THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2012 - 122
Pawelec, Luszczewski, Kolibowski, Kaczmarek, Rochowink and Banaszak (represented by Ms Elizabeth Skally, B.L., instructed by Fleming and Barrett, Solicitors)
ARKIL Ltd (represented by Management Support Services)
File References: EE/2009/578-583
Date of Issue: 11th September 2012
1.1. The case concerns a claim by Ireneusz Pawelec, Marcin Luszczewski, Rafal Kolibowski, Zbigniew Kaczmarek, Marcien Rochowink and Zbigniew Banaszak that ARKIL Ltd discriminated against them on the ground of race contrary to Section 6(2)(h) of the Employment Equality Acts 1998 to 2008, in terms of promotion, training, conditions of employment, harassment, discriminatory dismissal and equal pay. The complainants further complain of victimisation and victimisatory dismissal.
1.2. The complainants referred their complaints under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 29 July 2009. Submissions were received from the complainants on 22 January 2010. Submissions were received from the respondent on 14 April 2010. On 31 January 2012, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 12 April 2012, which was resumed and concluded on 10 July 2012 Additional evidence was requested from the respondent on 10 July 2012 and received on 30 July 2012. The last piece of correspondence relating to the complaint was received on 15 August 2012.
2. Summary of the Complainants' Written Submissions
2.1. The complainants submit that they were originally hired in Poland, and promised accommodation. After a month in Ireland, they were asked under the threat of dismissal to sign new contracts which put them on the minimum wage. They further state that after some time, their supervisors forced them to rent a house which they owned, and which was too small for seven persons. The complainants state they were forced to rent the house for a rent over market price at the threat of dismissal.
2.2. The complainants further state that they were called abusive names that referred to their Polish nationality, that they were not given appropriate training and then reprimanded when things went wrong, and that they had no opportunities for promotion. They also say that they had few breaks and at erratic hours, whereas Irish staff were afforded breaks. Finally, they state that they were summarily dismissed on 25 May 2009, and that they never received the appropriate paperwork to enable them to claim their social welfare entitlements. They state that no Irish worker was fired on that day.
3. Summary of the Respondent's Written Submissions
3.1. The respondent denies discriminating the complainant as alleged or at all. In terms of any Irish comparators who might have been treated more favourably than the complainants, it states that it did not employ any full-time Irish staff in the contracts crew, and that all Irish staff were either site engineers or quarry staff who had nothing to do with the road building crews.
3.2. In particular, the respondent denies that the complainants were forced to live in a house that belonged to the respondent owners under threat of dismissal. It also claims that the house was an eight-bedroom house and was selected as accommodation because it was convenient to all the respondent's sites.
3.3. With regard to the changes in the complainants' contracts and the reduction in pay, the respondent states that the complainants had demanded net pay figures after tax when negotiations took place in Poland, and that once everyone's tax situation was clarified, like being married or being single, it turned out that their gross pay was overstated. The respondent claims that the reduction in pay is a result of rectifying this situation.
3.4. The respondent further states that although all complainants had become members of SIPTU in 2007, no complaint with regard to intimidation, blackmail, threatening behaviour, discrimination, lack of training, harassment or conditions of plant and machinery were ever raised by the complainants' SIPTU representative.
3.5. In terms of breaks, the respondent states that these were usually taken when the hot macadam was cooling off and could therefore vary in their timing.
3.6. With regard to training, the respondent states that the complainants received SafePass, manual handling, and traffic management training. The respondent disputes that the complainants were asked to operate faulty machinery, and insists that all plants and machinery were regularly checked and maintained. The respondent further states that the complainants did not keep the machines litter-free and clean and that this was an issue.
3.7. With regard to the complainants' allegations of harassment, this is denied by the respondent. The respondent states that it has a bullying and harassment policy in English and Polish, which stated that any worker could lodge a grievance directly with the company director, if they were not happy raising a grievance with management. The respondent states that no grievance was ever lodged by any of the complainants while they were in the employment of ARKIL Ltd.
3.8. In terms of the complainants' dismissal, the respondent states that it issued the complainants with protective notice on 13 May 2009, due to a fall-off in contracts. The following week, all the crew were placed on a 3-day week. The respondent's manager, Mr. C., asked the complainants to ask him if they needed any assistance with their social welfare entitlements, but received no call of assistance.
