Case Number: DEC-E2012-013- Full Case Report. Equality Tribunal

Docket NumberDEC-E2012-013- Full Case Report
Date01 February 2012
CourtEquality Tribunal
The Equality Tribunal

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2012-013

PARTIES

Radoslaw Brzeski & Donaldas Navickas
(Represented by Richard Grogan & Associates)

AND

Kilmeague Landscape Services Limited
(Represented by Management Support Services (Ireland) Ltd)

File reference: EE/2009/570, EE/2009/571 & EE/2009/927
Date of issue: 6 February 2012



HEADNOTES: Employment Equality Acts - Sections 6 and 8 - Race - Training, Conditions of employment, discriminatory dismissal, harassment.

1. DISPUTE

1.1 This dispute concerns claims by Mr Radoslaw Brzeski and Mr Donaldas Navickas that they were discriminated against by Kilmeague Landscape Services Limited on grounds of race contrary to section 6 (2) (h) of the Employment Equality Acts in relation to training, conditions of employment in terms of sections 8 of the Acts and harassment in accordance with section 14A of the Acts. Mr Brzeski also made claims that he was dismissed in discriminatory manner in terms of section 8 and that he suffered victimisation and victimisatory dismissal in terms of section 74 (2) of the Acts.


1.2 The complainants both referred claims to the Director of the Equality Tribunal on 29 July 2009 and Mr Brzeski made a further claim on 14 December 2009.
On 7 November 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. Submissions were received from both parties. In accordance with Section 79 (1) of the Acts and as part of my investigation I proceeded to a hearing on 16 November 2011 and final information was received on 8 December 2011.

2. RADOSLAW BRZESKI COMPLAINANTS' SUBMISSION

2.1 Mr Radoslaw Brzeski submitted claims on 29 July 2009 and 14 December 2009 on the grounds of race in relation to training, conditions of employment, discriminatory dismissal, harassment, victimisation and victimisatory dismissal.


2.2 The complainant submits that he was not issued with a contract of employment.
Also, that he was given no health and safety documentation, training or equipment. The complainant cited Equality Tribunal Decision No DEC-E2008-020, 58 Named Complainants v Goode Concrete Limited and submits there is an obligation on the respondent to provide these documents in a language likely to be understood by him. Failing to do this puts him, as a foreign national, in a particularly vulnerable position.


2.3 The complainant submits that the respondent wanted to reduce his wages and when he refused he was told he was doing a bad job and called to a disciplinary meeting.
The complainant submits that when he said he would go to a solicitor the respondent threatened him that they would get 10 solicitors.

2.4 The complainant submits he was required to work extra hours on Saturdays and was threatened with the sack if he did not work on Saturdays. He was paid in cash for this work and was therefore required to work illegally.


2.5 The complainant submits that he was subjected to racial abuse.
He says the General Manager called him a Polish fool and a homosexual. He says he complained to the owner but it would restart. He submits that an Irish person would not be treated in this way.


2.6 The complainant submits that he was dismissed after he made his first claim to the Equality Tribunal on 29 July 2009; although his dismissal letter was dated 30 July 2009 his P45 was dated 27 July 2009.
He was dismissed without any procedures. After his dismissal the respondent has claimed the complainant left voluntarily.

RESPONDENT'S SUBMISSION

2.7 The respondent submits that Mr Brzeski is a Polish national and he started working for them on 2 April 2007. He resigned on 10 July 2009 and his last day of work was 24 July 2009. He was a satisfactory employee with no disciplinary action at the time of his resignation. They considered he had an acceptable level of English. The respondent submits that the complainant has provided no evidence of any different treatment on the grounds of his race.


2.8 The respondent submits that the complainant was provided with terms and conditions of employment in both English and Polish.
They also submit that health and safety training was provided in both English and Polish.


2.9 The respondent submits that the complainant was invited in writing, in both English and Polish, to a disciplinary meeting, in accordance with their procedures.
However, no disciplinary action followed.


2.10 The respondent submits that any work carried out on a Saturday was not for the respondent.
Any work carried out for the respondent was "through the books".


2.11 The respondent submits that the complainant was not dismissed by them.
On 10 July 2009 the complainant rang up and advised the owner that he had another job which he wanted to start on the next Monday (13 July 2009) and he could not work out his notice. The owner agreed to the complainant going immediately and not working his notice. The complainant came to work on 13 July 2009 and said he could not start with the new employer and he wanted to continue working for the respondent. The respondent explained that his notice had been accepted but they would allow him to work out his two week notice if he wished. This the claimant did.


2.12 The respondent submits that the complainant has failed to establish a prima facie case of discrimination.

3. DONALDAS NAVICKAS COMPLAINANTS' SUBMISSION

3.1 Mr Donaldas Navickas submitted his claim on 29 July 2009 on the grounds of race in relation to training, conditions of employment and harassment.


3.2 The complainant submits that he was not issued with a contract of employment.
Also, that he was given no health and safety documentation, training or equipment. The complainant cited Equality Tribunal Decision No DEC-E2008-020, 58 Named Complainants v Goode Concrete Limited and submits there is an obligation on the respondent to provide these documents in a language likely to be understood by him. Failing to do this puts him, as a foreign national, in a particularly vulnerable position.


3.3 The complainant submits that the respondent wanted to reduce his wages and when he refused he was told he was doing a bad job and called to a disciplinary meeting.
He was asked to sign a document. When he refused and said he would go to a solicitor the respondent said he would get 10 solicitors.


3.4 The complainant submits he was required to work extra hours on Saturdays and was threatened with the sack if he did not work on Saturdays.
He was paid in cash for...

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