THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 181
PARTIES
Tudor Frumosa
(represented by Richard Grogan and Associates, Solicitors)
and
Sean McCabe t/a Roof Craft
File References: EE/2009/071
Date of Issue: 23rd September, 2011
File references: EE/2009/071 - DEC-E2011 - 181
Keywords
Employment Equality Acts 1998-2008 - sections 6 and 8 - discriminatory treatment - conditions of employment - health & safety training and documentation - discriminatory dismissal - race.
1. Dispute
1.1 This case concerns a complaint by Mr. Tudor Frumosa, a Moldovan national, who claims that he was discriminated against by Sean McCabe t/a Roof Craft 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 Mr. Frumosa referred a complaint under the Employment Equality Acts, 1998 to 2008 to the Director of the Equality Tribunal on the 2nd February 2009. 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 June 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 17th June 2011 and the final correspondence in this case was received on the 26th July 2011.
3. Summary of the Complainants' case
3.1 Mr. Frumosa claims that he moved to Ireland in October 2003 and was employed by the respondent from October 2006 until October 2007 and then re-employed from May 2008 until December 2008. He claims that he was doing general construction duties, mainly roofing. He stated that there were a number of other employees of various nationalities employed by the respondent doing similar duties to him during his period of employment, namely from Ireland, Poland and from the Baltic States.
3.2 Mr. Frumosa claims that he did not receive a written contract of employment; he also claims that he never received any health & safety training or documentation while working with the respondent. However, he did agree that he got Safe Pass training. Mr. Frumosa was not aware if any of his fellow employees received contracts of employment or health & safety training or documentation.
3.3 Mr. Frumosa claims that he was not paid in accordance with the specific Registered Employment Agreement for the Construction Industry (REA) nor was he joined into the Pension and Sick Pay Scheme. He claims that he was unaware if any of his fellow workers were paid in accordance with the REA or were entered into the Pension and Sick Pay Scheme. In his submission he contends that in line with the reasoning in the Campbell Catering Limited Case it have would been reasonable to argue that there was a legal obligation on the respondent to advise the complainant of his rights and in particular that it was covered by the REA for the Construction Industry.
3.4 Mr. Frumosa claims that he was dismissed without any proper reason or procedures and had one weeks payment - €500 - held by the respondent to cover his work permit, which he claims is an illegal deduction. He claims that he did not get all his holiday pay and claims that the Labour Court found in favour of that point. He disagrees with the respondents claim that he was given all his pay when he left and claims that the respondent has shown no evidence of that.
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 his own language, or a language he could understand was in breach of the Acts. He claims that as the complainant was a foreign national the respondent had a responsibility to take special measures to protect him. 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 complainant's submission that the respondent's failure to provide this amounts to discrimination within the meaning of the Acts.
3.6 The complainant's legal representative also submitted that the respondent's failure to provide documentary evidence to support his case prior to the hearing and then his failure to present witnesses to corroborate his evidence places the complainant at a disadvantage in this case. The complainant's legal representative referred to the decision in the Supreme Court in Louisa Kiely -v- Minister for Social Welfare, and claims that all of Mr. McCabe's evidence is at best hearsay, in particular where he claims that another employee translated documents for Mr. Furmosa, however, this employee is not present to give evidence and have that evidence tested.
4. Summary of the Respondent's case
4.1 The respondent claims that it has been involved in roofing construction and it is still in existence. It employed approximately 6 people at the height of its business activity which were either semi-skilled or un-skilled to carry out general roofing construction type duties. It claims some employees were more skilled and experienced than others and it named and rated the skill set level of its employees. He claims that one of his employees, Mr. A also a Moldovan national, who was a friend of the complainant had recommended him to Mr. McCabe to come and work with the company. Mr. McCabe took him on in the position but he claims that he was not a roofer or a carpenter and he did a variety of other jobs supporting the skilled roofers with their work. Mr. McCabe disputes that he discriminated against Mr. Frumosa on the race ground. It claims there were no problems while he worked there.
4.2 The respondent does not dispute that the complainant did not get a contract of employment, he claims that none of the employees got a contract of employment at that time. It claims that contrary to the evidence from the complainant, Mr. Frumosa was provided with health & safety training and was sent on a Safe Pass training course. Mr. McCabe claims that it provided a Safety Statement and Mr. A would have helped in the translation for Mr. Frumosa.
4.3 The respondent disputes that the complainant was discriminated in relation to his pay. It claims that he did not have near the same skill set as the other employees. He claims that they both agreed the pay rate in advance and Mr. Frumosa was to develop the skills in the trade in the mean-time on the job. It claims that he was paid in accordance with his skills and the role he performed for the respondent.
4.4 The respondent claims that it did not discriminatorily dismiss the complainant under the race ground. Mr. McCabe claims that due to economic conditions he had to let Mr. Frumosa go. He claims that he was given notice that he was to be dismissed and all pay including holiday pay was paid up to date and he was given his P45. Mr. McCabe denies the allegation against him that he held back €500 from Mr. Frumosa to pay for his work permit. Mr. McCabe claims that he let Mr. Frumosa go on the basis of last in first out, he claims that he was not entitled to a redundancy so he gave him €1,000 to cover all monies owed to him and some more.
