THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 174
PARTIES
Saulius Vilimas
(Represented by Richard Grogan & Associates - Solicitors)
v
Raymond Coughlan Licensed Haulier
(Represented by Martin Collins, Barrister)
Date of issue: 14 September 2010 File reference: EE/2007/570
Headnotes: Employment Equality Acts, 1998-2008 - sections 6,8 and 77 - race- employment status - conditions of employment - hypothetical comparator - prima facie case - discriminatory dismissal - burden of proof.
1. DISPUTE
This dispute involves a claim by Mr. Saulius Vilimas who is a Lithuanian 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 - 2008 and which he brought under section 77 of those Acts.
2. BACKGROUND
2.1 The complainant states that he was employed by the respondent from April 2006 until 7 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 (Lithuanian nationality) contrary to the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2007 to the Equality Tribunal on 30 October, 2007. In accordance with his 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. Submissions were received on behalf of both parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 25 August, 2010. The complainant withdrew the following aspects of his complaint at the hearing - access to employment, training, conditions of employment and harassment.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is a Lithuanian national, states that he commenced employment with the respondent in April, 2007. He states that his duties involved driving a fork lift truck which provided insulation distribution. He asserts that his average working week was 55-60 hours per week. He states 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. He submits that following the Decision of this Tribunal in 58 Complainants v Good Concrete there is an obligation on the employer to provide employees with a contract of employment in a language which they understand.
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 also asserts that he received no documentation regarding the grievance and disciplinary procedures. It is submitted on his behalf that the respondent's action constitute less favourable treatment of him on grounds of race, contrary to the Acts. He seeks to rely on the Decision of this Tribunal in 58 Complainants v Good Concrete in this regard.
3.3 The complainant states that he was dismissed without any proper procedures being applied to him. He asserts that on Sunday 9th September, 2007 he broke his arm while playing basketball and was admitted to hospital for treatment. He submits that he rang his employer that evening to advise him of matters and was told that he should look for a new job. The complainant contends that he was dismissed when he had suffered an injury. The legal representative for the complainant submitted that the Tribunal should examine how a hypothetical Irish employee would have been treated by the respondent in the circumstances. It is further submitted that the respondent would not have treated a hypothetical Irish employee in the same manner and consequently, the alleged treatment of the complainant constitutes discrimination of him on grounds of race contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent states that the complainant was employed with the company in April, 2007 as a truck driver. The respondent accepts that the complainant did not receive a contract of employment but states that neither did any other employee either Irish nationals or non-Irish nationals receive such a contract and it argues that there was no discrimination as there was no difference in treatment. The employer states that the complainant was given a detailed copy of the health and safety statement and was requested to sign a copy of same but did not do so. The respondent submits that they also sent the complainant on a safe pass training course. With regard to provision of health and safety documentation in a language likely to be understood; the respondent states that at all times during the complainant's employment, he had no difficulty with the English language and communicated in English at all times. The respondent submits that the complainant carried out his duties in a satisfactory manner and there were no complaints either from the complainant or persons he worked with or customers about communication issues or his ability to understand and communicate in English. The respondent further states that prior to working for the respondent, the complainant had spent a number of years with another employer carrying out the exact same job.
4.2 The respondent rejects the allegation in relation to dismissing the complainant and states that the complainant resigned. The respondent submits that the complainant attended at the respondent's premises on Monday 3rd September 2007 and requested a further increase in his salary as he had an offer of another job that paid more money. The respondent advised him that the margins made it impossible to provide such an increase and that if the complainant wanted more money he would have to get it in the other job. The respondent states that the complainant agreed and gave his notice as agreeing to finish work on Friday, 7 September, 2007 and the respondent accepted same. The respondent states that on Friday, 7 September, the complainant returned his truck to the depot together with the business phone he had been provided with and his diesel fuel card. The respondent asserts that another employee was assigned the complainant's duties for the following Monday morning and that employee took up those duties. The respondent denies that the complainant telephoned him on Sunday evening regarding an accident he had been involved in. The respondent states that the complainant attended at the respondent's premises on Tuesday 11 September at midday with his wrist bandaged and attempted to give the respondent a sick cert. The respondent stated that the complainant had been out on sick leave previously and provided no sick certificates even when requested to do so. The respondent further states that the complainant was issued with a written warning in April 2007 with regard to taking sick leave without doctor's certificates and his disregard relating to the general maintenance of a lorry. He was at this time put on a probationary period for six months.
