THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 152
Mr Denis Solodovnikos
(represented by Richard Grogan & Associates)
Breffni Carpentry Services Ltd.
File Reference: EE/2007/056
Date of Issue: 11 August 2010
Headnotes: Employment Equality Acts, 1998 & 2004, section 6,8, 14 and 77 - Conditions of employment - Access to Employment - Dismissal - appropriate rate of pay - no comparator - hypothetical comparator - "future access to employment"
1.1. This case concerns a complaint by Mr. Dennis Solodovnikos that he was discriminated against by Breffni Carpentry Services on the ground of race contrary to sections 6(1)(a) and 6(2)(h) of the Employment Equality Acts in relation to (i) access to employment, (ii) conditions of employment and (iii) dismissal contrary to sections 8(1)(a), 8(1)(b) and 8(6)(c) of the Acts.
2.1. The complainant referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 6 February, 2007, alleging that the respondent had discriminated against him on the ground of race.
2.2. On 22 July, 2009, in accordance with her powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008, on which date my investigation commenced. Written submissions were sought from both parties, but received only from the complainant.
2.3. A hearing of the complaint was held in Cavan on 1 June, 2010. As a particular allegation was made by the complainant at the hearing (see par. 3.6 below), the respondent was provided with an additional opportunity to respond to this allegation in writing after the hearing. Additional documentation was also sought from both parties in any event. Final correspondence was received from the complainant on 24 June, 2010.
3. Summary of the Complainant's case
3.1. The complainant is a Latvian citizen who submitted that he commenced employment with the respondent on 8 May 2006.
Issue of dismissal
3.2. The complainant submitted that, on 13 October 2006, he was told by the respondent that it no longer had any work for him and he was dismissed, having worked for the respondent for six or seven months at that stage. He submitted that no procedures were followed in relation to this dismissal and disputes the respondent's submission that he left his employment of his own volition. He did state at the hearing that the respondent had forewarned him that his work would be finishing and that he would be given one week's holiday pay. However, he stated that he was never given same. He said that the only other person working with the respondent was Mr A, who was Irish. He said that Mr A was there when he started, but did not know when Mr A had started. He stated that there was a big difference in the way he was treated compared to the way Mr A was treated and stated that if he was Irish he would have remained in the respondent's employ. He said he has not worked since finishing with the respondent.
Issue of documentation
3.3. The complainant submitted that, under the decision in 58 named Complainants -v- Goode Concrete , there is an obligation on an employer to provide a Contract of Employment in a language likely to be understood by the Complainant but that the respondent did not provide him with any contract of employment. He accepts that the respondent was only obliged to supply a notification of particulars as set out in Section 3 of the Terms of Employment (Information) Act. However, he submitted that, in failing to notify him of his statutory entitlements, the respondent put him in a particularly vulnerable position as a foreign national as he would not be aware of his employment rights. The complainant also submitted that he did not receive health and safety documentation.
3.4. The complainant submitted that the complete lack of documentation on the part of the respondent raises an issue as to what would be the position concerning a notional comparator. He contends that a notional Irish comparator would be aware of his rights in this regard. Furthermore, the complainant submitted that the decision in Campbell Catering -v- Rasaq meant that, as a foreign national, he was in a particularly vulnerable position and contended that special measures may have been necessary to advise him of these particular rights. He submitted that the failure to provide these documents was discriminatory on this basis.
Issue of appropriate rate of pay
3.5. The complainant stated that he was promised that he would be paid €500 per week and that €100 would be taken for tax, but was only paid €400 and no tax was ever paid to Revenue on his behalf. He said that he considered that the respondent had deducted tax from him but had not passed it on to Revenue. He stated that he was paid by cheque in that regard and that he had worked from May to October 2006, except in his final week of work when he was paid €500 in cash. He also said that he was promised holiday pay by the respondent but this was never provided. He said that he understood that Mr A was paid approximately €750 per week. However, he submits that the Tribunal should look at a notional comparator and not necessarily a comparator within the respondent firm, particularly if Mr A is a self-employed contractor.
