DEC-E2004-019 Full Case Report

Mr. Jiri Waller, Mr. Alexander Persin, Mr. John Broz, Mr. Jaroslav Zimacek, Mr. Jaroslav Penc(Represented by W. St. Clair & Co., Solicitors) v Rimec Limited and Dawn Meats (Midleton) Limited(Represented by John Glynn & Co., Solicitors)
and
Mr. Prenysl Boyda, Mr. Petr Tomiczek, Mr. Milos Vavrusa, Mr. Jaromir Orel, Mr. Petr Sedlak(Represented by W. St. Clair & Co., Solicitors) v Rimec Limted(Represented by John Glynn & Co., Solicitors)

1. DISPUTE

1.1 The dispute concerns a claim by 10 named individuals who were employed by Rimec Limited that they were entitled to equal remuneration with named comparators employed by other named organisations on the grounds of race in terms of Section 29 of the Employment Equality Act, 1998. Details are set out in Appendix A.

1.2 Claims were referred to the Director of Equality Investigations under the Employment Equality Act, 1998 as follows:
- Mr. Waller, Mr. Persin, Mr. Broz, Mr. Zimacek and Mr. Penc referred their claims on 25th October, 2002;
- Mr. Boyda and Mr. Tomiczek referred their claims on 13th March, 2003 and
- Mr. Vavrusa, Mr. Orel and Mr. Sedlak referred their claims on 26th May, 2003.

In accordance with her powers under Section 75 of that Act the Director then delegated the claims referred on 25th October, 2002 to Gerardine Coyle, Equality Officer on 4th April, 2003 and the remainder on 23rd July, 2003 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A preliminary joint hearing of these claims took place on 15th August, 2003. Further information was sought from the parties as a result of this hearing and the final information
was received on 19th January, 2004.

2. THE COMPLAINANTS' CASE

2.1 The complainants from the Czech Republic were employed and paid by Rimec Limited and the named comparators are employed and paid by the other named organisations (see Appendix A). It is the complainants' contention that the basis of association between Rimec Limited and other named organisations (e.g. Dawn Meats, Fair Oaks, etc) is that employees of Rimec Limited worked side by side with employees of the other named organisations. Furthermore they reported to and received direction/instruction from supervisors employed by the other named organisations. The complainants' also say that they were doing the same work as named comparators employed by these other named organisations. On this basis the complainants' contend that Rimec Limited and the other named organisations are associated and hence a claim for equal remuneration is properly before the Equality Tribunal for investigation. The complainants' also say that as Rimec Limited provides labour for the other named organisations it is a recruitment agency supplying a non-national workforce.

3. THE RESPONDENT'S CASE

3.1 The respondent (i.e. Rimec Limited) states that it is an independent organisation and is not associated to the other named organisations. In this regard the respondent states that it has its registered office in Dublin and that employees' pay is centralised from Dublin. According to the respondent it has a one year fixed term contract with its employees to work in various plants/organisations in the Ireland and which both parties can opt out of by giving notice. The respondent states that the other named organisations have entered into a contract with it to supply labour. It is the respondent's submission that control lies with it and it is responsible for paying taxes and as such is deemed to be the employer by the Revenue Commissioners.

4. CONCLUSIONS OF THE EQUALITY OFFICER

4.1 It is first necessary to establish if these claims are properly before the Equality Officer for investigation and decision. In this regard I have first examined the issue of whether or not the respondent (Rimec Limited) is an associate employer of the other named organisations.

4.2 Under Section 2 of the Employment Equality Act, 1998 "two employers shall be taken to be associated if one is a body corporate of which the other (whether directly or indirectly) has control of if both are bodies corporate of which a third person (whether directly or indirectly) has control". In the fixed term contract between each of the complainants and the respondent it provides that "Rimec Limited reserves the right to transfer its Employees to other Group Companies of which Rimec Limited is a member on similar terms within the period of their contract". The respondent provided me with details of the other companies in the Group and I am satisfied that they do not include and are not related to the other named organisations in these claims. I sought details from both parties to these claims on the Directors of the respondent and the other named organisations in these claims. The complainants' representative did not provide me with any response to this request. The respondent provided me with details of the Directors of the respondent organisation along with Memorandum and Articles of Association for some of the other named organisation (i.e. those for which they could obtain the information). There is no evidence that the Directors of the respondent organisation are also Directors of the other named organisations. The respondent also provided me with a copy of the contract which exists between it and the other named organisations. I note that in this contract it is held that "The Contract means the engagement of the Company (i.e.
Rimec Limited) by the Client (i.e. the other named organisations) on the Terms and Conditions set out in this document". Having therefore examined all of this information I am satisfied that there is no suggestion in it that the respondent is an associated company of the other named organisations in these claims.

4.3 I consider that the respondent is an employment agency providing a workforce for the other named organisations in these claims including Dawn Meats (Midleton) Limited. Under Section 2 of the Employment Equality Act, 1998 an employment agency means:
"a person who, whether for profit or otherwise, provides services related to the finding of employment for prospective employees or the supplying of employees to employers". In terms of Section 8 of the Employment Equality Act, 1998 it is held that "neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker is, has been or would be treated". Accordingly the complainants in these claims cannot make a claim of discrimination in relation to pay while comparing themselves to an employee of one of the other named organisations. Therefore I find that these claims are not properly before me for investigation and decision under the Employment Equality Act, 1998.

6. DECISION OF THE EQUALITY OFFICER

6.1 In view of the foregoing I find that the claims by Mr. Waller, Mr. Persin, Mr. Broz, Mr. Zimacek and Mr. Penc against Rimec Limited and Dawn Meats (Midleton) Limited and the claims by Mr. Boyda, Mr. Tomiczek, Mr. Vavrusa, Mr. Orel and Mr. Sedlak against Rimec Limited are not properly before me for investigation and decision.

____________________
Gerardine Coyle
Equality Officer
7th April, 2004

APPENDIX A

Details of the Complainants and the Named Comparators