The Equality Tribunal
Employment Equality Acts, 1998 to 2008
Equality Officer Decision
DEC-E2015-033
Mr Arvydas Urbusevicius
[Represented by Richard Grogan & Associates]
-v-
Thomas Halpin
[Represented by Mr David Kearney PC]
File Ref: EE/2008/902, EE/2009/585
Date of Issue: 23 June 2015
Headnotes: Failure to establish a prima facie case - Employment Equality Acts 1998 to 2008 ss.2, 6 and 8.
1. Dispute
This case concerns complaints by Mr Avydas Urbusevicius (the “Complainant”), of Lithuanian nationality, that he was discriminated against on the ground of race, within the meaning of sections 6 (2) (h) in conditions of employment, training, dismissal and otherwise contrary to section 8 of the Employment Equality Acts 1998 to 2008 ("the Acts") by Thomas Halpin (the “Respondent”). The Complainant also complained of harassment and victimisation as a result of submitting his claim.
2. Background
The Complainant referred complaints under Acts to the Director of the Equality Tribunal on 23 December 2008 and 29 July 2009. The Complainant sent in a written submission to the Equality Tribunal which was received on 27 May 2009. An answering submission was made by the Respondent on 15 April 2011. As required by section 79 (1) of the Acts and as part of my investigation I proceeded to hearing on 20 April 2011 which was attended by both parties.
3. Summary of Complainant's case.
3.1 The Complainant stated that he was employed by the Respondent as a General Operative in his steel fabricating business. The Complainant claims that he was discriminated in the following ways:
He did not receive any proper contract. He asked for a contract but was erroneously told he didn’t need one as he had a work permit.
He did not receive any proper Health and Safety documentation or Training.
He was dismissed without any proper reason or procedure. If it was a redundancy he received no redundancy payment or even an RP50.
3.2 Harassment and victimisation
The Complainant claims that the respondent harassed him after he submitted this claim by texting him directly seeking to meet him. This happened once his case before a Rights Commissioner was listed even though the Respondent knew the Complainant was represented by a solicitor.
3.3 The Complainant submitted that the Respondent failed to furnish him with a safety statement under the Safety Health and Work Act and that following the case of 58 named Complainants v Goode Concrete Limited there is a requirement to furnish a foreign national with a health and safety statement. There is a statutory requirement to furnish individuals with health and safety documentation. In the case of a foreign national who would not be conversant with Irish health and safety law, the contended that that there is an obligation to provide him with a Health and Safely statement and in failing to provide same to him in a language likely to be understood by him amounts to discrimination. The Complainant contended that a notional Irish comparator would be aware of their entitlement to a Health and Safety statement.
3.4 The Complainant at the hearing raised a claim of equal pay with a named comparator of Irish nationality whom he claimed worked alongside him.
Summary of Respondent’s case.
4.1 The Respondent acknowledges that the Complainant did not receive a contract of employment but denies that this was in any way related to the Complainant’s race or nationality. No employee at any level received a written contract. A list of work rules and conditions was on display in the canteen for all to read. These covered terms and conditions of employment such as hours of work, breaks and overtime rates.
4.2 The Respondent submitted a document dated 6 December 2001 signed by five people including the Complainant. It states that Health and Safety Statements and manual handling notes were received. The Respondent agreed that no specified safety training was provided but Safe Pass training was arranged.
Dismissal.
4.3 The Respondent submitted a signed statement from a former employee. It stated:
“On the morning of 21/11/2008 [the Respondent] spoke to myself and [the Complainant] about the situation regarding work and the lack of money in the bank. He said he could not pay future wage bill because of this situation. I said I couldn’t understand how he was able to pay past wages considering the amount of work that we have done during the course of the last number [of] months. He said he could pay our holiday money and current/back week a total of 4 weeks. As regards the redundancy he told us he had no money to pay us, but he would assist us every possible way in getting it from Social Welfare. [The Respondent] said he hoped to get work in the New Year and that if myself and [the Complainant] were not working he would re-employ us. He said before we left the office that we should go to the Welfare office to sign on and get forms for redundancy. [The Respondent] expressed his remorse about the situation particularly since it was coming up to Christmas. [The Respondent] went on to say that he hoped that things would get better in the New Year.”
