EQUALITY OFFICER'S DECISION
NO: DEC-E2010-167
PARTIES
Garaviovas
(Represented by Richard Grogan and Associates)
- V -
A1 Plastering Limited
(In Liquidation)
File references: EE/2008/019
Date of issue: 06 September 2010
Keywords
Employment Equality Acts 1998 to 2008 - Discriminatory Treatment - Race - Condition of employment - Prima facie case
1. Dispute
1.1. This dispute concerns a claim by Mr. Gena Garaviovas (hereafter "the complainant") that he was subjected to discriminatory treatment contrary to the Employment Equality Acts by A1 Plastering Limited (hereafter "the respondent") on the grounds of his race. The complainant maintains that the respondent discriminated against him in relation to his conditions of work.
1.2. The complainant referred his claim of discrimination to the Director of the Equality Tribunal on 14 January 2008 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 this case to Tara Coogan- 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 proceeded to hearing on 25 August 2010.
2. Case for the complainant
2.1. The complainant, a Lithuanian national, worked with the respondent between 28 June 2007 and 3 September 2008. The complainant is a qualified carpenter. He submitted that the respondent employed a number of employees who were - to his best knowledge - Lithuanian, Polish, Romanian and Irish.
2.2. The complainant submitted that he received no contract of employment, health and safety documentation or training. The complainant submitted that subsequent to 58 Named Complainants v. Goode Concrete Limited there is a requirement to furnish a foreign national with a Health and Safety Statement. It was submitted that a notional national employee would have been aware of the statutory requirement under the Health and Safety Act, 2005.
2.3. The complainant was not paid in accordance with the Construction Industry Registered Employment Agreement (REA). This is the reason why he left his employment with the respondent. Furthermore, it was submitted that he had to buy his own tools. The complainant was under paid €1.192.59 in relation to his salary and €407.72 in relation to his holiday entitlements. It was submitted that a notional Irish employee would have been aware of such entitlements.
2.4. The complainant maintains that he has lost pensions entitlements and was not joined in the CWPS Pension and Sick Pay scheme.
2.5. The complainant submitted that the respondent is under a legal obligation to pay the REA rates and notify employees accordingly. The respondent has not made no such notification. The complainant submitted that such an approach is particularly abhorrent when considering the vulnerability of foreign workers. The approach taken was to hide relevant information from the complainant so as to exploit the labour of the complainant.
2.6. The complainant contends that the respondent's failure to advise him of the complainant's right to raise a grievance procedure amounts to a failure to provide special measures as allowed under the Acts.
3. Case for the respondent
3.1. The respondent company did not attend the hearing. The liquidator informed the Tribunal that it will not be contesting any findings.
4. Conclusion of the equality officer
4.1. 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 Employment Equality Acts 1998 to 2008. 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. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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 Goode Concrete v Oksana Shaskova EDA/0919 the Labour Court, in reliance of Mulcahy v Waterford Leadership Limited , accepted that the mere coincidence of the complainant's nationality and his/her alleged discriminatory treatment is not sufficient, on its own, to shift the probative burden from the complainant to the respondent.
4.2. The complainant has shown no evidence of less favourable treatment in relation to his claim concerning documentation and/or training. No case for special action was made in accordance with 58 Named Complainants and/or Campbell Catering. In such circumstances, the Tribunal cannot consider notional comparators.
4.3. It ought to be noted that a claim for discriminatory treatment cannot rest on a mere claim concerning remuneration (equal pay claim). Section 8(6) specifically states:
(6) Without prejudice to the generality of subsection (1), an
employer shall be taken to discriminate against an employee or prospective
employee in relation to conditions of employment if, on any
of the discriminatory grounds, the employer does not offer or afford
to that employee or prospective employee or to a class of persons of
whom he or she is one --
(a) the same terms of employment (other than remuneration
and pension rights),
(b) the same working conditions, and
(c) the same treatment in relation to overtime, shift work, short
time, transfers, lay-offs, redundancies, dismissals and disciplinary
measures,
as the employer offers or affords to another person or class of persons,
where the circumstances in which both such persons or classes
are or would be employed are not materially different.
The complainant has sought and received redress under the Payment of Wages Act, 1991.
4.4. The complainant had no documentary evidence to support any aspect of his claim. It was verbally submitted that the complainant was paid a net salary of €110 per day. This, it was submitted, was below what a qualified carpenter ought to have been paid. The complainant was unable to show any evidence that would have allowed this Tribunal to determine what his gross rate of pay actually was. I note that the complainant's representative submitted that the complainant worked a 42.5 hour week. No evidence was provided to support such an argument. In contrast, the complainant's representative submitted that he had seen the pay slips belonging to Irish comparators who had been working a 39 hour week and paid the correct rates according to the REA. The Tribunal was provided with the names of said persons. They did not appear in person and the Tribunal has had no sight of the alleged pay slips. A complainant based entirely on hearsay cannot shift the evidential burden that rests with the complainant.
4.5. There is no evidence to support an argument that the complainant was treated any less favourably than an employee of different nationality would have been treated in similar circumstances. At best, the Tribunal was asked to infer that the respondent's alleged failure to comply with national employment legislation coupled with the complainant's nationality is sufficient to shift the evidential burden of showing absence of discrimination to the respondent. This is incorrect in law and this Tribunal and the Labour Court have reiterated this a number of times.
5. Decision
5.1. Having investigated the above complaint, I hereby make the following decision in
accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant has been unable to establish a prima facie case of discrimination. Therefore this claim fails.
________________
Tara Coogan
Equality Officer
06 September 2010