EMPLOYMENT EQUALITY ACTS 1998-2015
Decision DEC – E2016 – 151
PARTIES
Mr Marek Marciniuk (represented by Mr Blazej Novak)
v
Wicklow Recreational Services Ltd. t/a Shoreline Leisure Centre Greystones (represented by LawPlus Solicitors)
File References: et-152342-ee-15
Date of Issue: 10th November 2016
1. Claim
1.1. The case concerns a claim by Mr Marek Marciniuk that Wicklow Recreational Services Ltd t/a Shoreline Leisure Centre Greystones discriminated against him on the grounds of gender and race contrary to Section 6(2)(a) and (h) of the Employment Equality Acts 1998 to 2011, in terms of discriminatory treatment (on the ground of gender), unequal remuneration (on the ground of race), and victimisation contrary to S. 74(2) of the Acts.
1.2. The complainant referred three separate complaints under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 15 January 2014, 11 June 2014, and 9 January 2015, respectively. No submissions regarding his cases on discrimination on the ground of gender, or his complaint of victimisation were ever received, despite repeated verbal and written requests from the Adjudicator. Accordingly, no replying submission was received from the respondent either. On 8 February 2016, in accordance with his powers under S. 75 of the Acts, the Director General delegated the case to me, Stephen Bonnlander, 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.
1.3. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold an initial inquiry on the equal pay complaint on 7 March 2016, a work inspection on 20 May 2016, and scheduled a final hearing of the equal pay case on 22 July 2016, which needed to be adjourned to 8 November 2016 because the complainant’s representative was not in attendance. The complainant himself and the respondent and his representative were in attendance. The complainant’s representative did not come off the record at any time, despite being asked in correspondence from 22 July 2016 to confirm if this was the case. Neither the complainant nor his representative were in attendance for the adjourned hearing on 8 November, despite a letter informing them of same of 22 July 2016, an emailed reminder and no less than three phone calls with messages left on Mr Nowak’s voice mail the day before. I am therefore satisfied that the Commission made all reasonable efforts to ensure that the complainant and his representative knew of the adjourned hearing. The respondent and his representative were in attendance at the hearing. Neither the complainant nor his representative made any effort to explain their absence. The complainant’s representative was in possession of the adjudication officer’s email address and direct line telephone number and had made use of email to communicate with the adjudication officer before.
2. Summary of the Complainant’s Written Submission
2.1. As noted above, the complainant did not make a written submission except for a work description for himself and his comparator, at my request. The results of my work inspection are appended to this decision. In his respective complaint forms, the complainant only noted that he had been working Saturdays, but was not getting that work anymore and two female colleagues were getting these hours, and that he had been victimised after raising a complaint.
3. Summary of the Respondent’s Written Submission
3.1. Given the lack of written submissions from the complainant, the respondent was not requested to make a replying written submission.
4. Conclusions of the Equality Officer
4.1. The complaints relating to discrimination on the ground of gender, and of victimisation, were withdrawn by the complainant on the day before the hearing scheduled for 22 July 2016.
4.2. During that hearing, arguments relating to my work inspection, and the question as to whether “like work” existed between the complainant and his comparator, and to address the respondent’s argument that grounds other than race or gender, namely the presence or absence of professional qualifications duly recognised in Ireland, were the reason for differential in pay.
4.3. With respect to the complainant’s failure to show for this part of the investigation, I am following the Equality Tribunal decision DEC-E2009-113, Tsalabiendze v. Lycatel Ireland Ltd., where the Equality Officer in turn followed the Employment Appeals Tribunal in Babkiewicz, Kozlowski and Wiezowski against Multiroofing Systems Ltd., UD1111/08-UD1113/08. The EAT stated that
"In respect of the case of the second-named claimant (AK), the claim under the Unfair Dismissals Acts, 1977 to 2007, fails. The legal requirements place an onus on a claimant to prosecute his case and to be present for the hearing. The claimant failed to attend the second day of the hearing and failed to advise the Tribunal that he would not be in attendance. The Tribunal was not satisfied that he had made any or any sufficient effort to notify the Tribunal of his inability to attend the hearing of the 15 April 2009 and he made not effort to seek a postponement of that hearing the date of which he had been aware of for some considerable time prior to the date set."
4.4. A complainant in legal proceedings is not free to attend part of same and then absent himself. He has to be present to prosecute the case, and also to be challenged over his evidence, as the case may be. Based on the complainant’s unexplained absence at the final hearing of his complaint as outlined in some detail above, I find that the complainant’s claim fails for want of prosecution.
5. Decision
5.1. This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.
5.2. Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts. I find that the complainant's claim fails for want of prosecution.
______________________
Stephen Bonnlander
Equality Officer
10 November 2016
Appendix: Work Descriptions of the Complainant and the Comparator
Complainant:
· Start at 9am.
· Open doors, check water in pool for chlorine levels, check cleanliness of pool area, clean if necessary.
· Switch on machines in the gym area, turn on the lights.
· Teaching swimming – children from ages 3 to 12, and occasionally adults. There were three levels, beginners, improvers and advanced. The complainant taught total beginners, but occasionally also provided lane training and rookie lifeguard training.
· The complainant would also rate students for their progress and whether they were ready to move to the next group and discuss his rating with the relevant parents.
· The complainant also worked as a lifeguard, cleaned, supervised the gym and sometimes did reception duties.
· At the end of his working day, he closed the building, checked the lights, water, windows, doors, and air conditioning, did about two hours of cleaning, set the alarm and closed.
· In terms of who was his supervisor, the complainant named three staff, two women and one man.
·
The complainant was not managing staff.
· He had no involvement in complaints beyond directing clients to the complaints box, or escalating a complaint to his manager. He further stated that while he was happy to give advice to colleagues, it was not possible to help out a colleague while being in the water with the swimming students.
· In response to the question of what would happen if he were out sick for a week, the complainant stated that someone else would cover his shift.
Comparator:
The comparator, Ms M., worked as a swimming teacher for the respondent between 2012 and 2015. Her duties included:
· Start at 9:30am, getting ready for teaching. Ms M. then taught swimming from 10am until 2pm.
· Ms M. teaches only children, the same age group as the complainant, including rookie lifeguard and lane training. The teaching year goes from September to June, and teachers are on the same group schedules all year. One teacher teaches five 40 minute classes with a ten-minute break in between. Ms M. provides progress reports to parents and decides when a child is ready to progress to the next level.
· Once the teaching is finished, Ms M. tidies up, takes the floating devices out of the pool, then leaves.
· Ms M. named the same three persons as the complainant as duty managers, and hence her supervisors. She also named two people as swim coordinators, including one Polish colleague (not the complainant).
· Ms M. does not manage any staff, but would provide advice for colleagues, especially new colleagues, who encountered difficulties with specific children or with their lessons in general.
· Ms M. stated that she would solve minor complaints herself and escalated larger complaints to her managers.
· Ms M. estimates that if he were out sick for a week, she would be covered by another teacher, as there is usually one extra person in the building.
· In terms of her qualifications, Ms M. stated that she obtained a Level 1 teaching qualification with Swim Ireland 12 years ago, and obtained her Level 2 qualification in 2012. Level 1 is Assistant Swimming Teacher and Level 2 is Swimming Teacher. Ms M. is also qualified as a beach lifeguard. She stated that she has been teaching swimming since she was 16 years of age.