THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2011-101
PARTIES
Gitana Dirgeliene
(represented by Richard Grogan & Associates,
Solicitors)
and
Remigijus Zaltauskas
t/a Unwanted Clothing
File Reference: EE/2008/904
Date of Issue: 31st May, 2011
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - race - conditions of employment - training - discriminatory dismissal - victimisation - failure to establish a prima facie case
1. Dispute
1.1 This case concerns a complaint by Ms. Gitana Dirgeliene, who is a Lithuanian national, that she was discriminated against by Mr. Remigijus Zaltauskas t/a Unwanted Clothing on the grounds of gender and race contrary to sections 6(2)(a) and 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of conditions of employment, training and in relation to discriminatory dismissal. The complainant also claims that she was subjected to victimisation contrary to section 74(2) of the Acts.
2. Background
2.1 Ms. Dirgeliene referred a complaint under the Employment Equality Acts, 1998 to 2008 to the Director of the Equality Tribunal on 23 December, 2008. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case on 6 May, 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 25 June, 2009 and from the respondent on 21 August, 2009. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to Hearing on 6 May, 2011.
3. Summary of the Complainant's case
3.1 The complainant, who is a Lithuanian national, stated that she was employed by the respondent from April, 2007 until 29 September, 2008 when her employment was terminated. The complainant was engaged in the distribution of leaflets to households requesting the donation of unwanted clothing and she was also required to collect the bags of clothing which were subsequently donated by these households. The complainant stated that she worked approx. 50 to 60 hours per week and that she was paid between €300 and €350 per week. The complainant stated that the respondent employed approx. 10 other workers of Lithuanian origin and she claimed that the respondent only employed workers of Lithuanian nationality during her period of employment. The complainant submitted that the respondent failed to provide her with a written contract or terms of employment when she commenced employment or during her period of employment and she contended that this constitutes unlawful discrimination of her on the grounds of her gender and race contrary to the Acts. The complainant submitted that the respondent also failed to provide her with any health and safety documentation or training during the course of her employment. The complainant submitted that the respondent's failure to provide her with a health and safety statement and training in a language which she could understand amounts to discrimination within the meaning of the Acts.
3.2 The complainant also claims that she was dismissed from her employment by the respondent in a discriminatory manner and without any proper procedures. The complainant stated that she returned to Lithuania for a holiday in September, 2008. She claims that she had booked the holidays two months in advance of her departure date and that the respondent was fully aware of her plans to travel to Lithuania. The complainant stated that her employment was terminated upon her return from Lithuania. She claims that she was informed by the respondent that her employment was terminated because she had left for Lithuania without obtaining permission to take leave from her employment. The complainant submitted that a notional Irish comparator would not have been treated in such a manner upon returning from holidays and she submitted that her dismissal was attributable to her Lithuanian nationality. The complainant also stated that her partner was employed by the respondent and that he had initiated a claim for personal injuries against it as a result of injuries he had sustained in the workplace. The complainant claims that the respondent subjected her to adverse treatment because her partner had initiated this personal injuries claim and that this was also a factor in the respondent's decision to terminate her employment. The complainant submitted that this treatment amounted to victimisation contrary to the Employment Equality Acts.
3.3 It was submitted on behalf of the complainant that all of the employees engaged by the respondent were Lithuanian nationals. The complainant therefore submitted that the Tribunal should examine how a notional 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 her on grounds of race contrary to the Acts.
3.4 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. However, the respondent forwarded a letter to the Tribunal on 21 August, 2009 in response to the alleged discrimination in the present case. In this letter the respondent stated that only Lithuanian people had been engaged in his business. The respondent denied that the complainant's dismissal was in any way connected to her race or gender and he claimed that she was sacked because "she hadn't fulfilled her obligations completely". The respondent accepted in this letter that he had not issued the complainant or any of his other employees with contracts of employment because he was not familiar with Irish employment legislation.
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 her. If she 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)(a) of the Acts defines the discriminatory ground of gender as follows - "as between any 2 persons, ... that one is a woman and the other is a man" and 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 are whether or not the complainant was discriminated against, discriminatorily dismissed and/or subjected to victimisation by the respondent on the grounds of her race and gender 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. I will now proceed to examine the complaint on each of the grounds claimed i.e. the Race and Gender grounds.
Race Ground
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."
Section 6 of the Employment Equality Acts provides that discrimination can arise in circumstances where one person would be treated less favourably than another person on one of the grounds - i.e. the concept of a hypothetical or notional comparator. 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".
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 her with a written contract of employment and a health and safety statement/training which she has contended constitutes unlawful discrimination of her 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 gave evidence that all of the workers who were employed by the respondent were Lithuanian nationals and she claimed that none of these workers were issued with a contract of employment and/or health and safety documentation and training. The complainant's representative submitted that this Tribunal should consider the issues raised herein based on how a notional Irish comparator would have been treated by the respondent in similar circumstances. I have carefully considered the arguments advanced by the complainant's representative in relation to this issue and I am not satisfied that they provide the evidential basis to enable me to conclude that an Irish employee would have been treated more favourably in the circumstances. At best, the Tribunal was asked to infer that the respondent's alleged failure to comply with national employment legislation coupled with the complainant's nationality is sufficient to shift the evidential burden upon the respondent to demonstrate the absence of discrimination. I am satisfied that such an approach is insufficient to shift the evidential burden of proof that rests with the complainant. In the circumstances, I find that the complainant has failed to establish facts from which it could be inferred that a hypothetical Irish employee would have been treated more favourably in similar circumstances in terms of the alleged failure to provide a written contract and/or health and safety training and documentation. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of her complaint.
