EQUALITY OFFICER'S DECISION NO: DEC-E/2012/075
PARTIES
Mr. Zsolt Takacs and Mr. Tamas Jung
(Represented by Martin Gately Solicitors)
AND
Colbinstown Plastering Limited
FILE NO: EE/2011/315&316
Date of issue: 19 June, 2012
Keywords: race, conditions of employment, same rate of remuneration, victimisation, discriminatory dismissal,
1. Dispute
1.1 This dispute involves a claim by two Hungarian complainants, Mr. Zsolt Takacs and Mr. Tamas Jung, that they were discriminated against by Colbinstown Plastering Limited on grounds of race, in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts, in relation to conditions of employment and other. The complainants also claim that they are entitled to the same rate of remuneration as that paid to a named comparator in accordance with the provisions of Section 19(1) of the Acts and that they were victimised contrary to section 74(2) of the Acts. It is further submitted that one of the complainants, Mr. Zsolt Takacs, was dismissed in circumstances amounting to discrimination, on grounds of race, in terms of section 6(2) (h) and contrary to section 8 of those Acts.
2. Background
2.1 The complainants referred complaints under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on the 4th of March 2011 alleging that the respondent had discriminated against them, on grounds of race, when they did not receive any proper contracts of employment, their conditions were changed punitively and unfairly to include a reduction in pay, being forced to work night shifts and Saturdays and not getting sufficient holidays. In addition, it is submitted that the complainants believe they were not paid the same rate of pay as a named Irish comparator and that they were victimised contrary to section 74(2) of the Acts. In addition one of the complainants, Mr. Zsolt Takacs, alleges that he was unfairly selected for redundancy/dismissal.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 21st May 2012 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the complainants. No submission was received from the respondent. However, a letter was received from the liquidator indicating that the respondent company was in liquidation. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to a Hearing on the 1st of June, 2012. The respondent was not present at the hearing and a phonecall was received from the liquidator on the morning of the hearing indicating that he would not be attending the hearing.
3. Preliminary issue - Non-attendance of 1 complainant
3.1 The representative for Mr. Tamas Jung advised the Tribunal, prior to the hearing, that Mr. Jung had returned to his native Hungary and may not be able to attend the hearing, however the complaint was not withdrawn. On the day of the hearing, neither Mr. Jung nor the respondent was in attendance.
3.2 As part of my investigation under Section 79 of the Act, I am obliged to hold a hearing. I am satisfied that the complainant, Mr. Tamas Jung, received notification of the hearing arrangements. I find that the failure of Mr. Tamas Jung to attend such a hearing was unreasonable in the circumstances and that any obligation under Section 79 has ceased. As no evidence was given at the hearing in support of the allegations of discrimination I find that the complainant, Mr. Tamas Jung has failed to establish a prima facie case and his complaint therefore fails.
4. Summary of complainant's case
4.1 The complainant, Mr. Zsolt Tacacs, states that he is a Hungarian National and submits that he was employed by the respondent from March 2008 to November 2008, from February 2009 to November 2009 and from January 2010 to September 2010.
4.2 The complainant states that he did not receive any written contract, or written terms of employment. The complainant submitted in advance of the hearing that he was unfairly selected for redundancy/dismissal. The complainant submitted that he had agreed to work for the sum of €120 per day after tax and deductions. He claims this pay was later reduced.
4.3 It is submitted that the complainant was made to work nights and Saturdays and was not given sufficient holidays and that this was due to his race.
4.4 It is submitted that the complainant was consistently paid late or not at all and that Irish and Romanian staff were paid full wages every week without delay. In addition, the complainant submits that he did not receive holiday pay or bank holiday pay and that Irish members of staff were not treated in this way.
4.5 The complainant submitted that he was paid less than a named Irish comparator.
4.6 In addition, it is submitted that the complainant was unfairly selected for redundancy/dismissal and that Irish members of staff were not so selected.
4.7 It is also submitted that the complainant was victimised.
5. Conclusions of the Equality Officer
5.1 The issues for decision by me now are, whether or not Colbinstown Plastering Limited (i) discriminated against the complainant on grounds of race, in terms of section 6(2) (h) of the Employment Equality Acts, 1998 and 2004 in relation to his conditions of employment and (ii) dismissed the complainant in circumstances amounting to discrimination on grounds of race in terms of section 6(2) (h) and contrary to section 8 of those Acts. I must also make a decision on whether the complainant is entitled to the same rate of remuneration as that paid to a named comparator in accordance with the provisions of Section 19(1) of the Acts and whether the complainant was victimised contrary to section 74(2) of the Acts.
