THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998 to 2011
Decision DEC - E2012 - 111
PARTIES
Mr Krzysztof Tyszecki and Mr Krzysztof Rosiak
(represented by Richard Grogan & Associates)
and
Allied Mechanical Engineering Services Ltd. (in receivership)
File Reference: EE/2009/924-925
Date of Issue: 31st August, 2012
Headnotes: Employment Equality Acts - Section 6(2)(h), Race Ground - Section 8(1)(b), conditions of employment - Section 8(6)(c), dismissal - complainants asked for money to keep jobs by other worker - in the course of their employment - Irish workers also dismissed
1. Dispute
1.1. This case concerns complaints by Mr Krzysztof Tyszecki and Mr Krzysztof Rosiak (hereinafter referred to as "the complainants") that they were discriminated against by Allied Mechanical Engineering Services Ltd. (hereinafter referred to as "the respondent(s)") on the ground of race, contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 ("the Acts"), in relation to (i) access to employment, (ii) training, (iii) conditions of employment and (iv) dismissal, contrary to Section 8(1)(a), 8(1)(c), 8(1)(b) and 8(6)(c), respectively, of the Acts.
2. Background
2.1 The complainants referred complaints under the Acts to the Director of the Equality Tribunal on 10th December, 2009, alleging that the respondent had discriminated against them on the ground of race.
2.2 Written submissions were received from both parties. On 8th September, 2011, the Tribunal received correspondence from the respondent stating that it had gone into receivership. On 18th November, 2011, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. A hearing of the complaint was held on 2nd December, 2011. The respondent was not in attendance at the hearing. However, as I was satisfied that both it and its receiver had been notified of the hearing, I proceeded with the hearing in their absence.
3. Summary of the Complainant's case
3.1. The complainants stated that they were Polish nationals who worked as general labourers for the respondent. The first-named complainant worked with it from 17th August, 2009 until 13th October, 2009 and the second-named complainant worked with it from 12th June, 2009 until 13th October, 2009. They stated that they did not receive contracts of employment nor did they receive any information with respect to their terms and conditions of employment. The first-named complainant stated that they only found out the amount they were being paid when they received their first payslip. They stated that nobody else received a contract of employment. In response to the respondent's submission that only full-time workers received contracts of employment, the complainants stated that no-one ever told them they were not full-time workers.
3.2. The first-named complainant stated that he attended some training courses, including induction training, but never received any health and safety documentation. They both agreed that there were warning signs displayed at their place of work. Neither complainant thought that anyone else received health and safety documentation and/or training. They both stated that they were never provided with interpreters but that fellow workers would speak for them or ask questions on their behalf whenever necessary.
3.3. The complainants outlined how they had come to work for the respondent. They stated that they completed the induction training and were told by a manager to start work the following day. They stated that another worker, Mr A, told them shortly afterwards that they had to pay him €600 to keep their job. They stated that they paid Mr A the amount asked for. The first-named complainant stated that he asked for his money back after he finished working for the respondent. He said that Mr A told him he would refund the money but never did. They stated that they brought this to the attention of the respondent but were not interviewed by it with respect to investigation it carried out in relation to the matter.
3.4. The complainants stated that they were told by the respondent that some people were going to have to be let go and shortly thereafter they were told that their employment was terminated. They stated that they thought around ten people in total were laid off at the time. The first-named complainant added that they were asked to come back to work after they had made their complaint to the Tribunal.
3.5. The complainants submitted that they were not being paid in accordance with the Registered Employment Agreement for the Construction Industry ("the REA") and made further submissions with respect to issues of pay and pensions. At the hearing, the respondents accepted that the Tribunal did not have jurisdiction to deal with this particular matter. However, they gave an account at the hearing of their treatment in this respect as an illustration of the treatment in general that they received from the respondent.
4. Summary of the Respondent's case
4.1. The respondent did not attend the hearing. However, it did provide submissions to the Tribunal in advance of the hearing. In these submissions, it stated that contracts of employment were given to permanent staff but not to temporary workers, referring to the short service of the complainants in that respect. It also submitted that, due to a high turnover of employees in the summer of 2009, temporary employees, both Irish and "non-nationals", did not receive contracts at that time. It submitted it had a huge emphasis on health and safety. It submitted that the complainants were provided with specified training in that context.
