The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2010-207
Anatolijus Avizovas, Pranas Bertavicius, Aivaras Berzinis, Antanas Blinkinas, Antanas Gudas, Raimondas Gudas, Arturas Jokubauskas, Remigijus Jokubauskas, Zydrunas Jasutis, Algirdas Januskevicius, Arunas Kaveckas, Neridus Kondrasovas, Egidijus Kuprys, Rosandas Marcinkus, Antanas Norbutas, Sigitas Puidokas, Zilvinas Pauza, Raimundas Puzas, Kostas Rackauskas, Linas Rimkus, Stephonas Smilgevicius
(Represented by Richard Grogan & Associates)
- v -
Samot Block Laying Limited
File reference: EE/2006/467
Date of issue: 22 October 2010
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6, 14A & 74 - Race - Access to Employment, Conditions of employment, other (pay), Discriminatory Dismissal, Harassment & Collective Agreement
1.1. This dispute concerns a claim by Anatolijus Avizovas, Pranas Bertavicius, Aivaras Berzinis, Antanas Blinkinas, Antanas Gudas, Raimondas Gudas, Arturas Jokubauskas, Demigijus Jokubauskas, Zydrunas Jasutis, Algirdas Januskevicius, Arunas Kaveckas, Neridus Kondrasovas, Egidijus Kuprys, Rosandas Marcinkus, Antanas Norbutas, Sigitas Puidokas, Zilvinas Pauza, Raimundas Puzas, Kostas Rackauskas, Linas Rimkus, Stephonas Smilgevicius that they were discriminated against by Samot Block Laying Limited on the grounds of race contrary to section 6 of the Employment Equality Acts in relation to access to employment, conditions of employment, other (pay) and they were dismissed in a discriminatory manner contrary to section 8 of the Acts, and a collective agreement in terms of sections 9 of the Acts and that they suffered harassment in terms of sections 14(A) of the Acts.
1.2. Pranas Bertavicius, Aivaras Berzinis, Antanas Blinkinas, Antanas Gudas, Demigijus Jokubauskas, Algirdas Januskevicius, Arunas Kaveckas, Neridus Kondrasovas, Egidijus Kuprys, Rosandas Marcinkus , Kostas Rackauskas, Linas Rimkus and Stephonas Smilgeviciushe referred their claims to the Director of the Equality Tribunal on 28 November 2006; Raimondas Gudas and Zydrunas Jasutis on 8 December 2006; Arturas Jokubauskas, Antanas Norbutas, Sigitas Puidokas and Zilvinas Pauza on 18 December 2006; Raimundas Puzas on 21 December 2006; and Anatolijus Avizovas on 12 January 2007 under the Employment Equality Acts. On 8 May 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. A submission was received from the complainant. A submission was not received from the respondent and notification of the hearing was returned "gone away". In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 5 October 2010.
2. COMPLAINANT'S SUBMISSION
2.1. At the start of the hearing the complainant's representative withdrew all aspects of the complaint apart from discriminatory dismissal in relation to all the complainants.
2.2. The complainants are Lithuanian. Four complainants did not attend the hearing and of the seventeen who did Sigitas Puidokas started working for the respondent on 5 June 2004. The remainder all started working in 2006. Pranas Bertavicius, Antanas Blinkinas, Antanas Gudas, Arturas Jokubauskas, Demigijus Jokubauskas, Zydrunas Jasutis, Neridus Kondrasovas, Rosandas Marcinkus, Zilvinas Pauza, Raimundas Puzas, Kostas Rackauskas and Stephonas Smilgevicius in January; Arunas Kaveckas in February; Algirdas Januskevicius in March and Raimondas Gudas and Egidijus Kuprys in July 2006. They were split in groups between various sites and they worked on a number of different sites during their employment with the respondent. Raimondas Gudas and Egidijus Kuprys were general operatives and the remainder worked as block layers.
