THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2011-100
PARTIES
Mihails Kruglovs
(represented by Richard Grogan & Associates,
Solicitors)
and
Alexander Tsedryk
File Reference: EE/2009/065
Date of Issue: 31st May, 2011
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - race - conditions of employment - training - discriminatory dismissal - failure to establish a prima facie case
1. Dispute
1.1 This case concerns a complaint by Mr. Mihails Kruglovs who is a Latvian national, that he was discriminated against by Mr. Alexander Tsedryk on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of conditions of employment, training and in relation to discriminatory dismissal.
2. Background
2.1 Mr. Kruglovs referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 2 February, 2009. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case on 6 April, 2011 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. A written submission was received from the complainant on 27 May, 2009.
2.2 As required by section 79(1) of the Acts and as part of my investigation, I proceeded to Hearing on 27 April, 2011. The respondent's legal representative was notified by registered post on 20 January, 2011 of the arrangements for the Hearing. The respondent's legal representative wrote to the Tribunal on 28 January, 2011 to confirm that it was no longer acting on behalf of the respondent in relation to this matter and it confirmed that notification of the hearing had been forwarded to a named Director of the respondent. In the circumstances, I was satisfied that the Tribunal had made all reasonable efforts to notify the respondent of the Hearing arrangements and the Hearing proceeded on 27 April, 2011.
3. Summary of the Complainant's case
3.1 The complainant, who is a Latvian national, stated that he was employed by the respondent as a general operative from 3 January, 2008 until 13 December, 2008 when his employment was terminated. The complainant stated that the respondent also employed two other workers, one of Belarusian origin and the other of Lithuanian origin. The complainant submitted that the respondent failed to provide him with a written contract or terms of employment when he commenced employment and he contended that this constitutes unlawful discrimination of him on the grounds of race contrary to the Acts. The complainant submitted that the respondent failed to provide him with any health and safety documentation or training during the course of his employment. The complainant submitted that the respondent's failure to provide him with a health and safety statement and training in a language which he could understand amounts to discrimination within the meaning of the Acts.
3.2 The complainant claims that he was not paid in accordance with the correct rate of pay as provided in the Registered Employment Agreement for the Construction Industry. The complainant stated that he was paid €12 per hour whereas he claims that he should have been paid in excess of €14 per hour. The complainant also submitted that he had not been joined to the Construction Workers Pension and Sick Pay Scheme as is required by the REA. He submitted that an Irish national would have been aware of his/her rights in relation to pay, pension and sick pay and would insist on the employer contributions being made and that this amounts to discrimination on grounds of race.
3.3 The complainant also submitted that the P45 which he received from the respondent gives an incorrect start date of employment of 10 September, 2008. The complainant submitted that he received payslips from the respondent which pre-date this starting date and he contended that this issue resulted in difficulties for him in terms of his tax and social welfare affairs. The complainant claimed that this treatment amounted to discrimination on the grounds of his nationality on the basis that an Irish worker would not have been subjected to such treatment by the respondent in similar circumstances.
3.4 The complainant also claims that he was dismissed from his employment by the respondent in a discriminatory manner and without any proper procedures. The complainant stated that he was considering leaving his employment with the respondent and that he was offered another job by a different employer. The complainant stated he informed the respondent that he wished to take up this new job but he was informed by the respondent that he would have to work with him for a further four weeks before he could leave. The complainant stated that he remained with the respondent for a further four weeks and when this period had elapsed the respondent terminated his employment. The complainant stated that he also lost out on the job offer with the other employer because he had employed a different person by the time that his employment had finished with the respondent. The complainant claimed that an Irish worker would not have been subjected to such treatment and it was therefore submitted that the manner in which his employment was terminated amounted to a discriminatory dismissal.
3.5 It was submitted on behalf of the complainant that all of the employees engaged by the respondent were non-Irish nationals. The complainant therefore submitted that the Tribunal should examine how a hypothetical Irish employee would have been treated by the respondent in similar circumstances. It is further submitted that the respondent would not have treated a hypothetical Irish employee in the same manner and consequently, the alleged treatment and subsequent dismissal of the complainant constitutes discrimination of them on grounds of race contrary to the Acts.
3.6 The complainant also referred to a number of cases in support of his 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).
4. Summary of the Respondent's case
4.1 The respondent did not attend nor was he represented at the Hearing of the complaint.
5. Conclusions of the Equality Officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 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)(h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins".
5.3 Accordingly, the issues for decision in this case is whether or not the complainant was discriminated against and/or discriminatorily dismissed by the respondent contrary to the Employment Equality Acts. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.4 In a recent Determination 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."
