THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision - DEC-E2012-004
PARTIES
Magnar Tonisson
(represented by Richard Grogan & Associates,
Solicitors)
and
Virgeo McEnery Landscapes Limited
(represented by Athrú Solutions)
File Reference: EE/2009/800
Date of Issue: 9th January, 2012
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - race - conditions of employment - training - discriminatory dismissal - equal pay - failure to establish a prima facie case
1. Dispute
1.1 This case concerns a complaint by Mr. Magnar Tonisson, who is an Estonian national, that he was:
(i) discriminated against by Virgeo McEnery Landscapes Limited on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of his conditions of employment, training and discriminatory dismissal; and
(ii) that he performed 'like work' with a named employee of a different nationality to him (hereinafter referred to as 'Mr. A') within the meaning of sections 7(1)(a), (b) and (c) of the Acts and he was therefore entitled to the same rate of remuneration as paid by the respondent to that employee in accordance with section 29 of the Acts.
2. Background
2.1 The Complainant referred a complaint under the Employment Equality Acts, 1998 to 2008 to the Director of the Equality Tribunal on 4 November, 2009. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case on 3 November, 2011 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2011. This is the date I commenced my investigation. A written submission was received from the complainant on 25 March, 2010 and from the respondent on 5 May, 2010. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to Hearing on 4 November, 2011.
3. Summary of the Complainant's case
3.1 The complainant, who is an Estonian national, stated that he was employed by the respondent as a general operative from February, 2007 until 18 September, 2009 when his employment was terminated. The complainant stated that the respondent also employed other workers of Lithuanian, Polish, Estonian, Moldovan and Irish origin during his period of employment. The complainant submitted that the respondent failed to provide him with a proper written contract or terms of employment in a language which he could understand when he commenced employment and he contended that this constitutes unlawful discrimination of him on the grounds of race contrary to the Acts.
3.2 The complainant submitted that the respondent did not provide him with proper health and safety documentation or training during the course of his employment. The complainant submitted that the respondent's failure to provide him with a health and safety statement and training in a language which he could understand amounts to discrimination within the meaning of the Acts.
3.3 The complainant also claims that he was subjected to a pay reduction without his consent during his period of employment. The complainant stated that his wages were reduced from €10.50 to €9.50 per hour in April, 2009 and he claims that the wages of a named Irish worker (Mr. A) were not reduced at that juncture. The complainant submitted that the reduction in his pay amounted to discrimination on the grounds of his race contrary to the Employment Equality Acts.
Equal Pay
3.4 The complainant also claims that he was discriminated against in terms of pay on the grounds of race (nationality) in that he was paid less than a named colleague and employee of the respondent of Irish nationality (i.e. Mr. A). The complainant stated that he was paid a rate of €10.50 per hour whereas the named comparator, Mr. A, was paid €14.00 per hour. The complainant submitted that both he and Mr. A performed the same and interchangeable work. The complainant denies that Mr. A was employed in the capacity of a foreman by the respondent or that he took instructions from Mr. A during his period of employment. The complainant submitted that he performed 'like work' within the meaning of section 7 of the Acts with Mr. A and therefore that he was entitled to equal remuneration in accordance with the provisions of section 29 of the Acts.
3.5 The complainant also referred to a number of cases in support of his case, including Campbell Catering Ltd. -v- Rasaq (EED048) and 58 Complainants -v- Goode Concrete (DEC-E2008-020).
4. Summary of the Respondent's case
4.1 The respondent submitted that the complainant was employed as a general landscape operative from March, 2007 until 18 September, 2009 when his employment was terminated. The respondent submitted that the complainant was provided with a contract of employment upon the commencement of his employment. The respondent accepts that this contract was in the English language, however, it submitted that the document was explained to the complainant in his native language and that he did not raise any issue about not having understood the contents of this document at that juncture.
4.2 The respondent submitted that the complainant was provided with health and safety training and documentation during his period of employment. The respondent submitted that it had a Health and Safety Statement which was translated into a language which the complainant could understand. The respondent submitted that the complainant signed documentation on 5 March, 2007 to confirm that he had been provided with health and safety training. The respondent denies that the complainant was subjected to discrimination on the grounds of his race contrary to the Employment Equality Acts in terms of his conditions of employment.
4.3 The respondent accepts that the complainant's rate of pay was reduced from €10.50 to €9.50 per hour in January, 2009 because the company was experiencing financial difficulties due to the economic downturn. The respondent submitted that the pay of its other employees was also reduced at that juncture in an effort to save jobs and to avoid the possibility of the company going into a termination situation. The respondent accepts that the rate of pay of a named Irish worker (Mr. A) was not reduced at that juncture; however, it submitted that Mr. A was employed in the capacity of foreman whereas the complainant was employed as a general operative. The respondent submitted that Mr. A had been due a salary review at that juncture but agreed to a pay freeze due to the difficult economic circumstances. The respondent denies that the complainant was subjected to discrimination on the grounds of his race in terms of the reduction in his rate of pay.
