EQUALITY OFFICER'S DECISION NO: DEC-E/2010/146
(REPRESENTED BY RICHARD GROGAN AND ASSOCIATES - SOLICITORS)
GEORGE V FORSTER
(REPRESENTED BY BRANIGAN & MATTHEWS - SOLICITORS)
File No: EE/2008/257
Date of issue : 3 August, 2010
Headnotes: Employment Equality Acts, 1998- 2007 - sections 6,8 & 77 - race- discriminatory treatment - conditions of employment - dismissal - prima facie case
This dispute involves a claim by Mr. Bruno Aleidzans, who is a Latvian national, that he was (i) discriminated against by the respondent in respect of his conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts and (ii) dismissed by the respondent in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 77 of those Acts.
2.1 The complainant was employed by the respondent as a General Labourer from April, 2006 until February, 2008. He contends that during his period of employment he was (i) treated less favourably as regards his conditions of employment on grounds of race (Latvian nationality) and (ii) was constructively dismissed by the respondent on the same basis (Latvian nationality), contrary to the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2007 to the Equality Tribunal on 21 April, 2008. In accordance with her powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 4 March, 2010 - the date it was delegated to me. Submissions were received on behalf of both parties and a Hearing on the complaint took place on 7 July, 2010. The complainant withdrew the following aspects of his complaint at Hearing - access to employment, annual leave, application of certain aspects of the Construction Industry Registered Employment Agreement and harassment. He also withdrew all aspects of his complaint referred on grounds of marital status and family status.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is a Latvian national, states that he commenced employment as a General Labourer with the respondent in April, 2006. He states that at the outset he was the only employee and that two other employees - both Irish - commenced working for the respondent about one year later. The complainant states that he did not receive a written contract or terms of employment and contends that this constitutes unlawful discrimination of him on grounds of race contrary to the Acts. He submits that following the Decision of this Tribunal in 58 Complainants v Goode Concrete there is an obligation on an employer to provide employees with a contract of employment in a language which they understand. In the course of the Hearing the complainant stated he did not know if the other two employees received contracts of employment. The complainant further states that the respondent failed to provide him with a health and safety statement or documentation in a language which he could understand. In the course of the Hearing he was unable to say whether or not either of the two Irish employees received any health and safety documentation. He adds that he received some training on the operation of machinery in the workshop about six months before he left the respondent's employment. In the course of the Hearing he stated that all three employee received this training and although it was delivered in English he understood it. It is submitted on the complainant's behalf that the respondent's actions constitute less favourable treatment of him on grounds of race, contrary to the Acts and he seeks to rely on the Decision of this Tribunal in 58 Complainants v Goode Concrete in this regard.
3.2 The complainant states he was aware from the outset of his employment that he was being paid by the respondent without any tax or social insurance deductions being applied and he was "ok" with this. In the course of the Hearing he confirmed that from June, 2006 he was aware of the Revenue Commissioners and of his obligation to pay tax and social insurance but he continued to be paid "cash in hand". The complainant states that his children came from Latvia to reside with him in June, 2007 and he became aware of the existence of certain social welfare benefits and he applied for them. He further states that his application for these benefits was rejected because of the "habitual residence rule". In the course of the Hearing the complainant's representative was unable to clarify what this rule entailed to any significant degree other than to say that the complainant was unable to prove to the Department of Social and Family Affairs (as it was at that time) how long he had been living in Ireland. The complainant states he approached the respondent around this time and requested him to regularise his tax/social insurance position. The complainant adds that the respondent replied "it was not convenient for him to pay social insurance contributions for him" and refused to discuss the matter further. The complainant asserts that he asked the respondent to regularise his situation on a weekly basis and always received the same response. He adds that it was not until his solicitor made representations on his behalf to the Department of Social and Family Affairs in June, 2008 that he obtained the social welfare benefits he was entitled to. In the course of the Hearing the complainant stated that he was unable to say whether or not the respondent treated the two Irish employees in a different manner to him as regards the basis of how he paid them. It is submitted on the complainant's behalf that the respondent's refusal to regularise his position constitutes less favourable treatment of the complainant contrary to the Acts.
