The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
E-mail: info@equalitytribunal.ie
Website: www.equalitytribunal.ie
Employment Equality Acts 2000 to 2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2011-207
Andrius Zilinskas
(Represented by Grogan and Associates Solicitors)
V
Damien Babington
(Represented by Ms. Majella Twomey BL on the instructions of G. Jones and Co. Solicitors)
File No. EE/2009/785
Date of Issue: 4 November 2011
File reference: EE/2009/785 - DEC-E2011-207
Employment Equality Acts - Discriminatory treatment - Conditions of Employment - Discriminatory dismissal - Race- Prima facie Case
1. Dispute and delegation
1.1 This dispute concerns a claim by Mr. Andrius Zilinskas (hereafter "the complainant") that he was subjected to discriminatory treatment and discriminatory dismissal by Mr. Damien Babington (hereafter "the respondent") on the grounds of his race. The complainant claims that he was treated less favourably because he was not provided with a proper contract of employment and health and safety documentation and training. Furthermore, it is claimed that he did not receive proper tax documentation. The first date of alleged discrimination was in or about January 2008. The complainant submitted that he was dismissed without proper reason or procedure in or about 24 June 2009.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 27 October 2009 under the Employment Equality Acts. On 29 September 2011, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- 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 hearing on 21 October 2011. An interpreter provided by the Tribunal was present.
2. Case for the complainant
2.1. The complainant is a Lithuanian national. He submitted that he began working as an assistant plasterer with the respondent in or about January 2008. The complainant submitted that it was his first job in Ireland and that he began working there as soon as he arrived in Ireland.
2.2. Claim of discrimination in relation to his conditions of employment
2.2.1. The complainant did not receive a contract of employment;
2.2.2. The complainant did not receive health and safety training or documentation;
2.2.3. The complainant was not joined into the CWPS' Pension and Sick Pay Scheme; and
2.2.4. The complainant did not receive a P60.
2.3. Discriminatory dismissal
The complainant submitted that he was discriminatorily dismissed on 24 June 2009 when he was let go after he injured his arm while working. The complainant claims that he was dismissed without proper procedure.
2.4. The complainant contends that an Irish national would not have been treated this way. The complainant relies on 58 Complainant v Goode Concrete (DEC-E2008-020) and Campbell Catering Limited v Rasaq (EED048) as authorities that support the complainant's contention that an employer has a positive duty to ensure that foreign workers are aware of their employment rights. The complainant submitted that these decisions mean that there is now a legal obligation to ensure that a foreign national is furnished with a contract of employment and health and safety documentation in a language that is likely to be understood by the complainant.
3. Case for the respondent
3.1. The respondent is currently unemployed. At the material time he ran a plaster boarding business which had traded under the title of Damien Babington Plaster Board. This business, which employed about 6 members of staff, ceased trading on or about June 2009 due to adverse economic conditions.
3.2. The complainant began working for the respondent in or about April 2007. He remained with the respondent for some 4 months after which he left, without notice, to take up better paid employment elsewhere. The complainant returned for a period of a couple of weeks in the summer of 2008 and did some casual work for the respondent. He returned to work with the respondent on or about 24 October 2008 after the respondent had agreed to pay him more remuneration. The complainant continued to work with the respondent until 22 May 2009. The complainant did not actually work with the respondent in January 2008, the first stated incident of discrimination.
3.3. The complainant was the last person to remain in the respondent's employment. The business had ceased trading in May 2009 but when some work was offered to the respondent in June he had asked the complainant if wanted to carry out some work in a private house. It was during this additional week that the complainant injured his hand. The reason why the complainant was offered no further work was because there was no work to offer him or anyone else.
3.4. The respondent submitted Dikov v SAP Landscapes Limited (DEC-E2008-053) to support the argument that the complainant has failed to establish a prima facie case. Also, Tribunal decisions DEC-E2011-004 and DEC-E2011-011 were submitted as recent authorities to support the contention that the complainant has not provided a scintilla of evidence to support an argument of less favourable treatment. It was submitted that the authorities relied upon by the complainant ought to be distinguished from the facts of this case firstly, because the complainant was not subjected to disciplinary processes and secondly, because there are no facts to support the complainant's claim that he was unfairly dismissed.
3.5. The respondent accepted that all aspects of employment law had not been adhered to. He does, however, deny any allegation of less favourable treatment pertaining to the complainant's nationality. The complainant was always treated in a similar manner to other employees. The respondent rejected the use of a notional comparator in the circumstances of this case and submitted that the facts are similar to those set out in Gorys v Igor Kurakin Transport Limited (DEC-E2008-014).
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. 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. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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".
