THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 023
PARTIES
Artion Ivlev
(Represented by Richard Grogan & Associates)
and
MJS Civil Engineering Ltd.
Date of issue: 11 February 2011 File reference: EE/2008/119
Headnotes: Employment Equality Acts, 1998-2007 - sections 6,8 and 77 - race- employment status - conditions of employment - prima facie case - discriminatory dismissal - burden of proof.
1. DISPUTE
This dispute involves a claim by Mr. Artion Ivlev who is a Lithuanian 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 - 2008 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 - 2008 and which he brought under section 77 of those Acts.
2. BACKGROUND
2.1 The complainant states that he was employed by the respondent from 24 September 2007 until 14 December 2007 and for a further two weeks in January 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 (Lithuanian nationality) contrary to the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2007 to the Equality Tribunal on 26 February, 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.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is a Lithuanian national, states that he commenced employment with the respondent on 24 September, 2007. He submits that he was employed as a general operative on a construction site. He states that he did not receive a contract of employment or documentation relating to health and safety matters. He asserts that himself and a Greek national were dismissed around the same time. He states that he was dismissed just prior to the Christmas holidays and was then reengaged for two weeks in January, 2008. He contends that he was given no explanation as to why he was being dismissed. He asserts that he did not receive a written contract of employment or documentation/ training in relation to health and safety issues and contends that this constitutes unlawful discrimination of him on grounds of race contrary to the Acts.
3.2 The complainant states that the respondent failed to provide him with a health and safety statement or documentation in a language which he could understand. He further states that he received no health and safety training during his employment. He states that he found it difficult to get appropriate health and safety gear, for example, access to gloves when laying concrete and that he was asked to do the unfavourable jobs such as dealing with sewage pipes and laying concrete even though he did not have the appropriate gloves. He further states that he was asked to stay back and act as a security guard to watch cars/machinery when employees were going on lunch breaks and as a result he was not in a position to avail of his full entitlement to his breaks. He contends that Irish employees were not given unfavourable jobs such as those mentioned above during their employment. The complainant submits that he was dismissed in a discriminatory manner on the grounds of his race. He seeks to rely on the decisions relating to 58 Complainants v Good Concrete and Campbell Catering Ltd v Aderonke Rasaq in this regard.
SUMMARY OF RESPONDENT'S CASE
4.1 The respondent states that the complainant was employed with the company as a general operative on 24 September, 2007. The respondent states that it did not provide any contracts of employment to Irish nationals or non-Irish nationals. The respondent also states that potential employees were required to have a safe pass and have undergone appropriate training in this area prior to being hired by the company. The respondent submits that upon commencement of work, the complainant was given induction training regarding his duties. In addition, he states that the company's safety officer gave fortnightly tool box talks to employees on health and safety matters. The complainant signed a document to state that he had attended the induction training and the safety statement notice was placed on the notice board in the canteen.
4.2 In relation to the complainant's contention regarding being requested to do unfavourable work without proper gloves etc; the respondent states that safety was paramount to it as an employer and that the company's safety officer was on hand at all times. In addition, it states that the project was supervised closely by Dun Laoghaire/Rathdown County Council who had engineers on site to check the progression of the project and to ensure safety regulations were met. The respondent refutes the allegation of the complainant where he states that he was given the unfavourable jobs and the managing director of the respondent company states that he would not ask a non-Irish national employee to do work that he would not undertake himself. The respondent states that jobs were interchangeable and both Irish and non-Irish employees undertook jobs such as dealing with sewage pipes, laying of concrete etc and that if an employee did not have the appropriate gear/gloves with him on the day, there were always spare gloves and gear available. In addition, the respondent states that Irish employees would also watch the cars/machinery when certain employees would be on lunch break and that there was no discrimination in this regard.
4.3 The respondent states that the company employed fourteen employees to complete a major project on Colliemore Road, Dalkey, Co. Dublin. It stated that sixty per cent of the workforce comprised non-Irish nationals. The respondent submits that the reason the company had no continuity of work at the site for the complainant and three other employees was due to the job finishing up. The respondent submits that the complainant was among four employees including Irish and non-Irish nationals that were laid off from the company in late 2007 due to the lack of suitable work available as the job in question was coming to a close. The respondent asserts that the complainant was made redundant in line with custom and practice in the company. The respondent states that two Irish employees and 1 other non-Irish national employee were also let go around the same time as the termination of the complainant's employment due to the job reaching completion. The respondent has submitted to the Tribunal details of those employees who were laid off around the same time as the complainant. The respondent states that the foreman spoke to the four employees in question on 4/5 December outlining the position to them.
