THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2011-105
PARTIES
Kestutis Gerziunas
(represented by Richard Grogan & Associates,
Solicitors)
and
(1) Zyder Plastics Limited and
(2) Zyder Developments Limited
File Reference: EE/2008/864
Date of Issue: 3rd June, 2011
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - race - conditions of employment - training - discriminatory dismissal - jurisdictional issue - failure to establish a prima facie case
1. Dispute
1.1 This case concerns a complaint by Mr. Kestutis Gerziunas who is a Lithuanian national, that he was discriminated against by Zyder Plastics Limited and Zyder Developments Limited on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of conditions of employment, training and in relation to discriminatory dismissal.
2. Background
2.1 Mr. Kestutis Gerziunas referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 12 December, 2008. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case on 22 March, 2011 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. A written submission was received from the complainant on 18 April, 2009 and a written submission was received from the respondent on 19 May, 2009.
2.2 As required by section 79(1) of the Acts and as part of my investigation, I proceeded to Hearing on 25 March, 2011. The respondents' legal representative was notified by registered post on 20 January, 2011 of the arrangements for the Hearing. The respondents' legal representative wrote to the Tribunal on 28 January, 2011 to confirm that it was no longer acting on behalf of the respondents in relation to this matter and it confirmed that notification of the hearing had been forwarded to a named Director of the respondents. In the circumstances, I was satisfied that the Tribunal had made all reasonable efforts to notify the respondents of the Hearing arrangements and the Hearing proceeded on 25 March, 2011. Neither of the respondents was present or represented at the Hearing.
3. Summary of the Complainant's case
3.1 The complainant, who is a Lithuanian national, stated that he was employed by the respondents (Zyder Plastics Limited and Zyder Developments Limited) as a labourer on a continuous basis and without a break in service from 6 November, 2006 until 7 November, 2008 when his employment was terminated. The complainant stated that he understood during his period of employment that he was employed by 'Zyder' and he did not become aware of the existence of both Zyder Plastics Limited and Zyder Developments Limited as separate entities until after his employment had terminated. The complainant denies the respondents contention that he ceased employment with Zyder Plastics Limited at the end of September, 2007, by mutual consent, and that he commenced employment with Zyder Developments Limited in October, 2007 (the complainant denies that he received a P45 from Zyder Plastics Limited on 28 September, 2007). The complainant submitted that his employment was interchangeable between both of the named respondents although he accepts that he was paid by Zyder Plastics Limited from the date of commencement of his employment until the end September, 2007 and by Zyder Developments Limited from October, 2007 until his employment was terminated on 7 November, 2008.
3.2 The complainant stated that there were a number of other employees of South African, English, Lithuanian and Irish origin employed by the respondents during his period of employment. The complainant submitted that the respondents failed to provide him with a written contract or terms of employment when he commenced employment and he contended that this constitutes unlawful discrimination of him on the grounds of race contrary to the Acts. The complainant submitted that the respondents failed to provide him with any health and safety documentation or training during the course of his employment. The complainant submitted that the respondents failure to provide him with a health and safety statement and training in a language which he could understand amounts to discrimination within the meaning of the Acts.
3.3 The complainant claims that he was not paid in accordance with the correct rate of pay as provided in the Registered Employment Agreement for the Construction Industry. He claims that he was paid €450 per week whereas it was brought to his attention that a number of Irish workers who were doing the same type of work were paid between €760 and €840 per week. The complainant also submitted that he had not been joined to the Construction Workers Pension and Sick Pay Scheme as is required by the REA. He submitted that an Irish national would have been aware of his/her rights in relation to pay, pension and sick pay and would insist on the employer contributions being made and that this amounts to discrimination on grounds of race.
3.4 The complainant also claims that he was dismissed from his employment by the respondent in a discriminatory manner and without any proper procedures. The complainant claims that his employment was terminated on 7 November, 2008 after he was informed by the respondent that there was no more work. The complainant claims that he was the only worker let go by the respondent at that juncture and that a number of other non-Irish nationals (including his son) were retained in employment by the respondent after his dismissal. The complainant stated that the respondent informed him upon the termination of his employment that he would be contacted in the event that further work became available. The complainant stated that the respondent subsequently contacted him (by way of a telephone call to his son) and offered him work for one week. The complainant stated that he could not accept this offer of work as the respondent did not want to employ him on a "legal basis".
