THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 223
PARTIES
Andrejs Ivanovs
(Represented by Richard Grogan & Associates)
v
William Neville & Sons Construction Ltd.
Date of issue: 16 November 2010 File reference: EE/2008/015
Headnotes: Employment Equality Acts, 1998-2007 - sections 6,8 and 77 - race- employment status - conditions of employment - prima facie case - discriminatory dismissal - burden of proof.
1. DISPUTE
This dispute involves a claim by Mr. Andrejs Ivanovs who is a Latvian national, that he was (i) discriminated against by the respondent in respect of his 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 (ii) dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and which he brought under section 77 of those Acts.
2. BACKGROUND
2.1 The complainant states that he was employed by the respondent from 21 November 2005 until 2 November 2007. He further states that during his period of employment, he was treated less favourably as regards his conditions of employment and was dismissed by the respondent in circumstances amounting to discrimination on grounds of race (Latvian nationality) contrary to the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2007 to the Equality Tribunal on 19 December, 2007. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Valerie Murtagh, 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 complaint commenced on 20 July, 2010 the date the complaint was delegated to me. Submissions were received on behalf of both parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 24 September, 2010.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is a Latvian national, states that he commenced employment with the respondent on 21 November, 2005. He submits that he was employed as a general operative on a construction site. He states that he did not receive a contract of employment or documentation relating to health and safety matters. He asserts that himself and a Romanian national were dismissed around the same time. He states that he was told by the foreman in late October 2007 that the following Friday would be his last day in work but that he was given no explanation as to why he was being dismissed. He states that he could not understand why he was losing his job as he worked Saturdays and any overtime required. He asserts that he did not receive a written contract of employment and contends that this constitutes unlawful discrimination of him on grounds of race contrary to the Acts.
3.2 The complainant states that the respondent failed to provide him with a health and safety statement or documentation in a language which he could understand. He further states that he received no health and safety training at all during his employment. He submits that the respondent should have provided him with translation/interpretation services in his native language in relation to his termination of employment. He asserts that he was dismissed in a discriminatory manner on the grounds of his race. He seeks to rely on the decisions relating to 58 Complainants v Good Concrete and Campbell Catering Ltd v Aderonke Rasaq in this regard.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent states that the complainant was employed with the company as a general labourer on 21 November, 2005. The respondent states that he did not provide any contracts of employment to Irish nationals or non-Irish nationals. The respondent submits that upon commencement of work, the complainant was given induction training regarding his duties and the induction form was translated into the complainant's native tongue. The respondent states that the complainant signed and dated his acceptance of same. The respondent further states that the complainant submitted a valid and up to date safe pass which was mandatory for all new employees at that time.
4.2 The respondent states that the company employed forty employees, thirty per cent of which comprised non-Irish nationals. The respondent submits that the reason the company had no continuity of work at the site for the complainant and other employees was due to the general downturn in the market. The respondent states that he tried to find alternative work for the employees but none was available. The respondent submits that the complainant was among eight employees including Irish and non-Irish nationals that were laid off from the company in late 2007 due to the lack of suitable work available. The respondent asserts that the complainant was made redundant in line with custom and practice in the company. The respondent states that a number of Irish employees and non-Irish nationals were also let go around the same time as the termination of the complainant's employment due to the lack of work because of the downturn. In this regard, he has submitted to the Tribunal details of those employees who were laid at that time. The respondent states that the foreman spoke to those employees who were being laid off and explained to them that due to the downturn in the economy, there was no suitable work available. The respondent further states that he personally met with the complainant together with the other employees who were being laid off, on an individual basis, a week before they were due to finish and explained the reasons why they were being laid off. The respondent refutes the allegation of discrimination on grounds of race and reaffirmed its position that the complainant was let go due to the general downturn in the economy and the lack of suitable work available.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me is whether or not the respondent (i) discriminated against the complainant 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 his conditions of employment and (ii) dismissed the complainant in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008. 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 complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because he is Latvian.
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 The first issue raised by the complainant relates to the respondent's alleged failure to furnish him with a written contract of employment. 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.
5.5 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 Acts 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."
5.6 In the instant case, in relation to the provision of a written contract of employment, the complainant was unable to show a difference in treatment between him and any other employee on this matter. The respondent states that he did not issue any contracts of employment to Irish employees or non- Irish national employees. However, I note that the foreman, on commencement of the complainant's employment provided induction training to the complainant and went through the duties required of him. 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 complainant, in the present case, has adduced any evidence from which I could reasonably conclude that he was treated less favourably than other workers of a different nationality (including those of Irish origin) in terms of the respondent's failure to provide him with a written contract of employment. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of his complaint.
5.7 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". 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.
5.8 In relation to the complainant's assertion that he was discriminated against as he did not receive health and safety documentation and training; the employer has stated that the foreman went through the health and safety documentation at the commencement of his employment and the induction form was translated into the complainant's native tongue. The respondent states that the complainant signed and dated his acceptance of same. A copy of this document was provided to the Tribunal. The respondent further states that the complainant submitted a valid and up to date safe pass which was mandatory for all new employees at that time. On balance, I find the evidence of the respondent more credible and I am of the view that the complainant was given the health and safety document in his own language and was aware of the health and safety requirements in the respondent company. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of his complaint.
5.9 In relation to the dismissal of the complainant; taking the totality of the evidence into consideration, I find the respondent's evidence more compelling. I am of the view that the complainant's employment was terminated as a result of the downturn in the construction industry. I note that a number of Irish employees together with non-Irish employees were laid off around the same time as the complainant. I have carefully examined the evidence presented by the complainant in the instant case and although the complainant has argued that fair procedures were not complied with in relation to his dismissal, the issue for decision in this claim is whether or not the complainant was discriminated against on the grounds of his race in relation to his dismissal. The Tribunal has no jurisdiction to decide on the unfairness or otherwise of the dismissal, the complainant needs to prove that it was influenced by his race. I am not satisfied that he has adduced evidence to support his assertion that his nationality was a factor which influenced the respondent's behaviour. Accordingly, I find that the complainant has failed to establish a prima facie case of discriminatory dismissal on grounds of race contrary to the Acts.
6. DECISION OF THE EQUALITY OFFICER
6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that:
(i) the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2) of the Acts in terms of his conditions of employment contrary to section 8(1) of the Acts.
(ii) the respondent did not discriminate against the complainant 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.
_____________________
Valerie Murtagh
Equality Officer
16 November 2010