EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2012-067
Orlawski and Sierzanski
(represented by Richard Grogan
& Associates, Solicitors)
File References: EE/2009/793 & 794
Date of Issue: 1 June 2012
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - race - conditions of employment - training - discriminatory dismissal
This dispute involves a claim by Mr. Orlowski and Mr Sierzanski (hereafter "the complainants), that they were (i) discriminated against by Mr John Murphy (hereafter "the respondent") in respect of their training and conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 (hereafter "the Acts") and contrary to section 8 of those Acts and (ii) dismissed by the respondent in circumstances amounting to discrimination on grounds of race.
2.1 The complainants referred their complaints under the Employment Equality Acts, 1998 to 2011 to the Director of the Equality Tribunal on 3 November 2009. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the cases on 24th June 2011 to me, Elaine Cassidy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2011. This is the date I commenced my investigation. A written submission was received from the complainant in June 2010. No submission was received from the respondent. As required by section 79(1) of the Acts and as part of my investigation, I held a hearing of this complaint on 13th July 2011 and both parties were in attendance, as well as a Polish interpreter. The respondent, who was unrepresented, requested additional time to submit documents. This exchange of documents concluded on 24 August 2011.
2.2 The complainants' representative withdrew all aspects of the claim at the oral hearing with the exception of discriminatory dismissal and failure to provide a contract. At the oral hearing these matters were heard in full. However during the hearing it was submitted that the company Bailey Glazing Ltd was the employer of the complainants and not Mr Murphy, who was a Director, and who was named as the respondent to the proceedings. The complainants were given a month to make a submission on the issue. On the basis of the available evidence, a preliminary decision issued on 9 September 2011 in favour of the respondent. This decision was appealed by the complainant to the Labour Court where new evidence was adduced to show that the company Bailey Glazing Ltd had been dissolved while the complainants were still working there. A decision dated 14 February 2011 was issued by the Labour Court (EDA125) overturning the preliminary decision and finding that the named Director was the correct respondent in the case. The matter was therefore returned to the Equality Tribunal for investigation of the substantive issue. The parties were advised by letter dated 28 February 2012 that the substantive matters had been dealt with in full during the oral hearing; however they were invited to make additional submissions if they wished. The complainant made an additional submission, and the respondent did not. This exchange of correspondence ended on 28 March 2012. In coming to my decision, I have taken into account all written and oral submissions from both parties.
3. Case for the Complainants
At the oral hearing the complainant's representative withdrew all claims with the exception of discriminatory dismissal and failure to provide a contract.
3.1 Mr Orlowski
Mr Orlowski is a Polish national and worked for the respondent from September 2006 until August 2009, as a construction worker. He received cheques but no payslips. He submitted that he only received a contract from his employer for the purposes of obtaining a bank loan. He submitted that the other employees were from Ireland, France, Romania and Poland and he did not think that they received payslips or contracts either. They did different jobs, depending on their skills and experience. He had better English than the others, so he often did indoor jobs like painting, decorating, renovation and deliveries.
In August 2009, while he was on holidays, he received a phone call from his employer to say that they had no more work available. The respondent asked him if he wanted his documentation (P45/P60). The complainant said he would sort out his documentation when he came back to Ireland. The complainant believed that the company was still going after he was let go, but he did not have much contact with them. He submitted that he thought the reason he was let go was because he had often asked about getting payslips and P60's and his employer did not want to provide them. As a result he had a lot of difficulty with getting redundancy and social welfare payments.
3.2 Mr Sierzanski
Mr Sierzanski is a Polish national and worked for the respondent from January 2008 until August 2009, as a general operative. He previously had 20 years experience as a builder in Poland. He did not receive a contract of employment or payslips and it was his opinion that none of the other employees received them either.
He was in Poland for his holidays in August 2009, when he heard from his co-worker Mr Orlowski that there was no more work for them. He came back to Ireland, because he had to sort out his flat and belongings. He had to ask several times for his P45 and when he got it, he could not get social welfare, because he had been working for less than 2 years in Ireland. He does not speak English, so he did not have any further contact with his former co-workers. Sometime earlier, while he was still employed by the respondent, he heard from his Romanian co-worker that he (the Romanian) was paid 100 Euros less than the complainant. He submitted that the reason he was let go because it was cheaper to employ the Romanians.
3.3 Legal Submission
The legal representative submitted that his clients were not given contracts or any other type of documentation because they are non-Irish nationals. It was submitted that a notional Irish comparator would be been aware of his/her entitlement to receive a statement of his/her terms of employment.
