THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2009-112
Mr. Edijs Langsteins
(Represented by Richard Grogan & Associates)
(Represented by Ms. Donna Reilly BL instructed by
George V. Maloney & Co. Solicitors)
File Reference: EE/2007/015
Date of Issue: 8 December 2009
1.1 Mr. Edijs Langsteins claimed that he had been discriminated against by the respondent on the race ground, in terms of section 6(2) of the Employment Equality Acts, 1998-2007 in relation to conditions of employment and pay. He also made a claim in relation to harassment on the race ground, discriminatory dismissal and a collective agreement contrary to the Acts. The claims relating to harassment and the collective agreement were subsequently withdrawn at the hearing.
1.2 The complainant referred a claim to the Director of the Equality Tribunal under the Employment Equality Acts 1998-2004. In accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Bernadette Treanor, 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. The date of delegation was 8th May 2009 and my investigation began on that date.
1.3 A hearing of the matter took place on 9th July. The complainant undertook to submit caselaw raised at the hearing and the respondent was asked to submit employment details relating to various employees. This information was to be obtained from his accountant. The last correspondence received was dated 22 July 2009.
2 Summary of the Complainant's Case
2.1 The complainant, a Latvian National, began working for the respondent in May 2006. This was his first job in Ireland and he worked on various sites for the respondent. His work included brickwork, laying concrete and kerbs. Each day he was picked up by the respondent together with five other eastern Europeans and taken to wherever they were to work that day. He received no papers at all and was paid by cheque. He was paid €60 per day. At the end of September 2006 he got a call and voice mail indicating that there was no more work for him. He had no further contact with the employer.
2.2 The complainant states he never received his terms and conditions of employment nor any payslips. He adds that he was not made a member of BATU and was not paid the appropriate REA rates.
2.3 The complainant's representative argued that recent Decisions which did not look at a hypothetical comparator effectively created a roadmap or blueprint for "unscrupulous employers to racially discriminate against foreign nationals" and that this would defeat the purpose of the legislation.
2.4 The complainant's representative asserted that the respondent's virtual non-compliance with employment legislation was sufficient to shift the burden of proof. He argued that some recent Decisions were a wrong application of the law. He indicated that as the required information was 'knowledge peculiar to the employer' he was unable to prove anything.
2.5 He also argued that the respondent had no dismissal procedures in place and submitted that the Campbell Catering case was relevant. Finally, as there was no response to the form EE2 he submitted that the Equality Officer should draw the appropriate inferences.
2.6 Following receipt of the information submitted by the respondent the complainant's representative indicated that the information, while not complete, supported the allegation that Irish workers were treated more favourable than the complainant.
3 Summary of the Respondent's case
3.1 The respondent stated that the complainant was paid the minimum wage which reflected his experience. The contractors, for whom the respondent operated as a subcontractor, were responsible for the Health and Safety arrangements.
3.2 All workers were aware that the work was drying up and the complainant was let go in the same manner as the other employees. The respondent has not traded in over a year. He operated a policy of last in first out.
3.3 The respondent's representative submitted that dismissal without reasons or fair procedures was not discrimination. A claim because no contract was provided should go to the Right's Commissioner. If the complainant was paid less than the REA that is a Payment of Wages matter. While Health and Safety was handled by the main contractors the Tribunal has no entitlement to make a decision relating to Health and Safety. All employees received the same treatment when their employment was terminated.
4 Conclusions of the Equality Officer
4.1 What must be decided is whether or not the complainant was discriminated against in relation to his conditions of employment and his dismissal. In reaching my decision I have taken account of all evidence presented.
4.2 The burden of proof required from the complainant is detailed in section 85A of the Acts which provides that should a complainant establish facts from which it may be presumed that s/he suffered discrimination, it is for the respondent to prove the contrary. Detailed application of this approach may be found in Mitchell v Southern Health Board  ELR201.
4.3 The complainant's representative accepts that there is no evidence of less favourable treatment and argues that the procurement of such information is not within the complainant's realm of control. He argues that the allegedly unfavourable treatment of the complainant is sufficient of itself to establish discrimination when compared to the treatment an Irish comparator would have received. In the Recommendation ADE 0917, Melbury Developments Ltd and Arturs Valpeters, the Labour Court addressed this matter as follows: "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." The Court went on to say "... the Court cannot accept that the peculiar knowledge principle can avail the Complainant so as to relieve him of the obligation to prove the primary facts upon which he relies in accordance with Section 85A of the Act." I am satisfied that unfavourable treatment, without evidence of less favourable treatment, is insufficient to establish a prima facie case of discrimination in accordance with the Acts. This relates to both the alleged discriminatory treatment and alleged discriminatory dismissal.
4.4 The arguments surrounding the Campbell Catering case were also addressed in the Melbury case mentioned above as follows:
"In that regard the instant case is readily distinguishable on its facts from that of Campbell Catering v Rasaq  15 ELR 310, on which reliance was placed by the Complainant's Solicitor. That case concerned a worker who was dismissed having been accused of stealing goods belonging to her employer. She had not been expressly advised of her right to mount a defence and be represented in a disciplinary inquiry. The Respondent contended that the Complainant was treated the same as any other worker accused of theft. In considering that point the Court said the following: -
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 the case of disciplinary proceedings, employers have a positive duty to ensure that all workers fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence, including the right to representation. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and that the accused worker fully appreciates the gravity of the situation and is given appropriate facilitates and guidance in making a defence. 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.
The Complainant herein was not accused of any form of misconduct and the question of an investigative or disciplinary procedure did not arise. Consequently the underlying rationale of that decision is inapplicable to the facts of the instant case."
4.5 Similarly, as there was no allegation of misconduct in the instant case the rationale of the Campbell Catering case is inapplicable.
4.6 On review, the information submitted by the respondent following the Hearing provides payslip information relating to employees during 2006. Not all workers were employed for the same period as the complainant. The information only gives a total gross amount earned weekly. It does not indicate how many hours were worked or what the hourly rate was. However, since these are the only two variables which contribute to the gross amount, where a larger amount was earned by the complainant this reflects either a greater hourly rate or a greater number of hours worked. Having made a number of comparisons with appropriate comparable employees, it is clear that the complainant's gross amount fluctuated and was sometimes less and sometimes more than a number of Irish employees. In relation to the final date worked, it is clear that some Irish workers were paid for the last time on a date earlier than the complainant indicating that Irish employees were let go before the complainant. On that basis it is clear, contrary to the complainant's representative's assertion, that the information does not support an allegation of discrimination.
4.7 Since the complainant has failed to present any evidence of less favourable treatment I find that he has failed to establish a prima facie case of discrimination on the race ground.
5 Decision DEC-E2009-112
5.1 Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts. As the complainant has failed to establish a prima facie case of discrimination and dismissal on the race ground his claim fails.
8 December 2009