THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 206
PARTIES
Mr Rafal Garstecki
(represented by Richard Grogan & Associates)
and
Craddockstown Construction Ltd.
File Reference: EE/2008/011
Date of Issue: 22nd October 2010
Headnotes: Employment Equality Acts, 1998 & 2004, section 6,8, 14 and 77 - Section 6(2)(h), race ground - Section 8(i)(a), conditions of employment - appropriate comparators - consideration of Registered Employment Agreements (REA)
1. Dispute
1.1. This case concerns a complaint by Mr. Rafal Garstecki that he was discriminated against by Craddockstown Construction Ltd. on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts in relation to conditions of employment contrary to Section 8(1)(a) of the Acts.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 14th January 2008 alleging that the respondent had discriminated against him on the ground of race.
2.2 On the 31st August, 2009, in accordance with her powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts (hereinafter referred to as "the Acts"), on which date my investigation commenced. Written submissions were received from both parties. A hearing of the complaint was held on 29th July, 2010.
3. Summary of the Complainant's case
3.1. The complainant is a Polish national who submitted that he was employed by the respondent as a teleporter driver between 21st August 2006 and 21st July 2007. He submitted that he was not paid in accordance with the Registered Employment Agreement for the Construction Industry ("the REA"), which specifies work and rates of pay including overtime rates, and to which the respondent is subject. He submitted that he was not paid the craft rate as a teleporter driver and stated that he should have been paid €17.18 per hour according to the REA. He submitted that he was not made aware of the provisions of the REA as required by law and that if he had been, he would have been made aware of the fact that he was not paid the correct rate of pay. He submits that a notional Irish comparator would have been paid the appropriate rates under the REA. He also submitted that there was a shortfall in his final holiday pay because of the failure to pay him correctly in the first instance.
3.2. The complainant said that he had conversations with "the lads" and they had told him that they were paid the appropriate amount. He referred to one particular individual by his nickname as he did not know this person's real name. (In that regard, he pointed out that, as a Polish national who was not aware of his rights, he was not aware that if he wished to bring a claim he would need to remember the names of people he was talking to.) He stated that this person had told him he was paid according to the REA and was Irish. He said he thought this person was on approximately the same salary as himself even though he was a general labourer.
3.3. The complainant stated that there was one named Irish person, Mr A, who also worked as a teleporter driver. He was not able to say with certainty what Mr A person was paid, although he acknowledged that the documentation provided by the respondent indicated that he was paid less than the complainant. However, the complainant said that "there are teleporter drivers and there are teleporter drivers." In that respect, he was not sure if Mr A was "on ticket" (i.e. being in possession of a certain level of qualification).
3.4. However, the complainant said that he should be compared in this respect to individuals who would have been in the same category as him, rather than persons doing the same job as him. In that respect, he said that how qualified persons such as himself would be treated would be different to how general labourers were treated. In that context, he referred to a Mr B, who did a different job but was paid €718 per week. This was consistent with a Grade A post, and the Labour Relations Commission found the complainant's post was also a Grade A post in accordance with the REA. Therefore, the complainant stated that he should have been paid at the same rate as Mr. B. He claimed that he was not so paid because he was not Irish. The complainant was unable to identify what Mr B's actual job was.
3.5. The complainant also referred to a Mr C, who was a "deep ground worker" and was paid more than the complainant. He did not believe that Mr C was "ticketed", although he later went on to argue that he was probably a Class A or Class B worker. Again, Mr C was paid more than him. The complainant argued that, as a worker of the same class as himself, they should have been paid the same amount. He submitted that Mr C was paid more because he was Irish and that this was sufficient evidence of discrimination to raise a prima facie case.
3.6. The complainant also referred to a Mr D at the hearing, but later accepted that Mr D was not an appropriate comparator as he was a supervisor.
