Employment Equality Acts
EQUALITY OFFICER'S DECISION
Ivanauskas, Kalnikas, Gelžinis, Stupuras, Siaudvytis, Bundura, Nevmerzickij
(Represented by Richard Grogan and Associates)
- V -
First Bathroom Solutions
File references: EE/2006/475, EE/2007/055 and EE/2007/387
Date of issue: 30 August 2010
Employment Equality Acts 1998-2008 - Discriminatory Treatment - Conditions of employment - Discriminatory dismissal - Harassment - Victimisation - Race - Prima facie case
1.1. This dispute concerns a claim by Mr. Mindaugas Ivanauskas (hereafter "the complainant") that he was subjected to discriminatory treatment including dismissal contrary to the Employment Equality Acts by First Bathroom Solutions 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 dismissed without proper procedures or reason on 25 October 2006. Messrs Algis Kalnikas, Marius Gelžinis, Mindaugas Stupuras, Romualdas Siaudvytis, Rolandas Bundura, Nicolajus Nevmerzickij referred further claims that they were subjected to discriminatory treatment including dismissal as well as harassment and victimination contrary to the Acts by the respondent. These claims were also made on the race ground.
1.2. The first complainant referred his claim of discrimination to the Director of the Equality Tribunal on 8 December 2006 under the Employment Equality Acts. The subsequent 6 claims were lodged on 29 January 2007. Further 6 complaints of victimisation were lodged on 27 July 2007. On 30 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 18 June 2010.
2. Case for the complainants
2.1. The first named complainant, a Lithuanian national, worked with the respondent as a tiler between 24 July 2006 and October 2006. He submitted that he never received a contract of employment, no health and safety documentation, no P45 and no holiday pay. He also submitted that he was simply dismissed on 25 October 2006.
2.2. The second to the seventh named complainants, Lithuanian nationals, also submitted that they never received any contract of employment and health and safety documentation. They did not receive their holiday pay prior to going on holidays. The complainants submitted that they were not aware of the Irish taxation code and only realised, after receiving advise from their Solicitor, that there could be difficulties in relation to their tax and social welfare.
2.3. The second to the seventh complainants submitted that after returning from their Christmas holidays, they were offered varying amounts of work. Some submitted that they had a couple of days here and there while others said they waited in vain to be called for work. The complainants arrived en masse to the respondent office on 13 January 2007 after requesting a meeting with the respondent to discuss their holiday pay. All complainants submitted independently that the respondent was dismissive and would not allow the complainants to speak. The respondent told the complainants that if they wished to discuss their holiday pay they ought to come independently to see him but that he would not deal with such a large group (the delegation originally consisted of 8 people, two failed to attend the hearing). The fourth named complainant submitted that he informed the respondent that they had a number of issues they wanted to discuss with the respondent and that if he would not address them the complainants would not return to work on Monday. The complainants submitted that the respondent waived his hand and replied 'bye, bye'. Furthermore, the complainants submitted that the respondent told them, in essence, that they were Lithuanians in Ireland and that they ought to accept the way things are over in Ireland as the rules are Irish and Lithuanian rules are irrelevant. The complainants considered themselves as dismissed and left.
2.4. The complainants submitted that after they issued the respondent with notification of their intention to seek redress they respondent went to the An Garda Siochana and made a complaint about the complainants. As a result of this complaint, the complainants submitted that they were arrested and charged with a criminal offence. The complainants also submitted that the respondent has also threatened the complainants with other legal proceedings.
3. Case for the respondent
3.1. The respondent company did not attend the hearing. However, the respondent's then solicitors wrote to the Tribunal on 28 March 2007 in relation to the first named complainant. According to this, the complainant was taken on a probationary period for three months. He worked as a tiler and was paid €800.00 a week including expenses and subsistence a week. This means his gross hourly pay was €20.00 plus expenses and subsistence. A copy of the complainant's pay record was included which supports the above statement. A copy of the complainant's P45 was also forwarded as well as a copy of a registered letter, dated 7 February 2007, informing the complainant that he was owed holiday pay.
3.2. A similar reply was received in relation to the other complainants on 2 April 2007. There is an admission that the complainants did not receive contracts or particulars pursuant of the Employment (Information) Act. The pay is recorded as above, and copies of P45 and P60 were submitted. The respondent had submitted proof of a registered letter - dated 21 February - informing the complainants of their holiday pay has been submitted. It was submitted in the EE3 form in relation to some of the complainants that the complainants had taken their Christmas holidays on the 16th of December 2005 without proper notice. Accordingly, the respondent was not able to pay holiday pay in advance.
3.3. In relation to the discriminatory dismissal it was submitted that the complainant's had not been able to show that they had the required qualifications and that they terminated their position shortly after their 3 month trial period. The respondent submitted that the complainants walked off their job on Saturday 13 January 2007. In a letter dated 30 January 2007 the respondent's Solicitor stated:
"Our instructions are that Mr. Stupuras voluntarily left our clients employment on the 13 January 2007 and two hours later took company property. We understand our clients have written to your Mr. Stupuras seeking to retrieve company property but this has yet not been returned. In the circumstances the matter has been reported to the Gardai".
3.4. No reply has been made in relation to the harassment or victimisation claims. The holiday pay letters have the following paragraph:
"For clarification purposes, your alleged illegal conduct on January 13, 2007, which you were notified of in a letter, is being investigated by An Garda Siochana, and is a totally separate entity, and will not affect your legal entitlements."
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' (Mitchell v Southern Health Board  ELR 201) 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".