3.5 The complainant also referred to a number of cases in support of his case, including Campbell Catering Ltd. -v- Rasaq (EED048), 58 Complainants -v- Goode Concrete (DEC-E2008-020), Khumalo -v- Cleary & Doyle Limited (DEC-E2008-003), Golovan -v- Porturlin Shellfish Limited (DEC-E2008-032) and Ning Ning Zhang -v- Towner Trading t/a Spar Drimnagh (DEC-E2008-001).
4. Summary of the Respondent's case
4.1 The respondents did not attend nor were they represented at the Hearing of the complaint. However, the respondents did furnish a written submission to the Tribunal (through their legal representative), prior to the date of hearing, in response to the alleged discrimination by the complainant.
Summary of the Respondents' written submission
4.2 It was submitted that the complainant commenced working for Zyder Plastics Limited in November, 2006 as a General Operative. The complainant had very poor English and when necessary he would communicate through his son who was also employed by Zyder Developments Limited. The complainant's son had excellent English and acted as a translator for the complainant. While working for Zyder Plastics Limited the complainant worked as an assistant to a van driver. It was submitted that for ease of communication it was agreed between the complainant and the respondent that he would cease working with Zyder Plastics Limited and commence employment with Zyder Developments Limited and communications could take place through his son as he had excellent English. The respondents felt that this would be far better for the complainant as he was encountering difficulties communicating with his fellow employees in Zyder Plastics Limited through English and they valued him as an employee and it was agreed by all that the move to Zyder Developments Limited would be beneficial for him. It was submitted that the complainant was aware at all times about what was happening as it was explained to him by his son. The complainant ceased employment with Zyder Plastics Limited on 28 September, 2007 and took up employment with Zyder Developments in October, 2007 (the respondent submitted a copy of a P45 which it claims was issued to the complainant in relation to his employment with Zyder Plastics Limited). The complainant was employed by Zyder Developments Limited as a General Operative thereafter and was based alongside his son until he was placed on temporary lay-off due to a shortage of work on 7 November, 2008.
4.3 The respondents denied that it discriminated against the complainant by the failure to furnish him with a written contract of employment in his own language or at all. It submitted that at the time of the complainant's employment it was not their procedure to furnish written contracts of employment to any of their employees. The respondents submitted that none of their employees, either Irish or non-Irish nationals, were furnished with a contract of employment and therefore he was treated no differently than an Irish employee or any other employees working for them.
4.4 The respondents also deny that the complainant did not receive any proper Health and Safety documentation or training. It was submitted that the respondents organised and paid for the complainant to take his Safe Pass course with FAS in his own language and that he was issued with a Safe Pass on 1 March, 2007. The respondents also organised and paid for the complainant to attend a training course on the safe and efficient use of Mobile Elevating Work Platforms. It was also submitted that the complainant was made aware of the respondents' Health and Safety statement and that this document was made available to him on the vans and site offices used by them.
4.5 The respondents submitted that the complainant was paid a similar rate of pay to other employees carrying out similar work and therefore he was not treated any less favourably than any other employee regardless of nationality. The respondents submitted that their practice was to place permanent employees on their Pension Scheme. It was submitted that due to the transient nature of employment within the construction industry the respondents had a policy of placing employees who were within their employment over 3 years on the Pension Scheme regardless of whether they were Irish or non-Irish nationals.
4.6 The respondent (Zyder Developments Limited) denies that the complainant was dismissed, either in a discriminatory manner or otherwise, from his employment. It was submitted that in November, 2008 due to the downturn in the construction industry the complainant was placed on temporary lay-off. The respondent had no work for the complainant at this time and the situation was explained to him through his son who acted as a translator. The respondent anticipated that it would have work for the complainant over the following weeks and contact was made with his son on 10 December, 2008 to enquire whether the complainant would be available for work the following day. The respondent submitted that the complainant indicated that he would be available for work, however he failed to return. The respondent submitted that the complainant was not dismissed from his employment but rather he decided that he would not return to work after being placed on temporary lay-off. The respondents submitted that other employees of both Zyder Plastics Limited and Zyder Developments Limited were placed on temporary lay-off at that juncture (including an employee of Irish nationality) and subsequently returned to work when further work became available.
