THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 169
PARTIES
Valdas Uosis & Ausra Uosiene
(represented by Richard Grogan and Associates, Solicitors)
and
Ashbrook Facility Management Limited T/A AFM Ireland
(represented by Cosgrave, Solicitors)
File References: EE/2009/318 & EE/2009/329
Date of Issue: 13th September 2011
File references: EE/2009/318 & EE/2009/329- DEC-E2011-169
Keywords
Employment Equality Acts 1998-2008 - Sections 6, 8 and 74(2) - discriminatory treatment - conditions of employment - health & safety training and documentation - victimisatory dismissal - victimisation.
1. Dispute
1.1 These cases concern complaints by Mr. Valdas Uosis & Ms. Ausra Uosiene who are husband and wife and Lithuanian nationals, who claim that they were discriminated against by Ashbrook Facility Management Limited t/a AFM Limited on the grounds of race contrary to Section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of discriminatory treatment and discriminatory dismissal.
2. Delegation of the complaint
2.1 The complainants referred these complaints under the Employment Equality Acts, 1998 to 2008 to the Director of the Equality Tribunal on the 13th and 18th May 2009 respectively. In accordance with his powers under Section 75 of the Acts, the Director then delegated the case to me, James Kelly, an Equality Officer on the 3rd May 2011, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, this is the date I commenced my investigation. A written submission was received from both the complainant and from the respondent. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to a hearing of the case on the 11th May 2011 and the final correspondence in the case was received on the 10th June 2011.
3. Summary of the Complainants' case
3.1 The complainants have been in Ireland since August 2008 and have been employed by the respondent as cleaners since September 2008. They both claim that they never received a contract of employment or any health & safety training or documentation while working with the respondent. They claim that they were not aware if any of their fellow employees received contracts of employment or health & safety training or documentation. They said they were asked to sign documents from time to time but did not get a copy of them to take away and keep. They dispute the respondent's claim that they received assistance in their own language from a colleague working with the respondent who is also Lithuanian.
3.2 The complainants claim that they were part of a team of cleaners which were based in a (named) Health and Fitness club in the south of Dublin. They claim that they each worked a 7-hour nightshift, 3 to 4 nights per week. They claim that they went on holidays on the 18th March 2009 for two weeks and on their return from holidays they expected to resume employment in the same location with the same conditions however, that was not the case. They claim that when they tried to return to work in the Health and Fitness club they found out that a number of "Africans" were working there, who they were told were friends of the site manager. They claim that they were not offered any excuse for being replaced and their jobs were effectively gone.
3.3 The complainants claim that they had a meeting with Mr. A, a director in the company, who offered Mr. Uosis another position cleaning with another client but the location was not very convenient. Mr. Uosis was not sure of the dates of the meeting. However, he was of the view that the offer of this cleaning position came after his solicitor had written to the respondent and said that he was seeking redress under the Acts. Mr. Uosis claims that he took up this new cleaning position with the respondent, however after a time he was made redundant.
3.4 Ms. Uosiene claims that she was not offered alternative positions by the respondent and she had not been offered work since, in over two years. Ms. Uosiene did agree that she informed the respondent that she was on maternity leave from 10th July 2009 and that she was due to return to work approximately the 10th January 2010. She also did not dispute that she received all her maternity benefits. At the hearing Ms. Uosiene claims that she was dismissed because of the complaint that she lodged against the respondent seeking redress under the Equality Employment Acts.
3.5 In his legal submission the complainant's legal representative submitted that the respondent's failure to provide a contract of employment and health & safety training and documentation in their own language, or a language they could understand was in breach of the Acts. He claims that as the complainants are foreign national the respondent had a responsibility to take special measures to protect them. He said that following the Decision of the Tribunal in 58 Named Complainants -v- Goode Concrete Limited, that there is an obligation on an employer to provide employees with a written contract of employment and health & safety training documentation in a language which they can understand. It was the complainants' submission that the respondent's failure to provide this amounts to discrimination within the meaning of the Acts.
3.6 On the day of the hearing the complainants claimed that they were unfairly treated as a result of them taking a case under the Employment Equality Acts. Mr. Uosis also claims that he was moved to a position at Dublin Airport that ultimately resulted in him losing his job. Ms. Uosiene claims that she has not worked with the respondent since going on holidays in March 2009 and was therefore dismissed contrary to Section 74(2) of the Acts.
