EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-025
PARTIES
Marcin Nowakowski, Jan Trocuwicz and Jurjis Tihonous
(Represented by SIPTU)
AND
Clonlara Wholesalers
(Represented by Peninsula Business Services)
File reference: EE/2014/257, EE/2014/256 & EE/2014/255
Date of issue: 22nd February 2016
1. Background to Claim
1.1 This dispute concerns a claim by Marcin Nowakowski, Jan Trocuwicz and Jurjis Tihonous (hereinafter the “Complainants”) that they were discriminated against via their terms and conditions of employment by being paid a lower rate of pay than other staff doing similar work at Clonlara Wholesalers (hereinafter the “Respondent”) on the grounds of their Race contrary to the Employment Equality (hereinafter the “Acts”)
1.2 The Complainants referred their claim to the Director of the Equality Tribunal on 12th February 2014 under the Acts. On 6 October 2015 in accordance with his powers under section 75 of the Acts, the Director General of the Workplace Relations Commission delegated the case to me, Caroline McEnery, an Adjudicator, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79 (1) of the Acts and as part of my investigation we informed both parties by letter sent registered and ordinary post that we had scheduled a hearing for 9th December 2015. The Complainant and the Respondent attended the hearing along with their representatives.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with Section 83 (3) of the Workplace Relations Act 2015.
2. Summary Of The Complainant’s Case
2.1 The Complainant’s roles and associated rate of pay were as follows:
Name: Marcin Nowakowski
Commencement Date: 8th August 2005
Nationality: Polish
Title: Driver
Rate: €11 per hour
Hours: 40 hours per week
Name: Jan Trocuwicz
Nationality: Polish
Commencement Date: 20th November 2006
Title: Cleaning/Helper
Rate: €8.65 per hour
Hours: 40 hours per week
Name: Jurjis Tihonous
Nationality: Latvian
Commencement Date: 1st August 2010
Title: Picker
Rate: €8.65 per hour
Hours: 40 hours per week
2.2 Each Complainant gave evidence that they were being paid at a lower rate in comparison to a number of comparators within the Company, some of whom were hired after they were while there was a pay freeze in place within the Company.
2.3 All Complainant’s state they have been treated less favourably than their Irish counterparts, in relation to their terms and conditions of employment. Mr. Tihonous referenced an incident which occurred shortly after he was hired where a manager picked him out of a group of staff in the store to ask why he was not working. No other staff members were spoken to in that manner. Mr. Nowakowski stated that his truck was often overloaded and he was required to do double shifts on public holidays and he was not provided with a helper. Mr. Trocewicz claimed that he was constantly required to engage in the heaviest work which resulted in chronic back pain.
2.4 The Complainants stated that they were shouted at by management and that they were subjected to abusive language on occasion.
2.5 The Complainants also stated that they experienced difficulties when applying for annual leave.
2.6 The Complainants also stated that they were denied a copy of their contracts of employment in their native language despite a specific request for same.
2.7 The Complainants have all submitted information in relation to the rate of pay other staff in the Company are in receipt of. The Complainants have stated that they consider these people to be comparators.
3. Summary Of The Respondent’s Case
3.1 The Respondent replied to each Complainant’s case individually:
3.2 Mr. Marcin Nowakowski:
3.2.1 It is the Respondent’s position that the Complainant was issued with his terms and conditions of employment but refused to sign them. The Respondent states that the Union Representative of the Complainants stated that the employees were not signing the contracts therefore it was not necessary to translate them as they only wanted a verbal contract in place.
3.2.2 The Complaint submitted a written request regarding an increase of pay. Mr. Lombard met with the Complainant to explain that there was a company-wide reduction in hours and a reduction in the workforce, therefore, the Company was not in a position to increase his salary. A grievance meeting was then arranged which the Complainant was invited to bring representation to, however, his union representative was not available on the day.
3.2.3 The Complainant submitted his resignation citing unfair treatment.
3.2.4 The Company invited the Complainant to a meeting, he raised no issue other than his rate of pay.
3.2.5 With regard to any claim of unfair treatment or inappropriate behaviour, the Complainant has failed to provide any specific dates of such incidents and he never raised such issues with management.
