THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 077
Mr Juris Dubina
(represented by Richard Grogan & Associates)
Fergal Brodigan t/a FB Groundworks
File Reference: EE/2008/003/064
Date of Issue: 15th April, 2011
Headnotes: Employment Equality Acts, 1998 & 2004, section 6,8 - Section 6(2)(h), race ground - Section 8(6)(c), Dismissal - Section 74(2), Victimisation - Victimisation with respect to dismissal (Victimisatory dismissal) - Whether contract of employment in existence
1.1. This case concerns a complaint by Mr. Juris Dubina (hereinafter referred to as "the complainant") that he was discriminated against by Fergal Brodigan t/a FB Groundworks. (hereinafter referred to as "the respondent") on the grounds of race (with respect to his nationality) contrary to section 6(2)(h) of the Employment Equality Acts (hereinafter referred to as "the Acts") with respect to conditions of employment contrary to Section 8(1)(b) of the Acts. He made a further claim that he was victimised by the respondent with respect to his dismissal, contrary to Section 74(2) of the Acts.
2.1. On 7th January, 2008, the complainant referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal, alleging that the respondent had discriminated against him on the ground of race (with respect to his nationality). On 4th February, 2008, he referred a further complaint alleging that the respondent had victimised him with respect to his dismissal.
2.2. Written submissions were received from both parties. On 25th June, 2010, in accordance with his powers under section 75 of the 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 of the Director under Part VII of the Acts, on which date my investigation commenced.
2.3. A hearing of the complaint was held on Wednesday, 26th January, 2011. (A previous hearing scheduled for 2nd December, 2010 had been cancelled due to the inclement weather conditions in existence at the time). The complainant was in attendance at the hearing. The respondent was not in attendance. The complainant withdrew his complaint with respect to discrimination at the hearing and proceeded only on the basis of the claim of victimisation. An opportunity was provided to the complainant to present supplementary documentary evidence after the hearing and this was provided on 9th February, 2011.
3. Summary of the Complainant's case
3.1. The complainant is a Latvian national who started working for the respondent in September 2007. He said that when he went to work for the respondent first, the respondent would text him to bring some friends to work with him and he and those friends would go over to the site. However, by the end of December, he said that it was just himself and one other person that would do so. He said that, on 21st December, 2007, when collecting his pay cheque, he asked the respondent what the next job would be. He said that the respondent told him to wait for his call in the New Year as to whether he would have new work available for him.
3.2. The complainant then proceeded with a complaint to the Tribunal, which was submitted on 7th January, 2008, but which the complainant submitted had been notified to the respondent on 4th January, 2008, by way of a form EE2 (request for information). (This entire claim of discrimination was withdrawn at the hearing).
3.3. However, the complainant submitted that, subsequent to issuing of these proceedings, on 7th January, 2008, he was dismissed. He said that, on that day, he received a call from the respondent who asked him why he was taking him to court. He said that he told the respondent that it was because he was not paying him the minimum wage and overtime. He then asked the respondent if he had any more work for him. He said that the respondent replied that he would not give him any more work unless he withdrew his complaint. The complainant said that when he told the respondent that he would not withdraw his complaint, the respondent said there was no more work for him and hung up.
3.4. The complainant said that he has not received any more work from the respondent since then and added that the respondent has not given any work to Latvian people as a consequence.
3.5. The complainant agreed that there had been a downturn in work and he had been told of this. However, he denied receiving protective notice and said he never saw the document presented to the Tribunal by the respondent in that respect. He suggested that the document had been drawn up after the complaint had been made to make it appear as if protective notice had been given.
3.6. The complainant said he got work with another company about three months later and had no difficulties with tax. However, he denied ever receiving a P45 from the respondent. He suggested that the P45 provided by the respondent to the Tribunal had been issued after he was dismissed and, therefore, was issued retrospectively, but was provided to Revenue before the complainant took up further employment. He also considered that the payslips provided to the Tribunal had been drawn up retrospectively to make it seem like tax and benefits had been paid.
