EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2012-059
PARTIES
Aurimas Rimkunas, Mindaugas Gasiunas and Modestas Norvaisa
(Represented by Richard Grogan & Associates)
AND
Tusker Agricultural Services Limited (in liquidation)
Liquidator McDwyer, Lennon & Co.
and Tusker Steelworks Limited
File reference: EE/2010/014, EE/2010/595, EE/2010/596 & EE/2010/903
Date of issue: 18 May 2012
Headnotes: Employment Equality Acts - sections 6 and 19 - conditions of employment - discriminatory dismissal - equal pay - race
1. DISPUTE
1.1 This dispute involves claims by Mr Aurimas Rimkunas, Mr Mindaugas Gasiunas and Mr Modestas Norvaisa that they were discriminated against in relation to conditions of employment by Tusker Agricultural Services Limited on the grounds of race. Mr Rimkunas made further claims against Tusker Agricultural Services Limited that he was dismissed in a discriminatory manner contrary to section 8 of the Employment Equality Acts and that he performed "like work", in terms of section 7 of the Employment Equality Acts with two named comparators and is entitled to equal remuneration in accordance with section 29 of the Acts. Mr Gasiunas also made a claim that he was discriminated against in relation to conditions of employment against Tusker Steelworks Limited.
1.2 Mr Rimkunas referred his claim against Tusker Agricultural Services Limited under the Employment Equality Acts to the Equality Tribunal on 13 January 2010, Mr Gasiunas and Mr Norvaisa referred their claims against Tusker Agricultural Services Limited on 27 July 2010 and Mr Gasiunas referred his claim against Tusker Steelworks Limited on 24 November 2010. On 3 April 2012 in accordance with his powers under the Acts the Director delegated the complaints to the undersigned, Hugh Lonsdale, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 20 April 2012.
1.3 At the beginning of the hearing Mr Mindaugas Gasiunas withdrew both his claims, against Tusker Steelworks Limited and Tusker Agricultural Services limited. I am therefore only dealing with the claims of Modestas Norvaisa and Aurimas Rimkunas against Tusker Agricultural Services Limited.
2. MODESTAS NORVAISA
Complainant's Case
2.1 The complainant submits that he received no contract of employment and, particularly, no contract in a language he could understand. Also that he received no health and safety documentation or training, particularly in a language he could understand.
2.2 The complainant submits that he should have received the pay rates and other conditions relation to the Registered Employment Agreement (REA) for the Construction Industry.
2.3 The complainant submits that when he returned from a period of study he was told by the respondent that the only work available was to do any work he was asked in the yard and on sites and he would be taken back if he worked 'off the books' for €50 per day in hand. He states that he worked like this for 3 or 4 months, as he needed the work, until he went to a Social Welfare office and on their advice he stopped working for the respondent on this basis.
Respondent's Case
2.4 The liquidator did not attend the hearing but the respondent did make a written submission in relation to Mr Norvaisa. The respondent submitted documentation which showed that Mr Norvaisa started working for them on 26 June 2007 and was issued with a contract of employment on 20 April 2009. He was given a copy of their Health and Safety Statement on his first day of work and the respondent submitted copies of documents showing he had received external training in Safe Pass, Access and Lifting Equipment, Manual Handling and Asbestos Operative Training, and that he attended a number of Toolbox talks.
2.5 The respondent confirmed they were covered by the REA and they paid the complainant the General Operative's rate of pay, they submitted a copy of a payslip confirming this. Also, he was joined into the pension scheme and sick pay scheme in July 2009.
2.6 The respondent denies that the complainant ever worked 'off the books'. He was laid off in July 2010 because of lack of work.
3. AURIMAS RIMKUNAS
Complainant's Case
3.1 The complainant submits that he received no contract of employment and, particularly, in a language he could understand. Also, that he received no proper health & safety documentation or training, particularly in a language he could understand.
3.2 The complainant submits that the respondent was covered by the REA and he was not paid the proper REA rate, he was not joined into the pension scheme & sick pay scheme, and he was not joined into a union.
3.3 The complainant submits that for a number of weeks he drove a number of workers from Monaghan to Dublin and back and was not paid for the time when he was driving. When he complained he was stopped from working for six weeks and received no pay for this period.
3.4 The complainant submits that he was not paid the same as two named comparators, who were also drivers and performed similar work.
Respondent's Case
3.5 The liquidator did not attend the hearing but the respondent did make a written submission in relation to Mr Rimkunas. The respondent submitted documentation which showed that Mr Rimkunas started working for them on 16 October 2006 and was issued a contract on 20 April 2009. He was given a copy of their Health and Safety Statement on his first day of work. The respondent submitted documents showing that he had attended external training in Safe Pass, he was issued with personal protective equipment and attended a number of Toolbox talks.
3.6 The respondent submits that on 10 June 2009 he was entered into an Irish Life pension plan and on 5 July 2009 he was entered into the REA sick pay scheme and pension scheme.
