Case Number: DEC-E2012-038- Full Case Report. Equality Tribunal

• Docket Number: DEC-E2012-038- Full Case Report
• Date: 28 March 2012
• Court: Equality Tribunal

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision - DEC-E2012-038
PARTIES

Twarog, Ochala and Buba
(Represented by Richard Grogan & Associates)
v
PEK Flooring Ltd
(in liquidation)

File Reference: EE/2009/937, 940 & 941
Date of Issue: 28 March 2012

Headnotes: Employment Equality Acts, 1998 to 2011 sections 6, 8 and 14A - discriminatory treatment and harassment - race - conditions of employment - discriminatory dismissal - prima facie case.

1. Dispute

This dispute involves a claim by Mr Janusz Piotr Twarog (hereinafter "the first-named complainant"), Mr Grzegorz Andrzej Ochala (hereinafter "the second-named complainant") and Mr Dariusz Stanislaw Buba (hereinafter "the third-named complainant"), (hereinafter collectively "the complainants") who are Polish nationals, that they were discriminated against by PEK Flooring Ltd (hereinafter "the respondent") in relation to conditions of employment on grounds of race, in terms of section 6 (2) of the Employment Equality Acts, 1998 - 2008 (hereinafter "the Acts") and contrary to section 8 of the Acts by dismissing them discriminatorily. The complainants also claim discrimination and/or harassment on the ground of race by being threatened with being reported to An Garda Siochana and deported back to Poland. Claims of discrimination in training, provision of employment contracts and health and safety documentation and training were withdrawn at the hearing.

2. Background

The Complainants referred complaints under the Acts to the Director of the Equality Tribunal on 18 December 2009. A written submission was received from the complainant on 7 May 2010. A written submission was received from the respondent on 1 July 2010. As required by section 79(1) of the Acts and as part of my investigation, I held a hearing of this complaint on 21 March 2012. Both parties attended the hearing.

3. Summary of the Complainants' case

3.1 The first and second-named complainants were employed by the respondent as floor layers from 7 July 2004 to 4 December 2009 when they were dismissed. The third-named complainant commenced employment on 25th June 2007 and was dismissed on 4 December 2009.
They were dismissed when they refused to accept reduced rates of pay. When they refused to work at reduced rates they were threatened by the respondent's manager Mr P that he would go to the Gardaí to say they were moonlighting using company property and that they would be deported back to Poland. The complainants say that they took this threat seriously and sought legal advice. Their lawyer advised them not to return to work.
They also claim that they were required to pay the costs of a company van which was deducted from their wages.

4. Summary of the Respondent's case

The first and second-named complainants were recruited in Poland by the respondent in 2004 as floor layers. The third-named respondent was recruited as a floor layer in June 2007. The respondent had no difficulties with the complainants as their work was exemplary as was their timekeeping. In February 2009, as a result of a downturn in the economy, the respondent did not have enough work for all their employees and it was agreed that the employees would work week on, week off. The work standards and punctuality of the complainants deteriorated markedly. One fitting job for a hotel in the Dublin Docklands was very poorly carried out resulting in a grossly mismatched floor. When confronted the complainants refused to accept responsibility necessitating the respondent to have the floor job repaired by another team at a cost of € 15,000 and detriment to the company's reputation.
The complainants refused to work on a contract in Carlow as they believed they would not be paid enough. Although they were advised that they would be paid the same as other teams doing similar work on the site they said that they would not attend. The respondent denies that Mr P threatened the complaints with being reported to the Gardaí and being deported. The respondent had issued a formal written warning to each of the complainants on 16 November 2009 in the following terms:
"Despite numerous verbal warnings on failing to follow instruction by PEK Flooring Ltd, also continuous bad time keeping, we have no alternative but to issue you with this written warning.
As you are aware this was discussed in great detail with [Mr B. a Polish interpreter] on Monday 16 November 2009. Please take this in to consideration and act accordingly."
On 1st December 2009, the respondent's Managing Director wrote again to the three complainants in the following terms:

"You are invited to attend a disciplinary hearing on Wednesday 2nd December...