FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83; EMPLOYMENT EQUALITY ACTS; 1998 TO 2007 PARTIES : MELBURY DEVELOPMENTS LIMITED - AND - ARTURS VALPETERS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2007-DEC-E2009-019
BACKGROUND:
2. The Worker appealed against the decision of the Equality Officer to the Labour Court on 1st April, 2009, in accordance with Section 83 of the Equality Acts 1998 to 2007. A Labour Court hearing took place on 9th September, 2009 in Waterford. The following is the Labour Court's Determination:
DETERMINATION:
This is a complaint by Mr Arturs Valpeters (hereafter the Complainant) against Melbury Construction Ltd (hereafter the Respondent) alleging discrimination on the race ground. The complaint was made under the Employment Equality Acts 1998 –2008 (hereafter the Act). The Complainant is a native of Latvia. He was employed by the Respondent as a general operative between 19th May 2005 and 13th April 2007.
The substance of the Complainant’s case is that while employed by the Respondent he was treated less favourably that an Irish worker would have been treated. In advancing his claim the Complainant relied upon the following particulars: -
(a) That he was treated as a self-employed sub-contractor by the Respondent whereas he was in reality employed under a contract of service;
(b) He received no written contract of employment.
(c) He was not provided with payslips;
(d) He received no health and safety training and did not receive a health and safety statement in a language which he understood;
(e) He was not paid in accordance with the Registered Employment Agreement for the Construction Industry;
(f) He was dismissed from his employment without being afforded the benefit of any procedures which would have been available to a worker of Irish nationality.
The complaint was investigated by an Equality Officer of the Equality Tribunal pursuant to Section 79 of the Act. The Equality Officer found that those aspects of the complaint particularised at (b), (c) and (e) had been disposed of in proceedings under other legislative provisions and did not fall to be decided upon by him.
The Equality Officer was satisfied that at all material times the Complainant was an employee of the Respondent under a contract of service. On the particulars of the complaints within his jurisdiction the Equality Officer found that in respect to the complaints at (a) and (f) the Complainant had failed to establish a prima facie case of discrimination and that those complaints could not succeed.
On the complaint referred to at (d) the Equality Officer held that the Complainant was discriminated against in not being provided with a safety statement in a language in which he was competent.
The Equality Officer awarded the Complainant compensation in the amount of €500.
The Complainant appealed against so much of the Equality Officer’s Decision which held that his complaints under (a) and (f) above could not succeed. He also appealed against the quantum of compensation awarded in respect of his complaint particularised at (d) above.
There is no cross-appeal by the Respondent.
The Respondent, having been duly notified of the time, date and place of the hearing of the appeal failed to appear.
The Complainant’s case
The gist of the Complainant’s case is that he suffered loss in respect to social welfare entitlements and the deduction of additional tax in consequence of being classified by the Respondent as self- employed. He submitted that an Irish national working in the construction industry would have known the difference between being a self-employed contractor and being an employee. It was submitted on the Complainant’s behalf that the Court should infer that an Irish worker would not have been subjected to similar treatment.
With regard to the dismissal, the Complainant contends that he was not afforded the benefit of any form of procedure before the decision to dismiss him was taken. He claims that an Irish worker would not have been similarly treated.
It was further submitted that the quantum of compensation awarded by the Equality Officer was not adequate or reasonable in all the circumstances of the case.
Conclusions of the Court
Section 85A of the Act 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.
Mr Grogan, Solicitor for the Complainant has pointed to the difficulty for the Complainant in obtaining evidence concerning how others were treated. He submitted that in these circumstances the Respondent should be required to prove that others were treated similarly to the Complainant. In the Court’s view such an approach would amount to placing the entire probative burden on the Respondent. That would involve an impermissible departure from the plain language and clear import of Section 85A of the Act and the Community law provision upon which it is based.
