The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2012-013
PARTIES
Radoslaw Brzeski & Donaldas Navickas
(Represented by Richard Grogan & Associates)
AND
Kilmeague Landscape Services Limited
(Represented by Management Support Services (Ireland) Ltd)
File reference: EE/2009/570, EE/2009/571 & EE/2009/927
Date of issue: 6 February 2012
HEADNOTES: Employment Equality Acts - Sections 6 and 8 - Race - Training, Conditions of employment, discriminatory dismissal, harassment.
1. DISPUTE
1.1 This dispute concerns claims by Mr Radoslaw Brzeski and Mr Donaldas Navickas that they were discriminated against by Kilmeague Landscape Services Limited on grounds of race contrary to section 6 (2) (h) of the Employment Equality Acts in relation to training, conditions of employment in terms of sections 8 of the Acts and harassment in accordance with section 14A of the Acts. Mr Brzeski also made claims that he was dismissed in discriminatory manner in terms of section 8 and that he suffered victimisation and victimisatory dismissal in terms of section 74 (2) of the Acts.
1.2 The complainants both referred claims to the Director of the Equality Tribunal on 29 July 2009 and Mr Brzeski made a further claim on 14 December 2009. On 7 November 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 both parties. In accordance with Section 79 (1) of the Acts and as part of my investigation I proceeded to a hearing on 16 November 2011 and final information was received on 8 December 2011.
2. RADOSLAW BRZESKI
COMPLAINANTS' SUBMISSION
2.1 Mr Radoslaw Brzeski submitted claims on 29 July 2009 and 14 December 2009 on the grounds of race in relation to training, conditions of employment, discriminatory dismissal, harassment, victimisation and victimisatory dismissal.
2.2 The complainant submits that he was not issued with a contract of employment. Also, that he was given no health and safety documentation, training or equipment. The complainant cited Equality Tribunal Decision No DEC-E2008-020, 58 Named Complainants v Goode Concrete Limited and submits there is an obligation on the respondent to provide these documents in a language likely to be understood by him. Failing to do this puts him, as a foreign national, in a particularly vulnerable position.
2.3 The complainant submits that the respondent wanted to reduce his wages and when he refused he was told he was doing a bad job and called to a disciplinary meeting. The complainant submits that when he said he would go to a solicitor the respondent threatened him that they would get 10 solicitors.
2.4 The complainant submits he was required to work extra hours on Saturdays and was threatened with the sack if he did not work on Saturdays. He was paid in cash for this work and was therefore required to work illegally.
2.5 The complainant submits that he was subjected to racial abuse. He says the General Manager called him a Polish fool and a homosexual. He says he complained to the owner but it would restart. He submits that an Irish person would not be treated in this way.
2.6 The complainant submits that he was dismissed after he made his first claim to the Equality Tribunal on 29 July 2009; although his dismissal letter was dated 30 July 2009 his P45 was dated 27 July 2009. He was dismissed without any procedures. After his dismissal the respondent has claimed the complainant left voluntarily.
RESPONDENT'S SUBMISSION
2.7 The respondent submits that Mr Brzeski is a Polish national and he started working for them on 2 April 2007. He resigned on 10 July 2009 and his last day of work was 24 July 2009. He was a satisfactory employee with no disciplinary action at the time of his resignation. They considered he had an acceptable level of English. The respondent submits that the complainant has provided no evidence of any different treatment on the grounds of his race.
2.8 The respondent submits that the complainant was provided with terms and conditions of employment in both English and Polish. They also submit that health and safety training was provided in both English and Polish.
2.9 The respondent submits that the complainant was invited in writing, in both English and Polish, to a disciplinary meeting, in accordance with their procedures. However, no disciplinary action followed.
2.10 The respondent submits that any work carried out on a Saturday was not for the respondent. Any work carried out for the respondent was "through the books".
2.11 The respondent submits that the complainant was not dismissed by them. On 10 July 2009 the complainant rang up and advised the owner that he had another job which he wanted to start on the next Monday (13 July 2009) and he could not work out his notice. The owner agreed to the complainant going immediately and not working his notice. The complainant came to work on 13 July 2009 and said he could not start with the new employer and he wanted to continue working for the respondent. The respondent explained that his notice had been accepted but they would allow him to work out his two week notice if he wished. This the claimant did.
2.12 The respondent submits that the complainant has failed to establish a prima facie case of discrimination.
3. DONALDAS NAVICKAS
COMPLAINANTS' SUBMISSION
3.1 Mr Donaldas Navickas submitted his claim on 29 July 2009 on the grounds of race in relation to training, conditions of employment and harassment.
