EDA1319

This matter came before the Court by way of an appeal by Supermac’s Ireland Limited against the decision of the Equality Tribunal in a claim by Rahim Molhinamiah under the Employment Equality Acts 1998-2011 (the Act) The claim relates to alleged discrimination in respect to working conditions and victimisation. The claims were made on the grounds of race and disability.

The parties are referred to in this Determination as they were at first instance. Hence Supermac’s Ireland Limited is referred to as the Respondent and Mr Molhinamiah is referred to as the Complainant.

A firm of solicitors was on record as representing the Complainant. The firm of solicitors were advised of the date, time and place at which the appeal would be heard. Prior to the hearing a representative of the firm of solicitors informed the Court that it had been unable to contact the Complainant and that it no longer had instructions in the matter. The Complainant did not attend the hearing.

The Complainant had made a number of complaints alleging discriminatory treatment in respect of his working conditions and victimisation. All of these complaints, save one, were dismissed by the Equality Tribunal. The Equality Tribunal did find that the Complainant had suffered discrimination by reason of the withdrawal of an allowance of €25 per week in respect of additional duties and the withdrawal of a night duty allowance.

The Complainant was awarded compensation in the amount of €4,000. In this regard the Respondent appealed against the Equality Tribunal’s decision. There was no cross appeal by the Complainant.

Consequently, the only matter before the Court relates to the finding by the Equality Tribunal that the Complainant was discriminated against in relation to the payment of the aforementioned allowances.

Position of the Respondent

The Respondent submitted that the claim in relation to these payments is properly classified as an equal pay claim within the meaning of s.29 of the Act. No such claim was presented to the Equality Tribunal. Moreover, the Respondent told the Court that this claim had not been raised in the originating form submitted to the Equality Tribunal and that the matter first arose in the course of the hearing. In these circumstances the Respondent submitted that the Equality Tribunal erred in treating the complaint as one of equal treatment in respect of working conditions.

Conclusion of the Court

It is clear to the Court that in so far as the complaint considered by the Equality Tribunal related to elements of remuneration it could only be dealt with under s.29 of the Acts and could not be treated as discrimination in terms of conditions of employment. Furthermore, the Court accepts, on the uncontested submissions on behalf of the Respondent, that the events giving rise to this claim were first raised in the course of the hearing before the Equality Tribunal.

The decision inCounty Louth Vocational Educational Committee v The Equality Tribunal and Pearse BranniganUnreported, High Court , McGovern J. 24 July 2009 is authority for the proposition that a form used to initiate a claim before the Equality Tribunal can be amended provided the nature of the claim remains the same. A claim for equal pay is a substantially different claim to one of discriminatory treatment. In these circumstances the claim submitted to the Equality Tribunal by the Complainant could not be amended to include a claim for equal pay.

In these circumstances the decision of the Equality Tribunal cannot stand and must be set aside.

Determination

The appeal is allowed and the decision of the Equality Tribunal is set aside

Signed on behalf of the Labour Court



Kevin Duffy
19th June 2013______________________
AHChairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.