The Equality Tribunal
Employment Equality Acts
Decision DEC-E2013-145
PARTIES
Krystian Matuszczak
(Represented by Brendan Archbold)
- V -
DSG Packaging Ltd.
(Represented by E.S.A. Consultants)
File references: EE/2010/264
Date of issue: 13 November 2013
Keywords - Employment Equality Acts – Discriminatory Treatment – Harassment – Discriminatory Dismissal - Equal Pay - Race
1. DISPUTE
1.1 This dispute concerns a claim by the complainant that he was subjected to discriminatory treatment, harassment and discriminatory dismissal by the respondent on the grounds of race and that the respondent breached the principal of Equal Remuneration in terms of Sections 6(2), 14A and 29 of the Employment Equality Acts and contrary to Section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 7 April 2010 under the Employment Equality Acts. On 13 July 2012, in accordance with his powers under section 75 of the Acts, the Director then delegated the cases 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 required by Section 79(1) and as part of my investigation, I proceeded to hearing on 17 October 2012. Additional information relating to the Equal Pay elements of the complaint was received up to 3 December 2012. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
1.3 The complainant withdrew the element of the complaint that related to the payment of holiday pay at the oral hearing on 17 October 2012. In addition, the complainant withdrew the names of two of the four named comparators for the purposes of the equal pay claim at the start of the hearing.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant is a Polish national and was initially employed with the respondent through an employment agency on 18 May 2008. On 7 September 2009 the complainant commenced direct employment with the respondent.
2.2 The complainant submitted that was harassed by the employer in relation to carrying out overtime, that he was treated unfavourably in relation to the allocation of work, and that that he didn’t receive any work-related documentation. The complainant also submitted that he was dismissed on the basis of his race. In addition the complainant submitted that he was paid at a lower rate than two named comparators.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent denied that the complainant was harassed in relation to the carrying out of overtime or that he was unfavourably treated in relation to the allocation of work.
3.2 The respondent submitted that the complainant was provided with his appropriate work-related documentation and submitted a recommendation of a rights commissioner to that effect in favour of the respondent and the consequent appeal to the Employment Appeals Tribunal, also in favour of the respondent.
3.3 The respondent submitted that it dismissed on a summary basis and does not deny that proper procedures were not followed. However the respondent submitted that it has dismissed other employees on a summary basis in previous years regardless of their nationality.
3.4 The respondent submitted that the complainant was paid a lower rate of remuneration than the comparators, denied that it breached the principle of equal remuneration and gave a reason for this in that the named comparators and others (including the complainant’s wife who was also Polish) were undertaking duties involving leadership and supervisory roles which the complainant was not.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent treated the complainant in a discriminatory fashion, harassed him, dismissed him on a discriminatory basis, and breached the principle of equal remuneration on the ground of race, in terms of Section 29 of the Employment Equality Acts, and contrary to Section 8 of those Acts.
4.2 Section 85A of the Employment Equality 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 a breach of the principle of equal remuneration 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 the breach raised.
4.3 At the hearing of this complaint, the complainant clarified that when he referred to the equal pay element he was also referring to the fact that he did not get overtime rates for overtime hours. The respondent pointed out that no-one got overtime rates since 21 July 2009 as an alternative to putting staff on short-time. The complainant clarified that the other staff were asked about this measure however he was not. I am satisfied that this issue does not involve equal pay but rather concerns equal treatment and furthermore that as no other staff member was paid overtime rates (but rather all staff, including the complainant were paid a flat rate), the complainant was not less favourably treated when compared to other staff members.
4.4 The complainant outlined the method as to how overtime was allocated and said that staff were only told about the necessity to undertake overtime on a daily basis. From the evidence given at the oral hearing, I am satisfied that overtime was given to all staff in the same fashion and accordingly the complainant was not less favourably treated than any other staff member.
4.5 In relation to the dismissal, the complainant gave evidence that he was summarily dismissed on an unfair basis. In its evidence the respondent conceded that it dismissed the complainant in summary fashion but noted that its managing director had previously dismissed other employees of various nationalities on a similar basis. This version of events was not challenged by the complainant and accordingly I am not satisfied the complainant was treated less favourably than any other staff member.
4.6 Having regard to the foregoing, I am not satisfied that the complainant has established facts from which an inference of 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 the breach raised. As the complainant has not established a prima facie case in relation to the foregoing matters, these elements of the complaint fail.
Equal Pay
4.7 At the hearing, the complainant outlined that he was not paid the same as two named comparators. The complainant was employed as a line operator. The first and second named comparators were employed as warehouse operatives. Both comparators were paid at a higher rate than the complainant.
4.8 The respondent did not concede like work and submitted that there were grounds other than the one complainant of for this pay differential – that the comparators were in a position of higher responsibility than the complainant, i.e warehouse operative. In addition, the respondent submitted that it employed a number of warehouse operatives at that rate of pay and that a sizable proportion of them were Polish (including the complainants spouse), the same nationality as the complainant and therefore and difference in pay must relate to a ground other than race.
4.9 The complainant submitted a list of its staff, together with the relevant rates of pay for each staff member. Having regard to this list it is apparent that just over one third of warehouse operatives are Polish and are paid at the higher rate of pay. Therefore, I am satisfied that there are grounds other than race which account for the pay differential between the complainant and the named comparators and this element of the complaint must fail.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that the complainant has not established a prima facie case of discriminatory treatment on the race ground and, therefore, this element of the complaint fails.
5.2 Having considered all the written and oral evidence presented to me, I find that the complainant has not established a prima facie case of harassment on the race ground and, therefore, this element of the complaint fails.
5.3 Having considered all the written and oral evidence presented to me, I find that the complainant has not established a prima facie case of discriminatory dismissal on the race ground and, therefore, this element of the complaint fails.
5.4 Having considered all the written and oral evidence presented to me, I find that the respondent has established that there are grounds other than race which account for the difference in pay between the complainant and the comparators. Therefore, the case for the breach of the principal of equal remuneration on the basis of the race ground has not been established. Accordingly this element of the complaint must fail.
Conor Stokes
Equality Officer
13 November 2013