3.2 The complainant submits that he was not issued with a contract of employment. Also, that he was given no health and safety documentation, training or equipment. The complainant cited Equality Tribunal Decision No DEC-E2008-020, 58 Named Complainants v Goode Concrete Limited and submits there is an obligation on the respondent to provide these documents in a language likely to be understood by him. Failing to do this puts him, as a foreign national, in a particularly vulnerable position.
3.3 The complainant submits that the respondent wanted to reduce his wages and when he refused he was told he was doing a bad job and called to a disciplinary meeting. He was asked to sign a document. When he refused and said he would go to a solicitor the respondent said he would get 10 solicitors.
3.4 The complainant submits he was required to work extra hours on Saturdays and was threatened with the sack if he did not work on Saturdays. He was paid in cash for this work and was therefore required to work illegally.
3.5 The complainant submits that he was subjected to racial abuse but not as badly as Mr Brzeski.
RESPONDENT'S SUBMISSION
3.6 The respondent submits that Mr Navickas is a Lithuanian national and he started work for them on 20 February 2006 and is still employed by them. He is a satisfactory employee with no disciplinary action. They considered he has excellent English. The respondent submits that the complainant had provided no evidence of any different treatment on the grounds of his race.
3.7 The respondent submits that the complainant was provided with terms and conditions of employment in English. They also submit that health and safety training was provided in English. The respondent submits that the complainant had very good English. The complainant never indicated to them that he had any difficulty with his conditions of employment or with any of the documents which he was issued with.
3.8 The respondent submits that all employees were asked to agree to a reduction in pay. The complainant, as well as all the others, did not agree. The respondent agrees that the complainant was invited to a disciplinary meeting, in accordance with their procedures. He did not accept the pay cut and no disciplinary action was taken.
3.9 The respondent submits that any work carried out on a Saturday was not for the respondent. Any work carried out for the respondent was "through the books".
3.10 The respondent submits that the complainant did not complain to them of any racial abuse.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if Mr Brzeski and Mr Navickas were discriminated against in relation to the claims made. 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.
4.2 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.
RADOSLAW BRZESKI
4.3 The complainant made a claim of victimisation and victimisatory dismissal but he gave contradictory evidence in the course of his evidence at the hearing. His representative stated that the evidence was contrary to the instructions she had received and therefore would not be proceeding with these claims. I therefore conclude that the claims in relation to victimisation and victimisatory dismissal have been withdrawn. I have to decide if Mr Brzeski was discriminated against in relation to training and conditions of employment, whether he was dismissed in s discriminatory manner and if he was harassed. 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.
4.4 The respondent contends that when he started the complainant was given a copy of his contract in both English and Polish. The English version was read out to him and he raised no questions. The respondent provided copies of a contract in English which the complainant had signed and an unsigned copy of the contract in Polish. The complainant contended he did not understand the contract in English and denied seeing the Polish copy. I accept the evidence of the respondent and conclude that they satisfied their obligations in providing the complainant with his terms and conditions of employment in a way that he can understand. In accordance with Labour Court Determination Arturs Valpeters v Melbury Developments Ltd EDA0917 [2010] 21 E.L.R there has to be "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."
4.5 The respondent provided copies of their Safety Statement in English and Polish and contended that the complainant had been given Health and Safety training. At the hearing the complainant initially claimed he had received no training. He subsequently acknowledged he had obtained his Safe Pass Certificate whilst working for the respondent. However, he denied attending a manual handling course for which the respondent submitted a certificate of attendance. The complainant also contended that he was not sent on an important training course whilst Irish employees were. The respondent countered that this course was only given to those with the longest relevant experience and the complainant did not meet the criteria for selection. They also gave evidence that as part of the company induction all staff are 'walked the yard' and shown how to use all the equipment they will be using. On balance I accept the evidence of the respondent and conclude that the complainant has failed to demonstrate that any discrimination took place in relation to training on the grounds of race.
4.6 The complainant contends that he was told his pay was to be cut to €8.65 per hour and if he did not accept the cut he would be fired. He was requested to attend a disciplinary meeting but he did not know the reason. The respondent contends they did ask all staff to take a pay cut but the staff did not agree to the cut and therefore no one's pay was cut. The complainant was invited to a disciplinary meeting on 1 July 2009 but this was about his performance and attitude. The complainant did not attend the meeting and no further action was action before the complainant left shortly afterwards.
