The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2014-014
PARTIES
Mieczyslaw Marzec
(Represented by Padraig Murphy Solicitor)
AND
Billy Purcell Plant Hire Limited (in liquidation)
(Liquidator Flavien Keily of Irish Liquidations)
File reference: EE/2011/343
Date of issue: 4 March 2014
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 and 8 – Race & Age – Conditions of Employment - Equal Pay.
1. DISPUTE
1.1 This dispute concerns a claim by Mr Mieczyslaw Marzec that he was discriminated against by Billy Purcell Plant Hire Limited on the grounds of race and age contrary to section 6 (2) of the Employment Equality Acts in relation to training, conditions of employment and discriminatory dismissal in terms of sections 8 of the Acts and and that he performs “like work”, in terms of section 7 of the Employment Equality Acts with a named comparator and is entitled to equal remuneration in accordance with section 29 of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 16 March 2011 under the Employment Equality Acts. On 23 April 2013, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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. The respondent advised the Equality Tribunal that they went into liquidation on 23 June 2011 and Irish Liquidations were appointed as Liquidator. A written submission was received from the complainant’s representative but no responding submission was made by the respondent or the liquidator. In accordance with Section 79 (1) of the Acts and as part of my investigation I proceeded to a hearing on 19 September 2013. The Liquidator gave notice in advance that he would not be attending the hearing. In order to assist my investigation I requested information from the Liquidator after the hearing, which was provided. Final information was received on 15 January 2014.
2. COMPLAINANTS' SUBMISSION
2.1 The complainant is Polish. He was earning €500 per week with the respondent and undertook a variety of duties but mainly driving, operating digging machinery and laying bricks. He submits that he had no contract of employment.
2.2 The complainant submits that he was treated worse than employees of other nationalities. He was paid less than Irish employees. He was not paid in accordance with the REA for the Construction Industry, he was not joined into the pension scheme nor the sick pay scheme. There is a legal obligation on the respondent to advise the complainant he was covered by the REA, particularly when the complainant would not have been aware of his rights.
2.3 The complainant submits he was not given documentation in a language he could understand.
2.4 The complainant submits that the correct comparator is a notional comparator, as an Irish national would be aware of their employment law rights.
2.4 The complainant submits he was paid less than two named comparators.
3. RESPONDENT'S SUBMISSION
Neither the respondent or Liquidator made a submission to the Equality Tribunal before the hearing.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 At the hearing the complainant confirmed he was only pursuing his claim in relation to conditions of employment and equal pay on the grounds of race. All other aspects of the claim are withdrawn. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2 The complainant stated at the hearing that his claim in relation to conditions of employment referred to a redundancy payment that was not paid when he left the respondent’s employment. 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. The complainant provided no evidence that he was treated any differently than anyone else in relation to the redundancy payment. I therefore conclude that he is unable to establish a prime facie case of discrimination in relation to conditions of employment.
4.3 In relation to his claim of equal pay the complainant confirmed that he was employed by the respondent from 3 November 2007 until 22 February 2011. He was not provided with a job description or given a job title. He states that he was part of a team of three who went out in a van and dug trenches and manholes for laying cables and telephone boxes, they then laid bricks to house the box and finished by connecting pipes and cables to the boxes.
4.4 He contends that he was paid €545 gross per week, as was a Polish colleague who was on the same team. One of the named comparators (comparator A) was the third member of the team. He was Irish and paid €772 gross per week. No evidence was adduced in relation to the other named comparator.
4.5 The complainant contends that all three members of the team carried out “like” work. The complainant and his Polish colleague drove the van as comparator A did not have the appropriate driving licence. All three shared the digging work on site. The complainant carried out the brick building as comparator A could not build. He conceded that comparator A was nominally in change but he was not a foreman and they all used the digging machinery. He submitted a job description at the hearing setting out these duties.
