THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 127
Mr Antanas Varaksas and Mr Evaldas Zaicinkas (represented by Richard Grogan and Associates, Solicitors)
(in liquidation, represented by Hayes Solicitors)
File References: EE/2009/203
Date of Issue: 24th June 2011
1.1. The case concerns a claim by Mssrs Antanas Varaksas and Evaldas Zaicinkas that MKBS Ltd discriminated against them on the ground of race contrary to Section 6(2)(h) of the Employment Equality Acts 1998 to 2008, in terms of training, conditions of employment, other discriminatory conduct, discriminatory dismissal and, for Mr Zaicinkas, equal pay.
1.2. Mr Varaksas referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 27 March 2009. Mr Zaicinkas did so on 14 April. A submission was received from Mr Varaksas on 16 June 2009 and from Mr Zaicinkas on 24 August. A submission in respect of both complainants was received from the respondent on 30 September 2009. On 6 May 2011, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 18 May 2011.
2. Summary of the Complainant's Written Submission
2.1. The complainants allege that they did not receive a proper contract of employment, did not receive health and safety training or documentation and were dismissed without reason or procedure. Mr Zaicinkas also alleges that a named Irish comparator was paid a higher rate than himself, although he does not specifically claim that he and the Irish comparator performed like work within any of the meanings of S. 7 of the Acts.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating the complainants as alleged or at all. In particular, the respondent denies treating the complainants in any way differently from their Irish staff. The respondent had 13 staff at the material time, of which seven, including the two Directors, were Irish and 6 were non-Irish nationals. The respondent denies that the complainants were discriminatorily selected for redundancy. According to the respondent, the complainants were made redundant because the specific building project they were working on ran into financial difficulties.
3.2. With regard to Mr Zaicinkas' pay claim, the respondent disputes the existence of like work and states that the Irish comparator was a qualified carpenter.
4. Conclusions of the Equality Officer
4.1. Mr Zaicinkas withdrew his complaint of equal pay at the beginning of the hearing. The remaining issues for decision in this case therefore are whether the complainant were discriminated against, and discriminatorily dismissed within the meaning 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 S. 85A of the Acts. 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.
4.3. With regard to the issue of a contract of employment, and health and safety training, both complainants said in evidence that they did not know of anyone else who had received a contract of employment, and that after they had worked for the respondent for a while (2 ½ years in the case of Mr Zaicinkas) and after Mr Varaksas had sustained an injury at work, all staff, regardless of nationality, were sent together on a manual handling training course. I am therefore satisfied that no less favourable treatment arises for the complainants in their terms and conditions of employment on the ground of their nationality, and that this part of their complaint must fail.
4.4. With regard to the complainants' complaint of discriminatory dismissal, Mr Varaksas stated that in his impression, he worked more and better than a Polish co-worker, yet was dismissed while the Polish worker stayed on. Mr Zaicinkas stated that when he was dismissed, he was given two weeks' notice and was told that work would start again in the summer. Three Irish workers, three Polish workers and one Slovak worker were left in the company after Mr Varaksas was dismissed. Three Latvian workers were dismissed before the complainants were dismissed.
4.5. The respondent's managing director, Mr M. stated in response that the Polish worker referred to had a year's more service than Mr Zaicinkas. Mr Zaicinkas's service with the respondent was in excess of three years, Mr Varaksas's was under a year. According to Mr M., the complainants were made redundant because the company ran into financial difficulties, when payment from a property developer they were working with on various projects failed to materialise. The Polish worker was let go six weeks later, as were two Irish workers, one of whom was the managing director's own father, who had founded the business in 1984. The complainants did not challenge this evidence.
4.6. I am therefore satisfied that it was the respondent's business difficulties, which ultimately resulted in the liquidation of the company, that led to the complainants' dismissal, and that a last-in-first-out approach generally applied to the order in which redundancies were effected. There is nothing in the evidence before me which would give rise to an inference that the complainants were discriminatorily selected for redundancy because of their nationality. Accordingly, their complaint for discriminatory dismissal on the ground of race cannot succeed.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent did not discriminate, and did not discriminatorily dismiss, Mr Antanas Varaksas and Mr Evaldas Zaicinkas on the ground of race contrary to S. 8(1) and 8(6) of the Acts.
24 June 2011