The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2012-050
PARTIES
Antoni Kapusta, Slawomir Rutkowski & Przemyslaw Smolarek
(Represented by Joanna Kwiatkowska)
AND
Edward McDonald
File reference: EE/2009/393, EE/2009/394 & EE/2009/395
Date of issue: 26 April 2012
Headnotes: Employment Equality Acts - sections 6 and 19 - conditions of employment - discriminatory dismissal - equal pay - race
1. DISPUTE
1.1 This dispute involves claims by Mr Antoni Kapusta, Mr Slawomir Rutkowski and Mr Przemyslaw Smolarek that they were discriminated against in relation to conditions of employment and dismissed in a discriminatory manner contrary to section 8 of the Employment Equality Acts by Edward McDonald on the grounds of race contrary to section 6 of the Employment Equality Acts and that they perform "like work", in terms of section 7 of the Employment Equality Acts with two named comparators and are entitled to equal remuneration in accordance with section 29 of the Acts.
1.2 The complainants referred their claims under the Employment Equality Acts to the Equality Tribunal on 11 June 2009. On 28 February 2012 in accordance with his powers under the Acts the Director delegated the complaint to the undersigned, Hugh Lonsdale, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. A hearing was scheduled for 30 March 2012 and both parties were informed of the hearing details on 7 February 2012. By letter dated 8 March 2012 the respondent's representative informed the Equality Tribunal that he was no longer representing the respondent. The respondent was advised of the hearing details by letter sent by both registered and ordinary mail on 12 March 2012. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 30 March 2012. The respondent made no contact with the Equality Tribunal and did not attend the hearing. However, I am satisfied that all reasonable efforts to inform the respondent of the hearing were made.
2. SUMMARY OF THE COMPLAINANTS' CASE
2.1 The complainants made similar claims and submit they were paid less than two named comparators and other Irish workers with whom they performed like work. They also claim that they were treated differently on the basis of their race in that they had to work much harder and work longer hours.
2.2 They submit they were required to work on Sundays and Public Holidays, whilst Irish workers were not required to work on these days. On occasions the sites were locked when they worked at weekends and on Public Holidays and they had to jump over fences. Furthermore, they received no premium payment for working on Sundays and Public Holidays.
2.3 They submit they were not paid when they took annual leave.
2.4 They submit they were paid different rates for working overtime than Irish workers.
2.5 They submit they received no payslips, no P60s and no P45, nor written terms and conditions of employment. They also submit that when they left the respondent's employment and tried to make claims with the Department of Social Protection they found out that the respondent had made no PRSI contributions for them and had not registered their employment with Revenue.
2.6 They submit that their conditions of employment were very bad. They were given the worst kind of work, which was more dangerous. On a number of occasions they were piled into a car trailer to get to work.
2.7 They submit that they were dismissed without any notice and received no redundancy pay.
Mr Antoni Kapusta
2.8 Mr Kapusta gave evidence at the hearing that he worked for the respondent as a
General Operative building reinforced concrete walls and tanks from 27 March 2006 until 27 March 2009 and he was paid €95 per day at the time he left this employment. He contends that the first named comparator, Mr A, was a brother of the respondent and he was paid €200 per day but did the same work as the complainant. He contends the second named comparator, Mr B, was paid €160 per day and did exactly the same work as he did. Mr B told him that he would not work for the kind of money the complainant got. He contends that both comparators told him what money they were earning but he did not know what the other Irish workers were earning.
2.9 Mr Kapusta gave several examples where he and the other complainants were made to carry out the most dangerous elements of the work being undertaken. He contends that they were afraid they would be dismissed if they did not do this work. He gave evidence that they were forced to work some weekends and bank holidays at a flat rate of pay and Irish workers did not work on weekends and bank holidays. He contends that only Polish workers were treated in this way.
2.10 The complainant gave evidence that he was not paid when he went on two weeks holidays and he did not know if he would get work when he returned.
2.11 The complainant contends he was dismissed when he received a phone call to say he was not needed anymore. This was the day after he and other Polish workers finished work on a house.
