THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2010-182
PARTIES
Janis Bricevs
(represented by Richard Grogan & Associates,
Solicitors)
and
Vefit Limited
File Reference: EE/2007/021
Date of Issue: 23rd September, 2010
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - race - access to employment - conditions of employment - harassment - discriminatory dismissal - failure to establish a prima facie case
1. Dispute
1.1 This case concerns a complaint by Mr. Janis Bricevs who is a Latvian national, that he was discriminated against by Vefit Limited on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of access to employment, conditions of employment, harassment and in relation to discriminatory dismissal.
2. Background
2.1 Mr. Bricevs referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 12th January, 2007. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case on 24th May, 2010 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. A written submission was received from the complainant on 13th October, 2008 and a written submission was received from the respondent on 25th November, 2008. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 9th September, 2010.
3. Summary of the Complainant's case
3.1 Mr. Janis Bricevs, who is a Latvian national, was employed by the respondent as a plasterer from 1st March, 2004 until 10th November, 2006. He stated that there were a number of other employees of Latvian, Lithuanian, Polish and Irish origin employed by the respondent as plasterers during his period of employment. Mr. Bricevs submitted that the respondent failed to provide him with a written contract or terms of employment when he commenced employment and he contended that this constitutes unlawful discrimination of him on the grounds of race contrary to the Acts. The complainant stated that the respondent did provide him and its other workers with a written contract of employment in September, 2006; however, he claims that this contract was in the English language and was not translated into his native language. The complainant submitted that following the Decision of this Tribunal in 58 Complainants -v- Goode Concrete there is an obligation on an employer to provide employees with a written contract of employment in a language which they understand.
3.2 The complainant submitted that the respondent failed to provide him with any health and safety documentation or training during the course of his employment. The complainant submitted that the respondent's failure to provide him with a health and safety statement in a language which he could understand amounts to discrimination within the meaning of the Acts.
3.3 The complainant also claims that he was dismissed from his employment by the respondent in a discriminatory manner and without any proper procedures. The complainant stated that he started to encounter difficulties in his employment during the final months of his employment after he had "stood up" for a co-worker of Latvian origin who was experiencing problems in the workplace. The complainant stated that he was issued with two written warnings by the respondent on 6th October, 2006 and 31st October, 2006 which were totally unjustified.
3.4 The complainant stated that the first letter was issued following an argument that he had with a fellow worker regarding the washing of his work tools. The complainant stated that the second letter was issued following a request that that he made to the respondent regarding his requirement to bring equipment onto the site where he was working. The complainant claims that the respondent told him to "f... off" during the course of a conversation regarding this issue and he claims that he was issued with a final written warning upon his return to work following this incident on 31st October, 2006. The complainant stated that neither of these written warnings were warranted and he claims that the respondent was just looking for a reason to dismiss him. The complainant made a complaint of bullying to the respondent as a result of having being issued with these written warnings, however, he claims the respondent failed to carry out any investigation in relation to his complaint.
3.5 The complainant denies that he had absented himself from his employment on two occasions without the permission of the respondent. The complainant stated that he had given the respondent prior notice of his intention to take leave on both of these occasions and that the respondent had granted him permission to take leave (i.e. from 21st July, 2006 to 20th August, 2006 and for a week in October, 2006 to attend a wedding). The complainant claims that he was dismissed from his employment by the respondent on 10th November, 2006 and that he wasn't given any reason for his dismissal. The complainant denies that he informed the respondent on this date that he was leaving his employment in order to take up employment with a different employer. The complainant stated that he turned up for work on Monday, 13th November, 2006 but he was told to "f... off" by Mr. A.
3.6 The complainant also claims that he was subjected to harassment during the course of his employment by Mr. B, Supervisor, who used derogatory language towards him on a number of occasions. The complainant claims that Mr. B subjected him to harassment because he had a poor grasp of the English language.
3.7 The complainant also referred to a number of cases in support of his case, including Campbell Catering Ltd. -v- Rasaq (EED048), 58 Complainants -v- Goode Concrete (DEC-E2008-020), Khumalo -v- Cleary & Doyle Limited (DEC-E2008-003), Golovan -v- Porturlin Shellfish Limited (DEC-E2008-032) and Ning Ning Zhang -v- Towner Trading t/a Spar Drimnagh (DEC-E2008-001).
