Employment Equality Acts
EQUALITY OFFICER'S DECISION
(Represented by Richard Grogan and Associates)
- V -
Moathland Enterprises Ltd.
File references: EE/2007/584
Date of issue: 30 August 2010
Employment equality Acts 1998-2008 - Discriminatory Treatment - Discriminatory dismissal - Harassment - Race - Condition of employment - Prima facie case
1.1. The dispute concerns a claim by Mr. Rimas Slesoriunas (hereafter "the complainant") that he was subjected to discriminatory treatment and harassment contrary to the Employment Equality Acts by Moathland Enterprises Ltd (hereafter "the respondent") on the grounds of his race. The complainant maintains that the respondent discriminated against him in relation to his conditions of work and that he was harassed contrary to the Acts. This alleged discrimination and harassment took place between October 2005 and 18 August 2007.
1.2. The complainant referred his claim of discrimination and harassment to the Director of the Equality Tribunal on 12 November 2007 under the Employment Equality Acts. This claim was made on the race ground. On 27 November 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated these cases to Tara Coogan- 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 which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 4 June 2010.
2. Case for the complainant
2.1. The complainant is a Lithuanian national who worked with the respondent from October 2005 to 18 August 2007. The complainant submitted that he received no contract of employment, health and safety training or documentation. He submitted that he was requested to work excessive hours without proper breaks, rest or holidays. He was also requested to work abroad at times and received nothing in writing in relation to same. Furthermore, he did not receive all of his pay slips. It was submitted that the respondent did not reply to the EE2 form or to the notice of particulars.
2.2. The complainant submitted that the took time to attend his dentist in Lithuania at the end of August 2007. While in Lithuania he realised that he required more time to complete his dental treatment. The complainant submitted that when he contacted his manager about the fact that he needed to extend his leave he was told that the company could get other people to replace him. It was submitted that this went towards an atmosphere of disposable foreign staff. The complainant submitted that he was dismissed without proper reason or procedure. On his return he requested his P45. It was submitted that the complainant never received this.
2.3. The complainant submitted that the work environment was not friendly. He stated that his Irish colleagues would make fun of his English. At times when he would not understand the instructions given to him, he would ask the person to repeat what they had just said. The response would be: "go back to Lithuania" and the instructions would not be repeated. The complainant submitted that on such occasions he would then have to go to another non-national employee to ask for clarifications. The complainant submitted that this was humiliating.
2.4. The complainant submitted that he was the only Lithuanian (for most of the time) working with the respondent. Majority of the workers were Irish or Polish. He submitted that he was picked on more than the Polish workers because they had more safety in numbers. In relation to his Irish colleagues, he stated that would be very friendly when, for example, giving the complainant a lift to and from work. This would change when other people were around.
2.5. The complainant submitted that the reason why he did not make any complaints to his management was because the manager made jokes too. The complainant submitted that at times his tools would be thrown around and he would be told to pick up his tools and people would laugh. More generally people would mock his accented English and lack of fluency. The complainant submitted that he stayed with the respondent company because his English was poor and he was afraid that he would not get alternative work. The complainant submitted that often he would just want to pack up and go home because he felt depressed.
2.6. The complainant submitted that he did not believe he or the Polish workers were fairly treated by their employer.
3. Case for the respondent
3.1. The respondent failed to attend the hearing. The respondent solicitor contacted the Tribunal to inform us that they were no longer on record for the respondent. Every reasonable effort has been made to contact the respondent.
3.2. I note that in a written response to the complainant's representative the respondent stated that it found the claims made by the complainant to be repulsive. It was stated that the complainant was one of the first employees in the company, that he was paid more than other workers, and that he was given a lift to and from work every day.
3.3. The respondent submitted that the complainant requested a seven day holiday in early August. It was submitted that this was additional leave as the complainant had already almost used up his annual leave entitlements on previous trips. A few days later, the complainant rang the respondent to request an additional week. The respondent submitted that he then enquired whether the complainant would return by 3 September 2007 and was assured that the complainant would. The respondent then received yet another call from the complainant who assured the respondent that he would return to work on 10 September 2007. The next day the complainant rang to say he would not return until 18 September 2007. The respondent submitted that the told the complainant that he would have his job if he returned on 10 September as agreed. The respondent submitted that the complainant did not return and that when the respondent heard from him again on 19 September he was told he was no longer required. It was submitted that this was the second time that year that the complainant had failed to return from his holidays on time. It was submitted that the complainant would still be employed by the respondent if he had not taken over 9 weeks unauthorised holidays in 2007.
4. Conclusion of the equality officer
4.1. 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 Employment Equality Acts 1998 to 2008. 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. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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".
4.2. In relation to the conditions of employment. No comparator was presented for the purposes of the Acts. While this Tribunal accepts the importance of all employers complying with their duties in relation to all of their employees' employment rights, it cannot be accepted, without evidence to support such a claim, that a foreign worker is in a particularly vulnerable position and thus that positive action is required.
4.3. In relation to the discriminatory dismissal. No evidence of a discriminatory dismissal was shown. The complainant was unable to show any medical documentation to support his claim that he was delayed on his return or any other documentary evidence to support his claim. While I accept that the employment relationship came to an end and that it appears that no proper procedures were applied by the respondent, I have not been presented with real evidence to support an argument that an Irish comparator would have been treated more favourably in similar circumstances.
4.4. In relation to the harassment claim. I find the complainant's oral evidence to be compelling and accept, without any contradictory evidence, that the complainant worked in an environment where it was acceptable to 'joke' about a foreign nationals ability to speak a second language. I note that the complainant recognised that this was 'slagging' but that he was as the only Lithuanian for most of the time working there, he felt that he was not as protected as some of the other foreign nationals who had 'safety in numbers'. I also accept having tested the evidence, without any rebuttal to the contrary, that the respondent took no positive measures to ensure better integration of its workers and allowed the complainant to feel isolated. While I note that the Acts provide for a defence for an employer who can show that it took reasonable steps to prevent such a situation from emerging, it is clear that in such a employment culture, where the management participated in the harassment, a complainant would find it difficult to ask an employer to address the issue.
5.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant has been unable to establish a prima facie case of discrimination and discriminatory dismissal. These claims fail.
5.3. I find that the respondent did harass the complainant on the race ground. Therefore, in accordance with section 82(4)(b), I order the respondent to pay the complainant €2500 in compensation for the effects of the harassment.
30 August 2010