The Equality Tribunal
3 Clonmel Street
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
Employment Equality Acts 2000 to 2008
EQUALITY OFFICER'S DECISION
Stoskus and Vaitkevicius
(Represented by Grogan and Associates Solicitors)
Goode Concrete Limited
(Represented by Reidy Stafford Solicitors)
File No. EE/2008/632 and 633
Date of Issue: 7 March 2011
File references: EE/2008/632 and 633- DEC-E2011-044
Employment Equality Acts - Discriminatory treatment -Discriminatory dismissal - Race- Family Status - Prima Facie Case
1. Dispute and delegation
1.1 This dispute concerns claims by Messrs. Linas Stoskus and Tomas Vaitkevicius (hereafter "the first complainant" and "the second complainant") that they were subjected discriminatory treatment by Goode Concrete Limited (hereafter "the respondent") on the grounds of their race and, in the case of the first complainant, his family status. The complainants submitted that they were treated less favourably than Irish employees were treated because they were not provided with a contract of employment, health and safety documentation in a language likely to be understood by them. Furthermore, the first complainant claims that he was treated less favourably on his family status ground when his van was taken from him and he subsequently was asked to work at another site. The second complainant submitted that he was discriminatorily dismissed on 13 June 2008.
1.2 The complainants referred their claims of discrimination to the Director of the Equality Tribunal on 29 September 2008 under the Employment Equality Acts. On 16 July 2010, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- 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. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 20 December 2010.
2. Case for the complainants
2.1. The complainants are both Lithuanian nationals. Both complainants submitted that they were given contracts of employment in English. The second complainant submitted that the health and safety documentation he received was in English.
2.2. The first complainant, a married man with children aged 14 and 4 at the material time, worked as a mechanic in the respondent's Kinnegad base. He had a company van to enable him to carry out roadside repairs. He stated that the van was taken from him and he submitted that he was asked to work in Ballycoolin. No consideration was given to his family status. The complainant has a private car but it was required by his wife who needed it to transport her children to school. The removal of the first complainant's van meant that he had no means of getting to the Ballycoolin site where he was expected at 7 am. The fact that the complainant's contract was in English meant that he did not know he could have availed of the respondent's grievance procedure. It was submitted that the complainant has a car but that this is required by his wife. The complainant submitted that the school bus tickets were expensive.
2.2. The second complainant stated that he was told that the plant he was working on was closing and that there would be no work for him. Then he was told that there would be work but when he turned up on the site he was told that there was no work. It was submitted that no proper procedures were applied in relation to his dismissal.
3. Case for the respondent
3.1. The respondent refuted the claims made by the complainants. The complainants were both provided with contracts of employment. It was accepted that the contracts were in English. It was submitted that the Equality Tribunal has no jurisdiction investigate complaints concerning written terms of employment unless the complainant can show that non-Irish workers were treated less favourably than Irish workers were in a comparable situation.
3.2. The respondent submitted that even if the argument that the second complainant's health and safety documentation ought to be in the complainant's native language were to be accepted, such an approach would itself lead to potentially discriminatory situations. For example, potential employees would have to be tested to assess their proficiency and employers would face extra costs having to translate documents to a 'native language'. The respondent submitted Clare Civil Engineering v Ostojic, Arbuzovs, Majasojedvos and Plonkis (EDA101) as an authority in the matter.
3.3. The respondent submitted that the first complainant simply did not wish to commute to another site where work would have been available for him. A school bus ticket would have cost him approximately 6 euro a week. It was a term in the first complainant's contract that he could be moved to another site within the company.
3.4. The second complainant was dismissed because the plant that he was working on was closing and the respondent commenced making employees redundant on a last-in first-out basis. The complainant was the last person to be employed there so he was the first one to go.
4. Conclusion of the equality officer
4.1. 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 Employment Equality Acts 1998 to 2008. 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. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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".
4.2. In relation to the preliminary objection concerning the issue of time limits. The Acts clearly impose requirements concerning the referral of a claim for redress. Section 77 governs this area and in normal circumstances requires a complainant to make a referral within 6 months from the date of occurrence of discrimination (12 months on application to the Director or the Circuit Court in cases where there is reasonable cause). The Acts do allow for investigation extending longer periods where the complainant can establish the treatment to be on-going discrimination. I am satisfied that provided that the complainant can show facts from which an inference of discrimination can be drawn, a contract of employment may, in certain circumstances, constitute on-going discrimination. Therefore, this Tribunal has the jurisdiction to investigate and hear the facts of this case and issue a decision accordingly.
4.3. I find that the complainants had both received written contracts of employment in English, the same as other employees. The investigation was provided with no facts from which an inference of less favourable treatment in relation to Irish workers could be drawn. Similarly, no evidence was offered in relation to health and safety documentation.
4.3. The first named complainant submitted he believed the respondent wanted to select him for a redundancy and that this is the reason why his van was taken from him and he was asked to move to another site. This fact was disputed by the respondent who submitted that the complainant was offered alternative work at another site but that the complainant simply did not wish to commute there. The matter of the alleged dismissal is not a matter for this Tribunal as no claim in relation to such has been referred to it.
4.4. In relation to the matter of discriminatory treatment. It was accepted that the complainant had a company van but that it was taken away from him. The respondent submitted that the reason for this was that it had begun to phase out company vans as a cost saving measure. In reply, the complainant stated that he knew of another non-Irish national doing similar work than himself who had been able to keep his van. He also named an Irish manager who kept their company cars. I do not find that a manager is an appropriate comparator for the circumstances of this case as their duties and terms of contract are likely to be different from the complainant's. The complainant's own evidence is proof of the fact that the van was not taken from the first complainant because of his nationality. I do not find that the first complainant's argument that he, as a family man, ought to have been entitled to keep his van so as to enable him to commute to work and that the removal of said van constituted less favourable treatment on the family status ground. It is clear that the complainant had been provided with a van for the purposes of his work and that this had been beneficial for him in the past. While I note that the complainant stated that other persons kept their vans, he has shown no facts supporting a claim of less favourable treatment on the family status ground. The complainant has not been able to show that a van was an express/implied term of his contract of employment and/or that it was a permanent condition of employment enjoyed by the respondent's employees and that the reason why it was removed from him had anything to do with his family status. The mere fact that a person has a family does not give rise to an entitlement to transport. I accept the respondent's submission that the vans were removed as a cost saving measure. Having heard the facts of this case I am satisfied that the complainant has not been able to show evidence to suggest that the van was removed from him because of his nationality and/or family status.
4.5. The second named complainant has not shown any evidence to support his assertion that he was discriminatorily dismissed. It is clear that the respondent had selected a majority of its employees for redundancy regardless of nationality. The complainant has provided no comparator to suggest that non-Lithuanians were treated more favourably in the circumstances of this case.
5.1. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that both the complainants have failed to establish a prima facie case of discrimination on the race ground. Therefore, these claims fail.
5.3. I find that in relation to the first named complainant he has failed to establish a prima facie case of discrimination on the family status ground. Therefore, this claim fails.
5.4. I find that the second named complainant has failed to establish a prima facie case of discriminatory dismissal on the race ground. Therefore, this claim fails.
7 March 2011