The Equality Tribunal
Employment Equality Acts
Decision DEC-E2012-024
PARTIES
Stefan Hric
(Represented by Brian Conroy B.L,
instructed by Able Solicitors)
- V -
First Express Ltd T/A Nightline
(Represented by Peninsula Business Services (Ireland) Ltd.)
File reference: EE/2009/115
Date of issue: 5 March 2012
Keywords - Employment Equality Acts - Discriminatory Treatment - Discriminatory Dismissal - Victimisation - Victimisatory Dismissal - Equal Pay - Race - Valid Comparator - Time limits - Credibility - Prima facie case
1. DISPUTE
1.1 This dispute concerns a claim that the complainant was subjected to discriminatory treatment, discriminatory dismissal, victimisation and victimisatory dismissal by the respondent on the grounds of race in terms of section 6(2) of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to sections 8 and 74 of those Acts. The complainant also lodged a claim for equal remuneration under Section 19 of the Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 11 February 2009 under the Acts. On 9 January 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to Conor Stokes - 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. Submissions were sought and received from the parties. As part of my investigation, I proceeded to hearing on 17 February 2012 (as required by Section 79(1)). All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. PRELIMINARY MATTERS
Scope of the Investigation
2.1 At the start of the hearing, the complainant withdrew the elements of the complaint that related to dismissal and victimisation.
Equal Pay
2.2 In the course of the hearing, the complainant's representative informed the Equality Officer that the equal pay complaint only related to the period from 11 February 2006 until 9 April 2007. In addition, the complainant's representative submitted that it had come to their attention that the named comparator was not valid and that they now wished to withdraw that comparator and substitute the names of two alternative valid comparators. The case of County Louth VEC v the Equality Tribunal and Pearse Branngian (Unreported, High Court, McGovern J. 24th July 2009) was put forward as an authority to enable them to amend the complaint in this fashion.
2.3 The complainant was informed that, in the opinion of the Equality Officer, the withdrawal of the existing comparator and subsequent nomination of two heretofore unknown comparators constituted the submission of a new equal pay complaint rather than amounting to an amendment of a pre-existing equal pay complaint. In that regard, the date of the hearing would then be regarded as the date of referral of the equal pay complaint for the purposes of Section 77(1) of the Acts and, accordingly, any order for compensation in the form of arrears of remuneration can only extent back for a period of 3 years prior to that date in accordance with Section 82(1)(a) of the Acts.
2.4 It was pointed out to the complainant that such a course of action, when taken with the submission that there was a breach of the principle of equal pay for the period from 11 February 2006 until 9 April 2007, would in effect mean that no compensation would be payable to the complainant, should such a complaint be upheld. The complainant indicated that if the Equality Officer's decision was that the nomination of alternative comparators constituted the submission of a new complaint, then it would not be proceeding with the case for equal pay and would not oblige the Tribunal to continue to consider the evidence before it in relation to the equal pay component of the complaint.
Time limits
2.5 During the course of the hearing, the respondent queried whether any aspect of the complaint remained to be addressed as, with the withdrawal of the dismissal element, the issue of the time limits laid down in the Acts now arose. The respondent indicated that a period of about three weeks remained when the complainant was employed by the respondent and that in order to establish a complaint, it was necessary for the complainant to maintain a valid complaint within that time period. The complainant's representative sought an extension of the 6 month period to 12 months as allowed for in Section 77(5) of the Acts. When the Equality Officer enquired as to the reason for the seeking the extension, the complainant's representative informed the Tribunal that he wished to apply for the extension as he did not wish to be open to an accusation that he had not done so.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSIONS
3.1 The complainant submitted that he has never received payment for all the hours of overtime that he was forced to do per week. On average, he was made to do ten hours of overtime on top of his basic hours. Initially this worked out that he was contracted to do 39 hours per week but in fact he did 50.
3.2 The complainant submitted that in 2007, the employees were forced under duress and without the option of obtaining independent legal advice to sign a new contract for a 48 hour week on the same level of pay. The complainant further submitted that the overtime hours continued on top of this without pay.
3.3 The complainant submitted that he was constantly told, and threatened, by his manager, Mr X, that if he did not take extra packages for extra delivery runs that he could "go home to Slovakia".
