(represented by PC Moore Solicitors)
WattersGarden World and Watters Garden Sheds
(represented by John C. Kieran & Son, Solicitors, Ardee)
1.1. The case concerns a claim by Mr Iurie Panuta that Watters Garden World and Watters Garden Sheds, discriminated against him on the ground of race contrary to Sections 6(2)(h) of the Employment Equality Acts 1998 to 2004, in not attending to his work permit or tax status, in not providing important work-related information in his language, and by notifying the Gardaí about his immigration status when he filed a complaint with the Tribunal, which the complainant contends constitutes victimisation contrary to S. 74(2) of the Acts.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2004 to the Director of the Equality Tribunal on 2 February 2006. On 24 October 2007, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. A submission was received from the complainant on 20 July 2007. A submission was received from the respondent on 14 September 2007. A joint hearing of the claim was held on 1 July 2008. The last piece of correspondence relating to the complaint was received on 11 October 2008.
2. Summary of the Complainant’s Written Submission
2.1. The complainant is a Moldovan national. He submits that the respondent failed to apply for a work permit for him with the Department of Enterprise, Trade, and Employment, although it promised him it would do so.
2.2. The complainant further submits that he never received any P60 forms for the years 2003 to 2006. The complainant contends that this failure on part of the respondent to keep his tax affairs in order, together with the failure to apply for a work permit, constitutes discrimination on grounds of race, and hampered him in obtaining legal residency in Ireland.
2.3. The complainant further submits that he was never issued with a contract of employment or health and safety documentation in a language likely to be understood by him.
2.4. Last, the complainant submits that the fact that his employer contacted An Garda Síochána about his immigration status after they became aware of his complaint to the Tribunal constitutes victimisation contrary to S. 74(2) of the Acts.
3. Summary of the Respondent’s Written Submission
3.1. The respondent refutes the complainant’s claims of discrimination or victimisation. In particular, it argues that the complainant approached the respondent to work for them and advised them of his PPS number. The respondent submits that it assumed that meant that the complainant’s affairs were in order. The respondent denies that it was required to make an application on the complainant’s behalf to obtain a work permit.
3.2. The respondent contends that the issues of the complainant’s contract of employment and health and safety information were disposed of in a hearing before the Rights Commissioners.
3.3. The respondent submits that in reporting the complainant to An Garda Síochána regarding his immigration status, it only protected its own position, and that this action could not be interpreted as victimisation. The respondent further submits in this regard that the complainant remains in its employment regardless of his insecure immigration status.
4. Conclusions of the Equality Officer
4.1. The issues for decision by me in this case are:
(i) Was the complainant discriminated against pursuant to S. 8(1) of the Acts because of his race?
(ii) Was the complainant victimised pursuant to S. 77(4) of the Acts for lodging a complaint to the Tribunal concerning the above matters?
4.2. With regard to the complainant’s work permit, the complainant, a Moldovan national, stated in evidence that it was represented to him that the matter of his work permit would be attended to by the respondent. He also stated that he held a valid work permit from a different employer, but that under the rules prevailing at the time, a new permit would needed to be sorted out by the respondent. The complainant continues to work for the respondent, and his work permit status still has to be regularised.
4.3. The respondent stated in evidence that since the complainant had advised it of his PPS number, and that it had assumed that this meant his papers were in order. The respondent further stated that it employed a number of non-nationals on work permits at the material time and was familiar with the administrative processes of the Department of Enterprise, Trade and Employment. The respondent also stated that employees for whom work permit had been obtained came from a number of different non-EEA countries. Finally, the respondent stated that it was under the impression that Moldova was an EU-accession state and that the complainant would not need a work permit.
4.4. S. 6(2) of the Acts stipulates under the race ground that between any two persons, the discriminatory ground is that they are of different race, colour, nationality or ethnic or national origins, and that pursuant to S. 6(1), one of these persons has to be treated less favourable than the other. The respondent proceeded to hire the complainant on the mere assumption that his PPS number and his Moldovan nationality made clarification of his work permit status superfluous, despite the fact that they were familiar with the work permit process and had obtained work permits for their other workers where needed. I therefore find that the complainant has established a prima facie case of less favourable treatment on the ground of his Moldovan nationality compared to the other workers and that the complainant has been discriminated against on the ground of race in his terms and conditions of employment pursuant to S. 8(1)(b) of the Acts.