3.9. The week beginning 18 May, the respondent was awarded a road building contract in Kerry, to start 25 May. When Mr C. met the crew in Bandon to show them the way to the site, one of the complainants asked for his P45. Mr C. advised that head office would issue it the following week. The remainder of the crew asked why they hadn't received any letter for the days without work the previous week. Mr C. explained that the protective notice should suffice. A lengthy discussion ensued over details of the Kerry job which in Mr C.s understanding had all been clarified the previous week, as well as payment for the previous short work week. Mr C. told the crew that the time to clarify all these things would have been the previous week, not when they were supposed to go off to work on a site in Kerry. He then told the crew that he was leaving for Kerry now and that if they did not take up this offer, they were indicating that they did no longer want to work for the respondent. According to Mr. C., the complainants did not want to go, and requested their P45s. It is the respondent's position that the complainants resigned from their employment.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainants were discriminated against and discriminatorily dismissed within the meaning of the Acts, whether they were discriminated against in terms of remuneration, and whether they were victimised or possibly victimisatorily dismissed.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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 coming to my decision, I have taken account of all evidence, both oral and written, which the parties presented before me.
4.3. Mr Ireneusz Pawelec did not appear before the Tribunal for the hearing of his complaint, and his representatives accepted that his case would fail for want of prosecution.
4.4. None of the complainants was able to provide the Tribunal with the names of comparators for the purpose of establishing a prima facie case for their complaints relating to equal pay. Accordingly, this part of their complaints must fail for all complainants.
Training and Promotion
4.5. With regard to their complaints regarding training and promotions, none of the remaining complainants adduced any evidence that they were treated discriminatorily by the respondent in respect of these matters. Accordingly, their complaints in respect of these matters must fail.
4.6. All complainants complained about racial harassment from the respondent's Site Engineer, Mr C. They were unanimous in their evidence that Mr C., especially when stressed, easily lost his temper and became abusive, and that this abuse included racially abusive remarks about the complainants' Polish nationality, calling them "stupid Polish", "f***ing Polish" and similar. Mr C., in direct evidence, confirmed that he could easily lose his temper, but denied ever making racist remarks. Several other witnesses for the respondent confirmed Mr C.'s angry outbursts, which by their evidence must be severe on occasion. However, all denied that his speech would be tainted with racism. In this context, it is important to note that all of the respondent witnesses were Irish, so would not necessarily have been the target of racist abuse.
4.7. I prefer the complainants' evidence on this point, and based on what is common case regarding Mr C.s temperament in general, find that they have established a prima facie case of racial harassment. The next question is, therefore, whether the defences in S. 14A(2) of the Acts avail the respondent.
4.8. All complainants gave evidence that they did receive the respondent's written policy, translated into Polish, on bullying and harassment. This policy listed three persons to whom complaints could be made to about bullying and harassment. In ascending order of seniority, these were: Mr C. himself, his manager Mr B., and the respondent's Managing Director, Mr E., who was located in the respondent's Kildare head office.
4.9. It is the respondent's case that neither of these men ever received a harassment complaint from any of the complainants. The complainants, in turn, stated in their evidence that they did not feel comfortable complaining to Mr C., who was their harasser, after all, and did not feel comfortable complaining to Mr B. either, who they perceived to be a good friend of Mr C.'s. Mr B. confirmed this in his own evidence to the Tribunal. Two further complicating factors for the complainants existed in that Mr C and Mr B were also the owners of the house in which the complainants lived - an issue I which will examine in the next part of this decision - and in language difficulties. All complainants gave their evidence at the hearing with the assistance of an interpreter. The complainants said that they complained about the racist abuse to a Polish engineer who was in the employment of the respondent at the time, and who had in fact suggested to the respondent to hire road-building crews from Poland. The engineer, Mr. D., was not present to give evidence, and the complainants' evidence on this point has not been rebutted by the respondent.
4.10. I find that in order to follow the official policy, the only route open to the complainants would have been to complain directly to Mr E. in the respondent's Kildare head office. I find that this would have been a difficult and even intimidating prospect for the complainants, and find by complaining to a fellow countryman in a supervisory engineering role about the abuse they suffered, they complied with the requirements of the Acts to put the respondent on notice about the abuse, and to give the respondent an opportunity to address same and prevent further recurrences.