It was submitted that the complainants were let go because it was cheaper to employ Romanians. It was further submitted that nothing the respondent says can be believed because he had argued that he was not the correct respondent in this case.
4. Case for the respondent
4.1 The respondent stated that the company originally specialized in glazing work only, but moved into general construction in 2006. He employed 6 people in total; 2 Irish carpenters, 1 French window specialist, 1 Romanian specialized builder and the 2 Polish complainants; Mr Orlowski, who worked as a handyman and Mr Sierzinski, who worked as a general builder. He submitted that initially there was plenty of work and they were busy until 2009. In 2009, they had 2 projects on hand, ready to start, but the banks refused the loans to their clients at the last minute. Therefore the clients pulled out of the jobs and he suddenly found himself with very little work from July/August 2009. As a result he was forced to let go all of his employees by January 2010. The respondent agreed that the two complainants were the first of the six employees to be let go and submitted that the reason for this was because they were general builders and he was able to do their work himself, whereas the other employees had specialist skills which he did not have. However within the next few months he had to let those employees go also and only the window glazer was employed until June 2010, when he was then made redundant.
4.2 The respondent stated that the two Romanians, who were referred to by the complainants, were not his employees. He submitted that he had planned to extend his home by renovating an old building. This building required complete renovation, starting with the outside stonework. The two Romanians who were doing this work, specialized in working with old stone, and none of his own employees were capable of doing this particular work. He submitted that he had no money by this stage to renovate the house, and the only reason the two builders were working on it, was because they were employed by an associate of his who owed him money, and it was agreed that he would be repaid by having the stonemasonry done. The respondent submitted that the progress on this house stopped upon completion of the outside stonework and roof carpentry; no further work has been done to date. All of the other normal building work and inside decoration, which the complainants would have been capable of doing, did not happen, because he ran out of money. He further submitted that the stonemasonry work at his house finished up in October 2009, shortly after the complainants were let go.
The respondent submitted that he very much regretted the delay in paying redundancy to the complainants, but submitted that he had no money at the time to pay. With respect to the contracts, he submitted in evidence a one-page contract for each complainant.
5. Conclusions of the Equality officer
5.2.1 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. If he 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.
5.2.2 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".
5.3 Discriminatory Treatment in relation to Conditions of Employment
The complainants stated that they did not receive contracts of employment and that a notional Irish comparator would have been aware of their right to receive information regarding their terms and conditions of employment. There was however an Irish employee employed by the respondent and therefore I find there is no need to consider a notional comparator. There were also employees of other nationalities. Oral evidence was given that all employees were paid by cheque or direct debit and no payslips or contracts were given to any employee. The requirements under the Terms of Employment (Information) Acts 1994 and 2001 do not come under the jurisdiction of the Equality Tribunal. The Tribunal's jurisdiction in this matter is to consider whether the complainants were treated differently to employees of different nationalities. The Tribunal has been asked to infer that employees of other nationalities would have received a contract. I note the comments of the Labour Court regarding such "mere assertions" in the case of Melbury v Valpeters EDA 0917:
"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 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."
I find that the complainants have not established any evidence that they were treated differently to the Irish employees or the employees of other nationalities.
5.4 Discriminatory dismissal
It was submitted on behalf of the complainants that they were let go because of their nationality. Mr Sierzinski stated that he was let go was because it was cheaper to employ his Romanian colleague. However Mr Orlowski stated that the reason he was let go was because he persistently asked for appropriate employment documentation to be put in place. The respondent submitted documentary evidence showing that the Romanian colleague in question was paid the same as Mr Sierzinski and more than Mr Orlowski. Therefore the complainants' argument on this point is not sustainable. Regarding the request for contracts and wageslips, I find that, while this may or may not have been linked to Mr Orlowski's termination of employment, there is no evidence to link either matter to the complainant's nationality. The respondent has submitted that all his employees were let go in a short timeframe as a result of the downturn in the construction industry. He submitted that the complainants were the first to go, because he was capable of doing their work himself. I accept the respondent's evidence on this point. (On the issue of the two Romanians who were working at the respondent's house, I make no finding on who the employer of these men was; however I note that the respondent was very clear that it was specialized work which the complainants were not capable of doing and at the oral hearing, he specifically put this point to the complainants, who did not disagree. They said they could have done other work at the house, and this was not disputed by the respondent. However the respondent said that the other work was never done and he was both credible and uncontradicted on this point). In summary, I find that the complainants have not established a prima facie case that the termination of their employment was related to their nationality.
The complainants have not established a prima facie case of discriminatory treatment or discriminatory dismissal and their case therefore fails.
1 June 2012