THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011-035
PARTIES
Andrian Nastas
(Represented by Richard Grogan & Associates, Solicitors)
-V-
Castlemurray Contract Management Ltd.
File Reference: EE/2008/694
Date of Issue: 1st March 2011
Decision DEC - E2011-035
Andrian Nastas
(Represented by Richard Grogan & Associates, Solicitors)
-V-
Castlemurray Contract Management Ltd.
Keywords
Employment Equality Acts 1998-2008, Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 6(2)(h) - Race, Section 8 conditions of employment, prima facie case.
1. Dispute
1.1 This dispute concerns a claim by a complainant that he was discriminated against by the above named respondent on the race ground, in terms of Sections 6(1), 6(2) (h) of the Employment Equality Acts 1998-2008 and contrary to section 8 in relation to his conditions of employment and dismissal. The claim of discriminatory dismissal was withdrawn at the commencement of the hearing.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 22nd October 2008 alleging that the respondent discriminated against him contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 2nd February, 2011 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. A written submission was received from the complainant on the 5th March 2009. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 16th February, 2011.
3. Summary of the Complainant's Case
3.1 The complainant is a Moldovan national and was employed as labourer by the respondent from April 2008 until the 18th August 2008. The complainant's case is that the respondent failed to provide him with a contract of employment and health and safety documentation and that he did not get such documentation in his own language. The complainant said that there were 50 to 60 employees and most of them were from Moldova or Romania. There were a few Irish people there but he believes that they were foremen. He also said that none of the employees got contracts of employment or health and safety documentation.
3.2 The complainant's solicitor, in legal submission to the Tribunal submitted that the complainant was discriminated against on the race ground because he was not given a contract of employment and health and safety documentation in a language likely to be understood by him namely in Moldovan. He also referred me to a number of cases in support of the case, including Campbell Catering Ltd. -v- Rasaq (EED048), 58 Complainants -v- Goode Concrete (DEC-E2008-020), Khumalo -v- Cleary & Doyle Limited (DEC-E2008-003), Golovan -v- Porturlin Shellfish Limited (DEC-E2008-032) and Ning Ning Zhang -v- Towner Trading t/a Spar Drimnagh (DEC-E2008-001), Council Directive 91-533-EEC of 14 October1991, Judgement of the ECJ in the case of Wolf Gang & Georg Schunemann Gmbh Case C-350-99.
The respondent did not attend the hearing or provide any response to the complaint. I am satisfied that the respondent was notified by registered post of the hearing and that post was delivered. For this reason I proceeded to hear the case.
4 Conclusions of the Equality Officer
4.1 The issues for decision in this case is whether or not the respondent discriminated against the complainant on the grounds of race in terms of section 6(1) and 6(2)(h) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts as regards his conditions of employment. Section 6 of the Acts inter alia provides:
6. -- (1) "For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
discrimination shall be taken to occur where --
(a) 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) (in this
Act referred to as the ''discriminatory grounds'') which --
(2) As between any 2 persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are --
......
(h) that they are of different race, colour, nationality or ethnic
or national origins (in this Act referred to as ''the ground
of race''),"
and Section 85A of the Acts provides:
"(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary".
4.2 This requires the Complainants to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only when they have discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required of him his case cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
4.3 I will consider the issues raised by the complainant in relation to his conditions of employment which he contends constitute unlawful discrimination on the race ground contrary to the Acts. He submits that the respondent's failure to provide him with a written contract of employment and a health and safety statement or to provide such documentation in Moldovan language constituted unlawful discrimination. The complainant's solicitor argued that the respondent produced a generic contract of employment to the Rights Commissioner, and a finding by the Rights Commissioner in favour of the complainant that the contract breached the Terms of Employment (Information) Act 1994-2001, was sufficient evidence to establish that the complainant had received the documentation which was not in a language likely to be understood by him and asked me to make a finding in his favour. From the complainant's own evidence it is clear that none of the employees were provided with such documentation and I cannot accept the argument put forward by his solicitor. I find that none of the employees were provided with health and safety statements and contracts of employment regardless of their nationality. Therefore the complainant has failed to establish that he was treated less favourably than an Irish worker or a worker of a different nationality was treated or would have been treated in similar circumstances in relation to the provision of a contract of employment and health and safety documentation. Accordingly, I find that the complainant has failed to establish a prima facie case on the race ground in relation to his conditions of employment.
5. Decision
5.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
the respondent did not discriminate against the complainant on the race ground pursuant to sections 6(1), and 6(2)(h) of the Acts in terms of his conditions of employment contrary to section 8(1) of the Acts.
_______________________
Marian Duffy
Equality Officer
1st March 2011