THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS
Decision DEC - E2011-117
PARTIES
A Domestic Worker
(Represented by MacGuill & Co. Solicitors and Migrant Rights Centre Ireland)
-v-
An Employer
File reference: EE/2008/589
Date of issue: 16 June 2011
Headnotes: Employment Equality Acts, 1998-2008 - sections 6, 8,- race- conditions of employment - prima facie case - discriminatory dismissal.
1. Dispute
1.1 This dispute concerns a claim by Ms. P (hereinafter "the complainant") that she was subjected to discriminatory treatment on the grounds of her race in terms of Section 6 of the Act and contrary to Sections 8 of the Employment Equality Acts by Mr. R (hereafter "the respondent"). The complainant maintains that the respondent discriminated against her in relation to her conditions of employment. She also maintains that she was discriminatorily dismissed.
1.2 The complainant referred a complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 4 September 2008. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Deirdre Sweeney, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 26 January 2011 the date the complaint was delegated to me. A submission was received on behalf of the complainant. No submission was received from the respondent. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 30 March 2011. The parties were notified of this date by registered post. As the claim relates to employment as a childminder in the respondent's home, I have anonymised the details of the parties in the interests of protecting the identity of the minor children who may be identified if the respondent is named.
2. Summary of the Complainant's Submission
2.1 The complainant, who is a South African national, states she was recruited in South Africa by the respondent to work in his home in Dublin. She is a qualified nanny with eighteen years experience and was registered with an employment agency in South Africa that introduced her to the respondent. After interview the respondent offered her a position as childminder in his home. The respondent, a private employer, was a widower with three children. She commenced work on 1 September 2007 and her employment terminated on 29 March 2008. She normally worked six days a week. She was required to work 70 hours on a weekly basis for which she was paid €200 a week. The complainant submits that she was paid on a monthly basis in two instalments, €400 being paid to her account and a further €400 being paid in cash. She did not receive a payslip. She submits that she received a contract of employment. The contract made several references to South African employment legislation and appeared to be drafted in contemplation of an employee living and working in South Africa but who may be required to travel occasionally.
2.2 The complainant submits that she was assured by the agency and subsequently by the respondent that all matters relating to her permission to work in Ireland were in order. She traveled to Ireland and took up residence in the respondent's home in Castleknock, Dublin. She commenced employment on 1 September 2007. The two older children were living away in college and at boarding school and came home at weekends or holidays. During the week the complainant took care of the youngest child who was ten years old. The respondent was frequently away from home for long periods on business. A cleaner was hired for surface cleaning on Tuesdays and Fridays. On other days the complainant would attend to household cleaning duties as needed.
2.3 The complainant states that her working day began at 8.30 am when she would wake the ten year old and get her ready for school. She would prepare breakfast and lunch and drop the child off to school by 9.15am. She would do the household shopping, wash and iron clothes, tidy rooms and do any necessary chores. On or around 3pm she collected the child from school. At the respondent's request she would walk to school on two days every week. On other days she would drive. They would arrive home at approximately 3.45pm depending on whether she was driving or not. She would attend to the child and supervise homework. After this she may take her out for a walk or take her out for the evening. The complainant would prepare dinner and after dinner she would supervise the child. She would prepare her for and put her to bed by 9.30 pm.
2.4 When the child was not at school the complainant was required to supervise her when needed. On occasion she would visit relatives and the complainant would drop her off and collect here. At weekends the second eldest child came home from boarding school and the complainant was required to collect her. She would also drive her to wherever she wanted to go, wash and iron her clothes and prepare meals for her.
2.5 The complainant alleges that the respondent sought to exercise a significant level of control over her. He would frequently inquire about her whereabouts and plans. Approximately two months into the employment the complainant had a dispute with the respondent. She had finished for the evening and had made plans to go out. The Respondent informed her that she could not leave as he may want to leave later and she would be needed to babysit. The complainant protested that she had finished her day's work and should be allowed to leave. An argument ensued. The complainant submits that the atmosphere surrounding the employment relationship continued to deteriorate and there were other disputes of this manner, culminating in an incident in mid February on or around St Valentine's night. The respondent arrived home and appeared to be inebriated. The complainant was in the kitchen with the children. The respondent began to criticise the complainant and became abusive. At this point the complainant called the respondent a "bastard". The respondent in turn angrily told her that she was fired. The situation subsequently calmed down, the parties had a discussion, the complainant apologised for calling him such a name and acknowledged that she should not have done so particularly in his children's presence. The complainant was informed that she was now on probation.
