THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision - DEC-E2011-252
PARTIES
Jolantas Pazukas
(represented by Richard Grogan & Associates,
Solicitors)
and
Virgeo McEnery Landscapes Limited
(represented by Athrú Solutions)
File Reference: EE/2009/884
Date of Issue: 22nd December, 2011
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - race - conditions of employment - training - failure to establish a prima facie case - jurisdictional issue - equal pay
1. Dispute
1.1 This case concerns a complaint by Mr. Jolantas Pazukas who is a Lithuanian national, that he was discriminated against by Virgeo McEnery Landscapes Limited on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of his conditions of employment and training.
2. Background
2.1 Mr. Jolantas Pazukas referred a complaint under the Employment Equality Acts, 1998 to 2008 to the Director of the Equality Tribunal on 1 December, 2009. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case on 3 November, 2011 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2011. This is the date I commenced my investigation. A written submission was received from the complainant on 8 March, 2010 and from the respondent on 21 April, 2010. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to Hearing on 4 November, 2011.
3. Summary of the Complainant's case
3.1 The complainant, who is a Lithuanian national, stated that he was employed by the respondent as a general operative from June, 2004 until 21 September, 2009 when his employment was terminated. The complainant stated that the respondent also employed other workers of Lithuanian, Polish, Estonian, Moldovan and Irish origin during his period of employment. The complainant submitted that the respondent failed to provide him with a proper written contract or terms of employment in a language which he could understand when he commenced employment and he contended that this constitutes unlawful discrimination of him on the grounds of race contrary to the Acts.
3.2 The complainant submitted that the respondent did not provide him with proper health and safety documentation or training during the course of him employment. The complainant submitted that the respondent's failure to provide him with a health and safety statement and training in a language which he could understand amounts to discrimination within the meaning of the Acts.
3.3 The complainant also claims that he was subjected to a pay reduction without his consent during his period of employment. The complainant stated that his wages were reduced from €13.50 to €10.00 per hour in January, 2009 and that he was informed by the respondent at that juncture that this pay reduction was being imposed as a result of a downturn in the company's business. The complainant submitted that no particulars regarding the wage reductions applied to Irish workers have been provided by the respondent despite requests in this regard. The complainant submitted that the reduction in his pay amounted to discrimination on the grounds of his race contrary to the Employment Equality Acts.
3.4 The complainant also referred to a number of cases in support of his case, including Campbell Catering Ltd. -v- Rasaq (EED048) and 58 Complainants -v- Goode Concrete (DEC-E2008-020.
4. Summary of the Respondent's case
4.1 The respondent submitted that the complainant was employed as a general operative on 1 September, 2004. The respondent submitted that the complainant was provided with a contract of employment upon the commencement of his employment and it claimed that he signed this document on 1 September, 2004. The respondent accepts that this contract was in the English language, however, it submitted that the document was explained to the complainant in his native language and that he did not raise any issue about not having understood the contents of this document at that juncture.
4.2 The respondent submitted that the complainant was provided with health and safety training and documentation during his period of employment. The respondent submitted that it had a Health and Safety Statement which was translated into a language which the complainant could understand. The respondent submitted that the complainant signed a document on 19 January, 2005 to confirm that he had been provided with health and safety training. The respondent denies that the complainant was subjected to discrimination on the grounds of his race contrary to the Employment Equality Acts in terms of his conditions of employment.
4.3 The respondent accepts that the complainant's rate of pay was reduced from €13.50 to €10.00 per hour in January, 2009 because the company was experiencing financial difficulties due to the economic downturn. The respondent submitted that the pay of its other employees was also reduced at that juncture in an effort to save jobs and to avoid the possibility of the company going into a termination situation. The respondent submitted that the complainant's rate of pay was subsequently increased to €12.00 per hour. The respondent denies that the complainant was subjected to discrimination on the grounds of his race in terms of the reduction in his rate of pay.
5. Conclusions of the Equality Officer
5.1 Section 85A of the Employment Equality 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. If he 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 Employment Equality Acts, 1998 to 2008 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 2 persons, ... that they are of different race, colour, nationality or national origins".