4.6 On my request the Liquidator provided information after the hearing which included a statement from a Director of the respondent. This information contends that the complainant was paid €600 per week gross. In response the complainant submitted a P60 for 2009 which indicated a gross weekly pay of €556 and a P45 issued in December 2010 indication a gross weekly wage of €545. The complainant also provided a bank statement showing he was paid €500 net into his bank account. It would appear that the complainant and the respondent had an agreement that he was to be paid this net amount. The statement from the Director also indicated that comparator A was paid between €607 and €830 per week gross at different times. This clearly indicates that at all time of the complainant’s employment he was earning less than comparator A.
4.7 The complainant contends that all three members of the team were carrying out like work whilst the statement from the Director indicates that he considered the complainant to be a General Operative who had no certificates or qualifications to operate machinery. Comparator A was considered to be the Team Foreman and machinery operator. Copies of FETAC Certificates in comparator A’s name were submitted in 180° Excavator Operations and 360° Excavator Operations, Signing, Lighting and Guarding at Roadworks, and Location and Avoidance of Underground Services.
4.8 This information was forwarded to the complainant’s representatives for their consideration. They replied that the information confirmed that comparator A was paid considerably more than the complainant. They also denied that comparator A acted as a team foreman and re-asserted that the complainant undertook more duties than the comparator, primarily driving the van and laying bricks. In a further submission the complainant stated that instructions were received every day by collecting the paperwork from the respondent’s office and any member of the team of three would have done it. Also, that the respondent was a subcontractor to Eircom and the respondent’s employees were supervised by an Eircom employee on every site on which the complainant worked. Furthermore, the work was done on Eircom’s instructions and to their satisfaction. If there were any issues in relation to work carried out the Eircom member of staff on the site would have liaised with their management.
4.9 It is the usual practice of the Equality Tribunal to obtain a written submission from the complainant and then to give the respondent an opportunity to make a written response. Then a hearing takes place and the Equality Officer has the opportunity to test the case presented by both parties in direct evidence and this can be further tested in cross examination. In this claim the complainant made a written submission and gave direct evidence at the hearing. However, no written submission was provided by the respondent or Liquidator in advance of the hearing and I have been unable to test the information provided through the Liquidator after the hearing in direct evidence. In these circumstances I will consider all the evidence provided and give it its’ appropriate weight.
4.10 I accept the complainant’s evidence that the team of three carried out similar duties in relation to the digging, even if the comparator was the only one who held certificates to operate the machinery. In the lack of any contradictory evidence I also accept that the complainant and his Polish colleague drove the van and that the complainant laid the bricks. I have evaluated the job description provided by the complainant. It refers to the duties he claims to have undertaken and in the lack of any evidence to the contrary I accept these were his duties. The job description makes no mention of how the team were given instructions on the work they were to undertake or how it was to be carried out or any liaison with management if problems arose. However, this was clarified by the complainant in a written submission after the hearing and I accept his contention that all three members of the team worked equally and essentially were answerable to the Eircom employee on whichever site they were working on.
4.12 The evidence, which is limited given the present position of the respondent, is contradictory but, on the balance of what is available I am not convinced that comparator A was a Team Foreman. I am, therefore, satisfied that the complainant and the comparator carried out work of a similar nature in accordance with Section 7 (1) (b) of the Employment Equality Acts which states: “the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole,” and I conclude that they performed like work and there were no reasons other than race for any difference in pay.
5. DECISION
I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
- the respondent did not discriminate against the complainant in relation to conditions of employment, and
- the complainant does perform ‘like work’ with the named comparator in terms of Section 7 (1) (b) of the Acts and I find that there are no objective grounds other than race for the difference in pay and that the complainant has been discriminated against by the respondent.
I hereby order that the respondent pay to the complainant arrears of pay that is the difference between the complainant's gross pay and the gross pay of comparator A, from three years before the claim was made, 17 March 2008 until the complainant left the respondent's employment on 22 February 2011, in accordance with section 82(1)(a) of the Acts. As this award constitutes remuneration it is subject to PAYE/ PRSI at the appropriate rates.
___________________
Hugh Lonsdale
Equality Officer
4 March 2014