The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
EQUALITY OFFICER’S DECISION DEC-E2009-034
Igor Ostojic, Vladislavs Arbuzovs, Valerijs Mjasojedovs & Sergejs Plonkins
(Represented by Richard Grogan & Associates)
Clare Civil Engineering Limited
(Represented by Sile O’Kelly, instructed by Hayes Solicitors)
File reference: EE/2006/265, EE/2006/311 & EE/2006/356
Date of issue: 1 May 2009
Employment Equality Acts, 1998-2008, Sections 6, 8, 9 and 74 - Race – Conditions of employment, discriminatory dismissal, victimisatory dismissal.
1.1 This dispute concerns claims by Mr Igor Ostojic, Mr Vladislavs Arbuzovs, Mr Valerijs Mjasojedovs & Mr Sergejs Plonkins that they were discriminated against by Clare Civil Engineering Ltd on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts 1998-2008 in relation to access to employment, conditions of employment and a collective agreement in terms of sections 8 and 9 of the Acts and that Messrs Arbuzovs, Plonkins and Ostojic suffered discriminatory dismissal and that Mr Ostojic suffered victimisation and a victimisatory dismissal in terms of sections 74 (2) of the Acts.
1.2 The complainants referred their claims to the Director of the Equality Tribunal on 24 July 2006 in relation Mr Mjasojedovs and Mr Ostojic, on 28 August 2006 in relation to Mr Plonkins and Mr Arbuzovs and a further claim for Mr Ostojic on 26 September 2006 under the Employment Equality Acts 1998 and 2004. On 29 September 2008, in accordance with her powers under section 75 of the Acts, the Director delegated the case to Hugh Lonsdale, 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 both parties. As required by Section 79(1) and as part of my investigation I proceeded to hearing on 15 January 2008. Further information was submitted after the hearing, the last of which was received on 26 March 2009.
2. SUMMARY OF THE COMPLAINANTS’ CASES
2.1 Mr Ostojic is from Croatia and the other three complainants are from Latvia and they worked for the respondent as labourers from 27 May 2005. They all submit the same claim in relation to their conditions of employment.
2.2 They submit that they were not aware of the Registered Employment Agreement (REA) for the construction industry during their employment with the respondent until they contacted SIPTU in March 2006. They were not employed in accordance with the provisions of the REA, in that:
- They were not paid the correct rate of pay, until March 2006,
- They were not paid overtime rates,
- They were not members of the REA pension or sick pay scheme.
- They were not members of a union
2.3 They submit that they were not employed in accordance with other legislation in that:
- They were not issued with contracts of employment, in accordance with the Terms of Employment (Information) Act, 1994
- They worked over 48 hours per work, in contravention of The Organisation of Working Time Act, 1997,
- They received no safety, health and welfare at work documentation as required by the Safety, Health and Welfare at Work Act, 2005.
2.4 They submit that this treatment amounts to discrimination as they were unaware of the correct conditions of employment and, as they were not Irish, the respondent had a responsibility to take special measures to ensure that they were made aware.
2.5 Mr Vladislavs Arbuzovs and Mr Sergejs Plonkins also submit that they were told one week before that they would be dismissed on 5 May 2006. They were given no reason for this, there was no meeting and they were not allowed representation. They submit that they were dismissed without good reason that this was not in accordance with proper procedures and that this amounts to a discriminatory dismissal.
2.6 Mr Igor Ostojic further submits that on 1 September 2006 he was dismissed following an altercation with a colleague. This was changed to a suspension but, after being unable to attend an investigatory hearing, the complainant was not notified of a new hearing. This meant that he did not return to work. The complainant submits that this amounts to a dismissal which arose from a relatively minor event and followed his submission of a claim under the Employment Equality Acts on 24 July 2006. The complainant submits that his dismissal is discriminatory and amounts to victimisation and a victimisatory dismissal.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent denies the allegations of discrimination against all four complainants. They submit that they may have breached employment legislation but these issues are being dealt with by the Labour Relations Commission and further submit that they did not discriminate against the complainants on the basis of race.
3.2 The respondent submits that they are a small family owned business with no dedicated human resources representative. They do not have sophisticated policies and procedures and were unaware of the legal obligation to issue contracts. Furthermore they were not aware of the Registered Employment Agreement for the Construction Industry and were oblivious of the Organisation of Working Time Act, 1997. As such they submit that they treated both Irish and non-Irish employees the same. At the time of the complainants’ employment they employed approximately 50 staff, about 10% of whom were foreign nationals.
3.3 The respondent submits that they did not issue any staff with contracts of employment and the terms and conditions of employment of all staff were dealt with in the same way. Therefore, not issuing contracts to the complainants and not employing them in accordance with the REA and other legislation could not be seen to be discriminatory.
3.4 All employees were treated the same way in relation to pay. Their pay was negotiated when they started on an individual net basis and depended on their experience. Employees who had originally been employed to work from the company’s base in County Clare and who were than asked to work more than 30 miles away were entitled to a Lodging Allowance.
3.5 The respondent submits in relation to the number of hours worked and pay rates for overtime hours the complainants were treated no less favourably than any other employees.
