The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2011-112
PARTIES
Gorelovs Nikolajs and Aleksejs Celadko
(Represented by Richard Grogan & Associates)
AND
John Wholey
File reference: EE/2008/843 and EE/2008/844
Date of issue: 14 June 2011
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 and 8 - Race - `Training - Conditions of employment - Harassment - Discriminatory dismissal.
1 DISPUTE
1.1 This dispute concerns claims by Mr Gorelovs Nikolajs and Mr Aleksejs Celadko that they were discriminated against by John Wholey on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts 1998-2008 in relation to training, conditions of employment and discriminatory dismissal in terms of sections 8 of the Acts and that they were harassed in terms of section 14A of the Acts.
1.2 The complainants referred their claims to the Director of the Equality Tribunal on 4 December 2008 under the Employment Equality Acts 1998 and 2004. On 7 April 2011, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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. Submissions were received from the complainants. The respondent did not engage with the Tribunal. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 8 April 2011.
2 COMPLAINANTS' SUBMISSION
2.1 Both complainants submit they that worked for the respondent as dump truck drivers. Mr Nikolajs started work in April 2008 and Mr Celadko in May 2008. They made similar claims in relation to their training, conditions of employment and other, in that:
- they did not receive a contract of employment,
- they were paid €12 per hour which was not in accordance with the Registered Employment Agreement (REA) for the Construction Industry,
- they were not joined into the Construction Workers Pension and Sick Pay Scheme,
- they were not provided with payslips,
- they were not provided with a health and safety statement.
2.2 The complainants submit that they were both subject to abuse by the owner of the respondent company that amounted to harassment.
2.3 Mr Nikolajs submits that on 25 August 2008 he was driving his dump truck when a tyre burst. He informed the foreman and he was dismissed half an hour later. It was the first time that he had burst a tyre and it was the only reason for his dismissal. He submits that an Irish driver would not have been dismissed in similar circumstances.
2.4 Mr Celadko submits that he was dismissed on 12 October 2008 when he was told that he was not needed anymore.
2.5 The complainants submit that an Irish worker would have been aware of their rights and would not have been treated in the same way. Furthermore they submit that special measures may be necessary when an employer deals with a foreign national.
3 RESPONDENT'S SUBMISSION
3.1 The respondent did not make a submission to the Equality Tribunal and did not attend the hearing.
4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainants were discriminated against in relation to their training, conditions of employment, if they were dismissed in a discriminatory manner and if they suffered harassment. 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 presented at the hearing, which the complainants gave separately.
4.2 Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. Further, in a recent Determination the Labour Court¹, 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 is in 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."
Training
4.3 Both complainants gave evidence at the hearing that they received Health and Safety induction when they moved onto a new site. This was in English and they did not understand all of it. On one occasion a Ukranian national translated some parts they did not understand into Russian. That was the only training they received.
4.4 In the Goode Concrete case the Equality Officer decided that the complainants in Goode Concrete were treated less favourably than someone who had a good command of English as such a comparator, notional or otherwise, would automatically be made aware of their rights because they understood the language and were provided with the information in that language. In that context, it is notable that the Tribunal went on to make an order to "put in place clear procedures for ensuring that non-national employees are clear as to their terms and conditions of employment and also understand all safety documentation" rather than specifying that the contract of employment and/or health and safety statement should be provided in those employees' native language. The onus on the respondent in the Goode Concrete case was to make reasonable efforts to ensure that each employee understood their rights and that it ensured that they were not treated less favourably than someone who was made aware of those rights if they did not. In these claims the evidence of the complainants is uncontested but it was given separately and was consistent. I accept their version of events and this shows that reasonable efforts were not made to ensure the complainants understood the health and safety training and I find this amounts to discrimination in relation to training on the grounds of their race.
Conditions of Employment and Other
4.5 Both complainants gave the same evidence in relation to their conditions of employment and other. They contend that one of the Irish drivers asked them how much they were earning and when they told him he laughed and said he was earning a lot more. They both also contended that they think the Irish workers were getting payslips as they saw the owner giving them envelopes each week.
4.6 They also gave evidence at the hearing that a Lithuanian tried to get a pay rise and sacked. Also the complainants said they were travelling from Drogheda to work in Dublin but did not receive travel payments.
4.7 In these claims the evidence of the complainants is uncontested. It was given separately and was consistent. However, their contentions were not corroborated, for example as to how much the Irish driver was earning or that the envelopes did contain payslips. I therefore conclude that they have not provided evidence of sufficient weight to demonstrate a prima facie of discrimination in relation to their conditions of employment and other.
Harassment
4.8 Both complainants contend that the owner, Mr John Wholey, treated them badly and regularly swore at them. The say that he mainly swore at the non-Irish. Whilst I accept their evidence that the owner swore at them regularly the complainants have provided no evidence, other than their assertions, that the Irish workers were not similarly treated or that the bad language had a racial element to it. In the absence of such evidence I cannot find that they suffered harassment on the grounds of race.
Dismissal
Gorelovs Nikolajs
4.9 Mr Nikolajs contends he was dismissed on 25 August 2008 when a tyre burst on his truck. Again I found the complainant to be a credible witness and believed his account. He contends that an Irish driver would not have been dismissed in such circumstances.
4.10 Dismissal is a serious event and given that I accept the complainant's version of events I conclude that dismissal seems a very harsh censure for such an event, unless there were extenuating circumstances. The respondent chose not to give its' version of events so I unaware of any extenuating circumstances. In the absence of any contrary evidence I further conclude that it would be unlikely than one of the respondent's five Irish drivers, who the owner would have known would be familiar with Irish employment legislation, would have been summarily dismissed if a tyre had burst on their truck. I therefore find that this amounts to discriminatory dismissal on the grounds of the complainant's race
Aleksejs Celdako
4.11 Mr Celdako stated that he was dismissed when he was told he was not needed anymore. However, he gave no evidence that might imply that his dismissal was discriminatory on the grounds of his race.
5. DECISION
I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
the respondent did discriminate against both complainants in relation to their training,
the respondent did not discriminate against the complainants in relation to their conditions of employment or other,
the respondent did not harass the complainants,
that the respondent did dismiss Gorelovs Nikolajs in a discriminatory manner, and
that the respondent did not dismiss Alekesejs Celadko in a discriminatory manner.
I order the respondent to pay Gorelovs Nikolajs €5,500 in compensation for the discriminatory treatment suffered.
I order the respondent to pay Aleksejs Celdako €500 in compensation for the discriminatory treatment suffered.
These figures represent compensation for infringement of their rights under equality legislation in relation to discrimination and do not include any element relating to remuneration, and are therefore not taxable.
____________________
Hugh Lonsdale
Equality Officer
14 June 2011
¹ Labour Court Determination Arturs Valpeters v Melbury Developments Ltd EDA0917 [2010] 21 E.L.R