FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : ALUMINIUM IRELAND LTD (REPRESENTED BY CONSTRUCTION INDUSTRY FEDERATION) - AND - RAIMONDAS BARTKUS, ROLANDAS BITINAS, LAIMONAS VISPULSKAS, ALEKSANDRS GORBACUKUS, GINTS PATMALNIERS, ERIKAS VIDEIKO (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2008.
BACKGROUND:
2. The Workers appealed a Decision of the Director of the Equality Tribunal to the Labour Court on the11th January 2011, in accordance with Section 83(1) of the Employment Equality Acts 1998 to 2008. A Labour Court hearing took place on the 6th May 2011. The following is the Determination of the Labour Court:
DETERMINATION:
This is an appeal Mr. Raimondas Bartkus, Mr. Rolandas Bitinas, Mr. Laimonas Vispulskas, Mr. Aleksandrs Gorbacukus, Mr. Gints Patmalniers, Mr. Erikas Vileiko, (the Complainants) against an Equality Officer’s decision dated 14th December 2010, in a claim which they brought against their former employer Aluminum Ireland (the Respondent). Originally the Complainants brought claims of discrimination and victimisation. All of the complaints of discrimination were withdrawn at the hearing before the Equality Officer and only the complaints of victimisation were pursued. The Respondent did not attend before the Equality Officer for reasons which were explained to the Court. The Complainants appealed this decision. There was no appeal before this Court on behalf of the Respondent.
The Equality Officer found in favour of one further Complainant, Mr. Tomas Vanagas, and Mr. Richard Grogan, Richard Grogan and Associates, Solicitors, on behalf of the Complainants, advised the Court that he was not prosecuting an appeal on behalf of Mr. Vanagas.
Introduction.
The Respondent is involved in the manufacture and installation of glass and glass structures. All of the Complainants were employed by the Respondent as Installers. Each of the six Complainants who are all non-nationals made complaints on Form EEI, indicating that they were discriminated against on the grounds of their race. These were referred to the Equality Tribunal on various dates between 25th March 2006 and 19th June 2006. The forms alleged that the Respondent had failed to apply the terms of the CIF Registered Employment Agreement (REA) to the Complainants; had failed to join them in a trade union; had failed to supply them with a contract of employment; had failed to supply them with payslips; and had failed to abide by the statutory limit on working hours. On dates between 9th and 12th July 2006, the Complainants submitted further claims to the Equality Tribunal alleging that the Respondent had victimised them contrary to Sections 74 (2) of the Act.
At the hearing before the Equality Officer all claims of discrimination were withdrawn.
The Complainants’ Case
Mr. Grogan submitted that the Complainants were victimised by the Respondent as a result of issuing proceedings under the Act. He told the Court that immediately following the reference of claims to the Equality Tribunal in June 2006, other workers employed as Installers who did not bring such claims received an increase in their rate of pay and the Complainants did not.
Mr. Grogan told the Court that at the same time as referring the above claims under the employment legislation, the same claims were also referred under various other pieces of employment legislation to the Rights Commissioner.
At the hearing Mr. Grogan told the Court that he accepted that the REA did not apply to the Respondent.
The Respondent’s Case
Ms. Jean Winters, Construction Industry Federation, representative on behalf of the Respondent, disputed the claims before the Court. She submitted that all Installers were offered an increase in pay in 2006, however the Complainants refused to accept the offer as they wished to liaise with their legal representative before doing so. This, Ms. Winters contended, resulted in a delay in the increase being granted to the Complainants.
Mr. David Pratt, Managing Director of the Respondent, told the Court that on receipt of notification of the claims referred to above around mid-June 2006, he decided to hold a meeting of all employees and informed them that he had decided to increase the rate of pay of Installers. He offered an increase of between 25% and 30% above the factory rates of pay. This offer was to all Installers including the Complainants. He said that the Complainant said that they could not accept this offer until they had discussed it with their legal representative. Mr. Pratt then proceeded to increase the rate of all remaining Installers and await the response of the Complainants. He said that he then contacted a trade union official to represent the workforce in its entirety as he had no desire to have different rates of pay applying to different workers employed in the one category and as he did not wish to deal with lawyers on the matter of rates of pay.
Mr. Pratt said it took a period of time for the trade union to set up a meeting of employees and to join them into membership. He said that this took a matter of months. In the meantime, and while he was awaiting a response from the Complainant’s legal representative on the offer made, he decided to implement the increase in pay to the Complainants in any event. The trade union were in agreement with this action, agreed that the REA did not apply to the Respondent and accepted the increase in pay offered on behalf of the Installers.
The Law:
Section 74(2) of the Act defines “victimisation” in the following terms: -
- “(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
- (a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
- (a) a complaint of discrimination made by the employee to the employer,
Findings and Conclusions:
The Complainants submitted complaints under the Acts to the Equality Tribunal in 2006, while simultaneously referring the same claims under various other pieces of employment legislation to the Rights Commissioner Service. While the detail of the complaints made under equality legislation did not disclose any allegations of discrimination and all the claims were subsequently withdrawn, nevertheless despite having no merit, proceedings were issued under the Act and consequently a complaint of victimisation may be brought as a result of adverse treatment to the Complainants arising from the issue of these proceedings.
The claim of victimisation before the Court is grounded on an allegation that by not receiving an increase in pay the Respondent had penalised the Complainants contrary to the provisions of Section 74(2). It is submitted that that this resulted solely or mainly from the Complainants having notified the Respondent of their intentions to bring proceedings under the Act.
Mr. Grogan told the Court that he was anxious to agree a composite settlement of all claims referred and accordingly was in consultation with the Respondent’s Solicitors, he said that he could not recollect whether or not the Complainants had been offered the same increase in pay as other Installers had been in June 2006.
The Court is satisfied that it was clearly established that the increase in pay for Installers was offered to all Installers including the Complainants but that for the reasons stated, which related to the necessity to discuss the issue with their legal representative, there was a delay in the payment of this increase to the Complainants. The Court is of the view that the non-application of the increase in pay in June 2006 was a decision which the Complainants made themselves based on their legal advice and had nothing to do with the taking of proceedings under the Act. Accordingly the Court cannot find that the Complainants were victimised within the meaning of the Act.
Determination:
Accordingly, the Court rejects the appeal and upholds the Decision of the Equality Officer in respect of the six Complainants covered by this appeal.
Signed on behalf of the Labour Court
Caroline Jenkinson
30th May 2011______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.