The Equality Tribunal
Employment Equality Acts 1998 to 2008
Decision DEC-E2011-0XX
PARTIES
Gintaras Vaitkus & Tadeusz Rusiecki
(Represented by Richard Grogan and Associates, Solicitors)
- V -
P. Harte & Co. Limited
File references: EE/2008/855 & 877
Date of issue: 27 June 2011
Keywords - Employment Equality Acts 1998 to 2008 - Discriminatory Treatment - Race - Prima Facie case
1. BACKGROUND
1.1 This dispute concerns a claim by each of the complainants that they were subjected to discriminatory treatment by the respondent on grounds of race, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts.
1.2 The complainants referred their claims of discrimination to the Director of the Equality Tribunal on 12 & 17 December 2008 respectively under the Employment Equality Acts. On 25 March 2011 in accordance with his powers under section 75 of the Acts, the Director delegated the case 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 a hearing on 1 April 2011. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSION
2.1 The complainants submitted that they were employed by the respondent from 4 September 2008 for about 4 weeks. Mr Vaitkus is a Lithuanian national and Mr Rusiecki is a Polish national and it is on this basis that these complaints are being taken.
2.2 Each of the complainants submitted that they did not receive any proper contract or any contract at all.
2.3 Each of the complainants submitted that they did not receive any proper Health & Safety documentation or training.
2.4 Each of the complainants submitted that the respondent was involved in tax evasion and social welfare fraud and that this has a particular impact on non-Irish nationals.
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.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 The respondent submitted that each of the complainants were employed for 4 weeks only and that in the circumstances it was not in a position to provide a contract of employment.
3.2 The respondent submitted that each of the complainants received a Site Induction Course and enclosed a copy of the attendance record showing attendance. It further indicated that the Health and Safety documentation and training were covered by this course.
3.3 The respondent denied that it was involved in tax evasion and Social Welfare Fraud and submitted correspondence from the Accountant notifying that a discrepancy found in the P35 return had been notified to the Revenue Commissioners.
3.4 The respondent submitted that each of the complainants were let go due to a lack of work due to the economic downturn and that it was not down to either complainant's nationality.
3.5 The respondent did not attend the hearing of this case.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not either of the complainants was treated in a discriminatory fashion by the respondent on grounds of race, in terms of sections 6 of the Acts and contrary to section 8 of those Acts.
4.2 Section 85A of the Acts 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.
4.3 It is not my function to investigate either alleged Tax evasion or Social Welfare fraud, and accordingly, I will not consider these issues.
4.4 The evidence given separately by each of the complainants is that they did not receive statements of terms of employment, but they were not in a position to say whether any employee got such statements. Both complainants gave evidence that they did not get any Health and Safety training, but once again, they were not in a position to indicate whether any employee got such training.
4.5 Both complainants gave evidence that they were given the dirtiest jobs to do but were not in a position to say whether this was due to their nationality or down to the fact that they were the newest employee on site.
4.6 Mr Rusiecki gave evidence that no lunch facilities were provided for staff and that all other employees ate their lunch in their (private) cars.
4.7 Both complainants gave evidence that they had to buy their own work clothing, particularly their safety gloves, but neither complainant was in a position to state with certainty that the respondent provided safety clothing to its other employees.
4.8 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 did not provide a pleasant working environment for them. However, 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'.
4.9 It is not my role to consider whether complainants have been unfairly or unpleasantly 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 Having considered all the written and oral evidence presented to me, in relation to each of the complainants, I find that a prima facie case of discriminatory treatment on the basis of the race ground has not been established for either complainant and their complaints must fail.
Conor Stokes
Equality Officer
27 June 2011