4. Summary of the Respondent's case
4.1 The respondent is a plastering contractor which has been in existence since 2004 and it employed workers of Latvian, Lithuanian, Polish, Chinese, Czech and Irish origin in November, 2006. The respondent stated that it employed the complainant as a plasterer from 1st March, 2004 until he terminated his own employment on 10th November, 2006. The respondent accepts that the complainant was not provided with a written contract of employment upon the commencement of his employment. The respondent stated that it did not issue any of its employees (either the Irish or non-Irish nationals) with written contracts at that juncture and that it only commenced issuing written contracts to its employees in September, 2006. The respondent stated that the complainant was issued with a written contract in September, 2006 and that this contract was fully explained to him at that time. The respondent stated that the complainant indicated that he fully understood the terms of the contract and he did not raise any issues about it not being issued in his native language.
4.2 The respondent stated that it is very conscious of its obligations under health and safety legislation and that it employs a health and safety consultancy firm to advise it in relation to all safety matters. The respondent submitted that the complainant and all of its other employees (both the Irish and non-Irish nationals) were issued with a safety handbook upon commencement of employment. The respondent stated that the complainant attended a full safety induction course on 14th October, 2004 and that it also paid for him to attend a Safe Pass course following which he was issued with a Safe Pass card. The respondent submitted that the complainant had a good command of the English language during his employment and that there was no question of him not being able to fully understand the health and safety training that was provided for him. The respondent submitted that the complainant did not raise any concerns about safety issues during the course of his employment.
4.3 The respondent denies that the complainant was dismissed in a discriminatory manner and it submitted that he terminated his own employment on 10th November, 2006. The respondent stated that the complainant absented himself from work between 21st July, 2006 and 20th August, 2006 without authorisation, and he was spoken to about this by the Managing Director, Mr. A. The respondent stated that the complainant used abusive and threatening language towards two fellow employees (an Irish and a Chinese worker) on 4th October, 2006 and that he was issued with a written warning in respect of this behaviour.
4.4 The respondent stated that the complainant informed Mr. A on 23rd October, 2010 that he was leaving his employment with the respondent and that he was going to work for another company. The respondent stated that the complainant appeared for work the following day and he was informed by Mr. A that if he left his employment again that he could go for good. The respondent stated that the complainant informed Mr. A on this date that he was going home the following Thursday for a family wedding and would not be back until the following Tuesday. The respondent stated that Mr. A informed the complainant that this was totally unacceptable as he was required to give adequate notice of his intention to take leave. The respondent stated that the complainant returned to work on 31st October, 2006 and he was issued with a final written warning as a result of his behaviour the previous week.
4.5 The respondent stated that Mr. A went to the site where the complainant was working on 10th November, 2006 and he was unhappy with the amount of work that the complainant had done since the previous day. Mr. A worked with the complainant for the rest of the day in order to complete the job and at the end of the day the complainant informed Mr. A that he was not going to work for the respondent anymore and he was going to work for a different company. The respondent stated that Mr. A informed the complainant that he was accepting his resignation and that he would be paid any outstanding entitlements the following week. The respondent stated that the complainant appeared for work on the following Monday, 13th November, 2006 and was questioned by Mr. A as to why he was on site as he had resigned the previous Friday. The respondent stated that the complainant left the site at that juncture and did not return.
4.6 The respondent denies that the complainant was subjected to harassment on the grounds of his race at any stage during the course of his employment. The respondent stated that all of its employees were made aware that they could report any instances of bullying or harassment to the firm of health and safety consultants which it employed to deal with such matters. The respondent stated that the complainant never made any complaint of harassment during the course of his employment.
5. Conclusions of the Equality Officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 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)(h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins".
5.3 At the outset of the hearing of the complaint, the complainant's representative withdrew the complaint in relation to access to employment. Accordingly, the issues for decision in this case is whether or not the respondent discriminated against, discriminatorily dismissed and harassed the complainant on the ground of his race contrary to the Employment Equality Acts. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
Conditions of Employment
5.4 Firstly, I will consider the issue that has been raised by the complainant in relation to the respondent's alleged failure to provide him with a written contract of employment which he has contended constitutes unlawful discrimination of him on the grounds of race contrary to the Acts. 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."
5.6 In considering this issue, I note the respondent accepted that the complainant was not issued with a written contract of employment upon the commencement of his employment and it stated that it did not commence issuing contracts to any of its employees (either the Irish or non-Irish nationals) until September, 2006. The respondent gave evidence that the complainant and all of its other employees were issued with a contract of employment in September, 2006. The complainant did not dispute this evidence and he accepted that all of the respondent's employees, both the Irish and non-Irish nationals, were issued with contracts of employment in September, 2006. Having regard to the evidence adduced, I am satisfied that the complainant was not treated any differently or less favourably than any of the respondent's other employees on the grounds of his nationality in terms of the provisions of a contract of employment.
