The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2013-107
PARTIES
Aivaras Juchnevicius and Robertas Preiksaitis
(Represented by Richard Grogan & Associates)
AND
Comerford Developments (Ireland) Ltd
File reference: EE/2011/511, EE/2011/512
Date of issue: 10 September 2013
Headnotes: Employment Equality Acts - section 7 - conditions of employment - equal pay - race
1. DISPUTE
1.1 This dispute involves claims by Mr Aivaras Juchnevicius and Mr Robertas Preiksaitis that they were discriminated against by Comerford Developments (Ireland) Ltd in relation to conditions of employment contrary to section 8 of the Employment Equality Acts on the grounds of race contrary to section 6 of the Employment Equality Acts and that they performed "like work", in terms of section 7 of the Employment Equality Acts with a named comparator and are entitled to equal remuneration in accordance with section 29 of the Acts.
1.2 Both complainants referred their claims under the Employment Equality Acts to the Equality Tribunal on 22nd June 2011. On 6th June 2013 in accordance with his powers under the Acts the Director delegated the complaint to the undersigned, Peter Healy, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on14th June 2013. The respondent did not make a written submission and did not attend the hearing.
2. SUMMARY OF THE COMPLAINANTS WRITTEN SUBMISSIONS
2.1 They submitted that they were not issued with any contracts of employment. Also, that they were not given health and safety documentation or training.
2.2 The complainants, both Lithuanian nationals, submit that they were paid less then a specific named comparator Mr A, an Irish national who, they stated, carried out like work.
2.3 The respondent failed to comply with the Registered Employment Agreement for the Construction Industry.
3. SUMMARY COMPLAINANTS EVIDENCE AT THE HEARING
3.1 The complainants submitted that they both worked as construction workers for the respondent as part of a team of twelve, building private residences.
3.2 They did not know how much the Irish workers were paid.
3.3 They were treated the same as the Irish construction workers.
3.4 At the hearing both complainants were questioned separately and both stated that it was fair that the named comparator, Mr A, should have been paid more then them as
- He was their supervisor who allocated work to them and checked their work
- He had more responsibility and carried out completely different managerial role.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainants were discriminated against in relation to conditions of employment and if they performed "like work", with the named comparator and are entitled to equal remuneration. In reaching my decisions I have taken into account all of the submissions, oral and written, made to me by the complainants in the course of my investigation as well as their evidence presented at the hearing. Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.
4.2 The complainants contend that they were not issued with contracts of employment. Also, that they were not given any health and safety documentation or training. In Melbury Developments v Arturs Valpetters1 the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case 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". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule". In the instant case, the complainants did not present any evidence to support their claim that others were issued with documentation that they were not. Their evidence was that the employees were of a number of different nationalities and all were treated in the same manner and had the same work conditions.
4.3 In relation to equal pay the evidence at hearing given by the complainants directly contradicted their written submissions. The written submissions are therefore clearly speculation unsupported by evidence. At the hearing the complainants stated that the named comparator deserved to have been paid more then them and gave a detailed account of their own work and his. The complainants have established that the named comparators' work was not interchangeable, of a similar nature or equal in value to their work as in terms of section 7 of the Acts.
5. DECISION OF THE EQUALITY OFFICER.
5.1 I have investigated the above complaints and make the following decisions in relation to the complainants in accordance with section 79(6) of the Acts that:
- Mr Aivaras Juchnevicius was not discriminated against by the respondent in relation conditions of employment or equal pay.
- Mr Robertas Preiksaitis was not discriminated against by the respondent in relation to conditions of employment or equal pay.
_____________________
Peter Healy
Equality Officer
10 September 2013
Footnotes:
1 EDA 0917