THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 046
Mr Genadijus Kapitanovas
Martin Tate Ltd. (in liquidation)
File Reference: EE/2008/004/231
Date of Issue: 9th March, 2011
Headnotes: Employment Equality Acts, 1998 & 2004, section 6, 8, 14 and 77 - Section 6(2)(h), race ground - Section 8(i)(a), conditions of employment - Section 8(i)(c), training - Section 14A, harassment - Section 74(2), Victimisation - Equal treatment, defective vehicles - compensation claim - victimisation - Family Income Supplement (FIS)
1.1. This case concerns a complaint by Mr. Genadijus Kapitanovas (hereinafter referred to as "the complainant") that he was discriminated against by Martin Tate Ltd. (hereinafter referred to as "the respondent") on the grounds of race (with respect to his nationality) contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 ("the Acts") in relation to conditions of employment and training contrary to sections 8(1)(b) and 8(1)(c) of the Acts, that he was harassed by the respondent contrary to Section 14A of the Acts, and that he was victimised by the respondent contrary to Section 74(2) of the Acts.
2.1 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 7th January, 2008, alleging that the respondent had discriminated against him on the ground of race (with respect to his nationality). The complainant issued a further claim of victimisation to the Tribunal on 15th April, 2008.
2.2 On the 19th May, 2010, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. Written submissions were received from both parties. However, the complainant's solicitor at the time came off record on the matter on 16th April, 2009. A hearing of the complaint was held on Thursday, 16th December, 2010. The Tribunal received a fax on 8th December, 2010 from the respondent's liquidator stating that it had been appointed as such on 22nd December, 2009 (sic.).
3. Summary of the Complainant's case
3.1. The complainant is a Lithuanian national. His representative provided submissions on his behalf in advance of the hearing but came off record before the hearing took place. The complainant submitted that he was employed by the respondent from 25th June 2006 until 5th October 2007.
Claim of Discrimination: General conditions of Employment
3.2. The complainant submitted that he was concerned that his tax affairs were not in order but at the hearing stated that there was no issue in relation to the payment of tax. He also submitted that he was not provided with a contract of employment or health and safety statement in a language likely to be understood by him and that he was discriminated against by the respondent in that respect. At the hearing, he said that none of the Lithuanian workers for the respondent that he knew received these documents. He said he did not know if Irish workers received same. His wife, who gave evidence at the hearing, said that she translated/interpreted for him anytime there was an issue with the respondent.
3.3. The complainant submitted that he was required to work excessive hours. He stated that he worked 75/80 hours per week some weeks, but never worked Saturdays, despite being asked to do so by Mr A, the Director of the respondent company, as he would not have been paid overtime for it. He said that Irish workers worked similar hours to him.
3.4. The complainant had briefly mentioned the issue of pay in his complaint form but did not elaborate upon it in his submissions. At the hearing, he stated that he was paid €8 per hour at first, and Irish people were paid €12 per hour. He said that he knew this because someone told him that someone had told them that Irish workers were paid the relevant amount. He said he was paid €9 per hour by the time he left. The complainant said he did not receive any training, but neither did anyone else and he did not know what the harassment claim contained in his submissions was about.
Claim of Discrimination: Allegations with respect to working practices
3.5. The complainant submitted that he was furnished with a defective vehicle and that when he complained about this, he was threatened with dismissal. He alleged that the respondent gave "very dangerous, bad lorries to drive" to him and his Lithuanian friend, Mr B while he said that Irish people always drove good lorries. He then described a number of incidents of this alleged behaviour by the respondent, including one where he said his lorry "fell over" while he was unloading it. He said that this had occurred because it was parked on ground that was not suitable and he had told this to the respondent before he went to unload the material inside, but he said the respondent insisted he unload where it was. He said this also happened to another named Lithuanian worker. He also described two incidents where Irish workers took his "good" lorry and left him with a "bad" lorry.
3.6. The complainant said that this behaviour by the respondent ultimately led to him leaving his employment when the respondent refused to repair a defective vehicle. He said that the respondent asked him to come back a few hours later, but he refused to do so and said he would never work for him again. He added that when he went back to receive his last day's pay, Mr A refused to give it to him.
3.7. The complainant also referred to an incident when he said that he was asked to sign a document which stated that he would be paid and have his medical expenses covered for the time he was unable to work as a result of an accident he had at work in August 2006. He stated that a fellow Lithuanian worker on site acted as an interpreter and told him what was in this letter. He said that his medical expenses were paid for and he was paid while he was out of work. However, he said that he later discovered that the document in question had also included a term that he would not seek compensation as a result of the accident. He said he was not made aware of this when he was asked to sign it, although he proceeded to seek compensation in any event. However, he stated that he was discriminated against in this respect as he would not have been treated in this manner if he had understood English.
