THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 082
(represented by Richard Grogan and Associates, Solicitors)
Alan Donnelly & Chris McGovern t/a Homeplan Developments
(represented by Plunkett Kirwan & Co., Solicitors
File References: EE/2007/344
Date of Issue: 27th April 2011
File references: EE/2007/344 - DEC-E2011-082
Employment Equality Acts 1998-2008 - sections 6, 8 and 14A - access to employment - discriminatory treatment - conditions of employment - health & safety training and documentation - harassment - discriminatory dismissal - claim in relation to a collective agreement - race.
1.1 This case concerns a complaint by Mr. Robertas Rimkus, a Lithuanian national, who claims that he was discriminated against by Alan Donnelly & Chris McGovern t/a Homeplan Developments on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of access to employment, discriminatory treatment, discriminatory dismissal and a claim in relation to a collective agreement. He also claims that he was subjected to harassment contrary to section 14A of the Acts.
2. Delegation of the complaint
2.1 Mr. Robertas Rimkus referred a complaint under the Employment Equality Acts, 1998 to 2008 to the Director of the Equality Tribunal on the 9th July 2007. In accordance with her powers under section 75 of the Acts, the Director then delegated the case to me, James Kelly, an Equality Officer on the 25th November 2009, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, this is the date I commenced my investigation. A written submission was received from both the complainant and from the respondent. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to a hearing of the case on the 24th March 2011.
3. Summary of the Complainants' case
3.1 Mr. Rimkus claims that he moved to Ireland in 2005 and was employed by the respondent as a general operative from August 2006 until 11th May 2007 doing general construction duties, including ground works, fixing plaster-board and mixing concrete. He stated that there were a number of other employees of various nationalities employed by the respondent doing similar duties to him during his period of employment, namely from Ireland, Romania and another man from Lithuania. He claims that he did not receive a written contract of employment; he also claims that he never received any health & safety training or documentation while working with the respondent. Mr. Rimkus was not aware if any of his fellow employees received contracts of employment or health & safety training or documentation. He disputes the respondent's claim that he received training in his own language from a colleague working there.
3.2 Mr. Rimkus claims that he was not paid in accordance with the specific Registered Employment Agreement for the Construction Industry (REA) nor was he joined into the Pension and Sick Pay Scheme. He claims that he was unaware if any of his fellow workers were paid in accordance with the REA or were entered into the Pension and Sick Pay Scheme. In his submission he contends that in line with the reasoning in the Campbell Catering Limited Case it have would been reasonable to argue that there was a legal obligation on the respondent to advise the complainant of his rights and in particular that it was covered by the REA for the Construction Industry.
3.3 The complainant claims that he contacted his Trade Union and sought advice in relation to the rate of pay entitlements for the job he was employed to do, and he claims that he was told that he was being paid far less than his entitlement under the REA. He claims that he started discussing this with his colleagues at work the following day when one of the Irish workers Mr. A, came into the room and said that the bosses were in the next room and had heard everything that he had said. He claims that was the beginning of the end of his work with the respondent, within a few weeks he was told there was no further work for him.
3.4 In his evidence, the complainant claims that he was not liked by either of the two named owners of the business and that he was regularly made to feel uncomfortable when they were around. He claims that they would often used bad language and targeted it at him. He claims that none of the other workers were ever cursed at. He claims that Mr. Donnelly made snide comments about how the Russians treated the Lithuanians, which he had observed from his travels to the Baltic States in the 1980's. Mr. Rimkus claims that this was aimed at him to make him feel uncomfortable.
3.5 In his legal submission the complainant's legal representative submitted that the respondent's failure to provide a contract of employment and health & safety training and documentation in his own language, or a language he could understand was in breach of the Acts. He claims that as the complainant was a foreign national the respondent had a responsibility to take special measures to protect him. He said that following the Decision of the Tribunal in 58 Named Complainants -v- Goode Concrete Limited, that there is an obligation on an employer to provide employees with a written contract of employment and health & safety training documentation in a language which they can understand. It was the complainant's submission that the respondent's failure to provide this amounts to discrimination within the meaning of the Acts.
4. Summary of the Respondent's case
4.1 The respondent claims that it has been involved in a light construction and shop/office fit business since 2005. It employed approximately 6 people at the height of its business activity which were either semi-skilled or un-skilled to carry out general construction type duties. It claims some employees were more skilled than others and it named and rated the skill set level of each of its 6 employees. It claims that it subcontracted the skilled aspects of the jobs to other qualified tradespersons when required. It claims to have employed people from Ireland, Lithuania and Romania. It disputes that it discriminated against, or harassed, Mr. Rimkus on the race ground. It claims there were no problems while he worked there.
