In a week in which the Equality authority celebrated ten years of the Equality Acts, its sibling organisation, the Equality Tribunal, published 27 Decisions taken under the Employment Equality Acts for the month of July 2010 just 5 of which were successful. These are reviewed below.

This month's review relates to cases concerning Eastern European workers exclusively alleging discriminatory treatment in relation to terms and conditions of employment and harassment.

1. DEC-E2010 -164.An Employee -v- An Employer

Grounds/Issues: Discriminatory Treatment, Harassment, Race, Conditions of Employment.
Award: €3,000 for Conditions of Employment and €4,000 for Harassment.

This dispute concerned a claim by Mr. Rimantas Kazdailis that he was subjected to discriminatory treatment and harassment contrary to the Employment Equality Acts by Winegate Haulage Ltd. on the grounds of his race.

The complainant, a Lithuanian national, worked with the respondent from early April 2005 to September 2007 as a truck driver. It was submitted that the complainant did not receive a contract of employment, a P45, a P60, health and safety training or documentation.
The complainant was not given payslips and he received €575 per week in cash which he assumed that this was his net payment. When he left the job, he was eventually given a P45, but it was handwritten, incorrect, showed no tax contribution and it turned out that it had never been sent to the Revenue Commissioners. As a result, he claimed that he was essentially invisible to the authorities for the 18 months he worked for the respondent. He said that he has lost out on the appropriate pension entitlements in his home country as a result of his employer not paying tax on his behalf. He was adamant that he believed at the time that the salary he received was net of tax.

The complainant contended that the conditions in which he worked were such that no notional Irish comparator would have worked in a similar way. He submitted that he was forced to work 16-20 hours per day, without sufficient rest breaks. His job was to drive for long periods and there was a tracking device on his truck. If he took any breaks at all on his journey, his boss would see that he had stopped the truck and he would call him immediately and tell him to get back in and keep driving. He tried to point out that he was entitled to a break after every 4 hours driving, but this was never accepted by his employer.

There were about 30 employees working for the respondent at the time and all of them were foreign nationals, mainly Polish, Romanian and Lithuanian. As there were no Irish employees other than the manager, the complainant sought to rely on a hypothetical comparator and submitted that no Irish person would have put up with working up to 20-hour days, without breaks. A hypothetical Irish person would have received a contract of employment, a Health and Safety statement, a payslip and a correct P45 he argued. The complainant provided copies of the only records of his employment; the incorrect P45 and his tachometer records.

The complainant submitted that foul language was used towards him and all the other employees and he was regularly called lazy. He says that when he was at the base, his employer would say things like " Why are you walking? Hurry up, I pay you money, so run". His employer constantly shouted at him and objected every time he stopped his truck. The complainant contends that this type of harassment happened every day and it was humiliating to him and created an oppressive environment. No grievance procedures were in place.

The complainant gave an example of a day when he had been already been working for 16 hours. He realised on his way back to base around 8pm that his brakes had completely failed and he went through a red light. When he stopped, he called his employer to inform him about the dangerous situation. His employer told him that he needed him to drive to Portlaoise that night. The complainant refused to drive the truck and took a taxi home. His employer said that he was a lazy donkey and was just trying to get out of working. His employer sent a Romanian driver on the journey instead (the complainant pointed out that due to their legal situation, the Romanian drivers were not in a position to refuse). The complainant submitted that this complete lack of concern for his welfare amounts to harassment.

It was argued that a foreign worker in such a situation is in a particularly vulnerable position. The complainant's representative submitted that the employer took advantage of the fact that all his employees were foreign nationals and would therefore be less likely to object to the shouting and verbal abuse.

The Equality Officer Elaine Cassidy ruled as follows :

“Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
(i) I find that the complainant has been unable to establish a prima facie case of discrimination with respect to certain conditions of work (Contract, payslip, P45, H&S documentation) . Therefore this aspect of his claim fails.
(ii) I find that the complainant has established a prima facie case of discrimination with respect to other conditions of work (working hours, breaks). The respondent has not rebutted the claim and therefore this aspect of his claim succeeds. In accordance with Section 82 of the Act, I therefore order that the respondent pay the complainant €3,000 in compensation for the distress caused by discriminatory conditions of employment. This portion of redress is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
(iii) I find that the complainant has established a prima facie case of harassment within the meaning of the Acts. The respondent has not rebutted the claim and therefore this aspect of his claim succeeds. In accordance with Section 82 of the Act, I therefore order that the respondent pay the complainant €4,000 in compensation for the distress caused by the harassment. This portion of redress is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).”