4.11. All complainants were unanimous that nothing happened following their complaints to Mr D., and that Mr C.'s behaviour did not improve. Accordingly, the defences set out in S. 14A(2) of the Acts cannot avail the respondent and the complainants are entitled to succeed in this part of their complaints.
Conditions of Employment
4.12. One condition of the complainants' contracts of employment was that the respondent would provide accommodation for them. Originally, they lived in two rented houses in Bandon. The rent was paid by the respondent, the utility bills by the complainants. The use of the respondent's vans was also agreed - Mr C. stated that this was done with the expectation that the complainants would eventually buy a car. At first, this arrangement worked out well; however, according to the respondent, complaints were received from neighbours about equipment in the open back of the vans, diesel leaking onto the driveway and machinery stored around the houses. According to the respondent, those complaining felt that children playing in the neighbourhood could be in danger. Therefore, the respondent started looking for an alternative. Mr C and Mr B did not find a suitable house to rent for six people, but found a property, two miles outside Clonakilty, which was for sale. According to the evidence of both Mr C. and Mr B., they decided to buy the house and rent it to the respondent, who in turn would rent it to the complainants.
4.13. This way, Mr C. and Mr B., who were already the complainants' regional managers, also became the accommodation providers of a group of workers who, unlike Irish employees, were to some degree dependent on being assisted with accommodation in a country in which they were strangers and whose language they spoke very poorly. I think it is fair to state that this situation enhanced the complainants' dependency on the goodwill of Mr C. and Mr B considerably. It also created a situation in which it was in Mr C.'s and Mr B.'s interest that the complainants should stay in the house as tenants. According to Mr C. and Mr B., they rented the house to the respondent, who then in turn rented it to the complainants.
4.14. The complainants were shown the house in October 2005, and moved in in December. The rent they were charged was €1600 per month, or €55 per person per week, the equivalent of the rent payments of the two houses in Bandon where they had lived before.
4.15. It is the respondent's case that the complainants' wages were grossed up for the rent payment, which was subsequently deducted again; however, the wage slips which the respondent submitted after the hearing and which were not explained to the Tribunal by the respondent's accountant, or tested in cross-examination by the representatives of the complainant, simply show wages paid and rent deducted. I therefore prefer the complainants' evidence, that rent was deducted from their wages contrary to what they were led to expect when accepting their jobs back in Poland. In addition, I can not accept Mr C.s contention that setting the rent at the equivalent of the market rent of two houses in Bandon, where there was easy access to a multitude of facilities, was appropriate for a house located in stark rural isolation 1.2 km from the nearest shop, this being a small newsagent-like facility attached to a petrol station. According to the sales advertisement for the property submitted by the respondent, the nearest town, Clonakilty, was 2.5 miles (4 kilometres) away. .
4.16. According to the complainants, there was no choice as to whether they wanted to live in this house or not. All complainants were unanimous that when they mentioned they wanted to move out, they were threatened with dismissal. The complainants heard this threat from both Mr C. and Mr B. When some of the complainants were joined by their spouses and partners, they, too, were charged rent. The complainants stated that they only succeeded in leaving this situation when another work crew came over from Poland who took over their rooms. Mr C. and Mr B. disputed in their evidence that they ever threatened the complainants with dismissal.
4.17. I prefer the evidence of the complainants in this matter. Mr C. and Mr B. were their supervisors, their site engineer and their area manager respectively. It served their personal financial interests to have the house fully occupied for as long as possible, if only because otherwise, questions might have arisen from within the respondent company on the underlying conflict of interest. I have already found that Mr C. racially harassed the complainants, and I find it entirely credible that the complainants felt fearful of him, as they stated in evidence, and dependent on his and Mr B.s goodwill.
4.18. There was considerable dispute between the parties about various facts which concerned the period when the complainants lived in this house, and the house itself. The respondent insists that the house contained a bedroom for each complainant. Some of the complainants disputed this, whereas others accepted that the house did indeed have sufficient bedrooms for each complainant to have his own room. The respondent submitted the original auctioneer advertisement for the property in evidence, and I am satisfied that it did indeed have eight bedrooms.
4.19. There was also dispute around the furnishing of the house. The complainants complained about the bareness of the bedrooms, and the insufficient kitchen facilities, especially the fact that the kitchen had only one refrigerator, which was insufficient to store food for seven people. According to the complainants, this was further exacerbated by the isolated rural location of the property, and the difficulties with shopping that arose from that.