2.12 Mr Kapusta confirmed at the hearing that he had problems claiming Social Welfare entitlements when he finished working for the respondent because no PRSI or tax payments had been made on his behalf.
Mr Slawomir Rutkowski
2.13 Mr Rutkowski gave evidence at the hearing that he worked for the respondent as a
General Operative building reinforced concrete walls and tanks from 12 March 2007 until 27 March 2009 and he was paid €90 per day at the time he left this employment. He contends that the first named comparator, Mr A, was a brother of the respondent and he was paid €180 per day and he was supposed to supervise the complainants. He contends the second named comparator, Mr B, was paid €160 per day, he carried out the same work as the complainants and had some supervisory responsibilities. He contends that both comparators told him what money they were earning. Other Irish workers were doing the same work and one of them told him they were earning €200 or €250 per day.
2.14 Mr Rutkowski also submits that he was made to drive a van which was not taxed or insured and he consequently lost his driving licence. He contends that no Irish worker was required to drive the van when it was not insured. Mr Rutkowski also gave several examples where he, the other complainants and other Polish workers were made to carry out the most dangerous work. He contends that they were afraid they would be dismissed if they did not do this work. He gave evidence that they were forced to work some weekends and bank holidays at a flat rate of pay and Irish workers did not work on weekends and bank holidays.
2.15 The complainant gave evidence that he was not paid when he went on two weeks holidays and there was an issue when he returned and on one occasion he did not work for the next three weeks. He also submits that Irish workers took leave when they wanted and also returned to work on the day they said they would.
2.16 The complainant contends that he was only working every second day at the end of his employment with the respondent then he just did not get picked up anymore. He also contends that he was never given the back pay he was due.
2.17 Mr Rutkowski confirmed at the hearing that he had problems claiming Social Welfare entitlements when he finished working for the respondent because no PRSI or tax payments had been made on his behalf.
Mr Przemyslaw Smolarek
2.19 Mr Smolarek gave evidence at the hearing that he worked for the respondent as a General Operative building reinforced concrete walls and tanks from 27 March 2006 until 27 March 2009 and he was paid €100 per day at the time he left this employment. He contends that he was forced to drive a digger despite having no driving licence. He contends that the first named comparator, Mr A, was a brother of the respondent and he was paid €200 per day but did the same work as the complainants and had some supervisory responsibilities. He contends the second named comparator, Mr B, was paid €170 per day and did exactly the same work as everyone else and had no supervisory responsibilities.
2.20 Mr Smolarek gave several examples where he and the other complainants were made to carry out the most dangerous elements of the work being undertaken. He contends that they were afraid they would be dismissed if they did not do this work. He gave evidence that they were forced to work some weekends and bank holidays at a flat rate of pay and Irish workers did not work on weekends and bank holidays. On one occasion he said that he did not want to work at the weekend and he was told that if he did not then there would be no need for him to come in on the following Monday.
2.21 The complainant gave evidence that he was not paid when he went on two weeks holidays.
2.22 The complainant contends he was dismissed when he was told there was no more work available. He did not receive the back pay he was due.
2.23 Mr Smolarek confirmed at the hearing that he had problems claiming Social Welfare entitlements when he finished working for the respondent because no PRSI or tax payments had been made on his behalf.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent did not attend the hearing but made a written submission through his then representative in which he submitted that the complainants were not treated less favourably.
3.2 The respondent submits that the complainants were paid the same as Irish employees who had the same level of skills and experience.
3.3 The respondent submits that the complainants worked on particular days by agreement and that Irish employees also worked on these days. They were paid for all work which they performed and were paid the same overtime rate as Irish workers.
3.4 The respondent also submits that one of the complainants had an accident at work and was paid by him for six months.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issues for decision by me are whether the complainants have a claim for equal pay, if they were discriminated against in relation to conditions of employment and if they dismissed in a discriminatory manner on the grounds of their race. In reaching my decisions I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing. However, there is a lack of documentary evidence in these claims from either side and the respondent was not present at the hearing to refute the complainants' allegations. I will therefore have to assess the oral evidence of the three complainants. In line with the practice of the Equality Tribunal I took evidence at the hearing from the three complainants separately.
