THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2012-129
(represented by Blazj Nowak, Polish Consultancy Enterprise)
Kirwan Aluminium Ltd
File Reference: EE/2010/074
Date of Issue: 11th October 2012
Employment Equality Acts 1998-2011, Section 6(1) - less favourable treatment, Section 6(2)(h) - Race, Section 8 conditions of employment, section 14A - Harassment, Section 85A- burden of proof, no prima facie case.
1.1 This dispute concerns a claim by the above named complainant that he was discriminated against by the above named respondent on the race ground, in terms of Sections 6(1), 6(2)(h) of the Employment Equality Acts 1998-2011 and contrary to section 8 and 14A in relation to conditions of employment and harassment.
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 8th February 2010 alleging that the respondent discriminated against him contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011, the Director delegated the case on the 12th June, 2012 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. A written submission was received from the complainant on the 6th October 2010. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 13th July, 2012.
3. Summary of the Case
3.1 The complainant is a Polish national and was employed by the respondent as a general operative from the 20th of April 2005 until the 28th January 2010. He was employed initially as a helper fitting windows on building sites and after this work came to an end he was changed to working on building sites as a labourer. The complainant's case is that the respondent discriminated against him in relation to his conditions of employment and that he was harassed. He said that he was asked to do the dirtiest jobs on the site like cleaning dirty pipes. He said that his English was not good and an employee Mr. A, who was the brother of the owner, harassed him and called him offensive names. Mr. A is a carpenter and he worked alongside him. Because his English was not good he may have misunderstood some instruction from Mr. A and done something wrong, Mr. A would call him a "Polish ***" and a Polish ****". He said that this happened about once a month and he was the only person called such names. He said that Mr. A also whistled at him on several occasions. The complainant submitted that he complained to the respondent a number of times about his treatment and nothing was done about it and he never got an apology.
3.2 The complainant also states that he was discriminated against in relation to his conditions of employment in that he was not paid in accordance with the Registered Employment Agreement for the construction industry. He said that he was paid lower than other people including a Polish worker. He is not sure if the other employees were paid the REA rate. He also states that he was not registered by the respondent in the CIF pension scheme.
3.3 The complainant's representative submitted that he had established that he was harassed because of his race. He further submitted in relation to the conditions of employment complaint that an Irish person would have known the correct REA rate and would also have know about their entitlement to join the pension scheme. In the circumstances, it was submitted that the complainant has established that he was treated less favourably than an Irish person would have been treated in similar circumstances. In the legal submission to the Tribunal, he stated that the complainant was discriminated against on the race ground. He also referred me to a number of cases in support of the case, including Campbell Catering Ltd. -v- Rasaq (EED048), 58 Complainants -v- Goode Concrete (DEC-E2008-020), Khumalo -v- Cleary & Doyle Limited (DEC-E2008-003), Golovan -v- Porturlin Shellfish Limited (DEC-E2008-032) and Ning Ning Zhang -v- Towner Trading t/a Spar Drimnagh (DEC-E2008-001), Council Directive 91-533-EEC of 14 October1991, Judgement of the ECJ in the case of Wolf Gang & Georg Schunemann Gmbh Case C-350-99.
4. Respondent's Case
4.1 The respondent said that the company operated a window fitting service and when the complainant was employed he was a labourer for the window fitter. The company then experienced a downturn in business and changed to working on building on sites which was much different work. The company kept on their employees. The complainant was then a general operative on these sites and worked with the bricklayer and Mr. A. who is a carpenter. The owner of the company Mr. B stated that he had both Irish and Polish workers and he paid none of them the REA rate. He said that the complainant and the other Polish worker started on the same rate and then he paid this man a bit more than the complainant because he did higher level work. He said that the complainant had no transport and he gave him a van which he taxed and insured and paid for the fuel. In relation to the pension he said the he was wrongly advised about the pension scheme. He then sought advice and when he attempted to register the employees in a pension scheme the employees refused to pay the contributions.