4.20. Mr C., for the respondent, gave evidence that while the house was unfurnished when he and Mr B. bought it, he subsequently furnished it together with his father. He stated that he furnished each bedroom with "a bed and a locker", which does not really contradict the complainants' description of the bareness of their rooms. Mr C. specifically insisted that a second refrigerator was installed in the kitchen. However, the photo of the kitchen submitted by the respondent, while showing a spacious kitchen, is inconclusive in this regard. Furthermore, all complainants, even those who agreed with the respondent on the size of the house, were unanimous that kitchen facilities were seriously inadequate and specifically, that the kitchen had only one refrigerator, and I prefer their evidence in this matter. Mr C. said that no requests for extra items were ever made; however, given what I have said already about his relationship with the complainants, I do not find it surprising that they would have hesitated to make demands on him.
4.21. Further issues arose from the isolated rural location of the property, which made shopping and social integration very difficult for the complainants. Mr Kolibowski in particular also complained that the isolated location of the house made it difficult for him to attend Polish masses in Bandon, which are held there on the first Saturday of each month, and which he had attended regularly when the crew still lived in Bandon. In contrast, Mr C. stated in his evidence to the Tribunal that the complainants were moved into the house to facilitate their social integration, a claim which I find wholly lacking in credibility. I therefore prefer the complainants' evidence that the house's location significantly impacted on their quality of life.
4.22. In this context, the use of the respondent's vans also became an issue between the parties. Mr C. and Mr. B. felt the complainants' use of the vehicles was excessive, and put the fact that they tolerated this nevertheless to the Tribunal in evidence of how well they had treated the complainants, and to generally refute the complainants' description of their experience. The complainants' on the other hand put forward the view that the isolated location of the property necessitated excessive driving. It is common case that the complainants eventually did buy their own cars, but looking at their income from the payslips submitted, it is clear that they would not have been in a position to do so for some time, until they had accrued the necessary savings to put a deposit on a car and afford the incidental expenses that come with putting a car on the road. I find that the complainants' use of the respondent's vehicles is therefore a logical consequence of the situation in which they were forced to live, and the income they earned from their employment with the respondent, and does not undermine the validity of their complaints.
4.23. Provision of accommodation was a condition of the complainants' employment with the respondent and was provided, in that the respondent rented the property in Lissalane from Mr B. and Mr C., and rented it on to the complainants. However, I am satisfied from all of the above evidence, that the situation of dependency in which the complainants found themselves, in that their managers were also the owners of the property in which they lived, would be most unusual to arise for an Irish worker. I have already noted in paragraph 4.17 above how I find the complainants' evidence, that they were threatened with dismissal when they mentioned their wish to move elsewhere, to be credible. I am satisfied that Mr B. and Mr C. exploited the situation in which the complainants found themselves, in that they were far from their homeland, and with very limited language skills, for their personal gain, and that the respondent colluded in this by allowing itself to stand in as the complainants' official landlord on behalf of Mr B. and Mr C., and by being vicariously liable for the threats Mr B and Mr C used in their positions as the complainants' managers in order to keep their rental arrangement going. I am therefore satisfied that in this aspect of their conditions of employment, the complainants were treated less favourably than an Irish worker would be, and that the manner in which their accommodation was provided therefore constitutes discrimination on the ground of race.
4.24. The complainants also complained that they were not given breaks, and that they had to work in the respondent's quarry in addition to road-building work. However, the complainants' evidence that this arose because of their Polish nationality was inconclusive, and I prefer the respondent's evidence that break times were oftentimes not kept due to weather constraints - it was explained in evidence that laying tarmac needs to be carried out in dry conditions - and that both the shifting nature of breaks, and the work in the quarry on rainy days, applied to all staff. In addition, these practices were confirmed by Irish staff members of the respondent in direct evidence.
4.25. I am turning now to the complainants' complaint of discriminatory, or in the alternative, victimisatory dismissal. In order to establish a prima facie case of discriminatory dismissal, the complainants would have to show that their Polish nationality was the reason why they were dismissed. In terms of a possible victimisatory dismissal, the situation is as follows: At the time the complainants employment with the respondent came to an end, they had not yet brought proceedings to this Tribunal, nor was there any evidence from either side that any of the complainants spoke of his intention of doing so. Accordingly, of the definitions of victimisation set out in S. 74(2) of the Acts, only the following could possibly apply:
(a) a complaint of discrimination made by the employee to the employer,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under such repealed enactment.
