THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision - DEC-E2012-038
PARTIES
Twarog, Ochala and Buba
(Represented by Richard Grogan & Associates)
v
PEK Flooring Ltd
(in liquidation)
File Reference: EE/2009/937, 940 & 941
Date of Issue: 28 March 2012
Headnotes: Employment Equality Acts, 1998 to 2011 sections 6, 8 and 14A - discriminatory treatment and harassment - race - conditions of employment - discriminatory dismissal - prima facie case.
1. Dispute
This dispute involves a claim by Mr Janusz Piotr Twarog (hereinafter "the first-named complainant"), Mr Grzegorz Andrzej Ochala (hereinafter "the second-named complainant") and Mr Dariusz Stanislaw Buba (hereinafter "the third-named complainant"), (hereinafter collectively "the complainants") who are Polish nationals, that they were discriminated against by PEK Flooring Ltd (hereinafter "the respondent") in relation to conditions of employment on grounds of race, in terms of section 6 (2) of the Employment Equality Acts, 1998 - 2008 (hereinafter "the Acts") and contrary to section 8 of the Acts by dismissing them discriminatorily. The complainants also claim discrimination and/or harassment on the ground of race by being threatened with being reported to An Garda Siochana and deported back to Poland. Claims of discrimination in training, provision of employment contracts and health and safety documentation and training were withdrawn at the hearing.
2. Background
The Complainants referred complaints under the Acts to the Director of the Equality Tribunal on 18 December 2009. A written submission was received from the complainant on 7 May 2010. A written submission was received from the respondent on 1 July 2010. As required by section 79(1) of the Acts and as part of my investigation, I held a hearing of this complaint on 21 March 2012. Both parties attended the hearing.
3. Summary of the Complainants' case
3.1 The first and second-named complainants were employed by the respondent as floor layers from 7 July 2004 to 4 December 2009 when they were dismissed. The third-named complainant commenced employment on 25th June 2007 and was dismissed on 4 December 2009.
They were dismissed when they refused to accept reduced rates of pay. When they refused to work at reduced rates they were threatened by the respondent's manager Mr P that he would go to the Gardaí to say they were moonlighting using company property and that they would be deported back to Poland. The complainants say that they took this threat seriously and sought legal advice. Their lawyer advised them not to return to work.
They also claim that they were required to pay the costs of a company van which was deducted from their wages.
4. Summary of the Respondent's case
The first and second-named complainants were recruited in Poland by the respondent in 2004 as floor layers. The third-named respondent was recruited as a floor layer in June 2007. The respondent had no difficulties with the complainants as their work was exemplary as was their timekeeping. In February 2009, as a result of a downturn in the economy, the respondent did not have enough work for all their employees and it was agreed that the employees would work week on, week off. The work standards and punctuality of the complainants deteriorated markedly. One fitting job for a hotel in the Dublin Docklands was very poorly carried out resulting in a grossly mismatched floor. When confronted the complainants refused to accept responsibility necessitating the respondent to have the floor job repaired by another team at a cost of € 15,000 and detriment to the company's reputation.
The complainants refused to work on a contract in Carlow as they believed they would not be paid enough. Although they were advised that they would be paid the same as other teams doing similar work on the site they said that they would not attend. The respondent denies that Mr P threatened the complaints with being reported to the Gardaí and being deported. The respondent had issued a formal written warning to each of the complainants on 16 November 2009 in the following terms:
"Despite numerous verbal warnings on failing to follow instruction by PEK Flooring Ltd, also continuous bad time keeping, we have no alternative but to issue you with this written warning.
As you are aware this was discussed in great detail with [Mr B. a Polish interpreter] on Monday 16 November 2009. Please take this in to consideration and act accordingly."
On 1st December 2009, the respondent's Managing Director wrote again to the three complainants in the following terms:
"You are invited to attend a disciplinary hearing on Wednesday 2nd December 2009 at 11.00am.
During this meeting the following will be discussed,
1. Time Keeping
2. Failing to carry out your duties in accordance with your contract of employment, i.e. Carlow and the [Dublin docklands] site.
At this meeting you may be issued with a final written notice.
You are entitled to invite another person to represent or accompany you.
We at PEK Flooring Ltd would hope that this meeting will resolve issues for both parties,
Yours respectfully
Mr A, MD."