5.7 The complainant also stated that the contract which the respondent provided to him was in the English language and he submitted that there was also an obligation upon it to provide this contract in his native language. Having regard to the evidence adduced, I accept the respondent's evidence that the terms of this contract were explained in detail to the complainant and also that he confirmed to the respondent that he fully understood the terms of the contract prior to signing the document. In the circumstances, I find that the measures taken by the respondent to ensure that the complainant fully understood the contract of employment which it provided to him were reasonable in the circumstances of this case. Accordingly, I find that the complainant has failed to establish that he was treated less favourably than another person would have been, in similar circumstances, on the grounds of his race in relation to this aspect of his conditions of employment. Accordingly, I find that the complainant has failed to establish a prima facie case in relation to this element of his complaint.
5.8 The next issue raised by the complainant relates to the respondent's alleged failure to provide him with a health and safety statement and training in a language which he could understand which he contends constitutes unlawful discrimination of them on the grounds of race contrary to the Acts. In considering this issue, I note the respondent's evidence that the complainant attended a full safety induction course on 14th October, 2004 and that he was provided with a Safe Pass as a result of is participation in this course (the complainant disputed the respondent's evidence that he had attended this induction course). I also note the respondent's evidence that it has a Safety Statement in place and that all of its employees including the complainant were issued with a copy of its employee safety handbook upon commencement of employment.
5.9 Having regard to the evidence adduced, I find the respondent's evidence to be more credible in relation to this issue and I am satisfied that the complainant was treated in the same manner as all of the respondent's other employees (both Irish and non-Irish nationals) in terms of the provision of health and safety training and documentation. I also accept the respondent's evidence that the complainant confirmed to the respondent that he did not have any difficulty in understanding the health and safety training and documentation that it provided to him. In the circumstances, I find that the complainant has failed to establish that he was treated less favourably than another person would have been, in similar circumstances, on the grounds of his race in relation to this aspect of his conditions of employment. Accordingly, I find that the complainant has failed to establish a prima facie case in relation to this element of his complaint.
Discriminatory Dismissal
5.10 The next issue that I must consider relates to the complainant's claim that he was subjected to discriminatory dismissal on the grounds of his nationality. In considering this issue, I note that there is a conflict in the evidence of the parties regarding the circumstances surrounding the termination of the complainant's employment with the respondent. The complainant, on the one hand, claims that he was summarily dismissed by the respondent on 10th November, 2006 without any proper procedures and that he was not given any reason for his dismissal. The respondent, on the other hand, gave evidence that the complainant left his employment of his own volition on 10th November, 2006 and it denied that the complainant was dismissed, either in a discriminatory manner or otherwise, from his employment. The respondent also gave evidence that the complainant had absented himself from his employment without permission from 21st July, 2006 and 20th August, 2006 and that he had also informed the respondent on 23rd October, 2006 that he was leaving his employment. The respondent also gave evidence that it had experienced difficulties in terms of the complainant's behaviour and performance prior to his resignation which warranted him being issued with two written warnings.
5.11 Having regard to the totality of the evidence adduced, I find the respondent's evidence to be more credible regarding the circumstances surrounding the termination of the complainant's employment. I accept the respondent's evidence that the complainant resigned from his employment of his own volition on 10th November, 2006. I am satisfied that the complainant has not adduced any evidence from which I could reasonably conclude that he was dismissed from his employment by the respondent in a discriminatory manner. Accordingly, I find that the complainant had failed to establish a prima facie case of discrimination on the grounds of his nationality in terms of the manner in which his employment with the respondent was terminated.
Harassment
5.12 The next issue that I must consider relates to the claim by the complainant that he was subjected to harassment by the respondent on the grounds of race contrary to section 14A of the Acts. The complainant gave evidence that Mr. B, Supervisor, used derogatory language towards him (i.e. that he called him a "bo....ks") on a number of occasions during the course of his employment. The respondent denied that the complainant was subjected to this treatment and it stated that the complainant would have had very little interaction with Mr. B during the course of his employment.
5.13 Having regard to the evidence adduced, I have found the respondent's evidence in relation to this issue to be more credible and I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that he was subjected to harassment on the grounds of his race within the meaning of the Acts by the respondent. Accordingly, I find that the complainant has failed to establish a prima facie case of harassment on the grounds of his race.
6. Decision
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008.
(i). I find that the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2)(h) of the Acts in respect of his conditions of employment and training contrary to section 8(1) of the Acts.
(ii). I find that the respondent did not subject the complainant to harassment contrary to section 14A of the Acts.
(iii). I find that 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 case.
______________
Enda Murphy
Equality Officer
23rd September, 2010