FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : GRIEVE CONSTRUCTION LIMITED (REPRESENTED BY GRIEVE CONSTRUCTION LIMITED) - AND - VLADISLAVS PERSENKOVS AND NIKOLAJS NEMNASEVS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal under Section 83 of The Employment Equality Acts, 1998 to 2008.
BACKGROUND:
2. A Labour Court hearing took place on the 2nd September, 2010. The following is the Determination of the Court:-
DETERMINATION:
Mr. Valislavs Persenkovs and Mr. Nikolajs Nemnasevs appealed the decision of an Equality Officer DEC-E2010-23. Mr. Nemnasevs did not appear at the hearing of the appeal and his representative informed the Court that he was not seeking an adjournment on his behalf. The Court therefore dismisses Mr. Nemnasevs’ appeal and in his case upholds the Decision of the Equality Officer.
Mr. Persenkovs’ appeal (herein after called “the Complainant”) is against the decision of an Equality Officer in a claim alleging discrimination on the race ground by Grieve Construction Limited (herein after called “the Respondent”).
The Complainant complained that he was discriminated against on the race grounds contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of access to employment, conditions of employment, training, harassment and discriminatory dismissal.
The Equality Officer found that the Respondent did not discriminate against the Complainant on the race ground pursuant to section 6(2) of the Acts in terms of their conditions of employment and training; did not subject him to harassment contrary to section 14A of the Acts; did not discriminate against him on the race ground pursuant to section 6(2)(h) of the Acts, and did not dismiss him on discriminatory grounds contrary to section 8(6) of the Acts.
Summary of the Complainant's case
The Complainant was employed by the Respondent as a labourer/bricklayer from May, 2004 until 20th March, 2007.
Mr. Richard Grogan, Solicitor, on behalf of the Complainant, stated that there were a number of other employees of Polish, Lithuanian and Latvian origin employed by the Respondent as labourers/bricklayers during the Complainant’s period of employment, but there were no employees of Irish origin employed.
Mr. Grogan submitted claims under the Acts stating that the Complainant did not receive a written contract of employment or any health and safety documentation or training in relation to his employment. He also submitted that he was not paid in accordance with Registered Employment Agreement (REA) for the Construction Industry and that he had not been joined in the Construction Workers Pension and Sick Pay Scheme as is required by the REA.
He claimed that the Complainant was not afforded adequate breaks or rest periods by the Respondent during the course of his working day whilst in the employment of the Respondent.
Mr. Grogan stated that the Complainant’s employment was terminated on 20th March, 2007 when he refused to accede to his employer's request to work for an extra hour (after 5 p.m.) without any additional pay and that he was dismissed without any proper reason or procedures and that such dismissal was discriminatory by the respondent on the grounds of his nationality.
Mr. Grogan stated that the Complainant’s employer regularly shouted at him during the course of his employment in an attempt to force them to increase their work output. He also had to work in poor working conditions on site without proper sanitary facilities. He submitted that this amounted to harassment contrary to the Acts.
Mr. Grogan said that the Equality Officer erred in not considering the issue of a notional comparator. He disputed the Officer’s reliance onArturas Valpeters v Melbury Development Limited(EDA0917) where in that case both Irish and non-Irish nationals were working for the employer. The Respondent in the instant case employed only non-national workers and therefore Mr. Grogan contended that such circumstances in itself are sufficient to raise a presumption of discrimination were the employer shows flagrant disregard for employment legislation. He submitted that where an employer employs only non-national workers and disregards statutory employment rights, a causal connection should be inferred between the employment practice of the Respondent, the race of those employed and the treatment complained of.
The Court heard witness testimony from the Complainant.
The Respondent failed to appear at the hearing of the appeal.
Conclusions of the Court
The Complainant submitted that the Court should consider his case by reference to how a hypothetical comparator of Irish nationality would have been treated.
In so far as the claim relates to pay, the High Court has decided, inBrides v Minister for Agriculture[1998] ELR 125, that a real as opposed to a hypothetical comparator is required. As no comparator was advanced in this case the Court can see no reason why this authority should not be followed in this case and accordingly the Court cannot find in favour of the Complainant on the basis of mere speculation.
With regard to the other elements of his claim regarding unfavourable treatment on the grounds of race, submissions on behalf of the Complainant contend that the Court should take account of how a hypothetical comparator of Irish nationality would have been treated by the Respondent.
As was held by this Court inToker Developments Limited v Edgars Grods EDA10the mere fact of a difference in status (in this case race) and a difference in treatment is in itself insufficient to shift the probative burden can be found inMadarassy v Nomura International plc,[2007] IRLR 246) a Judgment of the Court of Appeal for England and Wales.In theTokercase, no evidence was adduced to substantiate this contention “and it would clearly be impermissible for the Court to reach conclusions of fact based upon mere supposition or speculation.”
In the instant case it was submitted that the Complainant’s unfavourable treatment by the Respondent while he was employed, coupled with the termination of his employment, was directly linked to his nationality. In order to succeed in this contention, the Complainant must be able to produce some significant evidence and not mere supposition to allow the Court to draw an inference that persons of a different race or nationality were or would be treated more favourably. However, the Court is of the view that evidential proof of sufficient significance has not been offered to raise such a presumption.
From its own experience over many cases this Court has found that the practice of failing to apply the appropriate terms and conditions of employment as stipulated by the REA is by no means confined to non-national workers, nor is the wrongful dismissal of such workers. In considering questions such as this the Court, as an expert tribunal, is entitled to rely on the knowledge and experience of its members. This was recently confirmed by the High Court inBunclody Electrical Contracting Ltd & Ors v Labour Court & OrsUnreported, High Court, Hedigan J 30th June 2010.
InTokerthe Court held :
- “It is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances of the particular case.”
The Court is satisfied that there is nothing in the facts of this case from which it could be inferred that any difference which may have existed in the treatment of the Complainant, relative to others who may have been employed by the Respondent, was in any way related to race or nationality.
Determination
In the absence of any evidence that others of a different nationality were or would have been treated differently the Court is satisfied that the Complainant has failed to establish facts to infer that his treatment was on the grounds of his race and hence discriminatory.
Accordingly, the Court concurs with the findings and Decision of the Equality Officer and the Complainant’s case cannot succeed. The Complainant’s appeal fails.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
27th September, 2010______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.