THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011-153
PARTIES
Drasutis Leipinaitis & Aleksejs Filipovs
(Represented by Richard Grogan & Associates, Solicitors)
-V-
Slattery's Ltd
(Represented by IBEC)
File Reference: EE/2009/504 & 510
Date of Issue: 18th August 2011
Decision DEC - E2011-153
Drasutis Leipinaitis & Aleksejs Filipovs
(Represented by Richard Grogan & Associates, Solicitors)
-V-
Slattery's Ltd
(Represented by IBEC)
Keywords
Employment Equality Acts 1998-2008, Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 6(2)(h) - Race, Section 8 conditions of employment and discriminatory dismissal, harassment -section 14A prima facie case.
1. Dispute
1.1 This dispute concerns a claim by the above named complainants that they were discriminated against by the above named respondent on the race ground, in terms of Sections 6(1)(a), 6(2) (h) of the Employment Equality Acts 1998-2008 and contrary to section 8 in relation to their conditions of employment and dismissal.
2. Background
2.1 The complainants referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 23rd July 2009 alleging that the respondent discriminated against them contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on the 9th May, 2011 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. A written submission was received from the complainant on the 10th November 2009 and from the respondent on the 15th January 2010. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 13th May 2011
3. Summary of the Complainants' Case
Drasutis Leipinaitis
3.1 The complainant is a Lithuanian national and was employed by the respondent as a general operative from the 2nd of October 2008 until the 3rd June 2009. There were between 12 and 15 employees in the maintenance area where he worked and they were mainly from Poland, Lithuania, Slovakia, and Latvia. He was employed to do general maintenance and renovations in a hotel. The complainant's case is that the respondent discriminated against him in relation to his conditions of employment in that he was harassed; the respondent failed to provide him with a written contract of employment; health and safety documentation and training; and he also submitted there were breaches of the Registered Employment Agreement. The complaints about the last two matters were withdrawn at the conclusion of the hearing. The complainant said that he never got a contract of employment and he denied that the writing on the contract of employment produced by the respondent was his. He said that he did not know if other employees got contracts of employment. He also complained that he was harassed and subjected to unwanted shouting by the owner who is the MD of the company. He said that MD shouted at him on a regular basis and used offensive language and on one occasion he threatened him that he would not be able to get work and would have to leave the country. He said that he was constantly working under pressure. He said that MD shouted at al the employees except the Irish employees. He said that the Irish employees were treated much better in relation to all aspects of the conditions of employment.
3.2 The complainant submitted that he was dismissed without good reason. He was out sick for two days and on his return to work he was told to go home. He accepted that he got a document from the company in relation to money problems in the company. He said that he did not understand the document but his brother translated it for him. He said that he and his friend Mr. Filipovs were the only employees dismissed at that time.
4. Aleksejs Filipovs
4.1 The complainant is from Latvia and was employed by the respondent as a general operative 22nd October 2008 until 22nd May 2009 when his employment terminated. He worked alongside Mr. Leipinaitis who recommended the job to him. He said that after a short interview by MD he was employed. He said that he did not get a contract of employment, that he was harassed and that he was dismissed without proper procedures. Complainants in relation to health and safety documentation and training and payment of the REA rates were withdrawn at the conclusion of the hearing. The complainant said that he did not know if any of the employees got contracts of employment. He said that he was shouted at on one occasion by MD and he also heard him shouting at his friend Mr. Leipinaitis. He said that he never heard the Irish being shouted at. He believes that they were treated better than the foreign nationals
4.2 He also submits that his dismissal was discriminatory in that no procedures were applied to his dismissal. He was out sick for a week and on his return he was sacked. He accepted that he got letters in relation to the economic downturn in the business. He said that he was called to the office and given his P45 and his final pay but he got no letter of dismissal. He said that there were 2 other people dismissed at the time including Mr. Leipinaitis
4.3 The complainant's representative contended that the failure to provide a contract of employment to the complainant is a breach of the equality legislation and put the complainant at a distinct disadvantage. She submitted that because the complainants are Latvian and Lithuanian nationals they are less likely to know his rights than an Irish employee and foreign nationals who do not receive a contract of employment are in a particularly vulnerable situation. She submitted that an Irish employee would not have been treated in the manner the complainants were treated. They were given no notice and no proper reason for their dismissal. The complainant's legal representative, in her submission, also referred me to a number of cases in support of the 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).
