Equality Officer's Decision No: DEC-E/2011/121
Parties
Adomavicius
(Represented by Richard Grogan and Associates - Solicitors)
And
Clive Pratt Ltd.
File No: EE/2009/431
Date of issue: 21 June, 2011
Headnotes: Employment Equality Acts 1998- 2008 - sections 6&8 -race- equal treatment - conditions of employment - prima facie case
1. DISPUTE
This dispute involves a claim by Mr. Aurelijius Adomavicius, who is a Lithuanian national, that he was (i) discriminated against by the respondent in respect of his conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and (ii) dismissed by the respondent in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998-2008, contrary to section 8 of those Acts.
2. BACKGROUND
2.1 The complainant states he was employed by the respondent as a Car Mechanic from March, 2005 until January, 2009. He contends that during his period of employment he was treated less favourably as regards his conditions of employment on grounds of race (Lithuanian nationality) contrary to the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on 25 June, 2009. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, 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 21 April, 2011- the date it was delegated to me. Submissions were received on behalf of both parties and a Hearing on the complaint took place on 4 May, 2011. On 31 April, 2011 the Tribunal received a letter from the respondent advising that it had ceased trading on 31 December, 2010 and that no one would be attending the Hearing. The complainant and his representative attended the Hearing, at the outset of which the complainant withdrew the discriminatory dismissal element of his complaint.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is a Lithuanian national, states that he commenced employment as a Car Mechanic with the respondent in April, 2006 and remained in its employment until January, 2009. He states that he did not receive a written contract or terms of employment and contends that this constitutes unlawful discrimination of him on grounds of race contrary to the Acts. He submits that following the Decision of this Tribunal in 58 Complainants v Goode Concrete there is an obligation on an employer to provide employees with a contract of employment in a language which they understand. In the course of the Hearing the complainant stated that there were seven other employees engaged by the respondent during his period of employment - four of whom were Irish and the remainder Lithuanian. He was unable to say if any of these employees received contracts of employment or any other documentation detailing their terms and conditions of employment. The complainant further states that the respondent failed to provide him with health and safety training and documentation in a language which he could understand and it is submitted on his behalf this also constitutes less favourable treatment of him contrary to the Acts. In the course of the Hearing he was unable to say whether or not any of the other employees received any health and safety training or documentation.
3.2 The complainant states that he never received any payslips during his period of employment. It was submitted on his behalf that the respondent's failure in this regard amount to discriminatory treatment of him. When asked at the Hearing the complainant was unable to say if any of the other employees ever received payslips. The complainant also states that he did not receive his full entitlement to paid annual leave and paid public holidays during his period of employment. He was unable to confirm when this alleged treatment started or provide details of the extent of it, although he confirmed he did receive time off each year, but was not paid for all of those holidays. The complainant accepted that he may have been off for the two weeks in August, 2008 (which was indicated on the attendance sheets provided by the respondent as part of its submission) but stated that he had not been paid for this. In the course of the Hearing the complainant was unable to say whether or not any of the other employees received paid holidays/public holidays from the respondent.
3.3 The complainant states that his normal working week was forty hours per week, although he generally exceeded this. He adds that in early November, 2008 the respondent placed him on short hours (one day per week) and this continued until the end of 2008 - except for one week in December when he worked most of the week. The complainant adds that he returned on a one day a week attendance pattern for two/three weeks in January, 2009 until the respondent approached him and told him that "he was letting him go as he had no work for him". The complainant states that he was the only employee who had his employment terminated at this time and he rejects the respondent's assertion that he resigned from his employment of his own accord. It is submitted on behalf of the complainant that in the circumstances he was entitled to a statutory redundancy payment and that the respondent did not make such a payment to the complainant, nor did it alert him to his entitlement to same, at the cessation of his employment. It is further submitted that an Irish employee would have been aware of his entitlements in this regard and that the behaviour of the respondent constitutes less favourable treatment of the complainant on grounds of race contrary to the Acts.
SUMMARY OF RESPONDENT'S CASE
The respondent did not attend nor was it represented at the Hearing.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issue for decision by me are whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts as regards his conditions of employment. 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.
