The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2011-029
PARTIES
Stase Sereniene
(Represented by Richard Grogan & Associates)
AND
Grangemore Landscapes Limited
(Represented by IBEC)
File reference: EE/2008/190
Date of issue: 16 February 2011
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 and 8 - Gender and Race - Training, Conditions of Employment, Discriminatory Dismissal.
1. DISPUTE
1.1. This dispute concerns a claim by Ms Stase Sereniene that she was discriminated against by Grangemore Landscapes Limited on the grounds of gender and race contrary to section 6 of the Employment Equality Acts in relation to training, conditions of employment and dismissed in a discriminatory manner contrary to section 8 of the Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 31 March 2008 under the Employment Equality Acts. On 13 October 2010, in accordance with her 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 both parties. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 5 November 2010 and final information was received on 19 November 2010.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant is Lithuanian and started working for the respondent on 7 July 2006. She submits that she was not issued with a contract of employment in a language she could understand. On 9 August 2006 she was given a contract in English with a Polish translation but the complainant does not speak Polish. The complainant cited Equality Tribunal decision DEC-E2008-020, 58 Complainants v Goode Concrete.
2.2. The complainant submits that she was working on working on roadways and construction sites and received no health and safety documentation or training and cited the Goode Concrete decision.
2.3. The complainant submits that on 8 February 2008 she was dismissed without proper reason or procedures. Tomase Ochenza and Damain Sikora, who were both Polish and started after complainant were kept on. The complainant cited the Goode Concrete decision and quoted the reference to Labour Court Determination EED048, Aderonke Rasaq v Campbell Catering Limited to submit that "special measures may be necessary" for employers to fulfill their obligations to non Irish employees.
2.4. The complainant submitted that the complete lack of documentation brings forward the issue as to what would be the position concerning a notional comparator. She submits that the correct notional comparator would be an Irish national who would be aware of their entitlements and would therefore not receive the same treatment. Special measures should have been taken to ensure she was aware of her basic employment rights and failure to provide these special measures amounts to discrimination.
3. RESPONDENT'S SUBMISSION
3.1. The respondent submits that on 15 July 2006 the complainant was issued with a contract which was signed by the manager and the complainant. She also signed a Receipt of Contract document. The contract includes the respondent's disciplinary procedures. The respondent submits that the complainant took a case to the Rights' Commissioners that she did not receive a contract but this was not upheld.
3.2. The respondent submitted a copy of a Safety Induction Form signed by the complainant and dated 13 November 2007, together with a copy of the induction presentation. The respondent also submitted a copy of their Health and Safety Statement, which was dated April 2007.
3.3. The respondent submits that they have been in business since 2001 and were bought out in January 2005. In the year ended 31 December 2006 they had significant pre-tax losses. In July 2007 the two original owners bought back the business. For the period up to 31 May 2008 they still had pre-tax losses but much reduced from 2006. The respondent implemented a turnaround strategy and from August 2007 to August 2008 and their workforce went down from 200 to 65.
3.4. The respondent submits that the complainant started work on 6 July 2006 and was let go in February 2008 because of a downturn in work. The complainant was made redundant because they came to the end of certain contracts. Selections for redundancy were made on the basis of what work still needed to be done. Redundancies in the first 6 months of 2008 were of people from Ireland, England, Poland, Russia, Latvia, Lithuania, Italy and Slovakia. Only 2 full time women were working in Dublin, out of 72 employees, and both were made redundant. On the date the complainant was made redundant three others with longer service were also made redundant, plus four others during the same month. The respondent submits that the two employees cited by the complainant, Tomase Ochenza and Damain Sikora, did landscaping work whilst complainant primarily undertook litter picking and hand weeding. The respondent still had landscaping contracts and therefore kept them employed whilst they had lost contracts for the type of work undertaken by the complainant. In May 2008 she was offered re-employment but refused the offer.
