The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2012-100
PARTIES
Levente Szabo
(Represented by John Gerard Cullen Solicitors)
AND
Padraig Thornton Waste Disposal Limited t/a Thorntons Recycling
(Represented by HRP Group)
File reference: EE/2009/663
Date of issue: 2 August 2012
Headnotes: Employment Equality Acts - sections 6, 8, 14A and 19 - conditions of employment - harassment - equal pay - race
1. DISPUTE
1.1 This dispute involves a claim by Mr Levente Szabo that he was discriminated against in relation to conditions of employment contrary to section 8 of the Employment Equality Acts and that he was harassed in accordance with section 14A of the Acts by Padraig Thornton Waste Disposal Limited trading as Thorntons Recycling on the grounds of race contrary to section 6 of the Employment Equality Acts and that he performs "like work", in terms of section 7 of the Employment Equality Acts with two named comparators and is entitled to equal remuneration in accordance with section 29 of the Acts.
1.2 The complainant referred his claim under the Employment Equality Acts to the Equality Tribunal on 4 September 2009. On 10 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. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing which was held over two days on 26 April 2012 and 3 May 2012 and final information was received on 21 May 2012.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submits that he is Romanian and started working for the respondent on 20 January 2007. In order that he could start work he claims that he paid the respondent €1,500 for a false Hungarian passport and other employment paperwork. He claims that the wife of Director A of the respondent is Romanian and knew how to process employment papers for workers. He submits that a number of other Romanian workers were working under false names and on false paperwork.
2.2 The complainant submits that in order to pay off the €1,500 he was made to work on the respondent's farm full time for three months and then on every Saturday for a year without being paid.
2.3 The complainant contends that because he worked on false paperwork he was forced to work on reduced conditions of employment and liable to be summarily dismissed at any time. Furthermore, he was paid at a lesser rate than all other workers and that he will submit pay slips to show variations in pay.
2.4 The complainant submits that in a discussion about his employment status in May 2009, when he asked for payment of unpaid wages and the regularisation of his employment position, he was called a 'gypsy' by Director A and told to go back to Romania. On 15 May 2009 he contends he was forced out of employment by the discriminatory conduct of the respondent, when it was discovered that the passport provided for him was false.
2.5 The complainant submits that discrimination on the grounds of his nationality took place as he was exploited by the respondent because of his illegal employment status.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent submits that the complainant started working for them on 14 February 2007 in the belief that he was a Hungarian national in accordance with the passport he provided when he started work and therefore did not need a work permit.
3.2 The complainant worked as a helper on a truck. Of the helpers five were Romanians and eleven were non Romanians.
3.3 In relation to the claim for equal pay the complainant was paid as follows:
Feb 2007 €8.65
May 2008 €8.80
May 2009 €7.92
The starting rate of pay had been €9 per hour but this was reduced to €8.65 and the respondent submitted evidence that two other workers who started work in January and February 2007, one Irish and one Polish were also started on €8.65. The respondent also provided evidence that that all staff received a pay rise in May 2008. After which all the other workers were paid at least €9.20 per hour apart from the complainant who pay was increased to €8.80 per hour. They submit this was due to an "administrative error". All workers then had their pay reduced as a company cost saving measure. This put the complainant and a number of others below the minimum wage. This was amended for those still working for the respondent but this did not include the complainant, who had left. The respondent submits that the complainant never raised any issues about his pay when working for them.
3.4 The farm referred to by the complainant is not owned by the respondent but is the property of Director A. Furthermore, he did not work on this farm on every Saturday in 2007.
3.5 The respondent strongly refutes the allegation that they obtain false paperwork for staff and that a sum of €1,500 was paid by the complainant for such paperwork. The respondent submits that they carried out a employment permit audit in May 2009 and were satisfied that staff working for them were legitimate.
3.6 The respondent submits that they have investigated any staff when it has come to their attention that staff were working illegally under false paperwork bought from external contacts. This happened with the complainant and he resigned.
3.7 The respondent submits that the complainant was employed on a permanent contract and passed his probationary period. Therefore his employment was no less secure than any other employee. When the company had to make staff redundant because of the recession the complainant was not selected for redundancy.
