EQUALITY OFFICER'S DECISION NO: DEC-E/2010/256
MR. ALEKSANDRS LAVRINOVICS
(REPRESENTED BY RICHARD GROGAN AND ASSOCIATES-SOLICITORS)
MR. BRYAN MORTON
FILE NO: EE/2008/289
Date of issue: 20th DECEMBER 2010
1.1 This dispute involves a claim by Mr. Aleksandrs Lavrinovics that he was discriminated against by Mr. Bryan Morton on grounds of race, in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts, in relation to conditions of employment. It is also submitted that the complainant was subjected to discriminatory treatment in relation to pay. It is further submitted that the complainant was dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2)(h) and contrary to section 8 of those Acts.
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on the 6th of May 2008 alleging that the respondent had discriminated against him on grounds of race when he was dismissed from his job without any reason or proper procedure. The complainant further submitted that he did not receive any proper contract of employment, Health & Safety documentation or training.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 2nd of June, 2010 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. A written submission was received from the complainant but none was received from the respondent. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to a Hearing on the 5th of November, 2010.
3. Summary of complainant's case
3.1 The complainant states that he is a Latvian national and submits that he was employed, by the respondent, as a block layer from 21.06.05 to 13.04.07 (22 months) and again from 24.08.07 to 07.03.08 (7 months). It is further submitted that the complainant was working on a part time basis from 21.12.07.
3.2 The complainant states that he did not receive any contract of employment, Health & Safety documentation or training. It is also submitted that the respondent did not pay the complainant the correct rate of pay. The complainant submitted in advance of the hearing that he was dismissed on 21st of December 2007 without any proper procedure. However upon questioning the complainant indicated that he worked part time from December 07 and was dismissed in March 2008.
On the day of the hearing the representative for the complainant reduced the scope of the claim as outlined in the EE1 form and indicated that he was no longer pursuing a claim in relation to harassment.
3.3 The complainant submitted that he must establish a prima facie case and cited the Labour Court case of Southern Health Board v Mitchell in support of this contention.
3.4 The complainant referred to the Equality Tribunal case 58 named Complainants v Goode Concrete Ltd. in relation to dismissal, contract of employment and Health & Safety. The complainant seeks to rely on the Campbell Catering case in his contention that there is a requirement that the respondents take special measures to advise the complainant as a foreign national of his rights.
4. Summary of respondent's case
4.1 The respondent submits that the complainant was employed by them from 21.06.05 to 13.04.07 (22 months) and again from 24.08.07 to 07.03.08 (7 months). It is agreed that the complainant was working on a part time basis from 21.12.07.
4.2 The respondent accepts that neither the complainant nor any other employees (2 Irish and 2 Latvian) were furnished with a contract of employment or Health and Safety documentation.
4.3 The respondent submits that the complainant worked part time from 21 December 2007 as there was no longer much work available, he also submits that, his other four employees were let go at various times during 2007, before the complainant, again due to lack of work. He submits that the complainant was the last employee to work for him. It is submitted that the employees dismissed at the time were of varying nationalities, Irish and Latvian.
5. Conclusions of the Equality Officer
5.1 The issues for decision by me are now whether or not Bryan Morton (i) discriminated against the complainant on grounds of race, in terms of section 6(2)(h) of the Employment Equality Acts, 1998 and 2004 in relation to conditions of employment and pay and (ii) dismissed the complainant in circumstances amounting to discrimination on grounds of race in terms of section 6(2)(h) and contrary to section 8 of those Acts.
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 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)(h) 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... "
Thus the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because his is Latvian. 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 Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:
Section 85A of the Act provided 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. While those facts will vary from case to 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 establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.
5.3 Conditions of employment
5.3.1 On the day of the hearing the complainant indicated that he did not receive a contract and could not say whether other employees (2 Irish and 2 Latvian) had received contracts. The respondent, at the hearing submitted that no employee had received a contract. The complainant, at the hearing indicated that he did not receive a Health and Safety Statement and again, could not say whether other employees had received same. The respondent, at the hearing confirmed that no employee had received Health and Safety documentation. Thus it would appear, from the evidence given, that the failure to provide the complainant with a contract or a Health and Safety Statement does not amount to less favourable treatment and was not influenced by the complainants nationality. Accordingly, based on the totality if the evidence given, I do not find that the complainant has established a prima facie case of less favourable treatment on the ground of race in relation to these matters.
5.3.2 While it was acknowledged by the complainants representative that this was not a valid equal pay claim as no comparator had been named, it was argued, on behalf of the complainant, that, he was paid at a different rate of pay to Irish employees and that this was due to his nationality. I should point out that Section 2(4) of the Acts specifically precludes me from considering remuneration under "conditions of employment". The Acts provide that claims in relation to remuneration should be pursued under Sections 7, 19 (in relation to gender) and 29 (in relation to race and other grounds). These sections provide the statutory basis for complaints in relation to remuneration including the requirement to establish "like work" between a complainant and comparator. The Acts therefore preclude me from considering a complaint in relation to pay other than under these sections. For these reasons , I do not find that the complainant has established a prima facie case of less favourable treatment on the ground of race in relation to this matter.
5.4 Discriminatory Dismissal
5.4.1 Turning to the complaint of discriminatory dismissal. At the hearing, the complainant outlined his version of events surrounding his dismissal. He indicated that, he went to work one day and asked the respondent for money for petrol and for money which he was owed in wages. The complainant submits that, the respondent told him he had no money and said that he would throw him out. The complainant was not sure of the date of this disagreement but said that, it was the last time he worked for the respondent. The respondents version of events was that the complainant showed up for work and as there was no work locally was told by the respondent that he would have to travel to Rooskey, Co. Roscommon, as that is where the respondent was now working. The respondent advised the hearing that the complainant at this point refused to travel to Rooskey, Co. Roscommon, as he said it was too far and stated that he could get work locally instead. The respondent said that this was the last time he saw the complainant. The respondent indicated that, prior to this, the complainant had only been working the odd day here and there as and when work was available. He also indicated that he had previously (earlier in 2007) advised all of his employees to try and find other work, if they could, as he no longer had any full time work for any of them. Neither the complainant or the respondent was very sure of the date on which this disagreement took place but both indicated that this was the last time the complainant worked for the respondent. The complainant did not raise any objection to the respondents version of events and did not dispute it. Both versions of events indicate that the complainant was at this point no longer working full time for the respondent and it would appear that the lack of work, was the reason for his only being called to work the odd day here and there. As the respondent indicated, that, the complainant was the last employee to continue to work for him, I am satisfied that, his termination of employment was not related to his nationality as both Irish and Latvian employees were let go before him.
5.4.2 Having regard to the totality of the evidence adduced in the present case, I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that he was treated less favourably than an Irish person or a person of a different nationality was treated in similar circumstances, in relation to his dismissal. I am satisfied that the reasons put forward by the respondent for the dismissal of the complainant were in no way connected to his nationality and that Irish employees and employees of a different nationality were dismissed in similar circumstances. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to his dismissal.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -
(i) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against him on the ground of race pursuant to section 6(2) of the Acts in terms of his conditions of employment contrary to section 8 of the Acts
(ii) the complainant has failed to establish the facts from which it may be presumed that he was dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) and contrary to section 8 of those Acts.
20 December, 2010