The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2010-041
(Represented by Richard Grogan & Associates)
Keith Kirwan (t/a Spectrum Painting and Decorating)
(Represented by Employment Matters)
File reference: EE/2007/646
Date of issue: 25 March 2010
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 and 8 - Race - Training - Conditions of employment - discriminatory dismissal.
1.1 This dispute concerns a claim by Mr Kaspars Kadisveskis that he was discriminated against by Keith Kirwan, trading as Spectrum Painting and Decorating, on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts in relation to training, conditions of employment and discriminatory dismissal in terms of sections 8 of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 7 December 2007 under the Employment Equality Acts. On 21 July 2009, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 11 February 2010 and final information was received on 12 March 2010.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant is a Latvian national who worked for the respondent from 6 September to 4 October 2007. He submits that:
- he did not receive a contract of employment,
- he received no health and safety documentation or training, and that he should have received these in his own language,
- he was not paid in accordance with the Registered Employment Agreement (REA) for the Construction Industry,
- he was not in the REA Construction Workers Pension and Sick Pay Schemes,
- he did not receive the training necessary to allow him to work to a satisfactory level;
and that there is an obligation on an employer to inform foreign nationals of their entitlements under employment legislation and to fail to do this in a manner which they understand is discriminatory.
2.2 The complainant also submits that he was dismissed without proper reason, no procedures were followed and this amounts to discrimination on the grounds of his race.
2.3 The complainant contends that this treatment arose because he is a foreign worker and that special measures should be applied to ensure they are aware of their entitlements and of the relevant procedures, he relied on the Campbell Catering v Rasaq¹ and 58 named complainants v Goode Concrete² cases. He further submits that a notional Irish comparator would have been treated differently.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denies that any discriminatory treatment or dismissal took place. He submits that the complainant answered an advertisement he placed with FAS looking for a qualified painter. He was asked to provide papers proving he was qualified and a copy of his Safe Pass Certificate. In the meantime he was taken on for a trial. The complainant did not provide a copy of his qualifications and after working for a total of ten days in three weeks the respondent was dissatisfied with his standard of work and did not keep him on.
3.2 The respondent submits he did not employ the complainant but took him on a for trial at a trial rate of pay. As he was on a trial the respondent did not issue the complainant with a contract, nor did he put him on the REA rate of pay or enter him into the construction industry pension scheme or sick pay scheme.
3.3 The respondent submits that all employees were given a copy of a Health and Safety Statement and Policy. He accepted the complainant's Safe Pass as prove of his understanding of health and safety issues.
3.4 The respondent had issues with the complainant's standard of work from the beginning of his employment and had to tell him what he was doing wrong on many occasions. On a number of occasions he had to get other members of staff to rectify his mistakes.
3.5 The respondent submits that the complainant was not dismissed. The job they were working on came to an end and, as he was on a trial and his standard of work was still unacceptable, the complainant was released. The respondent had two other employees, one whom was English and had worked for him for 4 years and the other was Polish and had worked for him for 1½ years, and they were also let go during the week after the complainant.
3.6 The respondent submitted that the complainant was treated no differently than any other employee, regardless of race.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainant suffered discriminatory treatment on the grounds of his race in terms of training, conditions of employment and if he was dismissed in a discriminatory manner. 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 presented at the hearing.
4.2 Section 85A (1) of the Acts states: "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. Section 6(1) of the Acts 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)....." In this claim the ground is race.
4.4 With regard to the allegations of discrimination in relation to training and conditions of employment I accept that the respondent considered the complainant to be on trial and that the short term and temporary nature of his employment is the reason for any difference in treatment between the complainant and the other two employees. I conclude that the complainant was treated in the same way as any other employee would have been in a comparable situation and I find that the complainant has failed to establish a prima facie case of discriminatory treatment in relation to training and conditions of employment.
4.5 With regard to the allegation of discriminatory dismissal the respondent contended that the complainant was let go on 4 October 2007 because of his poor level of work and the job they were working on was coming to an end. Both of his two other employees gave evidence at the hearing that corroborated the respondent's evidence. However, after the hearing the respondent provided a copy of a P45 issued to the Polish worker and a copy of a letter his accountant sent to the Department of Social Welfare in relation to the English worker which showed that their last date of work as 12 February 2008, some 4 months later. The respondent submitted that this discrepancy can be explained because the two employees were put on short time hours from October 2007 until he received confirmation that work on another site would not be going forward. The discrepancy between the evidence the respondent and his two employees gave at the hearing and in the documents provided at the hearing casts doubt on the credibility of their evidence. In these circumstances I cannot accept the respondent's contention that the complainant was let go because the work came to an end. However, I do accept the respondent's contention that he had sufficient concerns about the complainant's capabilities to bring his trial to an end. I conclude that the respondent would have treated anyone else in the same position in a similar manner and can find no inference that this decision was based on the complainant's race. Therefore, I find that the complainant has failed to establish a prima facie case of discriminatory dismissal.
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the respondent did not discriminate against the complainant in relation to training or conditions of employment and that he was not dismissed in discriminatory manner.
25 March 2010
¹ Campbell Catering Limited v Aderonke Rasaq, Labour Court Det. No. EED048
² 58 Named Complainants v Goode Concrete Limited, Equality Tribunal, DEC-E2008-020