FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : EUPAT LIMITED (IN VOLUNTARY LIQUIDATION) (REPRESENTED BY MC HUGH KINSELLA CHARTERED ACCOUNTANTS) - AND - ARTURAS BUSINKAS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2007.
BACKGROUND:
2. The Worker referred his case to the Labour Court on the 9th June, 2009, in accordance with Section 83(1) of the Employment Equality Acts 1998 to 2007. A Labour Court hearing took place on the 6th April 2010. The following is the Determination of the Court:-
DETERMINATION:
This matter came before the Court by way of an appeal by Mr Businkas (the Complainant) against the Decision of the Equality Tribunal in his claim of discrimination against EUPAT Ltd (In Liquidation) (the Respondent) under the Employment Equality Acts 1998 to 2008. There are four aspects to the claim as follows: -
•The Respondent failed to provide him with a written contract of employment,
•The Respondent failed to treat him as they would an indigenous worker in relation to his dismissal
•The Respondent failed to pay him the appropriate pay rate in accordance with the REA, and
•The Respondent failed to pay him the appropriate overtime payments in accordance with the REA.
The material facts of the case are fully and accurately recited in the Decision of the Equality Tribunal.
The Equality Officer, having heard the evidence adduced before her concluded as follows: -
Conclusions of the Equality Officer
5.1What must be decided is whether the complainant was less favourably treated in relation to his conditions of employment in terms of section 6(2)(h) and section 8(1)(b) of the Employment Equality Acts, 1998 and 2004. It is alleged that he was discriminated against when he was not provided with payslips, not treated in accordance with the industry REA, not given a written contract, and in relation to his dismissal.
5.2The Tribunal does not enforce REAs or any requirements included in them. In that regard I note the Determination PW92/2007 where the Employment Appeals Tribunal indicated that the Payment of Wages Act 1991 did not confer jurisdiction on the Tribunal to implement REAs. Likewise, the Employment Equality Acts 1998-2008 do not confer jurisdiction for the enforcement of REA’s on the Equality Tribunal. Any issues arising in relation to the enforcement of aspects of the construction industry REA will not be addressed further.5.5InNtoko v Citibank EED045the Labour Court stated that the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondent’s capacity of proof. InCampbell Catering and Aderonke Rasaq, EED048,the Labour Court applied the doctrine fromGlasgow City Council v Zafar [1998] 2 All ER 953which states that where there is adifferencein treatment and adifferencein race here is prima facie evidence of discrimination and it is for the respondent to provide a non-discriminatory explanation. The Labour Court in Campbell Catering went on to find that the respondent had treated the complainant differently, that is, less favourably when it did not afford her fair procedures in the investigation of the allegations against her in accordance with their practice. In other words, the Court clearly established a difference in treatment.
5.6In the Ntoko case mentioned above, the Court also clearly established a difference in treatment as follows: “The complainant has established as a fact that he was treated differently than other employees of the respondent who made personal telephone calls and who are of a different racial origin”.5.7The complainant’s representative stated that the appropriate comparator is a hypothetical Irish employee. I have no hesitation in using a hypothetical comparator in appropriate situations such as where it is shown that the existing potential comparators are unsuitable for one reason or another. However, in the instant case all of the other employees working for the respondent on the same site were of a different nationality and no reason has been adduced by the complainant as to why they were not suitable as comparators. A complainant must establish a difference in treatment and in relation to the receipt of payslips, and other conditions of employment, it seems to me that the existing employees are the appropriate comparators. It is not sufficient, in my view, to ignore actual comparators and assert that a hypothetical Irish employee would not have been treated in the same manner by the respondent. In the absence of any evidence I find that the complainant has failed to establish a difference in treatment in relation to the actual comparators and has therefore failed the first part of the test established in the Zafar case. Any failure to comply with legislation or REAs, in the absence of a difference in treatment, has a remedy in the relevant enforcement provisions.Dismissal5.9The complainant asserted he may have been dismissed because he had asked when the respondent was intending to purchase tools for him. I do not accept this for two reasons. Firstly, the complainant was clear that it was his boss who had first raised the issue of providing tools. Secondly, the complainant was also clear that he was informed in response to one of his requests about the tools that it might not be advisable to purchase them as there might not be any work for the complainant in the future. In this regard I note that the respondent has subsequently gone into liquidation.5.10 In addition, in this case a number of facts are of particular relevance.�The complainant indicated that this was not his first employment in the sector in Ireland. He said that the respondent had provided him with his P45 as had other previous employers. Therefore he has some familiarity with the workings of the industry and the processes involved in dismissal.�The Liquidator indicated that four people were dismissed on the date the complainant finished. This was not contested by the complainant.
- Therefore at least two of that four, based on the complainant’s own evidence, must have been Irish. I am satisfied therefore that this establishes that the reason he was dismissed was not connected to his nationality.
6.1Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts. I find that the complainant has failed to establish a prima facie case of discrimination and his case must therefore fail.”
COURTS FINDINGS
At the hearing of the appeal no evidence was adduced to show that the Claimant was treated differently from a person of Irish nationality in similar circumstances. An essential proof in any equality claim is that the Claimant establish that he or she was treated differently to a comparator. A former Director of the Respondent gave uncontroverted evidence that all workers, including workers of Irish nationality were treated similarly to the Claimant in respect of the matters complained of. Moreover, in so far as the claim relates to pay, the High Court has decided inBrides v Minister for Agriculture[1998] ELR 125 that a real as opposed to a hypothetical comparator is required. No reason was advanced as to why this authority should not be followed.
Determination
The Court is satisfied that the Decision of the Equality Tribunal on all questions of fact and law arising in this case is correct and the Court adopts that decision in its entirety.
The Decision of the Equality Tribunal is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
13th April, 2010______________________
MG.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.