THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2010-158
(represented by Richard Grogan
& Associates, Solicitors)
Igor Kurakin Transport Limited
File References: EE/2008/114
Date of Issue: 30 August 2010
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - race - conditions of employment - training - discriminatory dismissal
This dispute involves a claim by Mr. Jarasuis (hereafter "the complainant"), who is a Lithuanian national, that he was (i) discriminated against by Igor Kurakin Transport 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 Mr. Jarasuis referred a complaint under the Employment Equality Acts, 1998 to 2008 to the Director of the Equality Tribunal on 25 February 2008. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the cases on 3rd August 2010 to me, Elaine Cassidy, 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. This is the date I commenced my investigation. A written submission was received from the complainant in October 2008. No submission was received from the respondent. As required by section 79(1) of the Acts and as part of my investigation, I held a hearing of this complaint on 18th August 2010; The complainant attended the hearing, but the respondent did not.
3. Summary of the Complainant's case
Discriminatory treatment in relation to Conditions of Employment
3.1 The complainant, Mr. Jarasuis, who is a Lithuanian national, was employed by the respondent as a cement truck driver from 10th January 2007 until 30th January 2008. The complainant stated that he did not receive a written contract or terms of employment in his own language and he contended that this constitutes unlawful discrimination of him on the grounds of race contrary to the Acts. In the course of the Hearing the complainant stated he did not know if the other 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. The complainant submitted 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 written contract of employment in a language which they understand.
3.2 The complainant submitted that he was obliged to work long hours while in the employment of the respondent and he submitted three months of payslips which showed that he worked on average just over 60 hours per week. The complainant claims that the respondent specifically employed Lithuanians because they would work long hours.
3.3 The complainant claims that he was constructively dismissed from his
employment, in that he was not paid for the final 6 weeks he worked for the respondent. When he complained about not being paid, the respondent asked him to work for another month and then he would pay him. The complainant heard from his colleagues that this was a lie and he would probably not get paid. Therefore he decided not to continue working for the respondent. The complainant submitted that there were no Irish nationals working for the respondent and therefore he seeks to rely on a notional Irish comparator. The complainant submits that the respondent would not have treated a notional Irish comparator in such a way
3.4 The complainants also referred to a number of cases in support of his case, including Campbell Catering Ltd. -v- Rasaq (EED048), 58 Complainants -v- Goode Concrete (DEC-E2008-020.
4. Summary of the Respondent's case
4.1 The respondent did not make a written submission or appear at the Hearing.
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 At the outset of the hearing of the complaint, the complainant's representative withdrew the complaint in relation to training. Accordingly, the issues for decision in this case is whether or not the respondent discriminated against and discriminatorily dismissed 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.
Conditions of Employment
5.4 Firstly, I will consider the issue that has been raised by the complainant in relation to the respondent's alleged failure to provide him a written contract of employment in a language he could understand which he contends constitutes unlawful discrimination on the grounds of race contrary to the Acts. The complainant was provided with a contract of employment in English, several months after he started working for the respondent. The complainant said that he could not understand the contract. During the hearing, he was asked whether he ever requested his boss to explain it to him in his native language, but he said there was no point because his boss was always too busy.
5.5 The complainant has submitted that the Decision of this Tribunal in 58 Complainants -v- Goode Concrete places an obligation on an employer to furnish non-Irish employees with a contract of employment in a language which they understand. I am of the view that this is an incorrect interpretation of that Decision. In that case the Equality Officer found that in circumstances where an employer furnishes its employees with contracts of employment/health and safety statements it constitutes less favourable treatment of non-Irish employees if the respondent provides them with a contract of employment/health and safety statement in English and does not assist them to understand it in their own language. I am of the view that it would be reasonable to expect the employee to make his employer aware that he did not understand it. In this case the complainant, all of the other employees and the respondent manager/owner spoke the same languages (Russian/Lithuanian), but the complainant never told him that he did not understand it, nor asked him to explain the contract. As this was clearly a "standard form" contract and the complainant himself did not make any effort to understand it, I cannot accept that he was treated in a less favourable way and I find that he has suffered no disadvantage as a result of the language.
