in order to raise an inference of discrimination on the grounds of nationality, the complainants must be able to demonstrate some significant evidence of less favourable treatment and this treatment must be linked to their nationality. Based on the totality of the evidence adduced in the present case, I am not satisfied that the complainants have adduced any evidence from which I could reasonably conclude that the termination of their employment was in any way influenced by their nationality. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination in relation to dismissal on the grounds of their race.
6. Decision
6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
(i) the respondent did not discriminate against the complainants on the race ground pursuant to section 6(2) of the Acts in terms of their conditions of employment and training contrary to section 8(1) of the Acts.
(ii) the respondent did not discriminate against the complainants on the race ground pursuant to section 6(2)(h) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts.
Accordingly, I find in favour of the respondent in this matter.
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Enda Murphy
Equality Officer
22nd October, 2010