Full Report
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2438


2. DEC-E2010- 168. An Employee -v- An Employer

Grounds/Issues: Race, Conditions of Employment.
Award: €2,000 for Discriminatory conditions of employment.

This case concerned a claim by Mr Frantiser Zigo, a Slovakian National, against Owen Tango Plasterers and Painters. His claim was that he was discriminated against regarding conditions of employment and training and that he was discriminatorily dismissed on the grounds of race contrary to 6(2)(h) of the Employment Equality Acts 1998 - 2008.

The complainant was employed from November 2007 until January 2008. Mr Zigo submitted that he was paid €200 in total for six weeks work. When he sought payment, he was told he would be paid later when the respondent was paid. As he was employed as a driver, i.e. transporting the other employees to and from work, as well as a painter/decorator he submits he worked longer hours than the other employees did. Mr Zigo submitted that he was the only person of Slovakian nationality working for Owen Tango Plasterers and Painters.

Mr Zigo also maintained that he never received health and safety training or documentation. He submitted that he did not receive a contract of employment either. In relation to this, the complainant cited 58 complainants v Goode Concrete. He stated that he was dismissed and that this was done contrary to fair procedures. He also maintained that Mr Tango only employed foreign nationals and that he was treated less favourably than a notional Irish comparator.

The Equality Officer ruled as follows :
“In direct evidence, Mr Zigo stated that all employees were let go on the same day. Therefore, his complaint of discriminatory dismissal cannot succeed as he has not demonstrated less favourable treatment than other employees have on the ground of race.

I have concluded my investigation of Frantiser Zigo's complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that:

(i) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against him on the ground of race in relation to training
(ii) the complainant has failed to establish the facts that the respondent discriminatorily dismissed him on the ground of race.
(iii) the complainant was discriminated against by the respondent regarding his conditions of employment on the ground of race.
In accordance with Section 82 of the Act, I order the respondent pay the complainant €2,000 in compensation for the discrimination in relation to his conditions of employment. In calculating the redress, I am cognisant of the fact that Mr Zigo was working for the respondent for approximately six weeks. This is redress for the infringement of Mr Zigo's statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).”

Full Report
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2442


3. DEC-E2010-170.4 Employees -v- An Employer

Grounds/Issues: Harassment.
Awards: €4,500 to Mr Pawel Siekerski, €4,000 each to Mr Lukasz Jedlinski and Mr Rafal labedzki and €10,000 to Mr marius Kowalski for Harassment.

This case concerned complaints by Mr Pawel Siekierski, Mr Rafal Labedzki, Mr Lukasz Jedlinski and Mr Mariusz Kowalski, all Polish nationals, that they were discriminated against by Sales Placement Ltd.. in respect of harassment on the ground of race, in terms of section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 and contrary to section 14A of those Acts.

The complainants submitted that they were subjected to harassment on the ground of race while they worked for Sales Placement Ltd. as general operatives in an industrial site operated by a third party (hereinafter called Z Ltd.). They submitted that this harassment was carried out by two of their co-workers, Mr A and Ms B, who supervised them and who were employed by Z Ltd.. The complainants illustrated the behaviour in question by referring to a number of incidents which served as examples of the alleged behaviour.

The first-named complainant, Mr. Pawel Siekerski is a Polish national. He referred to an incident on 24 January, 2007, when he submitted that his supervisor forbade him from speaking in Polish with two of the other complainants, Mr Labedzski and Mr Jedlinski, while they were eating ("the eating incident"). He said that, on 25 January, 2007, the same supervisor accused him of stealing when he was holding a TV set in order to destroy it ("the TV incident"). On 5 February, 2007, he submitted that he was sweeping the floor with two of his colleagues when they were told by this supervisor that they were idiots from Poland who do not even know how to sweep a floor and that, when they confronted the supervisor, they were told they would "pay for answering me" ("the sweeping incident"). They submitted that this was the last day they worked with Z Ltd. and were scheduled by the respondent to be in a different workplace thereafter. Mr Siekerski also referred to an incident on an unknown date where the supervisor shouted at him, and other fellow Polish workers, saying "you f*****g lazy Poles." ("the shouting incident").