3.3 The complainant accepts the he left the respondent's premises on the morning of 20 February, 2008 of his own volition and did not resume work there - although he did contact the respondent a few days later as he was owed money. He adds that he received a phone call that morning advising him that he had secured alternative employment (and was required to commence later that day) and he left the premises without informing anybody - in particular the respondent- that he was leaving. The complainant states that he left the employment because his new employer deducted tax and social insurance contributions from his salary and thus enabled him secure the social welfare benefits he had previously been refused. It is submitted on the complainant's behalf that he was effectively forced to resign due to the respondent's persistent refusal to regularise his position and that this constitutes constructive discriminatory dismissal of him contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent accepts the dates of employment as stated by the complainant. It adds that the complainant secured the position on recommendation by his brother-in-law, who had previously worked for the respondent. The respondent accepts that the complainant was paid "cash in hand" for the duration of his employment and that this arrangement came about at its suggestion, but contends that the complainant was (i) aware that this would be the case from the start and (ii) content with the arrangement. The respondent states that he employed two Irish employees during the complainant's tenure. It adds that these men were engaged as required by the respondent and were not employed continuously as the complainant was - although they would have been employed for 5/6 months at a time. The respondent states that also he paid these employees "cash in hand" and submits that the complainant was treated no differently to them in this regard and was not therefore treated less favourably on grounds of his nationality. The respondent adds that it has now settled its tax and social insurance liabilities in full with the Revenue Commissioners in respect of the years in question The respondent states that it provided neither the complainant nor the two Irish employees with either (i) contracts of employment or written terms of employment or (ii) health and safety documentation. It submits that its failure in this regard cannot be attributed to the nationality of those employees and is not therefore discrimination, adding that the complainant has alternative avenues of redress for those failures under the relevant statutes.
4.2 The respondent strenuously rejects the complainant's assertion that he approached the respondent at any stage during his employment and asked that his tax situation be regularised. The respondent states that as far as he was aware the complainant was happy at work and with the payment arrangements and he (the complainant) never made any reference to social welfare benefits to him. The respondent states that the complainant simply left its premises on the morning of 20 February, 2008 without speaking to anyone and did not return to work. It adds that it later became aware the complainant had commenced work elsewhere that afternoon. It submits therefore that the complainant resigned of his own volition and that the circumstances which prevailed at that time are not ones on which an allegation of constructive discriminatory dismissal can be sustained.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts as regards his conditions of employment and (ii) dismissed the complainant in circumstances amounting to discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 77 of those Acts. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
5.2 Section 6(1) of the Employment Equality Acts, 1998 - 2007 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....."
Section 6(2) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins... "
It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because his is Latvian.
5.3 Section 85A of the Employment Equality Acts 1998- 2007 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of him his case cannot succeed.
5.4 In a recent Determination the Labour Court , whilst examining the circumstances in which the probative burden of proof operates held as follows -
"Section 85A of the Acts 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."
5.5 That Court more recently extended this analysis when it affirmed the approach adopted by this Tribunal in Businkas v Eupat Ltd that one of the facts which a complainant must establish is that there was a difference in treatment between him/her and another person (see Glasgow City Council v Zafar  2 All ER 953) before the burden of proof shifts to the respondent. In the instant case the complainant was unable to say if either of the two Irish employees engaged by the respondent during his period of employment received contracts of employment (or written terms of employment) and health and safety documentation. All that the complainant has proffered therefore is an assertion unsupported by any evidence - a scenario which the Labour Court found to be insufficient to satisfy the initial probative burden required in terms of section 85A of the Acts. In the circumstances I am not satisfied that the complainant has established as a fact that he was treated differently to either of the two Irish employees employed by respondent. Accordingly, he has failed to establish a prima facie case of discrimination in respect of these elements of his complaint and he cannot therefore succeed. As this Tribunal has stated on many previous occasions there is no general obligation on an employer to provide an employee with a written contract of employment. There is however, a statutory requirement on employers to provide employees with a written statement of certain terms of their employment under the Terms of Employment (Information) Act, 1994. Enforcement of rights under this statute rests with the Rights Commissioner (at first instance) and not this Tribunal. Similarly, alleged breaches of health and safety legislation have a separate avenue for redress.