3.7. In relation to the dismissal, the complainant referred to the decision of this Tribunal in the case of 58 named Complainants -v- Goode Concreteand the case of the Labour Court in the case of Campbell Catering -v- Aderonke Rasaq. In that respect, he essentially submitted that these cases indicated that, in disciplinary procedures, employers have a positive duty to ensure all workers fully understand what is alleged against them, and that special measures may be necessary in the case of foreign nationals to ensure that this positive duty is fulfilled. Thus, applying the same procedural standards to a foreign national worker as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination. He submitted that this was what had occurred in their case.
3.8. The complainant submitted that he had issued a form EE.2 and Notice for Particulars, which have never been responded to. He 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.
3.9. The complainant submitted that he was paid approximately €400 per week by the respondent.
4. Summary of the Respondent's case
4.1. The respondent denied the complainant's claim in full. It provided submissions in advance of the hearing but did not appear at the hearing. In that respect, it should be noted that I am satisfied that it received notification of the hearing as I received written confirmation from An Post that the letter in question had been received by the respondent. Therefore, I proceeded with the hearing in the absence of the respondent.
4.2. The respondent submitted that the complainant was employed by it as a general construction worker from 10th September, 2007 until 21st December, 2007. It submitted that he worked 39 hours per week for a gross salary of €453 per week. The respondent outlined the nature and structure of its business, including information in relation to its staff complement at the time in question, and submitted that Mr Fergal Brodigan is Managing Director.
4.3. The respondent denied the complainant's allegation that he was dismissed on 7th January, 2008 after proceedings were issued against it. It submitted, in the first instance, that the claims were misconceived in this respect as, in relation to the alleged victimisatory dismissal, the complainant's employment was terminated on 21st December, 2007, as indicated on his P45, and this was before notice of the complainant's claims were sent. It submitted, therefore, that there was no basis for its claim in this respect. The respondent confirmed it received notification of proceedings being taken by the complainant in or around 4th January, 2008.
4.4. In any event, the respondent submitted that the complainant's employment was terminated due to a reduction in the amount of the respondent's workload. It submitted that the complainant was put on protective notice on 7th December 2007 along with all other employees of the respondent and it provided documentary evidence in this respect. It submitted that, on 21st December, 2007, the complainant and one other employee were dismissed on this basis. It submitted that these two employees were the two most recently employed and it was on that basis that they were selected for redundancy. It submitted that two additional employees have had their employment terminated due to the decrease in the respondent's business, though it also submitted that it had employed an additional employee in or around 24th November, 2008, as a driver.
4.5. The respondent submitted that the decision in Campbell Catering was not relevant to the present complaint as that case concerned a non-Irish national employee who was dismissed for serious misconduct but was not afforded fair procedures in the investigation of the misconduct of which she was accused. It submitted that the complainant in the present case was never the subject of any allegation of misconduct as his employment was terminated due to the reduction of work in the respondent's business.
4.6. On the other hand, it submitted the case of Khumalo -v- Cleary & Doyle Limited as being relevant. It submitted that this case concerned a complainant employed as a general operative by the respondent whose employment was terminated after approximately four months because the respondent's work was winding down. It submitted that the evidence adduced in this case established, as submitted by the respondent, that the complainant was the last person employed. In the circumstances, the Equality Officer found that the complainant had failed to establish a prima facie case of discrimination.
4.7. In summary, the respondent submitted that the complainant's submission that he was dismissed because he notified the respondent of his intention to issue proceedings is without foundation and wholly undermined in circumstances where the complainant's employment was terminated before the said notification was in fact issued. It submitted that none of the facts established by the complainant are of sufficient significance to raise a presumption of discrimination and thereby to shift the onus onto the respondent. In that respect, it submitted that the complainant had failed to establish a prima facie case and that his claim should fail.
5. Conclusions of the Equality Officer
5.1. Section 85A of the 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. Therefore, in deciding on this complaint, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where it 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 77(2) of the Acts provides that victimisation occurs where "dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to (a) a complaint of discrimination made by an employee to the employer..." The only issue for me to decide in this case, then, is whether or not the respondent victimised the complainant in terms of section 77(2) of the Acts, in particular with respect to his dismissal. In other words, whether the complainant was dismissed because he had made a complaint to the Tribunal and/or whether he was otherwise victimised by the respondent. In reaching my decision in this case, I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation.
