EDA111

Background:

The Complainant was employed by the Rspondent as a General Operative between January, 2005 and October, 2006. He contends that during his period of employment he was (i) treated less favourably as regards his conditions of employment and (ii) harassed by the Respondent on the basis of his Lithuanian nationality contrary to the Employment Equality Acts, 1998 and 2004. He also contends that he was dismissed by the Respondent in circumstances amounting to discrimination on grounds of race (Lithuanian nationality) contrary to the Acts.

The Complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 8 December, 2006

The Equality Officer decided as follows: -

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  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 –
  
  
  

  
  
  
  

  (i) that the complainant has failed to establish a prima facie case of discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts in respect of those aspects of his conditions of employment concerned with a written contract, trade union membership and the Construction Workers' Pensions and Sick Pay Scheme,
  
  
  

  
  
  
  

  (ii) that the complainant has failed to establish a prima facie case of harassment on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 14A of those Acts,
  
  
  

  
  
  
  

  (iii) that the complainant has failed to establish a prima facie case 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 and 2004 and contrary to section 77 of those Acts,
  
  
  

  
  
  
  

  (iv) the respondent discriminated against the complainant on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary section 8 of those Acts in respect of the provision of health and safety training and documentation.
  
  
  

  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 €500 by way of compensation for the distress suffered by him as a result of this discrimination. This award does not include any element of remuneration and is not therefore subject to the PAYE/PRSI code.

The Complainant’s Case:

The Complainant, who is a Lithuanian national, commenced employment as a General Operative with the respondent on 11 January, 2005. He states that the vast majority of his employment was spent on a site in North County Dublin. The Complainant states that he did not receive any written contract or terms of employment and contends that this constitutes unlawful discrimination of him on grounds of race contrary to the Acts. He contends that following the Decision of the Tribunal in 58 Complainants v Goode Concrete there is an obligation on an employer to provide employees with a contract of employment in a language they understand.

In the course of the Hearing the Complainant stated that there were approximately ten other General Operatives employed on the site - Irish, Polish, Rumanian and Lithuanian - but was unable to confirm whether or not the Respondent had provided any of these employees with a contract of employment or other documentation.

The Complainant states that the Respondent failed to provide him with a health and safety statement or other health and safety training in a language which he could understand and submits that this failure constitutes less favourable treatment of him on grounds of race, contrary to the Acts. He seeks to rely on the Decision of this Tribunal in 58 Complainants v Goode Concrete in this regard.

The Complainant adds that he attended health and safety talks over the period of his employment but these were delivered in either English or Polish. The documentation was provided in these languages only.

The Cmplainant contends that the Registered Employment Agreement (REA) for the Construction Industry requires the Respondent to join him in the Construction Workers' Pension and Sick Pay Scheme and to facilitate his membership of an appropriate trade union. He states that he was never joined in such a scheme and rejects the Respondent's assertion that it brought this entitlement to his attention and he refused to join because of the financial implications for him. The Complainant also rejects similar assertions by the Respondent as regards union membership. It is submitted on behalf of the Complainant that the Respondent's behaviour in relation to these issues constitutes unlawful discrimination of him. In the course of the Hearing the Complainant was unable to say whether or not any of the other employees, including the Irish employees, who were engaged at the same time as him, were joined in the Scheme or were members of a trade union.

The Cmplainant states that he was sweeping out a car park in one of the new buildings on the site when he was approached by two men whom he believed to be the Project Manager and the owner of the Company. The Complainant states that the owner approached him and told him to "f*** off". The Complainant states that he took this comment to mean he was fired. He rejected the Respondent's assertion that he was smoking in the car park at the time, although he accepted that he had smoked there earlier that day. The Complainant states that all employees smoked on site, that he was unaware he could not do so and that he was not aware at the time that a gas installation on the site was being tested that day. He states that he spoke with his Supervisor about the incident, that his Supervisor confirmed he was fired and that he (the Complainant) left the site immediately. It is submitted on his behalf that this constitutes discriminatory dismissal of the Complainant on grounds of race.

The Respondent agrees with the Complainant's version of events in the car park on the day of the dismissal. It adds that a gas installation in the building was being tested that day and the Complainant was caught smoking in the area. It states that the Complainant's actions created a very dangerous situation and accepts the owner acted in the manner outlined by the Complainant. In the course of the Hearing the Respondent confirmed that the Complainant had been dismissed on the day but rejected the assertion that it was connected in any way with his nationality.