Discriminatory Dismissal
5.7 The next issue that I must consider relates to the complainant's claim that she was subjected to discriminatory dismissal on the grounds of her nationality. The complainant gave evidence that she was dismissed from her employment after she returned to Ireland from a holiday in Lithuania. She stated that the respondent informed her upon her return from holidays that her employment was being terminated because she had left for Lithuania without obtaining permission to take leave from her employment. The complainant denied that this was the reason for her dismissal and she claimed that the holiday to Lithuania was booked two months in advance of her departure date and that the respondent was fully aware of her plans to travel. The complainant submitted that she was dismissed on the grounds of her nationality and her representative claims that a notional Irish worker would not have been dismissed in such circumstances.
5.8 I have carefully considered the arguments advanced by the complainant's representative in relation to this issue and I am not satisfied that they provide the evidential basis to enable me to conclude that an Irish employee would have been treated more favourably in similar circumstances. Having regard to the evidence adduced, I am satisfied that the complainant was dismissed as a result of an issue that arose as to whether or not she had been granted leave by the respondent to take holidays. I am not satisfied the complainant has adduced any evidence from which I could conclude that her dismissal was in any way attributable to her Lithuanian nationality or that a hypothetical Irish comparator would have been treated more favourably in similar circumstances.
5.9 The complainant has also argued that the respondent treated her in a discriminatory manner by failing to apply any proper procedures in relation to her dismissal. I accept that the complainant may have been treated unfairly by the respondent in terms of the manner in which her dismissal was effected; however, the issue for decision in this claim is whether or not the complainant was discriminated against on the grounds of race in relation to dismissal. This Tribunal has no jurisdiction to decide on the unfairness or otherwise of the dismissal; the complainant needs to prove that it was connected to her race. The Labour Court has recently stated in the case of Mulleadys Ltd -v- Aidotas Gedrimas that "the complainant has presented no evidence of racial discrimination to the Court. The Court is not satisfied that others of a different nationality to the complainant were/would be treated any differently. The Court has dealt with many cases where employers are accused of dismissing employees without recourse to appropriate disciplinary procedures and such cases are by no means confined to workers whose national origin is outside of Ireland".
5.10 As I have already stated, I am satisfied that the complainant has not adduced any evidence to suggest that the respondent would have treated other workers of a different nationality (including those of Irish origin) more favourably in terms of the manner in which her dismissal was effected. In the circumstances, I find therefore that the complainant has failed to establish facts from which it could be inferred that that the termination of her employment was influenced in any way by her nationality. Accordingly, I find that the complainant has failed to establish a prima facie case in relation to this aspect of her complaint.
Gender Ground
5.11 The complainant also claimed that she was subjected to discriminatory treatment by the respondent on the grounds of her gender contrary to the Employment Equality Acts in terms of conditions of employment, training and discriminatory dismissal. I am satisfied that the complainant did not adduce any evidence whatsoever to suggest that she was subjected to less favourable treatment by the respondent on the grounds of gender in relation to the aforementioned aspects of her employment with the respondent. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of gender contrary to the Employment Equality Acts.
Victimisation
5.12 The final issue that I must consider relates to the complainant's claim that she was subjected to victimization by the respondent contrary to the Employment Equality Acts. Victimisation is defined at section 74(2) of the Acts as "For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to -
a complaint of discrimination made by the employee to the employer
any proceedings by a complainant
an employee having represented or otherwise supported a complainant
the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act
an employee having been a witness in any proceedings under this Act or he Equal Status Act, 2000 or any such repealed enactment
an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under such repealed enactment, or.
an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs".
5.13 In order to succeed in a claim for victimisation under the Acts the complainant must establish that she has taken an action of the type referred to in the statutory definition (i.e. a protected act as defined within section 74(2) (paragraphs (a) to (g) of the Acts inclusive). The Labour Court held in the case of Public Appointments Service -v- Kevin Roddy that "under the Act the complainant must prove that the catalyst alleged for the adverse treatment complained of came within the ambit of one of the protected acts referred to at section 74(2) of the Acts". In the present case the complainant has claimed that she was submitted to adverse treatment by the respondent as a result of legal proceedings which her partner, who was also employed by the respondent, had initiated in relation to an injury he had sustained in the workplace. In considering this issue, I am satisfied that the complainant has failed to establish that the alleged adverse treatment by the respondent in the circumstances of the present case arose as a consequence of her having taken a protected act as defined within section 74(2) of the Acts. Accordingly, I find that the complainant has failed to establish a prima facie case of victimisation contrary to section 74(2) the Employment Equality Acts.
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 gender or race grounds pursuant to sections 6(2)(a) an 6(2)(h) of the Acts in respect of her 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 gender and race grounds pursuant to sections 6(2)(a) and 6(2)(h) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts.
(iii). I find that the respondent did not subject the complainant to victimisation contrary to section 74(2) of the Acts.
Accordingly, I find in favour of the respondent in this case.
______________
Enda Murphy
Equality Officer
31st May, 2011