The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
E-mail: info@equalitytribunal.ie
Website: www.equalitytribunal.ie
Employment Equality Acts 2000 to 2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2011-160
Kzrysztof Strzmiński
(Represented by Joanna Kwiatkowska)
V
Lagan Brick Limited
(Represented by IBEC)
File No. EE/2008/199
Date of Issue: 1 September 2011
File reference: EE/2008/199 - DEC-E2011-160
Keywords:
Employment Equality Acts -Discriminatory treatment - Conditions of employment - Equal Pay - Race - Time limits - Jurisdiction - Prima Facie Case
1. Dispute and delegation
1.1 This dispute concerns a claim by Mr. Krzysztof Strzmiński (hereafter "the complainant") that he was subjected to discriminatory treatment by Lagan Brick Limited, formerly Flemings Fireclay (hereafter "the respondent") on the grounds of his race. The complainant submitted that the first date of discriminatory act occurred on or about 2005 and the most recent act in 2007. A claim for equal pay was also submitted.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 2 April 2008 under the Employment Equality Acts. A name of a comparator for the purposes of the equal pay claim was submitted by the complainant on 27 February 2009. On 19 April 2011, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- 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. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 7 July 2011. An interpreter was provided by the Tribunal.
2. Case for the complainant
2.1. Discriminatory treatment
2.1.1. The complainant, a Polish national, submitted that he started working with the complainant as a general operative in or around 2005. He stated that he and three other persons were based outside the factory in a location in Athy. The complainant submitted that the other persons were Polish and Irish nationals. The complainant stated that he resigned from his job on 26 October 2007 because he stated that he had recurring increasing pain in his limbs that he says were caused by considerable heavy lifting and repeated repetitive movements at work. The complainant also stated that he was subjected to ongoing discrimination and bullying by other employees.
2.1.2. The complainant submitted that after some time working in Athy with colleagues, he remained the only employee who worked there. He stated that he worked in the chimney system area and that he had to do the work that normally had been done by four people. Furthermore, the complainant submitted that the working conditions were very bad, he had no toilet, canteen, and he was given a limited supply of safety equipment.
2.1.3. The complainant submitted that he requested help a number of times and claimed that a named Irish employee had requested a transfer to the Athy site from the Swan (location of the factory) but that this request was not agreed to. It was submitted that finally the complainant's brother joined him at the Athy site for a time being.
2.1.4. The complainant submitted that in 2008 he was relocated to the Swan. The complainant submitted that there the workload was much lighter as it was shared by a number of people. The complainant stated that he always acted in the best interest of the respondent company.
2.2. Claim for equal pay
2.2.1. The complainant submitted that he was paid less than a named Irish comparator was paid for like work. The complainant submitted that he knew this because he had overheard the person bragging about his pay. The complainant submitted that he received no bonus payments.
2.2.2. The complainant also submitted that his basic pay remained the same €340.00 net per week despite the fact that he now was doing the work of four people. It was stated that when he moved to Swan where his workload was much lighter his pay remained the same. He also stated that he was asked to carry out lighter duties that were not wanted by other workers and that did not contain a bonus.
3. Case for the respondent
3.1. The respondent rejects the complaints brought by its former employee. It is accepted that the complainant worked with the respondent between 13 June 2005 and 26 October 2007. The complainant, along with his brother, resigned from his position.
3.2. Discrimination
3.2.1. The respondent submitted that much of the complainant's allegations concerning less favourable treatment are outside the statutory time limit of six months. The complainant was moved to the main site in Swan on 13 August 2007 and his complaint was lodged 2 April 2008. Thus the last date of discrimination would have had to take place in or around 2 October 2007. It is submitted therefore that the complainant's claims concerning the Athy site are statute barred.
3.2.2. The respondent submitted that the complainant had received extensive training alongside all staff. Copies of various certificates of training in the complainant's name were submitted to the investigation. Also included was a health and safety audit from 2007 that does not identify any of the issues outlined by the complainant in his submission to the Tribunal.
3.2.3. It is rejected that the complainant had to carry out the work of four employees. The respondent relies on time sheets to illustrate the different working systems and staffing levels between the two sites.
3.2.4. It was submitted that the complainant had provided no evidence to support his allegation of less favourable treatment in relation to protective gear. It was submitted that these were readily available to all employees, regardless of nationality, including the complainant.
3.2.5. The respondent denies that the complainant had no toilet facilities. It was submitted that the site in Athy comprised of a medium sized barn, a small portable office, a fork truck and a portable chemical toilet.
3.2.6 It was submitted that the respondent operate a detailed Safety Statement. This contains a Harassment and Bullying policy that would have provided for some of the alleged issues to be addressed. The complainant never raised any issues through this procedure. It was also submitted that the complainant failed to honour a contractual grievance procedure as set out in his contract of employment.
3.2. Equal Pay
3.2.1. It was submitted that the complainant was not doing "like work" with the named comparator. Notwithstanding the foregoing argument it is the position of the respondent that all general operatives employed by the respondent were paid the same basic rate of pay. It is accepted that is a very small number of employees whose basic pay is slightly higher as these employers were included in a historical buyout. Thus, the respondent submitted that the complainant had not put forward a tenable argument supporting his claim that the complainant was paid less than Irish colleagues were paid.
3.2.2. The respondent operates a bonus structure which is based upon the area/product each general operative works in. The differences in bonus payments are objectively justified on the basis of physical labour, skill, etc involved. The complainant was not paid a lesser bonus than his comparator. The comparator worked in different areas thus explaining the differences in bonuses that would have applied and that were paid. All bonuses are specific to a production line or production area. A bonus package is determined in accordance with the level of hard physical work and/or specific skill involved.