3.6 The respondent submits that on each site all the complainants were inducted on health and safety matters and provided attendance sheets to show this. They also provided evidence that the complainants had attended lectures (known as Toolbox Talks) on health and safety matters. The further submit there is no evidence that the complainants did not understand the health and safety information; as some of the lectures were given by a Latvian foreman and one of the complainants had excellent English, one had good English and the other two had adequate English.
3.7 The respondent submits that the complainants were enrolled in SIPTU and they made pensions contributions for them in accordance with the Construction Industry Federation scheme but did not specifically inform the complainants of this.
3.8 The respondent submits that Mr Arbuzovs and Mr Plonkins were advised by the Contracts Manager that the site they were working on was finishing in one week and there were no other sites that they could move to. They were given one weeks notice and the site foreman took them to other sites in the area to see if there was other work available. They were let go along with all the other general operatives on the site.
3.9 The respondent submits that following an incident with a fellow worker Mr Ostojic was suspended and they started an investigation into the incident by setting a date for a meeting. Mr Ostojic was unable to attend and before another date was set the complainant contacted the respondent to say he had found another job and there was no point in having the meeting.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The complainants alleges discriminatory treatment on the ground of their race in terms of Section 6(2)(h) of the Employment Equality Acts 1998–2008 and contrary to Section 8 and 9 of the Acts in their conditions of employment and in relation to a collective agreement.
4.2 Regarding the claim that the complainants were discriminated against in relation to a collective agreement, section 9 of the Acts states that where a provision of an agreement is discriminatory then that provision “shall be null and void.” The complainant made no argument that any provision of the REA for the Construction Industry was discriminatory. The complainant’s evidence was that the respondent did not implement the provisions of the REA. The implementation of a collective agreement does not fall within the scope of section 9 of the Acts and therefore I have no jurisdiction in the matter. Accordingly I make no finding of discriminatory treatment in this regard.
4.3I must now look at the complaints of discrimination in the complainants’ conditions of employment. Firstly I must consider whether the complainants have established a prima facie case. Section 85A of the Acts 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 requires the complainant to establish, in the first instance, primary facts upon which he can rely in asserting that the alleged discriminatory treatment took place. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.4 In this claim the respondent contends that it was a small firm that was unaware of the REA for the Construction Industry and other employment legislation. However, by joining the workers to the REA pension scheme and making them members of a union they were clearly aware of the REA. By providing documentation relating to Health and Safety induction and talks they were clearly aware of the Health and Safety at Work legislation. It is clear they complied with legislation for their own purposes rather than to ensure their employees gained the benefits they were entitled to under the employment legislation. I therefore find their submission of ignorance of legislation to be unsustainable. Furthermore, the respondent provided evidence which shows that all their employees were paid rates which were negotiated with individuals when they started work with the respondent. These rates bear no resemblance to those specified in the REA.
4.5 However, it is not for me for to decide if the respondent complied with the employment legislation. The complainants have recourse under each piece of legislation. Section 6 of the Acts makes it clear that the Equality Tribunal has to look at whether the complainants were treated less favourably than someone of a different race, in this case Irish employees who were the majority employed by the respondent. No evidence was adduced to show that they were treated differently from any of the Irish workers and I accept the respondent’s contention that they treated all their staff the same, regardless of race. The complainants relied on the Equality Tribunal decision in Five Complainants v Hannon Poultry (DEC-E2006-050) which decided that the respondent failed in its duty of care to foreign workers and The Labour Court in its determination EED048, Rasaq v Campbell Catering, which stated that “Special measures may be necessary in the case of non-national workers” and The Labour Court, in its determination EED024, A Company v. A Worker which 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.” However, in the claims before me all employees were given similar conditions of employment and it would appear that Irish workers were by far the majority and in working for the respondent implicitly accepted the conditions offered by the respondent. Also there was no evidence from which I can conclude that the complainants were in a vulnerable position because of their race that may have required special measures to be applied. I cannot therefore find that the complainants were treated in a discriminatory manner in relation to their conditions of employment.
4.6 There was contradictory evidence regarding the dismissal of Mr Vladislavs Arbuzovs and Mr Sergejs Plonkins but I find that the two complainants were treated no differently from Irish colleagues and they were all let go at the end of the contract. I cannot therefore find that the complainants were dismissed in a discriminatory manner.
4.7 There was also contradictory evidence regarding the incident that led to Mr Ostojic leaving the respondent’s employment. I accept the respondent considered there was reason to suspend the complainant and arranged for him to attend a hearing. I also accept that the complainant could not attend the first meeting as he had already started a new job and chose not to pursue attempts to re-arrange the meeting. In these circumstances I find that the complainant left his employment whilst suspended and this does not amount to a discriminatory dismissal. Furthermore, no evidence was adduced that could lead to an inference of victimisation or victimisatory dismissal.
I have investigated the above complainant and make the following decisions in accordance with section 79 of the Acts:
- no argument was made by the complainants that a provision of a collective agreement was discriminatory;
- that the respondent did not discriminate against the complainant in their conditions of employment contrary to S. 8(1)(b) of the Acts on the ground of race;
- that Mr Arbuzovs and Plonkins were not dismissed in a discriminatory manner;
- that Mr Ostojic was not dismissed in a discriminatory manner and he was not victimised or dismissed in a victimisatory manner.
1 May 2009