. The Respondent submitted a copy of the Complainant’s RP50 (Notification of Redundancy and Claim for redundancy payment from the Social Insurance Fund form). It is dated 21/11/2008. The Respondent also submitted written evidence from the Department of Enterprise, Trade and Employment that following the failure of the Respondent to pay the redundancy lump sums due to them the employees applied to the Minister to have the payment made from the Social Insurance Fund. A statement showed the amount of 7,927.92 euro was paid to the Complainant.
Harassment and Victimisation
4.4 The Respondent acknowledges that he texted the Complainant to arrange a meeting. He did this on foot of a suggestion from the Rights Commissioner Service of the Labour Relations Commission on foot of a referral by the Complainant under the Terms of Employment (Information) Act 1994 that the Respondent “may wish to contact the complainant to attempt to resolve the matter directly”. The Respondent claims that the Complainant replied by text: “Hi, cant meet you 2day. If u want we can meet on Tuesday”. This, the Respondent argues, is not the response of someone feeling harassed or victimised.
Equal Pay
4.5 The Respondent argues that the Complainant and the Comparator were not doing similar work. The Complainant was a General Operative and the Comparator was a Steel Fabricator. In any event the equal pay claim was not referred to in the complaint form and was not properly before the Tribunal.
5. Director’s conclusions
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. In a Determination the Labour Court[1], 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."
5.2 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.
5.3 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 ethnic or national origins". It follows that the Complainant must establish that she was subject to less favourable treatment on the ground of race (nationality) because he is Lithuanian.
Section 8 of the Acts provides that an employer shall not discriminate against an employee in relation to conditions of employment or training. Section 8 (6) states:
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.
Section 8 (7) states:-
an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.
5.4 Discriminatory treatment in relation to Conditions of Employment and Training
The Complainant has claimed that the Respondent discriminated against him by failing to provide him with any proper contract. He claimed he didn’t receive Health and Safety documentation or training.
The written and oral evidence presented to me leads me to conclude that in respect of contracts, documentation and training the Complainant received from his employer the same treatment as persons of any other race or nationality.
I conclude that the facts in this case do not show that, in relation to understanding his employment contract, health and safety, or other documentation received by him, the Complainant was in a situation which was materially different to that of persons of another race or nationality. Therefore the employer treated him in the same way as other employees would be treated in a comparable situation.
Accordingly, I find that the Complainant has failed to establish a prima facie case of discrimination in relation to this element of his complaint.
6. Dismissal
6.1 The Complainant claims that he was dismissed without any procedure or reasons. If it was a redundancy he received no redundancy payment or even a RP50. From the documentation supplied by the Respondent it is clear that the Complainant was made redundant; he was made redundant on the same day as his alleged comparator, an Irish national; he received the same treatment as an Irish national as regards redundancy and therefore was not discriminated against contrary to section 8 (6) (c) of the Acts. .
7. Victimisation
Section 74 (2) of the Acts states that victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
Section 2 defines ‘proceedings’ as meaning—
(a) proceedings before the person, body or court dealing with a request or reference under this Act by or on behalf of a person, and
(b) any subsequent proceedings, including proceedings on appeal, arising from the request or reference, but does not include proceedings for an offence under this Act.
Adverse treatment as a reaction to a referral under the Terms of Employment (Information) Act is not a reaction to proceedings under the Acts and cannot therefore constitute victimisation under the Acts. In any event there is no evidence that in fact the Complainant suffered adverse treatment in being invited to discuss his claim regarding his contract.
8. Equal Pay
The Complainant did not lodge a claim for equal pay in his claim forms. This issue was not raised in the statement forwarded by the Complainant’s representative prior to the hearing. Therefore a claim for equal pay was not validly submitted.
9. Decision
Having investigated the above complaints, 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 Complainant on the ground of race pursuant to section 6(2) of the Acts in terms of his conditions of employment contrary to section 8 of the Acts.
2. The Respondent did not discriminate against the Complainant on the ground of race pursuant to section 6(2) of the Acts in terms of his conditions of employment by denying him the same treatment in relation to redundancy contrary to section 8 (6) (c) of the Acts.
3. The Respondent did not victimise the Respondent within the meaning of the Acts.
Accordingly, I find in favour of the Respondent in this matter.
___________________
Niall McCutcheon
Director
23 June 2015.
Footnotes
[1] Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64.