THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
DEC - E2010-175
Maris Birkenhelds, Andris Andruss and Olegas Lomaho
(represented by Grogan and Associates Solicitors)
EZ Drill Ltd
File reference: EE/2008/301, EE/2008/310 and EE/2008/362
Date of issue: 13th September 2010
Keywords: Employment Equality Acts, Race
1.1. The case concerns claims by two Latvian Nationals (Maris Birkinfelds and Andris Andruss) and a Lithuanian National (Olegas Lomaho), against EZ Drill Ltd. Their claim is that they was discriminated against in relation to conditions of employment and that they were discriminatorily dismissed on the grounds of race contrary to 6(2)(h) of the Employment Equality Acts 1998 - 2008 [hereinafter referred to as 'the Acts']. Discriminatory pay is also claimed but as no comparator is named this is not a valid equal pay claim. The claims in relation to training and access to employment were withdrawn at the hearing
1.2. Through their legal representative, the complainants referred their complaints under the Acts to the Director of the Equality Tribunal on different dates (see Appendix). On 1st April 2010, in accordance with her powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, 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 this date, my investigation commenced. Written submissions were received from the complainants' representative and a hearing was held on 19th August 2010 as required by Section 79(1) of the Acts.
Summary of the complainants' case
2.1 The complainants started and finished employment with the respondent on different dates (see Appendix). Concrete drilling and cutting was the work conducted by all three complainants for the respondent.
2.2 They maintain that they were treated less favourably than the Irish employees of the respondent were. If an individual work target was exceeded each month, an employee was entitled to a bonus. The three complainants maintain that the Irish were given the jobs where it was easy to exceed targets i.e. the Irish would work in the one spot rather than having to climb up and down scaffolding. They also submit that the Irish workers were given the better tools and were subject to less criticism.
2.3 The two Latvian complainants submit that an incident occurred in June 2007 about which they are still angry. They normally worked Monday to Friday and they maintain that it was only on an exceptional basis that employees were required to work during a weekend. Ligo Day and Jani are significant Latvian National holidays and occur on 23rd and 24th June respectively each year. In 2007, these dates fell on a Saturday and Sunday. Mr Birkenfelds and Mr Andruss submit that they wished to celebrate these national holidays. However, they submit only seven people were asked to work over the weekend and they were all Latvian. They submit that the work they had to do was not urgent. The two complainants maintain that their supervisor who was Irish was aware that this was a special time for Latvians. Whether or not he knew previously, a colleague of theirs reminded the supervisor of the significance of that weekend to Latvians. According to the complainants, the same supervisor told them that if they did not turn up for work that weekend they would be fired. The complainants maintain they felt obliged to work and although they received overtime (although they maintain they were paid for less hours than they worked), they would have preferred to sacrifice the overtime and not to have worked at all over this weekend. They submit that Irish employees volunteered to work that weekend but that the supervisor insisted on the Latvians doing it. The complainants maintain that this was done for spiteful reasons.
2.4 Mr Lomaho states that in 2006 he informed his supervisor that he would be taking what is known as "builders' holidays" i.e. the last two weeks in July leading into the August bank holiday. Nearly all staff took their holidays at this time although employees could take their holidays at another time if they so wished. Mr Lomaho submits that when he returned to work on 1st August he was given a verbal warning for not giving notice of when he would be taking his Annual Leave. He maintains that to be polite he did give notice even though it was almost automatic that he would be taking leave then. He said that the Irish had a more casual approach to informing their supervisors about leave arrangements but they did not receive verbal warnings about it.
2.5 Mr Birkenfelds submits that he was dismissed by being called into the office and told his work was inadequate. Mr Lomaho and Mr Andruss are claiming constructive dismissal as they submit that they were not paid for the last six weeks of work. They submit that the Irish were told when to cash their cheques so they would be paid first.
2.6 Other cases cited were Khumalo v Cleary and Doyle , Campbell Catering Ltd and Aderonke Rasaq , Zhang v Towner Trading , Golovan v Porturlin Shellfish Ltd .
Summary of the respondent's case
3.1 The respondent did not engage with the investigation.
Conclusions of the Equality Officer
4.1 Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is race. Therefore, the issues for me to decide are:
a. Were the complainants discriminated in relation to conditions of employment on ground of race in terms of 8(1)(b) of the Acts?
b. Did the respondent discriminatorily dismiss the complainants on the ground of race contrary to Section 8(6)(c) of the Acts?
4.2 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 Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:
Section 85A of the Act provided 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. While those facts will vary from case to 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 establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.
Conditions of employment
4.3 Regarding conditions of employment, Section 8(6) of the Acts states that an employer shall be taken to discriminate against an employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee the same treatment [my emphasis] in relation to overtime, shift work, short time transfers layoffs, redundancies, dismissals and disciplinary measures as the employer offer or affords to another person where the circumstances in which both such persons are employed are not materially different.
4.4 I found the evidence of all three complainants to be compelling. I accept their evidence that work was not distributed evenly between the Irish and other nationalities. Therefore, they have established a prima facie case which the respondent has failed to rebut in relation to this strand of their case.
4.5 Regarding being obliged to work the Latvian National holidays, there is a clear nexus between the nationality of Mr Birkenfelds and Mr Andruss and the way they were treated. They have raised an inference of discriminatory treatment regarding their conditions of employment and it has not been rebutted.
4.6 I am satisfied that Mr Lomaho established a prima facie case of less favourable treatment on the ground of race regarding disciplinary measures in relation to his taking of annual leave in 2006 and it has not been rebutted.
4.7 Therefore, I find that all three complainants were discriminatorily treated regarding their conditions of employment.
4.8 Regarding Mr Birkenfelds dismissal, I am not satisfied that he has adduced sufficient evidence that he was dismissed on the ground of race.
4.9 In relation to Mr Andruss and Mr Lomaho, the definition of 'dismissal' in the Acts includes constructive dismissal:
"Dismissal" includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee would have been entitled to terminate the contract without giving such notice, or it would have been reasonable for the employee to do so, and "dismissed" shall be construed accordingly.
However, by Mr Lomaho's own evidence, some of the Irish workers were not paid at this time either. The complainants have not produced evidence to show that their failure to be paid was linked to being Latvian and Lithuanian rather than whether the wages account of their employer was in funds when they presented their cheques. Therefore, they cannot claim they were discriminatorily dismissed on the ground of race.
I have concluded my investigation of the complaints of Maris Birkenfelds, Andris Andruss and Olegas Lomaho and hereby make the following decision in accordance with Section 79(6) of the Act. I find that
(i) The respondent discriminated against Maris Birkenfelds, Andris Andruss and Olegas Lomaho regarding their conditions of employment on the ground of race.
(ii) The respondent did not discriminatorily dismiss Maris Birkenfelds, Andris Andruss and Olegas Lomaho on the ground of race.
In accordance with Section 82 of the Act, I therefore order that the respondent pay Maris Birkenfelds, Andris Andruss and Olegas Lomaho €2,000 each in compensation for the distress caused by discriminatory conditions of employment. This portion of redress is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
13th September 2010