4.4 The respondent states that the complainant had booked a holiday to return to Lithuania for the Christmas holidays in or around 16 December and on his return in early January, 2008, he rang the site supervisor numerous times pleading with him for work. The respondent states that there was some work involving tidying up the site and given the complainant's numerous calls requesting work, it took him back for two weeks on this basis. The respondent states that all monies, including holiday pay owing to the complainant were paid to him in full on cessation of his employment. The respondent refutes the allegation of discrimination on grounds of race and reaffirmed its position that the complainant was let go due to the job in question reaching completion and the lack of suitable alternative work available for the complainant.
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 - 2008 and contrary to section 8 of those Acts as regards his conditions of employment and (ii) dismissed the complainant in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 77 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 Lithuanian.
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.
5.4 The first issue raised by the complainant relates to the respondent's alleged failure to furnish him with a written contract of employment. 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, in relation to the provision of a written contract of employment, the complainant was unable to show a difference in treatment between him and any other employee on this matter. I note that the foreman, on commencement of the complainant's employment provided induction training to the complainant and went through the duties required of him. 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 or other documentation could be inferred.
5.6 In relation to the complainant's assertion that he was discriminated against as he did not receive health and safety documentation and training; the employer has stated that the foreman went through the health and safety documentation at the commencement of his employment and the induction form was signed by the complainant. The respondent also states that the safety officer gave fortnightly tool box talks on health and safety matters. The respondent further states that the complainant submitted a valid and up to date safe pass which was mandatory for all new employees at that time. In the circumstances, I am not satisfied that the complainant has adduced evidence from which a prima facie case of discrimination in respect of 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 and he cannot therefore succeed with this element of his complaint.
5.7 The complainant contends that he was requested to do the unfavourable jobs such as dealing with sewage pipes, laying concrete without appropriate gloves and acting as security to watch the cars/machinery while employees were on their lunch breaks. In relation to these allegations, the respondent gave a robust defence of the safety requirements on site with regard to their own safety officer and the engineers from Dun Laoghaire/Rathdown County Council who were supervising the project. The respondent also reiterated that jobs were interchangeable and both Irish and non-Irish employees were requested to do the unfavourable jobs in question. While contradictory evidence was given on this issue, on balance, I find the evidence of the respondent more credible and I am of the view that the both Irish and non-Irish employees at different times were requested to undertake the unfavourable tasks. I am also of the view that given the safety requirements on site, the respondent had spare gloves/gear available where an employee requested same. I am also satisfied that the complainant was given documentation and training in relation to health and safety issues and was aware of the general standard relating to health and safety requirements in the respondent company.
5.8 In relation to the dismissal of the complainant; taking the totality of the evidence into consideration, I find the respondent's evidence more compelling. I am of the view that the complainant's employment was terminated as a result of the work on the project in question winding down and the job nearing completion. I note that two Irish employees together with 1 other non-Irish employee were laid off around the same time as the complainant. I also accept the evidence given by the respondent where he states that in early January, 2008 following the complainant's return from Christmas holidays in Lithuania, he pleaded with the company for work and the respondent took him back for two weeks to assist in the wind down and tidying up of the site and that the complainant was paid all monies owing to him including holiday pay on cessation of his employment.
5.9 I have carefully examined the evidence presented by the complainant in the instant case and although the complainant has argued that fair procedures were not complied with in relation to his dismissal, the issue for decision in this claim is whether or not the complainant was discriminated against on the grounds of his race in relation to his dismissal. The Tribunal has no jurisdiction to decide on the unfairness or otherwise of the dismissal, the complainant needs to prove that it was influenced by his race. I am not satisfied that he has adduced evidence to support his assertion that his nationality was a factor which influenced the respondent's behaviour. Accordingly, I find that the complainant has failed to establish a prima facie case of discriminatory dismissal on grounds of race contrary to the Acts.
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 - 2008 and contrary to section 8 of those Acts in respect of (i) his conditions of employment and (ii) that he was dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and which he brought under section 77 of those Acts and his entire complaint must therefore fail.
_____________________
Valerie Murtagh
Equality Officer
11 February, 2011