3.2.3. The complainant worked in a chimney systems area. The bonus in relation to this was agreed directly with the complainant. It was submitted that the complainant's bonus structure was above the average as his work entailed the moving of 3-4 tons of product by hand and also the skill involved in accurately picking components to meet customer orders. The complainant's bonus was intended to be based on output but as the complainant was injured for a period of time and was thus placed on light duties his bonus evolved to a weekly bonus of €207.60.
3.2.4. The named comparator earned a bonus reflective of the area in which he worked. As his bonus was a combination of two different bonus structures his bonus would have varied accordingly from week to week. The comparator could have earned a fire bonus of €1.03 per unit to €341 per week, a Brick pacer bonus of €5.81 per pack up to €301.91 per week.
3.2.5. The respondent thus refutes that the complainant, because of his race, was paid less than the comparator.
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. 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. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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".
4.2. The complainant attempted to extend his complaint at the hearing to include allegations of harassment. I am satisfied that no reference to such issues were made in the complaint form EE1 or in complainant's written submission. I am satisfied that in accordance with the Acts the complainant is clearly statute barred from extending his complaint to include such matters and I have ignored any references or claims made concerning such allegations.
4.3. The issue of time limits. The complainant referred his claim on 2 April 2008. Section 77(5)(a) of the Acts provides:-
(a) subject to paragraph (b), a claim for redress in respect of discrimination and victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of the most recent occurrence.
Section 77(6)(a) provides:-
For the purposes of this section -
Discrimination or victimisation occurs -
(i) if the act constituting it extends over a period, at the end of the period.
The Labour Court has stated that these two subsections deal with different forms of continuing discrimination or victimisation in County Cork VEC and Ann Hurley (Determination No. EDA 1124). Accordingly, in subsection 6(A) of section 77, an act will be regarded as extending over a period, and so treated as done at the end of the period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has a clear and adverse effect on the complainant. Section 5(A) of 77 then deals with a situation where there are a series of separate incidents, while not forming part of regime, rule or practice or principle, are sufficiently connected so as to constitute a continuum. When dealing with such claims the conduct complained of must have taken place within the required statutory time limit. I am satisfied that the claim before me is one that relates to a series of separate incidents. Therefore I must be satisfied that the latest date of discrimination ought to have taken place on or after 2 October 2007. If the complainant is able to establish discrimination within the required six month time limit then I have jurisdiction to extend the jurisdiction to include previous acts of discrimination.
4.4. The complainant has provided no evidence of any less favourable treatment. I have heard much assertion about the complainant's alleged hardship but no evidence of a real or hypothetical comparator was provided. I note by October 2007 the complainant worked in the Swan centre that employed a number of different nationalities, including a number of Polish people. The complainant returned from his honeymoon on 4 October 2007 and immediately complained of pains in his upper arms. He was referred to the respondent doctor on 10 October 2007. While the doctor did not find any evidence of a recurring injury, s/he recommended that the complainant be assigned to light duties. The complainant then resigned on 27 October 2007. I relation to this time period I note that the complainant was only able to refer to the fact that he was given work that no Irish person wanted to do. I am satisfied that this was due to the fact that the complainant had complained about having injured himself and the respondent doctor had recommended that the respondent do so to enable the complainant recuperate. Such treatment is not discrimination.
4.5. In relation to the issue of the need for a named comparator in equal pay cases. It has been well established law in this Tribunal and indeed European jurisprudence (for example Mccarthys v Wendy Smith Case C129/79 and Brunnhofer v Bank der Osterreichischen Postsparkasse AS Case C-381/99 as authority for this proposition) that in order for a claim for equal pay to be referred the respondent most be on notice of the actual comparator that the complainant claims is more favourably paid in accordance with section 19 of the Acts. Therefore, the date from which the respondent in this case has been on notice of an actual comparator is 27 February 2009. This is the date from which the commencement of 'particular time' in accordance with section 19(2) begins.
4.6. Having considered the claim of equal pay I am not satisfied that the complainant has established any facts from which it could be inferred that he was a) paid any less than any other employee doing like work with him or b) that his salary or bonuses were in any way linked with his race. I accept the evidence provided by the respondent and find that the complainant was paid the same basic rate as his named Irish comparator. I also accept that the respondent operates a work specific bonus structure that is not based on like work. This bonus structure is lawful in accordance with section 29(5).
4.7. I note that the complainant submitted that because he was exhausted by the nature of the work that he had to carry out in the Athy site he was unable to achieve the targets as effectively as others with lesser workloads. I do not accept this analysis as it is clear that the bonuses are based on targets. It is clear that the complainant as a general operative was paid the same basic rate of pay as his comparator was. While the comparator earned a slightly larger bonus the week ending 29 June 2007 than the complainant, the complainant's bonus for the week ending 17 August 2007 was higher than that of his comparator. It is clear that the bonus payments made by the respondent were directly linked with the type of work the general operative was doing and I am satisfied that there is no evidence to suggest that this was linked with the workers nationality. I also note that the complainant complained about the fact that he was not paid a brick bonus. I am satisfied that was due to the fact that the complainant worked in a location where bricks were not made.
5. Decision
5.1. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant has not established a prima facie case of discriminatory treatment.
5.3. I find that the complainant has not established a prima facie case of a claim for equal pay.
__________________
Tara Coogan
Equality Officer
1 September 2011