FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : KEITH KIRWAN T/A SPECTRUM PAINTING AND DECORATING (REPRESENTED BY EMPLOYMENT MATTERS) - AND - KASPARS KADISEVSKIS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2008
BACKGROUND:
2. The Worker appealed the Decision of the Equality Officer to the Labour Court on the 27th April, 2010. A Labour Court hearing took place on the 23rd March, 2011 in Waterford. The following is the Court's Determination:-
DETERMINATION:
This is a complaint by Mr. Kaspars Kadisevskis (hereafter the Complainant) against Keith Kirwan t/a Spectrum Painting & Decorating (hereafter the Respondent) alleging discrimination on the race groundcontrary to Section 6(2)(h) of the Employment Equality Acts 1998 –2008 (hereafter the Act). in relation to training, conditions of employment and discriminatory dismissal in terms of Section 8 of the Acts. The complaint was referred on 7th December 2007under the Acts. The Complainant is a native of Latvia. He was employed by the Respondent as a General Operative between from 6th September to 4th October 2007, working on average three days per week.
The substance of the Complainant’s case is that while employed by the Respondent he was treated less favourably that an Irish worker would have been treated. In advancing his claim the Complainant relied upon the following particulars: -
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(a) He received no written contract of employment.
(b)He received no health and safety documentation nor training and he did not receive a health and safety statement in a language which he understood;
(c)He was not paid in accordance with the Registered Employment Agreement for the Construction Industry and was not covered by Construction Workers Pension and Sick Pay Schemes;
(d)He did not receive the necessary training to allow him to work to a satisfactory level;
(e)He was dismissed from his employment without proper reason, and without being afforded the benefit of any procedures which would have been available to a worker of Irish nationality.
The complaint was investigated by an Equality Officer of the Equality Tribunal pursuant to Section 79 of the Acts. The Equality Officer found that the Complainant failed to establish aprima faciecase of discriminatory treatment in relation to training and conditions of employment and failed to establish aprima faciecase of discriminatory dismissal.
The Complainant appealed against the Decision of the Equality Officer to this Court.
At the hearing before the Court the Complainant’s representative withdrew the complaint relating to the non-supply of a contract of employment.
Background
In or around August 2007 the Respondent advertised for a qualified painter. The Complainant applied for the position and commenced employment on 6th September 2007 on a trial basis. As he was unable to supply evidence of his professional qualifications as a painter the Respondent terminated his employment on 4th October 2007.
The Complainant’s Case
Ms. Julienne Paye, Richard Grogan & Associates, Solicitors on behalf of the Complainant, submitted that he was discriminated against on the ground of race when the Respondent failed to supply him with a contract of employment, with health and safety documentation and failed to properly train him. She also claimed that the Respondent’s failure to pay the Complainant the Construction Industry Registered Employment Agreement (the REA) rate of pay or to register him in the CIF Pension Scheme was discriminatory. Furthermore, with regard to his dismissal, Ms. Paye contended that the Complainant was not afforded the benefit of any form of procedure before the decision to dismiss him was taken.
She claimed that an Irish worker would not have been similarly treated.
The Respondent’s Case
Mr. S�an Ormonde, Employment Matters, on behalf of the Respondent, denied that the Complainant was discriminated against. He told the Court that when the Complainant applied for the position as painter the Respondent requested him to supply papers to prove his qualifications and a copy of his Safe Pass Certificate. In the meantime he was put on trial. The Complainant failed to provide the necessary papers and, as his work was below standard and had to be redone by other employees, the Respondent decided not to continue with his employment.
Mr. Ormonde submitted that the Complainant was employed for between 10 – 12 days in total during which time he was on trial and was repeatedly asked to produce evidence of his qualifications. Mr. Ormonde told the Court that the Complainant was not paid the REA rates nor included in the Pension Scheme as he had not supplied the appropriate qualification papers.
Mr. Ormonde maintained that the Complainant was treated no differently than any other member of staff, whether Irish national or non-national. The Complainant’s work was not up to standard.
Mr. Keith Kirwan, Joint Owner and Manager, on behalf of the Respondent, gave evidence to the Court that the Company required appropriate professional qualifications in painting with at least 4 years spent as an apprentice. Despite asking the Complainant on a constant basis for evidence of his qualifications none was forthcoming. Mr. Kirwan said that he decided to give the Complainant an opportunity to prove himself and therefore put him on trial. However, the Complainant’s work was below standard and had to be constantly redone by other colleagues. He said that there were too many “unders and overs”, i.e. the Complainant was using either too little or too much paint and that runs had to be rubbed down, which took a lot of time. This poor standard of the Complainant’s work coupled with his late timekeeping was taking up excessive time and it was not possible in the circumstances to continue with his employment.
