The Equality Tribunal
Employment Equality Acts
Decision DEC-E2013-146
PARTIES
Valerijus Zubrickas
(Represented by Richard Grogan and Associates)
- V -
McSweeney Building & Civil Engineering Ltd.
File references: EE/2010/127
Date of issue: 13 November 2013
Keywords - Employment Equality Acts – Discriminatory Treatment – Discriminatory Dismissal - Equal Pay - Race – Prima Facie Case
1. DISPUTE
1.1 This dispute concerns a claim by the complainant that he was subjected to discriminatory treatment 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), 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 24 February 2010 under the Employment Equality Acts. On 7 June 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 27/ June 2012. Additional information relating to various elements of the complaint was received from both parties up to 5 November 2013. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SCOPE OF THE COMPLAINT
2.1 During the course of the hearing, it was submitted on behalf of the complainant that the dismissal element of the case was “declined to be heard by the Rights Commissioner” and was “withdrawn from the Labour Court”. However, upon receipt of the relevant documentation, it is apparent that the Rights Commissioner issued a recommendation under the Unfair Dismissals Act, 1977 in relation to this matter.
2.2 Section 104(4) of the Acts states, inter alia, that “An employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if … (b) in the exercise of powers under the Unfair Dismissals Acts 1977 to 1993, a rights commissioner has issued a recommendation in respect of the dismissal.”
2.3 As a recommendation in respect of the dismissal to hand has been issued by a rights commissioner, I am not in a position to consider the dismissal element of the complaint any further.
2.4 Therefore, this investigation shall confine itself to the issues of discriminatory treatment and Equal Pay.
3. SUMMARY OF THE COMPLAINANT'S CASE
3.1 The complainant is a Lithuanian national and was employed by the respondent in the construction industry.
3.2 The complainant submitted that he did not receive a proper contract of employment, nor any contract at all. The complainant submitted that he did not receive any proper Health and Safety documentation or training.
3.3 The complainant submitted that he was not paid the same rate as four named comparators. In addition, the complainant submitted that he had to work an additional hour a day without pay, that he was not paid for Public Holidays and that he did not receive payslips nor holiday pay.
3.4 The complainant submitted that he was not paid in accordance with the Registered Employment Agreement for the Construction Industry
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent did not submit any documentation in advance of the hearing.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent subjected the complainant to discriminatory treatment 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 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 raised.
Equal Pay
4.3 At the hearing of this complaint, the complainant clarified that he received €10 per hour and provided a number of P45’s and a P60 to that effect. The complainant stated that he did not know how much the comparator’s were being paid but alleged that on one occasion, one of the comparators remarked that he “gets much less compared to us” but never mentioned a figure as to how much they were being paid. The complainant was not in a position to say when this incident took place. The complainant’s representative submitted that it had sought information from the respondent using the EE2 form provided for in the Tribunal’s procedures and that no answer was given. I note however that nowhere in the EE2 form submitted was the respondent asked for details regarding the remuneration paid to others. The complainant’s representative conceded that as regards to equal pay, there was “no evidence other than what is there”.
4.4 The respondent company has ceased trading, however it remains a registered entity. One of the Directors of the company attended the hearing and gave credible evidence to the Tribunal to the effect that although the company’s accounts had been computerised, this information was no longer accessible to him and he was not in a position to provide remuneration data for any former employees. In the circumstances he stated that he accepted the complainant’s contention as to how much he was paid, but could not indicate how much any of the comparators were paid.
4.5 In the case of IBM Ireland Product Distribution Ltd and Michelle Svoboda (EDA1116) the Labour Court stated that it has “consistently found that mere allegations unsupported by any corroborative evidence are insufficient to establish a prima facie case and so transfer the burden of proof” and went on to cite its earlier decision in Melbury Developments Ltd v Valpeters (EDA 17/2009) where it stated that “mere speculation or assertion, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”. In the circumstances of this case, the complainant has not provided corroborative evidence to support his contention that he was treated differently on the basis of his nationality. Therefore, this element of the complaint must fail.
Discriminatory Treatment
4.6 The complainant stated that he did not receive any payslips, the respondent confirmed this and stated that no-one got payslips and this account was not disputed by the complainant. In relation to the health and Safety documentation, the respondent stated that the site manager, Mr X who spoke Russian (one of the complainant’s four languages) explained everything, and furthermore each employee had to have their “safety Pass” to work on site, which means that they would have undergone the relevant health and safety courses. The complainant did not dispute this account either.
4.7 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, this element of the complaint fails.
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 that there is a 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