THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 022
PARTIES
Remigiusz Tomanek
(Represented by Richard Grogan & Associates)
and
Keegan Quarries Ltd.
(Represented by Coughlan, White & O' Toole Solicitors)
Date of issue: 11 February 2011 File reference: EE/2008/637
Headnotes: Employment Equality Acts, 1998-2007 - sections 6,8, 74 and 77 - race- employment status - conditions of employment - prima facie case - discriminatory dismissal - burden of proof- victimisation.
1. DISPUTE
This dispute involves a claim by Mr. Remigiusz Tomanek who is a Polish national, that he was (i) 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 and (ii) 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 77 of those Acts and (iii) that he was victimised as a result of making a complaint regarding the alleged discriminatory treatment in terms of section 74 (2) of the Acts.
2. BACKGROUND
2.1 The complainant states that he was employed by the respondent from 23 April 2007 until 14 July 2008. He further states that during his period of employment, he was treated less favourably as regards his conditions of employment and was dismissed by the respondent in circumstances amounting to discrimination on grounds of race (Polish nationality) contrary to the Acts. He further states that he was victimised as a result of issuing proceedings under the employment equality legislation.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2007 to the Equality Tribunal on 29 September, 2008. In accordance with his powers under the Acts, the Director delegated the complaint to the undersigned - Valerie Murtagh, 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 29 December, 2010 the date the complaint was delegated to me. Submissions were received on behalf of both parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 28 January, 2011. The complainant withdrew the discriminatory dismissal element of his complaint at the hearing.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is a Polish national, states that he commenced employment with the respondent on 23 April 2007 as a truck driver. He states that he was required to work an average of 65 hours per week. He states that he received a written contract of employment in English but he could not understand it. He also states that while he received a copy of the health and safety documentation in English, he was not able to understand same except for the most basic issues. He states that he had an accident where his lorry overturned on 10 July, 2008 and states that his boss dismissed him because of the accident and stated that he had smiled when talking to another driver about the incident. The complainant states that it was not a serious accident and the damage to the truck was negligible. The complainant states that Irish drivers did not have to work the same number of hours as was requested of him. He states that he did not receive a written contract of employment or health and safety documentation in a language he could understand and contends that this constitutes unlawful discrimination of him on grounds of race contrary to the Acts. He submits that following the Decision of this Tribunal in 58 Complainants v Good Concrete there is an obligation on the employer to provide employees with a contract of employment in a language which they understand.
3.2 The complainant also asserts that he received no documentation regarding the grievance and disciplinary procedures. It is submitted on his behalf that the respondent's action constitute less favourable treatment of him on grounds of race, contrary to the Acts. The complainant is also claiming that he was victimised by the respondent as a result of making a complaint of alleged discriminatory treatment under the employment equality legislation. He states that district court proceedings were served on him by the respondent's solicitors, two years following his dismissal on 27 August 2010 with regard to a claim for recovery of costs of €4500 which was the excess on the insurance policy arising from the accident on 10 July, 2008 when his truck overturned. The complainant's representative states that the complainant received no letters of warning regarding disciplinary matters and even if he did, he would not be in a position to understand them due to his lack of proficiency in English. It should be noted that the complainant has taken the dismissal element of his complaint to the Employment Appeals Tribunal and his representative has withdrawn the discriminatory dismissal element in relation to the employment equality legislation.
SUMMARY OF RESPONDENT'S CASE
4.1 The respondent states that the complainant was employed as a truck driver on 23 April, 2007. It states that they had circa 60 drivers in 2007, 65 per cent of which comprised non Irish national employees most of which were Eastern Europeans. The respondent states that all employees received a contract of employment and health and safety documentation. The respondent states that these documents were in English. The respondent submits that the complainant's manager went through the contents and explained the contract in detail to him. The respondent further submits that the complainant had the contract for one month before signing and returning it to his manager. The respondent submitted a signed copy to the Tribunal. The respondent also states that the company arranged for him to attend a safe pass course on 18 August 2007 and his manager had a detailed 'one on one' induction and training session on health and safety issues with him on 1 September 2007. The respondent has submitted a signed copy of the induction training regarding health and safety requirements provided to the complainant.
4.2 The respondent submits that the complainant was subject to three written warnings in relation to his conduct during his employment. The first incident related to an incident in Dublin Airport where the complainant was stopped by Gardaí carrying out a routine check. The respondent states that the complainant was found to be carrying an 8 inch dagger while making deliveries to the airside at Dublin Airport. As a consequence, the Gardaí requested the respondent not to allow the complainant make any further deliveries to this location given the seriousness of the matter. The respondent stated that this incident had huge ramifications for it as a company as this contract was prestigious for them and related to the new terminal in Dublin Airport. It had an adverse effect on rostering arrangements as the respondent's contractor stated that under no circumstances was the complainant to be involved in deliveries to the Airport again and it reduced the flexibility in terms of the work that could be given to the complainant. The complainant received a written warning dated 26 September 2007 regarding his behaviour and was advised that any repeat of this incident would lead to dismissal. A copy of this letter was submitted to the Tribunal.