4.2 The respondent does not dispute that the complainant was employed with it and is no longer working there. The respondent does not dispute that the complainant did not get a contract of employment. However, the contents of the contract were agreed orally beforehand. It claims that everyone was treated the same in relation to this and no one got contracts of employment at the time. It claims that contrary to the evidence from the complainant, Mr. Rimkus was provided with health & safety documentation and training in his own language by a named employee, also a Lithuanian national, who the respondent claims had excellent English. It claims that the training was provided in the form of regular "toolbox talks", and this evidence was corroborated by one of its witnesses at the hearing, Mr. A. It claims that Mr. Rimkus never informed them that he did not understand anything. It also claims that Mr. Rimkus held a Safe Pass card when he started working with it and that all workers were required to have that training.
4.3 In its submission it noted that the issue in relation to pay is not with regard to an equal pay claim but rather in relation to the correct rate of pay under the REA. The respondent disputes that the complainant was discriminated in relation to his pay. It claims that he was not treated any differently to any other general operative working with it at the time. It went through the different levels of pay for the various workers and it claims that Mr. Rimkus was not singled out for unfavourable treatment in this regard. It claims that he was paid in accordance with his skills and the role he preformed. In relation to the Construction Workers Pension and Sick Pay Scheme the respondent claims that it did not pay into that scheme for any of its employees as it submits that it was not obliged to do so. The respondent asked me not to consider the notional comparator as requested by the complainant as there are real comparators which the complainant has chosen to ignore in this instance.
4.4 The respondent claims that it did not discriminatorily dismiss the complainant under the race ground. It claims that due to the downturn in business Mr. Rimkus as well as two Irish workers were given two weeks notice that they would be let go. It claims that it paid the complainant his two weeks notice and he was not required to work the last week. It presented Mr. A as a witness and he stated that he was also let go in and around the same time as the complainant. He also claims that he was given "at least two weeks notice".
4.5 In relation to the claim of harassment, Mr. Donnelly said that he totally refuted the claim lodged against it. Firstly, he claims the discussion the complainant claims about how Lithuanians were treated in the 1980's never happened. He said that he had never travelled to the Baltic States and was upset by the claim lodged against him. He claims that Mr. Rimkus was never targeted in any way while he worked with them. He said bad language is a part of life in the building construction industry, it is used and he does not deny that. However, he claims that it was never used in any away to target the complainant or to create an environment of harassment for him or anyone else. Mr. A, claims that he never had a problem with his employers or ever witnessed anyone else having any problems while he worked with the complainant for the respondent. He claims that he never observed any problems with or for the complainant while he was there, in particular no targeted harassment towards him. Mr. A said he does not recall any discussion with the complainant about pay rates or ever informing the complainant that the employers heard him discussing the pay rates with other employees from an adjoining room.
5. Conclusions of the Equality Officer
5.1 Section 85A of the Employment Equality 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case 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 6(1) of the Employment Equality Acts, 1998 to 2008 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).....". Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins".
In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
Conditions of employment
5.3 Firstly, the complainant has submitted that the Decision of this Tribunal in 58 Named Complainants -v- Goode Concrete Limited places an obligation on an employer to furnish non-Irish employees with a contract of employment and health & safety documentation in a language which they understand. I am of the view that this is an incorrect interpretation of that Decision. In that case the Equality Officer found that in circumstances where an employer furnishes its employees with contracts of employment and/or health and safety statements it constitutes less favourable treatment of non-Irish employees if the respondent provides them with a contract of employment in English and not in a language which they can understand. I note that the Equality Officer went on to make an order to "put in place clear procedures for ensuring that non-national employees are clear as to their terms and conditions of employment and also understand all safety documentation" rather than specifying that the contract of employment and/or health and safety statement should be provided in those employees native language, or any other language for that matter. Therefore, the clear principle in the Goode Concrete case was to place the onus on the respondent to make reasonable efforts to ensure that the relevant employees understood their rights and that it ensured that they were not treated less favourably than someone else who was made aware of those rights.
5.4 In considering this issue, I have also taken cognisance of the recent determination of the Labour Court whilst examining the circumstances in which the probative burden of proof operates held as follows:-
"Section 85A of the Act 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."
5.5 I will now consider the issues that have been raised by the complainant in relation to the respondent's alleged failure to provide him with a written contract of employment and health & safety training and documentation which he contends constitutes unlawful discrimination of him on the grounds of race contrary to the Acts. It was submitted that the Tribunal should infer that he has been subjected to less favourable treatment on the grounds of his race and, accordingly, that the burden of proof should shift to the respondent to rebut the inference of discrimination.