4. FINDINGS & CONCLUSION
4.1. At the start of the hearing the complainant clarified that her claim in relation to training and conditions of employment was made on the grounds of race and her claim in relation to discriminatory dismissal was made on the grounds of gender. Therefore, I have to decide if the complainant was discriminated against in relation to training and conditions of employment on the grounds of race and if she suffered discriminatory dismissal on the grounds of gender. 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. Section 6(1) of the Employment Equality Acts, 1998 and 2004 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).....".
4.3. At the hearing the complainant explained that the Health and Safety Induction training was in English and translated into Polish and therefore she could not understand what was said. She contends that it was important she understood the training as she was working on a major road and handling chemicals. The respondent states that someone was available at the induction training who could have dealt with any queries raised. As no queries were raised they concluded that the complainant understood the training. The complainant has adduced no evidence to show that she was disadvantaged by the method of training adopted by the respondent.
4.4. In relation to her contract the complainant contends that a translator was not present when she got her contract and no one explained her contract terms. At the hearing she stated that she did not ask questions about her contract because she was afraid she would lose her job if she did. The respondent contended that a female Lithuanian co-worker had good English and anything could have been asked through her. They further contended that the complainant was able to raise any issue and gave an example when she asked for an increase in the allowance she received for running a van. This, they felt, showed she was capable of raising any issue she had. The complainant accepted she had a Latvian colleague that she communicate with through Russian but she only worked two days a week.
4.5. It is not sufficient for the complainant merely to assert that not receiving a contract in a language she could understand was discriminatory, she needs to show that this amounts to discriminatory treatment. In the Goode Concrete case the Equality Officer decided that the complainants in Goode Concrete were treated less favourably than someone who had a good command of English as such a comparator, notional or otherwise, would automatically be made aware of their rights because they understood the language and were provided with the information in that language. In that context, it is notable that the Tribunal went on to make an order to "put in place clear procedures for ensuring that non-national employees are clear as to their terms and conditions of employment and also understand all safety documentation" rather than specifying that the contract of employment and/or health and safety statement should be provided in those employees' native language. The onus on the respondent in the Goode Concrete case was to make reasonable efforts to ensure that each employee understood their rights and that it ensured that they were not treated less favourably than someone who was made aware of those rights if they did not.
4.6. Where these procedures rely upon the respondent making an assessment of whether the initial explanation or documentation outlining these matters had been understood by that employee, as in the present case, the respondent can only be required to make reasonable efforts to make such an assessment.
4.7. In this case the complainant was given Health and Safety training and issued with a contract which was not in her own language. The respondent contended that someone from management would have dealt with any problems raised and a work colleague could have interpreted in relation to any issues raised. I am satisfied that the respondent made reasonable efforts to assess whether the complainant understood the training and the contract of employment. I therefore conclude that she was "not treated less favourably than another person... has been ... treated in a comparable situation on any of the grounds" as required by section 6 of the Acts and find that the complainant was not discriminated against in relation to training or her conditions of employment.
4.8. The complainant has made her claim in her relation to her dismissal on the grounds of gender. Specifically she cited two Polish men who had less service than she had and were kept on when she was dismissed in February 2008. She contended that she did not accept the offer of work made three months later as she did not feel comfortable going back to work for the respondent after she made this claim and it was only for seasonal work.
4.9. The respondent contended that because of the economic turndown they lost of number of ongoing maintenance contracts and they were not able to get new business to replace the lost contracts. Therefore the people made redundant were those for whom they no longer had work because of the type of work still available. They had landscaping work which the two males cited by the complainant undertook but did not have work for litter picking and hand weeding which the complainant primarily undertook on the ongoing maintenance contracts.
4.10. I accept the evidence given by the respondent that they made people redundant for the economic survival of the company and that the redundancies were based on the work that was finishing when contracts were finishing and for no other reason. The complainant has provided no evidence that her gender was a factor in her selection for redundancy.
5. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that:
the respondent did not discriminate against the complainant in relation to training,
the respondent did not discriminate against the complainant in relation to conditions of employment, and
the complainant was not dismissed in a discriminatory manner.
____________________
Hugh Lonsdale
Equality Officer
16 February 2011
¹ Labour Court Determination Arturs Valpeters v Melbury Developments Ltd EDA0917 [2010] 21 E.L.R