Equality Officer's Decision No: DEC-E/2011/016
Parties
Chasi
(Represented by Carley & Connellan - Solicitors)
And
J & I Security Ltd
File No: EE/2008/032
Date of issue: 1 February, 2011
Headnotes: Employment Equality Acts, 1998- 2007 - sections 6,8 & 14A - race- discriminatory treatment - conditions of employment -harassment - prima facie case
1. DISPUTE
This dispute involves a claim by Mr. Tineyi Chasi, who is a black Zimbabwean national, that he (i) was discriminated against by the respondent in respect of his conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 -2007 and contrary to section 8 of those Acts, (ii) was dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998- 2007 and contrary to section 8 of those Acts, (iii) was harassed by the respondent on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 -2007 and contrary to section 14A of those Acts and (iv) performed "like work" with other employees of a different nationality and colour to him in terms of section 7 of the Employment Equality Acts, 1998-2007 and he is therefore entitled to the same rate of remuneration as paid by the respondent to that employee in accordance with section 29 of the Acts.
2. BACKGROUND
2.1 The complainant was employed by the respondent as a Security Operative between December, 2002 and June, 2007, when he contends his employment was terminated in circumstances amounting to discrimination on grounds of race (nationality and colour) contrary to the Employment Equality Acts, 1998-2007. He further contends that during his period of employment he was treated less favourably by the respondent as regards his conditions of employment and was harassed by the respondent contrary to the Acts. Finally, he contends that he performed "like work" with other employees of the respondent and he is therefore entitled to the same rate(s) of remuneration as paid to those employees by the respondent in accordance with the Acts. All elements of complaint are advanced on the ground of race - that the complainant is a black Zimbabwean national.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 -2007 to the Equality Tribunal on 29 January, 2008. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, 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 20 July, 2010 - the date the complaint was delegated to me. The parties were informed in writing (by letter dated 26 July, 2010) that the Hearing on the complaint would take place at the Tribunal's Office in Dublin on 14 October, 2010. This correspondence was sent by registered post. The complainant's representative notified the Tribunal (by letter dated 27 July, 2010) that she was unavailable on that date due to annual leave and requested an adjournment. In the circumstances I granted the adjournment sought and rescheduled the Hearing for 10 December, 2010 at the same location. The Hearing arrangements were again communicated to the parties in writing and the correspondence was sent by registered post. I am satisfied that both of the aforementioned letters were received by the respondent at the address furnished by the complainant on his original referral form and therefore the respondent was on notice of the Hearing arrangements. The Hearing proceeded on 10 December, 2010 as scheduled. The respondent was neither present nor represented at the Hearing. The only correspondence received by this Tribunal from the respondent was a letter dated 11 August, 2010 advising that the complainant never worked for it. At the outset of the Hearing the complainant's legal representative withdrew the dismissal and equal pay elements of his complaint.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is a black Zimbabwean national, was employed by the respondent as a Security Operative between December, 2002 and June, 2007. He states that during this period he worked in building sites at several locations around Dublin, the last of which was in Tallaght. He further states that from the beginning of his employment he was subjected to discriminatory treatment in that he was assigned (twelve hour) night shifts by the company owner, Mr. R. He adds that from the outset Mr. R also assigned him long weekend shifts, which required him working twenty-six continuous hours without rest. Consequently, he worked between 70-80 hours per week from the beginning of his employment with the respondent. The complainant states that he was reluctant to raise this matter with his employer because he needed the job and he continued to work those hours for several months. He adds that when he was unable to continue because of the effects his working schedule was having on him he raised this issue with Mr. R, he (Mr. R) used foul and abusive language at him, threatened him with dismissal and he (the complainant) was assigned only 2/3 shifts the next week. The complainant adds that he received a text or call from Mr. R each day advising him of his hours and location of work for the following day - no weekly roster was given to him or to the other Zimbabwean employees. He was unable to say if the Irish employees were treated in a different manner, although he suspects that they were. The complainant states that this attendance pattern was regular - he worked 70-80 hours per week three weeks out of every month - the last week was normally 2/3 shifts until his employment ceased. In the course of the Hearing the complainant stated that during his period of employment the respondent employed approximately forty other employees on the sites where he was located - Irish, Russian and Zimbabwean. He adds that no Irish employees were assigned night shifts and that whilst they worked some weekend shifts it was only during daytime and never for the same duration as him. The complainant states that the long working hour regimes were exclusively assigned to the black Zimbabwean employees - and it submitted on his behalf that this constitutes less favourable treatment of him contrary to the Acts.