4.3 The respondent issued the complainant with a further letter of warning on 27 February, 2008 where the complainant damaged a tyre through negligence which cost €300 to repair. The respondent stated in the letter that it would not deduct the cost of the damage on this occasion from his wages but if a similar incident happened in the future, he would be liable for the costs. The complainant was issued with a further letter of warning on 1 May, 2008 where the complainant had left a site in Kingscourt without properly securing/tying down the load and a member of the public rang the respondent's number which was on side of the truck to inform them. The respondent states that it had to send an employee out immediately and the employee in question confirmed that the load was not properly secured and he had to secure it for the complainant. The respondent states that on the same day, the complainant pulled down a live electricity wire in Slane village through negligent driving and it cost the respondent €2500 to repair same. The letter of warning highlighted the earlier incidents and stated that any further incidence of poor driving would lead to instant dismissal. A copy of the letter was submitted to the Tribunal.
4.4 The respondent states that a further incident happened on 10 July, 2008 when the complainant was driving a ready-mix lorry along a straight road and overturned the lorry. The respondent asserts that it required two cranes to set the lorry upright and it had to be towed back to the depot. The respondent states that the complainant was caught pointing out the damage to a colleague while laughing about the incident. The respondent further states that the managing director of the company dismissed the complainant on 10 July, 2008 as a result of the seriousness of the incident and the fact that he had received three earlier warnings regarding other incidents. The respondent also states that it cost the company €24,500 to repair the damage done to the lorry.
4.5 In relation to the complainant's claim of victimisation, the respondent states that the settlement with the insurance company was reached on 25 August, 2008. The respondent subsequently sent a letter by registered post regarding the matter to the complainant's address in Blackwater Abbey and called in person to the address but the complainant had left the address by then. Subsequently on 4 June 2010, a set of district court proceedings issued and were served on the complainant on 27 August 2010 at a Rights Commissioner hearing in the Ardboyne Hotel, Navan, Co. Meath for recovery of €4500 which was the excess on the insurance policy. The respondent states that they are well within their rights to recover the costs on the excess as the complainant's contract of employment states that "drivers who are found to have caused an accident to any property or person through negligence will be held liable for the excess imposed on the company's insurance". The respondent refutes the allegation of victimisation and states that it is entitled to seek recovery of costs relating to the excess of the insurance policy given the substantial damage caused. The respondent also asserts that a former driver with the company was reversing into a gateway and knocked down a pier and was liable for the costs of €600 to repair the damage which was deducted from his salary in instalments of €200 over three weeks.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me is whether or not the respondent (i) 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 (ii) if the complainant was victimised as result of making a complaint under the Employment Equality Acts, 1998 - 2007 in terms of section 74 (2) 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 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 nationality i.e. because he is Polish.
5.3 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.
Conditions of Employment
5.4 The first issue raised by the complainant relates to the respondent's alleged failure to furnish the complainant with a written contract of employment in a language he could understand. In the first instance, it should be noted that there is no general obligation on an employer to provide an employee with a written contract of employment. There is however, a statutory requirement on employers to provide employees with a written statement of certain terms of their employment under the Terms of Employment (Information) Act, 1994. Enforcement of rights under this statute rests with the Rights Commissioner (at first instance) and not this Tribunal.
5.5 In a recent Determination the Labour Court, 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 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."
In the instant case, I am not satisfied that the complainant has adduced evidence from which a prima facie case of discrimination in respect of the failure of the respondent to provide him with a written contract of employment in his own language. I note that the complainant did receive a copy of his contract of employment and this document was signed by him. In addition, given the testimony of the respondent in relation to the complainant's manager going through the contents and explaining the contract in detail to him, I am of the view that the complainant did understand his terms and conditions of employment. In the instant case, I am not satisfied that the complainant has adduced evidence from which a prima facie case of discrimination in respect of the failure of the respondent to provide him with a written contract of employment in a language he could understand or other documentation could be inferred.
5.6 The next element of the complainant's claim concerns the alleged failure of the respondent to provide the complainant with the appropriate health and safety training and documentation in a language he could understand. The respondent produced evidence which clearly demonstrated that it did provide health and safety training including the setting up of a safe pass training course on 18 August, 2008. The complainant states in his evidence that there was a Polish interpreter at the safe pass training course to assist Eastern European employees with any interpretation issues. Having evaluated all the evidence advanced by the parties on this issue, I am not satisfied that the complainant has established a prima facie case of discrimination.