2.6 The respondent left the country on business to South Africa. On his return on or around 29 March 2008 he informed the complainant that she was dismissed. He requested a statement stating that she had resigned her position and promised a reference if she would sign. She refused. As a result of her dismissal she became homeless and was forced to seek emergency social assistance.
2.7 The complainant contends that the respondent recruited a South African national in order to be able to make her work on discriminatory terms. The complainant contends that she was discriminated against within the meaning of the Employment Equality Acts in that she was treated less favourably in terms of her conditions of employment than a person of a different race would have been treated. She also contends that she was discriminated against in the manner in which she was dismissed in particular by being dismissed without being given proper notice, not being given reasons for her dismissal and being effectively turned out of her home without being given an opportunity to make other arrangements.
3. Summary of the Respondent's Submission
3.1. The respondent did not engage with the investigation. No submission was received from the respondent nor did the respondent attend the hearing. The respondent was notified of the date of the hearing by two separate registered letters. The Tribunal was informed by An Post that the first one was successfully delivered; the second letter was returned to the Tribunal. I note that the respondent is listed on the register of electors 2011-2012 at the address to which the letters issued.
4. Conclusions of Equality Officer
4.1 The issue for decision by me is whether or not the respondent (i) discriminated against the complainant on grounds of race in terms of section 6 of the Acts and contrary to Section 8 of those Acts. 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.
4.2 Section 6(1) of the Employment Equality Acts 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...". 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". It follows therefore that the complainant must be the subject of less favourable treatment on grounds of nationality i.e. because she is South African.
4.3 Section 85A of the Employment Equality Acts 1998- 2007 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer 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 her, her case cannot succeed.
4.4 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... "
4.5 The first issue raised by the complainant is that she was treated less favourably on grounds of race in the terms and conditions of her employment. More specifically she contends that
she was paid less than the minimum wage,
she worked well in excess of 48 hours per week,
she was not paid Bank Holiday entitlement,
she was not paid Sunday premium,
she was not given appropriate breaks,
she did not have privacy during her time off having to inform the respondent of her whereabouts at any time of the day,
her movements were controlled by the respondent outside of work hours,
she was made to work as a live-in housekeeper rather than a child minder,
she was subject her to verbal abuse and being threatened with dismissal.
4.6 At the hearing the complained outlined how she was recruited in South Africa when the respondent and his children were visiting there. The complainant submitted that the respondent is the owner of a number of businesses both in Ireland and in South Africa. She was first advised that she would be travelling to Ireland with the family and at a late stage was advised that she was to travel to Ireland on her own two days later. She understood her travel documentation and work permit were in order. When she arrived in Ireland, she was stopped at immigration and was given a card to give to her employer to complete. When she arrived at the house she gave this to the respondent, he tore it up and threw it in a bin and told her there was nothing to worry about. It subsequently transpired that the respondent did not have a work permit for the complainant. The complainant submitted in evidence the employment contract she received. The contract makes several references to South African employment legislation. The information in it supports the complainant's contention that the terms and conditions of her employment were not in compliance with Irish employment legislation.
4.7 The complainant was a cogent and credible witness. She outlined that while it was intended that she would have some free time during the day when the youngest child was at school, this did not happen. Her evidence which was undisputed outlined the amount of control that the respondent sought to impose on her. The respondent who owned a café nearby would come back to the house during the morning and, if she was not there, wanted to know exactly where she was or where she had been. Her evidence was that it would cause too much trouble if she was not in the house. She also gave evidence that while her work was supposed to finish at 9.30pm this did not happen. She outlined that the respondent was regularly out of the house at night-time and overnight and that the youngest child would wake up crying and seek comfort from her. She was often left alone at night with the child without any notice. Wednesday was her designated night off when the child stayed over with her grandmother. However on the occasions when the respondent cancelled this arrangement she would have to forego her night off. She was left alone with the two children (the youngest during the week with the second eldest at the weekend when she came home from boarding school) when the respondent travelled to South Africa on business. He went to South Africa for three weeks at a time. She would then have to look after the children, day and night.