2.3. All the complainants submitted that during the last four weeks of employment an increasing number of Romanian workers were recruited by the respondent and were working on all the sites where the complainants were working. A number of the complainants had the number of days they worked reduced in the final two or three weeks. Then they were all dismissed on either 11th or 14th September 2006. They were informed either in groups on the site where they working or for one group a phone call was made to one person in the house where they were staying that the respondent no longer had enough work for them. Many of them submitted that all the Lithuanians on their site were dismissed at the same time.
2.4. They all asserted that construction on the sites where they were working continued. Zydrunas Jasutis submitted that he drove by the site after he left and saw work continuing; Algirdas Januskevicius submitted that he went back to collect his tools and saw work continuing; and Arunas Kaveckas submitted that he went back to the site and saw work continuing. Their submission is not that the respondent did not have enough work for them but that they were replaced by Romanian workers who were paid less. Neridus Kondrasovas, who acted as the liaison between a group of the complainants living in the same house and the respondent, took a phone call from the foreman and he submitted that the Irish foreman told him that the complainants were no longer needed because the Romanians were cheaper.
2.5. The complainants submit their treatment amounts to discriminatory dismissal on the grounds of race.
3. RESPONDENT'S SUBMISSION
3.1. The respondent did not engage with the Equality Tribunal and consequently did not make a written submission regarding the alleged discrimination and did not attend at the hearing.
4. FINDINGS & CONCLUSION
4.1. Four of the complainants, Anatolijus Avizovas, Aivaras Berzinis, Anatanas Norbutas and Linas Rimkus, did not attend the hearing and therefore did not establish a prima facie case. In the circumstances, that the other seventeen complainants did attend, I am satisfied that these complainants were aware of the details of the hearing.
4.2. As stated above the complainant's representative withdrew all aspects of the complaint apart from discriminatory dismissal in relation to all the complainants at the hearing. Therefore, I have to decide if the complainants were 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.
4.3. Section 85A (1) of the Employment Equality Acts, 1998 - 2007 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. Further, in a recent Determination the Labour Court², whilst examining the circumstances in which the probative burden of proof operates held as follows -
"Section 85A of the Acts provides 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. What those facts are will vary from case to case 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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
4.4. The seventeen complainants who attended the hearing individually gave evidence they were dismissed to allow the respondent to employ Romanian workers on less pay. Their evidence was broadly consistent with each other but it was generally rather vague, in that no one was able to give me the name of the site where they were working but most could describe its' location or tell me the number of the bus they took to get to the site. One site was near Dublin airport, one was in Dublin city centre and another was in Newcastle. None of the complainants had asked the respondent about the new workers. Neridus Kondrasovas did give evidence that the foreman told him that the Romanians were cheaper when they were dismissed. Also none of them had spoken to any of the Romanian workers. Therefore they were unable to confirm their pay or any other circumstances relating to their conditions of employment. They asserted that the new workers were Romanian but no evidence was provided to confirm their nationality, other than the reference to Romanians in the phone call Neridus Kondrasovas stated he had with the foreman.
4.5. A former colleague of the complainants, Arunas Jokubauskas, who was also a Lithuanian working for the respondent, gave evidence as a witness that he was not dismissed at the same time as the complainants but worked for a further two weeks when the remaining Lithuanians (around 10) were also dismissed and were also replaced by Romanians.
4.6. I am therefore being asked to make a decision purely based on the assertions of the complainants, other than witness evidence from a compatriot. The only piece of supporting evidence is the conversation between Neridus Kondrasovas and the foreman, when he is alleged to have stated that the Romanian workers were cheaper. But there is no evidence that the new workers were Romanians or that they were cheaper to employ than the complainants or that they did directly replace the complainants. In the absence of any supporting evidence I find it insufficient to allow me to find that the complainants were dismissed in a discriminatory manner.
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the respondent did not dismiss the complainants in a discriminatory manner.
22 October 2010
¹ Labour Court Determination Arturs Valpeters v Melbury Developments Ltd EDA0917  21 E.L.R