THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011-116
PARTIES
Rolands Kudrevics
(Represented by Richard Grogan & Associates, Solicitors)
-v-
LN SIRBU Company Ltd
File Reference: EE/2008/693
Date of Issue: 16th June 2011
Decision DEC - E2011-116
Rolands Kudrevics
(Represented by Richard Grogan & Associates, Solicitors)
-v-
LN SIRBU Company Ltd
Keywords
Employment Equality Acts 1998-2008, Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 6(2)(h) - Race, Section 8- conditions and discriminatory dismissal, prima facie case.
1. Dispute
1.1 This dispute concerns a claim by a complainant that he was discriminated against by the above named respondent on the race ground, in terms of Sections 6(1) and 6(2)(h) of the Employment Equality Acts 1998-2008 and contrary to section 8 in relation to his condition of employment, training and dismissal.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 22nd of October 2008 alleging that the respondent discriminated against him contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 29th March, 2011 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from the complainant on the 8th April 2009 and from the respondent on the 18th May 2009. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the13th April 2011.
3. Summary of the Complainant's Case
3.1 The complainant is a Latvian national and was employed by the respondent from October 2007 until June 2008 when his employment was terminated. The complainant worked for the respondent as a general operative doing garden maintenance and outdoor cleaning. He was provided with a work truck. The complainant said that the employer was from Moldova and all the employees were from either Romania or Latvia. The complainant said that he did not receive a contract of employment, health and safety documentation or training such as manual handling training. He also said that he was paid by cheque in the amount of €350 and he also paid €250 in cash. He said that he believed that this money was not taxed and that his tax affairs were not in order after his employment ended. He referred a number of complaints to the Rights Commissioner including complaints under the Organisation of Working Time Act 1997 and Terms of Employment (Information) Act 1994. A finding was made that he did not receive a contract of employment or appropriate rest and break periods and that he received no notice in relation to a requirement to work overtime and no notice of his dismissal.
3.2 The complainant said that all the other employees were treated the same way in that none of them received contracts of employment, health and safety documentation or training. The complainant said that he was dismissed without notice or any reason on the 20th June 2008. He called the respondent the following day and was given no reason. The complainant said that he was dismissed because the respondent's brother needed a place to work.
3.3 The complainant denied that he received any warnings either verbal or written about his work prior to his dismissal. He submitted that he received 3 letters from the respondent about a month after he was dismissed one concerned a warning about his work, the second was a final warning again about problems with his work and the third was a dismissal notice. He denied that there were any problems with his work and after receiving the letters he checked out the complaints with the respondent's clients and found that there were no complaints. The complainant claims that his dismissal was discriminatory on the race ground
3.4 The complainant's legal representative referred me to a number of cases in support of the 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). She submitted that while it was accepted by the respondent that he did not issue contracts of employment or provide health and safety training or documentation to any of his employees or declare all the employees' income for tax purposes, this did not mean there was no discrimination on the race ground. She submitted that the jurisprudence of the above cited Goode Concrete was relevant and submitted that by treating every employee the same they were all discriminated against as compared to a notional Irish comparator. She submitted that an Irish person would know their employment rights and would know from the way they were paid that their tax affairs were not in order.
3.5 In relation to the dismissal the solicitor submitted that the respondent did not warn the complainant about his standard of work as he indicated in his submission to the Tribunal. The letters of warning were given to him about a month after he was dismissed together with a letter of dismissal and she believes these were created after the dismissal for the sole purpose of justifying the dismissal procedure. She submitted that because he was given no contract of employment the complainant did not know anything about the dismissal procedures or his right to proper notice. She submitted that an Irish person in similar circumstances would not have been treated like that because they would have known their rights. She said that the respondent has not come to the Tribunal with "clean hands" in that the documents they provided to justify the dismissal were created after the dismissal.
4. Summary of the Respondent's case
4.1 The solicitor for the respondent, in a letter to the Tribunal, stated that the company is no longer trading and for this reason they would not be attending the scheduled hearing. The following is a summary of the company's written submission:
The respondent company is a wholly owned and managed by Moldovan nationals who have Irish citizenship. It is in the business of property management/maintenance and has approximately 30 customers. It has about 12 employees who are all either from Lithuania, Latvia, Uzbekistan, Romania and Poland. The complainant is a Latvian national and was employed as a general operative mainly responsible for garden maintenance and sweeping and tidying. The complainant was provided with pay slips and with a health and safety statement, but none of the employees were provided with contracts of employment. The respondent denies that the complainant's tax affairs were not in order and or that he was paid money which was not declared for tax purposes. In support of this they submitted a copy of his P60.
