THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS
Decision DEC - E2012 -008
PARTIES
Meskauskas
(Represented by Richard Grogan & Associates, Solicitors)
V
T. H. Plant Ltd
File reference: EE/2008/756
Date of issue: 20 January 2012
Headnotes: Employment Equality Acts, 1998-2008 - sections 6 and 8 - race- - conditions of employment - prima facie case - discriminatory dismissal - burden of proof.
1. Dispute
1.1 This dispute concerns a claim by Mr. Juozas Meskauskas (hereinafter "the complainant") that he was subjected to discriminatory treatment on the ground of his race in terms of Section 6 (2) (h) of the Act and contrary to Sections 8 of the Employment Equality Acts by T.H. Plant Ltd (hereinafter "the respondent"). The complainant maintains that the respondent discriminated against him in relation to his conditions of employment and in relation to training. He also maintains that he was discriminatorily dismissed.
1.2 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on 11 November 2008. 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 7 November 2011the date the complaint was delegated to me. A submission was received on behalf of the complainant. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 18 November 2011.
2. Summary of the Complainant's Submission
2.1 The complainant, who is a Lithuanian national, states he was employed by the respondent as a truck driver from November 2005 to October 2008. He submits that he did not receive a contract of employment, health and safety documentation, or training. He alleges that he was paid partly by a payment called "expenses" which was disguised as wages and that "his tax affairs and social security are not in order". He also alleges that he was discriminatorily dismissed. The complainant contends that this constitutes unlawful discrimination on grounds of race contrary to the Acts.
3. Summary of the Respondent's Submission
3.1 No submission was received on behalf of the respondent.
4. Conclusions of Equality Officer
4.1 The respondent did not attend the hearing of this matter. The Tribunal sent notification of the hearing to the registered office. This notification was sent by registered post and was signed for. Therefore, I was satisfied that the respondent was appropriately notified of the hearing of this complaint and I proceeded to hear the matter in the absence of the respondent.
4.2 The issue for decision by me is whether or not 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 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.
4.3 Section 6(1) of the Employment Equality 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 specified in subsection....."
Section 6(2) 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... "
It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because he is Lithuanian.
4.4 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. Notwithstanding the absence of the respondent at the hearing, it remains the case that the complainant must establish facts from which discrimination may be inferred. 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.
4.5 The issues raised by the complainant are that he was treated less favourably on grounds of race in the terms and conditions of his employment and that he was discriminatorily dismissed. More specifically he contends that
he did not receive a contract of employment
he did not receive any health and safety documentation
he did not received any training
his boss used abusive language towards him
his boss criticised his level of English
his salary was unilaterally varied and the respondent withheld his wages
he was dismissed without any notice
There is a statutory requirement on employers to provide employees with a written statement of certain terms of their employment under the Terms of Employment (Information) Act, 1994. Enforcement of rights under this statute rests with the Rights Commissioner (at first instance) and not this Tribunal. The complainant stated that he did not believe that the respondent would have treated an Irish person in a similar manner. At the hearing the complainant confirmed that there were a number of nationalities employed by the respondent. He stated that he did not know whether any of them received a written statement of their terms of employment. At the hearing the complainant stated that he could not speak English and other people in the employment translated for him. They told him that the boss was making fun of his lack of English. He stated that the boss used abusive language towards him all the time. He also stated that from 1 September 2008 he had not received any work or pay and that on 1 October 2008 he had met with the boss and he was let go. He stated that he believed his employment had ceased earlier as he had not got any work from his boss for some weeks prior to this and had not been paid. The boss told him that he was letting him go because he could not speak English. Other workers from Lithuania who could speak English were kept on. His representative proceeded to question him regarding evidence provided by the respondent, at a hearing of the Employment Appeals Tribunal under the Redundancy Payments Acts, of payments made to the complainant up to the end of September 2008. The complainant then accepted that he had received a payment of approximately €800 from the respondent at the time his employment terminated. The complainant stated that this payment was not for work done in September 2008 but covered amounts owing to him since the beginning of his employment. He stated that he had kept a record of hours worked and when he met the respondent on 1 October 2008, he had shown him the hours that he had not been paid for and the last payment made to him covered these hours. I examined the complainant's payslips submitted in evidence. It is clear from these that over the period of time he was in employment his hours of work varied as did his salary for those weeks. In answer to my questioning the complainant confirmed that, as the payslips showed, he was paid between €600 and €1300 per week, net of income tax and social welfare deductions, depending on the number of basic and overtime hours worked. Contrary to the complainant's evidence that his hours of work were reduced and that he had no work in September 2008, payslips for that period were produced for me at the hearing and do not reflect either reduction in hours worked or payment made.
4.6 The Labour Court , whilst examining the circumstances in which the probative burden of proof operates held as follows -
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence... "
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 his oral evidence that the respondent had ceased to provide him with work or pay for some weeks prior to 1 October 2008, and the evidence in the payslips which show otherwise. The complainant contradicted the earlier evidence he gave at the hearing that he had received no pay from the respondent from 1 September 2008, when he accepted that he had received payment from the respondent on 1 October. I note that his evidence in this regard was only given following his representative drawing his attention to the evidence, submitted by the respondent at an Employment Appeals Tribunal hearing, which had not been disputed. I consider that this clearly raises a credibility issue in relation to the allegations of discrimination made by the complainant. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination.
5. DECISION OF THE EQUALITY OFFICER
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the race ground has not been established and this complaint fails.
_____________________
Deirdre Sweeney
Equality Officer
20 January 2012