The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2011-162
(Represented by Richard Grogan & Associates)
File reference: EE/2009/131
Date of issue: 5 September 2011
HEADNOTES: Employment Equality Acts - Sections 6 and 8 - Race - Training - Conditions of employment - Other - Discriminatory dismissal.
1.1 This dispute concerns a claim by Mr Donatas Nenartavicius that he was discriminated against by RKSD Limited on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts 1998-2008 in relation to training, conditions of employment, other and discriminatory dismissal in terms of sections 8 of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 17 February 2009 under the Employment Equality Acts. On 17 June 2011, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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. A submission was received from the complainant but not from the respondent. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 24 June 2011.
2 COMPLAINANTS' SUBMISSION
2.1 The complainant started working for the respondent on 4 April 2005. He undertook all types of groundwork and was initially paid €400 per week net of deductions. He received one pay rise to €660 gross per week, or €600 net of deductions.
2.2 He submits that he did not receive a contract of employment and particularly he did not receive a contract of employment in a language that he could understand. He also submits that he did receive any health and safety training or documentation. The complainant relied on Equality Tribunal Decision DEC-E2008-020, Goode Concrete Limited v 58 Named Complainants and stated this decision said there is an obligation on the employer to provide a contract of employment and health and safety documentation in a language likely to be understood by the complainant.
2.3 The complainant submits that he did not receive the terms and conditions of employment to which he was entitled as his employment was covered by the Registered Employment Agreement (REA) for the Construction Industry. The complainant submits that the appropriate comparator in this case is not necessarily a comparator employed by the respondent but a notional Irish comparator who would have known and received their entitlements under the REA for the Construction Industry.
2.4 He submits he was dismissed on 21 November 2008 without any proper reason or procedures. Further, when he collected his RP50 redundancy form and payment he was asked to sign a form to agree that the payment was in full and final settlement of all claims. He was paid nothing more than his statutory redundancy entitlement and he had no opportunity to consult with his representative, even though the respondent was aware they were on record. The complainant's representative cited Equality Tribunal Decision DEC-E2008-020, Goode Concrete Limited v 58 Named Complainants and relied on the reference in that decision to Labour Court Determination EED048, Campbell Catering Limited and Aderonke Rasaq in which that stated "It is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture. In the case of disciplinary proceedings, employers have a positive duty to ensure that all workers fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence, including the right to representation. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and that the accused worker fully appreciates the gravity of the situation and is given appropriate facilitates and guidance in making a defence. In such cases, applying the same procedural standards to a non-national workers as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination."
3 RESPONDENT'S SUBMISSION
The respondent had a representative on record when they were advised of this claim by the Equality Tribunal. They did not make a submission to the Equality Tribunal. When informed of the hearing of this claim the representative advised the Equality Tribunal that they were no longer on record. The representative confirmed that they had forwarded notification of the hearing to the respondent. The respondent did not attend the hearing.
4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 At the hearing the complainant withdrew his claim in relation to training, lack of health and safety documentation as part of the claim in relation to conditions of employment and discriminatory dismissal. I, therefore, have to decide if the complainant was discriminated against in relation to the remaining aspects of conditions of employment (not receiving a contract of employment or entitlements under the REA) and other (being made to sign the settlement document) . In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2 The complainant's claim in relation to 'other' was that he was made to sign an 'Agreement to settle' document in which "he agrees to the terms and conditions hereof and in full and final settlement, satisfaction, release and discharge of any and all claims" and "The Employment Equality Act, 1998" was specifically listed in the agreement. The complainant contends that being made to sign this document was discriminatory on the grounds of his race because he was unaware of his rights and he was asked to sign it without being allowed to consult with his representative.
4.3 However, before I can consider whether this amounts to discrimination I have to consider whether I have jurisdiction to investigate this claim. The Labour Court set out an approach to settlements, in Sunday World Newspapers Limited and Steven Kinsella & Luke Bradley, Determination No. FTD066 said:
"It is clear from the authorities that a provision in a statute prohibiting contracting out does not prevent parties from lawfully agreeing to settle or compromise claims based on the statute. There is, however, often a subtle but substantial difference between a genuine bargain to settle or dispose of a claim, which is lawful and enforceable, and an attempt to exclude or limit the Act, which is void and of no effect. The case law indicates that the following considerations are relevant in distinguishing the former from the latter: -
1. The terms of any waiver must be construed strictly against the party from whom it emanated. Where there is doubt the course of negotiations between the parties should be examined so as to ascertain what was intended.
2. An agreement to wave statutory rights must be supported by adequate consideration.
3. The waiver should normally arise from an agreement reached as a result of meaningful negotiations and professional advice having been sought and given.
4. The waiver should list the various Acts being taken into account.
5. The waiver is only valid if it is based on a free and informed consent given by a person with full knowledge of their legal rights.
6. It is for the employer to ensure that the worker is capable of giving an informed consent and the employer should normally advise the worker in writing to obtain professional advice before inviting him or her to sign a waiver."
4.4 In this claim the complainant was only paid his statutory entitlement for redundancy. He received no additional payment and he need not have signed the settlement document to have been legally entitled to receive the payment he was given. Therefore, there was no settlement within the generally accepted meaning of the term, and this cannot be deemed to be "adequate consideration". The complainant also contended that he was not given the opportunity to consult his legal representative, who the respondent knew was on record. In the absence of any evidence from the respondent I conclude that the settlement was signed without "adequate consideration" and without the benefit of "informed consent". Accordingly, I find that the settlement signed by the complainant was not "a genuine bargain to settle or dispose of a claim, which is lawful and enforceable" and I have jurisdiction to investigate this claim.
4.5 Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. Further, in a recent Determination the Labour Court¹, whilst examining the circumstances in which the probative burden of proof operates held as follows -
"Section 85A of the Acts 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."
4.6 The complainant contends that being forced to sign the 'Agreement to Settle' without the benefit of advice from his representative amounts to discrimination in relation to other under section 8 of the Acts. Whilst I have concluded that the settlement was signed without the benefit of "informed consent" the complainant has given no evidence that he was treated any differently than any other employee in the same position. I find that he has failed to demonstrate a prima facie case of discrimination in relation to other.
4.7 The complainant contends that this was his first job in Ireland and not getting a contract of employment in a language he could understand meant he was discriminated against by not knowing his employment rights. The complainant gave evidence at the hearing that he obtained his Safe Pass certificate before he started working for the respondent. The Safe Pass is a basic safety awareness certificate that is required for all workers on construction sites. Given that the complainant obtained this before he started work leads me to conclude that the complainant had an awareness of employment matters for the construction industry. He gave no evidence of any specific disadvantage he suffered as a result of not getting a contract of employment in a language he could understand and I find that he has failed to demonstrate a prima facie case of discrimination.
4.8 The complainant contended that not receiving his entitlements under the REA amounted to discrimination on the grounds of race. This is because he was unaware of the REA and a notional Irish comparator would have been aware of the REA. The complainant stated in evidence at the hearing that there was one other Lithuanian national and four Irish nationals employed by the respondent. Therefore, where there is an actual comparator there is no reason for me to consider a notional comparator.
4.9 The complainant provided no evidence that he was treated any differently than an actual comparator working for the respondent in relation to the REA. His claim amounts to "mere assertion" and I find that he has failed to demonstrate a prima facie case of discrimination.
I have investigated the above complaint and make the following decision in accordance with section 79 of the Acts that the complainant has failed to demonstrate a prima facie case of discrimination in relation to conditions of employment and other.
5 September 2011
¹ Labour Court Determination Arturs Valpeters v Melbury Developments Ltd EDA0917  21 E.L.R