4.7 The complainant contends that he was forced to work some Saturdays and Sundays for cash and was told there would be no need for him to come in the following Monday if he did not. The respondent contended the weekend work was for a separate company run by the owner's father. It was an opportunity for staff to earn more money if they wished and no one was forced to work at weekends. The evidence of the parties in relation to the weekend working is quite different. I accept the evidence of the respondent that the weekend work was for a separate company and was seen as an opportunity to earn extra money. I conclude that any issues in relation to the weekend working had nothing to do with the complainant's race.
4.8 The complainant contends that he was racially abused by the General Manager and that he complained to the owner who did nothing about it. The respondent denies any racial abuse took place and denies that any complaint of racial abuse was made to them by the complainant. The owner accepted that the General Manager and the complainant may have had discussions about work which were occasionally heated, however the owner admitted that these discussions were held in language he could not understand. The General Manager was not present at the hearing but, subsequently, submitted a written statement in which he stated he is Bulgarian and has a Lithuanian wife and denies that he would racially abuse anyone. Again the evidence of the parties if different and on balance I find the evidence of the respondent more persuasive and conclude that the complainant was not racially abused.
4.9 The complainant contends that he was dismissed because he would not accept a pay cut and an Irish person would not have been treated the same way. However, the respondent contends that no one accepted their proposed pay cut and no one was penalised as a result of not accepting the pay cut. Further they contend that the complainant resigned voluntarily and was therefore not dismissed. I accept the respondent's evidence that the complainant resigned voluntarily and that they were not obliged to accept his resignation withdrawal. I therefore conclude that the complainant was not dismissed in a discriminatory manner.
DONALDAS NAVICKAS
4.10 I have to decide if Mr Navickas was discriminated against in relation to training and conditions of employment and if he was harassed. 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.
4.11 The respondent contends that when he started the complainant was given a copy of his contract in English. The English version was read out to him and he raised no questions. The respondent provided copies of a contract in English which the complainant had signed. The complainant contended he did not understand the contract in English. I accept the evidence of the respondent and conclude that they satisfied their obligations in providing the complainant with his terms and conditions of employment in a way that he can understand. In accordance with Labour Court Determination Arturs Valpeters v Melbury Developments Ltd EDA0917 [2010] 21 E.L.R there has to be "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."
4.12 The respondent provided copies of their Safety Statement in English and Polish and contended that the complainant had been given Health and Safety training. At the hearing the respondent gave evidence that the complainant had attended a number of training courses. The complainant contended that at the beginning the respondent showed them what to do but he did not understand everything that was shown to him. On balance I accept the evidence of the respondent and conclude that the complainant has failed to demonstrate that any discrimination took place in relation to training on the grounds of race.
4.13 The complainant contends that he was told his pay was to be cut to €8.65 per hour and he refused to accept the cut. As a result of refusing to take a pay cut the complainant contends they were put under pressure to carry out their work in too short a time for the amount of work necessary. The respondent contends they did ask all staff to take a pay cut but the staff did not agree to the cut. Therefore no one's pay was cut and the complainant was not subjected to disciplinary measures. On balance I accept the evidence of the respondent.
4.14 The complainant contends that he was forced to work some Saturdays and Sundays for cash and was told there would be no need for him to come in the following Monday if he did not. The respondent contended the weekend work was for a separate company run by the owner's father. It was an opportunity for staff to earn more money if they wished and no one was forced to work at weekends. The evidence of the parties in relation to the weekend working is quite different. I accept the evidence of the respondent that the weekend work was for a separate company and was seen as an opportunity to earn extra money. I conclude that any issues in relation to the weekend working had nothing to do with the complainant's race.
4.15 The complainant also gave evidence at the hearing that he was racially abused whilst working at weekends. He says he complained to the owner three or four times but nothing changed. The respondent denies any racial abuse took place and that any complaint of racial abuse was made to them by the complainant. Again the evidence of the parties is different and on balance I find the evidence of the respondent more persuasive and conclude that the complainant was not racially abused.
5. DECISION
I have investigated the above complaints and make the following decisions in relation to the four complainants in accordance with section 79(6) of the Acts that:
- Mr Radoslaw Brzeski was not discriminated against by the respondent in relation to training and conditions of employment, he was not dismissed in a discriminatory manner and he was not harassed
- Mr Donaldas Navickas was not discriminated against by the respondent in relation to training and conditions of employment and he was not harassed.
____________________
Hugh Lonsdale
Equality Officer
6 February 2012