The Equality Tribunal
Employment Equality Acts
Decision DEC-E2011-120
PARTIES
Modestas Jonikas, Tadas Rubys, Marius Uisinskis, Mindaugas Mikutis, Andrius Liunas, Robertas Jonikas & Marius Maciulis.
(Represented by Richard Grogan & Associates)
- V -
Miskey Cladding Ltd. (in Liquidation)
File references: EE/2007/605
Date of issue: 16 June 2011
Keywords - Employment Equality Acts - Discriminatory Treatment - Discriminatory Dismissal - Victimisation - Victimisatory dismissal - Race - Prima Facie case
1. DISPUTE
1.1 This dispute concerns a claim by Modestas Jonikas, Tadas Rubys, Marius Uisinskis, Mindaugas Mikutis, Andrius Liunas, Robertas Jonikas & Marius Maciulis that they were subjected to discriminatory treatment, discriminatory dismissal and harassment by the respondent on the grounds of their race in terms of Section 6(2) & Section 14(A) of the Employment Equality Acts and contrary to Section 8 of those Acts
1.2 The complainants referred their claims of discrimination to the Director of the Equality Tribunal on 19 November 2007 under the Employment Equality Acts. On 16 April 2010, in accordance with her powers under section 75 of the Acts, the Director then delegated the cases to Conor Stokes - 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. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 22 March 2011. Further written information was received from the complainant's representative on 5 April 2011. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
1.3 Neither Modestas Jonikas, Tadas Rubys, nor Marius Uisinskis turned up for the hearing and their respresentative indicated that they were on notice of the arrangements for the hearing. The respondent did not attend the hearing.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 Each of the complainants submitted that they were employed by the respondent and are non-Irish nationals (being from Lithuania and Latvia) and it is on this basis that these complaints are being taken. The complainants submitted that they did not receive a proper contracts nor Health & Safety documentation.
2.2 Each of the complainants submitted that they were not paid the correct rate of pay. The complainants submitted that they did not receive terms and conditions that complied with the Registered Eemployment Agreement for the construction industry
2.3 Each of the complainants submitted that they did not receive proper employment documentation and were not joined into the CWPS pension and sick pay scheme. The complainants also submitted that they did not receive a P60.
2.4 The fifth-named complainant (Andrius Liunas) submitted that he was at home on a Sunday (his day off) and that he received a phonecall from the respondent to come and collect a van. He stated to the respondent that he couldn't drive as he had drink taken. In response the complainant suspended him for 2 days.
2.5 The complainant submitted that the respondent rang Mr Robertas Jonikas the following day to enquire where he and his co-workers were. Mr Jonikas replied that there was nobody to drive them, as Mr Liunas was suspended. In response, the respondent fired all of the complainants.
2.5 Each of the complainants submitted that they must establish a prima facie case and cited the Labour Court case of Southern Health Board v Mitchell in support of this contention.
2.6 Each of the complainants referred to the Equality Tribunal case 58 named Complainants v Goode Concrete Ltd. in relation to dismissal, contract of employment and Health & Safety and the issue of the notional Irish comparator.
2.7 Each of the complainants submitted that they are seeking compensation.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 Other than the liquidator's correspondence, the respondent did not engage with the Tribunal in advance of the hearing.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me in relation Mindaugas Mikutis, Andrius Liunas, Robertas Jonikas & Marius Maciulis is whether or not the respondent subjected each of the complainants to discriminatory treatment, discriminatory dismissal and harassment on grounds of race, in terms of Section 6 and 14A of the Employment Equality Acts, and contrary to Section 8 of those Acts.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires each of the complainants 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.
4.3 The liquidator indicated that he understood the complaints to be withdrawn and would not be attending the hearing. Notwithstanding the foregoing, it remains the case that each of the complainants must establish facts from which discrimination may be inferred.
4.4 At the hearing, Mr Andrius Liunas gave evidence that he had been to a party on the Saturday night and that he was at home on a Sunday (his day off) when he received a phonecall from the respondent to come and collect a van. He stated to the respondent that he couldn't drive as he had drink taken. In response the complainant suspended him for 2 days.
4.5 Mr Robertas Jonikas gave evidence that on the following day, the respondent rang to enquire where he and his co-workers were. Mr Jonikas replied that there was nobody to drive them to the site. Mr Jonikas gave evidence that in a heated response, the respondent fired all of the complainants.
4.6 Each of the complaints that attended the hearing gave evidence which was broadly consistent and I have no reason to doubt their version of events. However, none of the complainants was in a position to provide evidence that any other employee of similar or different race, in similar circumstances, would have been treated differently.
4.7 In the case of IBM Ireland Product Distribution Ltd and Michelle Svoboda (EDA1116) the Labour Court stated that it has "consistently found that mere allegations unsupported by any corroborative evidence are insufficient to establish a prima facie case and so transfer the burden of proof" and went on to cite its earlier decision in Melbury Developments Ltd v Valpeters (EDA 17/2009) where it stated that "mere speculation or assertion, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn". In the instant case the complainants have asserted that they treated differently because of their race. They also gave evidence that their employer was not particularly pleasant to them. They were not in a position to detail how any other employees were treated, irrespective of nationality. I consider that all the evidence that the complainants have proffered in relation to providing a nexus to the race ground falls into the category of 'mere assertion'.
4.8 It is not the role of this Tribunal to consider whether complainants have been unfairly treated, rather to consider the issue of discrimination in relation to the protected grounds. Having regard to the written and oral evidence presented to the Tribunal, I am not satisfied that the complainants have established, in the first instance, facts from which discrimination on the grounds of race may be inferred.
5. DECISION
5.1 In relation to Modestas Jonikas, Tadas Rubys, nor Marius Uisinskis and in accordance with Section 79(6) of the Employment Equality Acts I issue the following decision. As part of my investigation under Section 79 of the Acts, I am obliged to hold a hearing. I am satisfied that these named complainants were notified of the arrangements for the hearing. I find that the complainant's failure to attend such a hearing was unreasonable in the circumstances and that any obligation under Section 79 has ceased. As no evidence was given at the hearing in support of the allegations of discrimination, I conclude the investigation and find against these complainants.
5.2 Having considered all the written and oral evidence presented to me, in relation to Mindaugas Mikutis, Andrius Liunas, Robertas Jonikas & Marius Maciulis, I find that a prima facie case of discriminatory treatment on the basis of the race ground has not been established and this element of the complaint fails.
5.3 Having considered all the written and oral evidence presented to me, in relation to Mindaugas Mikutis, Andrius Liunas, Robertas Jonikas & Marius Maciulis, I find that a prima facie case of discriminatory dismissal on the basis of the race ground has not been established and this element of the complaint fails.
5.4 Having considered all the written and oral evidence presented to me, in relation to Mindaugas Mikutis, Andrius Liunas, Robertas Jonikas & Marius Maciulis, I find that a prima facie case of harassment on the basis of the race ground has not been established and this element of the complaint fails.
Conor Stokes
Equality Officer
16 June 2011