EQUALITY OFFICER'S DECISION NO: DEC-E/2010/151
Mr. ROBERTAS GUZE
(REPRESENTED BY RICHARD GROGAN AND ASSOCIATES-SOLICITORS)
D&D PERFORMANCE ROOFING LIMITED
FILE NO: EE/2007/283
Date of issue: 09 August 2010
1.1 This dispute involves a claim by Mr. Robertas Guze , that he was discriminated against by D & D Performance Roofing Ltd on grounds of race, in terms of section 6 of the Employment Equality Acts, 1998 and 2008 and contrary to section 8 of those Acts, in relation to conditions of employment and harassed by the respondent on the same grounds contrary to section 14(A) of the Acts. It is further submitted that the complainant was dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2)(h) and contrary to section 77 of those Acts.
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 and 2004 to the Equality Tribunal on 1 June, 2007 alleging that the respondent had discriminated against him on grounds of race when he was dismissed from his job without any reason or proper procedure. The complainant further submitted that he did not receive any proper contract of employment, Health & Safety documentation or payslips and that he was harassed contrary to the Acts.
The respondent has not replied to the complaint.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 2nd of June, 2010 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. A written submission was received from the complainant. No response was received from the respondent. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to a Hearing on the 16th of July, 2010. A notification of the hearing date was sent to both parties by registered post. The letter to the respondent was returned "gone away".
3. Summary of complainant's case
3.1 The complainant submitted that he was employed by the respondent from 25th October 2006 to 4th December, 2006 (1month + 10 days). The complainant states that he is a Lithuanian national and that he was employed as a Construction Worker by the respondent during the period.
3.2 The complainant submits that he did not receive any contract of employment, Health & Safety documentation or payslips. The complainant submitted in advance of the hearing that he was dismissed without any proper procedure and that he suffered harassment.
On the day of the hearing the representative for the complainant reduced the scope of the claim as outlined in the EE1 form and indicated that he was no longer pursuing a claim in relation to training, equal pay or a collective agreement.
3.3 The complainant submitted that he must establish a prima facie case and cited the Labour Court case of Southern Health Board v Mitchell in support of this contention.
3.4 The complainant referred to the Equality Tribunal case 58 named Complainants v Goode Concrete Ltd. in relation to dismissal, contract of employment and Health & Safety. The complainant seeks to rely on the Campbell Catering case in his contention that there is a requirement that the respondents take special measures to advise the complainant as a foreign national of his rights.
4. Summary of respondent's case
4.1 The respondent made no submissions in advance of the hearing and did not attend the hearing.
5. Conclusions of the Equality Officer
5.1 The issues for decision by me are now whether or not D&D Performance Roofing limited (i) discriminated against the complainant on grounds of race, in terms of section 6(2)(h) of the Employment Equality Acts, 1998 and 2004 in relation to conditions of employment and (ii) harassed the complainant on grounds of race in terms of section 6(2)(h) of the Employment Equality Acts, 1998 and 2004 and contary to section 14(A) of the Acts and (iii) dismissed the complainant in circumstances amounting to discrimination on grounds of race in terms of section 6(2)(h) 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 at the Hearing.
5.2 Section 6(1) of the Employment Equality Acts, 1998 and 2004 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)(h) 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... "
Thus the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because his is Lithuanian. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:
Section 85A of the Act provided 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. While those facts will vary from case to 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 establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.
5.3 Conditions of employment
On the day of the hearing the complainant indicated that he was in fact the only employee of the respondent and so was not in a position to confirm that he was treated less favourably than any other employee was in relation to the provision of a contract of employment, the provision of payslips, or the provision of health and safety documentation and argued that a notional comparator should be used. In the circumstances I am satisfied that a notional comparator is appropriate in this case. Taking into account the fact that the respondent was a small firm with only one employee aside from 2 working directors I do not consider that the conditions of employment experienced by the complainant would be any different for any other employee irrespective of their nationality. It is unlikely on the basis that the respondent employed only one individual that they would have provided a contract of employment, payslips, or health and safety documentation for any one employee. Accordingly, I do not find that the complainant has established a prima facie case of less favourable treatment on the ground of race in relation to these matters.
As regards the harassment aspect of the claim the complainant indicated that he was not always allowed to take his lunch break on time and indicated that on one occasion he was left to finish a job alone and in the rain while the respondents finished early and went home. The representative for the complainant at the hearing indicated that there had been no references to the complainants nationality during these incidents. I am not satisfied given the evidence adduced that the conduct of the respondent constitutes harassment contrary to the Acts and this element of his complaint therefore fails.
5.5 Discriminatory Dismissal
5.5.1 Turning to the complaint of discriminatory dismissal. At the hearing the complainant outlined his version of events surrounding his dismissal. He indicated that he was paid €400 for his first weeks work and €180 for the next weeks work after which he was not paid for the remainder of his employment. When he asked his employers for his wages he submitted that he was told they had no money but would pay him next week. This happened again on each of the following 2 weeks after which the complainant indicated that he could no longer continue to work without being paid and he advised the respondent that he was leaving for this reason. The complainant then received a phonecall at home from the respondent asking him to return to the job and promising that he would be paid and that the money would be brought to his home. The complainant returned to the job but again no money was paid to him and he did not return to his employment for this reason. The complainant submits that the respondents were 'smiling' at him when he asked for his pay and he could not understand why this was. The complainant submits that he never received any of the money owed and there was no more contact between the respondents and the complainant after this.