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 Accordingly, the issues for decision in this case is whether or not (i) the complainant has valid complaints before this Tribunal against either, or both, of the named respondents, (ii) either, or both, of the named respondents discriminated against the complainant on the grounds of race, in terms of section 6(2) of the Employment Equality Acts and contrary to section 8 of those Acts as regards his conditions of employment and training and (iii) either of the named respondents dismissed the complainant in circumstances amounting to discrimination on the grounds of race in terms of section 6(2) of the Employment Equality Acts and contrary to section 77 of those Acts. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
Jurisdictional issue regarding identity of correct respondent
5.4 The complainant referred two separate complaints to the Tribunal against Zyder Plastics Limited and Zyder Developments Limited, both of which were received by the Tribunal on 12 December, 2008. It was claimed on the Complaint Referral Forms (EE.1 Form) in both cases that the date of the most recent occurrence of discrimination was 7 November, 2008 (i.e. the date of the alleged discriminatory dismissal). Therefore, two separate issues have arisen in terms of deciding whether the complaints against both of the named respondents are validly before this Tribunal. Firstly, the issue arises as to whether the complainant was in the employment of either, or both, of the named respondents on the date of the alleged discriminatory dismissal. Secondly, the complainant must establish that both of the complaints have been referred to the Tribunal within the time limits provided for within section 77(5) of the Employment Equality Acts.
5.5 In considering the first issue identified above, I note that the complainant claims he was in the employment of 'Zyder' on a continuous basis and without a break in service from 6 November, 2006 until his employment was terminated on 7 November, 2008. The respondents, in their written submissions, claimed that the complainant was initially employed by Zyder Plastics Limited in November, 2006 and that it was agreed with him, by mutual consent, at the end of September, 2007 that his employment with Zyder Plastics Limited would terminate and that he would commence employment with Zyder Developments Limited in October, 2007. The respondents submitted that this action was taken to facilitate the complainant because of his poor level of English so that he would be able to work directly with his son, who was employed by Zyder Developments Limited, and could therefore act as his translator. The complainant denies that he agreed to any such arrangement and he claims that he was not aware during his period of employment regarding the existence of Zyder Plastics Limited and Zyder Developments Limited, as separate entities, and that it was only after his employment had been terminated in November, 2008 that he became aware of this fact.
5.6 The complainant submitted copies of his payslips into evidence which confirm that he was paid by Zyder Plastics Limited from the commencement of his employment in November, 2006 until 28 September, 2007 and that he was paid by Zyder Developments Limited from 5 October, 2007 until 14 November, 2008. The respondent also submitted a copy of a P45 which indicates that the complainant's employment with Zyder Plastics Limited was terminated on 28 September, 2007 and it claims that this document was furnished to him at that juncture (albeit the complainant denies that this P45 was given to him at that juncture and he claims the document was falsified).
5.7 Having regard to the evidence adduced, I accept the complainant's evidence that he was employed by Zyder Plastics Limited and/or Zyder Developments Limited on a continuous basis from November, 2006 until his employment was terminated on 7 November, 2008. However, it is clear from the complainant's payslips that Zyder Plastics Limited ceased paying him on 28 September, 2007 and that he was paid by Zyder Developments Limited from 5 October, 2007 until 14 November, 2007. I am satisfied that this information and the aforementioned P45 is corroborative of the respondents' contention that the complainant ceased to be an employee of Zyder Plastics Limited on 28 September, 2007 and that he was an employee of Zyder Developments Limited thereafter. In the circumstances, I find that the complainant was an employee of Zyder Developments Limited (and not Zyder Plastics Limited) within the meaning of section 2 of the Employment Equality Acts when his employment was terminated on 7 November, 2008.
5.8 The question then turns to the issue as to whether the respective complaints against both Zyder Plastics Limited and Zyder Developments Limited have been referred to the Tribunal in accordance with the time limits provided for in section 77(a) of the Employment Equality Acts. The effect of this provision is that the complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the Tribunal. This period can be extended to twelve months in circumstances where the complainant can show that the failure to refer the complaint within six months was attributable to "reasonable cause".
