The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2011-190
PARTIES
Andris Muckenieks, Juris Obelis, Valerijs Adamovics & Aleksandrs Bobrovs (Represented by Richard Grogan & Associates)
AND
Prestige Recycling Limited, Prestige Cleaning Limited & Prestige Resources (Limerick) Limited
File reference: EE/2009/727-728, 731-732, 859-864
Date of issue: 10 October 2011
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 and 8 - Race - Conditions of employment - Discriminatory dismissal- Multiple Respondents
1 DISPUTE
1.1 This dispute concerns claims by Mr Andris Muckenieks, Mr Juris Obelis, Mr Valerijs Adamovics & Mr Aleksandrs Bobrovs that they were discriminated against by Prestige Recycling Limited, Prestige Cleaning Limited and Prestige Resources (Limerick) Limited on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts 1998-2008 in relation to training, conditions of employment and discriminatory dismissal in terms of sections 8 of the Acts.
1.1 The complainants referred their claims to the Director of the Equality Tribunal on 28 September 2009 under the Employment Equality Acts. On 13 July 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 the complainants.
2 CORRECT RESPONDENT
2.1 The complainants made claims against all three respondents. The Tribunal requested clarification and the complainants confirmed that as far as they were aware they were employed by the same company throughout their employment However, they were confused as to their correct employer as they had received payslips with the names of all three companies at different times during their employment. The complainants submitted a selection of payslips which showed their employer to be:
- Prestige Recycling on a variety of dates between 6 May 2005 - 9 February 2007
- Prestige Cleaning on a variety of dates between 28 September 2007 - 20 February 2009, and
- Prestige Resources (Limerick) Ltd. on a variety of dates between 6 March 2009 - 25 June 2009.
2.2 During the course of my investigation I found out that Prestige Cleaning Limited was dissolved on 3 May 1996. In accordance with a previous decision of the Equality Tribunal¹ on the basis of legal advice obtained by the Equality Tribunal I accept the conclusion that I do not have jurisdiction to carry out an investigation into a complaint against a dissolved company.
2.3 The Liquidator (Horwath Bastow Charleton) confirmed that Prestige Recycling Limited went into liquidation on 8 August 2008. The complainants made their claims when they submitted their EE1 claim forms on 28 September 2009. Section 77 (5) (a) of the Employment Equality Acts, 1998 - 2007 states: "a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case be, the date of its most recent occurrence." This may be extended to 12 months where there is reasonable cause to do so. The last possible date of employment, and therefore the last date on which discrimination could have taken place, was 8 August 2008. This is more than 12 months before the complainants submitted their claims to the Equality Tribunal on 28 September 2009. I therefore find their claims to be out of time in relation to Prestige Recycling Limited.
2.4 Information from the Companies Records Office website showed that Prestige Resources (Limerick) Limited was active at the time the claims were made and was still active at the time of my investigation. I conclude that Prestige Resources (Limerick) Limited is the only named respondent against whom these claims of discrimination could be pursued. I wrote to the registered office of Prestige Resources (Limerick) Limited to inform them of the hearing and in accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 15 July 2011 and final information was received from the complainant's representative on 25 July 2011.
3 COMPLAINANTS' SUBMISSION
3.1 All four complainants submit that they worked for the same company, doing the same work during their employment. They did not know why the name of three different companies appeared on their payslips.
Valerijs Adamovics
3.2 Mr Adamovics is Latvian and started work for the respondent in July 2005 separating recycling material. He submits that he was never given a contract of employment and received no other documents to confirm his employer. He also submits that he received no health and safety training or documentation.
3.3 He submits that he was paid the minimum wage and initially received no overtime premium. Later on he was paid €10 per hour after he worked 45 hours in a week.
3.4 The complainant submits that on 28 June 2009 he was told there was no work available for him when the Dell plant closed and everyone in his area was let go at the same time. He was not given any redundancy payment.
3.5 The complainant submits that all the workers in his area were either Latvian or Lithuanian and an Irish worker would not have been treated in the same way and this amounts to discrimination on the grounds of his race.
Juris Obelis
3.6 Mr Obelis is Latvian and started work for the respondent in March 2005 separating recycling material. He submits that he was never given a contract of employment and received no other documents to confirm his employer. He also submits that he received no health and safety training or documentation.
