The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
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Website: www.equalitytribunal.ie
Employment Equality Acts
1998-2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2011-196
PARTIES
Darius Norkunas & Aurimas Kveskevicius
(Represented by Richard Grogan and Associates)
- V -
McGuire Haulage Limited
(Represented by ESA Consultants)
File references: EE/2009/719 & 886
Date of issue: 20 October 2011
Keywords
Employment Equality Acts 1998-2008 - Discriminatory Treatment - Discriminatory Dismissal- Race - Condition of employment - Prima facie case
1. Dispute
1.1. This dispute concerns a claim by Mr. Norkunas and Mr Kveskevicius (hereafter "the complainants") that they were subjected to discriminatory treatment and discriminatory dismissal on the grounds of their race by McGuire Haulage Ltd (hereafter "the respondent") contrary to the Employment Equality Acts.
2. Background
2.1. Mr Norkunas and Mr Kveskevicius referred their claims of discrimination to the Director of the Equality Tribunal on 21 January 2010 and 1 December 2009 respectively under the Employment Equality Acts. The claims were made on the race ground. On 29 September 2011, in accordance with his powers under section 75 of the Acts, the Director then delegated these cases to me, Elaine Cassidy - 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. As required by Section 79(1) and as part of my investigation, an oral hearing was held 5 October 2011 and both parties attended. Further information was sent after the hearing and this process concluded on 15th October 2011.
3. Case for the first-named complainant, Mr Norkunas
3.1 This complainant is a Lithuanian national and worked for the respondent as a Truck Driver for approximately 6 months in 2009. The complainant stated that he had not been given either a contract of employment or payslips. He stated that he thought that Irish people were paid more. The complainant submitted that he was laid off in July 2009 because there was no work available. He submitted that although there were other nationalities working there, only the Lithuanians were let go. A couple of weeks later, he returned to the workplace to see if there was any work available and he saw that a Brazilian worker and a Russian worker were still employed by the respondent. Some time later, he requested his P45 but only received a letter for the Social Welfare to say that he was on a temporary lay-off.
3.2 Case for the second-named complainant, Mr Kveskevicius
This complainant is a Lithuanian national and worked for the respondent as a Truck Driver for approximately 2 years from 2007 to 2009 and again for about 16 months from late 2009 to 2011. The complainant stated that he had not been given any payslips. He stated that Irish people were paid more than him and he knew this as a result of a conversation with an Irish co-worker.
3.3 The complainant stated that there were people of many different nationalities working for the respondent and he thought about 7-8 of them were Lithuanian. On the day he was laid off, he was told that there was no work for him, but he thought that a Brazilian and a Russian person were kept on, even though they had worked there for less time that he had. He thought that only Lithuanians had been laid off. After this he sent regular texts to the respondent looking for work and about 5 months later he was taken back on. He continued working there until March 2011.
3.4 The legal representative for the complainants said that the respondent had given misleading information in their submission regarding the training received by the complainants and this should create doubt as to the respondent's credibility. He also said that his clients had not received payslips and documentation was provided in English, even though Mr Norkunas did not speak English.
4. Case for the respondent
4.1 The respondent submitted that the complainants had been provided with payslips. The respondent submitted that complainants received induction training and Safe Pass training.
4.2 The respondent stated that the complainants were paid at €8.65 along with the majority of their co-workers. They submitted to the Tribunal documentation showing that an Irish Truck Driver was earning €8.65. They stated that there had been times in the past when the rates were a little higher, but they went back to the minimum rate, when the business environment became more difficult.
4.3 Regarding the layoffs, the respondent stated that all of the layoffs in question took place at a specific named site. The respondent submitted that it was informed by the main contractor at very short notice that the contract was on hold due to lack of money. The respondent sent a text to all the employees on that site that evening and told them they were on temporary lay-off. They gave letters to each employee to confirm this point, so that the employees could claim Social Welfare if necessary. They advised the employees that they would text them with news if anything changed. A few months later they did get work on the site again and they sent a text to the employees to invite them back. The first-named complainant did not answer the text or get in touch, but the second -named complainant did. Mr Kveskevicius started working with them again and continued working for them until March 2011 when he resigned. At that time, they gave him his P45 as requested. The respondent submitted that all employees on the specific site in question were treated in exactly the same way, regardless of nationality. They agreed that there was a Brazilian and a Russian working on a different job, but this job ended two days after the complainants' layoff and so both of these employees were also laid off.
5. Conclusions of the equality officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 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 2 persons, ... that they are of different race, colour, nationality or national origins".
5.3 The Payslips
The complainants and the respondent offered opposing evidence on whether or not payslips had been given to the employees. However, regardless of whether they were given or not, no case was made to show that employees of other nationalities were treated differently. Therefore I do not find that this is a matter relevant to the Equality Tribunal.
5.4 Training
The first-named complainant stated that he did not receive training in a language likely to be understood by him. However during cross-examination, he agreed that although he had received a brief induction talk which he did not understand, he did not tell his employer that he did not understand it. When asked how he knew how to do his job, he said that the other Lithuanian employees explained everything to him.
5.5 Equal Pay
The second-named complainant said that Irish employees were paid more than him. However, despite being legally represented from referral though to hearing, no equal pay claim was ever put before the Tribunal.
5.6 Dismissal
The complainants stated that they were dismissed on the grounds of their race. However at the hearing, they both accepted that they had been told at the time that there was no work at that site. The respondent gave credible evidence of the downturn in business and how they were forced to temporarily lay-off employees of all nationalities who happened to be working on that specific job at that time. In the oral hearing, I did not find credible, the complainants' claim that only Lithuanians were laid off.
In the case of the second-named complainant, I note that he kept in touch with the respondent and began working for them again some time later, when the job resumed. In the case of the first-named complainant, I did not find credible his claim that the respondent did not get in touch with him when work resumed. In any event, even if it had been credible, this complainant did not establish any nexus whatsoever between the respondent's alleged lack of contact and his nationality, especially in light of the fact that they had successfully contacted the first-named complainant, a fellow Lithuanian. I note the comments of the Labour Court regarding such "mere assertions" in the case of Melbury v Valpeters EDA 0917:
"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."
6. Decision
6.1. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts: I find that neither Mr Norkunas nor Mr Kveskevicius have been able to establish a prima facie case of discrimination with respect to either their conditions of employment or their dismissal. Therefore their claims fail and I find in favour of the respondent.
__________________
Elaine Cassidy,
Equality Officer
20 October 2011