5.9 In the present case, the complaints against both Zyder Plastics Limited and Zyder Developments Limited were referred to the Tribunal on 12 December, 2008 and the date of the most recent occurrence of discrimination (i.e. the date of the alleged discriminatory dismissal) was stated as 7 November, 2008. In the case of the complaint against Zyder Plastics Limited, I am satisfied that his employment was terminated on 28 September, 2007 and therefore the last date upon which a complaint could be validly referred to the Tribunal was 27 September, 2008 (subject to the complainant being able to successfully show that his failure to refer the complaint within six months was attributable to reasonable cause). Given that this complaint against Zyder Plastics Limited was not referred to the Tribunal until 12 December, 2008, it clearly does not comply with the time limits provided for in section 77(5) of the Acts. In the circumstances, I find that I do not have any jurisdiction to investigate the complaint against Zyder Plastics Limited.
5.10 I am satisfied that the complainant was an employee of Zyder Developments Limited on the date of the alleged discriminatory dismissal i.e. 7 November, 2008 and accordingly, this complaint has been referred to the Tribunal within the six month time limit provided for in section 77(5) of the Employment Equality Acts. In the circumstances, I find that I do have jurisdiction to investigate the complaint against Zyder Developments Limited.
5.11 It should be noted that any reference to the word 'respondent' in this decision hereafter relates to 'Zyder Developments Limited'.
Claims of Discriminatory Treatment - Conditions of Employment and Training
5.12 Firstly, I will consider the issue that has been raised by the complainant in relation to the respondent's alleged failure to provide him with a written contract of employment which he has contended constitutes unlawful discrimination of him on the grounds of race contrary to the Acts. In the first instance, it should be noted that there is no general obligation on an employer to provide an employee with a written contract of employment. There is, however, a statutory requirement on employers to provide employees with a written statement of certain terms of their employment under the Terms of Employment (Information) Act, 1994. Enforcement of rights under this statute rests with the Rights Commissioner (at first instance) and not this Tribunal.
5.13 In a recent Determination the Labour Court, whilst examining the circumstances in which the probative burden of proof operates held as follows -
"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."
5.14 In considering this issue, I note the respondent accepted in its written submission that the complainant was not issued with a written contract of employment upon the commencement of his employment and it stated that its policy was not to issue written contracts to any of its employees (either the Irish or non-Irish nationals) during the complainant's period of employment. The complainant did not dispute this evidence and he could not confirm if any of the respondent's other employees (including those of Irish nationality) were issued with contracts of employment. Having regard to the evidence adduced, I am satisfied that the complainant has not presented any evidence to suggest that he was treated any differently or less favourably than any of the respondent's other employees on the grounds of his nationality in terms of the provisions of a contract of employment. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the ground of race in relation to this aspect of his complaint.
5.15 The next issue raised by the complainant relates to the respondent's alleged failure to provide him with a health and safety statement and training in a language which he could understand which he contends constitutes unlawful discrimination of them on the grounds of race contrary to the Acts. In considering this issue, I note that the complainant did not dispute that the respondent had organized and paid for him to attend a Safe Pass course and a training course on the safe and efficient use of Mobile Elevating Platforms (as was contended in the respondents written submission). The complainant did not adduce any evidence to suggest that he was treated less favourably than any of the respondent's other employees in relation to the provision of health and safety training/documentation. In the circumstances, I find that the complainant has failed to establish that he was treated less favourably than another person would have been, in similar circumstances, on the grounds of his race in relation to this aspect of his conditions of employment. Accordingly, I find that the complainant has failed to establish a prima facie case in relation to this element of his complaint.
5.16 The next issue raised by the complainant relates to the respondent's failure to join him to the Construction Workers' Pension and Sick Pay Scheme or to pay him in accordance with the Registered Employment Agreement (REA). The complainant submitted that this constitutes discriminatory treatment of him on the grounds of race contrary to the Acts. The Industrial Relations Act, 1946 (as amended) provides the Labour Court with jurisdiction on any question as to the interpretation of an REA or its application to a particular person and this Tribunal no authority in those issues. However, allegations that the terms of the REA are being provided in a discriminatory manner do fall within the remit of this Tribunal.