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 at the Hearing.
5.2 Section 6(1) of the Employment Equality Acts, 1998 and 2004 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 two persons ..... that they are of different race, colour, nationality or ethnic or national origins... "
Thus the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because his is Hungarian. 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 Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:
Section 85A of the Act provided 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. While those facts will vary from case to 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 establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.
5.3 Conditions of employment
5.3.1 The Complainant at the hearing stated that he had initially agreed to work for a sum of €120 per day after tax and deductions, and that this was later reduced without discussion or warning. The complainant advised the hearing, that one day the boss walked in, and said "everyone is getting €100 per day from now on, take it or leave it". When questioned as to whether Irish employees received the same treatment, the complainant stated that he didn't know how they were treated but added that there was only 1 Irish employee, who was a supervisor. The complainant did not produce any evidence, on this issue, to show that the Irish employee was treated any differently, or that this treatment was in any way related to his race. Accordingly, based on the evidence given, I do not find that the complainant has established a prima facie case of less favourable treatment, on the ground of race in relation to this matter.
5.3.2 The complainant, at the hearing, stated that he was made to work nights and Saturdays, and that this was due to his race. The complainant upon questioning stated that a named Irish employee also worked nights and Saturdays. Accordingly, based on the evidence given I do not find that the complainant has established a prima facie case of less favourable treatment on the ground of race in relation to this matter.
5.3.3 It is submitted that the complainant was consistently paid late, or not at all, and that Irish and Romanian staff were paid full wages every week without delay. On the day of the hearing, this matter was clarified and the hearing was advised that Romanian staff were treated the same as the complainant as regards non payment and late payment of wages. In addition, the complainant submits that he did not receive holiday pay or bank holiday pay. When questioned as to whether the named Irish employee (Mr. K) received the same treatment, regarding these matters the complainant replied that he couldn't say but he presumed not, as he didn't hear Mr. K complaining. The complainant did not produce any evidence on these issues to show that this treatment was in any way related to his race. Accordingly, based on the evidence given, I do not find that the complainant has established a prima facie case of less favourable treatment on the ground of race in relation to this matter.
5.3.4 On the day of the hearing the complainant indicated that he did not receive a written contract or terms of employment. The complainant upon questioning stated that none of the employees had received a contract, and he did not produce any evidence to show that this treatment was in any way related to his race. Accordingly, based on the evidence given I do not find that the complainant has established a prima facie case of less favourable treatment on the ground of race in relation to this matter.
5.4 Equal Pay
5.4.1 The complainant at the hearing stated that he was entitled to the same rate of pay as a named Irish comparator. The complainant could not say exactly what rate of pay the comparator was being paid, but that it was more than he himself was being paid. The complainant, at the hearing, stated that the comparator was not performing 'like work' as he was a supervisor. The P60's for both the complainant and comparator were submitted in evidence but it was acknowledged that the comparator was entitled to be paid more as he was a supervisor. It was argued, on behalf of the complainant, that the gap between what he was paid and what the supervisor was paid overall, as per their p60's was greater than would be expected and that this gap was due to race. The complainant at the hearing, stated that the comparator who was a supervisor did carry out additional duties. It was acknowledged at the hearing that the complainant and comparator were not performing 'like work'. Accordingly, based on the evidence given I do not find that the complainant has established a prima facie case of less favourable treatment on the ground of race in relation to this matter.
5.5 Discriminatory Dismissal
5.5.1 Turning to the complaint of discriminatory dismissal. At the hearing the complaint of discriminatory dismissal was withdrawn as it was indicated that a complaint of unfair dismissal was being pursued in another forum.
5.6 Victimisation
5.6.1 The complainant at the hearing, produced no evidence that he had suffered victimisation contrary to section 74(2) of the Acts. It was argued, that the complainant had a fear of victimisation, if he were to complain about his conditions. However, when I drew attention to the definition of victimisation as provided for in section 74(2) of the Acts, it was acknowledged that the complainant had not continued to work for the respondent after the complaint of discrimination was made, as his employment with the respondent had ceased prior to the making of the complaint. The claim of victimisation was subsequently withdrawn.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -
(i) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against him on the ground of race pursuant to section 6(2) of the Acts in terms of his conditions of employment contrary to section 8 of the Acts
____________________
Orla Jones
Equality Officer
19th June, 2012