3.7 He submits that he was paid the minimum wage and initially received no overtime premium. Later on he was paid €10 per hour after he worked 45 hours in a week.
3.8 The complainant submits that on 25 May 2009 the manager told him there was no work available for him and the area he was working in was closing down. He was aware that 5 people continued working for the respondent; they were Latvian or Lithuanian. He was not given any redundancy payment.
3.9 The complainant submits that all the workers in his area were either Latvian or Lithuanian and an Irish worker would not have been treated in the same way and this amounts to discrimination on the grounds of his race.
Andris Mucenieks
3.10 Mr Mucenieks is Latvian and started work for the respondent in March 2006 separating recycling material. He submits that he was never given a contract of employment and received no other documents to confirm his employer. He also submits that he received no health and safety training or documentation.
3.11 He submits that he was paid the minimum wage and initially received no overtime premium. Later on he was paid €10 per hour after he worked 45 hours in a week.
3.12 The complainant submits that in May 2009 he got his P45. He was aware that some others were let go after him. He was not given any redundancy payment. When he left he found out there were problems with the respondent's tax and PRSI payments and he was not entitled to Unemployment Benefit.
3.13 The complainant submits that all the workers in his area were either Latvian or Lithuanian and an Irish worker would not have been treated in the same way and this amounts to discrimination on the grounds of his race.
Alexsandrs Bobrovs
3.14 Mr Bobovs is Latvian and started work for the respondent in May 2006 separating recycling material. He submits that he was never given a contract of employment and received no other documents to confirm his employer.
3.15 He submits that he was paid the minimum wage and initially received no overtime premium. Later on he was paid €10 per hour after he worked 45 hours in a week.
3.16 The complainant submits that on 28 May 2009 he was told there was no work available for him when the Dell plant closed and everyone in his area was let go at the same time. He was aware that 3 people doing different work than he was were not let go at the same time. He was not given any redundancy payment. When he left he found out there were problems with the respondent's tax and PRSI payments and he was not entitled to Unemployment Benefit.
3.17 The complainant submits that all the workers in his area were either Latvian or Lithuanian and an Irish worker would not have been treated in the same way and this amounts to discrimination on the grounds of his race.
4 RESPONDENT'S SUBMISSION
4.1 The respondent (Prestige Resources (Limerick) Limited) did not did not attend the hearing.
5 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
5.1 I have heard this case against Prestige Resources (Limerick) Limited for the reasons given in section 2. However the complainants received no documentation confirming their employer, apart from payslips which gave the three companies referred to. I accept the complainants' evidence that their manager (referred to by all of them in separate evidence as Sean) was the same throughout all their employments and that they had no indication of any change of employer. I also accept their evidence that they did not receive any redundancy payment and they had difficulties claiming Social Welfare entitlements because the appropriate contributions had not been made on their behalf.
5.2 However, I have to decide if the complainants were discriminated against in relation to their conditions of employment and if they were dismissed in a discriminatory manner. 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, which the complainants gave separately.
5.3 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. Further, in a recent Determination the Labour Court², 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 is in 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."
Conditions of Employment and Training
5.4 The four complainants gave similar evidence in relation to their conditions of employment and training. It was given separately and was broadly consistent, apart from Mr Bobrovs who confirmed that he did receive Health and Safety training. From their evidence it appears that their employer did not comply with all his obligations under employment legislation. However, they have provided no evidence that they were treated any differently because of their race.
5.5 I find that the complainants have failed to establish a prima facie case of discrimination in relation to their conditions of employment.
Dismissal
5.6 All four complainants stated they were dismissed when they were told that there was no more work as the area they were working in as it was closing down. From the evidence given all four would have entitled to receive a redundancy payment and I understand they have taken claims under the Redundancy Payments Acts. However, they gave no evidence that might imply that their dismissals were discriminatory or that the non payment of redundancy entitlements could be deemed to be related to their race.
5. DECISION
I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
the respondent did not discriminate against the complainants in relation to their conditions of employment, and
the respondent did not dismiss the comp0lainants in a discriminatory manner.
___________________
Hugh Lonsdale
Equality Officer
10 October 2011
¹ Equality Tribunal Decision No. DEC-E2010-260, Renatas Ramanauskas v Igor Kurakin Transport Limited
²Labour Court Determination Arturs Valpeters v Melbury Developments Ltd EDA0917 [2010] 21 E.L.R