THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS
Decision DEC - E2010 - 040
Mr Igor Kopcov
(represented by Richard Grogan and Associates, Solicitors)
Rianna Construction Ltd.
(represented by IBEC)
File Reference: EE/2007/169
Date of Issue: 25 March 2010
Headnotes: Employment Equality Acts, 1998 & 2004, section 6 and 8 - discriminatory treatment - contract of employment not provided - demotion/regrading
1.1. This case concerns a complaint by Mr. Igor Kopcov, a Lithuanian national, that he was discriminated against by Rianna Construction Ltd. contrary to Section 6(2)(h) of the Employment Equality Acts 1998 to 2008, in terms of training, promotion and re-grading, and conditions of employment contrary to Section 8 of the Acts.
2.1 The complainant referred a complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 26 March, 2007 alleging that the respondent had discriminated against him on grounds of race in its treatment of him during the course of his employment with it. The respondent disputes all the allegations made by the complainant. A claim of harassment was withdrawn at the hearing.
2.2 On the 31st August, 2009, in accordance with her powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, on which date my investigation commenced. Written submissions were received from both parties. A hearing of the complaint was held on Friday, 22 January, 2010.
3. Summary of the Complainant's case
3.1. The complainant is a Lithuanian national who was employed with the respondent from 10 July, 2006. He submitted that he is a fully qualified carpenter and was initially recruited as such in accordance with the Registered Employment Agreement for the Construction Industry ("the REA"). He submits that at a meeting with Mr. A, the Director of the respondent company, a few months after being recruited, he was told that he was not a carpenter and would thereafter be paid as a category D worker (i.e. a first year labourer). The complainant further submits that Mr A told him that they could only have one carpenter, and that Mr B, a Slovenian national who was also a carpenter, was a better worker and so Mr B would be the one employed as a carpenter, even though the complainant was still required to continue working as such.
3.2. The complainant said that he was not asked for proof of his qualifications while employed with the respondent, even though the respondent knew he was fully qualified. At the hearing, he initially said that he had worked as a carpenter for 16 years. Following questioning, he amended that statement to say it was 12 years: four years in Ireland, three years in Lithuania and two years in Russia as well as an additional three years in Kaliningrad, Russia while he studied there. He stated that he qualified from the University of Kaliningrad in 1988.
3.3. The complainant said that, while there was one Irish worker who was employed as a carpenter, he had not received any information from the respondent in relation to this individual and so he could not achieve any meaningful comparison with that particular worker. He therefore submitted that the Tribunal should make a comparison with a notional Irish comparator, and in that regard submitted that any Irishman, faced with the same circumstances as the complainant found himself in, would demand a more satisfactory response to the treatment he received, which was unilaterally imposed by the respondent.
3.4. The complainant submitted that under the Equality Officers decision in 58 named Complainants -v- Goode Concrete , there is an obligation on an employer to provide a Contract of Employment in a language likely to be understood by the Complainant but that the respondent did not provide him with any contract of employment despite being requested to do so by the complainant as early as March 2007. As a result, he submitted that the respondent has also failed to advise him of his rights under the REA.
3.5. Furthermore, the complainant submitted that the decision in Campbell Catering-v- Rasaq meant that, as a foreign national, there is a requirement in the complainant's case to take special measures to advise him of his employment rights and this would include as a minimum providing him with a notification of particulars as set out in Section 3 of the Terms of Employment (Information) Act. The complainant submits that a notional Irish comparator would have received such a contract of employment. The complainant also denied that he had been provided with oral instruction of his terms and conditions.
3.6. The complainant submitted that he did not receive health and safety documentation as required by the decision of this Tribunal in Goode Concrete, as well as under the Safety Health and Work Act. As a foreign national not conversant in Irish Health and Safety Law, the complainant submitted that there is an obligation on the part of the respondent to provide him with a Health and Safety statement in a language likely to be understood by him and the failure to do so amounts to discrimination. In that regard, he submitted that a notional Irish comparator would have received such a statement. The complainant also submits that he did not receive proper health and safety training.
3.7. The complainant also submitted that at no stage was he advised of his right to raise a grievance as is required by the Code of Practice and Grievance and Disciplinary Procedures and therefore no method was open to him to raise any issues with the respondent. Finally, the complainant submitted that he was paid less than the REA agreed rate after it went up.
4. Summary of the Respondent's case
Issue of Complainant's rate of pay
4.1. The respondent submitted that the complainant initially commenced employment with it on 16 July, 2006. It submitted that, while the complainant maintained that he was a fully qualified carpenter, it became apparent quickly to the respondent that this was not, in fact, the case. In this regard, it said that Mr B, who was Slovakian and had been working for the respondent for several months before the complainant joined, had told Mr. A that the complainant wasn't a carpenter. On foot of this, Mr A met with the complainant six weeks later to discuss the matter. Mr. A said that, at this meeting, the complainant accepted that he was not a carpenter and did not mention anything about qualifications. The respondent submitted that the complainant was then offered a position as a labourer, a change in his role to which Mr A said he agreed on the terms offered (i.e. at 50 cents above the agreed REA rate of pay for a D class labourer).
