Case Number: DEC-E2012-054- Full Case Report. Equality Tribunal

• Docket Number: DEC-E2012-054- Full Case Report
• Date: 01 April 2012
• Court: Equality Tribunal

EMPLOYMENT EQUALITY ACTS

Decision DEC - E2012-054

PARTIES

Natalya Morgalova, Larisa Morgalova & Aleksandrs Morgalovs
(Represented by Richard Grogan & Associates, Solicitors)
v
Brian Long (Represented by Thomas Ryan & Co. Solicitors )

File references: EE/2009/240 EE2009/241, EE2009/242,
& EE2009/370

Date of issue: 30/4/3012

Headnotes: Employment Equality Acts, 1998-2008 - sections 6, 8,14A,74 - race- - gender - family status -marital status conditions of employment - prima facie case - discriminatory dismissal - harassment -victimisation- misconceived.

1. Dispute

1.1 This dispute concerns claims by Ms. Natalya Morgalova, Ms. Larisa Morgalova and Mr Aleksandrs Morgalovs (hereinafter "the complainants") that each of them was subjected to discriminatory treatment on the ground of his/her race in terms of Section 6 (2) (h) and contrary to Sections 8 of the Employment Equality Acts by Brian Long (hereinafter "the respondent") and that each of them was harassed contrary to Section 14A of the Acts. This dispute also concerns a claim by Ms Natalya Morgalova that she was subjected to discriminatory treatment on grounds of gender in terms of Sections 6(2)(a) of the Acts. This dispute also concerns a claim by Ms Larissa Morgalova that she was subjected to discriminatory treatment on grounds of gender, marital status and family status in terms of Sections 6(2)(a), (b) and (c) of the Acts. Each of the complainants maintains that the respondent discriminated against him/her in relation to training, conditions of employment and other. Both Ms Larisa Morgalova and Mr. Aleksandrs Morgalovs also maintain that s/he was subject of a discriminatory and victimisatory dismissal .

1.2 Each of the complainants referred complaints under the Employment Equality Acts to the Equality Tribunal on 14 April 2009 and subsequently on 25 May 2009 Mr Morgalovs referred a claim of discriminatory and victimisatory dismissal. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Deirdre Sweeney, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 1 March 2012, the date the complaint was delegated to me. Submissions were received on behalf of all parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 5 April 2012 and final information was received on 18 April 2012.

2. Summary of the Complainants' Submissions

2.1 The complainants who are Latvian nationals, state they were employed by the respondent. Each of them submits that s/he did not receive a contract of employment, health and safety documentation or training. Each of them complains that s/he did not receive payslips, tax documentation, or P60s. Each of them contends that s/he had to work excessive hours with no breaks or rest periods. Ms Natalya Morgalova states that she was working as a nanny for the respondent. She was required to go to France at times and was fired when the respondent obtained a French speaking nanny who had a driving licence. Ms Larisa Morgalova submits that she had to have breakfast ready by 7.15am and then work until late in the evening. She had a six year old son who was not allowed in the kitchen. When Ms Larisa Morgalova issued a Form EE2 to the respondent she contends that she was fired. When Mr Aleksandrs Morgalovs issued a Form EE2 he contends that he was fired. The complainants also contend that each of them was subjected to constant harassment. They also contend that they were required to be at the beck and call of the respondent and his wife all day every day. The complainants contend that this constitutes unlawful discrimination on grounds of race contrary to the Acts.

2.2 The complainants also refer to a number of cases in support of their cases, including Southern Health Board -v- Dr Teresa Mitchell, Campbell Catering Ltd -v- Rasaq (EED048) and 58 Complainants -v- Goode Concrete (DEC-E2008-020.

3. Summary of the Respondent's Submission

3.1 The respondent denies all the claims against him and submits that the claimants' claims are baseless, illogical and unreasonable. The respondent contends that he treated the complainants with compassion, respect and trust. He further contends that he employed one of the complainants Ms Larisa Morgalova and provided her and her family which included the other two complainants with free luxury accommodation, access to a telephone for local calls, Sky TV. Ms Larisa Morgalova was also entrusted with the respondent's laser card and a company car in connection with her employment.

Ms Larisa Morgalova

3.2 Ms Morgalova was employed as a cook in a family residence at which the family only stayed infrequently. While the respondent accepts that the complainant did not received a statement of terms and conditions of employment her duties were explained to her in Russian the complainant's native language by another employee, and in English. An affidavit from the employee to that effect was submitted. The complainant was paid on the basis of 40 hours per week for which she was paid €26000 per annum. This does not take into account the free accommodation provided for her and her family. This accommodation consisted of a luxury one bedroom apartment and in addition a double ensuite bedroom was also provided. The respondent accepts that the complainant did not receive a payslip. However the respondent states that he is fully compliant will all tax matters in relation to the complainant's employment. The complainant was paid in cash occasionally which is legal under Section 1 of the Payment of Wages Act 1991.
In relation to the complainant's claim of discrimination on grounds of gender, the respondent submits that there is no evidence to support this. There were three other employees, two male and one female. None of these employees were furnished with contracts of employment or statements of terms and conditions of employment. In relation to her claims on grounds of marital status and family status the respondents submits that it could be argued that she was treated more favourably in that she was the only employee to be provided with free accommodation.
In relation to the complainant's claim of discriminatory/victimisatory dismissal the respondent contends that she was dismissed when he became alarmed at what he considered to be the misuse of the laser card by the complainant. The respondent alleges that prior to her dismissal there was an alarming, excessive and unauthorised...