THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 169
PARTIES
Nikolajs Loganovskis
(Represented by Richard Grogan & Associates)
v
Brandon Civil Engineering Ltd.
Date of issue: 7 September 2010 File reference: EE/2008/164
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. Nikolajs Loganovskis 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 - 2007 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 - 2007 and contrary to section 77 of those Acts.
2. BACKGROUND
2.1 The complainant states that he was employed by the respondent from 21 August 2007 until 28 September 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 14 March, 2008. In accordance with her 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 24 May, 2010 the date the complaint was delegated to me. A submission was received on behalf of the complainant. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 24 August, 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 August, 2007. He states that he was employed as a labourer and his duties involved doing manhole work and dealing with the sewage system. 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 Lithuanian national were the only non-nationals working with the company and they were given the dirty jobs i.e. dealing with the sewage system. He submits that on Thursday 27 September, 2007 he was informed by the foreman that the following day Friday 28 September would be his last day in work. He also asserts that his Lithuanian colleague was let go around the same time. He submits that it was only the non-national employees who were dismissed. He states that he called back to work the following Monday in the hope that they would re-employ him but he was advised that there was no work available. 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 states that he was only supplied with gloves from the employer and that the other gear i.e. high visibility vest, hard hat and boots he supplied himself as he had these items from his previous job. He asserts that he received no documentation regarding the grievance and disciplinary procedures. 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 August, 2007. He states that the complainant was involved with manhole work as were other Irish employees at different times. He stated that the company were in the process of developing an apartment complex but no persons had moved into the apartments as they were only at the development stage. He states that the complainant did not receive a contract of employment as their policy was to only issue contracts to employees after eight weeks with the company. The respondent states that the complainant and his Lithuanian colleague were only with the company five weeks. He states that the foreman provided induction to all employees including the complainant regarding their duties and verbally explained the documentation relating to health and safety issues to staff members. He further stated that a copy of the health and safety documentation was retained in the office. The respondent submits that the complainant was provided with a valid safe pass, high visibility vest, hard hat and boots.
4.2 The respondent states that the company employed twelve Irish employees and two non-nationals which included the complainant in August, 2007. He stated that the Irish employees were with the company a longer period of time. The respondent submits that the reason the company had no continuity of work at the site for the complainant was because the respondent's works contract was cut back by the developer due to the general downturn in the housing market. He asserts that the fact the two non-nationals were taken on only five weeks previously, they were the first to be let go on a last in first out basis. He stated that a number of Irish employees were also let go subsequent to the termination of the complainant's employment due to the lack of work because of the downturn. He has submitted to the Tribunal details of those employees who were laid off around the same time as the complainant. The respondent states that on Friday 21 September, 2007, the foreman informed the complainant that he would be finishing up the following Friday 28 September due to the lack of work. The respondent submits that the complainant contacted the foreman by telephone a few weeks later requesting work but that regrettably there was none available. The respondent refutes the allegation of discrimination on grounds of race and reaffirmed its position that the complainant was let go on a last in, first out basis due to the general downturn in the housing market. He further submits that a number of Irish employees were also let go in the following months subsequent to the complainant's termination of employment.
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 - 2007 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 - 2007 and contrary to section 77 of those Acts. 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 the complainant 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."
In the instant case, in relation to the provision of a written contract of employment, the employer has stated that contracts were only issued to employees after eight weeks service with the company and this applied to all nationalities including Irish and non-Irish nationals. The complainant was unable to show a difference in treatment between him and any other employee on this matter. 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. I am not satisfied that the complainant has adduced evidence from which a prima facie case of discrimination in respect of the failure of the respondent to provide him with a written contract of employment or other documentation could be inferred.
5.6 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 provided all the necessary gear required under Health and Safety legislation which included a valid safe pass, a high visibility vest, hard hat and boots. The complainant disputes this assertion by the respondent and states that the only gear he was given was a pair of gloves as he had all the other gear from a previous job. While contradictory evidence was given on this issue I find the evidence of the respondent more credible and I am of the view that the complainant had the appropriate gear to meet the general standard relating to health and safety requirements.
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.
In the circumstances, I am not satisfied that the complainant has adduced evidence from which a prima facie case of discrimination in respect of the alleged failure of the respondent to provide the complainant with the appropriate health and safety training and documentation in a language he could understand and he cannot therefore succeed with this element of his complaint.
5.8 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 housing market and due to the fact the complainant was only working with the company five weeks, he was let go on a last in, first out basis. I note that Irish employees who were with the company a longer period were also let go in the months following the complainant's termination of employment.
5.9 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 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find that the complainant has failed to establish a prima facie case of (i) discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts in respect of (i) his conditions of employment and (ii) that he was dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 77 of those Acts and his entire complaint must therefore fail.
_____________________
Valerie Murtagh
Equality Officer
7 September, 2010