5.6 In the present case, the respondent claims that it agreed an oral contract of employment with everyone and that health & safety documentation and training was provided to everyone in the same way. I note the evidence of the complainant where he claims that he did not receive any documentation or any training. However, he is not aware if the other workers received the same. Notwithstanding the disputed position of the parties in relation to this aspect of the claim, having studied the evidence and in consideration of the Labour Court decision in Melbury I am satisfied that I have not been presented with any evidence to support that the complainant was treated any differently not to mind less favourably than any of his fellow workers. Having regard to the totality of the evidence adduced, I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that he was treated less favourably than his fellow workers including the Irish persons working there, which I am satisfied are the correct comparators in this case; Mr. A confirmed that he performed similar duties as the complainant. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of the complaint.
5.7 The next element of the complaint concerns the allegation that the complainant was subjected to discrimination because he was not paid in accordance with the REA for the Construction Industry nor was he included in the Construction Workers Pension and Sick Pay Pcheme. I note that the complainant could not confirm if any of the other employees were paid in accordance with the REA or entered into the Pension and Sick Pay Scheme. I also note the evidence from the respondent where he claims that everyone was treated equally in relation to pay and entitlements. In the present case, I accept that the complainant has adduced evidence to suggest that he may have been treated badly by the respondent in terms of the rate of pay and his entitlement in accordance with a particular REA or entry into particular Pension and Sick Pay Schemes. That said, I am satisfied that I do not have any jurisdiction to decide whether or not the respondent was in breach of his obligations under the relevant employment legislation in relation to the category of persons entitled for inclusion under the REA of the Pension and Sick Pay Scheme.
5.8 Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that unfavourable treatment, in the absence of evidence of less favourable treatment, is insufficient to establish a prima facie case of discrimination under the Employment Equality Acts. Accordingly, the complainant must firstly be able to demonstrate some significant evidence of less favourable treatment and this treatment must be linked to his race in order to raise an inference of discrimination. Accordingly, I find that the complainant has failed to present evidence for him to establish a prima facie case of discrimination on the grounds of his race.
5.9 The next element of the complainant's claim concerns the allegation that he was subjected to a discriminatory dismissal on the grounds of his race. The complainant stated in evidence that he was dismissed by the respondent without any proper procedure as a result of him bringing up the issue about the appropriate pay for the job with his fellow workers within ear shot of his employers and that he was told by Mr. A. that they had heard him. I note Mr. A's evidence that he does not ever recall any conversation or incident of this nature. I also note the respondent's evidence that 3 people were let go at the same time due to the down turn in business, including the complainant and Mr. A, and I note Mr. A confirming that he was let go at that time and he was told it was because there was no work. In considering this issue, I prefer the evidence of the respondent in this case which has been corroborated by Mr. A. I am not satisfied that the complainant has adduced any evidence to substantiate his claim that he was dismissed because of his race. Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that in order to raise an inference of discrimination on the grounds of race, the complainant must be able to demonstrate some significant evidence of less favourable treatment and this treatment must be linked to his race. Based on the totality of the evidence adduced in the present case, I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that the termination of his employment was in any way influenced by his race. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to dismissal on the grounds of his race.
5.10 The complainant suggested that he was subjected to targeted harassment, while he was working with the respondent. He claims that bad language was used towards him, and no one else, and he refers to a particular incident involving Mr. Donnelly's snide remarks about Lithuanians. I note Mr. Donnelly's evidence firmly contradicts that of Mr. Rimkus and I note he appeared somewhat surprised and genuinely offended that such a claim was leveled at him at the day of the hearing (the detail of the harassment was not presented in the submission previously). I note the evidence of Mr. A, who worked with both parties and he claims he did not witness any problems and in particular did not witness a targeted attack on the complainant. Having considered all the evidence presented, I found the complainant's evidence in relation to Mr. Donnelly's alleged comments to be unconvincing. In that context I find the respondent's evidence to be more credible in relation to this aspect of the claim. I also note that Mr. A's evidence corroborated the respondent and goes against the complainant's evidence on a number of occasions, including the alleged conversation about the employers overhearing the discussion about pay rates. Accordingly, I am satisfied that the complainant has failed to establish a prima facie case of harassment contrary to the Acts.
Access to employment
5.11 The complainant did not present any oral or written evidence in relation to this part of the claim. Accordingly, I am satisfied that the complainant has failed to establish a prima facie case regarding access to employment.
Claims in relation to a collective agreement
5.12 The complainant did not present any oral or written evidence in relation to this part of the claim. Accordingly, I am satisfied that the complainant has failed to establish a prima facie case regarding a claim of discrimination in relation to a collective agreement.
6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2) of the Acts in terms of their conditions of employment, access to employment and training contrary to section 8(1) of the Acts.
the respondent did not subject the complainant to harassment contrary to section 14A of the Acts.
the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2)(h) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts.
the respondent did not subject the complainant to discrimination in relation to a collective agreement.
Accordingly, I find in favour of the respondent in this matter.
27th April 2011