The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2013-113
PARTIES
Andrius Jokubaitis
(Represented by Richard Grogan & Associates)
AND
Seamus McQuaid
File reference: EE/2010/169
Date of issue: 13 September 2013
HEADNOTES: Employment Equality Acts - Sections 6 and 8 - Race - Training, Conditions of employment, discriminatory dismissal,.
1. DISPUTE
1.1 This dispute concerns a claim by Mr Andrius Jokubaitis that he was discriminated against by Mr Seamus McQuaid on grounds of race contrary to section 6 (2) (h) of the Employment Equality Acts in relation to training, conditions of employment and dismissal in terms of sections 8 of the Acts.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on 9th March 2010. On 2nd May 2013, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Peter Healy, 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. Submissions were received from the complainant only. In accordance with Section 79 (1) of the Acts and as part of my investigation I proceeded to a hearing on 31st May 2013.
2. COMPLAINANTS' SUBMISSION
2.1 On 9th March 2010, the complainant submitted a claim on the grounds of race in relation to training, conditions of employment and discriminatory dismissal. He withdrew the element of the complaint relating to training at the hearing.
2.2 The complainant submits that he was one of three Lithuanian nationals employed by the respondent to manufacture furniture at premises attached to the respondents' private residence.
2.2 The complainant submits that he was not issued with a contract of employment. Also, that he was given no health and safety documentation, training or equipment. The complainant cited Equality Tribunal Decision No DEC-E2008-020, 58 Named Complainants v Goode Concrete Limited and submits there is an obligation on the respondent to provide these documents in a language likely to be understood by him. Failing to do this puts him, as a foreign national, in a particularly vulnerable position.
2.3 The complainant submits that he was not issued with payslips, a P.60 or a P.45. He stated that he complained immediately to the respondent about the absence of pay slips but that as he was unaware of the requirements for other taxation documentation he therefore did not raise the issue with the respondent during his period of employment.
2.4 The complainant submits he had not been paid for three weeks and was dismissed when he asked for payment.
2.5 The complainant submits that the failure of the respondent to furnish tax documentation has caused serious difficulties.
2.6 The complainant submitted that a hypothetical Irish comparator would have know about the requirement for tax documentation and would have been treated differently.
3. RESPONDENT'S SUBMISSION
3.1 The respondent made no written submission and did not attend the hearing. I am satisfied that every reasonable step was taken to contact the respondent.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainant was discriminated against in relation to conditions of employment and whether he was dismissed in a discriminatory manner. In reaching my decision I have taken into account all of the submissions, oral and written, made to me by the complainant in the course of my investigation as well as his evidence presented at the hearing. 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.
4.2 The complainant contends that he was not issued with a contract of employment. Also, that he was given no health and safety documentation, training or equipment. In Melbury Developments v Arturs Valpetters the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule". In the instant case, the complainant did not present any evidence to support his claim that others were issued with documentation that he was not. His evidence is that all of the employees were of the same nationality and all were treated in the same manner.
4.9 In relation to the failure of the respondent to issue tax documentation, the complainant contends that an Irish person would not have been treated the same way as he would have been aware of the requirements of the tax and welfare systems. Based entirely on the complainants account of the management practices of the respondent and the size and nature of the business entity in question, I am satisfied that an Irish person would have been treated in the same manner as the complainant .
4.10 In relation to the dismissal. The complainants' evidence was that he considered himself dismissed as the respondent had stopped paying him. It's clear from the complainants' evidence that the respondent had ceased to operate as a business and that all activity had ceased. There is no evidence that a hypothetical Irish comparator would have been treated any differently, I therefore conclude that the complainant was not dismissed in a discriminatory manner.
4.11 In Toker Developments v Edgars Grods it was held that "it is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances of a particular case. ... It would clearly be impermissible for the Court to reach conclusions of fact based upon mere supposition or speculation.". Having carefully considered the evidence adduced by the complainant in the instant case, I conclude that they have failed to adduce any evidence to support the assertion that such a comparator would have been treated differently by the respondent in similar circumstances.
5. DECISION
I have investigated the above complaint and make the following decision in accordance with section 79(6) of the Acts that:
- Mr Andrius Jokubaitis was not discriminated against by the respondent in relation to conditions of employment and he was not dismissed in a discriminatory manner.
____________________
Peter Healy
Equality Officer
13 September 2013