EQUALITY OFFICER'S DECISION NO: DEC-E/2010/239
(REPRESENTED BY RICHARD GROGAN AND ASSOCIATES - SOLICITORS)
File No: EE/2008/387
Date of issue,7/12/2010
Headnotes: Employment Equality Acts, 1998 & 2007 sections 6 and 77 - discriminatory dismissal - discriminatory treatment - race ground
This dispute involves a claim by Mr.Rimantas Stupuras , who is a Lithuanian national, that he was (i) dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and (ii) discriminated against on the grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004.
2.1 The complainant was employed by the respondent as a General Operative between December 2004 and 4 January 2008. He contends that during his period of employment he was (i) dismissed by the respondent in circumstances amounting to discrimination on grounds of race and that he was (ii) discriminated against on the grounds of race in not being provided with the training necessary to do his job, not being provided with a contract of employment, not being provided with health and safety training and not being paid in accordance with the Registered Employment Agreement for the Construction Industry.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 16 June 2008. In accordance with her powers under the Acts the Director delegated the complaint to the undersigned - Brian O'Byrne, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 15 October, 2010, the date the complaint was delegated to me. Submissions were received from both parties and a Hearing of the complaint took place on 20 October 2010.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is a Lithuanian national, commenced employment as a labourer in the respondent's steel works in December 2004. He says that he was the only labourer employed and his job was to support and assist the team of about 10 welders working for the respondent. He said that all the welders employed were foreign nationals except for two Irish nationals.
He claims that he suffered discrimination at the hands of his employer. He said that, because he was not a welder, he was treated as a " second class citizen" compared to other workers. He also claimed that he received no health and safety training but that welders did, although he did say that he held a Safe Pass cert himself. He also claimed that he was paid less than all the other workers there.
In addition, he claimed that he was asked to work a lot of overtime by his employer - sometimes up to 60/70 hours per week. He had no objection to it at the time as he was glad of the overtime money and was not aware at the time that it was against the law to work over 48 hours per week on average.
There was a fall off in work from October 2007 and he was laid off in January 2008. He was not paid redundancy until he was awarded it by the EAT some time later. He said that some of the Lithuanian welders were kept on for another 12 months.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondents state that the complainant was employed as a General Operative from December 2004 and confirmed that his role was to help the welders to do their job. He did not require any specific training and was taught his role "on the job" as he already held a Safe Pass from his previous job. He did not need any specific health and safety training compared to welders as he was simply doing general labouring work. While the complainant's English was poor, this did not create a problem as his instructions were always given to him by the Lithuanian foreman.
He was the only labourer employed. All the welders employed were Lithuanian. The only Irish workers that ever worked in the factory were the respondent's son and grandson who were welders and were engaged as sub-contractors and not employees. In 2008 the business went down-hill because of the economy, resulting in the complainant and most of the welders being laid off in 2008.
The respondent denies any form of discrimination against the complainant. On the contrary he says that he treated him very well. He said that the complainant was often in his house doing household jobs for extra money. He said that he got on very well with the complainant, that he often had dinner with his family and even that he gave the complainant an old van for himself when he was leaving (which the complainant acknowledged at the Hearing). He said that he had always treated the complainant with respect and was very disappointed to find that complaints had been lodged against him since the complainant was laid off.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the complainant was (i) dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and (ii) discriminated against on the grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004.
In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence of the parties at the Hearing.
5.2 Section 6(1) of the Employment Equality Acts, 1998 and 2004 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) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins... "
It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because he is Lithuanian.
5.3 Section 85A of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the Complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of him his case cannot succeed.
5.4 This complaint centres around that complainant's assertion that he was discriminated against because he was Lithuanian in the treatment he received while in the respondent's employment and in the manner in which he was dismissed. In deliberating on the evidence before me, I have drawn the following conclusions:
- that the complainant has not identified an acceptable comparator to support his claim of less favourable treatment (of his own admission he was the only employee who was not a welder.)
- that the only employees who were let go were Lithuanian nationals (I am satisfied from the evidence before me that the two Irish workers identified were sub-contractors and not employees).
- that the evidence before me supports the claim that the complainant was let go because of a fall off in his work as a labourer and not because of his nationality.
Accordingly, having considered the totality of the evidence before me, I find that I have not been presented with sufficient evidence to support the claim that the complainant suffered less favourable treatment in the course of his employment or with regard to his dismissal on account of his Lithuanian nationality.
6 DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find -
(1) that the complainant has failed to establish a prima facie case that he was dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004.
(2) that that the complainant has failed to establish a prima facie case of discriminatory treatment on the race ground in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004.
Consequently, I find that the complaint fails and I find in favour of the respondent in the matter.
7 December 2010