4.5. I now turn to the issue that the complainant was not issued with a work contract or health and safety information in a language he could understand. The complainant stated that either Russian or Moldovan would have been such languages. At the hearing, I formed the impression that the complainant’s command of English was still rather basic, and not suited to understand complex documents. The complainant was issued with a statement of his terms of employment in English in August 2005. This happened following a complaint to the Rights Commissioners. The respondent also stated that it used a booklet of health and safety information, also written in English, which was regularly updated, and distributed among staff. A witness for the respondent stated that it was felt there was no need for translated documents, as most non-national workers in its employment had broken English at least, and it was “possible to get through to them”. When asked to clarify, he stated that it meant they could “take orders”. He submitted that he asked the complainant: “Is everything ok? Do you understand?” with regard to the health and safety booklet.
4.6. In Campbell Catering v. Aderonke Rasaq [ED0252], the Labour Court held that
it is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture. … In such cases, applying the same procedural standards to a non-national workers as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination.
4.7. I find that the issue of the provision of contracts and health and safety information in languages other than English for employees who demonstrate such a need, falls under the principle established in Campbell. I therefore find that the complainant has established a prima facie case of less favourable treatment on the ground of race in that despite his limited English he was not provided with documentation in a language he could understand, and did not receive explanations about the documentation from an interpreter or other competent third party contracted by the respondent for this purpose.
4.8. Turning to the issue of P60 forms not being issued to the complainant, I note that a P60 for the year 2004 and P35 forms (the P35 is a form prescribed by the Revenue Commissioners in which an employer lists all employees, their PPS number and PAYE and PRSI contributions paid on their behalf in a tax year) for 2005 and 2006 were submitted to the Tribunal prior to the hearing of the complaint. The complainant stated he had never received a P60 for 2003. The complainant’s representative submitted that this break in his client’s work history vis-à-vis the authorities, put him at a disadvantage in terms of his entitlements arising from working in the country. The respondent did not seek to argue that it had issued the complainant with the relevant P60 certificates at any time prior to the hearing of the complaint.
4.9. I find that not issuing proper tax documents to the complainant, an entitlement of which an Irish worker would have been aware and which he would have demanded from his employer as a matter of course, does bring the complainant’s situation under the test formulated in Campbell Catering and constitutes less favourable treatment on grounds of race.
4.10. Turning to the complainant’s complaint of victimisation, it is common case that the respondents notified An Garda Síochána about the complainant’s work permit and immigration status after they had been advised by the complainant that he intended to complain to the Tribunal about his outstanding work permit. The complainant’s EE1 form, in which he lodged his complaint with the Tribunal, is signed and dated in his own hand the 13th of January, 2006. Form EE2, which notified the respondent of the complaint and sought information in relation to it, was signed and dated by the complainant the same day. Three Garda officers searched the respondent’s premises on 16 February 2006. The complainant was subsequently summonsed before Dundalk District Court for offences against the Immigration Act, 2004. The complainant received the Probation Act in relation to these proceedings. It is the respondent’s position that they had to notify the Gardaí in relation to the complainant’s work permit to safeguard their own position vis-à-vis the authorities.
4.11. I do not accept this explanation. To clarify and safeguard their position vis-à-vis the authorities, it would have been sufficient to contact the Department of Enterprise, Trade and Employment to make enquiries about the need of a work permit for the complainant, and to regularise the position with the Department subsequently, particularly as the respondent was familiar with the Department’s procedures in this regard. Calling the Gardaí in response to a notification that a complaint was lodged with the Tribunal constitutes adverse treatment in response to proceedings by a complainant, pursuant to S. 74(2) of the Acts.
5.1. Based on all of the foregoing, I find, in accordance with S. 79(6) of the Acts, that:
(i) The respondent discriminated against the complainant in his terms and conditions of employment pursuant to S. 8(1)(b) of the Acts, in not applying for a work permit for the complainant, in not providing him with a P60 form for the year 2003, and in not providing or explaining to him his terms and conditions of employment and health and safety information on ground of his race pursuant to S. 6(2)(h) of the Acts;
(ii) The respondent victimised the complainant pursuant to S. 74(2) of the Acts.
5.2. I hereby order, in accordance with S. 82(1) of the Acts that
The respondent pay the complainant €10,000 for the effects of discrimination and €30,000 for victimisation.
These awards are not in the nature of pay and therefore not subject to tax.
31 October 2008