The complainant at the hearing presented as a credible witness who gave his evidence in a clear manner, in response to the Tribunal's direct enquiries. The complainant's evidence was consistent with the information provided by him prior to the hearing. In light of the foregoing I accept the complainants version of events in this matter. As the respondent was not at the hearing, this evidence went unrebutted.
Section 2(1) of the Acts defines dismissal as including:
"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract, without giving such notice, or it was or would have been reasonable for the employee to do so ...."
In An Employer v A Worker (Mr. O No.2) the Labour Court comprehensively addressed the issue of constructive dismissal under employment equality legislation. It noted that the above definition was practically the same as the definition of "dismissal" contained in the unfair dismissals legislation and held that the tests for constructive dismissal developed under that 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".
5.5.2 In the instant case I will firstly examine the "reasonableness" test which can be relied upon as an alternative or in combination with the "contract test". It requires the complainant to satisfy the Tribunal that the behaviour of the respondent was so unreasonable that he could not fairly be expected to put up with it any longer and he was therefore entitled to resign from its employment. Thus, an employer's conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation, but is so unreasonable as to justify the employee in resigning there and then. The employer in this case failed to pay the employee for work after his 2nd week in the job while continuously (over the next 3 weeks) indicating that they would pay him and requesting that he continue to work on the promise of this pay.
5.5.3 The corpus of caselaw developed on this point requires the complainant, before taking the unilateral step of terminating his employment, to give the respondent the opportunity to address his grievance or complaint. Whilst the respondent had no formal grievance procedure in operation at the time the complainant clearly indicated that he wished to be paid for his work and in fact advised that he was leaving due to the failure of the respondent to pay him for his work. The respondent then phoned the complainant at home requesting his return to work and again promising to pay him for his work . The complainant again returned to work thus providing the respondent with an opportunity to address the problem. I am thus satisfied that the complainant in this case acted reasonably by agreeing to return to work thus providing the respondent with an opportunity to address the non pay issue.
5.5.4 I will now turn to the "contract" test which was described by Lord Denning MR in Western Excavating (ECC) Ltd v Sharp  IRLR 332 as follows:
"If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance"
This passage describes a situation in which an employer commits a repudiatory breach of contract. In such circumstances, the employee is entitled to accept the repudiation and consider him or herself dismissed. However, not every breach of contract will give rise to repudiation. It must be a breach of an essential term which goes to the root of the contract.
5.5.5 As outlined earlier in this decision the complainant in this instance did not receive a contract or written terms however the fact that the complainant had performed work and had been paid for that work for 2 weeks gives rise to a contract. Thus in the instant case I am satisfied that the complainant having performed work and been paid for that work for a period of 2 weeks was employed by the respondent. The respondents failure to continue to pay the complainant for that work, despite several indications that they would continue to pay him, was a breach in an essential term of that contract. In light of the foregoing I am satisfied that the complainant was constructively dismissed from his employment. Now I must examine whether or not the dismissal and the events surrounding his dismissal amount to discrimination on the basis of his race.
5.5.6 It is submitted that the respondent would not have treated a notional Irish person in a similar manner, but would have paid the wages that were due. The complainant submitted that having worked for over 5 weeks he was only paid for less than 2 weeks work. The complainant submitted that each time he asked the respondent for his wages he was told they would pay him the following week. In addition the complainant despite not being paid for his work after the second week in employment still returned to the job when requested to do so by his employer. The complainant at the hearing indicated that the respondents were 'smiling' at him when he asked for his wages and they told him they had no money to pay him but that he would be paid next week.
5.5.7 It is settled law of this Tribunal and the Labour Court that the prohibition of discrimination means there shall be no discrimination whatsoever on the ground of race. In Wong v Igen Ltd and others Peter Gibson LJ considered the scope which should be ascribed to the notion of "no discrimination whatsoever". He held that if the protected factor or characteristic is more than a "trivial influence" in the impugned decision, a claim of discrimination will have been made out.
5.5.8 In this complaint and given the evidence adduced in this case I have accepted, in the absence of a direct comparator, that an Irish employee would also have received and accepted the same conditions of employment as those given to the complainant. However, I do not accept that the same Irish employee would have been treated in the same way as the complainant in relation to the non-payment of wages in particular regarding the return to work following a phonecall from the respondents. The complainant on the other hand took the respondents word that he would be paid and in good faith returned to work on the promise that he would be paid. In this instance the respondent took advantage of the fact that the complainant was a non Irish worker I am therefore satisfied that this behaviour on the part of the respondent amounts to more than a trivial influence in relation to the complainants race.
I am satisfied that the complainant has established facts from which it may be inferred that the manner in which he was dismissed and the events surrounding his dismissal amount to discrimination on the basis of his race. The complainant has established a prima facie case and, accordingly, the onus shifts onto the respondent to rebut the inference of discrimination raised. As the respondent did not attend the hearing, the inference of discrimination raised by the complainant has not been rebutted and the complainant succeeds in his complaint.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -
(i) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against him on the ground of race pursuant to section 6(2) of the Acts in terms of his conditions of employment contrary to section 8(1) of the Acts
(ii) the complainant has failed to establish the facts from which it may be presumed that the respondent subjected him to harassment contrary to Section 14 A of the Acts
(iii) the complainant was discriminated against by the respondent when he was subjected to constructive discriminatory dismissal on the race ground
In accordance with Section 82 of the Act, I order the respondent pay the complainant €3,000 in compensation for the discrimination in relation to his conditions of employment. In calculating the redress, I am cognisant of the fact that Mr Guze was working for the respondent for approximately 5 1/2 weeks. This is redress for the infringement of Mr Guze's statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
9th August 2010