THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
DEC - E2010 - 177
Irmantas Kaseta, Donatos Traidaras and Tomas Kuprusevicius
(represented by Grogan and Associates Solicitors)
Simon Quinn t/a Access Solutions Ltd
File reference: EE/2007/436
Date of issue: 14th September 2010
Keywords: Employment Equality Acts, Race, Conditions of Employment.
1.1. The case concerns claims by three Lithuanian Nationals, against Simon Quinn trading as Access Solutions 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in relation to training and access to employment, discriminatory provisions of collective agreement and harassment were withdrawn at the hearing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 13th August 2007. On 31st August 2010, in accordance with his 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 1st September 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). They were scaffolders. Mr Kaseta was a supervisor while the other two complainants were general operatives.
2.2 They submit that the Irish workers were given company vans while the three complainants were not. They submit that they did not receive holiday pay and that they were asked to do unpaid overtime on Saturdays approximately once a month while the Irish workers were not.
2.3 Mr Kaseta maintains that after about a year of employment Irish workers were given time off to train to get their 'scaffolding ticket' to entitle them to supervise the erection and dismantlement of scaffolding. According to him, the respondent gave paid leave as well as paying for the cost of the course for Irish workers. Mr Kaseta asked Mr Quinn to do the same. The complainant submits his employer refused and consequently Mr Kaseta had to incur the cost (€500) himself as well as taking annual leave to do the course.
2.3 Two of the complainants (Mr Kaseta and Mr Kuprusevicius) submit they were dismissed by text messages from Mr Quinn
13th May 2007: "We will not be working tomorrow; I have no insurance, inspector for a day or so. Say it to Tomas please"
Irmantas Kaseta rang Mr Quinn the following day about work. He submits he received the following reply by text:
"Dnt kno if we are yet"
He maintains he called to Mr Quinn's house on a couple of occasions and was told by his wife, 'Simon is not in'. Neither he nor Mr Kuprusevicius received further communication from the respondent again.
2.4 Mr Traidaras submits he was dismissed two weeks earlier when he requested holiday pay.
2.5 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 all three witnesses to be credible. Regarding holiday pay, by Mr Kaseta's own admission in direct evidence he was not certain whether Irish workers did get holiday pay or not. Nor was he sure that all Irish workers were given company vans. Therefore, this strand of their case fails.
4.5 However, I accept their evidence that they were expected to do unpaid overtime and that Irish workers were not. They gave examples of events they missed because of working this unpaid overtime. All three were adamant that the Irish employees were never asked to do this. Therefore, on the balance of probabilities, they have established a prima facie case which the respondent has failed to rebut in relation to this part of the complaint
4.6 Regarding Mr Kaseta's specific complaint regarding not being facilitated to gain accreditation as a scaffolder, he gave examples of Irish workers with less experience than he had who were allowed to do so. The respondent has failed to rebut the prima facie case Mr Kaseta established.
4.7 Therefore, I find that all three complainants were discriminatorily treated regarding their conditions of employment.
4.8 Regarding Mr Traidaras's dismissal, I am not satisfied that an Irish person who raised the issued of holiday pay would not be dismissed. Therefore, he has not adduced sufficient evidence that he was dismissed on the ground of race.
4.9 In relation to Mr Kaseta and Mr Kuprusevicius, I find that the complainants have failed to establish a prima facie case of discrimination based on their nationality in relation to their dismissal. While the manner of their dismissal by text message and avoiding further contact was certainly objectionable, I cannot accept it was discriminatory. Again, I am not satisfied that an Irish person would not be dismissed in a similar way.
I have concluded my investigation of the complaints of Irmantas Kaseta, Donatos Traidaras and Tomas Kuprusevicius and hereby make the following decision in accordance with Section 79(6) of the Act. I find that:
(i) The respondent discriminated against Irmantas Kaseta, Donatos Traidaras and Tomas Kuprusevicius regarding their conditions of employment on the ground of race.
(ii) The respondent did not discriminatorily dismiss Irmantas Kaseta, Donatos Traidaras and Tomas Kuprusevicius on the ground of race.
In accordance with Section 82 of the Act, I therefore order that the respondent pay Irmantas Kaseta €3,000 (to take account of the cost in time and money incurred in acquiring a scaffolding ticket), Donatos Traidaras €2,000 and Tomas Kuprusevicius €2,000 each in compensation for the distress caused by discriminatory conditions of employment. This 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).
14th September 2010