The Equality Officer Gary O'Doherty ruled as follows:

“6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
6.2. I find that the complainants have established a prima facie case of harassment of them by the respondent within the meaning of section 14A of the Acts, and the respondent has failed to rebut the prima facie case established by the complainants;
6.3. I order the respondent to pay to the complainant, Mr Pawel Siekerski, the sum of €4,500 in respect of the harassment;
6.4. I order the respondent to pay to the complainant, Mr Lukasz Jedlinski, the sum of €4,000 in respect of the harassment;
6.5. I order the respondent to pay to the complainant, Mr Rafal Labedzki, the sum of €4,000 in respect of the harassment;
6.6. I order the respondent to pay to the complainant, Mr Mariusz Kowalski, the sum of €10,000 in respect of the harassment;
6.7. These awards do not relate to pay and, therefore, they are not subject to tax.”

Full Report
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2443


4. DEC-E2010-175.3 Employees -v- An Employer

Grounds/Issues: Race.
Award: €2,000 each for Discriminatory conditions of employment

The case concerned claims by two Latvian Nationals (Maris Birkinfelds and Andris Andruss) and a Lithuanian National (Olegas Lomaho), against EZ Drill Ltd. Their claim was that they was discriminated against in relation to conditions of employment and that they were discriminatorily dismissed on the grounds of race contrary to 6(2)(h) of the Employment Equality Acts 1998 - 2008 Discriminatory pay is also claimed but as no comparator is named this is not a valid equal pay claim. The claims in relation to training and access to employment were withdrawn at the hearing.

The complainants started and finished employment with the respondent on different dates . Concrete drilling and cutting was the work conducted by all three complainants for the respondent.

They maintained that they were treated less favourably than the Irish employees of the respondent were. If an individual work target was exceeded each month, an employee was entitled to a bonus. The three complainants maintained that the Irish were given the jobs where it was easy to exceed targets i.e. the Irish would work in the one spot rather than having to climb up and down scaffolding. They also submitted that the Irish workers were given the better tools and were subject to less criticism.

The two Latvian complainants submitted that an incident occurred in June 2007 about which they are still angry. They normally worked Monday to Friday and they maintained that it was only on an exceptional basis that employees were required to work during a weekend. Ligo Day and Jani are significant Latvian National holidays and occur on 23rd and 24th June respectively each year. In 2007, these dates fell on a Saturday and Sunday. Mr Birkenfelds and Mr Andruss submitted that they wished to celebrate these national holidays. However, they stated only seven people were asked to work over the weekend and they were all Latvian. They submitted that the work they had to do was not urgent. The two complainants maintained that their supervisor who was Irish was aware that this was a special time for Latvians. Whether or not he knew previously, a colleague of theirs reminded the supervisor of the significance of that weekend to Latvians. According to the complainants, the same supervisor told them that if they did not turn up for work that weekend they would be fired. The complainants maintained they felt obliged to work and although they received overtime (although they argued they were paid for less hours than they worked), they would have preferred to sacrifice the overtime and not to have worked at all over this weekend. They submitted that Irish employees volunteered to work that weekend but that the supervisor insisted on the Latvians doing it. The complainants maintained that this was done for spiteful reasons.

Mr Lomaho stated that in 2006 he informed his supervisor that he would be taking what is known as "builders' holidays" i.e. the last two weeks in July leading into the August bank holiday. Nearly all staff took their holidays at this time although employees could take their holidays at another time if they so wished. Mr Lomaho submitted that when he returned to work on 1st August he was given a verbal warning for not giving notice of when he would be taking his Annual Leave. He maintained that to be polite he did give notice even though it was almost automatic that he would be taking leave then. He said that the Irish had a more casual approach to informing their supervisors about leave arrangements but they did not receive verbal warnings about it. Mr Birkenfelds submitted that he was dismissed by being called into the office and told his work was inadequate. Mr Lomaho and Mr Andruss are claiming constructive dismissal as they submitted that they were not paid for the last six weeks of work. They argued that the Irish were told when to cash their cheques so they would be paid first.