5.6 It is common case that from the outset of the complainant's employment he was paid "cash in hand" and that the respondent never applied the income tax or social insurance code to his earnings. The complainant was unable to say, in the course of the Hearing - whether or not the two other Irish employees were treated in a similar fashion about this aspect of their employment. The respondent stated that they were treated in the same manner and on balance, I accept that this was the case. Consequently, there was no difference in treatment of the complainant in comparison to those employees, notwithstanding that the arrangements cannot be condoned by this Tribunal as it has the potential to deny the State of lawful revenue. The complainant states that he approached the respondent in June, 2007 (approximately one year after he had commenced employment) and asked that it regularise his tax and social insurance affairs. The complainant adds that he did so because he had applied for certain social welfare benefits and the Department of Social and Family Affairs had refused his application because he could not satisfy the "habitual residence rule". The complainant - or his representative - was unable to clarify what this rule entails other than to say that he was unable to provide satisfactory proof as regards how long he had lived in Ireland. However, it is asserted on his behalf that regularising his tax and social insurance affairs would go some way towards addressing this matter. The complainant further states that when he made this request to the respondent he was told it was not convenient for him (the respondent) to pay tax and social insurance for him. The complainant adds that he received a similar response each time he raised the issue - which he asserts was a weekly occurrence. The respondent strenuously denies that any such conversations took place.
5.7 In circumstances where there is direct conflict of evidence between the parties an Equality Officer must decide, on balance of probabilities, which version of events s/he finds more credible. In the instant case the complainant adduced no documentary evidence that he had made any application to the Department of Social and Family Affairs at that time - June, 2007. All of the correspondence submitted to me on this matter in fact postdates the complainant's employment with the respondent. In the course of the Hearing the respondent stated that it made a conscious decision to pay the complainant (and the other employees) cash in hand because it wanted to avoid paying its obligatory social insurance liabilities. It also confirmed that it did not comply with a range of employment rights statutes and that these failures had resulted in claims by the complainant under the relevant enforcement provisions of those statutes. On balance, I am of the view that had the complainant approached the respondent as asserted in June, 2007 - and continued to do so on a weekly basis - the respondent would merely have dismissed him without hesitation. In light of the foregoing I find, on balance, that the complainant did not approach the respondent as asserted and the respondent could not therefore have refused his request. Moreover, I am not satisfied that the respondent would not have acted any differently if one of the Irish employees had made a similar request to that alleged by the complainant. It follows therefore that the complainant has failed to establish a prima facie case of discrimination in respect of this element of his complaint.
5.8 The final aspect of the complainant's case concerns his alleged constructive discriminatory dismissal by the respondent. The core argument advanced on his behalf as regards this element of his complaint is that he was forced to secure alternative employment where his tax and social insurance affairs were in order as the respondent had continuously refused to do so. The definition of dismissal contained in the Employment Equality Acts, 1998 - 2007 encompasses (i) the termination of a person's employment by the employer and (ii) the termination of ones own employment by an employee in circumstances where, because of the conduct of the employer, it is reasonable for the employee to do so. It is this latter scenario (constructive dismissal) that the complainant asserts. In An Employer v A Worker (Mr. O No.2) the Labour Court comprehensively addressed the issues of constructive dismissal under employment equality legislation and in doing so noted that the definitions of "dismissal" contained in both that legislation and the unfair dismissals legislation were practically the same. It held therefore that the tests for constructive dismissal developed under the unfair dismissal legislation - the "contract" test and the "reasonableness" test - were applicable tests under the Employment Equality Acts. In addition, the Court held "that what is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case". I have evaluated the evidence adduced by the parties on this matter and as I have already found in the preceding paragraph that the respondent did not behave in an unreasonable manner it follows that the complainant cannot succeed in this element of his complaint. I find therefore that the complainant effectively resigned from the respondent's employment of his own volition in February, 2008 and he was not dismissed in terms of the Acts.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find that the complainant -
(i) has failed to establish a prima facie case of discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts in respect of his conditions of employment and
(ii) has failed to establish a prima facie case that he was dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998- 2007 and contrary to section 77 of those Acts
and his entire complaint must therefore fail.
3 August, 2010