3.7. The complainant said that the documentation provided by the respondent showed that Irish people were getting REA rates and that non-Irish workers were not. He said that, if he had known the name of the relevant workers and had seen the documents provided by the respondent earlier than he did, he would have put in an Equal Pay claim rather than relying on the provisions of the Acts relating to conditions of employment. He said that it was not necessary for him to show that all Irish workers were treated better than him as it was sufficient to show that some of them were. He also stated that no Irish person made a claim to the Rights Commissioners with respect to the rates of pay; only foreign workers had done so.
3.8. While the complainant submitted that he had shown his prima facie case because he had shown that an Irish comparator was treated more favourably than him, he submitted that the Tribunal should look at a notional comparator and not necessarily a comparator within the respondent firm. He submitted that a notional Irish comparator would have been aware of their employment law rights as regards rates of pay. He submitted, however, that in failing to notify him of his statutory entitlements, the respondent put him in a particularly vulnerable position as a foreign national as he would not be aware of his employment rights and that special measures may have been necessary to advise him of his rights. In this case, no effort whatsoever was made to advise him of his rights. On that basis, in relation to this aspect of his claim, he submitted that he was discriminated against on the ground of race.
3.9. The complainant also submitted that he did not receive a written contract of employment or health and safety documentation. In this regard, he submitted that the Labour Relations Commission had already determined that the relevant documentation had not been given to the complainant. He agreed that he had been asked to call into the office and had signed to say he had received the documents in question but stated that he had not read them and had never been given a copy of them. However, he said that, as far as he was aware, the same procedure applied to other workers. The complainant agreed that he could not say whether the position of an Irish person in this respect was any different, and that he cannot show he was treated less favourably in that respect.
3.10. However, he submitted that under the Equality Officers decision in 58 named Complainants -v- Goode Concrete, there is an obligation on an employer to provide a Contract of Employment in a language likely to be understood by the Complainant but that the respondent did not provide him with any contract of employment, which it submits that the respondent has admitted to. He accepted that the respondent was only obliged to supply a notification of particulars as set out in Section 3 of the Terms of Employment (Information) Act but that these are particularly relevant for the complainant in that it would set out the name and address of the employer and other important rights relating to the employment. In particular, it would confirm that the complainant was covered by the REA. He also submitted that the decision of the Labour Court in Campbell Catering -v- Rasaq meant that, as a foreign national, he was in a particularly vulnerable position and he contended that special measures may have been necessary to advise him of his rights, including as a minimum providing him with a notification under Section 3 of the Terms of Employment (Information) Act.
3.11. At the hearing, the complainant withdrew a number of claims in relation to conditions of employment and the entire allegation he had made in his submissions in relation to training.
3.12. The complainant submitted that the respondent went into liquidation on 30th November 2007.
4. Summary of the Respondent's case
4.1. The respondent is in liquidation and so was not present or represented at the hearing. Nonetheless, it provided submissions to the Tribunal in advance of the hearing.
4.2. It submitted that the complainant was first employed by it on 21 August 2006. In relation to the matters which were not withdrawn by the complainant at the hearing, it submitted, firstly, that, contrary to the complainant's submission, he was given one weeks notice in writing and all holiday entitlements were paid at the date of leaving as per his payslips. It submitted a large volume of records to the Tribunal, including a copy of Health and Safety documentation in Polish. It submitted that these records show other employee's signatures, including the signature of the complainant, acknowledging that they received this documentation. It submitted that it provided the complainant with a contract of employment, but he never returned a signed copy of this. Finally, the respondent submitted that the records it provided also showed that there was no discrimination in the rate of pay between Irish National or Foreign National employees. In short, it submitted that there were a lot of discrepancies between the complainant's statement and the respondent's own records.
5. Conclusions of the Equality Officer
5.1. Section 85A of the Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him/her. If he/she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2. Section 6(1) of the Acts provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins.." It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because he is Latvian.
5.3. The issue for decision by me in this case, then, is whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6(2)(h) of the Acts and contrary to section 8 of the Acts in terms of conditions of employment. In reaching my decision I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation.
