Employment Equality Acts
1998-2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2010-173
PARTIES
Mikaitis, Nakceris, Saltys, and Stasiunas,
(Represented by Richard Grogan and Associates)
- V -
G & S Magic Limited
File references: EE/2007/069 - DEC-E2010-173
Keywords
Employment equality Acts 1998-2008 - Discriminatory Treatment - Condition of employment - Claim in relation to a collective agreement - Race - Discriminatory dismissal - Harassment - Prima facie case
1. Dispute
1.1. This dispute concerns a claim by Messrs Mikaitis, Nakceris, Saltys and Stasiunas (hereafter "the complainants") that they were subjected to discriminatory treatment contrary to the Employment Equality Acts by G & S Magic Limited (hereafter "the respondent") on the grounds of their race. The complainants maintain that the respondent discriminated against them in relation to their conditions of work and pay. The complainants maintain that they were harassed contrary to the Acts and discriminatorily dismissed on 22 September 2006 (Saltys) 29 September 2006 (Mikaitis) and 24 October 2006 (Nakceris and Stasiunas).
1.2. The complainants referred their claims of discrimination to the Director of the Equality Tribunal on 06 February 2007 (Mikaitis on 12 February 2007) under the Employment Equality Acts. These claims were 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 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. Pay records were submitted by the respondent on 2 September 2010.
2. Case for the complainant
2.1. The complainants, all of whom are Lithuanian nationals, received no proper contract or no contract of employment, no proper health and safety documentation nor training. The complainant submitted that subsequent to 58 Named Complainants v. Goode Concrete Limited there is a requirement to furnish an employee with a contract of employment in a language likely to be understood by the employee. The complainants submitted that an foreign employee without a contract of employment is in a particularly vulnerable position. Furthermore, it was submitted that the above decision also established a requirement to provide a foreign national with a Health and Safety Statement. It was submitted that a notional Irish employee would have been aware of the statutory requirement under the Health and Safety Act, 2005.
2.2. None of the complainants were paid in accordance with the Registered Employment Agreement (REA) for the Construction Industry. It was submitted that all of the complainants were unpaid at least a portion of their wages. The complainants submitted that the respondent is under a legal obligation pay the REA rates and to notify employees accordingly. The respondent, it was submitted, had not made such notification. The complainant submitted that such an approach is particularly abhorrent when considering the vulnerability of foreign workers. The complainants submitted that - as the complainants were not joined into the CWPS Pension and Sick Pay Scheme - they have lost pension rights. The rationale for such exclusion was to keep the complainant's in the dark in relation to their employment rights. This applied particularly to their rate of pay which may have been exposed by an union investigation into the complainants affairs. The complainants submitted that an Irish notional comparator would be aware of their employment rights and thus would have been joined in the union and paid the relevant money.
2.3. It was submitted that the respondent's actions effectively had the effect of dismissing all the complainants. The complainants maintained that the respondent was engaged in criminal activity of furnishing cheques to them that bounced. This created significant difficulties for all the complainants and created a hostile and an intimidating environment. It was submitted that all of the complainants had a deposit week's pay taken from them at the start of their employment.
3. Case for the respondent
3.1. The respondent submitted that the complainants were paid less because they were Lithuanians who did not have their own tools or transport to the site. The respondent provided the complainants with tools, a car and paid for their petrol. This, it was submitted, justified the fact that the complainants were not paid the same rate as employees working with other builders.
3.2. The respondent denied any allegation of less favourable treatment and submitted all persons working for him were treated in the same manner. The respondent volunteered to provide the Tribunal with copies of the complainant's pay records. These were received on 2 September 2010.
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainants have 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 complainants to the respondent.
4.2. The complainants' representative withdrew the claims for discriminatory dismissal and harassment at the hearing. No claim in relation to a collective agreement was pursued.
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) clearly excludes remuneration and pension rights from conditions of employment but includes same terms of employment, same working conditions, overtime, shift work, short time, lay-offs, redundancies, dismissals and disciplinary procedures. While I note that the respondent stated that he paid the Lithuanian nationals less than what a REA would have stipulated; he submitted it was because they did not have their own tools nor transport. These facts, in relevant circumstances, may give rise to a claim for equal pay. However, it is clear that in the circumstances where the respondent was not notified of such claims I have no jurisdiction to investigate claims for equal pay. The complainants have not shown any evidence of less favourable treatment in relation to conditions protected in the Acts. Furthermore, I note that the complainants' representative argued that by comparing these conditions with a notional comparator (the respondent only employed non-nationals), the complainants' conditions of employment were discriminatory in that they missed out on all the benefits that come with a REA. REA claims, in themselves, are not matters within this Tribunal's jurisdiction. The complainants provided this Tribunal with no evidence to support an argument - which was based on the complainants' race - supporting an argument for less favourable treatment.
4.4. There is no evidence to support an argument that the complainants were treated any less favourably than any other employee was or 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. Such an approach is incorrect in law and this Tribunal and the Labour Court have reiterated this a number of times. The complainants have shown no evidence of less favourable treatment in relation to their 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.
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 complainants have been unable to establish a prima facie case of discrimination. Therefore these claims fail.
_________________
Tara Coogan
Equality Officer
13 September 2010