THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 051
Mr. Vygantas Tugaudis
(represented by Richard Grogan and Associates, Solicitors)
Leojen Coatings Ltd
File References: EE/2007/255
Date of Issue: 15th March 2011
File references: EE/2007/255 - DEC-E2011-051
Employment Equality Acts 1998-2008 - sections 6, 8 and 14A - discriminatory treatment - conditions of employment - health and safety statement - harassment - discriminatory dismissal - race.
1.1 This case concerns a complaint by Mr. Vygantas Tugaudis, a Lithuanian national, who claims that he was discriminated against by Leojen Coatings Limited on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of their conditions of employment and training. He also claims that he was subjected to harassment contrary to section 14A of the Acts.
2. Delegation of the complaint
2.1 Mr. Vygantas Tugaudis referred a complaint under the Employment Equality Acts, 1998 to 2008 to the Director of the Equality Tribunal on the 21st May 2007. In accordance with her powers under section 75 of the Acts, the Director then delegated the case to me, James Kelly, an Equality Officer on the 20th October 2009, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, this is the date I commenced my investigation. A written submission was received from both the complainant and from the respondent. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to a hearing of the case on the 10th February 2011, and the last correspondence received on the matter was on the 17th February 2011.
3. Summary of the Complainants' case
3.1 Mr. Vygantas Tugaudis was employed by the respondent as a general operative from 8th June 2006 until 23rd March 2007, laying concrete floors. He had moved to Ireland in November 2005. He stated that there were a number of other employees of various nationalities employed by the respondent doing similar duties to him during his period of employment, namely from Ireland, Georgia and Poland. He claims that he did not receive a written contract of employment; he also claims that he never received any health & safety documentation while working with the respondent. Mr. Tugaudis was not aware if any of his fellow employees received contracts of employment or health & safety documentation.
3.2 Mr. Tugaudis claims that he was not paid in accordance with the specific Registered Employment Agreement for the Construction Industry (REA) and this amounts to both discrimination and harassment. He claims that he was unaware if any of his fellow workers were paid in accordance with the REA. He was aware however that two of his fellow workers from Georgia were paid a higher rate than he was. He claims that he brought this up with Mr. A, the Managing Director of the company at the time, but nothing was done about it. He claims that an Irish notional comparator would not work for less than the Registered Employment Agreements rates of pay and that this action was an act of harassment under the Employment Equality Acts. He further contends that in line with the reasoning in the Campbell Catering Limited Case it have would been reasonable to contend that there was a legal obligation on the respondent to advise the complainant of his rights and in particular that it was covered by the REA for the Construction Industry.
3.3 In his evidence, the complainant claims that he was dismissed following an altercation on site with Mr. A, the Managing Director of the company. He claims that one morning when he arrived on site in Dublin having travelled up from Wexford with Mr. A, he was told to take off his high visibility vest and give it to another worker who had started that morning and he was told to get another. He claims that he did not know where to get another and confronted Mr. A. He claims that he was fired on the spot and was told to find his own way home. When asked if he knew of any others that were dismissed during his time of employment with the respondent, he claims that he remembers a few Irish workers were dismissed.
3.4 In his legal submission the complainant's legal representative submitted that the respondent's failure to provide a contract of employment and health & safety documentation in his own language, or a language he could understand was in breach of the Acts. He claims that as the complainant was a foreign national the respondent had a responsibility to take special measures to protect him. He said that following the Decision of the Tribunal in 58 Complainants -v- Goode Concrete, that there is an obligation on an employer to provide employees with a written contract of employment and health & safety documentation in a language which they can understand. It was the complainant's submission that the respondent's failure to provide this amounts to discrimination within the meaning of the Acts.
4. Summary of the Respondent's case
4.1 The respondent claims that it has been involved in the construction industry in contract floor-laying since 2004. It employed approximately 12 to 13 people at the height of its business activity. It claims to have employed people from Ireland, Poland, Lithuania and Georgia without any problems. It disputes that it discriminated against or harassed Mr. Tugaudis on the alleged ground.
4.2 The respondent does not dispute that the complainant was employed with it and is no longer working there. However, contrary to the evidence from the complainant, it claims that Mr. Tugaudis was provided with a contract of employment and health & safety documentation in a language that he understood. It claims that all employees were given these documents and that the complainant was given a contract of employment on the first day of his employment on the 8th June 2006.
4.3 Mr A, who was present at the hearing on behalf of the respondent, claims that he had agreed the pay rate with the complainant prior to him starting work. He claims that everyone was paid the same for the same job with the exception of a named employee, who was paid a higher rate of pay because he was also the managing supervisor on sites. He agrees that two named Georgian workers, who started after the complainant, were paid slightly higher for a short period. However, he claims that was when the company was very busy and it was "stuck to get workers at that time". He claims that Mr. A and the other workers were shortly moved up to the same rate as the two workers from Georgia in October/November 2006. Mr. A claims that his company does not come under the REA, as the company operated out of Wexford and not Dublin as specifically mentioned in the REA. Accordingly, all employees were only entitled to the National Minimum Wage and Mr. A was paying well above that.