5. The Respondent's Case
5.1 The Administrative Superintendent of the respondent company gave evidence and said that the company operates a pub, restaurant, holiday apartments and a hostel. They employ seventy people and about thirteen different nationalities and the majority of the employees are non-Irish. He said that all new employees are given contracts of employment. The procedure was that the employee got their contract, the company rule book and roster in the office normally when they were collecting wages and pay slips. He said that the company cannot be sure that they complainants got them because it was the practice at the time not to require the employees to sign and return the contract. Since a finding by the Rights Commissioner against the company about contracts, the company sends the contract by registered post to the employees and they are required to sign two copies and return one to the company. He said that the company did not discriminate against the complainants and if they did not get the contracts it was an oversight. He said that the company had located a copy of the contract which they believe Mr Liepinaitis put his name on and for this reason they believe he got a contract. He said that while he could not speak for the MD, but he does not accept that he shouted at the complainants. The MD is not involved in the day to day running of the business and only attended the premises in the evening time and therefore he would rarely be there when the complainants were working. He said that he never heard MD using abusive language.
5.2 In relation to the dismissal, the Administrative Superintendent said that there was a dramatic decrease in the turnover of the business in 2008 and 2009. The company have now reduced its staff numbers from 70 to 40 and between 4th of February 2009 and the 31st of July 2009 a total of 20 employees were made redundant. Of this group, 8 were general assistants (including the complainants), 10 bar staff, 1 chef and 1 waiter and they were from Lithuania Poland Spain and Ireland. The staff were let go on the basis of last in first out. In late 2008 and again in 2009 the company notified all the employees of the downturn in the business
5.3 The respondent's representative submitted that the complainant have failed to establish a prima facie case. The fact that the complainants may not have received a contract of employment due to an administrative oversight is not sufficient evidence to establish discrimination on the race ground. She further submitted, in relation to the complaint about harassment, that the complainants had not made out a complaint of discriminatory treatment and in addition the employer could not deal with the matter if it did happen in that they made no complaints under the company policy which had been provided to them. In relation to the dismissal, she submitted that the company suffered a downturn in business and the redundancy programme was implemented on a last in first out and the complainants were selected on this basis.
6. Conclusions of the Equality Officer
6.1 The issues for decision in this case is whether or not the respondent discriminated against the complainants on the grounds of race , in terms of section 6(1) and 6(2)(h) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts as regards their conditions of employment and dismissal. I have also to consider whether they were harassed contrary to section 14A.
Section 6 of the Acts inter alia provides:
6. -- (1) "For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
discrimination shall be taken to occur where --
(a) 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) (in this
Act referred to as the ''discriminatory grounds'') which --
(2) As between any 2 persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are --
(h) that they are of different race, colour, nationality or ethnic
or national origins (in this Act referred to as ''the ground
of race''),"
and Section 8 provides
" In relation to -- (b) conditions of employment, .................
an employer shall not discriminate against an employee or prospective
employee and a provider of agency work shall not discriminate
against an agency worker.
(4) A person who is an employer shall not, in relation to
employees or employment --
(a) have rules or instructions which would result in discrimination
against an employee or class of employees in
relation to any of the matters specified in paragraphs (b)
to (e) of subsection (1), or
.....................
(b) otherwise apply or operate a practice which results or would
be likely to result in any such discrimination.
............................
(6) Without prejudice to the generality of subsection (1), an
employer shall be taken to discriminate against an employee or prospective
employee in relation to conditions of employment if, on any
of the discriminatory grounds, the employer does not offer or afford
to that employee or prospective employee or to a class of persons of
whom he or she is one --
.........................
