THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2009 – 056
Mr. Rolandas Ivaska, Mr Zigmas Platakis, Mr Darius Platakis
and Mr Anatoly Nykyforuk
(Represented by Richard Grogan & Associates, Solicitors)
Mr Anthony Kennedy
File Reference: EE/2006/238
Date of Issue: 7th July 2009
The case concerns a claim by Mr Ivaska, Mr Nykyforuk and Mssrs Platakis that Anthony Kennedy discriminated against them on the ground of race contrary to Section(s) 6(2)(h) of the Employment Equality Acts 1998 to 2008, in terms of conditions of employment, discriminatory dismissal and in relation to a collective agreement.
The complainants referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 3 July 2006. On 13 November 2008, 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. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 1 July 2009. A submission was received from the complainant on 19 December 2007. No submission was received from the respondent, and the respondent did not attend the hearing of the complaint. In response to the letter by which I advised the respondent of the hearing date, the Tribunal was informed by the respondent’s brother that the respondent is currently residing in Qatar and will not be returning to Ireland in the medium term. The identical registered letter containing the hearing date was returned to the Tribunal as “not called for”. Additional evidence was requested from the representative of the complainants at the hearing and received on 2 July 2009.
Summary of the Complainants’ Written Submission
It is the complainants’ case that they were not paid in accordance with the registered employment agreement for the construction industry, and that they were not advised of their grade under the agreement. They further state that they were not paid holiday pay, or overtime pay, and that they did not receive contracts of employment, no P45 or P60 forms, and no health and safety information.
The complainants also state that they were dismissed without procedures.
Summary of the Respondent’s Written Submission
As noted above, no submission was received from the respondent.
Conclusions of the Equality Officer
The issue for decision in this case is whether the complainants were discriminated against, and discriminatorily dismissed, on the ground of their race within the meaning of the Acts.
In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
Mr Zigmas Platakis did not appear at the hearing of the complaint. Accordingly, I find that he has not established a prima facie case in relation to any of the above complaints, and that his case therefore fails.
At the hearing, the complainant’s representative withdrew the complainants’ complaint in relation to a collective agreement. Nevertheless, the representative of the complainants submitted in his closing arguments that since the complainants were not paid in accordance with the Registered Employment Agreement (REA) for the construction industry, a case of discrimination in pay under the equal pay provisions of the Acts arises.
An employer’s failure to pay workers according to the terms of a collective agreement does not constitute unequal pay within the meaning of the Acts. Furthermore, at no time up to the point of the closing submission had a written complaint under the equal pay provisions of the Acts made to the Tribunal in relation to the complainants, nor have named comparators been identified who are alleged to have performed like work with each of the complainants and are alleged to have received different remuneration for their work. I therefore find that there is no valid complaint of equal pay before the Tribunal, and that I do not have jurisdiction to deal with the circumstances referred to in the representative’s statement.
The complainants’ representative further submitted that the respondent’s alleged failure to comply with the requirements of the REA should be interpreted in the light of the Labour Court decision ED024, A Company v. A Worker, where the Court found that “on balance of probabilities the treatment of the worker […] and the almost complete non-implementation of relevant legislation, was due to the fact that it regarded the worker as someone of a different nationality, who would not have the capability to stand on their legal rights […]”, and that this situation would not apply to an Irish employee who could possibly “seek support in making their decision from advisory services, family, understanding of the structure and the interactions of the labour market, financial support from the state, to name but a few.”
It is true that a wide-ranging breach of relevant employment legislation, while not in itself constituting a prima facie case of less favourable treatment under the protected grounds, can support an inference that discrimination has occurred, along the line of reasoning as expounded by the Court. However, I find that in the instant case, Irish comparators were available in the shape of the Irish workers who were employed by the respondent until the end of 2005 (see paragraph 4.8below), and that it is up the complainants to adduce evidence that shows less favourable treatment compared to these Irish workers, including a potentially selective breach of employment rights on account of the complainants’ nationality. I therefore propose to examine the complainants’ evidence from this perspective.
Mr Rolandas Ivaska and Mr Darius Platakis are Lithuanians. Mr Ivaska worked for the respondent as a welder and steel erector from July 2004 until April 2006, and Mr Platakis worked for the respondent as a squad foreman (supervising Mr Ivaska and Mr Nykyforuk and other workers) from 2003 until April 2006. Mr Anatoly Nykyforuk is Ukrainian and worked for the respondent from 29 May 2005until April 2006 as a steel erector. All men were in possession of the FAS SafePass and the relevant certifications for erector work and to work at heights. Up to 2005, the respondent employed a number of Irish workers who either left or were allegedly dismissed when they expressed dissatisfaction with pay and conditions. From the beginning of 2006 onwards, the respondent employed only Lithuanian workers and Mr Nykyforuk.