3.2 The complainant's representative states that his (the complainant's) employment is governed by the Security Industry JLC. The complainant states that the respondent failed to apply the terms of this JLC to him as regards the rates of pay, shift allowance and overtime rates and it is submitted on his behalf that this treatment constitutes discrimination of the complainant on grounds of race contrary to the Acts. In the course of the Hearing the complainant stated that he knew a number of black Zimbabwean colleagues who were treated in a similar fashion but was unable to say if those terms were applied to Irish employees. He adds however, that in May, 2007 an Irish colleague (details supplied) asked him to pick up his salary from the respondent's Office as a favour to him. The complainant states that he did so and was handed two envelopes for this employee. He adds that one of the envelopes stated that it was that employee's holiday pay. The complainant adds that the front of these envelopes also detailed that employee's gross pay, deductions and net pay and states it was clear to him (the complainant) that this employee was being paid more than him, although the employee was only working there six months. The complainant adds that when he raised this matter with Mr. R he (Mr. R) resorted to using foul and abusive language at him. The complainant asserts that this employee was being paid the JLC rates, that the respondent did not pay those rates to him and that this failure of the respondent constitutes less favourable treatment of him contrary to the Acts.
3.3 The complainant states that he during his period of employment he never received paid holidays from the respondent. He states that on the many occasions he raised this matter with Mr. R he responded using foul and abusive language and threatened to dismiss the complainant if he pursued the matter. The complainant states that Irish employees received holidays and relies on the events outlined in the preceding paragraph in support of this assertion and his contention that Irish employees were paid for their holiday entitlements. The complainant further states that he was scheduled to receive his salary cheque every Thursday but the respondent regularly failed to pay him on time - sometimes being three or more days late in doing so. In the course of the Hearing the complainant was unable to say if other employees, in particular the Irish employees, were treated in a different fashion. It is submitted on the complainant's behalf that the aforementioned treatment constitutes discrimination of him on grounds of race contrary to the Acts.
3.4 The complainant states that sometime during winter 2006 he was working at a site in Hanover Quay, Dublin. He adds that he was working with a Russian colleague that evening - the first and only occasion he worked with a white employee. He adds that this employee handed him his mobile phone and showed him the contents of a text he had received . The complainant states that this text was from Mr. R (he recognised his number) and adds that the text read "Remember you are working with a black guy, you will have to watch him". The complainant adds that he felt humiliated by this text as it suggested he was an untrustworthy person because he was black. The complainant adds that subsequent to this Mr. R called him a "black fag" in the course of a telephone conversation. He adds that Mr. R spoke to him and other black employees in such derogatory terms on a regular basis. It submitted on the complainant's behalf that these incidents constitute harassment of him contrary to the Acts. The complainant states that the respondent had no grievance procedure or policy on harassment at the time.
SUMMARY OF RESPONDENT'S CASE
The respondent neither attended the Hearing nor was it represented at same.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me is whether or not (i) the complainant was employed by the respondent at the relevant time, (ii) the respondent discriminated against the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts as regards his conditions of employment and (iii) the respondent harassed the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 14A 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.
5.2 Whilst the respondent neither attended the Hearing nor was represented at it, I had received a letter from it dated 11 August, 2010 asserting that it never employed the complainant. Consequently, the first thing I must decide is whether or not the complainant was employed by the respondent at the relevant time. The complainant provided me with several payslips covering the period when he asserts he was employed by the respondent. These payslips contain, inter alia, the complainant's name, PPS Number and the name of the employer - J&I Security Ltd. I find therefore that the complainant was employed by the respondent during the relevant period and consequently he is entitled to maintain his complaint before this Tribunal.
5.3 Section 6(1) of the Employment Equality Acts, 1998 - 2007 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) 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 either his nationality or colour i.e. because his is a black Zimbabwean.
5.4 Section 85A of the Employment Equality Acts 1998 - 2007 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. 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.
5.5 In Melbury Developments v Arturs Valpetterst the Labour Court, whilst examining the circumstances in which the 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 The first element of the complainant's claim concerns as assertion that from the beginning of his employment he was assigned long nightshifts and was also assigned excessive shifts at the weekends, sometimes stretching for twenty-six consecutive hours. He adds that he performed these shifts for several months because he needed the job but when the excessive hours began to take a toll on him he raised the matter with Mr. R. The complainant states that Mr. R's response was to use foul and abusive language at him, threaten him with dismissal and he (the complainant) was not assigned the same amount of shifts the next week. He adds that these attendance patterns were exclusively assigned to him and his black Zimbabwean colleagues - the Irish employees were only assigned day shifts, including at the weekend. The complainant gave his evidence in a clear and forthright manner and I found him to be a credible and convincing witness. In particular, he did not seek to embellish his evidence in circumstances where he was aware the respondent was not in attendance to contradict or challenge same and replied that he did not know what happened with other employees on a number of occasions. I am satisfied that his evidence on this matter represents an accurate account of the impugned events and he has established a prima facie case of discrimination in respect of this element of his complaint. The burden therefore shifts to the respondent to rebut the inference of discrimination raised and as a result of its non-attendance at the Hearing it has failed to do so. Consequently, the complainant is entitled to succeed with this element of his complaint.