4.2. The respondent submitted that the alleged payment to Mr A of €600 was thoroughly investigated and management could find no evidence to support this allegation.
4.3. With respect to the dismissal of the complainants, the respondent submitted that 11 employees were dismissed at the same time as the complainants, including 6 Irish nationals. It submitted that the a number of these workers, including the complainants, were offered work later when it became available, but the complainants turned down this work as they were working elsewhere by that time.
4.4. The respondent also provided submissions with respect to the matter of pay in which it sought to rebut the arguments put forward in the complainants' submissions in that respect.
5. Conclusions of the Equality Officer
5.1. Section 85A of the 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. Therefore, in deciding on these complaints, I must first consider whether the complainants have established the existence of a prima facie case. 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 Acts 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..." Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins..". The issues for me to decide in this case, then, are whether the complainants were subjected to less favourable treatment in comparison to another person on the ground of race with respect to access to employment and/or their conditions of employment and/or training and/or their dismissal. In reaching my decision in this case, I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation.
Conditions of Employment
5.3. I found the complainants to be credible witnesses and I am satisfied that they were both told by Mr A that if they did not pay him €600 each they would lose the job with the respondent which they had recently obtained. In this context, the complainant claimed discrimination with respect to conditions of employment. It is clear from the narrative in the complaint forms, and from the evidence of the complainants, that this is a case of harassment. I also note that Section 14(1)(a) clearly states that harassment "constitutes discrimination by the victim's employer in relation to their conditions of employment". I will consider the matter in that context.
5.4. Mr A was also Polish and I am satisfied that his behaviour in this respect was reserved for fellow Polish workers. In any event, I am satisfied that he did not and would not have behaved in the same or a similar manner with respect to an Irish worker. Therefore, I am satisfied that the complainant was harassed by Mr A on the grounds of race.
Vicarious Liability
5.5. However, the question arises as to whether the respondent was liable for the actions of Mr A in this respect. As O'Higgins, J. stated in Delahunty -v- South Eastern Health Board et al,1"the application of a doctrine of vicarious liability to the facts of a particular case can often be a matter of great difficulty. The difficulty arises in determining whether a particular act has been committed in the scope of employment so as to render the employer vicariously liable for the torts." The extent to which an employer is liable for the actions of its employees is fraught with uncertainty, certainly at the fringes of that liability, and a vigorous debate among the various common law jurisdictions about the matter can be observed. This was reflected in Delahunty when O'Higgins, J. went on to consider the contemporaneous case law in the matter that had developed in a number of common law jurisdictions.
5.6. More recently, in O'Keeffe -v- Hickey2, the Supreme Court also considered those cases along with newer ones, including cases from Canada and Australia, as well as Delahunty itself. There, Hardiman, J. took the lead in delivering the judgment of the Court when he stated that: "The generally accepted basis on which vicarious liability is imposed has come to be known as "the Salmond test" after the distinguished academic of that name. This may be expressed as follows: "An employee's wrongful conduct must, to render the employer liable, fall within the course and scope of his or her employment. It will do this where it consists of either (i) Acts authorised by the employer or (ii) Unauthorised acts that are so connected to the acts that the employer has authorised that they may rightly be regarded as modes - although improper modes - of doing what has been authorised."
5.7. It is important to note that the facts of the aforementioned cases are significantly different to the present case. In the first instance, they concerned sexual assaults and were considered under the law of tort. More particularly, however, there were issues with respect to the employment relationship between victim and perpetrator which do not arise in this case. In Delahunty, the victim was a visitor rather than a fellow employee; in O'Keeffe, the defendants/respondents were not the plaintiff's direct employer. In the present case, the employment relationship is much clearer and the victims and perpetrator were both employed directly by the respondent. It should also be noted that the Supreme Court considered the matter in the context that there was no statute which provided for a definition of vicarious liability in tort. In contrast, the Acts provide such a definition (see par. 5.8 below).