5.6 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."
It appears to me that there are many employers who do not comply with all of the appropriate employment regulations; in this case, the complainant has shown no evidence whatsoever that he, as a foreign national, was treated less favourably with respect to the provision of Health and Safety documentation, than a notional Irish comparator would have been. The same holds true for the working hours; while 60 hours is undoubtedly a long working week, the complainant's representative has offered no evidence that this is less favourable treatment than a hypothetical Irish comparator would receive in similar circumstances.
5.7 The next element of the complainant's claim concerns the allegations that he was subjected to a discriminatory dismissal by the respondent on the grounds of his race. The complainant claims that he was constructively dismissed and he submitted the Tribunal should consider the circumstances surrounding his dismissal based on how a hypothetical Irish employee would have been treated by the respondent in the circumstances. In considering this issue, I note that section 6 of the Acts provides that discrimination can arise in circumstances where one person would be treated less favourably than another person on one of the grounds - i.e. the concept of a hypothetical or notional comparator. In this case, the respondent employed only Lithuanian workers, so there is no actual comparator.
5.8 The complainant began working for the respondent in early January 2007 and finished in late Jaunary 2008. Near the end of the first year at Christmas 2007, he submitted that he was only given half his pay for that month, although his payslip showed the full amount. In January he did not receive any pay at all for the month. He raised the matter with his employer, who promised him that if he worked another month, he would pay him in full. The complainant said that he heard from his colleagues that this was a lie and that he would never be paid. Therefore he decided to leave his employment. The complainant claimed that another colleague had quit just before him for the same reason and a few others left shortly afterwards. He says that the company went out of business a few months later. The complainant says that this is constructive dismissal because his employer had breached an essential term of his contract. I accept that the complainant was entitled to consider himself constructively dismissed, in these particular circumstances where he not been paid for 6 weeks. However the issue for consideration here is whether or not it was dismissal on the grounds of race. The complainant submits that Lithuanian employees were hired specifically because they would be prepared to put up with this sort of bad treatment, in comparison to a hypothetical Irish comparator who would not. The evidence before me however suggests otherwise. The complainant, who is Lithuanian, was paid on a monthly basis for the first 11 months that he worked for the respondent. It is unclear what happened in December 2007, but as soon as the complainant realised that the company was going downhill and he was not going to be paid for his work in January 2008, he left his employment. This appears to have been the case for his Lithuanian co-workers also. The complainant presented as a credible and direct witness and I accept all of his evidence relating to his dismissal. However given that the other employees were also leaving, and that the company was to close shortly afterwards, I find it difficult to accept that any employee, Irish or otherwise would have been treated more favourably in the circumstances. I have no doubt that the complainant was treated very badly by his employer in not being paid for his last 6 weeks, but I am of the view that his grievances should properly be taken under the Payment of Wages Act and/or the Unfair Dismissals Act.
5.9 With respect to the issue of unpaid wages, I would distinguish this case from the recent equality officer decision DEC-E2010-151 Guze v D&D Performance Roofing, where the equality officer in that case found that there was racial discrimination in a situation where the complainant did not get paid for a number of weeks. In that case, there was an inference, (which was not rebutted), that the respondent had deliberately misled a foreign national, from almost the beginning of his employment, by continuously telling him that he would be paid for his work. That complainant, as the only employee of the respondent, continued to work in good faith, repeatedly being told he would be paid. The Equality Officer accepted that in the specific circumstances of that case, there was sufficient evidence that a notional Irish comparator would not have been so treated. In the case before me, I find that there is insufficient evidence to come to the same conclusion and I cannot conclude that a hypothetical comparator would have been treated more favourably.
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:
(i) the respondent did not discriminate against the complainants on the race ground pursuant to section 6(2) of the Acts in terms of his conditions of employment and contrary to section 8(1) of the Acts;
(ii) the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2)(h) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts.
Therefore the complainant's case fails.
30 August, 2010