Mr. Kirwan said that safety issues were explained to the Complainant and the Complainant indicated that he fully understood these. Mr. Kirwan said that the Complainant held an Irish Safe Pass Certificate for five years which demonstrated his level of understanding of the English language.
Mr. Kirwan said that the Complainant was treated the same as all other workers, either Irish or non-nationals.
Mr. John Kirwan, Joint Owner and Manager, on behalf of the Respondent, also gave evidence. The import of his evidence was similar to that Mr. Keith Kirwan. He added that due to the poor standard of the Complainant’s paintwork sometimes hinges on doors had to be removed and replaced.
Mr. Nathan Silver,Painter,on behalf of the Respondent, told the Court that along with two other colleagues he had to redo the Complainant’s work. He said that he pointed out to him how to do the work properly but that it did not improve. He also told the Court that when the Complainant was late for work it also delayed him getting to work.
Mr. Kaspars Kadisevskis, the Complainant, told the Court that he was not qualified as a professional painter. He said that he had completed an eight-week course in 1999/2000 at second level education when he was 19 years old.
Conclusions of the Court
Standard of Proof
InArturas Valpeters v Melbury Development LimitedEDA0917 this Court held as follows in relation to the application of section 85A dealing with the standard of proof necessary to discharge the probative burden which a Complainant bears under the Act:
- "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.
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."
Conditions of Employment
The Court must decide whether or not the Complainant was less favourably treated in relation to his conditions of employment in terms of Section 6(2)(h) and Section 8(1)(b) of the Acts. It is alleged that he was discriminated against when he was not provided with a contract of employment; not provided with documentation on health & safety in a language he could understand; not paid in accordance with the Registered Employment Agreement for the Construction Industry and was not covered by Construction Workers Pension and Sick Pay Schemes; and was not provided with the necessary training to allow him to work to a satisfactory level.
All that has been proffered in support of that contention is a mere assertion unsupported by any evidence.No evidence of how other workers were treated has been submitted to show how the Complainant was treated less favourably. The Respondent told the Court that it took the view that the Complainant was on trial and consequently was of the view that he was not yet in an employment relationship with the Respondent and that this was the reason for any difference in treatment of him in comparison to other workers, whether Irish or non-nationals.
The Court does not accept that a temporary worker is not in an employment relationship and therefore is satisfied that at the material time the Complainant was an employee of the Respondent under a contract of service. However, the Court is satisfied that this treatment of the Complainant was not based on race and there is no evidence to support the contention that persons of a different race or nationality were or would be treated more favourably.
The Court therefore finds on the balance of probabilities that the Complainant has failed to establish aprima faciecase of discrimination on the race ground based on his nationality in relation to his conditions of employment.
Dismissal
There is ample evidence to support the view that the Complainant’s dismissal was for incompetence and was in no way connected to his nationality.
The Complainant told the Court that the qualifications he attained in painting comprised an eight-week course at second level education and not the completion of a four-year apprenticeship, as was required by the employer and as stipulated in the advertisement for the job applied for.
The Court found the Respondent’s witnesses to be consistent in their evidence and concludes that their evidence was credible.
The Court is of the view that it is not reasonable to draw an inference of discrimination motivated by his nationality in such circumstances.
InGood Concrete and Oksana ShaskovaDetermination EDA0919 this Court, in reliance on the Judgment of the High Court inMulcahy v Waterford Leadership Limited and the Minister for Justice, Equality and Law Reform[2002] 13 ELR 12, accepted as correct a submission that the mere coincidence of the Complainant’s nationality and his or her dismissal is not sufficient to shift the probative burden from the Complainant to the Respondent.
At best the Court was invited to infer that alleged unfair treatment of the Complainant by the Respondent coupled with his nationality is sufficient to shift the probative burden of showing the absence of discrimination. The Court has previously held that such a proposition is not sustainable in law. Accordingly, the Court is satisfied that the Equality Officer was correct in the conclusion which he reached on the complaint.
Determination
The Court is satisfied that the Complainant has failed to establish any facts from which discrimination may be inferred. Accordingly, he cannot succeed.
Accordingly, it is the Determination of the Court that the within appeal is disallowed and the Decision of the Equality Tribunal is affirmed
Signed on behalf of the Labour Court
Caroline Jenkinson
3rd June, 2011______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.