Claims of discriminatory treatment
4.2. The first named complainant has shown no evidence to support a claim of less favourable treatment on the race ground.
4.3. The second to seventh complainant have shown no evidence of less favourable treatment on the race ground. No case for positive action has been set out. As this Tribunal has reiterated a number of times, to demonstrate a mere omission in relation to a general employment right is not sufficient for a prima facie case to be established. The complainants must be able to show less favourable treatment in a comparator situation. No evidence of less favourable treatment in relation to their tax or social welfare was shown.
Claims of Harassment
4.4. No evidence to support an allegation of harassment has been provided. The submissions made no reference to any harassment. The complainants submitted that they were happy with their employer until some difficulties were reported in relation to how long some of the complainants could take for their Christmas holidays. In general, the claim of harassment appears to be linked with the comments made by respondent while surrounded by a large number of disgruntled employees looking for their holiday monies. While I note that the respondent made an inappropriate comment to the complainants, and I accept that a comment of such nature was made, I am not satisfied that it was sufficient to create an environment that can be described as harassment contrary to the Acts. While I appreciate that the complainants were anxious about the monies owed to them I cannot condone the manner in which the complainants approached the respondent.
Claims of Discriminatory Dismissal
4.4. In relation to the first named complainant. No evidence was provided to support an argument that he was dismissed.
4.5. In relation to the second to seventh complainant. The complainants corroborated in their evidence that they sought a meeting with the respondent and that during this meeting comments were made in relation to 'Irish rules'. It is clear that the complainants were told 'bye, bye' at the end of the meeting. It is impossible to determine whether such a 'bye bye' was in relation to the respondent's request and the complainants refusal to meet with him individually or in relation to the statement made by the complainants that the respondent engage with them immediately or else the complainants would not turn up for work the next Monday. I note that in the complainants written submission it is stated that some of the complainants were thinking about going home as they did not believe that there was enough work available with the respondent. I am satisfied, on the balance of probabilities, that the complainants went to meet with the respondent because they were concerned about the holiday pay owed to them and because they wanted guarantees about future work. The complainants clearly insisted on meeting with the respondent as a group and refused any other approach. It was clear that they wanted their holiday money then and there. From the complainants own evidence it is clear that such an approach resulted in a stand-off between the parties. There is no evidence to support an argument that what occurred was a discriminatory dismissal on the race ground.
Claims of victimisation
4.6. The definition of victimisation within the meaning of the Acts was clarified by the Labour Court in their Recommendation Watters Garden World Limited v. Iurie Panuta ADE/08/27. According to this, the proposition is that the concept of victimisation should be construed as widely and liberally as can fairly be done and should be given a sufficiently wide ambit so as to encompass all forms of detriment inflicted on a worker by his or her employer for having committed a protected act. It is also clear that the provision evinces a situation in which an employer reacts in a certain way for an employee having committed a protected act. I am satisfied that making a malicious allegation that the complainants had committed a criminal offence is adverse conduct victimisation within the meaning of the Acts.
4.7. I am satisfied on the complainants evidence that the complainants had approached their Solicitor after the meeting on the 13 January 2007. The Solicitor wrote to the respondent seeking a Notice of Particulars for the second to the seventh complainant on 24 January 2007. I am satisfied that a number of days after the Notice of Particulars was issued the complainants were charged with theft because they had allegedly stolen tools from the respondent. The complainants' Solicitor - who appeared before the District Court - submitted in evidence that the case was particularly unusual in that despite the matter going before the District Court, the Gardai withdrew from the proceedings. The complainants submitted that this was because the Gardai had no material evidence or backup documentation to support the allegation that the complainants had stolen the respondent's tools. The Tribunal has been presented with no alternative explanation.
4.8. It was pointed out that the report to the Gardai was made after the complainants submitted their Notice for Particulars. It was not made directly after the complainants alleged walk out on the 13 January 2007. The respondent thus waited over two weeks to report the alleged theft to the Gardai. This is, without an rebuttal, enough to rise an inference of discrimination. All of the complainants were questioned and charged by the Gardai and had to appear before the District Court.
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. Mr. Mindaugas Ivanauskas has not established a prima facie case of discrimination on the race ground. Furthermore, he has failed to establish a prima facie case of discriminatory dismissal on the race ground. Therefore, his claims fail.
5.3. Messrs Algis Kalnikas, Marius Gelžinis, Mindaugas Stupuras, Romualdas Siaudvytis, Rolandas Bundura, Nicolajus Nevmerzickij have failed to establish a prima facie case of discrimination in relation to their conditions of work on the race ground. Therefore, these claims fail.
5.4. Messrs Algis Kalnikas, Marius Gelžinis, Mindaugas Stupuras, Romualdas Siaudvytis, Rolandas Bundura, Nicolajus Nevmerzickij have failed to establish a prima facie case of harassment on the race ground. Therefore, these claims fail.
5.5. Messrs Algis Kalnikas, Marius Gelžinis, Mindaugas Stupuras, Romualdas Siaudvytis, Rolandas Bundura, Nicolajus Nevmerzickij have failed to establish a prima facie case of discriminatory dismissal on the race ground. Therefore, these claims fail.
5.6. Messrs Algis Kalnikas, Marius Gelžinis, Mindaugas Stupuras, Romualdas Siaudvytis, Rolandas Bundura, Nicolajus Nevmerzickij have established a prima facie case of victimisation contrary to the Acts. This has not been rebutted. Therefore, in accordance with section 82(4), I order the respondent to pay the complainants €16.000 each in compensation for the effects of the victimisation.
30 August 2010