It was submitted on behalf of the complainant that the Tribunal should consider these complaints on the basis of a notional Irish comparator as all the employees engaged by the respondent at the time were non-Irish nationals. In Arturas Businkas v Eupat Ltd (In Liquidation) the Labour Court affirmed the Equality Officer's approach that it was not sufficient to ignore the existence of actual comparators and apply the concept of a notional Irish comparator in evaluating whether or not discrimination had occurred - whilst acknowledging that circumstances might exist where such an approach might be appropriate. The Court further elaborated on this in Toker Developments v Edgars Grods when it held that "is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances of a particular case. ... It would clearly be impermissible for the Court to reach conclusions of fact based upon mere supposition or speculation". Having carefully considered the evidence adduced by the complainant in the present case, I am satisfied that there were employees of a different nationality to him engaged by the respondent at the relevant time. Furthermore, he has failed to adduce any evidence to support the assertion that an Irish employee would have been treated differently by the respondent in similar circumstances.
Conditions of Employment and Training
5.5 Firstly, I will consider the issue that has been raised by the complainant in relation to the respondent's alleged failure to provide him with a written contract of employment and a health and safety statement/training which he has contended constitutes unlawful discrimination of him on the grounds of race contrary to the Acts. In the first instance, it should be noted that 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.
5.6 In considering this issue, I note the complainant was unable to confirm whether or not the respondent had issued contracts of employment and health and safety documentation/training to any of the other workers. I accept that the complainant has adduced evidence to suggest that he may have been treated badly by the respondent in terms of the provision of a contract of employment and a health and safety statement/training. However, I do not have any jurisdiction to decide whether or not the respondent was in breach of its obligations under the relevant employment and/or health and safety legislation. Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that unfavourable treatment, in the absence of evidence of less favourable treatment, is insufficient to establish a prima facie case of discrimination under the Employment Equality Acts. In the circumstances, I am satisfied that the complainant has not adduced any evidence from which I could reasonably conclude that he was treated less favourably than other workers of a different nationality in terms of the respondent's failure to provide them a written contract of employment or a health and safety statement/training. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of his complaint.
5.7 The next issue raised by the complainant relates to the respondent's failure to pay him in accordance with the Registered Employment Agreement (REA) or to join him to the Construction Workers' Pension and Sick Pay Scheme. The complainant submitted that this constitutes discriminatory treatment of him on the grounds of race contrary to the Acts. The Industrial Relations Act, 1946 (as amended) provides the Labour Court with jurisdiction on any question as to the interpretation of an REA or its application to a particular person and this Tribunal no authority in those issues. However, allegations that the terms of the REA are being provided in a discriminatory manner do fall within the remit of this Tribunal.
5.8 In the present case, the complainant could not confirm whether or not the other employees engaged by the respondent during his period of employment were paid in accordance with the correct rates under the REA or were joined to the Construction Workers' Pension and Sick Pay Scheme. In the circumstances, I find that the complainant has failed to establish any facts from which it could be inferred that he was treated less favourably than other workers of a different nationality in terms of the manner in which the REA was applied to his conditions of employment. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of his complaint.
5.9 The complainant also claimed that he was subjected to discriminatory treatment on the basis that the respondent failed to make the proper tax and social welfare deductions from his remuneration during his period of employment. In considering this issue, I would make the point that this Tribunal does not have any jurisdiction in relation to issues regarding the compliance or otherwise by an employer with its obligations under the tax or social welfare legislation. Having regard to the evidence adduced, I am satisfied that the complainant has not established any facts from which it could be inferred that he was treated less favourably than other workers of a different nationality in terms of the manner in which the respondent dealt with his tax and social welfare deductions. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of his complaint.
Discriminatory Dismissal
5.10 The final issue that I must consider relates to the complainant's claim that he was subjected to discriminatory dismissal on the grounds of his nationality. Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that in order to raise an inference of discrimination on the grounds of nationality, the complainant must be able to demonstrate some significant evidence of less favourable treatment and this treatment must be linked to his nationality. Based on the evidence adduced in the present case, I am satisfied that the complainant's employment was terminated after he had indicated to the respondent that he wished to take up alternative employment with a different employer. The complainant has not adduced any evidence from which I could reasonably conclude that the termination of his employment was in any way influenced by his Latvian nationality. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to dismissal on the grounds of his race contrary to the Employment Equality Acts in terms of the manner in which his employment with the respondent was terminated.
Decision
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008.
(i). I find that the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2)(h) of the Acts in respect of his conditions of employment and training contrary to section 8(1) of the Acts.
(ii). I find that the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2)(h) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts.
Accordingly, I find in favour of the respondent in this case.
______________
Enda Murphy
Equality Officer
31st May, 2011