DEC-E2013-134

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

DEC-E2013-134

Kazimierz Wrzosek, Krysztof Mantenko and Henryk Banach

(represented by Blazej Novak)

versus

Bocnara Ltd

File reference: EE/2010/307, EE/2010/308 and EE/2010/375
Date of issue: 21st October 2013

Keywords: Employment Equality Acts, Race, Training, Conditions of Employment

Dispute

1.1. The case concerns claims by three Polish Nationals - Kazimierz Wrzosek, Krysztof Matenko and Henryk Banach - against Bocnara Products Ltd. Their claim is that they were discriminated against in relation to training and conditions of employment contrary to 6(2)(h) of the Employment Equality Acts 1998 - 2011 [hereinafter referred to as 'the Acts'] on the grounds of race. Discriminatory pay is also claimed.

1.2. Through their legal representative, the complainants referred their complaints under the Acts to the Director of the Equality Tribunal on 26th April 2010. On 10th August 2012, in accordance with her powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, 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. Written submissions were received from the complainants' representative and a hearing was held on 12th September 2012 as required by Section 79(1) of the Acts.

Preliminary issue - Non-attendance of Kazimierz Wrzosek

2.1 The Tribunal notified the parties of the date of the hearing, by registered post and ordinary post, on 13th June. I am satisfied that all reasonable efforts had been made to inform all three complainants of the hearing. However, one complainant, Kazimierz Wzosek did not attend the hearing. In the light of the foregoing and in accordance with Section 79(6) of the Act I issue the following decision:

2.2 As part of my investigation under Section 79 of the Act, I am obliged to hold a hearing. I find that the failure of Kazimier Wrzosek to attend such a hearing was unreasonable in the circumstances and that any obligation under Section 79 has ceased. As no evidence was given at the hearing in support of the allegation of discrimination in relation to him, I conclude the investigation of their complaints and find against the complainant Kazimierz Wrzosek.

Summary of the complainants' case

3.1 They maintain that they were treated less favourably because they were Polish. Their contracts were in English rather than Polish. They submit that they had to work long hours with insufficient breaks and that it was hard work. The Irish were given the easy jobs while they had to do the more demanding tasks like laying footpaths and kerbing.

3.2 Cases cited were Khumalo v Cleary and Doyle¹ , Campbell Catering Ltd and Aderonke Rasaq² , Zhang v Towner Trading³ , Golovan v Porturlin Shellfish Ltd⁴.

Summary of the respondent's case

4.1 In relation to Mr Makento the respondent states that he commenced employment on 2nd April 2006 as a General Operative. He was made redundant on 10th August 2009 due to the downturn of the construction sector. When he commenced working with the respondent, he did not even have a SafePass - an essential to working in the Construction Industry. The respondent submits that the onus is on the employee to obtain a SafePass but they paid for Mr Makento to undergo the training course to obtain same.

4.2 Regarding Mr Banach he also was employed as a Ground Operative. He began employment with the respondent on 18th April 2005 and he was made redundant for the same reason as Mr Makento on 10th September 2009. In October 2008, the respondent submits that they welcomed him back to work after recuperating from a minor heart attack He also benefited from the SafePass training.

4.3 The respondent submits the relevant payslips to show that two of the Irish comparators named were paid the same as the two complainants. The respondent states that the third comparator received an on-call allowance as he was regularly called out in the evenings to deal with unforeseen problems.

4.4 Following being made redundant, the complainants made numerous complaints to various employment fora. The respondent compromised the claim on 31st August 2009. The complainants signed it willingly and received €5000 each.

Conclusions of the Equality Officer

5.1 Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is race. The issues for me to decide are:
a. Were the complainants discriminated in relation to conditions of employment on ground of race in terms of 8(1)(b) of the Acts?
b. Were the complainants discriminated in relation to training on ground of race in terms of 8(1)(b) of the Acts?
c. Whether the complainants are entitled to equal pay in accordance with Section 29 (1) of the Acts?

5.2 In evaluating the evidence before me, I must first consider whether the complainants have established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:

Section 85A of the Act provided for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.⁵

5.3 Before turning to the substantive issues, I must examine whether I am entitled to investigate this complaint as the respondent states that they have already compromised it. The caselaw indicates that the terms of a waiver must be construed against the party from whom it emanated and where there is doubt; the course of the negotiations between the parties must be examined so as to ascertain what was intended ⁶. The waiver stated that:

"The following named complainants withdraw their claim under Section 32 of the Industrial Relations Act 1946 as amended - the said complaint is due for hearing before the Labour Court in Portlaoise on the 1st September 2009. In consideration the respondent Bocnara Ltd will lodge to the personal account of each of the claimants the net sum of €5,000 in full and final settlement of this claim"

I do not think the complainants intended to waive their rights under the Employment Equality Acts. To compromise all claims, the respondent would have been prudent either to list all the Acts there were claims against them in the disclaimer or use a phrase like 'full and final settlement of ALL claims in relation to their employment and termination thereof with Bocnara Ltd'. Therefore I am entitled to examine Mr Matenko's and Mr Banach's complaint under the Employment Equality Acts.
Conditions of employment

5.4 Regarding conditions of employment, Section 8(6)(c) of the Acts states that an employer shall be taken to discriminate against an employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee the same treatment [my emphasis] in relation to overtime, shift work, short time transfers layoffs, redundancies, dismissals and disciplinary measures as the employer offer or affords to another person where the circumstances in which both such persons are employed are not materially different.

5.5 The complainants have adduced no evidence to support an argument that they were treated less favourably than any other employee was or would have been treated in similar circumstances. The examples they cite of alleged discriminatory treatment by their former employer are long and intense working days with insufficient breaks. These are complaints shared by many employees of various nationalities in a variety of workplaces. It appears that the Irish and employees of different nationalities also had to work long hours and engage in physically hard work. For these reasons, I cannot accept that the complainants were discriminated regarding their conditions of employment on the ground of race.
Training

5.6 No evidence was adduced that the complainants were treated less favourably in relation to training. In fact it could be argued that they were treated more favourably than their Irish counterparts as a SafePass is usually a prerequisite to commencing work in the construction sector. The Respondent stated that all their Irish employees had SafePass before they started work with them. In the case of the two complainants, the respondent paid for their SafePass training after they became employees. Therefore, they failed to establish a prima facie case of discrimination on the grounds of race.

Equal Pay
4.6 The respondent presented documentary evidence that two of the comparators received the same salary as the complainants. Therefore their equal pay case fails in relation to these comparators. The third comparator received an 'on call' allowance. This is clearly documented in the payslips. Therefore, the respondent is entitled to the 'grounds other than' defence as per Section 29 (5) of the Acts.

Decision

I have concluded my investigation of the complaints of Krysztof Matenko and Henryk Banach and hereby make the following decision in accordance with Section 79(6) of the Act. I find that
(i) The respondent did not discriminate against Krysztof Matenko and Henryk Banach regarding their conditions of employment on the ground of race.
(ii) The respondent did not discriminate against Krysztof Matenko and Henryk Banach regarding their conditions of employment on the ground of race.
(iii) Krzysztof Matenko and Henryk Banach are not entitled to equal remuneration with either of the comparators

________________
Orlaith Mannion
Equality Officer

Footnotes:

¹ Equality Tribunal DEC-E2010-003
² Labour Court Determination No. EED048
³ Equality Tribunal DEC-E2008-001
⁴ Equality Tribunal DEC-E2008-032
⁵ Labour Court Determination No. EDA0917
⁶ DEC-E2011-083 5 complainants v Hospira

Appendix- Details of claim