4. Summary of the Respondent's case
4.1 The respondent claims that it operates a contract cleaning business with a multi national work force of approximately 250 people. It totally disputes that it discriminated against, or victimised the complainants on the race ground. It claims there were no problems with the complainants while they worked there and that they were good workers.
4.2 The respondent disputes the complainants' claim that they did not get a contract of employment. It presented copies of the two contracts of employment signed by the complainants. It presented Ms. B, site manager for the complainants at the time, who is also originally from Lithuania. Ms. B gave evidence that she went through the contracts of employment with the complainants in Lithuanian and that a copy of the contract was left for them in the usual collection place for staff on the night shift. She claims that no issues were raised with her.
4.3 She also claims that contrary to the evidence from the complainants, that she provided the complainants with health & safety training and assisted them in training them on to the job. Again she claims that the complainants never informed her that they had a problem or that they did not understand something. The respondent produced a signed document by the complainants to say that they had read and understood its Safety Statement. She claims that no issues were ever raised with her.
4.4 The respondent claims that the nature of the business is based on the level of service its clients determine as necessary for them. It claims that it had to cover the complainants shift while they were away on holidays and they did this by calling in (named) employees already working for the company. The Health and Fitness club, where the complainants had worked asked for a reduced night cleaning service, meaning that the arrangement in place with the complainant had to change. It could not offer the complainants night shifts that did not exist. The respondent informed the complainants of this on their return from holiday and they were offered a different roster with this client to keep their hours up at the level they had. The respondent said it was unable to guarantee that they would be working together, which they had asked for. It claims that they refused the offer and did not get in contact with the respondent for about a month.
4.5 The respondents claim that when the complainants did return to the company and met with Mr. A, a number of different work offers were made available to them. Mr. Uosis chose to take up one of these offers, cleaning at a named company at Dublin Airport, whereas Ms. Uosiene turned down three different positions offered to her. The respondent was very clear that the meeting with Mr. A was before it had received notification of a claim for redress under the Employment Equality Acts from their solicitor. Accordingly, the claim of victimisation by Mr. Uosis and of victimisatory dismissal by Ms. Uosiene is incorrect as the respondent was not aware of the allegation against it at the time. The respondent also maintains that in Ms. Uosiene's case, she was never dismissed. It claims that she contacted the respondent and informed it of her maternity dates and the dates she was due to return. Accordingly, it claims that this does not suggest that she held the opinion that she was dismissed victimisatory or otherwise. It claims that she has simply not made herself available to work the various work options it has offered her. It claims that it invited her in to meet and try to resolve her difficulties but she did not attend.
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/her. If he/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 complainants. 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".
In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
Conditions of employment
5.3 Firstly, the complainant has submitted that the Decision of this Tribunal in 58 Named Complainants -v- Goode Concrete Limited places an obligation on an employer to furnish non-Irish employees with a contract of employment and health & safety documentation in a language which they understand. I am of the view that this is an incorrect interpretation of that Decision. In that case the Equality Officer found that in circumstances where an employer furnishes its employees with contracts of employment and/or health and safety statements it constitutes less favourable treatment of non-Irish employees if the respondent provides them with a contract of employment in English and not in a language which they can understand. I note that the Equality Officer went on to make an order to "put in place clear procedures for ensuring that non-national employees are clear as to their terms and conditions of employment and also understand all safety documentation" rather than specifying that the contract of employment and/or health and safety statement should be provided in those employees native language, or any other language for that matter. Therefore, the clear principle in the Goode Concrete case was to place the onus on the respondent to make reasonable efforts to ensure that the relevant employees understood their rights and that it ensured that they were not treated less favourably than someone else who was made aware of those rights.
5.4 In considering this issue, I have also taken cognisance of the recent determination of the Labour Court whilst examining the circumstances in which the probative burden of proof operates held as follows:-
"Section 85A of the Act 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."
5.5 I will now consider the issues that have been raised by the complainants in relation to the respondent's alleged failure to provide them with a written contract of employment and health & safety training and documentation which they contend constitutes unlawful discrimination of them on the grounds of race contrary to the Acts. It was submitted that the Tribunal should infer that they had been subjected to less favourable treatment on the grounds of their race and, accordingly, that the burden of proof should shift to the respondent to rebut the inference of discrimination.
