The Equality Tribunal
Employment Equality Acts
Decision DEC-P2011-007
PARTIES
Michal Czyzycki
- V -
Mark Fegan, Apple Orchard Carpentry & Joinery
A.K.A Orchard Apple Carpentry & Joinery
A.K.A Apple Orchard Group
A.K.A Orchard Carpentry & Joinery
File reference: PEN/2009/006
Date of issue: 22 December 2011
Keywords - Pensions Acts - Discrimination in access to an occupational pension scheme - Race - Prima Facie case
1. DISPUTE
1.1 This dispute concerns a claim by Mr Michal Czyzycki that he was discriminated against by Mark Fegan Apple Orchard Carpentry & Joinery on the grounds of his race in terms of Section 66(2) of the Pension Acts (hereafter referred to as "the Acts") and contrary to Sections 70 and 78 of the Acts as he was not allowed access to the occupational pension scheme.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 1 April 2009 under the Acts. On 23 September 2011, in accordance with his powers under section 81J of the Pension Acts as amended by the Social Welfare (Miscellaneous Provisions) Act 2004 which apply the relevant provisions of the Employment Equality Acts to occupational pension schemes, the Director then delegated the case to Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. Submissions were sought from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 29 September 2011. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that his employer deducted contributions towards his pension from his wages and that those deductions were due to be paid into the Construction Workers Pension Scheme (CWPS).
2.2 The complainant submitted that his colleagues of Irish nationality also had deductions made although in their case they were registered into the CWPS.
2.3 The complainant submitted that when SIPTU made representations on his behalf they were informed that he had a SIPTU pension, and on informing the respondent that they were calling from SIPTU, the respondent simply hung up on them.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent did not engage with the Tribunal prior to, nor did he attend, the hearing.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent subjected Mr Czyzycki to discriminatory treatment on grounds of race, by not allowing him access to an occupational pension scheme in terms of Section 66(2) of the Acts, and contrary to Sections 70 & 78 of those Acts.
4.2 Section 76 of the Acts sets out the burden of proof which applies to claims of discrimination in relation to pensions. It requires the complainant to establish, in the first instance, facts from which it may reasonably be inferred that there has been a breach of the principle of equal pension treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference raised.
4.3 The respondent did not attend the hearing of this matter. The notification was sent by registered post and delivery was confirmed. Therefore, I was satisfied that the respondent was appropriately notified of the hearing of this complaint and I proceeded to hear the matter in the absence of the respondent. Notwithstanding the foregoing, it remains the case that the complainant must establish facts from which it may be inferred that there has been a breach of the principle of equal pension treatment.
4.4 The complained outlined his case in relation to the Pensions Acts, submitting copies of his payslips and established that pension deductions were made from his wages. The complainant provided detailed information regarding the names of Irish national employees who were not treated in a similar fashion.
4.5 The complainant was aware of the difference between employed and self-employed persons and pointed out to the Tribunal where a named comparator was employed, self-employed or a sub-contractor. Examples of this relate to where the complainant indicated that he did not receive holiday pay, he then identified a number of employees who were in receipt of holiday pay and the circumstances of how he came upon this information; of those employees who received travelling time and those who did not; of how he was treated differently to Irish colleagues when he was let go, and in how he was treated differently in relation to the payment of his taxes and PRSI to the relevant authorities.
4.6 The complainant then provided detailed testimony to the Tribunal as to how he became aware that his Irish national colleagues had been granted access to the occupational pension scheme while he had not been granted similar access. The complainant gave detail regarding named Irish national comparators who were admitted to the CWPS while he was not. The complainant stated that the reason for this was based upon his nationality and I am satisfied that this appears to be the case.
4.7 I am mindful of the decision of the Labour Court in an Employment Equality case - Melbury Developments Limited and Valpeters (ADE/09/16). In that case the Labour Court stated, inter alia, that:
Section 85A of the Act 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 languagee 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.
4.8 The instant case differs from the Melbury case above. I found the complainant to be a credible witness in relation to his Pensions case in that he gave further detail where possible and where requested, even when such detail undermined the case put forward on his behalf. His evidence was given without embellishment and in a concise manner. However, when probed the complainant was in a position to provide additional information or, when appropriate, indicate that he didn't know a particular answer. He also supported his evidence with such written evidence as was possible for him to obtain and provided comment on each item. I am satisfied that the complainant's testimony, when taken with the documentation he provided, presents evidence of sufficient significance as to raise a presumption of a breach of the principle of equal pension treatment. Furthermore the complainant also gave details during his testimony linking the treatment he received from his employer to his nationality and indicating that his Irish national colleagues were not treated in the same manner. This evidence was also credible. Accordingly, I consider that the complainant has established, in the first instance, facts from which it is reasonable to infer that there has been a breach of the principle of equal pension treatment and that the breach is grounded upon his race.
4.9 Where a prima facie case has been established, the onus shifts to the respondent to rebut the inference raised. As the respondent was not present at the hearing to rebut or address these issues, the complaint succeeds.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of a breach of the principle of equal pension treatment on the basis of the race ground has been established and this complaint is entitled to succeed.
5.2 In accordance with section 81(h) of the Acts I direct the respondent to register the complainant into the CWPS and to pay over the deductions taken from his wages during the period of his employment or otherwise implement the principle of equal pensions treatment.
Conor Stokes
Equality Officer
22 December 2011