Equal Pay
4.4 The respondent submitted that the named comparator (Mr. A) is not in fact a real comparator of the complainant. The respondent accepts that the complainant was paid less than Mr. A; however, it submitted that Mr. A was employed as a foreman whereas the complainant was employed as a general operative. The respondent submitted that Mr. A had more responsibility, qualifications and experience than the complainant who was unqualified in the particular area within which they were both employed. The respondent stated that the complainant was assigned as a general landscape operative to the team with Mr. A as the foreman. The respondent submitted that the complainant worked under Mr. A's supervision as a general operative and he had no qualifications other than the experience he had gained from working. The respondent also provided details of the gross hourly rate of pay for another general operative of Irish origin who was being paid less per hour than the complainant.
5. Conclusions of the Equality Officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where "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)....." Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins".
5.3 At the outset of the hearing the complainant's representative withdrew the claim in relation to discriminatory dismissal. Accordingly, the issues for decision in this case is whether or not the complainant was discriminated against by the respondent contrary to the Employment Equality Acts in terms of his conditions of employment, training and equal pay. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.4 In a recent Determination the Labour Court , whilst examining the circumstances in which the probative burden of proof operates held as follows -
"Section 85A of the Acts 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 language 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."
Contract of Employment and Health and Safety training
5.5 The first issue that I must consider concerns the complainant's claim that he did not receive a proper contract of employment and/or health and safety training in a language which he could understand. At the oral hearing, the respondent submitted a copy of the contract of employment and documentation regarding the health and safety training to the Tribunal which it claimed that had been provided to the complainant during his period of employment. I note that the complainant did not dispute that he had actually signed these documents during his period of employment. The respondent accepted that these documents were provided in the English language; however, it claims that the contents were explained to the complainant in a language which he could understand and that he did not raise any issue about not understanding the contents at that juncture.
5.6 Having regard to the evidence adduced, I accept the respondent's evidence that the contents of the aforementioned documents were explained in detail to the complainant and also that he confirmed to the respondent that he fully understood the contents prior to signing the documents. In the circumstances, I find that the measures taken by the respondent to ensure that the complainant fully understood the contract of employment and health and safety documentation which it provided to him were reasonable in the circumstances of this case. Accordingly, I find that the complainant has failed to establish that he was treated less favourably than another person would have been, in similar circumstances, on the grounds of his race in relation to this aspect of his conditions of employment. Accordingly, I find that the complainant has failed to establish a prima facie case in relation to this element of his complaint.
Reduction in Pay
5.7 The next element of the complainant's claim that I must consider relates to the claim that he was subjected to a reduction in pay during his period of employment when his hourly rate of pay was reduced from €10.50 to €9.50 per hour. The complainant submitted that the wages of a named Irish worker (Mr. A) were not reduced at that juncture and he therefore claims that the reduction in his wages were directly attributable to his nationality. In considering this issue, I note that the respondent did not dispute that the complainant's pay was reduced as claimed and that Mr. A's pay was not reduced at that particular juncture. However, the respondent adduced evidence that Mr. A's pay was not reduced at that juncture because he was employed as a foreman whereas the complainant was employed as a general operative. I also note the respondent's evidence that the pay of its other general operatives (including the pay of a general operative of Irish origin) was also reduced as a result of the difficult economic conditions which the company was experiencing at that juncture.
5.8 Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that in order to raise an inference of discrimination on the grounds of nationality, the complainant must be able to demonstrate some significant evidence of less favourable treatment and this treatment must be linked to his nationality. Based on the evidence adduced in the present case, I am satisfied that the reason why the complainant's pay was reduced was directly attributable to economic factors and I accept the respondent's evidence that the pay of its other workers who were employed as general operatives was also reduced at that juncture. I have not been presented with any evidence from which I could reasonably conclude that the reduction in the complainant's pay was in any way connected to his nationality. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of race contrary to the Employment Equality Acts in terms of the reduction to his pay.
Claim in relation to Equal Pay
5.9 The complainant claims that he is entitled to the same rate of remuneration as paid by the respondent to a named comparator (Mr. A) in accordance with section 29 of the Acts. Section 29(1) of the Acts provides that "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, where in relation to the ground of race, C and D differ as to race, colour, nationality or ethnic or national origins or any combination of those factors" and Section 29(5) of the Acts provides that "nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees".
5.10 Having regard to the evidence adduced by the parties in relation to this issue, I am satisfied that the named comparator (Mr. A) was employed as a foreman and that the complainant was employed as a general operative. I am satisfied that Mr. A was the complainant's supervisor and the difference in remuneration between the complainant and Mr. A was due to their different positions in the work hierarchy. I conclude therefore that Mr. A was paid a higher rate of remuneration than the complainant on grounds other than the discriminatory ground of race, and accordingly the respondent can avail of the defence in section 29(5) of the Acts.
6. Decision
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008.
(i) I find that the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2)(h) of the Acts in respect of his conditions of employment and training contrary to section 8(1) of the Acts.
(ii) I find that the respondent has demonstrated to my satisfaction that the difference in the rates of remuneration paid to the named comparator (Mr. A) and the complainant is genuinely attributable to grounds other than race. Accordingly, the respondent is entitled to avail of the defence set out at section 29(5) of the Employment Equality Acts.
Accordingly, I find in favour of the respondent in this case.
______________
Enda Murphy
Equality Officer
9th January, 2012