5.17 In considering the issue in relation to the Construction Workers' Pension and Sick Pay Scheme, I note that the complainant could not confirm whether or not the other employees (including those of Irish origin) engaged by the respondent during their period of employment were joined to this Scheme. In the circumstances, I find that the complainant has failed to establish any facts from which it could be inferred that he was treated less favourably than other workers of a different nationality (including those of Irish origin) in terms of the manner in which the REA was applied to his conditions of employment. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of his complaint.
5.18 The complainant also submitted that he was not paid in accordance with the correct rate of pay under the REA and he claimed that a number of Irish workers who were doing the same work as him were being paid between €760 and €840 per week whereas he was being paid €450 per week. He submitted that the higher rate which was being paid to these Irish workers is evidence that he was being subjected to discrimination on the grounds of his nationality in terms of his weekly rate of pay. Section 8(6) of the Employment Equality Acts makes provision for discrimination by an employer against an employee in relation to his/her conditions of employment and this section specifically states:
"(6) Without prejudice to the generality of subsection (1), an
employer shall be taken to discriminate against an employee or prospective
employee in relation to conditions of employment if, on any
of the discriminatory grounds, the employer does not offer or afford
to that employee or prospective employee or to a class of persons of
whom he or she is one --
(a) the same terms of employment (other than remuneration
and pension rights), [my emphasis]"
It is clear from this provision of the Acts that a complainant cannot bring an equal pay complaint disguised as a complaint of discrimination in relation to his/her conditions of employment complaint. Therefore, I cannot examine the complainant's claim regarding being paid a lower wage to that paid to the Irish employees under section 8(6) of the Acts. As the complainant has not referred a claim for equal pay under the relevant provisions of the Acts, I am therefore precluded from investigating this aspect of his complaint.
Discriminatory Dismissal
5.19 The final issue that I must consider relates to the complainant's claim that he was subjected to discriminatory dismissal on the grounds of his nationality. In considering this issue, I note that there is a conflict in the evidence of the parties regarding the circumstances surrounding the termination of the complainant's employment with the respondent. The complainant, on the one hand, claims that he was dismissed by the respondent without any proper procedures on 7 November, 2008 and he denies that he was temporarily laid-off from his job at that juncture. The respondent, on the other hand, stated in its written submissions that the complainant was placed on temporary lay-off in early November, 2008. It submitted that the complainant was contacted (through his son) on 10 December, 2008 and requested to return as further work had become available; however, he failed to return to work and in effect left the employment of his own volition.
5.20 In considering this issue, I note that the complainant gave evidence to the Tribunal that he was informed by the respondent on 5 November, 2008 that there was no more work for him after 7 November, 2008 and that he would be contacted if further work became available. The complainant also stated that his son and a number of other non-Irish nationals were retained in employment by the respondent at that juncture. The complainant accepts that the respondent subsequently contacted him (by way of a telephone call to his son) and offered him work for one week. The complainant gave evidence that he could not accept this offer from the respondent as it was made on the basis of "cash in hand" and he therefore did not return to work with the respondent.
5.21 Having regard to the evidence adduced, I am satisfied that the complainant's employment with the respondent was terminated on 7 November, 2008. However, I am not satisfied that he has adduced any evidence to substantiate the claim that he was dismissed because of his nationality, especially in light of the fact that his son and other workers of non-Irish origin were retained in employment by the respondent after this date. Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that in order to raise an inference of discrimination on the grounds of nationality, the complainant must be able to demonstrate some significant evidence of less favourable treatment and this treatment must be linked to his nationality. Based on the totality of 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 the termination of his employment was in any way influenced by his Lithuanian nationality. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to dismissal on the grounds of his race contrary to the Employment Equality Acts in terms of the manner in which his employment with the respondent was terminated.
Decision
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008.
(i). I find that the respondent (i.e. Zyder Developments Limited) did not discriminate against the complainant on the race ground pursuant to section 6(2)(h) of the Acts in respect of his conditions of employment and training contrary to section 8(1) of the Acts.
(ii). I find that the respondent (i.e. Zyder Developments Limited) did not discriminate against the complainant on the race ground pursuant to section 6(2)(h) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts.
(iii). I find that the complaint against Zyder Plastics Limited has not been referred to the Tribunal within the time limits provided for in section 77(5) of the Acts and accordingly, I do not have any jurisdiction to investigate this complaint.
Accordingly, I find in favour of the respondent in this case.
______________
Enda Murphy
Equality Officer
3rd June, 2011