A written record of the meeting was supplied by the respondent. The meeting dealt with bad time-keeping, the decline in workmanship and refusal to work at the Carlow site due to piece rate per metre offered. A Polish interpreter was present. The outcome of the meeting was that the complainants agreed that they wanted to continue to work for the respondent; they agreed to improve their time-keeping and workmanship and bring both up to the level they were at before. They agreed to go to the Carlow site. The complainants were issued with a final written warning the same day. Any further misdemeanours carried out by them would result in instant dismissal.
The next day Mr P attended at the Carlow site. None of the complainants were there. Mr P phoned the interpreter to tell each of the complainants to go to Carlow for work but was told by the interpreter that each of them was taking 2 days' holidays. The complainants did not return to the Carlow site, or to the Respondents employment. Every effort had been made by the respondent to retain the complainants in the respondent's employment. The respondent believes that in January 2010 the complainants started work for another flooring company. On 10 March 2010 the respondent wrote to each of the complainants advising them formally that they had not been dismissed by the respondent. The respondent at no time verbally or in writing dismissed them. The respondent assumed by their actions in failing to report for work following the meeting on 2 December 2009 that they had left. The respondent went on to advise each of the complainants in the letter that his position was still open if he wished to return and that the agreement made at the meeting of 2nd December 2009 still stood. No reply was received.
The complainants confirmed at the hearing that they had received the letter and forwarded it to their legal representative.
5. Conclusions of the Director
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires a complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If he or 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a recent Determination 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. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was 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."
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. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
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 specified in subsection (2)....." Section 6(2) (h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins".
5.3 Section 8(6) of the Acts provides that an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one --
(a) the same terms of employment (other than remuneration and pension rights),
(b) the same working conditions, and
(c) the same treatment in relation to overtime, shift work, short time, transfers,
lay-offs, redundancies, dismissals and disciplinary measures,
as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.
5.4 Discriminatory Dismissal
The first element of the complainants' claim concerns the allegation that they were subjected to a discriminatory dismissal by the respondent on the grounds of their race. It is clear from the written and oral evidence before me that the complainants withdrew their labour from the respondent because they objected to a reduction in the piecework rate on offer for the work on the Carlow site. It is also clear that they agreed to terms for a resumption of work at the meeting of 2nd December 2009 but did not return. The complainants did not respond to the respondent's letter of 10 March 2010 inviting them back to work. I conclude that the complainants were not dismissed by the respondent.
5.5 Other issues
As regards the claim that the complainants were required to pay the costs of a company van which was deducted from their wages, no evidence linking this requirement to the complainants' race was adduced and therefore this requirement was not a discriminatory act.
The complainants claim that, when they refused to work for reduced rates, Mr P threatened them that he would go to the Gardaí to say they were moonlighting using company property and that they would be deported back to Poland. The respondent denied in its written submission that Mr P said this. Neither Mr P nor the Polish translator who was present at the meeting was available to give evidence at the hearing. Each of the three complainants gave credible, but slightly differing accounts of what was said. It must be remembered that Mr P spoke in English and the complainants were recalling what the translator said to them in Polish and which was in turn being translated back into English by the Tribunal's interpreter. I conclude on the balance of probabilities that Mr P believed that the complainants were moonlighting using company materials and threatened to report this to the Gardaí. I believe that what Mr P said was as recalled by the third-named respondent in evidence, namely that he accused them of stealing and said something on the lines of "You had better go back to Poland; I'm going to call the Guards." He did not threaten to have them deported which the Gardaí have no power to do in any event. As it happened Mr P did not report the complainants to the Gardaí. I consider that what was said must be seen in the context of worsening relations between the complainants and Mr P in particular, and the latter's belief that the complainants were moonlighting using company materials. I conclude that what Mr P said does not constitute discrimination or harassment on the race ground within the meaning of the Acts.
Decision
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. I find that:
(1) The respondent did not discriminate against the complainants on the ground of race pursuant to section 6(2) of the Acts, in respect of dismissal contrary to section 8(6) of the Acts; and
(2) The respondent did not harass the complainants within the meaning of section 14A of the Acts.
Therefore the complainants' case fails.
_____________
Niall McCutcheon
Director
28 March, 2012.