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 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)(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 complainant in relation to the respondent's alleged failure to provide him with a written contract of employment and health & safety training and documentation which he contends constitutes unlawful discrimination of him on the grounds of race contrary to the Acts. It was submitted that the Tribunal should infer that he has been subjected to less favourable treatment on the grounds of his 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 agreed an oral contract of employment with everyone and that health & safety documentation and training was provided to everyone in the same way. I note the evidence of the complainant where he claims that he did not receive any documentation or any training. However, he is not aware if the other workers received the same. Notwithstanding the disputed position of the parties in relation to this aspect of the claim, 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 complainant was treated any differently not to mind less favourably than any of his fellow workers. I am satisfied that Mr. McCabe sought Mr. Frumosa to work for him on foot of a request from a friend and compatriot of the complainants who was already established working with the respondent. This is not disputed by the complainant. I am satisfied that neither the complainant nor the respondent had any major problems when they worked together. I am satisfied that the respondent provided the complainant with Safe Pass training. All of which on the face of it suggest a pleasant and favourable working environment. The complainant's legal representative claims that Mr. Frumosa is disadvantaged, as an employee Mr. McCabe refers to, as helping the complainant with translations, was not present at the hearing to give evidence. I note that the complainant did not call on any witnesses to give evidence on his behalf. I am satisfied that I have carefully assessed all the written and oral evidence presented to me in this case and accordingly, I have placed the appropriate weight to all the evidence before me. I am also satisfied that in this instance the case does not hinge on the non attendance of the employee referred to at the oral hearing. Therefore having regard to the totality of the evidence adduced, I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that he was treated less favourably than his fellow workers including the Irish persons working there. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of the complaint.
5.7 In relation to the claim that the respondent did not pay the complainant in accordance with the REA for the Construction Industry or include him in the Construction Workers Pension and Sick Pay scheme. I note and I accept that the complainant has adduced evidence to suggest that he may have been treated badly by the respondent in terms of the rate of pay and entitlements in accordance with a particular REA or entry into particular Pension and Sick Pay Schemes. However, I am satisfied that I do not have any jurisdiction to decide whether or not the respondent was in breach of its obligations under the relevant employment legislation in relation to the REA. I note this is not an Equal Pay case but rather a case of discriminatory treatment regarding the conditions of employment under Section 8 of the Acts. Section 8(6) specifically states:
"Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one --
(a) the same terms of employment (other than remuneration and pension rights),"
[my emphasis added]
I note that there are a number of decisions from this Tribunal in relation to this issue. I note the Equality Tribunals decision in DEC-E2010-173 where the Equality Officer states,
"It ought to be noted that a claim for discriminatory treatment cannot rest on a mere claim concerning remuneration (equal pay claim). Section 8(6) clearly excludes remuneration and pension rights from conditions of employment but includes same terms of employment, same working conditions, overtime, shift work, short time, lay-offs, redundancies, dismissals and disciplinary procedures. While I note that the respondent stated that he paid the Lithuanian nationals less than what a REA would have stipulated; he submitted it was because they did not have their own tools nor transport. These facts, in relevant circumstances, may give rise to a claim for equal pay. However, it is clear that in the circumstances where the respondent was not notified of such claims I have no jurisdiction to investigate claims for equal pay. The complainants have not shown any evidence of less favourable treatment in relation to conditions protected in the Acts. Furthermore, I note that the complainants' representative argued that by comparing these conditions with a notional comparator (the respondent only employed non-nationals), the complainants' conditions of employment were discriminatory in that they missed out on all the benefits that come with a REA. REA claims, in themselves, are not matters within this Tribunal's jurisdiction. The complainants provided this Tribunal with no evidence to support an argument - which was based on the complainants' race - supporting an argument for less favourable treatment."
Accordingly, I am satisfied that Section 8(6) clearly excludes remuneration and pension rights from a claim of alleged discriminatory treatment on the conditions of employment, as is the case before me for consideration, and I have no jurisdiction to consider this matter any further.
Discriminatory Dismissal
5.8 The next element of the complainant's claim concerns the allegation that he was subjected to a discriminatory dismissal on the grounds of his race. The complainant stated in evidence that he was dismissed by the respondent without any proper procedure and he believes that the respondent held on to €500 as a payment towards his work permit. I also note the respondent's evidence that due to the downturn of business Mr. Frumosa was let go as there was no work for him and he was given notice of this termination. He claims that the complainant was let go on the basis that he was last in and therefore the first out. He claims that all he was owed was paid to him and no money was held back to pay for the work permit. In considering this issue, I prefer the evidence of the respondent in this case. I am not satisfied that the complainant is clear as to why he maintains that money was held back from him to pay for the work permit. He has not adduced any evidence to substantiate his claim that this was the case.
5.9 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 complainant must be able to demonstrate some significant evidence of less favourable treatment and this treatment must be linked to his race. Based on the totality of the evidence adduced in the present case, I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that the termination of his employment was in any way influenced by his race. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to dismissal on the grounds of his race.
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 complainant 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 respondent did not discriminate against the complainant on the race ground pursuant to section 6(2)(h) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts.
Accordingly, I find in favour of the respondent in this matter.
______________
James Kelly
Equality Officer
23rd September 2011