4.3 The respondent states that a key witness, the company's mechanic was supposed to attend the hearing to give evidence but on the morning of the hearing another employee was unable to attend work and the company mechanic was not in a position to leave his post. The respondent states that this employee would give evidence to state that the complainant returned to him on Friday evening 7 September with his lorry and also handed in his work mobile phone and diesel fuel card. The respondent produced a number of witnesses at the hearing including Mr. R, the complainant's replacement. Mr R stated that he received a telephone call on Friday evening 7 September stating that he would be taking up the complainant's duties on the following Monday morning. This information was also corroborated by the general manager who stated that he contacted Mr. R by telephone on Friday evening stating that as the complainant resigned, he would be required to fill in and carry out the complainant's duties on the following Monday morning. The respondent has submitted details of all staff members employed by the company in 2007 and they confirm that at that time, 40 % of their workforce comprised non-Irish nationals.
4.4 The respondent gave evidence regarding another employee, an Irish national who was injured in the course of his employment whereby he fell off a lorry and was out on sick leave for over two months and was paid by the respondent for the time he was absent on sick leave. The respondent submitted that any employee, whether Irish or non-Irish national, getting injured in the course of their employment would be covered under their sick leave arrangements and would return to their job following recovery of their injuries. The respondent also states that another employee, a Scottish national who was involved in an accident outside work would be out for a period of seven months on sick leave but would be returning to his job on recovery. The respondent states that while he would not be in a position to pay this employee while he was out on sick leave, his job would be there for him when he had recovered from his injuries.
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 - 2008 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 - 2008 and which he brought under 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 Lithuanian.
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 him 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.
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 instant case, in relation to the provision of a written contract of employment, the complainant was unable to show a difference in treatment between him and any other employee on this matter. I am satisfied on balance that none of the employees were provided with written contracts of employment. Therefore, 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 The complainant submits that he did not receive health and safety documentation in a language he could understand and that he received no health and safety training. The employer states that the complainant was given a detailed copy of the health and safety statement and was requested to sign a copy of same but did not do so. The respondent submits that they also sent the complainant on a safe pass training course. 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.
5.7 In relation to the issue of dismissal, there are two very diverse conflicting versions of what led up to the dismissal. In circumstances where there is a direct conflict of evidence between the parties, an Equality Officer must decide on balance of probabilities which version of events s/he finds more credible. Taking the totality of evidence into consideration and given the witness testimony by Mr. R at paragraph 4.3 which was corroborated by the general manager, I find the evidence of the respondent more compelling and credible. I am of the view that the complainant was not dismissed as he alleged but that as a result of the respondent stating that he could not provide a wage increase, the complainant had sought employment elsewhere and therefore resigned his employment of his own volition and no dismissal occurred. Following the accident on Sunday 9 September, the complainant would not have been in a position to take up the alternative employment as he would be absent on sick leave with his injuries for a period of over two months and he attempted to resume his employment with the respondent. In the interests of completeness, I note the complainant has argued that he was subjected to discriminatory dismissal because he is Lithuanian. Even if I were to accept his version of events that he was dismissed as a result of breaking a limb and would be absent for over two months due to his injuries; he has provided no evidence to link his dismissal with his Lithuanian nationality. The respondent also provided information relating to another employee, a Scottish national who was involved in an accident outside the workplace. The respondent states that this employee will be absent for a number of months due to his injuries and while the respondent is not in a position to pay him during his sick leave absence, as the accident did not happen in the course of his employment; the employee in question will be returning to his post when he has recovered.
5.8 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. The legal representative for the complainant submitted that the Tribunal should examine how a hypothetical Irish employee would have been treated by the respondent in the circumstances. I have carefully considered the arguments advanced by the complainant's solicitor on this matter and I am not satisfied that they provide the evidential basis to enable me conclude that an Irish employee would have been treated differently in the circumstances. In light of my comments in this and the preceding paragraphs, I find that the complainant has failed to establish facts from which it could be inferred that a hypothetical Irish employee would have been treated differently than him in the circumstances. 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 - 2008 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 - 2008 and contrary to section 77 of those Acts and his entire complaint must therefore fail.
_____________________
Valerie Murtagh
Equality Officer
14 September, 2010