3.2.6 With regard to the Complainants’ claim regarding equal pay it is the Respondents position that while the comparators used to complete duties similar to the Complainant’s the following applies; one is an Irish national with longer service than the Complainant and is in receipt of a lower rate of pay than the Complainant, the other comparator is paid a rate which is inclusive of overtime while the Complainant receives an overtime rate in addition to his basic rate.
3.3 Mr. Jan Trocuwicz:
3.3.1 The Complainant never requested his contract in his native language. The Respondent states that the Union Representative of the Complainants stated that the employees were not signing the contracts therefore it was not necessary to translate them as they only wanted a verbal contract in place.
3.3.2 With regard to any claim of unfair treatment or inappropriate behaviour, the Complainant has failed to provide any specific dates of such incidents.
3.3.3 It is also stated by the Respondent that the Complainant failed to use the internal grievance procedure to bring such issues to light.
3.3.4 With regard to the Complainant’s claim for equal pay the Respondent states that the comparators used were not appropriate as those comparators were not hired to complete like duties to the Complainant.
3.3.5 It was also stated by the Respondent that the comparators variation in pay was objectively justifiable in so far as they were longstanding employees of the Company who had over the years of employment received pay increases.
3.4 Mr. Jurjis Tihonous:
3.4.1 The Complainant never requested his contract in his native language. The Respondent states that the Union Representative of the Complainants stated that the employees were not signing the contracts therefore it was not necessary to translate them as they only wanted a verbal contract in place.
3.4.2 With regard to the Complainant’s complaint regarding being spoken to inappropriately approximately three years ago the Act states that a complaint must be lodged within 6 months of the date of occurrence therefore this opportunity to include this item in the complaint has now passed. Notwithstanding this fact the Respondent denies speaking in an inappropriate manner to the Complainant.
3.4.3 With regard to the Complainant’s claim for equal pay the Respondent states that one of the comparators referred to does not complete the same duties as the Complainant and one comparator has significantly more service with the Company than the Complainant.
4. Conclusions Of The Equality Officer
4.1 Section 85(A) of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which they can rely in asserting that prohibited conduct has occurred in relation to them. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainants. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
4.2 Contract of Employment Translated: Regarding the requirement to translate the contract of employment the Complainants were represented by a Union Representative. The Union Representative confirmed the Complainants were not signing their contracts and wanted only a verbal contract in place. If the Complainants wanted a copy of their written contracts in their native language this could have been formally requested as the Complainants raised other matters in a similar manner.
4.3 Unequal Working Conditions and Treatment: The evidence provided was not specific regarding dates of when these incidents occurred to ensure the dates were within required timeframes and so could have been explored and replied to fully. No grievances were raised at any stage by the Complainants or their union in relation to these allegations associated with race discrimination. The evidence provided for at the hearing was not substantiated by specific dates of incidents and objective proof or witnesses.
4.4 Equal Pay: The Respondent provided objective grounds regarding the reasons for different pay for the comparators presented by the Complainants who were on higher rates. In addition, there was a pay freeze also in place and there was no obligation on the Company to implement a pay increase.
5. Decision
5.1 In accordance with Section 25(4) of these Acts, I conclude this investigation and issue the following decision:
5.2 The issues for decision in this case are whether the complainant and their comparators are engaged in like work as defined in Section 7(1)(a) or (b) of the Acts, and if so, whether there are grounds other than their race i.e. different nationalities for the difference in their remuneration to establish if they were treated different via their terms and conditions of employment also.
5.5. Based on all of the evidence provided, I find, pursuant to Section 79(6) of the Acts and Section 41 (5) (a) (iii) of the Workplace Relations Act 2015, that the Complainants in this case have not been discriminated against based on their race and they have not discharged their required burden of proof to prove the discrimination occurred so the claim has failed.
____________________
Caroline McEnery
Adjudication Officer/Equality Officer
22nd February 2016