(b) the same working conditions, and
(c) the same treatment in relation to overtime, shift work, short
time, transfers, lay-offs, redundancies, dismissals and disciplinary
measures,"
Section 85A of the Acts provides:
"(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary".
6.2 This requires the Complainants to prove the primary facts upon which they are seeking to rely on to raise an inference of discrimination. It is only when they have discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainants do not discharge the initial probative burden required of them their cases cannot succeed.
In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
6.3 Firstly, I will consider the issues that have been raised by the complainants in relation to their conditions of employment which they contend constitute unlawful discrimination on the grounds of race contrary to the Acts. The complainants submitted that the respondent failed to provide either of them with a contract of employment and therefore this is less favourable treatment on the race ground. The respondent submitted that all of their employees including the complainants were given contracts of employment when they started work. I note that in evidence that the respondents produced a contract of employment with Mr. Leipinaitis name on it. I am of the view that the writing on the document is similar to that of the complainant's and I have therefore concluded that he was given the document when he commenced employment with the respondent. As it was the practice of the respondent to provide contracts to all of their employees, I accept that it is more than likely that Mr. Filipovs also got one too. I note that the complainants could not say if any of the other employees were provided with contracts.
6.4 I find therefore that the complainants have not adduced any facts from which discrimination could be inferred. They have made a number of allegations about discrimination in relation to not receiving contracts of employment which have not been backed up by any facts. The Labour Court, in examining the circumstances in which the probative burden of proof applies held in the case Melbury Developments and Valpeters (Det. No. EA AO917) as follows:
"Section 85A of the Act 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 applying the above reasoning of the Labour Court to the case herein, in relation to the provision of a written contract of employment, the complainants have been unable to show that they were treated any different to the other employees.
6.5 The next matter I have to consider is whether the complainants were harassed on the race ground in relation to their conditions of employment. (7)(a) "any form of unwanted conduct related to any of the discriminatory grounds, and........
(b) being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person."
The Act goes on to give examples of unwanted conduct and states:
(c) "Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material."
The Labour Court in the case of, Nail Zone Ltd and A Worker Determination No.
EDA1023, defined the law in relation to harassment as follows:
"The essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. This suggests a subjective test and if the impugned conduct had the effect referred to at paragraph (b) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the Complainant, it constitutes harassment for the purpose of the Acts."
The complainants' case is that MD shouted at them and Mr. Liepinaitis submitted that MD used bad language towards him and threatened him on one occasion. They submitted that they were treated differently to Irish employees in that MD did not shout at them or use bad language. The respondent's case is that MD rarely encountered the complainants. MD did not give evidence.
In considering the evidence presented, I found the complainants evidence in relation to this aspect of their complaint less than compelling. In applying the test to establish harassment, I am satisfied that the complainants have failed to establish that they were subjected to an environment which was either intimidating, hostile, degrading or offensive. Therefore I find that the complainants have not raised an inference of discrimination in relation to harassment. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this aspect of their complaints.
6.6 I am now turning to the complaint of discriminatory dismissal. The complainants both state that they were dismissed without sufficient reason and without notice while they were out on sick leave. The respondent's case is that the complainants were made redundant along with about twenty other employees over the period February 2009 to July 2009 because of a downturn in business. I am satisfied from the evidence produced by the respondent that the employees selected for the redundancy programme were selected on the basis of last in first out. I also note that the employees who were made redundant, both before and after the complainants, were of different nationalities including Irish to the complainants. I am satisfied therefore that the complainants have failed to establish that they were treated less favourably than Irish employees or persons of different nationalities in relation to selection for redundancy. I find that the complainants have failed to establish a prima facie case in relation to this aspect of their complaints.
7. Decision
7.1 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 complainants on the race ground pursuant to sections 6(1) and 6(2)(h) and contrary to section 8(1) and 14A of the Acts in terms of conditions of employment and harassment.
(ii) I find that the respondent did not discriminatorily dismiss the complainants on the race ground contrary to Section 8(6) of the Acts.
_________________________
Marian Duffy
Equality Officer
18th August 2011