Employment Equality Acts
1998-2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2010-164
PARTIES
Rimantas Kazdailis
(Represented by Richard Grogan and Associates)
- V -
Winegate Haulage Limited
File references: EE/2007/172
Date of issue: 3 September 2010
Keywords
Employment Equality Acts 1998-2008 - Discriminatory Treatment - Harassment- Race - Condition of employment - Prima facie case
1. Dispute
1.1. This dispute concerns a claim by Mr. Rimantas Kazdailis (hereafter "the complainant") that he was subjected to discriminatory treatment and harassment contrary to the Employment Equality Acts by Winegate Haulage Ltd. (hereafter "the respondent") on the grounds of his race.
2. Background
2.1. The complainant referred his claim of discrimination to the Director of the Equality Tribunal on 30 March 2007 under the Employment Equality Acts. This claim was made on the race ground. On 3 August 2010, in accordance with his powers under section 75 of the Acts, the Director then delegated these cases to me, Elaine Cassidy - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I held an oral hearing on 18 August 2010 and requested further documents from the complainant; these were received on 2 September 2010. The complainant and his representative were present at the oral hearing, but the respondent was not. At the hearing the complainant's representative withdrew those aspects of the complaint which related to Access to Employment and Pay.
3. Case for the complainant
Discriminatory Treatment in relation to Conditions of Employment
3.1 The complainant, a Lithuanian national, worked with the respondent from early April 2005 to September 2007 as a truck driver. It was submitted that the complainant did not receive a contract of employment, a P45, a P60, health and safety training or documentation.
3.2 The complainant was not given payslips and he received €575 per week in cash which he assumed that this was his net payment. When he left the job, he was eventually given a P45, but it was handwritten, incorrect, showed no tax contribution and it turned out that it had never been sent to the Revenue Commissioners. As a result, he claims that he was essentially invisible to the authorities for the 18 months he worked for the respondent. He says that he has lost out on the appropriate pension entitlements in his home country as a result of his employer not paying tax on his behalf. He is adamant that he believed at the time that the salary he received was net of tax.
3.2 The complainant contends that the conditions in which he worked were such that no notional Irish comparator would have worked in a similar way. He submits that he was forced to work 16-20 hours per day, without sufficient rest breaks. His job was to drive for long periods and there was a tracking device on his truck. If he took any breaks at all on his journey, his boss would see that he had stopped the truck and he would call him immediately and tell him to get back in and keep driving. He tried to point out that he was entitled to a break after every 4 hours driving, but this was never accepted by his employer.
3.3 There were about 30 employees working for the respondent at the time and all of them were foreign nationals, mainly Polish, Romanian and Lithuanian. As there were no Irish employees other than the manager, the complainant seeks to rely on a hypothetical comparator and submits that no Irish person would have put up with working up to 20-hour days, without breaks. A hypothetical Irish person would have received a contract of employment, a Health and Safety statement, a payslip and a correct P45. The complainant provided copies of the only records of his employment; the incorrect P45 and his tachometer records.
Harassment on the grounds of race
3.4 The complainant submitted that foul language was used towards him and all the other employees and he was regularly called lazy. He says that when he was at the base, his employer would say things like " Why are you walking? Hurry up, I pay you money, so run". His employer constantly shouted at him and objected every time he stopped his truck. The complainant contends that this type of harassment happened every day and it was humiliating to him and created an oppressive environment. No grievance procedures were in place.
3.5 The complainant gave an example of a day when he had been already been working for 16 hours. He realised on his way back to base around 8pm that his brakes had completely failed and he went through a red light. When he stopped, he called his employer to inform him about the dangerous situation. His employer told him that he needed him to drive to Portlaoise that night. The complainant refused to drive the truck and took a taxi home. His employer said that he was a lazy donkey and was just trying to get out of working. His employer sent a Romanian driver on the journey instead (the complainant pointed out that due to their legal situation, the Romanian drivers were not in a position to refuse). The complainant submits that this complete lack of concern for his welfare amounts to harassment.
3.6 It was submitted that a foreign worker in such a situation is in a particularly vulnerable position. The complainant's representative submits that the employer took advantage of the fact that all his employees were foreign nationals and would therefore be less likely to object to the shouting and verbal abuse.
4. Case for the respondent
4.1. The respondent did not appear at the hearing and did not make a written submission to the Tribunal.
5. Conclusion 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 complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds 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 this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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".
5.3 At the outset of the hearing of the complaint, the complainant's representative withdrew the complaint in relation to Access to Employment and Pay. Accordingly, the issues for decision in this case is whether or not the respondent discriminated against and harassed the complainant on the ground of his 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.
