Employment Equality Acts
DECISION NO: DEC-E2013-014
PARTIES
Zbigniew Debny
(Represented by Richard Grogan and Associates)
- V -
Gateway Transport Ltd
File references: EE/2010/653
Date of issue: 27 February 2013
Keywords
Employment Equality Acts 1998-2011 - Discriminatory Treatment - Harassment- Race - Conditions of employment - Prima facie case
1. Dispute
1.1. This dispute concerns a claim by Mr. Zbigniew Debny (hereafter "the complainant") that he was subjected to discriminatory treatment and harassment contrary to the Employment Equality Acts by Gateway Transport Ltd. (hereafter "the respondent") on the grounds of his race.
2. Background
2.1. The complainant referred his claim of discrimination to the Director of the Equality Tribunal on 30 August 2010 under the Employment Equality Acts. This claim was made on the race ground. 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 2005 to August 2010 as a driver. His job was to drive trucks from Ireland to the UK and mainland Europe. There were about 4 other Polish employees working full-time and 2 Irish employees who worked from time to time.
3.2 The complainant submitted that he worked about 60-70 hours per week and was paid €700 per week net for the first 3 years, after which it was reduced to €600 per week.
3.3 The complainant submitted that he had a good relationship with the company owner and his wife for the first few years. However then the owner's son took over as supervisor and things became more difficult. He started to have difficulty getting paid and it would sometimes take a few weeks for his pay to arrive. He noticed that his pension contributions were not being fully made on his behalf. He did not receive holiday pay for the last two years. He did not like the way the supervisor spoke to him and they argued a lot. He said that he regularly had to demand to be paid and when he did, his supervisor would tell him to "fxxx off back to Poland". On his final day in work, he was finishing his shift and he asked to be paid. He said he would not work any longer unless he was paid. His request was refused and his supervisor took his keys, the truck documentation and his petrol card and left. Later the company owner phoned him and said he was crazy. They argued and the owner told him to "fxxx off back to Poland". The complainant was the longest serving employee at this time and he found it very insulting to be treated like that after 5 years service. The complainant submitted that three other employees left at the same time for the same reason.
3.4 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 respondent was notified of the Hearing on 24th August 2012 by Registered Post. The respondent was asked on 8th April 2011 to make a written submission, but failed to do so.
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 The complainant submitted that he had to work long hours for less than the minimum wage, without a proper contract. However oral evidence indicated that all employees were treated in the same way and no evidence was proffered that notional comparator might be treated differently. 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 not raised a prima facie case of discriminatory treatment with respect to his working hours or contract of employment. The complainant has not made an Equal Pay claim, nor has he provided a named comparator.
5.4 The complainant also submitted that he was harassed by his manager, who regularly told him to "fxxx off back to Poland" in the context of his request to be paid.
In relation to the claim of harassment, Section 14A of the Acts define harassment:
(7) (a) In this section-
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
.............
being conduct which in either case has the purpose or effect of violating a person's dignity and creating and intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
I find in this case that the specific language used in this context, created an intimidating and hostile atmosphere for the complainant, which was specifically connected to his race. The complainant submitted that he felt less secure as a non-national employee. I find that the complainant has successfully raised an inference of harassment on the race ground and the respondent, who did not participate in the investigation, did not rebut it.
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, pay and contract. Therefore these aspects of his claim fail.
(ii) I find that the complainant has established a prima facie case of harassment on the grounds of race with respect to the language used towards him by his supervisor. Therefore this aspect of his claim succeeds. In accordance with Section 82 of the Act, I 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