THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 156
Mr Irmantas Vaicikauskas and Mr Juris Belovs
(represented by Richard Grogan and Associates, Solicitors)
Ashfield Builders Ltd
File Reference: EE/2008/014
Date of Issue: 27th August 2010
1.1. The case concerns a claim by Mr Irmantas Vaicikauskas and Mr Juris Belovs that Ashfield Builders Ltd discriminated against them on the ground of race contrary to Section 6(2)(h) of the Employment Equality Acts 1998 to 2008, in terms of not providing them with a contract of employment or health and safety training, working excessive hours, harassment, not joining them into the Construction Industry pension scheme, and dismissing them without reason or procedure.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 19 December 2007. A submission was received from the complainant on 22 October 2008. No submission was received from the respondent. On 22 March 2010, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 25 August 2010. The respondent's liquidator notified me in writing on 14 April 2010 that they would not appear for the hearing. Additional evidence was requested from the liquidator on 24 August 2010 and received by email the same day.
2. Summary of the Complainant's Written Submission
2.1. Mr Irmantas Vaicikauskas is a Lithuanian national. Mr Juris Belovs is a Latvian National. They submit that they did not receive contracts of employment, health and safety documentation or training, and were required to work excessive hours. They further contend that they were not paid in accordance with the Registered Employment Agreement for the Construction Industry, and that they were not joined into the CWPS Pension Scheme.
2.2. On 3 August, 2007, both complainants were dismissed without explanation or procedures.
3. Summary of the Respondent's Written Submission
3.1. No submission was received from the respondent.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainants were discriminated against and discriminatorily dismissed on the ground of race within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
4.3. Mr Vaicikauskas started to work for the respondent on 16 August 2004. Mr Belovs commenced work for the respondent in April 2004. Both men worked as general operatives, although Mr Vaicikauskas also did a considerable amount of paperwork for the foreman, Mr D. The respondent employed two Irish workers on the site on which they worked, the foreman Mr D. and a general operative who worked as a "snagger". All other staff were Polish, except for the two complainants.
4.4. The complainants could not say whether any worker among the respondent's staff had a contract of employment or training in health and safety procedures. The complaint for payment under the REA was not pursued. With regard to entry into the Construction Industry Pension scheme, information obtained from the respondent's liquidator shows that workers of a variety of nationalities, including workers from the Baltic states, where entered into the pension scheme. Therefore, alleged irregularities with regard to the administration of pension scheme payments cannot have a connection to the complainants' nationality. Accordingly, all of these aspects of their complaints must fail.
4.5. In terms of the complainants' complaint of harassment, the complainants' evidence varied. Mr Vaicikauskas stated that they did not experience problems within their own company or with the foreman, Mr D., but that they did experience harassment from the crews of other construction companies. I pointed out to Mr Vaicikauskas that such behaviours were outside of my jurisdiction to investigate. Mr Belovs confirmed harassment from other crews, including being called "gay", which is again outside my jurisdiction, not just for the reason stated above, but also because his complaint is not about sexual orientation. In addition stated that the foreman on occasion called him a "f***ing foreigner" and swearwords not connected to his nationality. However, Mr Belovs has not managed to convince me of his credibility on this point of his evidence, and I prefer Mr Vaicikauskas's evidence on the matter. Accordingly, I find that the complainants have not established a prima facie case of harassment within the meaning of the Acts, and that therefore, this part of their complaint must fail.
4.6. Turning to their complaint of discriminatory dismissal, both complainants stated that when they returned from the builder's holidays, 2007, they found a message with their payslips that their employment had been terminated, backdated to the beginning of the holidays. They credibly asserted that the respondent's entire non-national workforce on the site on which they worked, had their employment terminated on that day. Work on the site had not finished, and in fact the complainants and other workers returned to the same site a few days later as employees for another construction company. The Irish foreman, Mr D., was kept in the respondent's employment, as was the other Irish employee who was transferred to another site.
4.7. I find that these facts taken together, i.e. the fact that the respondent terminated his entire non-Irish workforce on site despite the fact that work was still ongoing, and the retention of his Irish workers, raises an inference that the complainants and their non-Irish fellow workers were dismissed on the ground of their nationality, and that this has not been rebutted. Accordingly, the complainants are entitled to succeed in their complaint of discriminatory dismissal.
4.8. The complainants also stated that the respondent's Polish employees succeeded in pressurising the respondent in making payments to them in lieu of redundancy payments, and that the complainants were not successful in this regard due to their lack of strength in numbers. However, the complainants accepted that they had no evidence for these contentions. Accordingly, I find that they do not have established a prima facie case of less favourable treatment with regard to possible redundancy payments.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that
(i) the respondent did not discriminate against the complainants in their terms and conditions of employment, including harassment, on the ground of race within the meaning of the Acts and
(ii) the respondent did discriminatorily dismiss the complainants on the ground of race contrary to S. 8(6) of the Acts.
5.2. In accordance with S. 82(1)(c) of the Acts, I hereby order that the respondent pay each complainant €2500 in compensation for the discriminatory treatment. These awards reflect the fact that while discriminatory dismissal is a serious matter, the complainants did not suffer actual material damage as they were able to secure alternative employment within a matter of days. The awards are not in the nature of pay and not subject to tax.
27 August 2010