EMPLOYMENT EQUALITY ACTS
Decision DEC - E2012-054
PARTIES
Natalya Morgalova, Larisa Morgalova & Aleksandrs Morgalovs
(Represented by Richard Grogan & Associates, Solicitors)
v
Brian Long
(Represented by Thomas Ryan & Co. Solicitors )
File references: EE/2009/240 EE2009/241, EE2009/242,
& EE2009/370
Date of issue: 30/4/3012
Headnotes: Employment Equality Acts, 1998-2008 - sections 6, 8,14A,74 - race- - gender - family status -marital status conditions of employment - prima facie case - discriminatory dismissal - harassment -victimisation- misconceived.
1. Dispute
1.1 This dispute concerns claims by Ms. Natalya Morgalova, Ms. Larisa Morgalova and Mr Aleksandrs Morgalovs (hereinafter "the complainants") that each of them was subjected to discriminatory treatment on the ground of his/her race in terms of Section 6 (2) (h) and contrary to Sections 8 of the Employment Equality Acts by Brian Long (hereinafter "the respondent") and that each of them was harassed contrary to Section 14A of the Acts. This dispute also concerns a claim by Ms Natalya Morgalova that she was subjected to discriminatory treatment on grounds of gender in terms of Sections 6(2)(a) of the Acts. This dispute also concerns a claim by Ms Larissa Morgalova that she was subjected to discriminatory treatment on grounds of gender, marital status and family status in terms of Sections 6(2)(a), (b) and (c) of the Acts. Each of the complainants maintains that the respondent discriminated against him/her in relation to training, conditions of employment and other. Both Ms Larisa Morgalova and Mr. Aleksandrs Morgalovs also maintain that s/he was subject of a discriminatory and victimisatory dismissal .
1.2 Each of the complainants referred complaints under the Employment Equality Acts to the Equality Tribunal on 14 April 2009 and subsequently on 25 May 2009 Mr Morgalovs referred a claim of discriminatory and victimisatory dismissal. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Deirdre Sweeney, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 1 March 2012, the date the complaint was delegated to me. Submissions were received on behalf of all parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 5 April 2012 and final information was received on 18 April 2012.
2. Summary of the Complainants' Submissions
2.1 The complainants who are Latvian nationals, state they were employed by the respondent. Each of them submits that s/he did not receive a contract of employment, health and safety documentation or training. Each of them complains that s/he did not receive payslips, tax documentation, or P60s. Each of them contends that s/he had to work excessive hours with no breaks or rest periods. Ms Natalya Morgalova states that she was working as a nanny for the respondent. She was required to go to France at times and was fired when the respondent obtained a French speaking nanny who had a driving licence. Ms Larisa Morgalova submits that she had to have breakfast ready by 7.15am and then work until late in the evening. She had a six year old son who was not allowed in the kitchen. When Ms Larisa Morgalova issued a Form EE2 to the respondent she contends that she was fired. When Mr Aleksandrs Morgalovs issued a Form EE2 he contends that he was fired. The complainants also contend that each of them was subjected to constant harassment. They also contend that they were required to be at the beck and call of the respondent and his wife all day every day. The complainants contend that this constitutes unlawful discrimination on grounds of race contrary to the Acts.
2.2 The complainants also refer to a number of cases in support of their cases, including Southern Health Board -v- Dr Teresa Mitchell, Campbell Catering Ltd -v- Rasaq (EED048) and 58 Complainants -v- Goode Concrete (DEC-E2008-020.
3. Summary of the Respondent's Submission
3.1 The respondent denies all the claims against him and submits that the claimants' claims are baseless, illogical and unreasonable. The respondent contends that he treated the complainants with compassion, respect and trust. He further contends that he employed one of the complainants Ms Larisa Morgalova and provided her and her family which included the other two complainants with free luxury accommodation, access to a telephone for local calls, Sky TV. Ms Larisa Morgalova was also entrusted with the respondent's laser card and a company car in connection with her employment.
Ms Larisa Morgalova
3.2 Ms Morgalova was employed as a cook in a family residence at which the family only stayed infrequently. While the respondent accepts that the complainant did not received a statement of terms and conditions of employment her duties were explained to her in Russian the complainant's native language by another employee, and in English. An affidavit from the employee to that effect was submitted. The complainant was paid on the basis of 40 hours per week for which she was paid €26000 per annum. This does not take into account the free accommodation provided for her and her family. This accommodation consisted of a luxury one bedroom apartment and in addition a double ensuite bedroom was also provided. The respondent accepts that the complainant did not receive a payslip. However the respondent states that he is fully compliant will all tax matters in relation to the complainant's employment. The complainant was paid in cash occasionally which is legal under Section 1 of the Payment of Wages Act 1991.