4.2 Mr. A denied that he called the complainant any offensive names. Initially there were about ten workers on site, five Polish and five Irish. He said that he believed they all got on well on site and when the complainant joined with another Polish worker he had very little English. One of the Polish workers had good English and would translate for the complainant. The Irish workers were learning Polish from them and the Polish workers were learning English. He said that while there was a bit of banter there was never anything aggressive between the workers. During the summer he would buy ice cream and cokes for everybody on site. Mr. A said that he was building his own house and the complainant worked for him in the evenings and they had a very good working relationship. He said that if the complainant believed that he was being harassed by him he would not have come to work with him in the evenings. The respondent also stated that when the complainant was returning from holidays in Poland he always brought back vodka for them. He also invited them to the wedding of his daughter in Poland. It was submitted that if the complainant felt that he was treated so badly he would not have invited them to the wedding.
5 Conclusions of the Equality Officer
5.1 The issues for decision in this case is whether or not the respondent discriminated against the complainant on the grounds of race in terms of section 6(1) and 6(2)(h) of the Employment Equality Acts and contrary to section 8 and Section 14A of those Acts as regards conditions of employment and harassment.
Section 6 of the Acts inter alia provides:
6. -- (1) "For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
discrimination shall be taken to occur where --
(a) 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) (in this
Act referred to as the ''discriminatory grounds'') which --
(2) As between any 2 persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are --
(h) that they are of different race, colour, nationality or ethnic
or national origins (in this Act referred to as ''the ground
And Section 85A of the Acts provides:
"(1) 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".
5.2 This requires the Complainants to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only when they have discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required of him his case cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
Firstly I will consider whether the complainant was discriminated against in relation to the application of the REA and admittance to the pension scheme. The respondent's evidence is that none of the employees were in the pension scheme and that he did not apply the REA rates to any of the workers. Compliance with the REA by employers in the construction industry is not a matter for this Tribunal so long as there are no discriminatory practices. From the evidence presented it is clear that all the employees were treated the same regardless of their nationality. I am satisfied therefore that the complainant was not treated less favourably than another employee was treated in similar circumstances in relation to this aspect of his complaint.
5.3 I will now consider whether the complainant was harassed on the race ground in relation to his conditions of employment. S.14A(7)(a) provides: "any form of unwanted conduct related to any of the discriminatory grounds, and........
(b) being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person."
The Act goes on to give examples of unwanted conduct and states:
(c) "Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material."
The Labour Court in the case of, Nail Zone Ltd and A Worker Determination No.
EDA1023 defined the law in relation to harassment as follows:
"The essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. This suggests a subjective test and if the impugned conduct had the effect referred to at paragraph (b) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the Complainant, it constitutes harassment for the purpose of the Acts."
The complainant's case is that the one of the respondent's employees called him offensive names and whistled at him and also he was given the dirtiest jobs to do. The respondent denies that the complainant was treated in such a manner.
5.4 In considering the evidence presented, I found the respondent's witnesses evidence in relation to this aspect of the complaint more compelling than the complainant's evidence. In applying the above test to establish harassment, I am satisfied that the complainant has failed to establish that he was subjected to an environment which was either intimidating, hostile, degrading or offensive. I am also satisfied that he has failed to establish that he was treated less favourably than a person of a different nationality was treated in similar circumstances. Therefore I find that the complainant has not raised an inference of discrimination in relation to harassment. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this aspect of his complaints.
5.5 The complainant has made a number of allegations about discrimination not backed up by any facts. In considering this point I have considered the reasoning in the case Melbury Developments and Valpeters (Det. No. EA AO917) where the Labour Court stated:
"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."
5.6 The above reasoning of the Labour Court is applicable in this case in that the complainant has made assertions about discrimination unsupported by any evidence of sufficient weight. Having regard to 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 he was treated less favourably than an Irish person or a person of a different nationality was treated or would have been, in similar circumstances. Accordingly, I find that the complainant has failed to establish a prima facie case of discriminatory treatment.
7.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011:
(i) I find that the respondent did not discriminate against the complainant on the race ground pursuant to sections 6(1) and 6(2)(h) and contrary to section 8 and 14A of the Acts in terms of conditions of employment and harassment.
11th October 2012