Claim of victimisation
3.8. Finally, the complainant submitted and stated at the hearing that, after he made the complaint to the Tribunal, Mr A's wife called to his house and offered him €1,000 if he would withdraw his claim. He said he told her he would not accept it, but she replied that she would go to "any end" to stop him making the claim and, in that respect, told him that she would "tell the Social Welfare" about him. The complainant's wife corroborated this evidence. He submitted that this was victimisation.
3.9. The complainant submitted in advance that there was no issue to be reported to the Department of Social and Family Affairs. However, at the hearing, the complainant's wife stated that Mr A's wife was referring to the fact that she had been receiving extra payments from the respondent, which she had not informed the Department of Social and Family Affairs about, with respect to their receipt of Family Income Supplement (FIS).
4. Summary of the Respondent's case
4.1. The respondent was not present at the hearing as it had entered liquidation. However, it had provided submissions in advance in which it denied that any discrimination or victimisation had taken place. It denied the allegations regarding excessive hours and, with respect to the contract of employment, submitted that the matter had already been dealt with by the Rights Commissioners. The respondent denied the allegation that the complainant was provided with a defective truck.
4.2. The respondent also submitted that the complainant was not treated differently to other employees on the ground of race save in so far as special efforts were made to ensure that his lack of functional English did not put him at a disadvantage. It submitted that all matters relating to the complainant's employment were dealt with him through his wife who appeared to it to understand and speak "functional to good" English. It submitted that full explanations were made to her and it believed that she translated them to the complainant. It submitted that a safety booklet was available to the complainant at all times. It submitted that this was in the English language but was translated, to the best of its knowledge, to the complainant by his wife.
4.3. The respondent also took issue with the suggestion that to treat a foreign national in a non-discriminatory way that special measures above and beyond what it did are necessary. It submitted that the mere fact that a person does not speak English as his mother tongue is not prima facie evidence that he was discriminated against. It submitted that none of the alleged failures of the respondent amounted to discrimination on the grounds of face as defined nor was there such discrimination on the grounds of race when one compares the complainant to any other ex-employee, or to any comparator, real or notional.
4.4. In its submissions, the respondent accepted it had made an offer of settlement to the complainant but submitted that this was made without prejudice and did not relate to the allegation before the Tribunal. It submitted that, to the best of its knowledge, any difficulties the complainant may have had with the Social Welfare Authorities, as had been narrated to it on behalf of the complainant, arose out of his ownership of a lorry. However, and in any event, it denied it made any threats regarding the Social Welfare Authorities and specifically denied that Mr A's wife victimised the complainant as alleged or at all or that anything she did could amount to victimisation.
5. Conclusions of the Equality Officer
5.1. Section 85A of the 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. Therefore, in deciding on this complaint, I must first consider whether the complainant has established the existence of a prima facie case. 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 Acts 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..." Section 14A of the Acts defines harassment as being "any form of unwanted conduct on any of the..grounds...which has the effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person". 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.." Section 77(2) of the Acts provides that victimisation occurs where ".... adverse treatment of an employee by his..employer occurs as a reaction to (a) a complaint of discrimination made by an employee to the employer"
5.3. The issues for me to decide in this case, then, are as follows: Firstly, whether the complainant was subject to less favourable treatment in comparison to another person on grounds of nationality (i.e. because he is Lithuanian) with respect to his conditions of employment and/or training; Secondly, whether or not the respondent was harassed by the respondent as defined by Section 14A; Thirdly, whether the respondent ictimised the complainant, in terms of section 77(2) of the Acts. In reaching my decision in this case, I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation.
Claim of Discrimination: Conditions of Employment
5.4. The complainant withdrew the allegations relating to his tax affairs at the hearing. With respect to the contract of employment, it is clear nobody received a contract of employment from the respondent and any matters relating to the complainant's terms and conditions were explained to him by his wife, as had been agreed with the respondent. In that context, he was not treated less favourably than anyone else. In relation to working hours, I am satisfied that the complainant was not asked to do any longer and/or different hours than anyone else.
5.5. In relation to pay, the complainant's complaint is based entirely on hearsay and cannot succeed on this basis. In any event, in accordance with Section 8(6)(a), complaints relating to remuneration are excluded from consideration under conditions of employment. Such complaints must be made as part of an Equal Pay claim, and such a claim has not been properly made to the Tribunal.
Claim of Discrimination: Allegations with respect to working practices
5.6. The only matter remaining for me to consider, in relation to discrimination, is one of equal treatment with respect to working practices of the respondent that affected his conditions of employment. This was the principal thrust of the complainant's argument as outlined at the hearing and there are two elements to it: firstly, that the respondent allegedly discriminated against him in providing him with defective vehicles; secondly, that it discriminated against him in asking him to sign a letter waiving his right to seek compensation for an accident suffered at work but without explaining to him that that is what he was signing.
Alleged Provision of Defective Vehicles
5.7. In relation to the defective vehicles issue, the complainant described a number of incidents and accidents that arose in the course of his employment, though I note that some of these arose, not from poorly maintained vehicles, but from poor working practice such as parking a truck at an inappropriate place. In Melbury -v- Valpeters, the Labour Court stated that "...mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn." Therefore, it is not enough for the complainant to state that Irish workers were provided with suitable vehicles. He must provide an evidential basis for that assertion by, for instance, giving examples of incidents which were of sufficient significance to raise a presumption that would support his allegation in this respect.