4.2. The respondent added that the complainant was paid the full rate of pay appropriate for the relevant carpenter role while he was employed as such, and pointed out that when a named Irish carpenter worked for it, it paid him at the same rate as it had paid the complainant. However, he denied telling the complainant that he informed him that he would only have one carpenter and chose Mr B, while requiring the complainant to still work as a carpenter, as alleged by the complainant. Rather, he said that any carpentry type work the complainant did while employed as a labourer would have been more in the line of what an apprentice might do and was therefore not work which would attract the wage of a qualified carpenter.
4.3. The respondent also noted that the complainant had left the respondent's employment on 24 September 2006 and had returned on 19 November 2006 of his own accord and as a labourer. It said that the construction industry was buoyant at the time, and the complainant was not restricted by a work permit. It stated that he therefore had plenty of opportunity to work elsewhere if he felt he was being discriminated against by the respondent.
4.4. The respondent stated that it does not accept the qualification that the complainant has submitted to the Tribunal is proof that the complainant is a fully qualified carpenter. It stated that the onus is on the complainant to prove that his qualification are valid and he had failed to prove they were by submitting them to the National Qualifications Authority of Ireland, the Irish centre for the recognition of international qualifications.
4.5. The respondent, in short, denied that changing the complainant's position from a carpenter to a labourer was related to his race, nationality or ethnic or national origin.
4.6. The complainant finally left his employment with the respondent on 17 March 2007.
4.7. The respondent submitted that it did not receive any request for a written contract of employment until 22 March 2007, the day on which the complainant sent in the complaint form to the Tribunal. It submitted that it was clear that he never had any interest in giving the respondent a genuine opportunity to respond considering the haste in which his application was made. The respondent submitted that it had not provided a written contract of employment or written grievance/disciplinary procedures to any employees regardless of their race. Neither was any employee given a copy of any Health and Safety Documentation. These administrative oversights, it submitted, were not related to the complainant's race. In that regard, it said that no-one received these documents including the Irish carpenter already mentioned. The respondent said that all instruction was given to employees verbally and any employee who did not speak English as their first language had such instructions translated into a language that they were likely to understand.
4.8. The respondent submitted that Goode Concrete is subject to appeal and is therefore an inappropriate reference. In any event, it stated that it did not believe that the fact that the complainant did not receive a contract of employment was enough to show discrimination. Instead, it said that there must be less favourable treatment relative to a comparator.
4.9. As regards Health and Safety Training, the respondent submitted that the complainant received such training with Education and Training Services Trust Ltd through the Safe Pass course on Saturday 8 July 2006 prior to commencing employment with Rianna Construction Ltd, and provided documentary evidence to that effect. It added that all its employees, regardless of race, are required to complete this training. It said that it also provided tool talks and got "someone in" to provide health and safety documentation. It said that it was therefore incorrect to say it did not have health and safety in place and pointed out that it always welcomed the Health and Safety Authority for inspections.
4.10. The respondent also took issue with the complainant's claim of not being able to understand instruction in English. It said that instructions were given to workers in English each morning and the complainant understood these. However, it said that in general it never had a problem with the complainant, describing him as honest.
4.11. In short, the respondent submitted that the complainant has not identified another person who in comparison he can argue had been treated less favourably than he would be treated and that person is a different race. It stated that it was a small, decent employer, who treated all its employees fairly and no person was treated less favourably.
4.12. In support of its case, the respondent cited Campbell Catering -v- Ratzsak , Melbury Developments -v- Valpeters , Gedrinas -v- Mulleadys , Darguzis -v- Lough Corrib Engineering , Businkas -v- Eupat Ltd. Valukonis -v- Strandford Ltd. and Gollinan -v- PL Shellfish .
5. Conclusions of the Equality Officer
5.1. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him/her. If he/she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2. Section 6(1) of the Employment Equality Acts, 1998-2007 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.." 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. The issue for decision by me in this case, then, is whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6(2)(h) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts as regards training, promotion and re-grading, and conditions of employment. 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.
Contract of Employment/Health and Safety Documentation
5.4. The complainant contends that the respondent discriminated against him by failing to furnish him with a health and safety statement, or a written contract of employment (or any other form of notification of his terms and conditions of employment). He also submits that the respondent did not comply with its obligations under Section 3 of the Terms of Employment (Information) Act 1994, as outlined at par. 3.8 above. However, the legislature has provided for other fora to resolve those disputes and so these matters are not, per se, for this Tribunal to consider. What the Tribunal is concerned with in this regard is whether the respondent's admitted failure to provide any of these documents amounts to less favourable treatment within the meaning of the Acts, and/or whether it discriminated against him otherwise with regard to informing him of his terms and conditions of employment.