4.2 The respondent submission further stated that he received complaints from a number of clients regarding the standard of the complainant's work. The complainant was verbally warned about his work. The verbal warning was in Russian which is the language common to both parties. He was issued with a written warning on the 12th May 2008 following a further complaint about the standard of his work. A further written warning was issued to the complainant on the 16th June 2008 which referred to verbal warnings given to him on the 6th and 13th of June in relation to 2 separate matters concerning the cutting down of trees. In that letter he was warned that if there were any further complaints about his work his employment would be terminated. On the 25th June 2008 letter of dismissal was issued to him following the receipt of 3 further complaints from customers. The respondent did not accept the complainant's contention that the letters were not given to him until after his dismissal. They said that the complainant did not read the letter of warnings or retain them but he did indicate he understood the contents. A couple weeks after his dismissal, the complainant requested copies of the warning letters and the dismissal letter because he wanted to sue the company. The respondent submitted that the complainant was dismissed because he failed to improve his performance.
5. Conclusions of the Equality Officer
5.1 The issues for decision in this case is whether or not the respondent discriminated against the complainant on the grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of the Acts as regards his conditions of employment, training and dismissal. Section 6 of the Acts inter alia provides:
6. -- (1) "For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
discrimination shall be taken to occur where --
(a) 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) (in this
Act referred to as the ''discriminatory grounds'') which --
(2) As between any 2 persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are --
(h) that they are of different race, colour, nationality or ethnic
or national origins (in this Act referred to as ''the ground
of race''),"
and Section 85A of the Acts provides:
"(1) 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".
5.2 This requires the Complainants to prove the primary facts upon which they rely in seeking to raise an inference of discrimination. It is only when they have discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainants do not discharge the initial probative burden required of them their cases cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
Firstly, I will consider the issues which have been raised by the complainant in relation to his conditions of employment/training which he contends constituted unlawful discrimination on the grounds of race contrary to the Acts. He submits that the respondent's failure to provide him with a written contract of employment and a health and safety statement/training was discriminatory treatment on the race ground in that a notional Irish comparator would not be treated in such a manner because they would have known their rights.
5.3 In considering the issues raised, I note from the evidence that there were workers of various nationalities employed by the respondent at that time, but there were no Irish employees. From the complainant's own evidence it is clear that none of the employees were provided with contracts of employment, health and safety documentation and training regardless of their nationality. It would also appear from the evidence that they were all paid by a similar method. Accordingly I find that the complainant was not treated less favourably than the other employees of different nationalities, who were employed by the company, were treated in similar circumstances.
5.4 The next matter I have to consider is whether the complainant was treated less favourably than a notional Irish comparator. I cannot accept the argument put forward by the complainant's solicitor that Irish employees would know their rights and consequently it could be inferred from that that they would not be treated in such a manner. This proposition is mere conjecture and not based on any credible evidence. There is no evidence to support the contention that an Irish employee would have been given a contract of employment, health and safety training and documentation and that the method of paying their weekly wages would have been any different. I consider the reasoning in the case of Melbury Developments and Valpeters (Det. No. EA AO917) is relevant in this case. The Labour Court stated:
"Section 85A of the Act 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."
5.5 In applying the above reasoning of the Labour Court and having regard to the totality of the evidence adduced in the present case, I am not satisfied that the complainant has adduced any supporting evidence from which I could reasonably conclude that he was treated less favourably than an Irish person was treated or would have been, in similar circumstances, in relation 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 aspect of his complaint.
5.6 The next part of the complainant's claim concerns the allegations that he was subjected to a discriminatory dismissal by the respondent on the grounds of his race. The complainants stated in evidence that he was dismissed by the respondent without warning and for no good reason. He believes he was dismissed because the respondent wanted to replace him with his brother. The respondent submitted that the complainant was dismissed for reason relating to his standard of work following a number of verbal and written warnings including a final warning.
5.7 I am not satisfied that the complainant has adduced any evidence to substantiate his claim that he was dismissed because of his nationality. It is certainly clear from the respondent's submission that the complainant was dismissed following warnings both verbal and written about the poor standard of his work. If the complainant was dismissed for this reason it is clear there was no connection between the complainant's nationality and the reason for his dismissal. I am satisfied that an Irish employee or an employee of a different nationality would have been dismissed in similar circumstances. If I were to accept the complainant's evidence that he was dismissed because the respondent wanted to replace him with his brother, I cannot find any discriminatory treatment in such a dismissal. I am satisfied that an Irish employee or an employee of a different nationality would have been dismissed in similar circumstances. In order to raise an inference of discriminatory dismissal on the grounds of nationality, the complainants must produce some evidence of less favourable treatment and that treatment must be linked to his nationality. I find no connection between the complainant's nationality and his dismissal. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to his dismissal on the grounds of his race.
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, 1998 to 2008. I find that:
the respondent did not discriminate against the complainant on the race ground pursuant to sections 6(1) and 6(2)(h) of the Acts in terms of his conditions of employment and training contrary to section 8(1) of the Acts.
(ii) the respondent did not discriminate against the complainant on the race ground pursuant to sections 6(1) and 6(2)(h) of the Acts, in respect of his dismissal contrary to section 8(6) of the Acts.
________________________________
Marian Duffy
Equality Officer
16th June 2011