Issue of access to employment
3.6. The complainant's claim in relation to access to employment concerned an allegation he made that the respondent had prevented him accessing future employment. (This allegation was first mentioned at the hearing and had not been made in his complaint form or submissions). He alleged that when people hear his name and where he had been working, they are refusing to employ him. He said that he was interviewed by X Ltd. by a Mr. B (he was unable to name Mr B at the hearing, but did so in later correspondence). He said that when he told Mr B in the course of the interview that he had been working for the respondent, Mr B smiled and said that they were his friends. He added that he never heard from Mr B after that, even though he had left him with the impression that he would be offered a job at X Ltd. The complainant also referred to a phone call he had with someone else with whom he talked for ten minutes about a job and that when he told this person where he had worked before, the person said he knew the respondent and said goodbye. However, he was unable to name this person or say who they worked for.
3.7. At the hearing of the matter, the complainant withdrew a number of other allegations which he had made in his submissions to the Tribunal in advance of the hearing and which related primarily to his conditions of employments. These have not been outlined here.
4. Summary of the Respondent's case
4.1. The Director of the respondent, who was at the hearing, stated that the complainant started working for him in May 2006. He stated that he hired him as he was friendly with a mutual acquaintance and he had some work for him. He said that the agreement he entered into with the complainant was that he would pay him €400 net in addition to paying any taxes that would fall due to be paid while he worked for the respondent. He said that the complainant had not worked that tax year until May and he had eight weeks tax pay in the year before, so he didn't come into the tax net because of his tax free allowance. Therefore, no tax was paid on his behalf. He said that the bank records he provided to the Tribunal showed that he paid the complainant the one weeks holidays he was owed. He said he was sure that he paid the complainant's PRSI but would check, and denied that he had not paid the complainant his holiday pay, and provided documents at my request in that regard.
4.2. The Director said that Mr A was a self-employed contractor who might have to go off and do other jobs in-between working for him. He said that Mr A was paid a weekly sum of €750 gross, of which the respondent sent €250 to Revenue as required by the relevant regulations (C45 Form).
4.3. The Director said that the agreement he made with the complainant was that the work would only be temporary. In that regard, he said that the complainant had asked it how long the work would last in the context of obtaining a loan at the start of the period of employment. The Director said he responded to this query by telling the complainant that he was not sure. He said that the complainant was the only worker on a contract of service that he ever had. He added that the complainant was not dismissed, but left of his own volition, although he agreed that he had told him prior to his leaving that the work would end in October.
4.4. With regard to the allegations regarding the contract of employment and health and safety documentation, the Director stated that he was not asked to provide the relevant documents by either the complainant or Mr A. He said that he had a health and safety pamphlet in the office but was never asked by the complainant to provide it to him. He also stated that he couldn't see how a payslip was mandatory and couldn't see how everyone who was employed would get a payslip.
4.5. The Director said that, as a one-man operation, he was known in business more by his personal name than by his company name. Therefore, any company that the complainant made contact with in seeking employment would be more likely to know the Director than the respondent. In any event, he stated that he did not know Z Ltd. or anyone working there and could not see how he could be held responsible for the actions of Z Ltd. even if he had known the relevant person.
5. Conclusions of the Equality Officer
5.1. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him/her. If he/she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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 and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
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)(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.." 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 he is Latvian.
5.3. The issue for decision by me in this case, then, is whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6(2)(h) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts in terms of access to employment, conditions of employment and dismissal. In reaching my decision I have taken into account all of the submissions, both oral and written, made to me in the course of my investigation.
Issue of documentation
5.4. The complainant submits that the respondent discriminated against him by failing to furnish him with a health and safety statement, or a written contract of employment (or any other form of notification of his terms and conditions of employment). The respondent accepts that it did not provide the complainant with the relevant documentation, stating that the health and safety documentation was freely available if he wished to view it, and there was no contract of employment as it did not usually employ persons on contracts of service, and the complainant was effectively a casual and temporary labourer in that respect.
5.5. The legislature has provided for other fora to resolve those disputes, per se, and, in that context, these matters are not for this Tribunal to consider. Indeed, I note the matter has already been considered at the relevant forum. What the Tribunal is concerned with in this regard is whether the respondent's admitted failure to provide any of these documents amounts to less favourable treatment within the meaning of the Acts, and/or whether it discriminated against him otherwise with regard to informing him of his terms and conditions of employment.