5.7 The complainant states that the respondent failed to apply the terms of the JLC for the Security Industry to him as regards the rates of pay, shift allowance and overtime rates and it is submitted that this constitutes discrimination of him on grounds of race contrary to the Acts. He further states that he knew a number of black Zimbabwean colleagues who were treated in a similar fashion but was unable to say if those terms were applied to Irish employees. In support of this assertion he recounts an incident in May, 2007 when he collected an Irish colleague's salary as a favour to him and was handed an envelope from the respondent which indicated to him (the complainant) that this employee was being paid more than him. Whilst I accept that this may be the case in terms of net pay, I am not satisfied it necessarily follows that the employee's gross pay was higher than the complainant's. In addition, I note the complainant stated at the Hearing that his hourly rate of pay was €9.57 - this was the appropriate rate for someone of his experience as per the JLC at that time. In the circumstances I find that the complainant has failed to establish facts from which less favourable treatment can be inferred in respect of this element of his complaint. I have reached a similar conclusion in relation to the complainant's assertion that the respondent discriminated against him in respect of the delay in giving him his salary cheque.
5.8 The complainant states that he during his period of employment he never received paid holidays from the respondent. He adds that on the many occasions he raised this issue with Mr. R he (Mr. R) responded using foul and abusive language and threatened to dismiss him if he pursued the matter. The complainant relies on the events outlined in the previous paragraph - the occasion he collected a colleague's salary in May, 2007 - in support of his contention on this issue. He states that in addition to an envelope containing that Irish colleague's salary he was also handed an envelope for that colleague which was clearly marked holiday pay. As I stated above I found the complainant to be a credible and convincing witness and I am satisfied that the complainant's uncontested evidence is sufficient to establish a prima facie case of discrimination on this element of his complaint. The respondent has failed to rebut that inference so raised and it follows therefore that the complainant is entitled to succeed in this element of his complaint.
5.9 Section 14A of the Employment Equality Acts, 1998-2007 defines harassment as follows:
"...any form of unwanted conduct related to any of the discriminatory grounds ....
being conduct which has ... the purpose of effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person."
The complainant states that Mr. R used foul and abusive language to him on a constant basis during which he used what the complainant described as derogatory terms. He gave two examples of incidents that he specifically recalled. I accept the complainant's evidence on this issue and I am satisfied that the conduct of Mr. R falls within the definition of harassment set out above on the basis of the complainant's colour. Section 14A of the Acts also provides that harassment occurs when the unwanted conduct is perpetrated by one's employer. Accordingly, the behaviour of Mr. R is covered by the Acts. In light of the foregoing I find that the complainant was harassed on grounds of race contrary to the Employment Equality Acts, 1998-2007. The respondent's failure to attend at the Hearing means that it cannot avail of the defence provided at section 14A(2) of those Acts and the complainant is therefore entitled to succeed in respect of this element of his complaint.
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 find -
(i) that the complainant has failed to establish a prima facie case of discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 -2007 and contrary to section 8 of those Acts in respect of those aspects of his conditions of employment connected with the application to him by the respondent of certain aspects of the JLC for the Security Industry and the manner in which he received his weekly salary cheque,
(ii) that the respondent discriminated against the complainant on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 -2007 and contrary to section 8 of those Acts in respect of those aspects of his conditions of employment connected with the excessive shifts and hours he was assigned and the failure of the respondent to pay him holiday pay, and
(iii) that the respondent harassed the complainant on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 -2007 and contrary to section 14A of those Acts.
6.2 In assessing the appropriate quantum of redress I am mindful that I am required by the jurisprudence of the European Court of Justice to ensure that the remedies in discrimination cases are "proportionate, effective and dissuasive". The complainant was subjected to unlawful treatment by the respondent for the entire four and a half years' of his employment. This unlawful treatment was conducted by Mr. R, the owner of the respondent and is therefore all the more distressful for the complainant as he had no avenue in which to air a formal complaint, had he wished to do so. When the complainant raised concerns with Mr. R about his treatment of him he (Mr. R) threatened him with dismissal. In addition, the respondent impugned the complainant's character when it informed this Tribunal that the complainant was not employed by it - in circumstances where that clearly was untrue and also suggested to a colleague that he was untrustworthy - again without justification. I am satisfied that my award must reflect these factors and in accordance with my powers under section 82 of the Employment Equality Acts, 1998-2008 I order that the respondent pay the complainant the sum of €25,000 by way of compensation for the distress suffered by him as a result of this discrimination and harassment. This award is not in the form of remuneration and is therefore no subject to the PAYE/PRSI Code.
_______________________________________
Vivian Jackson
Equality Officer
1 February, 2011