In relation to the complainant's claim of discrimination on grounds of gender, the respondent submits that there is no evidence to support this. There were three other employees, two male and one female. None of these employees were furnished with contracts of employment or statements of terms and conditions of employment. In relation to her claims on grounds of marital status and family status the respondents submits that it could be argued that she was treated more favourably in that she was the only employee to be provided with free accommodation.
In relation to the complainant's claim of discriminatory/victimisatory dismissal the respondent contends that she was dismissed when he became alarmed at what he considered to be the misuse of the laser card by the complainant. The respondent alleges that prior to her dismissal there was an alarming, excessive and unauthorised use of the laser card and that this was the reason for her dismissal.
Mr Alekandrs Morgalovs
3.3 The respondent submits that the complainant never worked for him. The only connection that the complainant had with the respondent is that he, the complainant, was allowed to stay, free of charge, with his wife in the apartment owned by the respondent. The respondent contends that his claims are frivolous and baseless.
Ms Natalya Morgalava
3.4 The respondent contends that the complainant was not employed by him. She babysat on a number of occasions and accompanied him and his wife to Scotland where she helped with babysitting. Other than that the only connection that the complainant had with the respondent is that she, the complainant, was allowed to stay, free of charge, with her mother in the apartment owned by the respondent. The respondent contends that her claims are frivolous and baseless.
4. Conclusions of Equality Officer
4.1 At the hearing the complaints of gender discrimination on behalf of Ms Larissa Morgalova and Ms Natalya Morgalova were withdrawn.
The issues for decision by me in relation to
Ms Larissa Morgalova
(i) whether the respondent discriminated against the complainant on grounds of race, marital and family status in terms of section 6 of the Acts and contrary to Section 8 of those Acts in terms of her conditions of employment (ii) harassed the complainant on grounds of race, marital and family status in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 14A of those Acts, (ii) dismissed the complainant in circumstances amounting to discrimination on grounds of race, marital and family status in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts and (iii) victimised the complainant in terms of section 74(2) of the Employment Equality Acts, 1998-2008
Ms Natalya Morgalova
(i) whether the respondent discriminated against the complainant on grounds of race in terms of Section 6 of the Acts and contrary to Section 8 of those Acts in terms of her conditions of employment and her dismissal (ii) harassed the complainant on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 14A of those Acts
Mr Aleksandrs Morgalovs
(i) whether the respondent discriminated against the complainant on grounds of race in terms of Section 6 of the Acts and contrary to Section 8 of those Acts in terms of his conditions of employment and his dismissal (ii) harassed the complainant on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 14A of those Acts and (iii) victimised the complainant in terms of section 74(2) of the Employment Equality Acts, 1998-2008 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.
4.2 Section 85A of the Employment Equality Acts 1998- 2007 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of him, his case cannot succeed.
Mr Aleksandrs Morgalovs
4.3 This complainant did not attend the hearing. His legal representative was in attendance. In relation to the claim brought by him, I am satisfied that the complainant was provided with ample notice in relation to the investigation and the proceedings. No application for an adjournment was made. As part of my investigation under Section 79 of the Acts, I am obliged to hold a hearing. I find that the complainant's failure to attend the hearing was unreasonable in the circumstances and that any obligation on me under Section 79 has ceased. As no direct evidence was presented by the complainant to establish a prima facie case of discrimination, I conclude the investigation in relation to his case and find against the complainant
Ms Larissa Morgalovs
4.4 During the hearing both the complainant and the respondent gave direct oral evidence and that evidence was tested by cross-examination and by questioning by the Equality Officer. On the evidence available to me, I am not satisfied as to the credibility of the complainant's evidence. The complainant did not provide any explanation for the difference between her earlier oral evidence at the hearing in which she had detailed that she and her family were obliged to leave in one room in the respondent's house and her acceptance later in the hearing that photographic evidence submitted by the respondent were photos of the actual accommodation provided to her. These photographs portrayed a well appointed self-contained apartment consisting of a kitchen, living room and two ensuite bedrooms. The complainant did not dispute the respondent's contention that his family stayed in this house infrequently. I consider that this clearly raises a credibility issue in relation to the allegations of discrimination made by the complainant particularly in relation to the allegation that she was required to work excessive hours with no breaks or rest periods and was subject to constant harassment. I consider that the complainant has not established any facts from which discrimination in terms of race, marital status or family status in her conditions of employment can be inferred or that she was harassed contrary to Section 14A. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to her conditions and in relation to harassment.
