MR. RICARDAS BARZDA
(REPRESENTED BY RICHARD GROGAN AND ASSOCIATES-SOLICITORS)
SEAN GLEESON CONSTRUCTION LIMITED
(REPRESENTED BY SHEIL SOLICITORS)
FILE NO: EE/2007/638
Date of issue: 29th April 2011
1.1 This dispute involves a claim by Mr. Ricardas Barzda that, he was discriminated against by Sean Gleeson Construction Limited on grounds of race, in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts, in relation to access to employment, conditions of employment, training and that he was not paid in accordance with the REA rate for his grade. It is further submitted that the complainant was dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2)(h) and contrary to section 8 of those Acts.
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal, on 4th December 2007 alleging that the respondent had discriminated against him on grounds of race when he was dismissed from his job without any reason or proper procedure. The complainant further submitted that he did not receive any proper contract of employment, Health & Safety documentation or training and that he was not paid at the correct REA rate and that this was due to his race.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 4th of June, 2010 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to a Hearing on the 8th of April, 2011.
3. Summary of complainant's case
3.1 The complainant states that he is a Lithuanian national and submits that he was employed by the respondent from November 2003 to August 2007. The complainant has submitted that he was employed as a brick layer and that he was not paid in accordance with REA rates for that grade and that this was due to his race.
3.2 The complainant states that, he did not receive any contract of employment, Health & Safety documentation or training. The complainant submitted in advance of the hearing that, he was dismissed on his return from holidays having advised the respondent that he had to stay in Lithuania to have his teeth fixed. The complainant submits that he was dismissed without any proper procedure.
3.3 The complainant has also submitted that the respondent had not paid correct tax on his behalf and he was concerned that his tax affairs were not in order.
3.4 The complainant submitted that he must establish a prima facie case and cited the Labour Court case of Southern Health Board v Mitchell in support of this contention.
3.5 The complainant referred to the Equality Tribunal case 58 named Complainants v Goode Concrete Ltd. in relation to dismissal, contract of employment and Health & Safety. The complainant seeks to rely on the Campbell Catering case in his contention that there is a requirement that the respondents take special measures to advise the complainant as a foreign national of his rights.
4. Summary of respondent's case
4.1 The respondent submits that the complainant was employed by them from February 2006 to August 2007 as a general operative. The respondent has submitted that the complainant was not employed as a brick layer but as a general operative and that he was paid in accordance with REA rates for that grade.
4.2 The respondent accepts that the complainant was not furnished with a contract of employment and states that none of his employees have ever received contracts of employment. The respondent submits that this is a matter which he should rectify but states that it is due to the nature and size of his business and is applied to all employees equally and is not in any way related to the complainant's race.
4.3 The respondent further submits that he furnished the complainant with a safety statement together with training in his own language.
4.4 The respondent submits that the complainant was dismissed due to insufficient work and submits that the complainant was treated no differently than any employee of any nationality in this regard. The respondent further submits that he told the Complainant that if business improved he would offer him work again.
4.5 The respondent submits that all PAYE Tax and PRSI contributions were properly deducted and passed on the Revenue and that these are detailed on pay slips as well as on the complainants P60 and P45.
5. Conclusions of the Equality Officer
5.1 The issues for decision by me are now whether or not, Sean Gleeson Construction Limited (i) discriminated against the complainant on grounds of race, in terms of section 6(2) (h) of the Employment Equality Acts, 1998 to 2008 in relation to access to employment, conditions of employment and training and (ii) dismissed the complainant in circumstances amounting to discrimination on grounds of race in terms of section 6(2) (h) and contrary to section 8 of those Acts.
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 at the Hearing.
5.2 Section 6(1) of the Employment Equality Acts, 1998 and 2004 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 two persons ..... that they are of different race, colour, nationality or ethnic or national origins... "
Thus the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because his is Lithuanian. 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.
5.3 Conditions of employment
5.3.1 On the day of the hearing the complainant indicated that he did not receive a contract. The complainant stated that he did not know whether or not any other employees had received contracts. The respondent at the hearing stated that, none of his employees received contracts and that this was due to the nature and size of his business. The respondent stated that he works out of the back of a van and travels from site to site where work is available. The respondent advised the hearing that, at the time of the complainant's employment, the complainant was one of 6 employees, two Irish, two Polish and two Lithuanian none of whom received contracts. Accordingly, based on the totality of the evidence given I do not find that the complainant has established a prima facie case of less favourable treatment on the ground of race in relation to this matter.
5.3.2 The complainant had submitted, prior to the hearing, that he was employed as a bricklayer but, that he was not paid at the correct REA rate for a bricklayer and that, this was due to his race. It would appear from the evidence given by both parties that there was confusion on the part of the complainant regarding whether he was employed as a bricklayer or as a general operative. However, it is not for me to decide on any question as to the interpretation of an REA or its application to a particular person and the Industrial Relations Act 1946 (as amended), provides that the jurisdiction for these matters rests with another forum. In addition, the Employment Equality Acts provide that, claims in relation to remuneration should be pursued under Sections 7, 19 (in relation to gender) and 29 (in relation to race and other grounds). These sections provide the statutory basis for complaints in relation to remuneration including the requirement to establish "like work" between a complainant and comparator. The Acts therefore preclude me from considering a complaint in relation to pay other than under these sections. For these reasons, I do not find that the complainant has established a prima facie case of less favourable treatment on the ground of race in relation to this matter.
5.3.3 As regards the complainant's claim that he did not receive any Health and Safety training, the complainant, at the hearing, stated that, a safety talk was provided on each site he worked at and that this was usually in the form of a video. The respondent clarified that these talks were provided by the main contractor on each site where the respondent was employed as a sub-contractor. The complainant stated that this was in English and that all employees signed a document afterwards to indicate that they understood the safety talk. The complainant advised the hearing that he had signed this document after each safety talk. I questioned the complainant as to whether he actually understood these safety talks and he stated that he did understand them as it was pretty much the same as material he had covered on his safe pass course. Accordingly, based on the totality of the evidence given I do not find that the complainant has established a prima facie case of less favourable treatment on the ground of race in relation to this matter.
5.3.4 On the day of the hearing the complainant indicated that, he did not receive any Health and Safety statement. The complainant could not say whether any other employee had received a Health and Safety statement. The respondent stated that a Health and Safety booklet and Reference manual was made available in all languages and was shown as part of the safety talk on each site prior to beginning work on the site. This was not disputed by the complainant at the hearing. The Respondent at the hearing advised that as the Health and Safety manual is a bulky and lengthy document, copies of it are not provided to individual employees. I am satisfied that the respondent's evidence on this point was credible and accurate. Accordingly, based on the totality if the evidence given I do not find that the complainant has established a prima facie case of less favourable treatment on the ground of race in relation to this matter.
5.3.5 As regards the complainant's concerns re his tax affairs, the respondent, at the hearing produced payslips and tax deduction cards detailing the complainant's tax contributions as well as a P35L statement submitted to the Revenue Commissioners. The complainant at the hearing conceded that he may have received some payslips but not always. The complainant at the hearing accepted that the respondent had paid tax correctly on his behalf. Accordingly, based on the totality of the evidence given I do not find that the complainant has established a prima facie case of less favourable treatment on the ground of race in relation to this matter
5.4 Discriminatory Dismissal
5.4.1 Turning to the complaint of discriminatory dismissal. At the hearing, the complainant outlined his version of events surrounding his dismissal. He indicated that, he went home for a few weeks and after he returned he was told there was no job. The complainant, at the hearing, stated that he had gone to Lithuania for 5-6 weeks during which he was to have his teeth fixed and stated that he had discussed this matter with the respondent before he left. The respondent at the hearing agreed that the complainant advised him that he would be going to Lithuania for a few weeks and that he would be having his teeth fixed. The respondent stated that he understood that this would be for a period of about 2 weeks but, said he told the complainant that as they did not have much work on, he would contact the complainant when he did have work for him again. The respondent agreed that the complainant did stay longer than 2 weeks but says this did not concern him as didn't have much work on anyway so did not need him to return. He added that there was certainly no bad feeling over it. The complainant in response to direct questioning advised the hearing that the respondent had said that he would phone him if he was needed for a job.
5.4.2 The complainant advised the hearing that he sent a text message to the respondent prior to his return indicating that he would be back on 1 September. The complainant stated that he received no response to this text. The complainant further stated that when he got back he was told there was no work and was given his P45. The complainant could not say if anyone else was let go at this time. The complainant's evidence regarding the events surrounding his dismissal, was unclear and confused as he described the events of his dismissal and then indicated that he was re employed by the respondent at a later date. It emerged at the hearing that the complainant had been employed by the respondent on and off on a number of occasions as and when the respondent had enough work for him. The respondent provided details of these employment periods from his records and these covered 3 periods between May 2004 and August 2007. The respondent advised the hearing that at the time of the complainant's employment the complainant was one of six employees, two Irish, two Polish and two Lithuanian. The respondent also stated that, due to the downturn in the economy, he had to let all except one employee go and that this remaining employee only works for him 3 days a week.
5.4.3 Having regard to 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 he was treated less favourably than an Irish person or a person of a different nationality was treated in similar circumstances, in relation to his dismissal. I am satisfied that the reasons put forward by the respondent for the dismissal of the complainant were in no way connected to his nationality and that Irish employees and employees of a different nationality were dismissed in similar circumstances. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to his dismissal.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -
(i) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against him on the ground of race pursuant to section 6(2) of the Acts in relation to access to employment, conditions of employment and/or training contrary to section 8 of the Acts
(ii) the complainant has failed to establish the facts from which it may be presumed that he was dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) and contrary to section 8 of those Acts.
29 April, 2011