3.8 The respondent denies the complainant's allegations that he was called a 'Gypsy' by Director A. The complainant went to Director A for advice as the Gardai had confiscated his passport. In this context Director A suggested he should think about returning to Romania. The two had a previously good working relationship and the comment was made in that context. The respondent notes that Director A's wife is Romanian and this clearly shows that he is not racist.
3.9 In early May 2009 the respondent was told by the tax office that there was a problem with the complainant's PPS number and they were instructed not to pay him and to send him to the tax office. He subsequently resigned on 15 May 2009. On 18 June 2009 the complainant spoke to the HR Manager stating he was a Romanian national working illegally under a false Hungarian passport. The HR Manager confirmed that the respondent could not employ him when they knew he was working illegally. They were not in a position to apply for a work permit as they would have to satisfy a needs market test before they could apply and given the current level of unemployment it was highly unlikely they would not find a suitable applicant. The complainant then confirmed his resignation and he was asked to write a resignation letter. The payroll officer witnessed this document and confirmed with the complainant that he was acting voluntarily.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issues for decision by me are whether the complainant was discriminated against in relation to conditions of employment, whether he was harassed and if he has a claim for equal pay on the grounds of race. In reaching my decision 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.
4.2 The complainant was working for the respondent on the basis of a false passport. The complainant contends the respondent helped him to obtain the false passport and this led to them exploiting his employment status. The respondent contends they did not assist him to obtain the false passport, were unaware his passport was false and his employment status was the same as any other employee.
4.3 At the hearing the complainant gave evidence that Director A's wife helped him to apply for a work permit on the basis of his Romanian passport but this was unsuccessful. None the less he contends that he was told that he owed them €1,500 for this assistance. To pay it off he worked without pay on Director A's farm for three months and started working for the respondent in April or May 2007. He contended that when the work permit was not granted Director A suggested he get a false passport. He borrowed €500 from a relation of Director A's wife to pay for the false Hungarian passport.
4.4 At the hearing Director A contended that his wife asked him to find jobs for two friends from the village she came from. When the complainant and another person arrived there was no work. However, shortly afterwards the manager in the respondent's wheely bin section had work and the complainant started working for them on 14 February 2007. The respondent contends they never applied for a work permit for the complainant and thought his Hungarian passport was valid. They were aware that the part of Romania where the complainant and Director A's wife came from was formerly part of Hungary, the residents also spoke Hungarian and were eligible to apply for a Hungarian passport. The advantage of having a Hungarian passport, at that time, is that you would not have to obtain a work permit to work in Ireland, which you would have to do with a Romanian passport. Indeed I understand the complainant now has a legal Hungarian Passport. The respondent contends the complainant worked on the farm on a small number of occasions in an arrangement with Director A's wife which was stopped by Director A when there were problems with machinery getting broken.
4.5 The complainant's case rests on the obligation he contends he was under because the respondent knew he was working on false documentation, while the respondent says they were not aware the passport was false. The situation is complicated and I am not satisfied that either the complainant or the respondent were entirely truthful in the evidence given to the Equality Tribunal. I therefore have to assess the credibility of the people giving the evidence and of what they are claiming. On balance I find it difficult to believe the complainant's version of events. I do not believe the respondent made a work permit application for the complainant. I therefore do not accept that he had to work full time on Director' A's farm to pay off an indebtedness that arose from this application. My conclusion from the contradictory evidence is that he helped out on the farm at weekends, at the request of Director A's wife. I conclude the respondent accepted the Hungarian passport presented by the complainant. He was therefore in the same position as other workers in relation to conditions of employment. He may have felt constrained from raising issues which he thought may have risked his employment status being revealed but I conclude that was because he knew that he was working on a false passport and not because the respondent might exploit his position.
4.6 The evidence given in relation to harassment relates to one incident when he had a discussion with Director A after the tax office discovered he was working illegally. Director A's wife was Romanian and I can find no explanation as to why he would then refer to the complainant, who was from the same village as his wife, as a 'Gypsy'. It is probable Director A may have suggested he return to Romania but this appears to have been said as advice to someone who was facing criminal charges for having a false passport. I find no evidence that this done in a way the amounts to harassment within the meaning of the Acts.