The Equality Officer Orlaith Mannion ruled as follows :

"I have concluded my investigation of the complaints of Maris Birkenfelds, Andris Andruss and Olegas Lomaho and hereby make the following decision in accordance with Section 79(6) of the Act. I find that:
(i) The respondent discriminated against Maris Birkenfelds, Andris Andruss and Olegas Lomaho regarding their conditions of employment on the ground of race.
(ii) The respondent did not discriminatorily dismiss Maris Birkenfelds, Andris Andruss and Olegas Lomaho on the ground of race.
In accordance with Section 82 of the Act, I therefore order that the respondent pay Maris Birkenfelds, Andris Andruss and Olegas Lomaho €2,000 each in compensation for the distress caused by discriminatory conditions of employment. This portion of redress is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).

Full Report
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2448


5. DEC-E2010-177. 3 Employees -v- An Employer

Grounds/Issues: Race, Conditions of Employment.
Awards: €3,000 to Irmantas Kaseta,and €2,000 each to Donatos Traidaras and Tomas Kupruseviclus for Discriminatory conditions of employment.

This case concerned claims by three Lithuanian Nationals, against Simon Quinn trading as Access Solutions Ltd. Their claim was that they was discriminated against in relation to conditions of employment and that they were discriminatorily dismissed on the grounds of race contrary to 6(2)(h) of the Employment Equality Acts 1998 - 2008 . Discriminatory pay was also claimed but as no comparator is named this was not considered to be a valid equal pay claim.

The complainants started and finished employment with the respondent on different dates. They were scaffolders. Mr Kaseta was a supervisor while the other two complainants were general operatives.

They submitted that the Irish workers were given company vans while the three complainants were not. They further submitted that they did not receive holiday pay and that they were asked to do unpaid overtime on Saturdays approximately once a month while the Irish workers were not.

Mr Kaseta maintained that after about a year of employment Irish workers were given time off to train to get their 'scaffolding ticket' to entitle them to supervise the erection and dismantlement of scaffolding. According to him, the respondent gave paid leave as well as paying for the cost of the course for Irish workers. Mr Kaseta asked Mr Quinn to do the same. The complainant submitted his employer refused and consequently Mr Kaseta had to incur the cost (€500) himself as well as taking annual leave to do the course.

Two of the complainants (Mr Kaseta and Mr Kuprusevicius) submitted they were dismissed by text messages from Mr Quinn 13th May 2007: "We will not be working tomorrow; I have no insurance, inspector for a day or so. Say it to Tomas please."

Irmantas Kaseta rang Mr Quinn the following day about work. He submits he received the following reply by text: "Dnt kno if we are yet"
He maintained he called to Mr Quinn's house on a couple of occasions and was told by his wife, 'Simon is not in'. Neither he nor Mr Kuprusevicius received further communication from the respondent again. Mr Traidaras submitted he was dismissed two weeks earlier when he requested holiday pay. The respondent did not engage with the investigation.

The Equality Officer Orlaith Mannion ruled as follows:

“I have concluded my investigation of the complaints of Irmantas Kaseta, Donatos Traidaras and Tomas Kuprusevicius and hereby make the following decision in accordance with Section 79(6) of the Act. I find that:

(i) The respondent discriminated against Irmantas Kaseta, Donatos Traidaras and Tomas Kuprusevicius regarding their conditions of employment on the ground of race.
(ii) The respondent did not discriminatorily dismiss Irmantas Kaseta, Donatos Traidaras and Tomas Kuprusevicius on the ground of race.
In accordance with Section 82 of the Act, I therefore order that the respondent pay Irmantas Kaseta €3,000 (to take account of the cost in time and money incurred in acquiring a scaffolding ticket), Donatos Traidaras €2,000 and Tomas Kuprusevicius €2,000 each in compensation for the distress caused by discriminatory conditions of employment. This redress is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).”

Full Report
http://www.equalitytribunal.ie/index.asp?locID=181&docID=2450

===============================================
Legal-Island
21 October 2010