5.6. I note that the respondent had only one other person working with it, Mr A. I am satisfied that Mr A was hired by the respondent on a contract for service. Therefore, as the respondent had not engaged Mr A under a contract of employment (and so he was not an employee) within the meaning of the Acts, he is not an appropriate comparator in the context of this complaint.
5.7. The complainant submits that, particularly in such circumstances, the Tribunal should consider this issue based on how a hypothetical Irish employee would have been treated by the respondent in the circumstances, as allowed by Section 6 of the Acts. In that regard, I note the decision of the Labour Court in Toker Developments v Edgars Grods when it said that it "is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances of the particular case". I am satisfied that the complainant was a casual and temporary employee and knew that from the outset. I am also satisfied that the respondent did not initially intend on hiring him for long. In that context, and in all the circumstances of the present complaint, the complainant has failed to show how he would have been treated any differently if he was of a different race, colour, nationality, ethnic or national origin, at least as regards the provision of the documents in question.
5.8. I would also distinguish the present case from that of Goode Concrete, as in that case the complainants were treated less favourably than their Irish comparators in not being provided with a contract of employment in a language likely to be understood by them. There is no such comparator in this instance. Finally, with regard to this aspect of the present complaint, I would add that the Campbell Catering case related primarily to a complainant who was dismissed in a particular set of circumstances. Therefore, as the facts of that case are significantly different to the ones at issue in the present complaint, the decision of the Labour Court in Campbell Catering has no relevance here.
Issue of appropriate rate of pay
5.9. The complainant submitted that, when he was hired, he was told he would be paid €500 per week and the respondent would deduct taxes as appropriate. The respondent stated that he told the complainant he would pay him €400 per week plus whatever taxes fell due. In relation to this conflict of evidence, I find that of the respondent to be more credible. Furthermore, it is clear that the reason that the respondent did not pay any tax on behalf of the complainant was that no such tax was due as the complainant's earnings were below the relevant tax threshold. It is also clear that the complainant was paid the holiday pay in question. I also note that PRSI, both employer and employee, was paid by the respondent with respect to the complainant. Therefore, the complainant has failed to adduce any evidence that there is even a possibility of less favourable treatment arising.
Issue of dismissal
5.10. As Mr A was not an employee within the meaning of the Acts, he is not a suitable comparator in relation to the terms and conditions of the complainant's employment. In any event, I am satisfied that the circumstances of the termination of the complainant's employment were as outlined by the respondent: in short, that he was aware from the beginning that his employment could be terminated at any time; that, ultimately, he was given ample notice that his employment would end on a certain date; and that he left of his own volition in any event. It is clear, then, that the complainant was hired on a casual and temporary basis and that he would not have been treated any differently in respect to the termination of his employment with the respondent if he was of a different race, nationality or ethnic or national origin.
Issue of access to employment
5.11. At the hearing, the complainant stated that the respondent had discriminated against him in relation to "future access to employment". There is no such claim available under the Acts. As a claim in relation to access to employment, the respondent cannot be held responsible for the actions of others in not employing the complainant.
5.12. The complainant also gave vague, subtle, half-suggestions that the respondent had proactively prevented him obtaining employment. These submissions appeared to suggest an allegation of victimisation. Such an accusation is one that the Tribunal takes very seriously. There are certain circumstances where an Equality Officer, where it would appear to arise on the facts of the case, may consider such an allegation, even if it has not been specifically raised by either party in advance of the hearing . No such circumstances arise in this case, particularly given the vagueness of the suggestion and that I found the complainant's direct evidence in this respect to be uncertain and contradictory as well as vague. In that context, I have no jurisdiction to consider whether there has been victimisation and could not do so, either at the hearing or in this decision.
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
6.2. The complainant has failed to establish a prima facie case of discrimination on the ground of race pursuant to section 6(2)(h) of the Acts in terms of access to employment and conditions of employment, contrary to S. 8(1) of the Acts.
6.3. The complainant has failed to establish a prima facie case of discrimination on the ground of race pursuant to section 6(2)(h) of the Acts in terms of dismissal, contrary to S. 8(6)(c) of the Acts.
6.4. Accordingly, the complainant's case fails.
11 August 2010