The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2011-219
PARTIES
Iveta Genge, Olga Komissarova, Ingus Olozins & Iveta Ozolina
(Represented by Richard Grogan & Associates)
AND
Boylan Print Limited
(Represented by IBEC)
File reference: EE/2009/378, EE/2009/788, EE/2009/856 & EE/2009/920
Date of issue: 30 November 2011
HEADNOTES: Employment Equality Acts - Sections 6 and 8 - Race - Gender - Marital Status - Training, Conditions of employment, discriminatory dismissal and harassment.
1. DISPUTE
1.1 This dispute concerns claims by Ms Iveta Genge, Ms Olga Komissarova, Mr Ingus Olozins and Ms Iveta Ozolina that they were discriminated against by Boylan Print Limited on grounds contrary to section 6(2) of the Employment Equality Acts in relation to training, conditions of employment, other and discriminatory dismissal in terms of sections 8 of the Acts and harassment in accordance with section 14A of the Acts.
1.2 The complainants referred their claims to the Director of the Equality Tribunal between 2 June 2009 and 17 May 2010 under the Employment Equality Acts. On 30 May 2011, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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. Submissions were received from both parties. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 1 June 2010 and a second hearing took place on 26 July 2011 and final information was received on 1 September 2011.
2. COMPLAINANTS' SUBMISSION
Iveta Genge
2.1 Ms Iveta Genge submitted her claim on 2 June 2009 on the grounds of gender, marital status and race in relation to training, conditions of employment and discriminatory dismissal. She worked for the respondent from 6 May 2008 to 27 March 2009 as a general operative.
2.2 The complainant submits that she was not issued with a contract of employment and the decision in Goode Concrete¹ puts an onus on the respondent to provide the complainant with a contract in a language she understands. The complainant submits she was given no health and safety documentation or training and further relies on the decision in Goode Concrete. All documents were in English and the respondent made no effort to provide the documentation in Latvian.
2.3 The complainant submits that the complete lack of documentation requires me to look at what would be the position of a notional Irish comparator who would be aware of their employment rights and entitlements.
2.4 The complainant submits that on 11 March 2009 she submitted a maternity claim form to the respondent and she was dismissed on 27 March 2009. Also she was a night time worker and did not receive free medicines as required by safety legislation.
Olga Komissarova
2.4 Ms Olga Komissarova submitted her claim on 27 October 2009 on the grounds of gender, family status and race in relation to training, conditions of employment and discriminatory dismissal. She started working for the respondent in March 2007.
2.5 She submits that she was not issued with a contract of employment. This meant that she had no way of challenging her dismissal as she was not aware of any grievance procedure.
2.6 She also submits that in March 2008 she advised the respondent that she was having a difficult pregnancy and requested not to work more than 8 hours in a shift and not to work night shifts. Subsequently she was no longer called into work after 13 May 2008 whilst others with less service were still worked into work.
Ingus Ozolins
2.7 Mr Ingus Ozolins submitted his claim on 27 November 2009 on the ground of race in relation to conditions of employment and harassment. The complainant started work for the respondent in March 2007.
2.8 The complainant submits that he was not issued with a contract of employment and the decision in Goode Concrete¹ puts an onus on the respondent to provide the complainant with a contract in a language he understands. The complainant submits he was given no health and safety documentation or training and further relies on the decision in Goode Concrete. All documents were in English and the respondent made no effort to provide the documentation in Latvian.
2.9 The complainant submits that the complete lack of documentation requires me to look at what would be the position of a notional comparator.
2.10 The complainant also submits that the respondent paid no tax on his behalf in 2008.
2.11 The complainant submits that he was harassed when he was put under pressure by the respondent to have his partner, Ms Iveta Genge, drop her proceedings against them and that, if he did this, it was intimated to him that his mother ( Ms Iveta Ozolina) would get her hours back.
Iveta Ozolina
2.12 Ms Iveta Ozolina submitted claims on 10 December 2009 and 17 May 2010 on the grounds of gender and race in relation to training, conditions of employment and harassment. The complainant started working for the respondent in March 2007.
