THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010-066
PARTIES
Mr. Elmars Rutkis
(represented by Richard Grogan & Associates)
and
Mr. Peter Cullivan
File Reference: EE/2007/272
Date of Issue: 7 May 2010
1 Claim
1.1 Mr. Rutkis, a Latvian National, alleges that the respondent discriminated against him in relation to his conditions of employment, his rate of pay and that he was harassed on the race ground based on his nationality contrary to the Acts. The respondent initially responded to the Tribunal indicating that the complainant was never an employee. However, the respondent has failed to engage with the Tribunal since 2 October 2008.
1.2 The complainant referred a claim to the Director of the Equality Tribunal under the Employment Equality Acts 1998-2008. In accordance with her powers under section 75 of the Act, the Director then delegated the case to me, Bernadette Treanor, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. The case was delegated to me on 28 May 2009 and my investigation began on that date. Following correspondence between the Tribunal and the complainant's representative a hearing took place on 9 April 2010.
2 Summary of the Complainant's Case
2.1 At the hearing the complainant's representative indicated that the only aspect of the complaint to be pursued was in respect of the complainant's rate of pay. Issues surrounding the complainant's Health and Safety training and the respondent's alleged failure to provide a contract of employment would not be pursued since the complainant did not know how other employees were treated on these matters.
2.2 The complainant, a Latvian national, asserts that he was employed by the respondent as a bricklayer from 4 November 2006 until 27 January 2007. The complainant stated that it was very possible that the respondent did not remember him since they did not really communicate. The complainant's competency in the English language is limited.
2.3 The complainant stated in evidence that during conversations with other workers doing the same work he found out that they were paid €100 to €120 per day while he was paid only €80 per day. These other eemployees were Irish and Polish nationals and one was named Barry. The complainant's representative indicated that the correct REA rate for the work was €670.02 per week.
2.4 The complainant's representative indicated that since the names of the comparators were not available the matter would not be pursued as an equal pay case. It was intended that the claim before the Tribunal was one of discrimination relating to conditions of employment relating to pay. This was being pursued in accordance with section 8 of the Acts even though remuneration is normally handled in accordance with sections 7, 19 and 29 of those Acts. It was argued that in spite of the existence of these sections pay remained a condition of employment.
3 Summary of the Respondent's case
3.1 The respondent did not appear at the hearing. The only papers on file are letters from the respondent's representative in one of which it was asserted that the complainant had never worked for the respondent. The letter setting the hearing were sent to the respondent at the address on file and to the respondent's representative both by registered mail. The respondent's representative's copy was returned. I am satisfied that all reasonable efforts were made to contact the respondent and on that basis I decided to proceed with the Hearing.
4 Conclusions of the Equality Officer
4.1 What has to be decided is (i) whether or not the complainant was, in fact, an employee of the respondent, (ii) whether pay constitutes a condition of employment in accordance with the Acts, and if so, whether the rate of pay received by the complainant was discriminatory.
4.2 The burden of proof required from the complainant is detailed in section 85A of the Employment Equality Acts which provides that should a complainant establish facts from which it may be presumed that s/he suffered discrimination, it is for the respondent to prove the contrary. Detailed application of this approach may be found in Mitchell v Southern Health Board [2001] ELR201.
4.3 There is correspondence on file received from the respondent's representative indicating that the complainant was not an employee of his. The probative value of this document is limited as no direct evidence on the veracity of its contents was presented at the Hearing. The complainant stated in direct evidence that he was employed by the respondent for a particular period. I find this uncontested evidence compelling and on that basis I find, on balance , that the complainant was employed by the respondent.
4.4 The complainant stated that he was paid less than other employees of different nationalities who were doing the same work as him and that this difference in remuneration was based on his nationality. His representative stated that an equal pay claim was not being pursued since names of the comparators were not available. Neither the complainant nor the comparators were paid the REA rates and therefore I find that no less favourable treatment arises in relation to the application of an REA. The complainant's representative argued that the complainant's rate of pay was a condition of his employment. Since the complainant was treated less favourably in this regard, that is he was paid less than others of different nationalities for the same work, this amounted to discrimination on the race ground based on the complainant's nationality in accordance with section 8.
4.5 The Acts provide for claims relating to pay (remuneration) in sections 7, 19 and 29. These provisions provide for a an assessment of the work being carried out and provide a particular defence where there are grounds, unconnected with the discriminatory grounds, for the difference in pay. To consider differences in pay in accordance with sections other than those that explicitly provide for it would be to remove the necessity for a complainant to show that "like work" in terms of the Acts exists or existed between him or herself and the comparators, which is a fundamental prerequisite for claiming equal pay .
4.6 I am satisfied that complaints in relation to discrimination arising from differences in pay should be addressed in accordance with the sections that explicitly refer to the matter - in this case sections 7 and 29. I am further satisfied that for the purposes of the Acts the term conditions of employment referred to in section 8 does not include pay or remuneration.
4.7 Since the Race Directive citation explicitly excludes nationality as a ground it is not necessary to consider its provisions.
4.8 I find that the complainant has failed to establish a prima facie case of discrimination based on the race ground based on his nationality in relation to his conditions of employment.
5 Decision
5.1 Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts.
5.2 I find that the complainant has failed to establish a prima facie case of discrimination on the race ground based on his nationality and therefore his claim must fail.
Bernadette Treanor
Equality Officer
7 May 2010