5.3 Accordingly, the issue for decision in this case is whether or not the complainant was discriminated against by the respondent contrary to the Employment Equality Acts in relation to his conditions of employment and training. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.4 In a recent Determination the Labour Court , whilst examining the circumstances in which the probative burden of proof operates held as follows -
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
Contract of Employment and Health and Safety training
5.5 The first issue that I must consider concerns the complainant's claim that he did not receive a proper contract of employment and/or health and safety training in a language which he could understand. At the oral hearing, the respondent submitted a copy of the contract of employment and documentation regarding the health and safety training to the Tribunal which it claimed that had been provided to the complainant during his period of employment. When questioned by the Equality Officer regarding this issue, the complainant accepted that he had in fact been provided with a written contract and health and safety documentation and training during his period of employment. The complainant also confirmed that he had understood both the contents of these documents and the health and safety training which he had been provided with. The complainant's representative, upon hearing her client's evidence in relation to these issues, informed the Tribunal that the claim in relation to the contract of employment and health and safety documentation/training was being withdrawn. In the circumstances, I am not required to consider this matter any further.
Reduction in Pay
5.6 The next element of the complainant's claim that I must consider relates to the claim that he was subjected to a reduction in pay during his period of employment when his hourly rate of pay was reduced from €13.50 to €10.00 per hour. The complainant submitted that the respondent has not provided any information regarding whether similar pay reductions were applied to Irish workers at that juncture and he claims that this treatment amounts to discrimination on the grounds of race contrary to the Employment Equality Acts. In considering this issue, I note that the respondent did not dispute that the complainant's pay was reduced as claimed. However, it submitted that the pay of its other workers was also reduced as a result of the difficult economic conditions which the company was experiencing at that juncture.
5.7 Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that in order to raise an inference of discrimination on the grounds of nationality, the complainant must be able to demonstrate some significant evidence of less favourable treatment and this treatment must be linked to his nationality. Based on the evidence adduced in the present case, I am satisfied that the reason why the complainant's pay was reduced was directly attributable to economic factors and I accept the respondent's evidence that the pay of its other workers was also reduced at that juncture. I have not been presented with any evidence from which I could reasonably conclude that the reduction in the complainant's pay was in any way connected to his nationality. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of race contrary to the Employment Equality Acts in terms of the reduction to his pay.
Issue re admissibility of Claim for Equal Pay
5.8 At the oral hearing the complainant's representative submitted that the complainant also wished to pursue a claim for equal pay with a named comparator, Mr. A, on the grounds of race. An issue of jurisdiction arose regarding whether or not the claim for equal pay had been referred to the Tribunal in compliance with the relevant provisions of the Employment Equality Acts. In this regard, I note that the nature of the complaint set out in the complaint referral form (EE.1) in the present case related specifically to a claim of discriminatory treatment in the categories of conditions of employment, training and other. In my view, a person wishing to pursue a claim of equal pay must explicitly state so upon referral of the complaint to the Tribunal and a comparator must be named before an investigation to such matter may proceed. I note that no such claim had been made in the complainant's complaint form (EE.1) or in his subsequent written submission. The complainant's representative argued at the oral hearing that the claim in relation to equal pay should be deemed admissible on the basis that he had claimed discriminatory treatment in the 'other' category on the complaint referral form (EE.1). I cannot accept the complainant's contention in this regard and I am of the view that it is an incorrect interpretation of the legislation. Accordingly, I find that it is not permissible to refer a legitimate claim for equal remuneration under the Acts in the manner contended by the complainant's representative.
5.9 The complainant's representative also submitted that the investigation should be extended to include a claim for equal remuneration and it was argued that a person does not have to include all matters that they wish to rely on in their written submissions. I reject such an approach absolutely. While I accept that an investigation may be extended in circumstances where the general nature of the complaint remains the same in accordance with Co. Louth VEC v Equality Tribunal (2009 223 JR), I do not accept that such extension is permissible in the circumstances of this case. Having regard to the foregoing, I find that I do not have any jurisdiction to investigate a claim for equal remuneration between the complainant and the named comparator, Mr. A, under the Employment Equality Acts.
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. I find that the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2)(h) of the Acts in respect of his conditions of employment and training contrary to section 8(1) of the Acts. Accordingly, I find in favour of the respondent in this case.
______________
Enda Murphy
Equality Officer
22nd December, 2011