5.2 Section 6(1) of the Employment Equality Acts, 1998 - 2007 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) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins... "
It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because his is Lithuanian.
5.3 Section 85A of the Employment Equality Acts 1998- 2008 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by, or on behalf of, a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. 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 he 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 him his case cannot succeed.
5.4 In the Melbury Developments v Arturs Valpetters 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."
5.5 That Court more further extended this analysis when it affirmed the approach adopted by this Tribunal in Businkas v Eupat Ltd that one of the facts which a complainant must establish is that there was a difference in treatment between him/her and another person (see Glasgow City Council v Zafar [1998] 2 All ER 953) before the burden of proof shifts to the respondent. In the instant case the complainant was unable to say if any of the other employees engaged by the respondent during his period of employment received (i) contracts of employment (or written terms of employment), (ii) health and safety documentation or training and (iii) payslips. All that he has proffered therefore is an assertion unsupported by any evidence - a scenario which the Labour Court found to be insufficient to satisfy the initial probative burden required in terms of section 85A of the Acts. In the circumstances I am not satisfied that the complainant has established as a fact that he was treated differently to the other employees engaged by respondent at the relevant time. Accordingly, he has failed to establish a prima facie case of discrimination in respect of these elements of his complaint and he cannot therefore succeed. As this Tribunal has stated on many previous occasions 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. Similarly, alleged breaches of (a) health and safety legislation and (b) payment of wages legislation have separate avenues for redress.
5.6 The complainant asserts that he did not receive his full statutory entitlement of annual leave and public holidays during his period of employment. I note on the complainant's original complaint form it is stated that "he never received holiday or public holiday pay". The complainant did not elaborate on this assertion in the submission filed on his behalf. In the course of the Hearing the complainant stated that he received some paid leave and public holidays during his employment. He was unable to confirm when this alleged treatment started or provide details of the extent of it. He accepted that he may have been off for the two weeks in August, 2008 but stated that he had not been paid for this. The respondent furnished details of the complainant's attendance during 2008 and copies of the weekly payroll data. This data shows that the complainant was paid his normal wage on each of the two weeks where he accepts he was on holiday. Having evaluated all of the evidence adduced by the parties on this matter I am not satisfied that the complainant has established facts from which it could be inferred that he was discriminated against and this element of his complaint fails.
5.7 It is common case that the complainant had the two years' service required to have statutory entitlement to a redundancy payment under the Redundancy Payments Acts, 1967-2007. The complainant states that at the time of the cessation of his employment the respondent neither made such a payment to him nor advised him that he had such an entitlement. It is submitted on his behalf that this treatment constitutes discrimination of him on grounds of race contrary to the Employment Equality Acts, 1998-2008 as an Irish employee would not have been treated in the same manner. It is clear from the submission filed on behalf of the respondent that at the relevant time it was of the view the complainant had resigned from its employment of his own volition in order to pursue a similar career with a friend. The complainant disputed this and ultimately referred a complaint to the Employment Appeals Tribunal (EAT) under the redundancy payments legislation. The EAT determined that the termination of the complainant's employment amounted to a redundancy and awarded him the appropriate redress under the statutes. In the circumstances, it is clear that having exercised his statutory right to refer the matter to the EAT the complainant received a redundancy payment on foot of his employment with the respondent. Therefore he is incorrect in the first strand of his complaint on this issue. It appears to me that what is being submitted on the complainant's behalf is the fact he had to refer a complaint to the EAT to obtain that payment constitutes less favourable treatment of him on grounds of race in comparison with an Irish employee in similar circumstances. The complainant adduced no evidence to support such a proposition - that a non-Irish employee is more likely to have to resort to referring a complaint to the EAT seeking entitlement to a redundancy payment than an Irish employee. Accordingly, the argument advanced to this Tribunal on this point is merely an assertion on his part that this is the case. As stated above assertions unsupported by any evidence are insufficient to discharge the initial probative burden required under the Employment Equality Acts, 1998-2008 and I consequently I find that the complainant cannot succeed with this aspect of his complaint.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I find that the complainant has failed to establish a prima facie case of discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts in respect of his conditions of employment and his complaint must therefore fail.
_______________________________________
Vivian Jackson
Equality Officer
21 June, 2011