THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
DEC - E2010-168
Frantiser Zigo
(represented by Grogan and Associates Solicitors)
versus
Owen Tango Plasterers and Painters
File reference: EE/2008/259
Date of issue: 6th September 2010
Keywords: Employment Equality Acts, Race, Conditions of employment,
Dispute
1.1. The case concerns a claim by Mr Frantiser Zigo, a Slovakian National, against Owen Tango Plasterers and Painters. His claim is that he was discriminated against regarding conditions of employment and training and that he was discriminatorily dismissed on the grounds of race contrary to 6(2)(h) of the Employment Equality Acts 1998 - 2008 [hereinafter referred to as 'the Acts'].
1.2. Through his legal representative, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 21st April 2008. On 22nd March 2010, in accordance with her powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, 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 this date, my investigation commenced. A written submission was received from the complainant. No submission was received from the respondent. A Hearing was held on 19th May 2010 as required by Section 79(1) of the Acts.
Summary of the complainant's case
2.1 The complainant was employed from November 2007 until January 2008. Mr Zigo submits that he was paid €200 in total for six weeks work. When he sought payment, he was told he would be paid later when the respondent was paid. As he was employed as a driver, i.e. transporting the other employees to and from work, as well as a painter/decorator he submits he worked longer hours than the other employees did. Mr Zigo submits that he was the only person of Slovakian nationality working for Owen Tango Plasterers and Painters.
2.2 Mr Zigo also maintains that he never received health and safety training or documentation. He submits that he did not receive a contract of employment either. In relation to this, the complainant cites 58 complainants v Goode Concrete .
2.3 He submits that he was dismissed and that this was done contrary to fair procedures. He also maintains that Mr Tango only employed foreign nationals and that he was treated less favourably than a notional Irish comparator.
2.4 Other cases cited were Khumalo v Cleary and Doyle , Campbell Catering Ltd and Aderonke Rasaq , Zhang v Towner Trading , Golovan v Porturlin Shellfish Ltd
Summary of the respondent's case
3.1 Owen Tango Plasterers and Painters did not submit a written submission. Neither did the Respondent attend the Hearing. Notification of the Hearing date was sent by registered post on 24th March 2010 so I am satisfied that the respondent was aware of same.
Conclusions of the Equality Officer
4.1. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is race. Therefore, the issues for me to decide are:
(i) whether Mr Zigo was discriminated against in relation to his conditions of employment and training by the respondent
(ii) whether he was discriminatorily dismissed by the respondent
4.2 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 Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:
Section 85A of the Act provided 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. While those facts will vary from case to 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 establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.
Conditions of employment and training
4.3 Regarding conditions of employment, Section 8(6) of the Acts states that an employer shall be taken to discriminate against an employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee the same treatment [my emphasis] in relation to overtime, shift work, short time, transfers, layoffs, redundancies, dismissals and disciplinary measures as the employer offer or affords to another person where the circumstances in which both such persons are employed are not materially different.
4.4 In relation to the written statement of terms and conditions of employment as well as health and safety training and documentation, the complainant has failed to establish a difference of treatment between him and the other employees in the company. I found Mr Zigo to be a credible witness and, in direct evidence, he admitted that as far as he was aware no employee (no matter what nationality they were) received a written contract of employment or any training or documentation regarding health and safety. Therefore, this strand of his complaint fails.
4.5 However, Mr Zigo gave uncontested evidence that he was the only Slovakian employee working for the respondent and the only employee who had additional driving duties for which he was not compensated. This necessitated him working significantly longer hours than other employees did. He submitted that he felt isolated because he was the only Slovakian working there. The other nationalities (mainly Latvian and Lithuanian) he maintains 'looked out for each other'. He submits that his employer took advantage of this and consequently, he was given more onerous duties and was not financially compensated accordingly. I am satisfied that the evidence in relation to this issue has been tested and I have found his evidence to be reliable. Therefore, the complainant has raised an inference of discrimination regarding his conditions of employment and the respondent has failed to rebut it.
Discriminatory Dismissal
4.6 In direct evidence, Mr Zigo stated that all employees were let go on the same day. Therefore, his complaint of discriminatory dismissal cannot succeed as he has not demonstrated less favourable treatment than other employees have on the ground of race.
Decision
I have concluded my investigation of Frantiser Zigo's complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against him on the ground of race in relation to training
(ii) the complainant has failed to establish the facts that the respondent discriminatorily dismissed him on the ground of race.
(iii) the complainant was discriminated against by the respondent regarding his conditions of employment on the ground of race.
In accordance with Section 82 of the Act, I order the respondent pay the complainant €2,000 in compensation for the discrimination in relation to his conditions of employment. In calculating the redress, I am cognisant of the fact that Mr Zigo was working for the respondent for approximately six weeks. This is redress for the infringement of Mr Zigo's statutory rights and, therefore, 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).
________________
Orlaith Mannion
Equality Officer
6th September 2010