5.8. In that context, I note that the only example the complainant gave that is of any relevance to his submissions in this respect was an example where an Irish worker took the truck that had been assigned to him. To my mind, this would be more likely to arise from the Irish worker not having a suitable vehicle and the complainant having one, than the other way around. Therefore, I am not satisfied that the complainant has presented evidence of sufficient significance to raise a presumption of discrimination with respect to the provision of defective vehicles and equipment to the complainant.
Alleged Discrimination in relation to signing of waiver
5.9. I now turn to the complainant's allegation that the respondent asked him to sign a document in which he waived his right to compensation with respect to an accident that occurred at work. He claims that the interpreter the respondent provided when this was being discussed did not interpret correctly and did not make him aware that this provision was in the document in question. In that respect, he claims that he was discriminated against as an Irish person would have known what they were signing and the respondent took advantage of his poor English in this respect.
5.10. I note that the complainant accepted he was not financially disadvantaged by the accident as his medical bills were paid and he was paid by the employer while he was out of work. I also note that the complainant clearly had no difficulty in expressing his opinion about matters which he considered needed to be addressed by his employer. I also note that the complainant's wife was available at all times to translate for him where necessary and he clearly discussed the matter with her. I also note that this matter was not raised prior to the hearing, either in his complaint form or in his submissions. In that context, I am not convinced by the complainant's evidence that he was not aware that, by signing the letter in question, he was waiving his right to seek compensation. Therefore, he has not established facts of sufficient significance to raise a presumption of discrimination in that respect.
Claim of Harassment
5.11. The complainant failed to provide any evidence that he was harassed. Therefore, he has failed to establish a prima facie case of harassment on the ground of race.
5.12. Finally, I turn to the question of victimisation. Section 74 (2) of the Act states that victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs, inter alia, as a reaction to a complaint of discrimination being made by the employee to the employer. The definition of employee under the Acts extends the protection afforded by the Acts to workers whose employment relationship with a respondent has ceased. The complainant alleges that Mr A's wife asked him to accept €1,000 in settlement of the claim. When he refused, he alleges that she then said that if he did not agree to the settlement she would inform the Department of Social and Family Affairs that his wife had been claiming Family Income Supplement (FIS) when she was not entitled to it. He claimed that this was an incident of victimisation.
5.13. I have no reason to doubt the evidence of the complainant and his wife in this respect. In its submissions to the Tribunal in advance of the hearing, the respondent denied it made this threat but was not present at the hearing to rebut the direct evidence of the complainant and his wife in this respect. I find, on balance, and in all the circumstances of the present case, that the respondent did threaten to report the complainant's wife to the Department of Social and Family Affairs in order to pressurise him to withdraw his claim to the Tribunal. It is clear that this threat was adverse treatment arising from the claim to the Tribunal being made and so it was an act of victimisation. In that context, the complainant has established a prima facie case of victimisation which the respondent has failed to rebut.
5.14. I note that it is possible that the complainant's wife, at least, may have behaved in an illegal manner with respect to her claim to the Department of Social and Family Affairs. However, I have no jurisdiction to make any determination in that respect and so I cannot make any such determination, nor can I take this matter into account in my decision. I would add that the complainant may not have been directly complicit in this matter in any event.
5.15. Victimisation is a matter the Tribunal takes very seriously and the awards it has made in that respect are reflective of this. However, I note that, in all the circumstances of the present case, this was not an act of victimisation that could be considered to be among the more serious cases to be brought before this Tribunal. In particular, I note the evidence of the complainant that the respondent was complicit in failing to report the relevant matters to the Department of Social and Family Affairs, in which case I am satisfied that the threat was an empty one as to carry through with it would have drawn attention to its own behaviour in that respect. More importantly, I am satisfied that the complainant knew it to be an empty threat and so the effect of it on him was limited. The quantum of redress I am awarding is reflective of these considerations.
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008:
6.2. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against him on the race ground pursuant to section 6(2)(h) of the Acts in terms of conditions of employment contrary to s.8(1)(b) of the Acts
6.3. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against him on the race ground pursuant to section 6(2)(h) of the Acts in terms of training contrary to s.8(1)(c) of the Acts
6.4. I find that the complainant has failed to establish a prima facie case that the respondent harassed him on the race ground pursuant to section 6(2)(h) of the Acts, and contrary to s.14A of the Acts
6.5. The complainant has established a prima facie case of victimisation of him by the respondent in terms of section 74(2) of the Acts, and I find that the respondent has failed to rebut this prima facie case.
6.6. In accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I order the respondent to pay to the complainant the sum of €500 as redress for the victimisation. This award is not in the nature of pay and is, therefore, not subject to tax.
9th March, 2011