Complaint re provision of documents
5.4. The respondent provided the Tribunal with evidence of the complainant's receipt of the relevant health and safety documentation in Polish. It also stated that he did receive a copy of the contract of employment but never returned a signed copy to say he had received it. The complainant said that he did sign a document saying that he had received all the relevant documents, but said he never actually did receive them. Instead, the complainant asks the Tribunal to believe that the respondent went through the trouble and expense of having some of the documentation (health and safety documentation) translated into Polish for its Polish workers, get them to sign to say they received them, but then did not give this documentation to them. I am satisfied that, in the context of this complaint at least, and taking into account the extent and clarity of the records provided by the respondent, this submission is simply not credible.
5.5. I do not believe, given the overall context of the complaint, that the complainant was not provided with a contract of employment and the Tribunal is not bound by the decision of the Rights Commissioners in that respect. The contract of employment in question was a short document that was written in very simple English and I am satisfied that the complainant's command of English was sufficient for him to have understood it. In short, I am satisfied that the complainant was not treated less favourably than any other employee with respect to the provision of the contract of employment.
Complaint re issues of pay
5.6. The oral evidence presented by the complainant in relation to the matter of the failure of the respondent to pay him at the appropriate level in accordance with the REA was based entirely on hearsay, and was unconvincing in any event. The documentary evidence he attempted to use to prove his case was provided by the respondent. From that material, he carefully selected three people whose names suggested they were Irish and who were paid more than the complainant. It quickly emerged that two of these comparators were totally inappropriate: one was a supervisor and the complainant could not provide any information as to what the other person did, though that did not prevent him making highly speculative statements in that regard. Finally, in relation to the third comparator, a "deep ground worker", the complainant clearly had no idea who this person was and the evidence he presented in relation to this person was again highly speculative. It was also blatantly inconsistent and based entirely on supposition, particularly in attempting to surmise what this person's job actually was.
5.7. The fact of the matter is that the complainant was paid more than all the other persons doing his job (a teleporter driver), both Irish and non-Irish. However, the Tribunal noted that the documentation provided by the respondent indicated that he was paid less than the complainant, as were the other teleporter drivers about whom information was provided by the respondent. In response, the complainant said "there are teleporter drivers and there are teleporter drivers." He sought to distract from this issue by talking about some of these persons being "ticketed" and some being "non-ticketed", by which he meant some had more and better qualifications than others. In particular, he stated that the Irish person who worked doing the same job as himself was "not ticketed" and this was why he was paid less. However, this served only to prove that the complainant was paid more than the Irish person because he was better qualified, as he should be.
5.8. The complainant also implied that the fact that the respondent's Irish employees did not take claims against the respondent to the Rights Commissioners is evidence that the non-Irish nationals were discriminated against. Again, this is a highly speculative suggestion that is not borne out by the considerable documentary evidence provided by the respondent in this case. I would add that this evidence is clear in showing that the respondent did not pay according to people's race as there is no evidence of any significant differential in pay between workers of different nationalities doing similar work or work at the same grade as defined by the REA. Therefore, the complainant has failed to establish a prima facie case of less favourable treatment in relation to this issue.
5.9. I would add that, in any event, the issue of whether the complainant was paid in accordance with the REA, per se, is not a matter for this Tribunal and has, in fact, already been adjudicated upon in the appropriate forum in that respect. The REA would be relevant to this complaint only if I were to accept the complainant's submission that, essentially, it had been used as a vehicle through which less favourable treatment took place. It clearly was not. Furthermore, I note that provisions relating to pay are specifically excluded from consideration under Section 8(6)(a). Therefore, even if the complainant's case had any merit, it may be that it was taken under the incorrect provisions of the Act. However, as I have found that there is no prima facie case, I do not need to consider this matter, or any other matter relating to this complaint, any further.
6. Decision
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008:
6.2. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against him on the race ground pursuant to section 6(2)(h) of the Acts in terms of conditions of employment contrary to S.8(1)(a) of the Acts
6.3. Accordingly, the complainant's case fails.
_____________
Gary O'Doherty
Equality Officer
22nd October 2010