The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2012-007
PARTIES
Pawel Wilczek
(Represented by Niall Neligan BL instructed by P. C. Moore & Co. Solicitors)
AND
Corr & Flynn Joinery Limited
(Represented by F. J. Gearty & Co. Solicitors)
File reference: EE/2009/247
Date of issue: 16 January 2012
HEADNOTES: Employment Equality Acts Sections 6 and 8 - Race - Conditions of employment - Harassment - Discriminatory dismissal.
1 DISPUTE
1.1 This dispute concerns claims by Mr Pawel Wilczek that he was discriminated against by Corr and Flynn Joinery Limited on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts in relation to conditions of employment and discriminatory dismissal in terms of sections 8 of the Acts and that he was harassed in terms of section 14A of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 17 April 2009 under the Employment Equality Acts. On 29 Spetember 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 sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 6 December 2011.
2 COMPLAINANTS' SUBMISSION
2.1 The complainant started work for the respondent on 31 January 2006 as a carpenter. He submits that he was not issued with a contract of employment; in particular he was not issued with a contract in his own language. He received no health and safety training or documentation. Because of the lack of documentation he was not advised how to raise a grievance. Also, he was not issued with payslips. He submits that he did not receive the terms and conditions, including pay, in accordance with the Registered Employment Agreement (REA) for the Construction Industry.
2.2 The complainant submits that the manner in which he was treated amounted to harassment.
2.3 The complainant submits that he was dismissed without notice. He worked for one week after the Christmas holidays in 2008 and on 16 January 2009 he was told there was no more work and he was being laid off. The respondent told the complainant they would ring him when there was more work. He heard nothing for three weeks so he rang the respondent and discovered they had retained all their Irish employees. The complainant claims the dismissal was discriminatory as one of the Irish workers was retained even though the complainant had greater experience and qualifications, and a longer period of unbroken service with the respondent.
3 RESPONDENT'S SUBMISSION
3.1 The respondent confirmed that the respondent worked for them from January 2006 to January 2009. They accept the complainant was not issued with a contract of employment but submit that his terms and conditions of employment were fully explained to him at the start of his employment. The respondent considered that he fully understood them and the complainant never raised any issues with them. They considered that his level of English was not an issue.
3.2 The respondent submits that the company Safety Statement was at all times located in a prominent position in the canteen.
3.3 The respondent submits that the complainant was not employed as a carpenter. He worked in the workshop as an assembler of joinery products and did not operate any specialist machinery. Nor did he go onto sites to fit the products. The complainant never showed evidence of his qualifications to them. They also submit that the pay rates for carpenters in the construction industry do not apply to them.
3.4 The respondent submits that their work had been decreasing from August 2008 onwards and all employees would have been aware of this. The complainant was laid off in January 2009 because there was not enough work for him. He was told that if work did come in then he would be contacted. The respondent submits that they did contact him in April 2009 but he told them he was unavailable to work for them. The employees who remained after January 2009 had specific roles and qualifications. The person referred to by the complainant was with the company for over three years before he took a career break to Australia and then resumed his employment with the respondent on his return.
3.5 The respondent denies the complainant was dismissed without notice and contends that he has failed to establish a prime facie case of discrimination.
4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 At the beginning of the hearing the complainant withdrew his complainants in respect of the provision of health and safety training and documentation, to not being provided with the terms and conditions of the REA and in relation to harassment. Therefore, I have to decide if the complainant was discriminated against in relation to conditions of employment; concerning the provision of a contract of employment, and if he was dismissed in a discriminatory manner. 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.
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.
Conditions of Employment
4.2 It is accepted that the complainant was not provided with a contract of employment of employment. The complainant contends that he was particularly disadvantaged as a Polish citizen because he was not aware of his employment rights. The respondent contends that on his first day one of the owners was present and asked a Polish colleague to explain the terms and conditions of employment to the complainant. They considered he fully understood the terms and conditions and contend he raised no queries with them.
4.3 At the hearing the complainant said he had no recollection of the terms and conditions being explained to him. However, I accept the evidence of the respondent that the terms and conditions had been explained to him in a language he understood. I therefore conclude that he has not provided evidence of sufficient weight to demonstrate a prima facie of discrimination in relation to his conditions of employment.
Dismissal
4.4 The respondent contends the complainant and another Polish worker were let go on 16 January 2009 because there was not enough work for them. The complainant contends this was discriminatory because an Irish worker with less service was retained.
4.5 The respondent gave evidence at the hearing that the workers who they retained were Irish but they had reasons other than their race for retaining them. The complainant and the other person let go only worked in the workshop as assemblers and they had no experience on installing items on site and they had no experience of working specialist machinery. All those retained had experience of assembling but also had experience of site installation and/or specialist machinery. The respondent contended they wanted to retain these skills. This included the person with whom the complainant compared himself. The respondent contended he had over three years service before going to Australia and they re-employed him when he returned. He was retained because as well as working in the workshop he drove to sites and installed the products.
4.6 At the hearing the two sides gave differing accounts as to what happened after the complainant was let go. However, the fact is he never worked for them again.
4.7 I find the evidence adduced by the two owners of the respondent company to be credible. I accept the complainant was let go because of a lack of work and that he was chosen before others because of the level of his skills and experience against those who were retained. I conclude that his selection to be laid off had nothing to do with his race and he was, therefore, not dismissed in a discriminatory manner.
5. DECISION
I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
- the respondent did not discriminate against the complainant in relation to conditions of employment, and
- the respondent did not dismiss the complainant in a discriminatory manner.
____________________
Hugh Lonsdale
Equality Officer
16 January 2012