4.7 The comparators both started working for the respondent in 2006 and were paid €8.50 and €8.65 per hour. In May 2007 their pay was increased to €9.00 and €9.29 per hour and from May 2008 they were both paid €9.20 per hour. In February 2009 their pay was reduced by 10% to €8.28, which was increased to €8.65 in May 2009 (and backdated to February 2009). The complainant started work in February 2007 on €8.65 per hour, the same rate of pay as two others who started around the same time. However, in May 2008 when the pay of two comparators and the two people who started around the same time as the complainant changed to €9.20 the complainant's pay only went to €8.80 per hour. Then in February 2009 his pay was also cut by 10% to €7.92 and this was his pay when he left in May 2009.
4.8 The respondent agreed the complainant was doing the same work as others, including the comparators. Therefore the complainant performs "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". Section 29 (5) of the Acts states that "nothing in this Part shall prevent an employer from paying, on grounds other discriminatory grounds, different rates of remuneration to different employees".
4.9 I accept the evidence of the respondent that they changed their policy in relation to the starting pay of employees between 2006 and 2007. This is borne out by the uncontested evidence they produced. The only reason given by the respondent for the difference in pay from May 2008 until the complainant left the respondent's employment in May 2009 is that it was an "administrative oversight" and it was not related to the complainant's race. It is difficult to believe that this could last for a full year. The respondent contends payments are generated electronically and they had no reason to look at the complainant's pay. They also point out that the complainant did not bring it to their attention. The complainant says he could not complain about his pay because he was afraid the respondent would exploit their knowledge of his employment status and would dismiss him.
4.10 The respondent contends that the complainant's reduced rate was an "administrative oversight" yet in explaining different starting rates of pay they contend that "when implementing wage increases Thorntons Recycling made decisions on an individual basis i.e. based on considerations such as service, performance of duties, flexibility in tasks, willingness to work a variety of hours etc.". They made no claims that the complainant's work was unsatisfactory yet his pay rate from May 2008 stands out as being 40 cent per hour lower than the next lowest pay rate, and remained so until February 2009 when everyone's pay was reduced by 10% and he was then 36 cent the next lowest rate. In May 2009 the respondent brought those below the minimum rate of pay up to that level but no efforts were made to make recompense to the complainant for being paid below the minimum wage or for the "administrative oversight". Whilst he may have left their employment at this time I note that he met the HR Manager in June 2009 and no mention of pay was made at this meeting.
4.10 I have accepted that the complainant was in the same employment situation as the other workers, including the two comparators, and therefore was in a position to bring this to the respondent's attention. However, I cannot accept that the respondent made an "administrative oversight" that lasted for over a year. If the initial change in pay was an "administrative oversight" then they would have had opportunities to amend this mistake but did not do so. Otherwise they made a decision to put the complainant on this rate "on an individual basis". In both cases, either the decision not to amend the rate when it came to their attention or to put him on a lower rate than all other workers, I conclude that this would not have happened, and indeed did not happen, to an Irish worker in a comparable situation, or to the two Polish comparators. I therefore find that the respondent has not been able to show that there reasons other than the complainant's race for the difference in pay.
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 respondent did not discriminate against the complainant in relation to conditions of employment,
* the complainant was not harassed, and
* the complainant does perform 'like work' with the named comparators in terms of Section 7(a) of the Acts. I find that there are no objective grounds other than race for the difference in pay in accordance with section 29(5) of the Act and that the complainant has been discriminated against by the respondent.
I hereby order that the respondent pay to the complainant:
* arrears of pay of €950, in accordance with section 82(1)(a) of the Acts; and
* in line with Council Directive 2000/43/EC Article 15¹ which states that "sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive", compensation for the effects of the discrimination in accordance with section 82(1)(c), in the sum of €5,000. This award is intended to be dissuasive to the respondent for the discrimination in pay suffered by the complainant because of his race. This award relates to compensation for distress and breach of rights under the Acts and does not contain any element of lost income and is not therefore subject to tax).
_____________________
Hugh Lonsdale
Equality Officer
2 August 2012
¹ Council Directive 2000/43/ec of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin