THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
DEC - E2011 -086
(represented by Grogan and Associates Solicitors)
James Smith Fencing
File reference: EE/2009/069
Date of issue: 28th April 2011
Keywords: Employment Equality Acts, Race, Conditions of employment, Training, No prima facie case
1.1 The case concerns a claim by Mr Ruslanas Asismametovas, a Lithuanian National, against James Smith Fencing. His claim is that he was discriminated against regarding conditions of employment and training on the grounds of race contrary to 6(2)(h) of the Employment Equality Acts 1998 - 2008 [hereinafter referred to as 'the Acts'].
1.2 Through his legal representative, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 2nd February 2009. On 25th March 2011, 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. A written submission was received from the complainant. No submission was received from the respondent. A Hearing was held on 6th April 2011 as required by Section 79(1) of the Acts.
Summary of the complainant's case
2.1 The complainant was employed as a fencer i.e. erecting and mending fences.
2.2 He submits that he did not receive a contract of employment. In relation to this, the complainant cites 58 complainants v Goode Concrete. Mr Asismametovas also maintains that he never received proper Health and Safety documentation or training.
2.3 Mr Asismametovas submits that he was not paid for travelling time. He also maintains his P45 was incorrectly filled out which delayed the complainant obtaining Jobseekers Benefit. He alleges that Mr Smith was doing this to evade paying tax and PRSI contributions.
2.4 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 make a written submission but attended the Hearing. He submits that on four separate occasions Mr Asismametovas left his employment voluntarily but came back looking for work again. Mr Smith submits that all employees received Safepass training. He submits all other training was on-the-job. He said that no employee received a written contract of employment.
3.2 Mr Smith refutes incorrectly filling out the P45 form - he submits that his accountant would have looked after that and it would not be in the accountant's interest to fill it out incorrectly. He vehemently denies that he was trying to evade tax or his obligations as an employer regarding PRSI contributions.
3.3 In relation to travelling time, he accepts that he did not pay the complainant for commuting to work. This is because he offered all employees the choice of travelling by themselves or by transport provided by him. Mr Smith maintains that he cannot be expected to pay on the double - for providing transport and for the time it takes employees to get to work. He also denies that Irish employees were paid more - all fencers were paid €70 a day.
3.4 The respondent was a sole trader. He no longer has any employees and is in receipt of Jobseekers Benefit himself. He submits that his financial circumstances are not good.
Conclusions of the Equality Officer
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:
(i) whether Mr Asismametovas was discriminated against in relation to his conditions of employment by the respondent
(ii) whether he was discriminated against regarding training
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 The first issue raised by the complainant relates to the respondent's alleged failure to furnish the complainant with a written contract of employment. It should be noted that there is no general obligation on an employer to provide an employee with a written contract of employment. There is however, a requirement on employers to provide employees with a written statement of certain terms of their employment under the Terms of Employment (Information) Act 1994. Enforcement of rights under this statute rests with a Rights Commissioner (at first instance) and not this Tribunal. Regarding the written statement of terms and conditions of employment as well as the health and safety statement, the complainant has failed to establish a difference of treatment between him and the other employees in the company. I accept the respondent's contention that no employee, irrespective of nationality, received a written contract of employment or a copy of the Health and Safety Statement in English or an other language. Therefore, this strand of his complaint fails.
4.4 A complainant cannot bring an equal pay complaint disguised as a discriminatory conditions of employment complaint. Section 8(6) specifically states:
(6) Without prejudice to the generality of subsection (1), an
employer shall be taken to discriminate against an employee or prospective
employee in relation to conditions of employment if, on any
of the discriminatory grounds, the employer does not offer or afford
to that employee or prospective employee or to a class of persons of
whom he or she is one --
(a) the same terms of employment (other than remuneration
and pension rights), [my emphasis]
Therefore, I cannot examine his allegation regarding being paid a lower wage to that paid to the Irish employees as equal pay has not been claimed. Even if equal remuneration had been claimed, no evidence was adduced that other employees were paid a higher wage.
4.5 Regarding his P45, I have no jurisdiction to examine Revenue and Social Insurance matters unless evidence is adduced that employees have been treated in a discriminatory way. No such evidence has been adduced.
4.6 I accept the respondent's contention that he paid for and gave time off for Safepass training. This was not denied by the complainant. Therefore, this aspect of his case fails.
4.7 Regarding the totality of the complainant's evidence, I am reminded of the Labour Court case Barnmac Contracting Ltd and Silys and Volkovas:
It would clearly be impermissible for the Court to reach conclusions of fact based upon mere supposition or speculation. Moreover, the Court is aware from its own knowledge and experience of many cases in which workers in the construction industry of Irish nationality have brought similar complaints to those advanced by the complainants under the appropriate legislation. There is no reliable basis upon which the Court could assume, without evidence, that the type of default relied upon by the complainants in this case would not have occurred if they were of a different nationality.
I have concluded my investigation of Ruslanas Asismametovas's complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i) the complainant has failed to establish facts that he was discriminated against by the respondent regarding his conditions of employment on the ground of race.
(ii) the complainant has failed to establish the facts that the respondent discriminated against regarding training on the grounds of race.
Therefore, the complaint fails in its entirety.