Employment Equality Acts
EQUALITY OFFICER'S DECISION
(Represented by Richard Grogan and Associates)
- V -
Clean Build Limited.
File references: EE/2008/085
Date of issue: 27 August 2010
Employment equality Acts 1998-2008 - Discriminatory Treatment - Discriminatory dismissal - Race - Condition of employment - no Prima facie case
1.1. The dispute concerns a claim by Mr. Galiauskas (hereafter "the complainant") that that he was (i) discriminated against by Clean Build Ltd (hereafter "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 referred his claim of discrimination and discriminatory dismissal to the Director of the Equality Tribunal on 8 February 2008. On 3 August 2010, in accordance with his powers under section 75 of the Acts, the Director delegated these cases to me Elaine Cassidy- 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. this is the date my investigation commenced. A written submission was received from the complainant in October 2008. No written submission was received from the respondent. As required by Section 79(1) and as part of my investigation, I held a hearing on 18 August 2010. The hearing was attended by the complainant and his representative, but not by the respondent.
3. Summary of the Complainant's case
Discriminatory treatment in relation to Conditions of Employment
3.1. The complainant is a Lithuanian national who worked as a skip driver with the respondent from June to August 2007. He got the job when a friend of his, who was working for the respondent, decided to quit one day. The complainant presented himself instead and he started work that day. The complainant submitted that he received no contract of employment, health and safety training or documentation. When he started he was given some basic training by one of his follow workers. He submitted that he was always under pressure at work and he did not get proper breaks. Initially when he started he had a nice boss, but the business changed hands and his new boss was difficult and picked fault with him. There were 5 other Lithuanians employed there and 1 Chinese person. As there were no Irish people working in the company other than his boss, the complainant seeks to rely on a notional comparator and submits that Irish employees would not have been subjected to this sort of work environment.
3.2. When the complainant began working for the respondent, his main duty was to drive the skip truck, usually to one specific waste facility in Dublin, although there were several other facilities where he might also be sent. After about a month, he found he was being sent to a facility near the city centre of Dublin and he did not like this particular route. He believes he was sent there because his employer did not like him. Later when there was less work to do driving the truck, he was put on waste selection duties instead. He did this for about a month, but he not like the work. Then he was informed by his employer that they would have no work for him the following week, but they would be in touch and they would advise him when more work became available. The complainant continued to visit the site to check in for the next few weeks, but there was no work for him. After about a month he gave up and got another job. The complainant contends that he was essentially constructively dismissed, on the basis that firstly they gave him a driving route which he did not like, then they put him on waste selection and finally they did not give him any more hours.
4. Summary of the Respondent's case
4.1. The respondent did not attend the hearing and did not make a written submission to the Tribunal.
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. If he 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 to 2008 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 2 persons, ... that they are of different race, colour, nationality or national origins".
5.3 The issues for decision in this case is whether or not the respondent discriminated against and harassed the complainant on the ground of his race contrary to the Employment Equality Acts. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.4 With respect to the Health and Safety information and the long working hours, the complainant has stated that he has no evidence, but he believes a H&S statement was not provided to any employee and seeks therefore to rely on the issue of a notional comparator, as all the employees were foreign nationals. 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 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."
In relation to the conditions of employment, the complainant has claimed he did not receive a contract of employment or H&S documentation and that he was always under pressure at work. As there were no Irish workers employed there, the complainant seeks to rely on a hypothetical comparator, on the basis that Irish employees would not accept such conditions. While I accept the importance of all employers complying with their duties in relation to their employees' rights, it cannot be accepted, without any evidence whatsoever to support such a claim, that a foreign worker is in a particularly vulnerable position with respect to the specific conditions mentioned above.
5.5 In relation to the discriminatory dismissal, the complainant contends that he was essentially constructively dismissed, because they gave him the bad driving routes, then they moved him to waste selection and finally they had no more work for him. He also suggested that the reason they let him go was because the new management did not like him personally. During the hearing however, the complainant himself agreed that the reason they let him go, was because there wasn't enough work to do. He said that he was the last person to join the company and therefore the first person they let go. His fellow Lithuanians, who were longer in their positions, were kept on. Therefore it would appear from the complainant's own evidence that the respondents kept him in employment as long as possible by giving him alternative work, but let him go in the end when there was no work left to do. I accept the complainant's contention that the manner of his dismissal was very casual; however I have not been presented with any evidence to support an argument that an Irish comparator would have been treated more favourably in similar circumstances.
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts: I find that the complainant has been unable to establish a prima facie case of discrimination and discriminatory dismissal. These claims fail.
27 August 2010