2.13 She submits that she was not issued with a contract of employment, which as non national who was unaware of her employment rights and entitlements put her in a vulnerable position. Also the decision in Goode Concrete¹ puts an onus on the respondent to provide the complainant with a contract in a language she understands. The complainant submits she was given no health and safety documentation or training and further relies on the decision in Goode Concrete. All documents were in English and the respondent made no effort to have the documentation in Latvian.
2.14 The complainant submits that the complete lack of documentation requires me to look at what would be the position of a notional comparator.
2.15 The complainant submits that she was harassed when she was put under pressure to have her daughter ( Ms Iveta Genge) drop her proceedings and consequently her hours were cut.
2.15 The complainant submits that after she made her first claim the respondent tried to get her to sign a contract converting her to a fixed-term worker which would have expired on 13 April 2010. Furthermore, this contract was in English and no effort was made to provide this contract, other than in English, despite her own poor English.
3. RESPONDENT'S SUBMISSION
Iveta Genge
3.1 The respondent submits that Ms Iveta Genge started working for them on 20 July 2007 as a Print Assistant. She took a number of claims with the Rights Commissioners in relation to the same issues as are before the Equality Tribunal.
3.2 The respondent submits that the complainant was not issued with a contract due to an administrative oversight and had nothing to do with her race. The non issuing of a contract does not in itself amount to discrimination and the respondent cited Equality Tribunal Decision DEC-E2008-014, Gorys v Igor Kurakin Transport Ltd.. The respondent submits that the complainant was given information in relation to her employment in a language she was likely to understand. The complainant had a good understanding of English and was interviewed in English. In fact the complainant often acted as interpreter. The respondent had no reason to believe she didn't understand English and relied on Equality Tribunal Decision DEC-E2008-071, Kartunaviciute v Tynan. Whilst the not issuing of a contract might be a breach of legislation is was not of itself discriminatory and the respondent relied on Equality Tribunal Decision DEC-E2008-032, Golovan v Portulin Shellfish.
3.3 The respondent submits that a Health and Safety Statement was available to all employees in accordance with legislation and a Health an Safety Manual was placed on two notice boards. Also the complainant received the necessary on-the-job training. The respondent considers the complainant to have a good enough understanding of English to understand all the training she was given.
3.4 When they knew she was pregnant the respondent submits that they took all the necessary steps to ensure that work was not a danger. The respondent knew the complainant was pregnant in December 2008.
3.5 The respondent submits that the complainant has also taken a case to the Rights Commissioners under the Unfair Dismissals Act and under section 101(4) of the Acts I have no jurisdiction to investigate the claim of discriminatory dismissal.
Olga Komissarova
3.6 The respondent submits that the complainant started working for them as a General Operative on 21 January 2008. Her last day of work was 13 May 2008 and her P45 was issued on 14 July 2008. The respondent submits that her claim is out of time as it was made on 27 October 2009, more than one year later.
3.7 The respondent submits that the complainant also submitted claims in relation to safety to the Rights Commissioners. The respondent submits that the complainant has no basis for a claim in relation to training, conditions of employment and other.
3.8 In relation to the claim for discriminatory dismissal the respondent submits that the complainant was let go because of a downturn in business and she was selected on the basis of last in/first out. A total of 38 employees were made redundant in 2008. The respondent submits that the grievance procedure was explained when the complainant started and during on-the-job training.
Ingus Ozolins
3.9 The respondent submits that the complainant starting working for them on 20 July 2007 as an Operator. He has made several claims on the same issues to the Rights Commissioner.
3.10 The respondent submits that the complainant was not issued with a contract due to an administrative oversight. The non issuing of a contract does not in itself amount to discrimination and the respondent cited Equality Tribunal Decision DEC-E2008-014, Gorys v Igor Kurakin Transport Ltd.. The respondent submits that the complainant understood everything in English. Furthermore a fellow employee was at all times available to provide translation if required
3.11 The respondent submits that the complainant did receive health and safety training and on-the-job training. Also the respondent has a Health and Safety Statement which was available to everyone and their Health and Safety Manual was placed on two notice boards.
3.12 The respondent submits that the complainant had failed to demonstrate a prima facie case of discrimination.
Iveta Ozolina
3.13 The respondent submits that the complainant starting work for them on 14 April 2008 as a General Operative. She has made several claims to the Rights Commissioners in relation to the same issues before the Equality Tribunal.