5.3. I found the evidence of the complainant at the hearing to be credible and, in particular, that the description of his telephone conversation with the respondent was an accurate reflection of that conversation. Therefore, I am satisfied that the respondent threatened the complainant in the course of that conversation that he would not be provided with further employment by it if he did not withdraw his claim to the Tribunal, and that this was a clear and unambiguous attempt to intimidate the complainant into withdrawing his claim. I am further satisfied that, when the complainant refused to comply, the respondent carried through with its threat and provided no further work to the complainant. This is a clear act of victimisation within the meaning of the Acts and the complainant has established a prima facie case in that respect.
5.4. The only further question that might arise in relation to this complaint is whether the complainant was still working for the respondent at the time that the act of victimisation took place. It is clear that the respondent was experiencing a downturn in work. However, I am not satisfied that he was issued with protective notice as alleged by the respondent. Although the respondent provided a copy of a document which it alleged it gave to the complainant, I am satisfied that he did not receive this document.
5.5. I am also satisfied that the complainant worked almost continuously with the respondent for approximately fourteen weeks up until Christmas 2007.
5.6. Having considered all the evidence of both parties, and examined the documentation provided by the respondent in that respect, including what it alleges to be a copy of the P45 provided to the complainant, I am also satisfied that the complainant did not receive a P45. I am satisfied that the P45 that was sent by the respondent to the Revenue Commissioners was sent there directly and a copy was not given to the complainant. Furthermore, I am satisfied that the P45 in question was only issued after the phone call to the complainant from the respondent received on 7th January, 2008 and that no P45 had been issued with respect to the complainant's employment with the respondent before that date.
5.7. While I am satisfied that the respondent did not guarantee that he would have work for the complainant in the new year, I am also satisfied that the complainant was asked to continue to make himself available for work to the respondent pending a decision in the new year as to whether such work would be available. Furthermore, the very fact that the respondent used the threat of not providing the complainant with any more work is, to me, convincing evidence that he considered that there existed a contractual relationship between them whereby the complainant could expect "personally to execute any work or service for" the respondent. Therefore, I am satisfied that a contractual relationship still existed between the parties and that the complainant was still under agreement with the respondent to make himself available to work for it when requested.
5.8. In that context, I have noted that in Byrne -v- Association of Irish Racecourses, the Equality Officer looked at whether a casual employee was under a contract of employment with the respondent. He found that there was a mutuality of obligation on either side to expressly notify the other of the end of the relationship, and that this was, inter alia, a factor in him finding that there was a contract of employment between the parties. Furthermore, as Murphy, J. stated in Henry Denny & Sons (Ireland) Ltd. -v- The Minister for Social Welfare "whether Ms M was retained under a contract of service depends essentially on the totality of the contractual relationship express or implied between her and the appellant and not upon any statement as to the consequences of the bargain"
5.9. Therefore, I am satisfied that the complainant was still employed by the respondent within the meaning of the Acts at the time the victimisation occurred and he has established a prima facie case of victimisation in relation to his dismissal by the respondent. The respondent was not present at the hearing and was not able to rebut the presumption of victimisation with respect to his dismissal raised by the complainant in this respect. Therefore, I find in favour of the complainant.
5.10. Victimisation and victimisatory dismissal are matters the Tribunal takes very seriously. I am satisfied that, while there was no guarantee in this respect, there was a reasonable prospect that the complainant would have obtained further work from the respondent had it not been for the victimisatory dismissal. In any event, he was not afforded that opportunity. In that context, the victimisation served to deny the complainant employment for some, at least, of the three months until he next obtained work. I note that the complainant was working with the respondent for approximately fourteen weeks. Finally, it should be noted that the respondent's treatment of the complainant by the respondent was victimisation irrespective of this and of whether the complainant was still employed by it at the time.
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
6.2. I find that the complainant has established a prima facie case that he was victimised by the respondent in terms of section 74(2) of the Acts in relation to his dismissal, and that the respondent has failed to rebut the prima facie case established by the complainant in that respect.
6.3. In accordance with section 82 of the Employment Equality Acts, I order the respondent to pay to the complainant the sum of €5,500 as redress for the effects of the victimisation with respect to his dismissal and for the distress suffered by the complainant as a result. This award is not in the nature of pay and is, therefore, not subject to tax.
15th April, 2011