The Equality Tribunal
Employment Equality Acts
Decision DEC-E2011-260
PARTIES
Michal Czyzycki
- V -
Mark Fegan, Apple Orchard Carpentry & Joinery
A.K.A Orchard Apple Carpentry & Joinery
A.K.A Apple Orchard Group
A.K.A Orchard Carpentry & Joinery
File reference: EE/2009/216
Date of issue: 22 December 2011
Keywords - Employment Equality Acts - Discriminatory Treatment - Race - Prima Facie case
1. DISPUTE
1.1 This dispute concerns a claim by Mr Michal Czyzycki that he was subjected to discriminatory treatment by Mark Fegan Apple Orchard Carpentry & Joinery on the grounds of his race in terms of Section 6(2) of the Employment Equality Acts and contrary to Section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 1 April 2009 under the Employment Equality Acts. On 27 June 2011, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. Submissions were sought from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 29 September 2011. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that he was employed by the respondent from September 2007 until 22 December 2008. The complainant is a Polish national and it is on the basis that he was treated less favourably than Irish nationals this complaint is being taken.
2.2 The complainant submitted that he was not provided with a written statement of the terms of his employment and that when he printed a sample and gave them to the Mr Fegan, he was derided in front of the foreman. Thereafter his representative contacted the respondent to request a written statement of annual leave, proper rates for overtime, travel time and other information but none was forthcoming. The complainant submitted that although other workers had on different employment relationships, e.g. some were employees while others were sub-contractors, all the workers of Irish nationality received everything they requested.
2.3 The complainant submitted that he was not given his holiday entitlements when employees of Irish nationality were so given, that he did not receive travel time credit/allowances like employees of Irish nationality and that he did not receive regular payslips or payments like employees of Irish nationality did.
2.4 The complainant submitted that although his tax and social welfare contributions were deducted from him, they were not paid over to the Revenue Commissioners, or the Department of Social Protection.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent did not engage with the Tribunal throughout the investigation of this matter.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent subjected Mr Czyzycki to discriminatory treatment on grounds of race, in terms of Section 6 and 14A of the Employment Equality Acts, and contrary to Section 8 of those Acts.
4.2 Section 85A of the Employment Equality Acts 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.
4.3 The respondent did not attend the hearing of this matter. The notification was sent by registered post and delivery was confirmed. Therefore, I was satisfied that the respondent was appropriately notified of the hearing of this complaint and I proceeded to hear the matter in the absence of the respondent. Notwithstanding the foregoing, it remains the case that the complainant must establish facts from which discrimination may be inferred.
4.4 The complained outlined his case, submitting copies of his payslips and provide a detailed commentary as to where the payslips were incorrect in terms of amounts paid, deducted or calculated and providing dates as to when he was paid his wages (up to ten days late on occasion). In relation to each act of alleged discrimination, the complainant provided the name or names of Irish national employees who were not treated in such a fashion.
4.5 The complainant was aware of the difference between employed and self-employed persons and pointed out to the tribunal where a named comparator was employed, self-employed or a sub-contractor. Examples of this relate to where the complainant indicated that he did not receive holiday pay, he then identified a number of employees who were in receipt of holiday pay and the circumstances of how he came upon this information; of those employees who received travel time and those who didn't; of how he was treated differently to Irish colleagues when he was let go, and in how he was treated differently in relation to the payment of his taxes and PRSI to the relevant authorities. This latter element is, to my mind, of particular significance as it put the complainant beyond the assistance of the authorities when he was laid off.
4.6 I am mindful of the decision of the Labour Court in the case of Melbury Developments Limited and Valpeters (ADE/09/16). In that case the Labour Court stated, inter alia, that:
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 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.
4.7 This case differs from the Melbury case referred to above, in that the complainant provided a great level of detail in oral testimony, supported by a large array of the documentation that he had in his possession or that he was able to obtain from a variety of official sources, and provided comment on that documentation and reasonable explanations when documentation was not available. In this regard, I am satisfied that he has established facts of such a sufficient significance as to raise a presumption of discrimination.
4.8 In addition, I found the complainant to be a credible witness, who gave further detail where possible and where requested, even when such detail undermined the case put forward on his behalf. His evidence was given without embellishment and in a concise manner. However, when probed the complainant was in a position to provide additional information or, when appropriate, indicated that he didn't know a particular answer. That he also supported his evidence with such written evidence as was possible for him to obtain serves to reinforce his credibility as a witness.
4.9 The complainant detailed the treatment he received during his employment from his employer and gave evidence that directly linked this treatment to his nationality and further indicated that his Irish national colleagues were not treated in the same manner. He provided specific figures stretching over six months of his employment highlighting the treatment meted out to him in support of his arguments and made reference to times and dates where specific Irish national employees were treated in a different fashion. The evidence given in relation to this aspect of the complaint was also credible. Accordingly, I consider that the complainant has established a credible link between the discriminatory treatment and the race ground.
4.9 Where a prima facie case has been established, the onus shifts to the respondent to rebut the inference of discrimination raised. As the respondent was not present at the hearing to rebut or address these issues, the discriminatory treatment element of the complaint succeeds.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the race ground has been established and this complaint is entitled to succeed.
5.2 In accordance with section 82 of the Acts I award the complainant €20,000 in compensation (approximately 34 weeks remuneration) for the discriminatory treatment suffered. As this does not include any element of remuneration, it is not subject to income tax.
Conor Stokes
Equality Officer
22 December 2011