Victimisation
5.7 Although the legal representative on behalf of the complainant has withdrawn the discriminatory dismissal element of the complaint as this matter had been dealt with in another forum, I am of the view that it is necessary to examine the alleged disciplinary matters in the lead up to the dismissal in the context of the complaint of victimisation. The respondent states that it issued three written warnings to the complainant. The first incident related to him being caught by Gardaí with a knife described as an eight inch dagger near Dublin Airport. There was some confusion around the use of the knife; in the complainant's submission it was stated that the knife was used for cutting the ties holding down the loads and at the unfair dismissal's hearing it was stated that the knife was used for cutting food. The complainant's representative stated that the reason for this confusion related to an error regarding interpretation. At any rate, having heard both sides on this issue and given the garda involvement and the fact the contractor was unwilling to have the complainant carry out any driving duties in the vicinity of the Airport following this incident and the impact on rostering arrangements, I am of the view that this was a serious matter from the respondent's viewpoint. The respondent issued a letter of warning on 26 September 2007, however, the complainant states that he did not receive said letter. The complainant's representative states that even if he had received the letter it was of no use as the complainant would not understand it.
5.8 I questioned the complainant in relation to the incident regarding the tyre being damaged and he states that he has no recollection of this matter and that he did not receive a letter of warning regarding same. In relation to the incident near Slane village regarding the load not being secured down properly and the dragging down of a live electricity wire; he states that he had no extra ropes to tie the load down and as far as he was concerned there was not much damage to the cable wire and "it just had to be put back in place". The complainant states that he did not receive a written warning in relation to this matter. I questioned the complainant in relation to the incident involving the lorry overturning. He stated that it was not his fault as the road conditions were not good as it had been raining earlier in the day. He also states that there was a car coming on the other side and if he had not pulled over to the verge, there would have been a head on collision. I queried the length of time the complainant had being driving on the day of the accident and it was established that he had undertaken an hour to an hour and a quarter driving prior to the accident.
5.9 There is contradictory evidence put forward by the parties with regard to this incident, in that, the complainant states that when the cranes set the lorry upright, he drove the lorry back to the depot but the respondent states that the lorry was in such bad repair it had to be towed back to the depot. The complainant states that it was not a serious accident and the damage was negligible. I put it to the complainant that the cost to repair the vehicle was €24,500 and he replied that he did not think it would cost that much to repair the lorry. The complainant refutes the respondent's allegation that on return to the depot, he was laughing while talking to a colleague about the incident. Having evaluated all the evidence put forward by the parties on this matter, I find the evidence of the respondent more credible and compelling. The complainant states that he received no warnings, written or otherwise about the earlier incidents as mentioned above, however, the respondent has provided in evidence copies of three written warnings to the Tribunal. The respondent submits that its behaviour with regard to the dismissal in the circumstances was reasonable given the serious nature of the incidents in question and the cost implications for the company.
5.10 The complainant has made an allegation of victimisation stating that the district court proceedings regarding recovery of €4,500 in relation to the excess on the insurance policy were served on the complainant two years following his dismissal due to him instigating proceedings under the employment equality legislation. The complainant's legal representative states that these proceedings could have been served earlier as the respondent was aware that the complainant was represented by a solicitor. The respondent argues that it is a matter for the company as to how and when they institute civil proceedings and that they had made considerable efforts do so by registered post and calling out to the complainant's address but he had changed address and they could not identify an alternative address for him.
5.11 The respondent argues that it specifically states in the contract of employment "drivers who are found to have caused an accident to any property or person through negligence will be held liable for the excess imposed on the company's insurance". The respondent refutes the allegation of victimisation and states that it is entitled to seek recovery of costs relating to the excess of the insurance policy particularly given the substantial damage caused as in this case. The respondent also gave evidence in relation to a former driver with the company, who reversed into a gateway and knocked down a pier and was liable for the costs of €600 to repair the damage which was deducted from his salary in instalments of €200 over three weeks. I do not accept the complaint of victimisation. I am satisfied based on the evidence put forward in the written submissions and the oral evidence on the day of the hearing that the company is entitled to seek the excess on the insurance policy where the complainant is found to have caused damage to a vehicle through negligence. The fact that the district court proceedings were served in person to the complainant at a Rights Commissioner hearing in the Ardboyne Hotel rather than being served at an earlier date on the complainant's solicitor does not alter the situation that the respondent has an entitlement to seek the recovery of the excess on the insurance policy where the driver has been found to be acting negligently.
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 that the complainant has failed to establish a prima facie case of (i) 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 (i) his conditions of employment and (ii) that the complainant was not victimised by the respondent in terms of section 74 (2) of the Employment Equality Acts and his entire complaint must therefore fail.
_____________________
Valerie Murtagh
Equality Officer
11 February, 2011