THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998 to 2011
Decision DEC - E2012 - 021
PARTIES
Mr Pawel Siuda
(represented by Richard Grogan and Associates)
and
Sharkey Duffy Ltd
File Reference: EE/2009/923
Date of Issue: 23rd February, 2012
Headnotes: Employment Equality Acts, - Section 3(2)(1), Race - Conditions of Employment, Seciton 8(1)(b) - Hypothetical Comparator
1. Dispute
1.1. This case concerns a complaint by Mr Pawel Siuda (hereinafter referred to as "the complainant") that he was discriminated against by Sharkey Duffy Ltd. (hereinafter referred to as "the respondent") 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) conditions of employment, (ii) training and (ii) dismissal, contrary to Section 8(1)(b), 8(1)(c) and 8(6)(c) respectively of the Acts.
2. Background
2.1. On 10th December, 2009, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal alleging that the respondent had discriminated against him on the ground of race.
2.2. Written submissions were received from the complainant but not from the respondent. 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 7th December, 2011.
2.3. The complainant was in attendance at the hearing. The respondent was not present. The notice of hearing to it had been returned marked "unknown at this address". When this was notified to the complainant's representative, they wrote back to inform the Tribunal that the address to which the notice had been sent was the company's registered postal address according to the Companies Registration Office. As the notification of the Hearing had been posted to the respondent at its registered address, I was of the opinion that the Tribunal had complied with the relevant provisions of the Interpretation Acts as regards serving notice on the respondent of the Hearing arrangements and had made all reasonable efforts to effect such service . Therefore, I proceeded with the Hearing in the absence of the respondent.
3. Summary of the Complainant's case
3.1. The complainant stated that he was a Polish national who was employed as a labourer by the employer between February/March 2009 and November 2009. He said that he was told that he would be paid €100 per day (net) and would have to work from 8 to 5 p.m. but stated that he did not receive a contract of employment. He stated that he did not receive any health and safety documentation and had no idea whether any other workers received same. He stated that there were signs up in his workplace and that he understood them. He said that he did not receive any training from the respondent but that he did not think anyone else did either. The complainant also stated that he was not joined in the workers pay and pensions scheme when he was entitled to be so included. He said that he understood instruction in English and did not need an interpreter at any point.
3.2. The complainant stated that he had not been paid the amount of money he was told he would be paid. He said that tax had been taken from his wages even though he knew he was not paid enough to be liable for tax and he said that when he inquired about this with the respondent it told him that the money would be repaid. He also stated that he was paid infrequently and irregularly, sometimes waiting six weeks to be paid. He said that when he inquired about this he was told that it was because the respondent had not been paid by other companies.
3.3. The complainant said that when he and his friend, Mr A, approached the respondent about the money they were owed, they were fired. The complainant did not know if anyone else was dismissed at the same time and he was not given any further opportunity to discuss the matter with the respondent. He submitted that his dismissal was discriminatory also.
3.4. The complainant stated that his co-workers were Moldovans, Poles and Lithuanians and the only Irish people working with the company were the two Directors. In that context, he stated that he was relying on a notional Irish comparator as he did not consider that an Irish employee would have been treated in the same manner.
4. Summary of the Respondent's case
4.1. The respondent did not provide any submissions in advance of the hearing nor did it appear at the hearing.
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 this complaint, I must first consider whether the complainant has 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.."
5.3. The issues for me to decide in this case, then, are whether the complainant was subjected to less favourable treatment in comparison to another person or persons on the ground of race with respect to conditions of employment, training and/or 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.
5.4. I found the complainant to be a credible witness. I am satisfied that he was not paid the salary that his payslips indicated and/or that he was promised he would be paid. I am satisfied that tax, to which he was not subject, was taken off him by his employer and not paid back to him. I am satisfied that when he complained about the matter he was dismissed. I am satisfied that he did not receive a contract of employment and/or health and safety documentation. The question is whether this treatment of the complainant was discriminatory. I am satisfied that there were no comparable Irish workers working with the same respondent at the same time as the complainant. In those circumstances, I must consider whether a comparable Irish worker working for the same respondent would have been treated in the same way.
5.5. I am satisfied that the treatment of the complainant and Mr A in this respect was typical of the approach that this particular respondent took to its employees. However, the onus is on the complainant to prove that the respondent would have treated a notional Irish worker differently in the same or similar circumstances. I am not satisfied that he has provided any evidence beyond mere speculations or assertions to support his contention in this respect. As the Labour Court stated in Melbury -v- Valpeters , "Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn".
5.6. The burden of proof to establish a prima facie case of discrimination is with the complainant. Therefore, and while I am satisfied that he was treated by the respondent in the manner described by him, the complainant has failed to provide the Tribunal with evidence of sufficient significance from which it may be presumed that he would have been treated differently by the respondent had he been Irish. In that context, he has failed to establish a prima facie case of discrimination.
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, 1998 to 2008:
6.2. I find that the complainant has failed to establish a prima facie case of discrimination of him by the respondent 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
6.3. I find that the complainant has failed to establish a prima facie case of discrimination of him by the respondent 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
6.4. I find that the complainant has failed to establish a prima facie case of discrimination of him by the respondent 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
6.5. The complainant's case fails.
_____________
Gary O'Doherty
Equality Officer
23rd February, 2012