4.26. There was little dispute (as regards the facts that are relevant for this Tribunal) as to the chain of events that led to the termination of the complainants employment, and it can be summarised as follows:
4.27. In 2009, the respondent experienced a downturn in business, in line with the recession and its impact on the construction sector. The complainants were put on protective notice, and received letters from the respondent to that effect. However, according to the complainants, they had difficulties claiming their social welfare entitlements and needed additional forms signed by either Mr C. or Mr B. in order to claim those. Given the complainants' language difficulties, it was not entirely clear from their evidence as to whether this was the case or whether their problems with the Department of Social Protection could have been solved simply with additional assistance from the respondent. That assistance was not given. During the hearing of the complaint, the respondent insisted that the letters provided were sufficient.
4.28. The complainants alleged that Mr C. refused to see them, and that Mr B. had instructed office staff to tell them he was not available. Both men strenuously denied this. As the secretary to whom the complainants spoke was not available as a witness, it is not possible for me to come to any conclusions on this particular point. It is clear, however, that the complainants had no success in obtaining payment from the Department of Social Protection, had not been paid wages due to being on protective notice, and were therefore out of funds.
4.29. In this situation, they received a text message from Mr C., to meet him at 6:30am on Monday, 25 May 2009, at a specified location in Bandon to go to Dingle in Co. Kerry for work. Mr C. said in evidence that he instructed another employee of the respondents to give the complainants details of the assignment, however, the complainants were unanimous in their evidence that no such details had been provided to them.
4.30. Therefore, when the complainants met Mr C. at the time and location indicated, they asked Mr C. for money and details of the project. Mr C. promised them to sort out the money, but said it was not a good time to discuss matters. According to Mr C., he was anxious to leave Bandon for Dingle. However, it is common case that the complainants refused to go with Mr C. unless their concerns had been addressed. Mr C. interpreted this to mean that they were refusing an offer of work from the respondent. According to his evidence, he was in a state of shock, as none of the complainants had ever questioned one of his instructions before. It is also common case that Mr C. then drove off, and that the complainants obtained their P45 forms from Mr B. Mr C. hired subcontractors for the Dingle project.
4.31. The main point from the above evidence, from the perspective of the Tribunal and looking at a complaint of discriminatory or victimisatory dismissal, is that I am satisfied that either discrimination or victimisation as defined in the Acts were absent from the events as they unfolded. I am satisfied that the employment of an Irish crew might terminate in the same way under the same circumstances. In terms of possible victimisation, the complainants were concerned about their financial situation and their lack of knowledge about a building project 250k from their Co. Cork base. From all their evidence, I am satisfied that what they said to Mr C. did not relate to complaints about his conduct, which I have found to be valid in the paragraphs above. Likewise, there is no evidence from either the complainants or Mr C., that he considered their employment to have come to an end because of any such complaints. Accordingly, the complainants' case for discriminatory or victimisatory dismissal must fail.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that
(i) ARKIL Ltd did discriminate against Mr Marcin Luszczewski, Mr Rafal Kolibowski, Mr Zbigniew Kaczmarek, Mr Marcien Rochowink and Mr Zbigniew Banaszak on the ground of race, in their conditions of employment, both in terms of the circumstances that surrounded the provision of accommodation as per their contract of employment, and by not taking reasonable and practicable steps to prevent their harassment contrary to S. 14A(7) of the Acts.
(ii) I find that ARKIL Ltd did not discriminate against Mr Ireneusz Pawelec.
(iii) I find that ARKIL Ltd did not discriminate against the complainants in respect of training or promotion.
(iv) I find that ARKIL Ltd did not discriminatorily or victimisatorily dismiss the complainants.
5.2. I therefore order, in accordance with Section 82 of the Acts, that the respondent pay each of the complainants it has been found to have discriminated against:
(i) €5000 for the harassment endured and
(ii) €10,000 for other discrimination in relation to his conditions of employment.
These awards are made in compensation for the distress suffered by the complainants in relation to the respondent's unlawful conduct and are not in the nature of pay and therefore not subject to tax.
11 September 2012