4.2. The complainant's representative submitted that he was entitled to pursue a claim of less favourable treatment on the grounds of the complainant salary. It ought to be noted that no such claim had been made in the complainant's complaint form or in his subsequent written submission. Such a claim was made by the complainant's representative who, during a confidential hearing, had sight of the respondent's pay records that were being produced by the respondent in good faith to establish the fact that the complainant was not being entirely truthful in relation to the facts that he was submitting to the Tribunal. The complainant's representative submitted that an investigation should be extended to include remuneration and that a person does not have to include all matters that they wish to rely on in their written submissions. I reject such an approach absolutely. While I accept that an investigation may be extended in circumstances where the general nature of the complainant remains the same in accordance with Co. Louth VEC v Equality Tribunal (2009 223 JR), I do not accept that such extension is permissible in the circumstances of this case. I am satisfied that the complainant had never made any claim pertaining to his remuneration and that the claim made at the hearing was entirely based on the complainant's representative having had a cursory glance at the respondent records. While the complainant's representative did not accept my view that the argument he was putting forward was one of equal pay (the argument was that his client was paid less for like work than an Irish comparator) and that I had no jurisdiction to examine issues of pay as a matter of conditions of employment, I am satisfied that section 8(6) of the Acts is crystal clear in this matter. It clearly excludes remuneration and pension rights from a claim concerning conditions of employment but includes same terms of employment, same working conditions, overtime, shift work, short time, lay-offs, redundancies, dismissals and disciplinary procedures. In my view, a person wishing to pursue a claim of equal pay must explicitly state so and a comparator must be named before an investigation to such matter may proceed. It is not acceptable to extend a claim purely because a complainant's solicitor has sight of something that is produced on behalf of the respondent in the context of rebutting a claim that is fairly put before them.
4.3. I find that the complainant lied to the Tribunal about the circumstances surrounding his employment. I am satisfied that he had worked with the respondent for a period in 2007 and obviously had more experience of the Irish labour market and his entitlements than he wanted to admit to. I find that he was clearly not quite as vulnerable as he initially made out he was. The complainant contends that this Tribunal ought to consider a notional comparator, an Irish national who is fully aware of his/her entitlements under section 3 of the Employment (Information) Act and the various provisions of the Health and Safety Act, 2005 in comparison with a non-Irish person who has no knowledge of such rights. Such a position is clearly incorrect in law as one cannot simply define nationalities with alleged knowledge about employment rights. The decisions of this Tribunal and determinations of the Labour Court have consistently stated on a number of occasions that where there is an actual comparator available, the investigator must look at those facts. It is clear that the complainant contends that - as a foreign national - any breach concerning his employment rights is sufficient enough to establish an argument for less favourable treatment on the premise that all non-Irish persons are particularly vulnerable to exploitation and that this is sufficient assertion to form a nexus with the protected ground. This interpretation is based on mere assertions associated with categories of people and is entirely unacceptable in this case.
4.4. It ought to be noted that there is no statutory or legal requirement to provide more favourable treatment to foreign nationals. Section 3 of the Employment Information Act imposes certain legal requirements on employers in relation to information that must be given in writing to all employees. To assert that in all cases there is legal requirement to provide foreign nationals with documentation in a language likely to be understood by the employee is simply incorrect in law. All employers have a duty to ensure that the rights of their employees are not violated and, in some cases, where facts support such an approach, documentation may be required to be translated. Positive action, in accordance with these Acts, may be allowed in circumstances where, without such, facts support an inference that the protected person may be less favourably treated because of a, for example, language difficulty. In circumstances where such an inference is not blatantly obvious, facts supporting such an inference must be provided by the complainant. It is incorrect in law to suggest that the mere coincidence of a person not being Irish is sufficient on its own to give rise to the justification of positive action and that the reasoning in decisions such as 58 Complainants v Goode Concrete applies to all cases involving non-Irish persons.
4.5. It is clear that the respondent had omitted to adhere to some aspects of employment law. These omissions applied to all of his workers. I am satisfied that such matters are not within my jurisdiction. I am satisfied that the respondent did not treat the complainant any less favourably than any of his Irish workforce. The complainant has provided no facts from which an inference of less favourable treatment can be drawn. It was clear from the facts that the respondent, mindful of the fact that the complainant as a foreign worker was supporting himself and his girlfriend, provided the complainant with assistance in relation to heating and securing extra work for him where possible. The complainant has provided no evidence to support an argument that he was dismissed as part of a disciplinary procedure. No evidence was forthcoming to support his claim that other people remained working with the respondent.
4.6. No facts were provided to support an argument that the respondent's Irish employees were included in pension scheme or that these employees were provided with sick pay. No evidence was forthcoming from the complainant in relation to his claim that he received no P60. I accept the respondent's evidence that the accountant had informed all employees - regardless of nationality - that P60 were available in her office whenever workers needed them. I also note that the respondent had made efforts to ensure that the complainant understood these instructions. The complainant has provided nothing but mere assertions that omissions happened in relation to him and expected this Tribunal to link such assertions with his nationality. I am satisfied that this respondent treated all employees exactly in the same manner and consider that the complainant's nationality is entirely coincidental to this case.
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:
5.2. I find that the complainant has failed to establish a prima facie case of discrimination on the race ground. Therefore, the complainant concerning less favourable treatment fails.
5.3. I find the complainant has failed to establish a prima facie case of discriminatory dismissal on the race ground. Therefore, his claim fails.
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Tara Coogan
Equality Officer
4 November 2011