EQUALITY OFFICER'S DECISION NO: DEC-E/2010/141
(REPRESENTED BY RICHARD GROGAN AND ASSOCIATES - SOLICITORS)
GAMA CONSTRUCTION IRELAND LTD
File No: EE/2006/492
Date of issue, 21/7/2010
Headnotes: Employment Equality Acts, 1998&2007 sections 6, 14A and 77 - discriminatory dismissal- harassment - race -prima facie case
This dispute involves a claim by Mr. Aleksejs Cernovs , who is a Latvian 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 contrary to section 77 of those Acts, (ii) harassed by the respondent on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 14A of those Acts.
2.1 The complainant was employed by the respondent as a Steel Fixer and subsequently as a Flag Man between 25 July 2005 and 27 October 2006. He contends that during his period of employment he was (i) dismissed by the respondent in circumstances amounting to discrimination on grounds of race (Latvian nationality) contrary to the Acts. He also contends that he was (ii) harassed by the respondent on the basis of his Latvian nationality contrary to the Employment Equality Acts, 1998 and 2004.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 21 December 2006. 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 12 May, 2009, the date the complaint was delegated to me. Submissions were received from both parties and a Hearing of the complaint took place on 17 February 2010. A number of points arose at the Hearing which required clarification and gave rise to further correspondence between the Equality Officer and the parties. This process concluded on 17 May 2010.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is a Latvian national, commenced employment as a Steel Fixer with the respondent on 25 July 2005. He said that he was an experienced Steel Fixer having worked on a number of such projects previously in Latvia. He states that the entire period of his employment was spent on the Ennis Bypass project site in Clare but that in January 2006 he was transferred to Flag Man duties resulting in him having to take a reduction in pay.
While employed as Steel Fixer he accepts that he received two written warnings in November 2005. The first occurred as a result of absenteeism. The second was the result of a steel-work collapse on site. He said that, while the collapse was "everyone's fault" that he was blamed and had to sign a warning notice.
3.2 The complainant also contends that he suffered harassment on account of his race at the hands of his Turkish site manager when he worked as a Steel Fixer. He says that the Turkish manager constantly used to abuse the Latvian nationals but not the Polish workers who worked under him.
In January 2006, he and some other Latvian colleagues were taken off the Steel Fixer job and employed as Flag Men on the roads around the project site. He felt that the Turkish supervisor chose the Latvian employees rather than the Poles because of his dislike for them. He said that the Flag Man duties were not complicated and simply involved stopping traffic to allow construction vehicles to cross the road. On a few occasions he had needed time off work but says that he had always told his foreman in advance.
In October 2006, he received a further warning notice over not performing his Flag Man duties properly. He did not sign that warning notice. On 26 October 2006, he was called before a disciplinary committee where it was alleged that he had not being performing his duties at the road crossing assigned to him, in accordance with the training he had received. He said that the company did not provide an interpreter for him at the disciplinary hearing and that he could not fully understand what was going on. The next day he was dismissed from his employment which he believes was on account of his race.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondents state that the complainant was employed as a Steel Fixer from October 2005 until August 2006 when that element of the Ennis Bypass project was nearing completion. He was then given the option of working as a Flag Man or finishing employment with them. They say that he decided to take the new job despite knowing that it would involve a reduction in pay. They claim that his payslips clearly indicate that he changed duties at the end of August 2006 and they produced a "transfer of duties" form signed by the complainant on 14 August 2006 supporting this.
The complainant received all the relevant training required including on health and safety issues. The training was provided through interpreters and all employees were required to sign a form confirming that they understood what was involved. The complainant was also facilitated at the training by a Latvian co-worker who had very good English.
4.2 During the course of his work as a Steel Fixer, he received two warning notices which he acknowledged and signed. The most serious involved the cutting of steel ties that led to the collapse of steel-works. The complainant was identified as being responsible by his foreman. If the complainant had been unhappy with the warning, he had the option of availing of the company's grievance procedure, which his union would have been aware of, but no complaint was made.
In October 2006, the company received a number of complaints from the local Council and the public that the complainant's road crossing was unmanned on several occasions. The Site manager said that he had investigated these incidents and had found that the complainant had gone missing on a few occasions despite having been told that any requests for time off must go through the Site Foreman and no one else. The complainant was first given a written warning over this and then brought before a disciplinary meeting on 26 October 2006. The respondents state that they are happy that the complainant fully understood the reason behind the meeting and that the minutes of the meeting show that his Latvian colleague was present to assist him with any interpretation problems. They also maintain that the minutes clearly show that a full and frank hearing took place with the complainant clearly being able to fully voice his opinions as to the allegations made against him with regard to the non-performance of his Flag Man duties.
Following the disciplinary meeting, it was decided to let the complainant go for disciplinary reasons. He was given his notice on 27 October 2006 and dismissed with effect from 11 November 2006.
4.3 The respondents state that they were completely unaware of the allegation of harassment until the day of the Hearing. They said that the complainant would have been aware of their grievance procedures from the training he received but that neither he nor his union had ever raised the allegation of harassment.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) dismissed the complainant in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts and (ii) harassed the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 14A 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 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 Latvian.
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 The first issue raised by the complainant relates to the circumstances surrounding his dismissal from the company. The evidence before me indicates that the complainant had received previous warnings regarding his behaviour while employed as a Steel Fixer prior to the disciplinary Hearing in October 2006. The evidence before me also indicates that the complainant was absent on occasion from his Flag Man duties without appropriate authority. On the basis of the foregoing, I find that I am satisfied that the respondents had sufficient justification for calling him before the disciplinary Hearing which lead to his subsequent dismissal. I am also satisfied from the evidence before me that adequate interpretation was in place at the Hearing to enable the complainant to respond to the allegations made against him.
Accordingly, I am not satisfied that the complainant has adduced evidence from which a prima facie case of discrimination could be inferred in relation to his dismissal from the company. I find therefore the complainant has failed to establish facts from which it could be inferred that the termination of his employment was influenced in any way by his nationality and this element of his complaint must fail.
5.5 The next element of the complainant's claim concerns the alleged harassment of Latvian workers by a Turkish foreman which the complainant claims led to him being demoted from a Steel Fixer to a Flagman in January 2006. In this regard, I note that the details of the allegation were only raised at the Equality Hearing itself on 17 February 2010 and had not been communicated to either the Tribunal or the respondents before then. I also note that no supporting witness evidence has been provided to uphold the allegation. In addition, I note that the claim that the demotion took effect in January 2006 is contradicted by the payslips submitted which indicate that the complainant continued as a Steel Fixer, and was paid as such, until 14 August 2006.
Accordingly, I am not satisfied that the complainant has established a prima facie case in relation to the allegation of harassment and I find, therefore, that this element of his claim also fails.
6. DECISION OF THE EQUALITY OFFICER
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 -
(i) 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 and contrary to section 77 of those Acts and
(ii) that the complainant has failed to establish a prima facie case of harassment on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 14A of those Acts, and consequently his complaint fails.
21 July 2010