DEC-E2013-037- Full Case Report

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision DEC - E2013 - 037

PARTIES

Mr Juris Pilups, Mr Romans Vasiljevs and Mr Igor Gorsa (represented by Richard Grogan and Associates, Solicitors)

and

Kielys Distribution Ltd (in liquidation)

File References: EE/2011/483-485
Date of Issue: 9th May 2013

Keywords: Race - discriminatory treatment - equal pay

1. Claim

1.1. The case concerns claims by Mr Juris Pilups, Mr Romans Vasiljevs and Mr Igor Gorsa that Kielys Distribution Ltd (in liquidation) discriminated against him/her on the ground of race contrary to Section 6(2)(h) of the Employment Equality Acts 1998 to 2011, in terms of conditions of employment and the right to equal remuneration with Irish comparators.

1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 8 June 2011. A submission was received from the complainant on 9 December 2011. Copies of documents with regard to staff pay were was received from the respondent's liquidator on 26 January 2012. On 19 March 2013, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 10 April 2013.

2. Summary of the Complainant's Written Submission

2.1. The complainants are Latvian, and worked for the respondent company as drivers. They allege that they were paid less than their Irish comparators, and that they were required to work more hours than their Irish comparators.

3. Summary of the Respondent's Written Submission

3.1. The respondent is in liquidation. The respondent's liquidator assisted the Tribunal by forwarding pay information with regard to the complainants and also Irish staff in the respondent's employment.

4. Conclusions of the Equality Officer

4.1. The issues for decision in this case are whether the complainants were discriminated against, in their conditions of employment and their right to equal remuneration, within the meaning of the Acts.

4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.

4.3. Mr Gorsa did not attend the hearing of the complaint, and was uncontactable by his solicitor or anyone else on the morning of the hearing. His solicitor accepted that his complaint would therefore fail for want of prosecution.

4.4. Mr Vasiljews and Mr Pilups are Latvian nationals and worked for the respondent as drivers. They both gave credible evidence as to their conditions of employment, while employed by the respondent. They stated that unlike them, their Irish colleagues only worked day shifts, and were never asked to work on Saturdays. Mr Vasiljews and Mr Pilups would be asked with just 24 hours notice to work nights or Saturdays. They also credibly stated that the Irish drivers had a helper for loading and unloading their trucks, regardless of the fact that the Irish drivers also drove more modern trucks, so-called "electric pallet trucks", which were easier to load and unload with less physical labour. Mr Vasiljevs stated that on occasion, his back muscles were so strained from the physical effort of loading and unloading his more old-fashioned truck, that he had to stay away from work for a few days to rest. He would not be paid for those days, so essentially lost income as a result of his less favourable conditions of employment. Mr Pilups made no such specific claim; however, I am satisfied that both complainants are entitled to succeed in their complaints of discrimination in their conditions of employment.

4.5. Turning to their complaint regarding equal pay, it is clear from the evidence of the complainants that both they and their Irish counterparts worked as truck drivers for the respondent. Since the respondent's liquidator did not contest the case, I am willing to accept that they performed "like work" with their respective comparators within the meaning of the Acts. However, from a table submitted by the liquidator, which sets out all workers at the company, their names, starting dates, positions and pay, a more complex picture emerges. Mr Vasiljevs is listed as "Artic Driver". There were four drivers with those duties, and the only Irish driver, Mr C., earned significantly more than the three non-Irish national drivers. Mr. C. was taken on in September 2005, and earned €19.73 per hour. Two non-Irish national driver who were taken on a year later were paid only €10.66 and €11.28 per hour, respectively. Mr Vasiljevs, who stated that he was on the books from July 2009, but de facto started working for the respondent two years earlier, earned €10.50 per hour. This pay differential is so marked, and so obviously connected to the workers' nationality, that it cannot satisfactorily explained by seniority, since the complainant's two non-Irish national colleagues had only a year less seniority than Mr C., yet earned significantly less than him, and only barely more than Mr Vasiljevs. I am therefore satisfied that Mr Vasiljevs is entitled to succeed in his complaint about his right to equal remuneration pursuant to S. 29 of the Acts. The details are set out in the table below:

4.6. Mr Pilups, on the other hand, is listed in the table as "driver", and while there is an Irish comparator, Mr D., who is also a driver and who at €15.89 per hour earned significantly more than Mr Pilups, there are also three Irish drivers, who started around the same time as Mr Pilups, and who, like him, earned only €10.50 per hour. One of these, Mr H., started work on the very same day as Mr Pilups, and is listed by Mr Pilups as one of his comparators. I find the fact that Mr H. earned the same hourly wage as Mr Pilups to be fatal to Mr Pilups's claim that the differences in remuneration are based on race in the category of worker in which he himself is listed. Accordingly, his complaint for equal remuneration can not succeed.

5. Decision

5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Kiely's Distribution Ltd. (in liquidation), discriminated against Mr Romans Vasiljevs and Mr Juris Pilups in their conditions of employment contrary to S. 8(1) of the Acts, on the ground of race. I also find that the respondent discriminated against Mr Vasiljevs with regard to his right for equal remuneration on the ground of race, contrary to S. 29 of the Acts.

5.2. I therefore order, in accordance with my powers under section 82 of the Employment Equality Acts, 1998-2011, that the respondent pay Mr Vasiljevs and Mr Pilups each €7,500, or slightly more than three months' pay, in compensation for the discrimination suffered in their conditions of employment. These awards are not in the nature of pay and therefore not subject to tax.

5.3. I further order that the respondent pay Mr Vasiljevs the same hourly rate of basic remuneration as that paid to the comparator Mr Michael C. for the period from 6 July 2009 until the end of Mr Vasiljevs's employment in the respondent company. The calculation of these arrears should take account of any increases paid to both parties, and is to include any other rights, entitlements and benefits Mr Vasiljevs would have been entitled to. This part of Mr Vasiljevs's award is in the nature of pay and therefore subject to tax.

5.4. With regard to the complaint by Mr Igor Gorsa, I am obliged to hold a hearing as part of my investigation under Section 79 of the Act. I find that his failure to attend such a hearing was unreasonable in the circumstances and that any obligation under Section 79 has ceased. As no evidence was given by him at the hearing in support of his allegations of discrimination I conclude the investigation and find against Mr Gorsa.

______________________
Stephen Bonnlander
Equality Officer
9 May 2013