THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 143
PARTIES
Mr Donatus Kemzura (represented by Richard Grogan and Associates, Solicitors)
and
Modulus Construction Ltd (in liquidation)
File References: EE/2009/429
Date of Issue: 18th July 2011
Claim
1.1. The case concerns a claim by Mr Donatas Kemzura that Modulus Construction Ltd discriminated against him on the ground of race contrary to Section 6(2)(h) of the Employment Equality Acts 1998 to 2008, in terms of training, conditions of employment, other discriminatory conduct and discriminatory dismissal.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 25 June 2009. A submission was received from the complainant on 23 October 2009. No submission was received from the respondent. On 6 May 2011, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 18 May 2011. The respondent, despite being notified of the hearing date by registered post, did not attend the hearing. The last piece of correspondence in connection with the complaint was received on 18 July 2011.
2. Summary of the Complainant's Written Submission
2.1. The complainant alleges that he did not receive a contract of employment and that he did not receive health and safety training, and that he was dismissed without reasons or proper procedures.
3. Summary of the Respondent's Written Submission
3.1. The respondent did not make a written submission to the Tribunal.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against and discriminatorily dismissed within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
4.3. The complainant is Lithuanian. At the hearing, he had good competence in English and no need for the services of an interpreter. I experienced him as a credible witness with good recall of events. When he did not remember a particular detail, he clearly said so.
4.4. The complainant's co-workers when he was employed by the respondent were Moldovan and Irish. With regard to the issue of the complainant not having a contract of employment, he stated in evidence that he knew that his Irish colleague had a contract of employment because they discussed this issue. The complainant stated that his Moldovan co-worker, like himself, did not have a contract of employment.
4.5. In the context of taking the complainant's evidence on his complaint of discriminatory dismissal, additional evidence on the treatment of the complainant came to light, in response to a question from myself to the complainant to describe any other experiences he might have had in the course of his employment. The complainant stated that the same foreman who eventually fired the complainant, also gave the complainant harder jobs than his Irish or Moldovan colleagues, like grinding, dust-cutting or working with chemicals. After some hesitation, the complainant also stated that the foreman said to the complainant during a break: "What are you doing here? Go home!" The complainant clearly stated that he understood this to be a comment that he should not live and work in Ireland and, in the opinion of the foreman, should return to Lithuania. He felt insulted and upset, but that he did not complain about the matter because he did not know who to complain to, and also that he felt somewhat intimidated by the foreman and was concerned that he would be accused of having no sense of humour or similar. When recalling the incident in his evidence, the complainant struggled with his emotions. It was clear to me that he was re-experiencing what happened on that day, after not expecting to be questioned about the matter, and I am satisfied as to the credibility of the complainant's evidence.
4.6. Upon hearing this evidence, I formed the opinion that, with regard to the above, Mr Kemzura's potential harassment fell to be investigated. I proceeded to do so based on the decision of Johnson J in Siobhan Long v. The Labour Court, Mairead Blackhall, and Powers Supermarkets Ltd t/a Quinnsworth, 1990 No 58 Judicial Review, 25 May 1990. In accordance with the principles of fair procedures and natural and constitutional justice, and following the Supreme Court in The State (Irish Pharmaceutical Union) v. Employment Appeals Tribunal [1987 ILRM 36], I informed the respondent of this and invited their observations on the matter. The respondent's liquidator wrote to me on 15 June 2011 to indicate that he had no observations to make.
4.7. In the context of the complainant's overall treatment by his foreman as outlined in the preceding paragraphs, I have no doubt that the remark related to the complainant's nationality, and the fact that he was not Irish. I am further satisfied by the complainant's evidence that the remark, made during a break in front of all staff, created an offensive and humiliating environment for him. I find that this situation can be distinguished from the previous Tribunal decision DEC-E2003-044, Hazra v. Waterford Regional Hospital, where a nearly identical remark was not found to constitute harassment of the British-Asian complainant, due to the context in which that remark arose, and due to the fact that the complainant in that case did not consider it racially motivated at the time it was made and for some time afterwards.
4.8. I am also mindful of the overall context of the workplace, and that building sites are a more robust environment, in terms of language commonly used, than other places of employment. However, the foreman's remark is not so much an example of rough language, as a pointed statement relating to the complainant's nationality. Taken together with the complainant's emotional response to it, I am satisfied that it constitutes harassment on the ground of race.
4.9. Furthermore, in light of the complainant's evidence that he did not received a contract of employment, I further find it his evidence credible that he did not know who to complain to, which means that the defence in S. 14A(2) of the Acts does not avail the respondent. At any rate, as set out in the preceding paragraph, the respondent did not seek to make any such argument. I am therefore satisfied that Mr Kemzura was harassed on the ground of his nationality within the meaning of S. 14A of the Acts.
4.10. Since harassment constitutes discrimination in relation to a complainant's terms and conditions of employment, I am therefore satisfied that Mr Kemzura was discriminated against on the ground of race with regard to the non-provision of a contract of employment, and in terms of his harassment by his foreman as outlined in the preceding paragraphs.
4.11. With regard to the provision of training, the complainant stated that all workers went on training courses together and that differentiations on the ground of race or nationality did not arise. Accordingly, I find that there was no discrimination of the complainant with regard to access to training.
4.12. In terms of the complainant's dismissal, the complainant stated that he came back after his holidays, and was told there was no more work for him to do. He was paid his outstanding wages. The Moldovan and the Irish worker were staying on, and told the complainant that they thought there would be other sites by the same employer, for the complainant to work on. The foreman who fired him was the same foreman who racially harassed the complainant by making the remark outlined in paragraph 4.5. However, the complainant clarified in later correspondence with the Tribunal that he had the shortest service of the three workers on the site. The Moldovan worker had six months more service than he had, and the Irish worker some longer service, although the complainant is not sure how much. Accordingly, I find that the connection between the complainant's nationality and his dismissal is not clear enough to establish a prima facie case that his dismissal was due to his nationality, and that this part of his complaint must therefore fail.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Modulus Construction Ltd. discriminated against Mr Donatas Kemzura on the ground of race, contrary to S. 8(1) and 8(6) of the Employment Equality Acts 1998-2008. The respondent did not discriminatorily dismiss the complainant contrary to S. 8(6) of the Acts.
5.2. In accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I therefore order that the respondent pay the complainant €2,500 in compensation for his discrimination. This award is in compensation for the distress experienced by the complainant in relation to the above matter, and is not in the nature of pay, and therefore not subject to tax.
______________________
Stephen Bonnlander
Equality Officer
18 July 2011