3.7 The respondent submits that they wrote to the complainant on 11 January 2010 and 15 February 2010 saying work was available but he did not reply. He was laid off because of a lack of work in February 2010 and June 2010 for undisclosed periods but did continue his employment with them and was made redundant on 29 November 2010.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issues for decision by me are whether both the complainants were discriminated against in relation to conditions of employment and if Mr Rimkunas was dismissed in a discriminatory manner and if he has a claim in relation to equal pay, on the grounds of their race. 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.
Modestas Norvaisa
4.2 The complainant started work in June 2007 but was not issued an employment contract until April 2009. He contends he asked if he could take that contract home to be translated because of his level of English but he was not allowed to and told just to sign it. He also said he never saw a Staff Handbook and was given no information about his conditions of employment in a language he could understand. The only document which was in a language the complainant could understand contained his personal details.
4.3 It would appear that the respondent improved their employment practices up to date in 2009 when the complainants were issued with contracts and joined into the REA pension and sick pay schemes. No evidence has been presented that the complainant was treated any differently than anyone else or that he was disadvantaged by not being given a contact in a language he could understand.
4.4 The complainant acknowledges that some health and safety training was given but he contends it was given in English and the respondent made no attempt to ensure that he could understood the training. He states he was lucky if a compatriot with better English was also at the training who would tell him later some of what had been said. He also alleged that he worked with asbestos but was given no training by the respondent and some of the more experienced workers told him of the dangers. The respondent submitted certificates for the complainant of training in Safe Pass, Access and Lifting Equipment and Asbestos Operative Training which were delivered by external training organisations and I am satisfied that external training organisations would ensure that participants understand the training given. Whilst the respondent did not organise on-site training in the complainant's own language he has given evidence that a colleague was available who could tell him what he did not understand.
4.5 The complainant withdrew his claim in relation to the non application of the REA as he was unable to provide any evidence in relation to a comparator.
4.6 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. In this case I conclude that the complainant, Modestas Norvaisa, has failed to establish such facts.
Aurimas Rimkunas
4.7 The complainant contends that he never signed the contract issued in April 2009 and his conditions of employment were never explained to him. The only document which was in a language the complainant could understand contained his personal details.
4.8 The complainant confirmed that he did get Safe Pass training but contends that he did not receive the tool box training. When shown the sheets submitted by the respondent which show his attendance at twelve such talks he said he could not remember the training.
4.9 The complainant gave evidence that he drove himself and a number of other workers in a minibus from Monaghan to a site in Dublin for about 3 to 4 months. He was paid for the work he did on the site but not for the two hours each way he spent driving. When he complained about not being paid he contends he was told that if he did not drive then he would not get the work. He was then given no work for 5-6 weeks and was only taken back on when his solicitor approached the respondent. When he returned to work he was asked to drive on some days and was paid for the time he was driving. I accept the complainant's uncontested evidence and conclude that an Irish driver would not have been treated the same way.
4.10 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. I find that the complainant has failed to establish such facts in relation to his contract of employment and health and safety training. However, I do find he has done so in relation to his conditions of employment when driving the minibus and the respondent had presented no evidence to prove the contrary.
4.11 The complainant contends that he performs "like work" with the two named comparators in terms of section 7(1) of the Acts. Section 29 (1) of the Acts states: "It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer". He submitted a payslip which showed that he was paid €15 per hour and claims that the two named comparators were drivers undertaking the same work. He stated they were paid €16 or €17 per hour and contends he knows this because he saw their payslips. When he asked management about the difference in pay he was told that he could find work elsewhere.
4.12 I found the witness to be credible and accept his evidence that he undertook similar work to the comparators. However, other than the complainant's payslip, I have no documentary evidence to either prove or disprove his claim. His claim relies on mere assertions, whereas to establish a prima facie case of discrimination in an equal pay claim the complainant must show that there is a difference in pay between him and the comparators. As he has failed to establish a prima case there is no need for me to investigate further and no need for me undertake work inspections.
4.13 Mr Rimkunas also claims discriminatory dismissal when he was not paid for a number of weeks, however the respondent submitted a copy of the Notification of Redundancy for the complainant which shows that he was made redundant on 29 November 2010 due to a "lack of work". The complainant put forward no evidence that this was not the case. I therefore conclude that he has failed to demonstrate that he was dismissed in a discriminatory manner.
5. DECISION OF THE EQUALITY OFFICER.
I have concluded my investigation of these complaints and hereby make the following decisions in accordance with Section 79(6) of the Employment Equality Acts:
Modestas Norvaisa
- was not discriminated in relation to conditions of employment.
Aurimas Rimkunas
- has failed to establish a prima facie case of equal pay on the basis of the race ground and the complaint fails,
- that the respondent discriminated against the complainant in relation to conditions of employment, and
- the complainant was not dismissed in a discriminatory manner.
In accordance with section 82 of the Acts I order Tusker Agricultural Services Limited to pay Aurimas Rimkunas €7,500 in compensation for the discriminatory treatment suffered. This figure represents equates to approximately three months pay and is compensation for infringement of their rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
_____________________
Hugh Lonsdale
Equality Officer
18 May 2012