5.6 In the present case, the respondent claims that it provided the complainants with contracts of employment, health & documentation training for the job and health & safety documentation. I note the evidence of the complainants that they were asked to sign documents but were not sure what they were and that they did get some on the job training - i.e. a practical demonstration on how the job should be done. I note that Ms. B's evidence, a compatriot of the complainants, and also their site manager who looked after the contract of employments and training on the site, said she assisted the complainants and there was never an issue raised with her with regards to either their contracts of employment and/or their training. I also note that Ms. Uosis was sent on specific manual handling safety training before he took up his position with a company at Dublin Airport. This evidence alone is contrary to the complainants' position that the respondent does not provide Health and Safety training for its employees. There was no evidence to suggest that the other employees working for the respondent were given any additional documentation or further training. Notwithstanding the disputed position of the parties in relation to this aspect of the claim and having studied the evidence and in consideration of the Labour Court decision in Melbury I am satisfied that I have not been presented with any evidence to support that the complainants were treated any differently not to mind less favourably than any of his fellow workers. Having regard to the totality of the evidence adduced, I prefer the evidence of the respondent and I am satisfied that the complainants did receive contracts of employment and training from the respondent. I am satisfied they had an opportunity to raise any issues with Ms. B, a compatriot, to assist them if/when required. Therefore, I am satisfied that the respondent made a reasonable effort to ensure that the relevant employees understood their rights and that it ensured that they were not treated less favourably than someone else who was made aware of those rights. I am not satisfied that the complainants have adduced any evidence from which I could reasonably conclude that they were treated less favourably than their fellow workers in this aspect of their case. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination in relation to this element of the complaint.
5.7 In relation to the complaint regarding the changes to the complainants working arrangements; I have heard and am satisfied that is it the nature of the business that the respondents work load is largely dictated by their clients needs. I note the respondent's evidence is that the clients, where the complainants had worked prior to their holidays, had requested a reduction to the night cleaning hours and this led to a change in the rosters at that site. I note the respondent stated that this was discussed with the complainants who were unhappy because the new arrangement would mean that they would not be guaranteed that they would work together. I note that the respondent claims that the complainants refused different works offers and did not make themselves available for work. I note the complainants' evidence that on their return to work they were "replaced by African workers" and that they were not informed of the clients request to change its work arrangement. The respondent claims that these other workers were employees of the respondent who were used as cover while the complainants were on holiday and not brought in to replace them. I note that the evidence from the complainants is some what conflicting, the dates of meetings/discussions with management and the particular work options offered by the respondent seem confused. It is clear that a meeting between the complainants and Mr. A did occur in April 2009 and there was discussion about work and work arrangements were discussed at this meeting. The complainants have not satisfactorily explained in their evidence the chronology of events from returning from their holiday to the point of re-engaging with the respondent's management about returning to work. The complainants' evidence is imprecise here and far from certain or convincing. Mr A's and Ms B's recall of events appear to be more consistent and credible. I prefer the respondent's evidence in relation to this aspect of the claim. Accordingly, having regard to the totality of the evidence adduced, I am not satisfied that the complainants have adduced any evidence from which I could reasonably conclude that they were treated less favourably than their fellow workers in this aspect of their case because of their race. Therefore, I find that the complainants have failed to establish a prima facie case of discrimination in relation to this element of the complaint.
5.8 The complainants' claim that they were unfairly treated and discriminated against because of their race. 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. Accordingly, the complainants must firstly be able to demonstrate some significant evidence of less favourable treatment and this treatment must be linked to their race in order to raise an inference of discrimination. Accordingly, I find that the complainants have failed to present evidence for them to establish a prima facie case of discrimination on the grounds of their race.
Discriminatory Dismissal
5.9 The next element of the complainants' claim concerns the allegation that they were subjected to a discriminatory dismissal on the grounds of their race. Mr. Uosis stated that he was dismissed by the respondent without any proper procedure. However, he stated in evidence that he was offered a position by the respondent to work as a cleaner at a named company at Dublin airport. I note that he accepted the position and he started working there on the 15th May 2009, after undergoing a manually handling training course. I am satisfied was some months after he was offered the job, the company at Dublin airport cancelled its cleaning contract with the respondent. I note the respondent's claim that after which Mr. Uosis was made redundant in October 2009 and I note the respondent's claim that the complainant had not challenged the redundancy situation. Accordingly, the evidence is clear here that Mr. Uosis was not dismissed by the respondent prior to the redundancy situation in October 2009.
