The Equality Tribunal
3 Clonmel Street
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
Employment Equality Acts
EQUALITY OFFICER'S DECISION
(Represented by Ms. Christina Ryan BL on the instructions of Grogan and Associates Solicitors)
- V -
(With ESA consultants)
File references: EE/2007/523
Date of issue: 15 March 2010
Employment equality Acts 1998-2008 - Discriminatory Treatment - Race - Condition of employment - Training - Pay - Discriminatory Dismissal - Prima facie case
1.1. This dispute concerns a claim by Mr. Guntars Garbacevs (hereafter "the complainant") that he was subjected to discriminatory treatment and discriminatory dismissal contrary to the Employment Equality Acts by Elephant Haulage (hereafter "the respondent") on the grounds of his race.
1.2. The complainant referred his first claim of discrimination to the Director of the Equality Tribunal on 01 October 2007 under the Employment Equality Acts. This claim was made on the race ground. In accordance with her powers under section 75 of the Acts, the Director then delegated this case to Tara Coogan- an Equality Officer - on 22 July 2009 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, on this date, my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 18 February 2010. An independent interpreter attended the hearing.
2. Case for the complainant
2.1. The complainant, a Latvian national, submitted that he was treated less favourably on the ground of his race in relation his hours, his contract of employment, health and safety training and documentation, and his pay. Furthermore, the complainant submitted that he was dismissed without any proper procedure while he was on certified sick leave. It was submitted that the complainant has very limited English.
2.2. In relation to his contract of employment, it was submitted that the complainant received no contract of employment. It was submitted that, citing 58 named Complainants v. Goode Concrete Ltd (DEC-E2008-020), there is an obligation on employers to provide a contract of employment in a language that is understood by the complainant.
2.3. It was submitted that the complainant was asked to work excessive hours without breaks and proper rest periods and that he was not paid the agreed rates in accordance with the Registered Employment Agreement for the Construction Industry. It was submitted that he was not paid at the rate that he was entitled to be paid. Furthermore, it was submitted that the complainant had not been joined in a pension scheme and as a result, it was submitted, the complainant had lost out on pension entitlements. The complainant submitted that the respondent had failed, citing Campbell Catering Limited v. Rasaq (EED048), their legal obligation to advise the complainant about the Registered Employment Agreement.
2.4. In relation to the alleged discriminatory dismissal it was submitted that the complainant was dismissed without any procedures. The complainant submitted that he became ill in May 2007 and that he sought medical attention. He submitted that the doctor gave him 4 days sick leave. He stated that he travelled back to Latvia to get further medical treatment. The complainant submitted that he asked his named friend and colleague who had been his contact person between the respondent and himself to tell the foreman that he was out sick and that he would return in due course. The complainant submitted that while he was in Latvia he forwarded a Latvian sick certificate to the respondent. However, on his return to Ireland some 7-8 weeks later, the complainant submitted that when he asked his named colleague to enquire about his job, he discovered that he had been replaced. It was submitted that the complainant's P45 had been sent to an incorrect address.
2.5., Ms. Ning Ning Zhang v Towner Trading (DEC-2008-001), Golovan v. Porturlin Shellfish Ltd. (DEC-E2008-032) were also cited in the submission.
3. Case for the respondent
3.1. The respondent denied any allegation of discrimination or discriminatory dismissal made by the complainant.
3.2. A copy of a contract of employment was submitted to the hearing. It was submitted that this was sent to the complainant in January 2007. It was submitted that the circumstances of this case distinguish it from those set out in Goode and Campbell Catering.
3.3. In relation to the alleged dismissal. The respondent submitted that the complainant simply did not turn up for work. It was submitted that he had never told his employers he was unwell or that he was going to a doctor. The respondent submitted that efforts had been made to contact the complainant on the phone but, at first, the calls were cut off by the complainant and later, the phone would just ring out. It was submitted that the complainant's colleague initially told the respondent that he did not know where the complainant was. A few days later, it was submitted, the complainant's friend and colleague told the foreman that the complainant was sick and that he would return the following Monday. The following Monday the complainant's friend told the respondent, when asked, that the complainant was sick and would return the next Monday. This went on for some weeks until the respondent employed another person to carry out the complainant's duties. It was also submitted that by this stage the complainant's colleague had told the foreman that the complainant was "on the beer".
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.