4.5 I now turn to the complainant's complaints of discriminatory and/or victimisatory dismissal. The complainant submitted that she received a letter signed by the respondent on 13 May 2009 which terminated her employment with one weeks notice on 20 May 2009. It was submitted that this was because she had complained about discrimination. The complainant stated that she was dismissed without any explanation. She had been out on sick leave from sometime around April 2009. It is undisputed that the complainant was dismissed on 20 May 2009. It is also undisputed that the EE2 form dated 9 April 2009, advising the respondent of the complaint filed against it and requesting further information, was sent to the respondent. "Victimisation" is defined in section 74(2) of the Acts as "For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to - (a) a complaint of discrimination made by the employee to the employer". I am satisfied that the complainant has established facts from which it may be inferred that she has been victimised in accordance with the Acts. As a prima facie case has been established, the onus shifts to the respondent to rebut the inference of victimisation raised. The respondent stated that the complainant was dismissed when he became alarmed at the misuse of the laser card by the complainant. At the hearing the respondent stated that he had spoken to the complainant about the number and cost of international phonecalls that had been made on the telephone to which she had access. The complainant had been given access to a telephone but for local calls only. The complainant accepted that he had spoken to her in this regard and that she had made these calls. She stated that her father was sick and she needed to know how he was. The respondent submitted that he had also asked the complainant about the use of the laser and had told her that he was checking the expenditure on it. She assured him that her expenditure on it did not exceed €200 per week. He stated that he became aware that there was an alarming and excessive use of the laser card by the complainant and that this was unauthorised by him. At the hearing he outlined details of extensive debit withdrawals and expenditure on the card. He stated this was the reason he terminated her employment. At the hearing the complainant denied any unauthorised use of the laser card and denied that she had incurred any of the expenditure instanced. Following the hearing the respondent submitted in evidence a letter from a Detective Inspector of the Garda Siochana Payment Card and Counterfeit Currency Unit, confirming that the respondent complained to the Gardai on 27 February 2009 regarding alleged theft by the complainant by means of debits posted to his bank account by the unauthorised use of his laser card. I am satisfied, based on the evidence above, that the complainant's dismissal was due to the respondent's belief that the complainant was responsible for extensive debits withdrawals and expenditure on the laser card. I am satisfied that the decision to terminate her employment was unrelated to her nationality nor to victimisation as defined in section 74(2) of the Acts.
Ms Natalya Morgalova
4.6 During the hearing both the complainant and the respondent gave direct oral evidence and that evidence was tested by cross-examination and by questioning by the Equality Officer. The complainant stated that she had been employed at the same time as her mother from 7 July 2008. She was employed by the respondent as a childminder for two children. However she confirmed that the family left the country on 8 July, a day after she states she was employed. She stated that she performed the duties of a childminder when the family returned to Ireland in September travelling with them on two occasions to Monaco, once on a weekend to Galway and on a trip to Scotland. The respondent denied that the complainant was employed by him. He stated that she came to live with her mother when her mother took up duty. She occasionally babysat for his family when they were residing at the house. On two occasions she was invited to Monaco travelling with his family. He has a full time nanny employed in Monaco who has worked for the family for several years. The complainant also travelled to Galway and Scotland on short trips with the family and babysat for them while there. She was paid by him for these babysitting sessions.
4.7 At the hearing I asked the complainant for evidence of her employment with the respondent and details of her pay. She stated that, at her and her mother's request, the respondent paid her salary of €1500 net each month to her mother. In response to my questioning she stated that this meant that they both did not need to go to the bank to cash cheques. She stated that her mother was not given two separate payments but was given one payment that covered them both, a payment of €3000 per month. However the complainant's mother Ms Larisa Morgalova, in her direct evidence when the complainant was not present, had stated that she received €1500 net per month from the respondent by cheque. She had also added that this amount increased to €2200 to include her husband's pay when her husband came to this country, although the respondent denied this. While the complainant may have undertaken casual and occasional babysitting for the respondent I am not satisfied that the evidence available to me supports an argument that Ms Natalya Morgalova was an employee of the respondent within the meaning of the Acts. I am of the view that the complainant's claim is misconceived in terms of section 77A of the Employment Equality Acts 1998-2008 and I dismiss the claim in accordance with that provision.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision.
Mr Aleksandrs Morgalovs
As part of my investigation under Section 79 of the Act, I am obliged to hold a hearing. I find that the complainant'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 allegation of discrimination I conclude the investigation and find against the complainant.
Ms Larissa Morgalovs
(i) the respondent did not discriminate against the complainant in terms of race, marital status or family status in her conditions of employment contrary to section 8(1) of the Acts
(ii) the respondent did not harass the complainant contrary to Section 14A.
(iii) the respondent did not discriminate against the complainant on the race, marital status or family status ground pursuant to section 6 of the Acts, in respect of discriminatory dismissal or victimisatory dismissal.
Ms Natalya Morgalova
I find that the complainant's complaint of discrimination in employment against the above-named respondent to be misconceived due to the fact that the complainant was not an employee of the respondent within the meaning of the Acts. Therefore I have no jurisdiction to investigate the matter, and I dismiss it under the provisions of Section 77(A) of the Employment Equality Acts.
_____________________
Deirdre Sweeney
Equality Officer
30 April 2012