3.14 The respondent submits that the complainant was not issued with a contract due to an administrative oversight and this does not amount to discrimination. The complainant understood everything in English.
3.15 The respondent submits that the complainant did receive health and safety training and on-the-job training. Also the respondent has a health and safety statement that was available to everyone and their Health and Safety Manual was place on two notice boards.
3.16 The respondent submits that at no time were the complainant's hours cut. She was a casual employee and hours are allocated in accordance with business needs. This means that hours given to individuals fluctuate and there is no guarantee of a minimum number of hours.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 Ms Olga Komissarova did not attend the hearing. As the other three complainants did attend the hearing I am satisfied the complainant's representative was aware of the details of the hearing.
4.2 I have to decide if Ms Iveta Genge, Mr Ingus Olozins and Ms Iveta Ozolina were discriminated against in relation to the claims made. In reaching my decisions I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.3 Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "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." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.
Ms Iveta Genge
4.4 At the start of the hearing the complainant withdrew her claim in relation to discriminatory dismissal. As she had taken a claim under the Unfair Dismissal Acts and a Rights Commissioner had issued a recommendation I would have no jurisdiction to investigate a claim of discriminatory dismissal, in accordance section 101 (4) of the Employment Equality Acts. Therefore, I have to decide if the complainant was discriminated against in relation to training and conditions of employment. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.5 The claim in relation to training relates to health and safety training. The complainant alleges that she received insufficient training to safely carry out her duties. The respondent contended that the complainant received the same 'on-the-job' training as everyone else and the person who delivered the training gave evidence at the hearing to confirm that she had trained the complainant. The complainant denied that she had received this training. On balance I accept the respondent's evidence that the complainant was given the same training as all other staff members doing a similar job. I therefore find that the complainant has failed to demonstrate a prima facie case of discrimination in relation to training.
4.6 The claim in relation to conditions of employment relates to not being given a contract of employment, not receiving health and safety documentation and her pregnancy not being taken into account in relation to her working conditions. The respondent accepts they did not give the complainant a contract and they described this as an "administrative oversight". In the hearing the complainant confirmed that she understood her terms and conditions of employment. The complainant adduced no evidence that she was treated differently than someone else in a comparable situation on any of the cited grounds in relation to not being issued with a contract.
4.7 The complainant contends that she was not given any health and safety documentation, whilst the respondent contends they had a health and safety statement and a health and safety manual which was at all times displayed on two notice boards and copies were available to staff on request. The complainant disputed the availability of the health and safety manual but adduced no evidence that their availability or otherwise meant that she was treated any differently than someone else in a comparable situation on any of the cited grounds.
4.8 The complainant contends that she was made to carry out all her previous tasks after she informed the respondent she was pregnant. Particularly that she still had to carry on lifting pallets which were heavy, whilst there were other lighter jobs available. The respondent contends that the HR Manager told her supervisor that she should not lift pallets and the Production Manager told the complainant that she should not lift the pallets. I am satisfied that the respondent took measures to allow the complainant avoid the heavy tasks.
Mr Ingus Ozolins
4.9 I have to decide if the complainant was discriminated against in relation to conditions of employment and if he was harassed. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.10 The claim in relation to conditions of employment relates to not being given a contract of employment and not receiving health and safety documentation. The respondent accepts they did not give the complainant a contract and they described this as an "administrative oversight". They tried to issue the complainant with a contract a year and a half later but the complainant says that he refused to sign it on the advice of his solicitor. The complainant adduced no evidence that he was treated differently than someone else in a comparable situation on the ground of race in relation to not being issued with a contract.
4.11 The complainant contends that he was not given any health and safety documentation, whilst the respondent contends they had a health and safety statement and a health and safety manual which was at all times displayed on two notice boards and copies were available to staff on request. The complainant disputed the availability of the health and safety manual but adduced no evidence that their availability or otherwise meant that he was treated any differently than someone else in a comparable situation on the ground of race.