4.4 The respondent claims that on the day of the dismissal Mr. Tugaudis took a high visibility vest belonging to another employee and became involved in an argument with that employee. Mr. A claims that he intervened and then Mr. Tugaudis turned on him; he claims that Mr. Tugaudis became verbally abusive to him. Mr. A agrees that they had a heated exchange and following that he felt that he had no choice but to terminate the complainant's contract with the company there and then. Mr. A claims that he did dismiss some other Irish workers in the past, they had been warned about their behaviour when caught playing football when they were supposed to be working. When questioned by the complainant's legal representative as to why they were given a warning and the complainant was not given a warning, he replied that the circumstances were completely different, he said that he could not stand and take the abuse he was receiving on site in front of everyone and that was why the complainant was sacked on the spot.
5. Conclusions of the Equality Officer
5.1 Section 85A of the Employment Equality 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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 Employment Equality Acts, 1998 to 2008 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 2 persons, ... that they are of different race, colour, nationality or national origins".
In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.3 Firstly, the complainant has submitted that the Decision of this Tribunal in 58 Complainants -v- Goode Concrete places an obligation on an employer to furnish non-Irish employees with a contract of employment and health & safety documentation in a language which they understand. I am of the view that this is an incorrect interpretation of that Decision. In that case the Equality Officer found that in circumstances where an employer furnishes its employees with contracts of employment and/or health and safety statements it constitutes less favourable treatment of non-Irish employees if the respondent provides them with a contract of employment in English and not in a language which they can understand. I note that the Equality Officer went on to make an order to "put in place clear procedures for ensuring that non-national employees are clear as to their terms and conditions of employment and also understand all safety documentation" rather than specifying that the contract of employment and/or health and safety statement should be provided in those employees native language, or any other language for that matter. Therefore, the clear principle in the Goode Concrete case was to place the onus on the respondent to make reasonable efforts to ensure that the relevant employees understood their rights and that it ensured that they were not treated less favourably than someone else who was made aware of those rights.
5.4 In considering this issue, I have also taken cognisance of the recent determination of the Labour Court whilst examining the circumstances in which the probative burden of proof operates held as follows:-
"Section 85A of the Act provides 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. What those facts are will vary from case to case 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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
5.5 I will now consider the issues that have been raised by the complainant in relation to the respondent's alleged failure to provide him with a written contract of employment and health & safety documentation which he contends constitutes unlawful discrimination of him on the grounds of race contrary to the Acts. It was submitted that the Tribunal should infer that he has been subjected to less favourable treatment on the grounds of his race and, accordingly, that the burden of proof should shift to the respondent to rebut the inference of discrimination.
5.6 In the present case, the respondent claims it issued a contract of employment and a health & safety statement to everyone in the same way. I note the evidence of the complainant where he claims that he did not receive either document. However, he is not aware if the other workers received the same. Mr. A produced a blank copy of a contract template that he claims was used for every employee, he said with the passing of time he was unable to find a copy of Mr. Tugaudis' signed contract of employment. Notwithstanding the disputed position of the parties in relation to this aspect of the claim, having studied the evidence and in consideration of the Labour Court decision in Melbury I am satisfied that I have not been presented with any evidence to support that the complainant was treated any differently not to mind less favourably than any of his fellow workers. Having regard to the totality of the evidence adduced, 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 would have been, in similar circumstances. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of the complaint.
5.7 The next element of the complaint concerns the allegation that the complainant was subjected to discrimination and harassment because he was not paid in accordance with the REA for the Construction Industry. I note that the complainant could not confirm if any of the other employees were paid in accordance with the REA for the Construction Industry. In the present case, I accept that the complainant has adduced evidence to suggest that he may have been treated badly by the respondent in terms of the rate of pay and his entitlement to be paid in accordance with a particular REA. I have also noted the respondent's reply in relation to same and I note its evidence that everyone was paid the same. That said, I am satisfied that I do not have any jurisdiction to decide whether or not the respondent was in breach of his obligations under the relevant employment legislation in relation to the category of persons entitled for inclusion under the REA.
5.8 Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that unfavourable treatment, in the absence of evidence of less favourable treatment, is insufficient to establish a prima facie case of discrimination under the Employment Equality Acts. Accordingly, the complainant must firstly be able to demonstrate some significant evidence of less favourable treatment and this treatment must be linked to his race in order to raise an inference of discrimination. Likewise the complainant must demonstrate that the action - non payment of the rates of pay as provided by the REA - has the purpose or effect of violating the complainant's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him. Accordingly, I find that the complainant has failed to present evidence for him to establish a prima facie case of discrimination or harassment on the grounds of his race.
5.9 The next element of the complainant's claim concerns the allegation that he was subjected to a discriminatory dismissal on the 22nd March 2007 on the grounds of his race. The complainant stated in evidence that he was dismissed by the respondent without any proper procedure as a result of his argument with Mr. A. In considering this issue, I accept the evidence that the complainant was dismissed on this date. However, I am not satisfied that he has adduced any evidence to substantiate his claim that he was dismissed because of his race. Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that in order to raise an inference of discrimination on the grounds of race, the complainant must be able to demonstrate some significant evidence of less favourable treatment and this treatment must be linked to his race. Based on 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 the termination of his employment was in any way influenced by his race. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to dismissal on the grounds of his race.
6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2) of the Acts in terms of their conditions of employment and training contrary to section 8(1) of the Acts.
the respondent did not subject the complainant to harassment contrary to section 14A of the Acts.
the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2)(h) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts.
Accordingly, I find in favour of the respondent in this matter.
15th March 2011