Equal Pay
4.2 All three complainants contend that perform "like work" with the two named comparators in terms of section 7(1) of the Acts. Section 29 (1) of the Acts states: "It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer". The complainants' evidence varied as to the pay and responsibilities of the two named comparators.
4.3 Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary." This means that the complainants must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. In this case the complainants have contradicted each other and as such it is difficult to conclude that primary facts have been established.
4.4 Section 29 (5) of the Acts that "nothing in this Part shall prevent an employer from paying, on grounds other discriminatory grounds, different rates of remuneration to different employees". It appears that the comparators both had some level of supervisory responsibilities and on the basis of the very limited evidence available to me I conclude that there were reasons other than race for the differences in pay and the complainants have failed to prove their claims of equal pay in relation to the named comparators.
Conditions of Employment
4.5 The complainants gave consistent evidence regarding their conditions of employment claim; regarding the type of work undertaken, being made to work at weekends and on Bank Holidays, not being paid for annual leave, the respondent not making PRSI and revenue contributions for them. The evidence available to me shows a clear picture of a workplace that falls below acceptable employment standards in many areas. However, I have to consider if the complainants were discriminated against in accordance with Section 6(1) of the Acts which states that: "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).....". In this claim the ground is race.
4.6 I accept the consistent evidence of the complainants that they were not paid for any annual leave. The respondent did not address this issue in their submission but I cannot accept that an Irish worker would not have been paid for their annual leave.
4.7 I also accept the evidence of the complainants that they were given dangerous tasks and that they undertook them because they were concerned they would lose their jobs if they did not. It is difficult to assess whether Irish workers would have been treated in the same way and I conclude that the complainants failed to provide sufficient evidence to establish a prima facie case of discrimination.
4.8 The complainants all gave evidence that they were forced to work at weekends and Bank Holidays without premium payments but that Irish workers did not. I find it difficult to accept that some Irish workers would not have taken the opportunity to work extra hours and I find this incongruity makes it difficult to conclude that the complainants were dealt with in a discriminatory manner regarding working at weekends and on Bank Holidays.
4.9 The complainants considered that they were in regular employment, from which they would accrue entitlements if they became sick or unemployed. However, when they became unemployed they found out that their employment had never been regularised by the respondent. I accept that the correct contributions were not paid on their behalf. In this specific case and on the basis of the evidence given at the hearing I cannot accept that the respondent would have treated Irish workers in the same way.
4.10 The Labour Court in ED/01/13, Determination No. 045 Citibank and Massinde Ntoko set out an approach which is applicable in this case; "The Court normally requires the complainant to establish the primary facts upon which the assertion of discrimination is grounded. If those facts are regarded by the Court as being of sufficient significance to raise an inference of discrimination, the respondent must prove the absence of unlawful discrimination. (see Mitchell v Southern Health Board [2001] ELR 201)
This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant's power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondents capacity of proof." I have used this approach to find that in relation to several aspects of their conditions of employment the respondent treated the complainants as if they were transitory casual workers, even though they worked for him for between two and three years. Although there is no direct evidence to establish primary facts around the treatment of Irish workers by the respondent I conclude on the basis of evidence given by the complainants at the hearing that, in this specific case, Irish workers would not have been treated in the same way. I therefore find they were discriminated against in relation to their conditions of employment.
Discriminatory Dismissal
4.11 The complainants' evidence is that they were let go and told there was no work available for them. They have provided no evidence that they, as Polish workers, were let go before Irish workers. I therefore find they have been unable to establish a prima facie case of discrimination in relation to their dismissal.
5. DECISION OF THE EQUALITY OFFICER.
I have concluded my investigation of this complaint and hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts that:
- the complainants have failed to establish a prima facie case of equal pay on the basis of the race ground and the complaint fails,
- the respondent discriminated against all three complainants in relation to their conditions of employment, and
- the complainants were not dismissed in a discriminatory manner..
In accordance with section 82 of the Acts I order the respondent to pay each complainant €15,000 in compensation for the discriminatory treatment suffered. This figure represents equates to approximately six months pay and is compensation for infringement of their rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
_____________________
Hugh Lonsdale
Equality Officer
26 April 2012