4.12 The complainant made a claim of harassment on his original claim in that he "was put under pressure to have Iveta Genge drop proceedings in consideration of my mother (Iveta Ozolina) getting her hours back" At the hearing the complainant gave evidence that a 'couple of times' he was asked to encourage his partner to drop her claim. Following these approaches he was moved to work on an old machine and his shift was changed. Also he asked for his mother to be given some hours of work but she was not given any work. The respondent contends that these approaches did not take place and his mother's hours were not effected by Ms Genge's complaint. Also the complainant and his colleagues were all moved from time to time according to production needs and to ensure the right level of skills available to the two types of machine. I accept the respondent's evidence and conclude that the complainant was not harassed.
4.13 The complainant also contends that he was discriminated against following an injury at work, when has unable to claim Social Welfare benefit when he was out of work. This led to him taking annual leave while on sick leave. The respondent contends that although they were not obliged to they paid the complainant for four weeks sick pay. They also produced a copy of his leave record which shows that he did not take any leave during the period in question. They adduced evidence in the form of P35s to show that they had made the appropriate tax and PRSI contributions for the complainant. The only difficulty they were aware of was caused by the complainant over-claiming tax credits. The complainant adduced no evidence that he was treated any differently than someone else in a comparable situation on the ground of race in relation to his absence from work.
Ms Iveta Ozolina
4.14 I have to decide if the complainant was discriminated against in relation to training and conditions of employment on the grounds of gender and race and if she was harassed. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.15 The claim in relation to training relates to health and safety training. The complainant alleges that she received insufficient training to safely carry out her duties. The respondent contended that the complainant received the same 'on-the-job' training as everyone else and the person who delivered the training gave evidence at the hearing that she had delivered that training to the complainant. The complainant denied that she had received this training. On balance I accept the respondent's evidence that the complainant was given the same training as all other staff members doing a similar job. I therefore find that the complainant has failed to demonstrate a prima facie case of discrimination in relation to training.
4.16 The claim in relation to conditions of employment relates to not being given a contract of employment and not receiving health and safety documentation. The respondent accepts they did not give the complainant a contract and they described this as an "administrative oversight". The complainant adduced no evidence that she was treated differently than someone else in a comparable situation on either of the cited grounds in relation to not being issued with a contract.
4.17 The complainant contends that she was not given any health and safety documentation, whilst the respondent contends they had a health and safety statement and a health and safety manual which was at all times displayed on two notice boards and copies were available to staff on request. The complainant disputed the availability of the health and safety manual but adduced no evidence that their availability or otherwise meant that she was treated any differently than someone else in a comparable situation on any of the cited grounds.
4.18 The complainant made a claim of harassment on her original claim in that "after my daughter (Iveta Genge) issued proceedings my hours were stopped. I was put under pressure to get my daughter to drop her proceedings" At the hearing the complainant gave evidence at the hearing that her hours were reduced after Ms Iveta Genge made her claim. When her son asked the respondent why her hours had been dropped the Production Manager said he had been told not to give her work. The respondent contends that casual workers were offered work on the basis of their service and the complainant was the second longest serving casual worker. She therefore worked far more hours than the average in 2009. Subsequently the complainant worked less hours because she spent time in Latvia. I accept the respondent's evidence and conclude that the complainant was not harassed
4.19 The complainant contends she was victimised when, shortly after she made her first claim in December 2009, she was offered a fixed term contract that expired in April 2010. On advice from her solicitor she refused to sign the contract. The respondent contends that after an initial error the complainant was offered a contract for a full year which was sent to her personally. I accept the respondent's evidence and conclude that the complainant was not victimised.
5. DECISION
I have investigated the above complaints and make the following decisions in relation to the four complainants in accordance with section 79(6) of the Acts that:
Ms Olga Komissarova's failure to attend such a hearing was unreasonable in the circumstances and that any obligation under Section 79 has ceased. As no evidence was given at the hearing in support of the allegations of discrimination, I conclude the investigation and find against the complainant,
Ms Iveta Genge was not discriminated against by the respondent in relation to training and conditions of employment,
Ms Ingus Ozolins was not discriminated against by the respondent in relation to conditions of employment and he was not harassed, and
Ms Iveta Ozolina was not discriminated against by the respondent in relation to training and conditions of employment and she was not harassed.
____________________
Hugh Lonsdale
Equality Officer
30 November 2011
¹ Equality Tribunal Decision, DEC-E2008-020, 58 Complainants v Goode Concrete