4.2. Discriminatory treatment
4.2.1. The issue of whether the complainant had received a copy of a contract of employment was very much in dispute. The complainant could not recall whether he had signed any document and issues concerning a contract issued in early 2007 were disputed. I note that a Rights Commissioner has dealt with this issue. I have been presented with no additional material to support a claim of less favourable treatment on the race ground.
4.2.2. In relation to the complainant's hours and breaks. I am satisfied that he took his breaks with other workers, from various different national backgrounds. I do not accept, on the balance of probabilities, that any alleged breaches of the Organisation of the Work Time Act took place because of the complainant's nationality.
4.2.3. In relation to health and safety training and documentation. It is clear that the
complainant had a Safety Pass. It is also clear from his own evidence that a Health and Safety Officer was present at sites and that he had, by his own admission, been shown 'how to do things'. I have been presented with no evidence to support an argument that the complainant did not receive health and safety training or that he received health and safety training in a manner that constitutes discrimination under the Acts. The complainant submitted that he had understood the training because he had a lot of experience in this area of work. I have been presented with no evidence to support an argument that other nationalities were treated in a more favourable manner. No facts were presented to support an argument supporting a need for special measures from the employer. The complainant himself indicated that he was able to understand the instructions given.
4.2.4. A certificate of PRSA membership in the complainant's name was presented by the respondent. The certificate shows that the complainant had been included in a scheme from 01/07/2006 to 30/06/2007. No evidence was presented to support an argument that the complainant was paid less favourably than co-workers of different nationality doing like work would have been paid by the respondent.
4.3. Discriminatory dismissal
4.3.1. The complainant stated that he had been feeling unwell for sometime and as a consequence had gone to consult a doctor. He submitted that he was diagnosed with a stomach complaint and was initially given 4 days certified sick leave. He submitted that due to his condition he decided to return to Latvia to receive further treatment and asked his colleague to communicate this to his employees. He submitted that he did not contact the employer directly - because of his poor English - but asked his friend to tell the foreman. The complainant submitted in direct evidence that he had asked his friend to give his sick certificate from an Irish doctor to the employer. This certificate was shown at the hearing. The respondent submitted that it received the Irish medical certificate in the mail in September 2007. The complainant's friend and colleague did not attend the hearing.
4.3.2. I find that the complainant's evidence in relation to the details of his sick leave were not consistent. The dates that he submitted did not tally with those submitted by the respondent. No satisfactory answer was given as to why the complainant did not contact the respondent himself nor why he did not answer phone calls from the respondent. The complainant did not provide any explanation as to why he failed to approach the respondent himself before his departure to Latvia or on his return to Ireland. Nor was the complainant able to explain how his legal representative was in possession of the original Latvian sick certificate which he had stated that he had given to his colleague to forward to his employers. I do not accept that the complainant was not aware, because of his Latvian background, that an employee has certain responsibilities in relation to absenteeism. His own actions show awareness of such responsibility. He stated that he had felt unwell and that he went to see a doctor who had certified him sick for 4 days. He stated that he had asked his colleague to forward the certificate to the respondent and tell them he was ill. It is clear from the evidence that the complainant did not forward either medical certificate (Irish or Latvian) to the respondent to explain his absenteeism. I accept that one certificate covering a couple of days in May 2007 was forwarded to the respondent in September 2007.
4.3.3. Having heard all the evidence in relation to this complaint I do not find that the complainant was summarily dismissed by P45. I find that the complainant simply did not turn up for work and made no meaningful effort to inform his employers, within a reasonable timeframe, the reason for this absenteeism. I am satisfied that the respondent had not been presented with a sick certificate at the time. While I note that the complainant argued that the respondent ought to have carried out a disciplinary procedure before dismissing the complainant, it clear from the evidence that the complainant never approached the respondent personally after his return to Ireland. It is not clear how a disciplinary procedure could have taken place with the complainant absent. I also note that the complainant submitted that the respondent had offered him his job back in late autumn of 2007 but that the complainant chose not to act on it as he had obtained legal advise and because he felt that the relationship between him and the respondent had broken down. No evidence was presented to me to support an argument that the complainant was treated less favourably than an Irish person would have been treated similar circumstances.
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 respondent did not discriminate against the complainant on the race ground. Therefore, the complaint of less favourable treatment fails.
5.3. I find that the respondent did not discriminatorily dismiss the complainant. Therefore, the complaint of discriminatory dismissal fails.
15 March 2010