It was further submitted that in circumstances in which the Complainant could have no way of knowing whether or not other employees of a different nationality were wrongly treated as sub-contractors the Court should apply what is known as the peculiar knowledge principle so as to place the onus of proving that fact on the Respondent. Thepeculiar knowledge principleis a rule of evidence by which the burden of proofing a fact in issue can, in certain circumstances, be placed on a defendant. It was explained by Palles C.B. inMahony v. Waterford, Limerick and Western Railway Co.[1900] 2 I. R. 273as follows:-
- “I rest my judgment on this:—although it is the general rule of law that it lies upon the plaintiff to prove affirmatively all the facts entitling him to relief, there is a well-known exception to such rule in reference to matters which are peculiarly within the knowledge of the defendant. In such case the onus is shifted”
- “The second exception to the above-named general rule is that where the subject matter of the allegation lies peculiarly within the knowledge of one of the parties, that party must prove it, whether it be of an affirmative or negative character and even though there be a presumption of law in his favour.”
Knowledge of how the Complainant's fellow workers were treated is not exclusively or almost exclusively within the knowledge of the Respondent. Nor could it be said that it is peculiarly within the range of Respondent’s capacity of proof. It is also plainly within the knowledge of those other workers. The Complainant could have sought to ascertain from those workers if they were treated as sub-contractors or as employees. If necessary those workers could have been required to attend at the hearing and testify as to how they were treated.
For these reasons 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.
There is provision for the obtaining of information from a Respondent under Section 76 of the Act which is intended to be in ease of a Complainant who would otherwise be unable to obtain necessary proofs in order to process a complaint under the Act. Where no reply is given or where a misleading or equivocal information is provided the Equality Officer and the Court can draw an inference adverse to the Respondent. That procedure was utilised in this case but questions were not put concerning the employment status ascribed to others employed by the Respondent.
These observations on the requirement to prove the primary facts relied upon apply with equal force in respect to the Complainant’s submissions regarding both his claim alleging discriminatory treatment and his dismissal. In neither case is there a scintilla of evidence to show that others of a different nationality to that of the Complainant were treated differently in either respect.
In that regard the instant case is readily distinguishable on its facts from that ofCampbell Catering v Rasaq[2004] 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 defense. 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.
In respect to the Complainant’s erroneous classification by the Respondent as an independent contractor, the Court has been invited to accept, as a notorious fact, that an Irish worker would not have been similarly treated. The Court cannot make such an assumption. From its own experience over many cases it appears to the Court that many employers in the construction industry wrongly classify workers who are in reality employees as sub contractors as a device to avoid their responsibilities under employment, tax and social welfare legislation. This practice is by no means confined to workers whose national origin is outside Ireland.
It is well established that the Court, as an expert tribunal, is entitled to take account of the knowledge and experience of its members in concluding facts. This was made clear by this Court inInoue v NBK Designs[ 2003] 14 ELR 98. That decision echoed a similar approach taken by the Court of Appeal for England and Wales inLondon Underground v Edwards (No.2) [1998] IRLR 364 where it was acknowledged that [tribunals] do not sit in blinkers and are entitled to make use of their own knowledge and experience in the industrial field. Similarly in the Northern Ireland case ofBriggs v North Eastern Education and Library BoardIRLR 181, the Court of Appeal held thatTribunalsare not debarred from taking account of their own knowledge and experience in formulating decisions. The knowledge and experience of this Court suggests that the Complainant’s assertion that his classification as a sub-contractor was discriminatory is not well founded.
In these circumstances the Court is satisfied that the Complainant has failed to establish facts from which it may be inferred that his classification by the Respondent as an independent contractor, or his dismissal, were on grounds of his race and hence discriminatory. Accordingly the Court is satisfied that the Equality Officer was correct in the conclusion which he reached on these aspects of the complaint.
Quantum
The Equality Officer found that the Complainant did suffer discrimination in not being provided with a safety statement in a language which he understood. The Respondent has not appealed against that finding and it is not in issue in this appeal. The Complainant has, however, submitted that the quantum of the award made by the Equality Officer is inadequate.
There is no evidence of the Complainant having suffered any material or other loss in consequence of the discrimination which the Equality Officer found to have occurred. Nor is there evidence that he suffered any inconvenience or upset attributable to the Respondent’s conduct. In these circumstances the Court is satisfied that the award made by the Equality Officer is adequate.
Determination
For all of the reasons set out above the Court can see no basis upon which it could interfere with the Decision of the Equality Officer. Accordingly the within appeal is disallowed and the Decision of the Equality Tribunal is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
16th September, 2009______________________
JFChairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.