In light of the fact that the complainants were unanimous that the respondent’s Irish workers were not successful in improving their pay and conditions, and therefore their employment with the respondent came to an end, I am not satisfied that there is enough evidence to support the contention that an Irish worker would have succeeded in forcing the respondent to implement the provisions of the REA. While it is not clear that this is what the respondent’s Irish workers tried to achieve, it is clear that whatever their demands for better pay and conditions were, they were not successful. The complainants were unanimous in their evidence on this point. I therefore find that there is insufficient evidence for the complainants to establish a prima facie case that the respondent’s non-implementation of the provisions of the REA constituted less favourable treatment of them on account of their nationality.
Turning to the complainants’ case that they were not provided with proper tax documentation, it is the complainants’ case that they did not receive P60 forms at year end, or P45 forms when their employment ended. All three complainants stated unanimously that they were paid in cash, and that so were the respondent’s other workers. However, Mr Ivaska stated that Mr Kennedy said to him that employing only Eastern Europeans was “much easier with the tax.” I find the complainants’ evidence of their cash payments to be strongly supportive of the assumption that the respondent sought to avoid having to pay tax on his workers’ wages. I also accept that the respondent’s remark about the employment of non-nationals making it “easier with tax” has been made. However, no evidence was provided on the actual situation of the respondent’s Irish workers with regard to tax. I therefore find that the complainants do not have provided evidence of sufficient significance to establish a prima facie case of discrimination on the ground of race in their terms and conditions of employment, with regard to their claim that they were not provided with proper tax documentation in relation to their employment with the respondent.
With regard to the provision of health and safety information, it emerged from the evidence of the complainants that the respondent took no care to ensure translation or interpretation of site-specific safety information into a language all of his workers could understand. At the hearing, Mr Platakis had a good standard of English and did not need the interpreter who was present for the proceedings. However, he stated credibly that at the material time, more than three years prior to the hearing of the complaint, his English was considerably less good, and that he struggled with communications at work and elsewhere. Mr Ivaska displayed an intermediate standard of English at the hearing, and the interpreter was needed intermittently when he gave evidence. Mr Nykyforuk’s English was basic, and he gave his evidence entirely through the interpreter.
Mr Ivaska stated that no health and safety information was provided. Mr Platakis stated that on each site, a designated person provided health and safety information in English, and that the non-national workers made sense of it as best they could. He was clear in his evidence that this included himself at the time. Mr Nykyforuk confirmed that this was usually the case, but that at one site, he was provided with written health and safety instructions that had been translated into Russian.
Based on the foregoing, I am satisfied that the respondent did not seek to ensure, in a meaningful and practicable way, that the complainants understood the health and safety information that was specific to the construction sites on which they were employed, insofar as it was provided in English to English-speaking workers. I therefore find that the complainants have established a prima facie case of less favourable treatment in their terms and conditions of employment with regard to the provision of health and safety information in a language they were likely to understand, and that this case has not been rebutted.
With regard to how their employment with the respondent came to an end, and their complaint of discriminatory dismissal, the complainants stated unanimously that after Easter 2006, in or around the 20th of April of that year, Mr Kennedy disappeared from a half-finished building site after having failed to pay them their wages for some time. There were no Irish workers left in Mr Kennedy’s employment at the time.
I am not satisfied that the issue of less favourable treatment vis-à-vis a hypothetical Irish worker arises in this matter. There is no evidence to lead me to believe that the respondent would have wound up the employment of an Irish worker in a more orderly fashion. The situation in which the complainants’ found themselves was not so much one of discriminatory dismissal on the ground of their race, but rather, that they fell victim to the way in which the respondent sought to avoid the consequences of his business failure. I therefore find that the complainants have not stated a prima facie case of discriminatory dismissal and their complaint in this regard must fail.
Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that
(i) The respondent did not discriminate against Mr Zigmas Platakis on the race ground pursuant to S. 6(2)(h) of the Acts, in his terms and conditions of employment contrary to S. 8(1) of the Acts, or in discriminatorily dismissing him contrary to S. 8(6) of the Acts;
(ii) The respondent did not discriminate against Mr Rolandas Ivaska, Mr Darius Platakis and Mr Anatoly Nykyforuk on the race ground pursuant to S. 6(2) of the Acts, in their terms and conditions of employment contrary to S. 8(1) of the Acts, in not implementing the REA for the Construction Industry in their terms and conditions of employment, and in not providing them with P60 and P45 forms;
(iii) The respondent did discriminate against Mr Rolandas Ivaska, Mr Darius Platakis and Mr Anatoly Nykyforuk on the race ground pursuant to S. 6(2) of the Acts, in their terms and conditions of employment contrary to S. 8(1) of the Acts, in not ensuring that they were provided with site-specific health and safety information in a language they could understand;
(iv) The respondent did not discriminatorily dismiss Mr Ivaska, Mr Darius Platakis and Mr Nykyforuk on the ground of their race pursuant to S. 6(2) of the Acts, contrary to S. 8(6) of the Acts.
In accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I therefore order that the respondent pay each of the complainants €500.—in compensation for the effects of the discrimination suffered. This award is not in the nature of pay, and therefore not subject to tax.
7 July 2009