5.8. Nevertheless, Hardiman, J. went on to state, quite categorically, "that the Salmond test for vicarious liability is that which applies in Ireland". Furthermore, it has to be said that the definition considered by the Court in that case was also whether the relevant employee acted "in the course of his or her employment". Similarly, Section 14A of the Acts states that an employee is harassed when the harassment occurs "in the course of his or her employment".
5.9. In the context of paragraphs 5.5 to 5.8 above, then, I consider that I am bound to follow the approach urged by Hardiman, J. as outlined above. Thus, the "Salmond Test", as interpreted by the Supreme Court in O'Keeffe, is the test that is applicable to my consideration of the question of whether the respondent in the present case was liable for the actions of Mr. A. I will now proceed to consider that question on that basis.
5.10. All the evidence in the present case points to the respondent having no knowledge of Mr A's behaviour prior to the complainants making a complaint to it. If it had been aware of Mr A's behaviour, that might have been a different matter. However, there is not even any evidence that it was aware of his propensity to act in this manner. Nor is there any evidence to suggest that the respondent was so unscrupulous an employer that it would condone acts of the nature of Mr A's in this context. It is clear that Mr A was going way beyond his authority in acting in the manner in which he did in that respect. In all the circumstances of the present case, then, it cannot be said that his actions were so connected with acts which he was authorised to carry out on the respondent's behalf that they could even be considered to be improper modes of acting with the respondent's authority.
5.11. On balance, and again in all the circumstances of the present case, I am also satisfied that the complainants did not believe that Mr A was acting with the authority of the respondent in this respect. It is clear that they did not complain at the time because they were afraid of losing their jobs. However, I do not believe that this fear was driven by a belief that Mr A had acted on the respondent's behalf, rather a concern that if they complained and were not believed, the respondent might possibly dismiss them.
5.12. Therefore, taking into account all the particular circumstances of the present case, and in light of the precedent case law already outlined, I am not satisfied that it can be said that Mr A was acting in the course of his employment in acting in the manner in which he did in relation to this complaint. Therefore, the respondent cannot be held vicariously liable for his actions in that respect.
Other Claims
5.13. Access to employment claims relate to cases of recruitment or entry to employment. In this claim, the complainants were already working for the respondent and their claims in relation to the time he was working for the respondent are being considered in the context of conditions of employment. Therefore, I find that the complainant has failed to establish a prima facie case in relation to access to employment.
5.14. With respect to the other matters raised in this case, I am not satisfied that the complainants have established a prima facie case of discrimination. While the respondent accepted that some workers received contracts of employment (i.e. "full-time" workers) when others did not, there is no evidence that nationality was a factor in this different treatment. Nor is there any evidence that anyone received health and safety documentation or training which the complainants did not receive. As regards the dismissal, it is clear that the complainants were both let go at the same time as several other workers, including Irish workers. That they were asked later on if they wished to return to the respondent's employment is, to my mind, evidence of more favourable treatment rather than the opposite, irrespective of any complaint they may have made to the Tribunal.
Final Comments
5.15. I have every sympathy for the manner in which the complainants were exploited by Mr A. However, I am not satisfied that the respondent can be held liable under the Acts for that exploitation.
6. Decision
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
6.2. I find that the complainants have failed to establish a prima facie case that the respondent discriminated against them on the race ground pursuant to section 6(2)(h) of the Acts in terms of access to employment contrary to s.8(1)(a) of the Acts.
6.3. I find that the respondent complainants have failed to establish a prima facie case that the respondent discriminated against them on the race ground pursuant to section 6(2)(h) of the Acts in terms of conditions of employment, contrary to s.8(1)(b) of the Acts
6.4. I find that the complainants have failed to establish a prima facie case that the respondent discriminated against them on the race ground pursuant to section 6(2)(h) of the Acts in terms of training contrary to s.8(1)(c) of the Acts.
6.5. I find that the complainants have failed to establish a prima facie case that the respondent discriminated against them on the race ground pursuant to section 6(2)(h) of the Acts in terms of dismissal contrary to s.8(6)(c) of the Acts.
6.6. The complainants' cases fail.
_____________
Gary O'Doherty
Equality Officer
31st August, 2012
1 High Court [2003] IEHC 132, 30th July 2003.
2 [2008] IESC 72