The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-032
PARTIES
Ravind Toory
(Represented by Northside Centre for the Unemployed -NCU Ltd )
AND
M3 Tyre Services
(Represented by Butler & Co. Insolvency Practioners)
File reference: EE/2012/159
Date of issue: 18th June 2015
1.DISPUTE
1.1. This dispute concerns a claim by Mr Ravind Toory (hereinafter referred to as “the complainant” that he was discriminated against by M3 Tyre Services (hereinafter referred to as “the respondent.”) on the grounds of race under section 6 of the Employment Equality Acts (hereinafter referred to as the “Acts”) in relation to conditions of employment contrary to section 8 of the Acts and that he performed “like work”, in terms of section 7 of the Acts and that he 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 the 12th March 2012 under the Acts. On the 12th May 2014, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Peter Healy, 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 received from the complainant only. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 6th June 2014.
2. SUMMARY OF COMPLAINANT'S WRITTEN SUBMISSION
2.1. The complainant is a foreign national working on a student visa, his visa allows him to work 20 hours a week during his study period and 40 hours per week during holidays and recess periods. The complainant commenced employment with the respondent on the 2nd May 2008 as a tyre fitter based in Lusk, Co Dublin.
2.2. The complainant submits that between November 2009 and April 2010 that he worked at a location in Swords, Co Dublin and that from from April 2010 to his dismissal on the 2nd September 2011 that he was employed by the respondent as a mechanic.
2.3. The complainant contends that during his time as a mechanic that his duties included maintaining all models of cars, alongside two Irish Mechanics ( Mr N and Mr E) who performed similar duties as the complainant. The complainant submits that another staff member, Mr A, was employed as a general operative. The complainant submits that Mr N’s rate of pay was €13 - €14 per hour, that Mr E’s rate of pay was €12 per hour and that Mr A was paid €10 per hour.
2.4. The complaint submits that while operating as mechanic that he was being paid €9 per hour which was less than the general operative.
2.5. The complainant submits that on the 22nd August 2011 following a verbal dispute with a manager that he was suspended pending further notice. The complainant submits that on the 24th of August the Managing Director summoned him by phone to a meeting at which he was dismissed and handed a letter of dismissal. The Managing Director assured the complainant that his dismissal had nothing to do with the earlier verbal dispute and the letter of dismissal explains that the respondent company needed a full time employee which precluded the complainant due to his student status.
3. RESPONDENT'S SUBMISSION
3.1. The respondent was in liquidation and has made no submission to this Tribunal regarding the complaint. The respondent was represented at the hearing by the liquidators.
3.2. At the hearing the respondent agreed with the complainants account of the locations involved and the names, nationalities and number of comparators. The respondent has confirmed that Mr N was the Senior Mechanic while Mr E was had the title of Mechanic.
3.3. The respondent submits that the complainant was not carrying out the same duties the two named comparators as he was not a qualified mechanic. And offered anecdotal evidence of the operation of the business.
4. FINDINGS & CONCLUSION
4.1. 1 I have to decide if the complainant was discriminated against in relation to conditions of employment and if he performed “like work”, with two named comparators and is entitled to equal remuneration. In reaching my decision, I have taken into account all of the submissions, oral and written, made to me by the complainant in the course of my investigation as well as his direct evidence presented at the hearing. I note that the representatives for the respondent at the hearing were not in a position to present direct evidence, had not been present for any of the events described and therefore could only speculate on the account put forward by the complainant.
4.2. Section 85A of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting the he suffered discriminatory treatment. It is only when those facts have been established and are regarded by an Equality Officer as sufficient to raise an inference of discrimination that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3. In Melbury Developments v Arturs Valpetters [1] 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”. That Court more recently extended this analysis when it affirmed the approach adopted by this Tribunal in Businkas v Eupat Ltd [2]that one of the facts which a complainant must establish is that there was a difference in treatment between him/her and another person who does not possess the relevant protected characteristic, (see Glasgow City Council v Zafar [1998] 2 All ER 953)
4.4. Section 29 (1) of the Act provides that where A and B represent two people of the different nationalities it shall be a term of the contract under which A is employed that A shall at any time be entitled to the same rate of remuneration for the work A is employed to as B who, at that or any other relevant time, is employed to do like work by the same or associated employer. The existence of like work between a complainant and comparator is a necessary condition to any entitlement to equal pay under the Act. Therefore I will first examine whether like work exists between Mr E and the complainant.
4.5. Like work is defined in Section 7 of the Act:
…in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if-
(a) both perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work
(b) 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, or
(c) the work performed by one is equal in value to the work performed by the other having regards to such matters as skill, physical or mental requirements responsibility and working conditions
4.6. In the instant case the respondent is in liquidation and little evidence has been presented on their behalf. At the hearing the complainant gave detailed oral evidence of his work conditions, the duties he performed and the operation of the respondent’s business. The complaint was a very credible, knowledgeable witness and gave detailed evidence of the car maintenance work he carried out (including major mechanical work). Given the small scale of the business, the complaints detailed knowledge of it and taking into account the totality of the circumstances I accept the version of events put forward by the complainant. I find that on the balance of probabilities that three mechanics working in a car servicing garage would have carried out interchangeable work of a similar nature and that the duties carried out by the complainant were of equal value as those carried out by Mr E.
4.7. While the liquidators where only in a position to give limited position to give limited evidence they did not dispute the account put forward by the complainant of the nature of the respondents business, the numbers of employess and the services offered. They did give anecdotal evidence of having used the services of the responded and speculated on the role of the complainant.
4.8. I am satisfied that an Irish person in the same situation as the complainant would have been paid the same rate as Mr E and that the complainant was treated differently because of his race.
4.9. Having heard the account put forward by the complainant I find,
· That on balance of probabilities, taking into account the circumstances the numbers of people and the services offered that the complainant was for the majority of the period between November 2009 and April 2010 carrying out the duties of a mechanic and that like work has been established.
· That he was being remunerated by the respondent at a rate less then that of a general operative and is entitled to equal pay.
· The complainant has established a prima facia case of discrimination on the ground of race and the respondent has not rebutted the inference of discrimination raised.
5. DECISION OF THE EQUALITY OFFICER.
5.1 I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that 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.
5.2 I hereby order that the respondent pay to the complainant arrears of pay, that is the difference between what he was paid and what he would have been paid if he was being paid at the same rate as the named comparator, Mr. E for a period from the 30th April 2010 to the 2nd September 2011 (the difference in the rate of pay being €3.00 per hour, for every hour worked by the complainant.) This is to include any other rights, entitlements or benefits that he would have been entitled to. As this portion of the redress is in relation to remuneration, it constitutes income for the purposes of the Income Tax Acts.
5.3 I hereby order that the respondent pay to the complainant the sum of €5,000 compensation for the effects of the discrimination. This figure relates to compensation for the effects of the discriminatory treatment and does not include any element relating to remuneration (and therefore is not taxable).
____________________
Peter Healy
Equality Officer
18th June 2015
Footnotes
[1] EDA 0917
[2] Arturas Businkas v Eupat Ltd (In Liquidation) EDA103