5.10 It is Ms. Uosiene's evidence that she was dismissed by the respondent and has not worked there since her return from holidays. The respondent claims that it offered the complainant 3 different work options, however, she refused those work options and has not been in contact or put herself forward to work since that time. Mr. A's evidence is that he invited Ms. Uosiene in to try and resolve her difficulty with it but she refused. I note that Ms. Uosiene claims in evidence that she was effectively dismissed since her return from her holidays in early April 2009 and therefore, the date of her dismissal is in effect the last date of her employment on the 15th March 2009. I have noted the respondent's evidence that Ms. Uosiene was in contact with the respondent about other work options. I also note that she sent a note to the respondent outlining that her maternity leave was from 10th July 2009 until 10th January 2010, a copy was provided in evidence. I note where the respondent claims that she was in receipt of her maternity benefits and was not dismissed. It claims that the evidence of her sending in her maternity notice alone, supports its position that she also did not believe that she was dismissed.
5.11 I am not satisfied that the complainants have adduced any evidence to substantiate their claim that they were dismissed because of their race. 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 race, the complainants must be able to demonstrate some significant evidence of less favourable treatment and this treatment must be linked to their race. Based on the totality of the evidence adduced in the present case, I am not satisfied that the complainants have adduced any evidence from which I could reasonably conclude firstly, that the termination of Mr. Uosis's employment was in any way influenced by his race. Likewise I am not satisfied that Ms. Uosiene has established evidence that she was ever dismissed by the respondent. Accordingly, in considering the issues in relation to this aspect of the case, I prefer the evidence of the respondent and I find that the complainants have failed to establish a prima facie case of discrimination in relation to dismissal on the grounds of their race.
Other matters for consideration
5.12 At the hearing both complainants' gave evidence that the respondent had carried out certain actions against them as a consequence of being notified of their complaints under the Employment Equality Acts. I advised the parties at the hearing that as part of my investigation the complainants had opened questions surrounding the possibility for me to consider a claim of victimisation and victimisatory dismissal under Section 74(2) of the Acts. These aspects of the complainants' case were not previously before the Tribunal to consider or before the respondent to rebut prior to the day of the hearing. The respondent did offer a robust verbal submission as a rebuttal of the allegation on the day of the hearing. Notwithstanding, I put both parties on notice that following the hearing I would invite them to furnish written submissions on these matters. I received submissions from both parties which were copied and exchanged to the other side to examine and further comment on.
5.13 I note the decision in the High Court case of County Louth VEC -v- The Equality Tribunal and Pearse Brannigan where McGovern J. held that "I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be possible to amend a claim as set out in a form such the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same". In the present case, the complainants referred a complaint to the Tribunal in which they claimed discriminatory treatment on the grounds of race in terms of conditions of employment and dismissal with the respondent i.e. they set out in broad terms the general nature of the alleged discrimination. Having regard to the judgement in the County Louth VEC case, I am satisfied that the complainants are not precluded from amending the particulars of the claim so long as the general nature of the complaint remains the same.
5.14 I am satisfied that the claim of victimisation and victimisatory dismissal was only raised at the oral hearing. I have reviewed the original EE1 form and submissions filed by both the complainants and I am satisfied that there are no references to or suggestions of victimisation or victimisatory dismissal in any of the documents before the Tribunal prior to the hearing date. Accordingly, I am satisfied the introduction of such a matter is an extension of the complaints which broadens the scope of the cases beyond the general nature of the complaints before me for consideration. Accordingly, I am satisfied that I do not have jurisdiction to consider these new aspects of the case as they were only introduced at the hearing, some 2 years after the complaints were referred and are clearly out of time and consequently I do not have jurisdiction to investigate it further.
6. Decision
6.1 Having investigated the above complaints, I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
the respondent did not discriminate against the complainants on the race ground pursuant to Section 6(2) of the Acts in terms of their conditions of employment and training contrary to Section 8(1) of the Acts.
the claim of victimisation and victimisatory dismissal contracy to Section 74(2) is out of time.
Accordingly, I find in favour of the respondent in this matter.
______________
James Kelly
Equality Officer
13th September 2011