Employment Equality Acts 1998-2011
DECISION NO: DEC-E2013-13
PARTIES
Piotr Salbut
(Represented by Richard Grogan and Associates)
- V -
Unitec Investigations Ltd
File references: EE/2010/747
Date of issue: 27 February 2013
Keywords
Employment Equality Acts 1998-2011 - Discriminatory Treatment - Race - Family Status - Conditions of employment - Prima facie case
1. Dispute
1.1. This dispute concerns a claim by Mr. Piotr Salbut (hereafter "the complainant") that he was subjected to discriminatory treatment contrary to the Employment Equality Acts by Unitec Investigations Ltd. (hereafter "the respondent") on the grounds of his race and family status.
2. Background
2.1. The complainant referred his claim of discrimination to the Director of the Equality Tribunal on 13 October 2010 under the Employment Equality Acts. This claim was made on the race and family status grounds. On 23 October 2012, in accordance with his powers under section 75 of the Acts, the Director then delegated these cases to me, Elaine Cassidy - 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. As required by Section 79(1) and as part of my investigation, I held an oral hearing on 28 November 2012. The complainant and his representative were present at the oral hearing, but the respondent was not.
3. Case for the complainant
Discriminatory Treatment in relation to Conditions of Employment
3.1 The complainant, a Polish national, worked with the respondent from October 2008 to June 2010 as a security guard. His rate of pay was €10 per hour. His job was to monitor the security gate at a residential site. During the time he worked there, the company was taken over by the respondent. There was one Latvian national/Polish national (at different times) and three Irish employees working with him.
3.2 The complainant submitted that he had to work 14 hour shifts and regularly had to do up to 6 shifts per week. He submitted that he was obliged to work much longer hours than the Irish employees and that it was easy for them to switch shifts, but it was made difficult for him. He submitted that although he was the longest serving employee, he was given less flexibility than the Irish employees. He had to do most of the weekends, nights and unpopular working times like Christmas and New Year's Eve. In particular he submitted that Mr A, a named Irish colleague regularly rang in sick on Mondays and the complainant would be told to cover his shift, even if he had already worked all weekend. He submitted that he tried to call in sick on one occasion, but was told he had to come to work.
3.3 The complainant submitted that he had to return to Poland in December 2009, following the death of his mother. According to his contract he was entitled to 5 days paid compassionate leave and he contacted his boss and his head office to have his time off approved, before he purchased his ticket. It was granted by both parties. When he returned to Ireland, he called his boss to let him know he was back and he was initially put back on the roster. However just a couple of hours later, he was told that he had been suspended. He was given two reasons; firstly that his PSA licence had expired and secondly that he should not have taken the time off to go to Poland. The complainant disputed the PSA licence as an excuse; on the basis that on any previous occasion where an employee's licence expired, the company would just call the authorities and get a temporary letter to cover him, until the new licence arrived. He also submitted that he was told that an Irish person had been given his shifts on the residential site. The complainant submitted that he immediately drove to Tipperary to sort out the PSA licence. When this was sorted out, he submitted that the company did not want to let him back to his original workplace and they put him on a new and less convenient site instead. However he met one of the residents at his previous site and told him the story. This resident contacted his employer to insist that he was put back on the old site.
3.4 He submitted however that the company refused to pay him for the compassionate leave, arguing that he was suspended at the time the leave was taken. He submitted that the suspension lasted just 12 hours in total, that it did not happen during the compassionate leave period and that it was directly related to his return to Poland and not to the PSA licence.
3.5 The complainant continued to work for the respondent for another 6 months before he decided to leave of his own volition. The complainant said that throughout his time in the company his manager would curse and use swear words at him.
3.6 It was submitted that a foreign worker in such a situation is in a particularly vulnerable position and the complainant's representative referred to the cases of Campbell Catering v Rasdaq (EED048) and 58 Named Complainants v Goode Concrete Ltd (DEC-2008-020).
4. Case for the respondent
4.1. The respondent did not appear at the hearing. The legal representative for the Liquidator contacted the Tribunal to advise that the respondent was in liquidation, having been wound up by order of the High Court dated 31 January 2011. It was submitted that the Liquidator did not have any records or documentation to respond to the complaint and that there was insufficient funds to meet the liquidation.
5. Conclusion of the equality officer
5.1 Section 85A of the Employment Equality 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. If he 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. 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 Employment Equality Acts, 1998 to 2008 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". In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.3 With respect to the unfavourable shifts and long working hours, the complainant did not support this claim with copies of payslips. He did provide some copies of rosters which were sent to him by text, but they do not show evidence of excessive hours or primarily weekend work. They do show that the complainant worked mainly nights, but he agreed that Irish employees also covered the night shifts and the day shifts were mainly done by a Polish national. 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 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."
In the present case, I find that the complainant has offered insufficient evidence to support his claim that he often worked over 80 hours per week and that he was forced to do most of the weekend shifts. Therefore I do not find that he has raised a prima facie case of discriminatory treatment with respect to his working hours.
5.4 The complainant also submitted that his manager used foul language to him, however the evidence was that the manager spoke in this way generally; therefore I do not find an inference of discrimination in this.
5.5 The complainant's claim was also submitted on the ground of family status, but other than the complainant's assertion that he was the only employee with children, no other evidence was proffered and therefore this element of his claim fails.
5.6 The complainant has also submitted that an Irish national would not have been treated as he was, when he returned to Poland for his mother's funeral. The complainant gave convincing evidence that he ensured the trip was fully approved before he left and that he submitted the correct documentation upon his return to Ireland. This documentation was submitted in evidence and shows the complainant's contractual entitlement to compassionate leave, the death certificate and his formal request for the leave to be granted. His evidence with respect to his suspension was also compelling. I note that a non-Irish national is in a particularly difficult situation in the case of a family emergency in their home country. Notwithstanding the urgency of the situation, the complainant still managed to observe all the correct formalities with respect to his employment. I find it highly unlikely that an Irish employee would have been similarly treated if they experienced a death in their family. The Acts allow for the consideration of a notional comparator. Therefore I find that the complainant has established a prima facie case of discriminatory treatment which the respondent has not rebutted.
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:
(i) I find that the complainant has been unable to establish a prima facie case of
discrimination with respect to his working hours and the language used by his manager. Therefore these aspects of his claim fails.
(ii) I find that the complainant has been unable to establish a prima facie case of discriminatory treatment on the grounds of family status.
(iii) I find that the complainant has established a prima facie case of discrimination with respect to the refusal of his employer to pay him 5 days compassionate leave and his temporary suspension upon his return from compassionate leave. Therefore this aspect of his claim succeeds. In accordance with Section 82 of the Act, I therefore order that the respondent pay the complainant €5,000 in compensation for the distress caused by discriminatory conditions of employment. This portion of redress is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
__________________
Elaine Cassidy,
Equality Officer
27 February 2013