5.5. The respondent does not contest that the complainant was not provided with any of the documents concerned, describing this as an "administrative oversight". However, in disputing that this amounts to less favourable treatment within the meaning of the Acts, it makes the following arguments:
- That no other employee was provided with a written contract of employment or a health and safety statement, irrespective of their nationality;
- That it nonetheless outlined the terms and conditions of employment to all its staff orally upon joining the respondent.
5.6. Having considered the matter, I am satisfied that no employees who worked for the respondent at the same time as the complainant received written contracts of employment or a health and safety statement. I am also satisfied that the complainant's terms and conditions of employment were provided to him in the same way as they were provided to everyone else (i.e. orally at the start of their employment and in the English language).
5.7. The complainant submitted that the decision of this Tribunal in 58 Complainants v Goode Concrete , gave rise to a general obligation on the part of an employer, such as the respondent, to provide a Contract of Employment in a language likely to be understood by the complainant. This is not a correct interpretation of the decision in Goode Concrete, which must be distinguished from the present case in that the pertinent matters arising in that case stem from the fact that the relevant complainants did not have a good command of the English language. I am satisfied, not least from my own observation, that the complainant in the present case has a very good command of English, and, more importantly, and based primarily on the testimony of Mr A, had a similar command of English at the time he was working for the respondent.
5.8. Therefore, I am satisfied that the relevant terms and conditions were provided to him in a language he understood (i.e. English). In any event, I am satisfied that the respondent provided interpretation services if they were required and in doing so, in my view, made appropriate provision for anyone who did not have a sufficient understanding of English to access the relevant information, even in light of the principles actually applied in the Goode Concrete case. In the same way, I do not accept that the complainant was not aware of the respondents grievance procedures, such as they were, and I am satisfied that he was well aware of what he needed to do to make a complaint at the time if he chose to do so.
5.9. Therefore, I am satisfied that the complainant was not treated less favourably than any other employee with regard to the way in which his terms and conditions of employment were communicated to him.
5.10. Finally, with regard to this aspect of the present complaint, I would add that the Campbell Catering case related primarily to a complainant who was dismissed in a particular set of circumstances. Therefore, as the facts of that case are significantly different to the ones at issue in the present complaint, the decision of the Labour Court in Campbell Catering has no relevance here.
Health and safety training
5.11. I now turn to the complainant's submission that he did not receive health and safety training, unlike other staff of the respondent. I note that the respondent provided very convincing evidence that the complainant had been provided with health and safety training. I further note that this evidence was provided in advance of the hearing and was not disputed by the complainant. It is therefore clear that the complainant was provided with health and safety training and I do not need to consider the matter any further.
5.12. The complainant submitted that he was not paid at the correct rate as a labourer in accordance with the REA for the construction industry. However, the Industrial Relations Act 1946 (as amended), provides the Labour Court with jurisdiction on any question as to the interpretation of an REA or its application to a particular person and this Tribunal has no authority in those issues.
5.13. However, he also submitted that he was treated in a discriminatory manner in being effectively regraded/demoted to a labourer from a carpenter, while still being required to carry out the duties of a carpenter. A question arises out of these submissions that does not relate to the interpretation or application of the REA itself: was the complainant's race a factor in his demotion? This is a question for the Tribunal to decide upon, and I do so in the following paragraphs.
5.14. The key factor in making a decision in this regard is which account of the circumstances surrounding the demotion and which account of the work subsequently carried out by the complainant should be preferred: that of Mr A or that of the complainant himself. In that regard, I found most of the complainants evidence at the hearing to be inconsistent and contradictory. Not only was this the case with regard to a number of aspects of his employment with the respondent, including the duties he was requested to carry out, but also with regard to his description of his employment history, as well as other matters such as those outlined at paragraph 5.11 above.
5.15. In general, then, I found the evidence of Mr A to be more credible. I am therefore satisfied that the complainant was demoted for the reasons outlined by Mr A (i.e. because the respondent was not satisfied with the work he was carrying out as a carpenter) and that the reason for this demotion was unrelated to his race, nationality, ethnic or national origins. I am also satisfied that any work related to carpentry that the complainant might have been involved in after his demotion was by way of providing assistance to the carpenter and was appropriate for the grade to which he had been demoted.
5.16. In short, I am satisfied that the respondent did not treat the complainant less favourably than it would have treated someone of a different race, nationality, or ethnic or national origin in the same or similar circumstances. The complainant has therefore failed to establish a prima facie case with regard to the issues surrounding his demotion.
5.17. As there are no further elements to the complainant's case, it is clear that he has failed to establish a prima facie case of discrimination on the race ground and his complaint therefore fails.
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008:
6.2. I find that the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2)(h) of the Acts in terms of in terms of training, promotion and re-grading, conditions of employment contrary to S. 8(1) of the Acts.
6.3. Accordingly, the complainant's case fails.
25 March 2010