EQUALITY OFFICER'S DECISION NO: DEC-E/2011/011
PARTIES
MR. LAIMUTAS BERNOTAS
(REPRESENTED BY RICHARD GROGAN AND ASSOCIATES-SOLICITORS)
AND
DANSK WINDOW SYSTEMS LIMITED
FILE NO: EE/2008/394
Date of issue: 25 JANUARY 2011
1. Dispute
1.1 This dispute involves a claim by Mr. Laimutas Bernotas that he was discriminated against by Dansk Window Systems Limited, on grounds of race, in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts, in relation to conditions of employment and training. It is further submitted that the complainant was dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2)(h) and contrary to section 8 of those Acts.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on the 16th of June 2008 alleging that the respondent had discriminated against him on grounds of race when he was dismissed from his job without any reason or proper procedure. The complainant further submitted that he did not receive any proper contract of employment Health & Safety documentation or training.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 23rd November, 2010 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to a Hearing on the 1st of December, 2010. The respondent was not present at the hearing
3. Summary of complainant's case
3.1 The complainant states that he is a Lithuanian national and submits that he was employed by the respondent as a window fitter from April 06 to April 08 (24 months).
3.2 The complainant states that he did not receive any contract of employment, Health & Safety documentation or Health and Safety training. The complainant submitted in advance of the hearing that he was dismissed without any proper procedure.
3.3 The complainant submitted that he must establish a prima facie case and cited the Labour Court case of Southern Health Board v Mitchell in support of this contention.
3.4 The complainant referred to the Equality Tribunal case 58 named Complainants v Goode Concrete Ltd. in relation to dismissal, contract of employment and Health & Safety. The complainant seeks to rely on the Campbell Catering case in his contention that there is a requirement that the respondents take special measures to advise the complainant as a foreign national of his rights.
4. Summary of respondent's case
4.1 The respondent submits that the complainant was employed by them from April 06 to April 08 (24 months) . The Respondent submits that, the complainant was not dismissed but was made redundant on 11th April, 2008 and that he was paid a redundancy payment .
4.2 The respondent submits that complainant was provided with a contract on 23.10.2006 which he signed. The Respondent further submits that, the complainant was provided with a copy of the contract upon signing. As regards Health and Safety the respondent submits that all policies and procedures were detailed and explained in English. It is further submitted by the respondent that, when an employee expressed a requirement for a translation, the company provided a translator.
4.3 The respondent submits that the complainant was not dismissed but that he made himself unavailable for the work available. The respondent further submits that the complainant was made redundant and was paid a redundancy payment on 17th April, 2008 as evidenced by a cheque payable to the complainant on that date.
5. Conclusions of the Equality Officer
5.1 The issues for decision by me are now whether or not Dansk Window Systems Limited (i) discriminated against the complainant on grounds of race, in terms of section 6(2)(h) of the Employment Equality Acts, 1998 and 2004 in relation to conditions of employment and (ii) dismissed the complainant in circumstances amounting to discrimination on grounds of race in terms of section 6(2)(h) and contrary to section 8 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 at the Hearing.
5.2 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)....."
Section 6(2)(h) 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... "
Thus the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because his is Lithuanian. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:
Section 85A of the Act provided 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. While those facts will vary from case to 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 establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.
5.3 Conditions of employment
5.3.1 On the day of the hearing the complainant indicated that he did in fact receive a contract but that the contract was in English. The complainant also indicated that all employees received contracts in English and that these employees were of various nationalities including Polish, Lithuanian, Latvian and Irish. The complainant when questioned stated that he did not understand the contract and that he had not been offered any translation or interpretation facilities in this regard.
5.3.2 As regards the complainants claim that he did not receive any Health and Safety training, the complainant, at the hearing stated, that all employees were called to a meeting about Health and Safety but that the talk was provided in English. Again the complainant indicated that he did not understand it but that he was not provided with any translation or interpretation facilities. Thus, it would appear, from the evidence given, that the complainant was provided Health and Safety training in English only. At the hearing the complainant did not have a good standard of English and gave his evidence through an interpreter.
5.3.3 Based on the foregoing I am satisfied that the respondent did not seek to ensure, in a meaningful and practicable way, that the complainant understood the contract or the health and safety training insofar as these were only provided in English. I am satisfied that, the complainant is not competent in the English language and it follows therefore that he has established a prima facie case of less favourable treatment in his terms and conditions of employment, with regard to the provision of a contract and health and safety training, in a language he was likely to understand, and that this case has not been rebutted.
5.3.4 The complainant at the hearing indicated that he did not receive written Health and Safety documentation and under direct questioning stated that other employees did not receive Health and Safety documentation either. Thus it would appear from the evidence given that the failure to provide the complainant with Health and Safety documentation does not amount to less favourable treatment and was not influenced by the complainants nationality. Accordingly, based on the evidence given I do not find that the complainant has established a prima facie case of less favourable treatment on the ground of race in relation to this matter.
5.4 Discriminatory Dismissal
5.4.1 Turning to the complaint of discriminatory dismissal. At the hearing the complainant outlined his version of events surrounding his dismissal. He indicated that he had been working in Belfast for 2 weeks during which he was providing transport to and from work to 2 other employees. The complainant also stated that during the time he was working in Belfast his wages were reduced, however, having examined payslips provided, the complainants pay varied greatly from week to week throughout his employment as some weeks include basic hours as well as hours worked at time and a half, as well as holidays and travel. The complainant indicated that he should have been paid more, not less during this time as he was also driving 2 others to work. The complainant advised the hearing that, as a result of these factors he refused to go to Belfast one day and when he said this to his employer he was told he was fired. The complainant then stated that, he complained to the union about being fired after which the respondent made him redundant. The complainant stated that he was kept on by the respondent for 2 more weeks after which he received a redundancy payment. The respondent who was not present at the hearing had in its submission indicated that the complainant was made redundant as he made himself unavailable for the work which was available.
The representative for the complainant has asked me to consider that a notional Irish employee would not have been treated in the same way. However I am satisfied that any employee of any nationality who refused to work where work was available would be treated in the same way. I am thus satisfied that the complainants redundancy was not related to his nationality.
5.4.2 Having regard to the evidence adduced in the present case, I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that he was treated less favourably than an Irish person or a person of a different nationality would be treated in similar circumstances, in relation to his dismissal. I am satisfied that the reasons submitted by the respondent, and accepted by the complainant, for the redundancy of the complainant were in no way connected to his nationality and that Irish employees and employees of a different nationality would also be treated the same in similar circumstances. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to his dismissal.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -
(i) The respondent did discriminate against the complainant on the race ground pursuant to section 6(2) of the Acts in terms of his conditions of employment and contrary to section 8 of the Acts by not ensuring that he was provided with a contract and health and safety training in a language which he could understand.
(ii) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against him on the ground of race pursuant to section 6(2) of the Acts in terms of his conditions of employment and contrary to section 8 of the Acts concerned with Health and Safety documentation.
(ii) the complainant has failed to establish the facts from which it may be presumed that he was dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) and contrary to section 8 of those Acts.
6.2 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 €1,000 by way of compensation for the distress suffered by him as a result of this discrimination. This award is not in the nature of pay, and therefore not subject to tax.
____________________
Orla Jones
Equality Officer
25 January, 2011