Issues for Determination:

The issues for Determination by the Court are whether or not the Respondent

The Law:

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) 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 his is Lithuanian.

Section 85A of the Employment Equality Acts 1998 and 2004 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 the 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 Labour Court 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.

The first issue raised by the Complainant relates to the Respondent's failure to furnish him with a written contract of employment.

The Complainant raised no significant facts before the Court in support of his contention that the Respondent’s admitted failure to provide him with a written contract of employment was in any way related to his ethnic origin. The Complainant stated that there were around ten other General Operatives employed at the same time as him - Irish, Romanian, Polish and Lithuanian - but he was unable to say if any of those employees received written contracts of employment or other documentation.

The Labour Court whilst examining the circumstances in which the probative burden of proof perates set out the position inMelburyDevelopments Limited v Arturs ValpetersDetermination NO. EDA0917

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  "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."

The Court is satisfied that the Complainant has not 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 could be inferred.

Having considered the evidence submitted to it the Court has reached a similar conclusion as regards the failure of the Respondent to join the Complainant in the Construction Workers' Pension and Sick Pay Scheme or to facilitate his membership of the appropriate trade union as required by the appropriate Registered Employment Agreement.

The Court is of the view that the Employer most likely did not join any of his workforce in the Construction Industry Pension Scheme or advise them of any of the details of the Registered Employment Agreement in force in the Construction Industry. However this does not amount to evidence of discrimination of the Race ground.

Furthermore enforcement of any alleged breach of the Registered Employment Agreement is a matter for the Labour Court in accordance with the Industrial Relations Act 1946 (as amended) and does not fall to be dealt with pursuant to the Equality Acts.

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 adduced evidence that clearly demonstrated that it did provide health and safety training and that the Complainant attended these workshops.

The Respondent told the Court that these workshops and some of the health and safety documentation were provided in both English and Polish. The Respondent gave no explanation to the Court why the workshops and documentation were provided in two languages only when the Complainant could not speak or read either language with any degree of fluency or comprehension.

The Respondent said that he arranged to have a colleague worker who spoke Lithuanian explain the relevant details to him. The Complainant denies this. The individual was not present in Court to give evidence and accordingly the Court must prefer the evidence of the Complainant in this regard.

The Court accordingly finds that the Complainant has established a prima facie case of discrimination on grounds of race in respect of this element of his complaint. The Rspondent adduced no evidence to rebut this inference and consequently the complainant is entitled to succeed on this issue.

The final issue for the Court to determine is whether the Respondent dismissed the Complainant in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts.

The Respondent admitted that the Complainant had been dismissed stating he had been caught smoking in an underground car park on a day when the gas installation was being tested.

The Court is satisfied, from the evidence adduced at the hearing, that there appears to have been some procedural defects in the manner in which the Complainant was dismissed. There is no basis on which it could conclude that the dismissal was related to his nationality. The Complainant has not adduced any evidence to that effect. In essence the case presented by the Complainant may be summarised as follows: -

I am a Lithuanian national and was dismissed from my employment by the Respondent. Consequently I was dismissed because I am a Lithuanian national.

The Court cannot accept this proposition unless there is some prima facie evidence that would enable it to transfer the burden of proving otherwise onto the Respondent. In this case no evidence whatsoever in support of such a contention was adduced by the Complainant. The Court concurs with a view expressed by it in the past to the effect that it has dealt with many cases "where employers are accused of dismissing workers without resorting to the appropriate disciplinary procedures and such cases are by no means confined to workers whose national origin is outside Ireland." .

The Court finds therefore that the Complainant has failed to establish facts from which it could be inferred that the termination of his employment was influenced in any way by his nationality.

Finally, the Complainant adduced no evidence in respect of his allegation that he was harassed on grounds of race contrary to the Acts.

Determination:

The Court determines that

(i) The Complainant has failed to establish a prima facie case of discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts in respect of those aspects of his conditions of employment concerned with a written contract, trade union membership and the Construction Workers' Pensions and Sick Pay Scheme,

(ii) The Complainant has failed to establish a prima facie case of harassment on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 14A of those Acts,

(iii) The Cmplainant has failed to establish a prima facie case 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 and 2004 and contrary to section 77 of those Acts,

(iv) The Respondent discriminated against the Complainant on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary section 8 of those Acts in respect of the provision of health and safety training and documentation.

The Court affirms the Decision of the Equality Officer and rejects the appeal.