4.8 In addressing the probative burden in this case I am mindful of the Labour Court's finding that mere allegations unsupported by any corroborative evidence are insufficient to establish a prima facie case. This has been followed in a number of Equality Officer decisions. In this case it is alleged that an Irish employee would not have been treated in a similar fashion to the complainant. The complainant's representative submitted that the complainant was in a particularly vulnerable position. She was recruited from South Africa by the respondent. She was without family, friends or support network here. She had nowhere to live other than the respondent's house. When she arrived she found herself working here illegally without a work permit, a situation created by the respondent.
4.9 In a Company v A Worker the Labour Court found
"... on the balance of probabilities the treatment of the worker by the manager, and the almost complete non-implementation of relevant legislation, was due to the fact that it regarded the worker as someone of a different nationality, who would not have the capability to stand on their legal rights and that by its actions ....discriminated against her on grounds of her nationality.......In a normal recruitment situation the indigenous prospective employee would have far greater confidence about the situation. It would be possible to seek support in making their decision from advisory services, family, understanding of the structure and the interactions of the labour market, financial support of the state, to name but a few. In this situation, these options did not exist. It was either return to her country of origin (bearing in mind that she had sought to leave her country and committed substantial resources to bring it into effect) or take up the job offer. It was not a situation which would relate to an Irish employee"
4.10 The provisions in the contract of employment entered into between the complainant and the respondent in South Africa are quite clearly not in compliance with Irish employment law. The contract runs to eleven pages. It does not include details of hours of work, provides for 15 days annual leave after one year's work is completed, and outlines, over two pages, security searches, testing ( urine/blood tests, polygraph, forensic/electronic/chemical), monitoring (of premises, equipment, vehicles), surveillance of telephones, email, internet access, which the employer may undertake at any time. I am satisfied that an Irish employee would not have been given such a contract. I am satisfied that an Irish employee would not have been placed in the vulnerable position in which the complainant was placed, in a foreign country without appropriate documentation, without any support network, and dependant on the respondent for both employment and accommodation. I am satisfied that this left the complainant more vulnerable to being treated less favourably in terms of conditions of employment. I have found the complainant's evidence to be credible and I am satisfied that the complainant has adduced evidence from which a prima facie case of discrimination on the race ground in relation to her conditions of employment can be inferred. I also find that the respondent has failed to rebut that inference so raised as he did not engage with, attend, nor was he represented, at the Hearing. It follows therefore that the complainant is entitled to succeed in this element of her complaint. In light of the foregoing I find that the complainant was discriminated against in relation to her conditions of employment contrary to the Employment Equality Acts.
4.11The next element of the complainant's claim concerns the allegations that she was subjected to a discriminatory dismissal by the respondent on the grounds of her race. At the hearing the complainant stated that on his return from a trip to South Africa the respondent told her she was fired and to remove her belongings from his house and leave immediately. He gave her no explanation but threatened her that she should not take any claims against him. She had to pack her belongings and leave. She texted a friend that she had made in her time in Ireland, and the friend collected her from outside the house. She had nowhere to live. The Migrant Rights Centre assisted her in getting accommodation and helped her apply for a work permit. She entered into other employment about eight months later. The complainant gave very clear and credible evidence. The complainant's vulnerable position has been previously outlined. I am again satisfied that the respondent dismissed the complainant in this manner without due process and without any explanation because of her vulnerable situation and an Irish worker would not have been dismissed in this manner. I therefore find that the complainant has established a prima facie case that she was discriminatorily dismissed on grounds of her race pursuant contrary to the Employment Equality Acts.
5. DECISION OF THE EQUALITY OFFICER
5.1 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) the respondent discriminated against the complainant on the race ground pursuant to section 6(2) of the Acts in terms of her conditions of employment contrary to section 8(1) of the Acts.
(ii) the respondent discriminated against the complainant on the race ground pursuant to section 6(2) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts.
5.2 I am satisfied that the appropriate redress is an award of compensation. It is now well settled that an award of compensation for the effects of discrimination must be proportionate, effective and dissuasive. Pursuant to 82 (1) (c) I order that the respondent pay the complainant
€15,000 for the effects of discriminatory treatment in relation to her conditions of employment
€31,486 for the effects of discriminatory dismissal which is equivalent to one year's salary calculated on the basis of a Right Commissioner decision and Labour Court determination that the claimant was entitled under the Minimum Wage Act 2000 to the minimum wage of €8.65 per hour equating in her case to €605.50 per week.
This award is in compensation for the infringement of the complainant's statutory rights and, therefore, not subject to income tax as per Section 7 of the Finance Act 2004.
________________
Deirdre Sweeney
Equality Officer
16 June 2011