5.4 With respect to the Health and Safety information and the long working hours, the complainant has stated that he has no evidence, but he believes a H&S statement was not provided to any employee and seeks therefore to rely on the issue of a notional comparator, as all the employees were foreign nationals. 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 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."
In the present case, the complainant asserts that a hypothetical Irish comparator would have received a contract of employment, a payslip and the appropriate Health and Safety training and statement. While I accept the importance of all employers complying with their duties in relation to their employee's rights, I note that the complainant has provided no evidence whatsoever to support the contention that a foreign worker is in a particularly vulnerable position with respect to these specific breaches of employment legislation .
5.5 Regarding the tax situation, the claimant is adamant that he believed at the time that he was paying the appropriate taxes and that his employer was also contributing on his behalf. During the oral hearing the complainant said that he found out that the respondent had been correctly deducting and paying tax on behalf one of his Lithuanian colleagues. He did not know why and suggested it might have been because his colleague was there longer. While I do not necessarily disbelieve the complainant regarding his tax position, I do not accept this as a discrimination issue for two reasons. Firstly, if the respondent did take advantage of the complainant, it does not appear to be on the basis of his nationality (given that the respondent did pay tax on behalf of another Lithuanian co-worker). Secondly I find the complainant in this case offered no evidence that he had ever asked his employer whether or not he was paying tax. It appears he did not try to have his tax position clarified in any way until after he left his employment. The only available evidence in this case is that he paid no tax at all. While the specifics of Irish tax may have been unfamiliar to him, there could have been no possible doubt for an experienced employee like him, that he was under an obligation to pay tax of some description. Therefore I do not accept this aspect of the discrimination claim in relation to conditions of employment.
5.6 The next issue concerns the complainant's hours of work and lack of rest breaks. The complainant claims that he worked at least 16 hours per day and up to 20 hours some days. This was on a continuous basis throughout his employment. I accept his submission that his employer prevented him from having appropriate rest breaks. While there are undoubtedly Irish employees who are subjected to poor working conditions, I find that the conditions described by the complainant to be on the extreme end of the scale. This was the complainant's first job when he arrived in Ireland and I find on the balance of probabilities that he was taken advantage of by his employer and subjected to conditions which a hypothetical Irish comparator would not have accepted. Therefore the complainant has established a prima facie case of discriminatory treatment which the respondent has not rebutted.
5.7 In relation to the claim of harassment, Section 14A of the Acts define harassment:
(7) (a) In this section-
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
.............
being conduct which in either case has the purpose or effect of violating a person's dignity and creating and intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words , gestures or the production, display or circulation of written words, pictures or other material.
In the instant case, the complainant submits that he was regularly subjected to shouting and verbal abuse by his manager. He was told to run to his truck instead of walk and he found this particular type of comment very humiliating. He was called a donkey and told he was lazy on a day when he had already worked 16 hours. He submits that his employer showed a complete disregard for his welfare, by trying to make him continue working after his brakes had failed. During the oral hearing, I questioned the complainant on these incidents and I found him to be credible and straightforward. He described how he felt like a slave when he worked there. Although there was no evidence of overt racial language being used, I do find that there is a nexus between the language used (eg: donkey) and the fact that the complainant was a migrant worker. I find that these incidents, when considered in their totality, would lead to an oppressive and humiliating work environment. Therefore the complainant's claim of harassment succeeds.
6. Decision
6.1. Having investigated the above complaint, I hereby make the following decision in
accordance with section 79(6) of the Employment Equality Acts:
(i) I find that the complainant has been unable to establish a prima facie case of
discrimination with respect to certain conditions of work (Contract, payslip, P45, H&S documentation) . Therefore this aspect of his claim fails.
(ii) I find that the complainant has established a prima facie case of discrimination with respect to other conditions of work (working hours, breaks). The respondent has not rebutted the claim and therefore this aspect of his claim succeeds. In accordance with Section 82 of the Act, I therefore order that the respondent pay the complainant €3,000 in compensation for the distress caused by discriminatory conditions of employment. This portion of redress is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
(iii) I find that the complainant has established a prima facie case of harassment within the meaning of the Acts. The respondent has not rebutted the claim and therefore this aspect of his claim succeeds. In accordance with Section 82 of the Act, I therefore order that the respondent pay the complainant €4,000 in compensation for the distress caused by the harassment. This portion of redress is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
__________________
Elaine Cassidy, Equality Officer
3 September, 2010