THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS
Decision DEC - E2010 -180
PARTIES
Algars Berzin
v
Honeyman Developments Limited
(Represented by James Richardson BL instructed by Tiernans Solicitors )
File reference: EE/2008/457
Date of issue: 20 September 2010
Headnotes: Employment Equality Acts, 1998-2008 - sections 6 and 8 - race- employment status - conditions of employment - prima facie case - discriminatory dismissal - burden of proof.
1. Dispute
1.1 This dispute concerns a claim by Mr. Algars Berzins (hereafter "the complainant") that he was subjected to discriminatory treatment on the ground of his race in terms of Section 6 (2) (h) of the Act and contrary to Sections 8 of the Employment Equality Acts by Honeyman Developments Limited (hereafter "the respondent"). The complainant maintains that the respondent discriminated against him in relation to his conditions of employment and in relation to promotion and training. He also maintains that he was discriminatorily dismissed.
1.2 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on 7 July 2008. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Deirdre Sweeney, 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 6 September 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 8 September, 2010.
2. Summary of the Complainant's Submission
2.1 The complainant, who is a Latvian national, states he was employed by the respondent as a blocklayer. He asserts that he was doing this work although that he has no qualifications. He submits that he did not receive a contract of employment, health and safety documentation, training or promotion. He further contends that he was not paid in accordance with the Registered Employment Agreement for the Construction Industry, and that he was not joined into the CWPS Pension Scheme. He also alleges that he was discriminatorily dismissed. The complainant contends that this constitutes unlawful discrimination on grounds of race contrary to the Acts.
4. Summary of the Respondent's Submission
4.1 The respondent states that the complainant was employed for only three days from 4 February to 6 February 2008 (inclusive). He was engaged for casual labour. He failed to return to work after 6 February 2008 without giving any notice. He was not dismissed. He worked in total 27 hours for the respondent and was paid €11.86 per hour.
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 of the Acts and contrary to Section 8 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. During the hearing the complainant's representative requested to come off record. The complainant proceeded to represent himself at the hearing.
5.2 Section 6(1) of the Employment Equality Acts 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....."
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 requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. 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 There is a clear conflict of evidence in this case. At the hearing the complainant stated that he had been employed as a blocklayer by the respondent from September 2007 to March 2008. He worked from 8am to 6pm each day, sometimes for longer hours than this and was paid €75 per day. He was always paid in cash. At the time he was employed there were three other people employed, two of whom were Irish and the other Latvian. He did not know how much the other people employed there were paid or whether they had received contracts of employment, health and safety documentation or training. He stated that on 5 March 2008 he was told by Mr Honeyman that there was no further work for him and he was let go. He also stated that the other three employees continued to be employed there. He submitted in evidence text messages on his mobile phone forwarded to one of the Directors of the respondent. These messages appear to have been sent in various dates in February 2008 and related to the complainant's non availability for work. Mr K gave evidence at the hearing. He stated that he was a friend of the complainant and had been asked by him to give evidence in this case. He stated that he had also been employed by the respondent. He contended that he was employed from September 2007 to April 2009 as a labourer. He further contended that the complainant was employed at the same time up to March 2008 when the complainant was let go. He, the witness, continued to work with the respondent until April 2009. He had no evidence of his employment with the respondent as he stated that he was working for cash and also claiming social welfare.
5.5 The respondent denied that the witness Mr K had ever been in its employment. The respondent contended that the complainant had sought employment from late January 2008. He started to work for the respondent as a casual labourer on 4 February 2008. He worked on 5 and 6 February and did not return to work again. The respondent contended that the complainant did not return to work after a tax form had been completed for the him and he had been asked to sign it. In evidence the respondent submitted a copy of a cheque dated 9 February 2008 made out to the complainant for the amount of €320 which it was submitted was his pay for the 27 hours in which he worked. The complainant accepted that he had received and cashed this cheque but asserted that he had also received €100 in cash from the respondent at the same time. The respondent denied this. The respondent also contended that the complainant was the only non-Irish national the company had employed. The other employees were Irish. The respondent stated it complied with all employment regulations in relation to its employees.
5.6 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 the instant case, the complainant was unable to provide any evidence that he was actually employed by the respondent for the period he alleged. In this regard I note that the witness called to support his evidence was unable to provide any evidence of his own employment with the respondent. The respondent denied he had ever been employed in the company. This witness was particularly vague about the details of his employment when questioned about it. I also have also taken into account that the complainant asserted in his initial evidence in the hearing that he had always only been paid by cash. Notwithstanding this evidence, when a copy cheque payable to him was submitted in evidence by the respondent, the complainant then accepted that he had received and cashed this cheque. He had no explanation as to why he had not referred to this cheque earlier but contended that he had usually been paid in cash. Consequently I am not satisfied that the complainant has adduced evidence to show that he had an employment relationship with the respondent other than for the three days of 4 to 6 February 2008. I am also satisfied that he has failed to establish facts from which it may be presumed that he was treated less favourably by the respondent on grounds of his race or nationality. 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) the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2)(h) of the Acts in terms of his conditions of employment and training contrary to section 8(1) of the Acts.
(ii) the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2)(h) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts.
Accordingly, I find in favour of the respondent in this matter.
_____________________
Deirdre Sweeney
Equality Officer
20 September, 2010