The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2010-018
PARTIES
Viktors Aleksandrovs, Valerijs Haritonovs, Aleksandrs Cakss, Renars Aleksejevs and Pavels Pleckans
(Represented by Richard Grogan & Associates)
AND
W. Wilm Limited (in voluntary liquidation)
(Liquidator Paul McCann of Grant Thornton)
File reference: EE/2007/235
Date of issue: 2 February 2011
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 and 8 - Race - Conditions of employment and discriminatory dismissal.
1. DISPUTE
1.1 This dispute concerns claims by Mr Viktors Aleksandrovs, Mr Valerijs Haritonovs, Mr Aleksandrs Cakss, Mr Renars Aleksejevs and Mr Pavels Pleckans that they were discriminated against by W. Wilm Limited on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts 1998-2008 in relation to training, conditions of employment, other and discriminatory dismissal in terms of sections 8 of the Acts.
1.2 The complainants referred their claims to the Director of the Equality Tribunal on 11 May 2007 under the Employment Equality Acts 1998 and 2004. On 20 July 2010, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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 received from the complainants. Since the claims were made the respondent had gone into voluntary liquidation and Paul McCann of Grant Thornton appointed as Liquidator. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing. A first hearing for Viktors Aleksandrovs, Valerijs Haritonovs, Aleksandrs Cakss and Pavels Pleckans was held on 27 August 2010 and a hearing for Renars Aleksejevs was held on 5 October 2010. The respondent did not engage with the Tribunal and the Liquidator gave notice in advance that he would not be attending the hearing.
2. COMPLAINANTS' SUBMISSION
2.1 At the hearings the complainants' representative withdrew all aspects of the complaints apart from conditions of employment and discriminatory dismissal in relation to all the complainants.
2.2 All the complainants made similar claims in relation to their conditions of employment, that the respondent:
did not give them a contract of employment
did not provide them with a health and safety statement
did not pay them in accordance with the Registered Employment Agreement (REA) for the Construction Industry
did not join them into a union as required by the REA
did not join them into the Construction Workers Pension and Sick Pay Scheme
did not provide them with payslips
2.3 The complainants submit that an Irish worker would have been aware of their rights and would not have been treated in the same way. Therefore the respondent put the complainants, who are Latvian, in a vulnerable position. Accordingly they submit that the correct comparator would be a notional comparator who would have been aware of their rights.
2.4 Viktors Aleksandrovs submits that he worked for the respondent from 1 July 2006 until 6 February 2007 when he was dismissed without any procedures. He was not given a P60 or P45. He submits that the environment in the workplace was intimidating hostile, degrading and offensive.
2.5 Valerijs Haritonovs submits that he worked for the respondent from 14 July 2006 until 14 December 2006 when he had a heart attack. He received no sick pay, to which he should have been entitled under the CWPS Pension and Sick Pay Scheme. He submits that his treatment amounted to harassment and discriminatory dismissal without any procedures.
2.6 Aleksandrs Cakss, Renars Aleksejevs and Pavels Pleckans submit that they worked for the respondent from August 2006 until 6 February 2007 when they were dismissed without procedures. They submit that the environment in the workplace was intimidating hostile, degrading and offensive.
3. RESPONDENT'S SUBMISSION
3.1 The respondent did not make a submission to the Equality Tribunal. However, on 24 May 2007, shortly after the Tribunal had received the claims and had written to the respondent accordingly, the respondent wrote to the complainants' representative and made the following responses.
3.2 The respondent is a German company and all employees in Ireland were foreign nationals. All employees were given the same terms and conditions of employment. When the respondent became aware that the complainants had to pay an agency a fee of €500 to take up the job they stopped using the agency.
3.3 Viktors Alexsandrovs was not dismissed. He went for his Christmas holidays and did not return. He made no attempt to contact the respondent.
3.4 Pavels Pleckans was only employed for 10 weeks. His attendance was irregular. He was given three warnings.
3.5 Renars Aleksejevs and Aleksandrs Cakss were involved in a serious breach of health and safety rules. Consequently the respondent lost the contract they were working on. There were no further contracts to which they could be moved
3.6 Valerijs Haritonovs was visited in hospital by the foreman and it was agreed that he would come back to work when he was fit to do so. He did return on light duties but unfortunately this was the time when the contract was lost and there was not enough work to go around.
3.7 Shortly afterwards, due to loss of contracts and no new contracts, all remaining staff were laid off.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainants were discriminated against in relation to their conditions of employment and if they were dismissed in a discriminatory manner. 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.
4.2 Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "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." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. Further, in a recent Determination the Labour Court¹, 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 is in 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."
4.3 The respondent is in voluntary liquidation and chose not to engage with the Equality Tribunal. The only available evidence from the respondent is the letter they sent to the complainants' representative shortly after they became aware the these claims had been made to the Equality Tribunal. I was unable to question the respondent on its' contents at the hearing but I was able to question the complainants on its' contents. I therefore consider it fair for me take into account the information in the respondent's letter and give it appropriate weight as evidence.
Conditions of Employment
4.4 The complainants all contended that the respondent's non-compliance with the REA and the other elements regarding their conditions of employment amount to discrimination because they were unaware of their rights and as foreign nationals they were particularly vulnerable. The respondent confirmed that none of their employees were Irish, they were all treated the same and there was foreman who spoke their own language and could have explained anything to them, therefore they contended there was no discrimination in relation to their conditions of employment on the ground of their race. The complainants agreed that none of the other employees were Irish. They contended that the other employees who were Polish or German were generally treated better and got easier work than them. However, they adduced no evidence regarding their treatment as compared to any other employee in relation to their conditions of employment claims and relied on a hypothetical comparator. I conclude that the complainants could have sought to ascertain how other employees of different nationalities were treated. As the complainants have provided no evidence of any different treatment I find that they have been unable to establish facts to demonstrate a prima facie of discrimination in relation to their conditions of employment.
Dismissals
4.5 Viktor Aleksandrovs stated at the hearing that his Christmas break had been agreed beforehand and he came straight back when he was due. He tried to contact the "boss" but was unable to do so. A colleague told him there was no work. Taking into account the evidence given I find it implausible that the complainant was unable to make direct contact with the respondent and relied on a colleague to tell him that the company had no work for him. In these circumstances the explanation given in the respondent's letter sound plausible. I find that the complainant has been unable to establish a prima facie case of discriminatory dismissal.
4.6 Valerijs Haritonovs contends he suffered discriminatory dismissal because the respondent had no work for him when he was fit to return to work after a period of illness. Aleksandrs Cakss, Renars Aleksejevs and Pavels Pleckans contended that they were dismissed for no good reason when other employees were kept on. At the hearing they gave evidence that those kept on were longer term employees. This evidence, plus the information in the respondent's letter that the company lost a number of contracts and they had no new contracts, leads me to conclude that the four complainants were let go because of a downturn in work and they have adduced no evidence that this was done in a discriminatory manner based on their race.
5. DECISION
I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
the respondent did not discriminate against the complainants in relation to their conditions of employment
that the respondent did not dismiss the complainants in a discriminatory manner.
____________________
Hugh Lonsdale
Equality Officer
2 February 2011
¹ Labour Court Determination Arturs Valpeters v Melbury Developments Ltd EDA0917 [2010] 21 E.L.R