4. SUMMARY OF THE RESPONDENT'S SUBMISSIONS
4.1 The respondent submitted that the complainant commenced employment on 12 September 2005 as an employee van driver. As part of a review process which began on 22 July 2008, he was made redundant on 2 September 2008.
4.2 The respondent submitted that based upon its fingerprint clock in/out system, the complainant's average hours were 42.5 per week however he was paid for 48 hours regardless of actual hours worked and that this would balance out in the complainant's favour over time.
4.3 The respondent submitted that as part of the review, the complainant along with all other employee drivers, was offered an opportunity to become a self-employed subcontractor driver with the respondent. There were several options available to start-up contractors who could not afford or did not want to buy a van out-right including rental from the company or a van hire firm or obtaining leasing finance with which the respondent would have assisted. The respondent went through these options with the complainant on more than 3 occasions to ensure that he fully understood his options.
4.4 The respondent submitted that at no time did Mr X threaten the complainant, or make any racist remarks to him and further, that the allegation is completely without substance.
5. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the respondent subjected the complainant to discriminatory treatment on grounds of nationality, in terms of section 6 of the Acts and contrary to section 8 of those Acts.
5.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.3 Having considered the issue of the equal remuneration complaint, I am satisfied that an equal pay complaint can only commence from the date upon which the Tribunal is notified of a valid comparator. I am of the opinion that the withdrawal of an invalid comparator and subsequent nomination of two valid comparators goes beyond the "furnishing of further and better particulars" as envisaged in the 'Brannigan' case above and amounts to the submission of a fresh equal remuneration case. On this basis, I find that the receipt of an equal pay complaint in this case would date from the date of the hearing, i.e. 17 February 2012. In these circumstances the appropriate period for consideration for a possible order of arrears of remuneration starts on that date.
5.4 In relation to the issue time limits raised by the respondent, the Act allows for a 6 month period within which a complaint of discriminatory treatment may be raised. As regards the complainant's application to extend that period to 12 months, the Acts require a complaint to provide "reasonable cause" as to why the time period should be extended. In the instant case, I do not consider the reason put forward by the complainant for granting the extension amounts to "reasonable cause". Accordingly the time period for consideration in relation to the instant case of discriminatory treatment extends back for a period of 6 months from the receipt of the complaint on 11 February 2009. This does not, however, prohibit the complainant from establishing an act of discrimination within the time period or from arguing that a chain or pattern of discriminatory treatment is connected thereto.
5.5 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".
5.6 In the instant case, during the complainant's oral evidence he made reference to having to work long hours and not being paid overtime. Copies of timesheets and payslips for the complainant were submitted by the respondent covering the periods form 2007 and 2008. When taken into account, the documentary evidence does not support the complainant's contention that he had to work long hours and was not paid overtime.
5.7 In writing before the hearing, the complainant made allegations against his manager, Mr X, that he made a reference to effect that if the complainant did not like the work he should return home to Slovakia. Mr X gave evidence that he thought that the complainant was Polish so why would be tell him to go back to Slovakia. When cross-examined by counsel for the complainant about not knowing where his colleague came from, Mr X stated that he didn't care where any of the lads came from, that he treated them "all the same" and that even now he wasn't aware where most of the sixty or so drivers came from. Mr X also confirmed that he only became aware of the complainant's nationality in the run up to the hearing.
5.8 During the hearing the complainant made allegations that another manager, Mr Y, abused him and treated him in a discriminatory fashion. It was put to the complainant that he had never raised these allegations before either during the submission of statements to the Tribunal, in his original complaint form or by way of the respondent's grievance procedure. In response the complainant stated that he was afraid to make any complaint before.
5.9 Having considered the evidence presented to me, I am not satisfied that the complainant has credibly established, in the first instance, facts from which discrimination may be inferred. Accordingly, no prima facie case has been established such as to shift an onus onto the respondent to rebut an inference of discrimination raised.
6. DECISION
6.1 The complainant withdrew the elements of the complaint that related to discriminatory dismissal and victimisation. Therefore I am not in a position to investigate these matters.
6.2 It is my decision that the substitution of names of other comparators on the date of the hearing for the comparator previously named, would amount to the submission of a fresh equal remuneration complaint on that date. On this basis, I note that the complainant indicated that he would not be proceeding with the equal pay complaint in these circumstances.
6.3 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the race ground has not been established and this element of the complaint fails.
Conor Stokes
Equality Officer
5 March 2012