EMPLOYMENT EQUALITY ACTS
DECISION NO: DEC-E2017-037
PARTIES
A Driver
(Represented by Richard Grogan & Associates, Solicitors)
v
A Supermarket Chain
(Represented by IBEC)
File references: et-156707-ee-15; et-158167-ee-15;
et-158168-ee-15; et-158830-ee-15 & et-158832-ee-15.
Date of Issue: 26th May, 2017
1. Introduction:
1.1 On the 9th June 2015, the Complainant referred complaints pursuant to the Employment Equality Acts to the Equality Tribunal / Workplace Relations Commission. The complaints were scheduled for hearing on the 27th March 2017. The Complainant is a lorry driver and the Respondents provide haulage services to a retail chain.
1.2 On the 22 March 2017 in accordance with her powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission delegated the case to me, Michael McEntee, an Adjudication Officer/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. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to hearing on the 27th March 2017.
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.
1.4 It was agreed at the commencement of the hearing that an ad idem complaint involving a colleague of the Complainant and the same Employer had been the subject of DEC-E2017-021.
2. Submissions and evidence of the Complainant:
2.1 The Complainant claims discrimination on grounds of race. This discrimination included having to work longer hours and being paid lower wages and expenses than others. The Complainant is of Polish nationality and referred to a named, Irish comparator who received €4,797.23 per month plus €200 .50 expenses -equating to an hourly rate of €28.72 per hour. The Complainant is on an hourly rate of €14.25.
2.2 The Complainant submitted that it had established that the comparator was paid more than him for the same work and this raised a prima facie case of discrimination. He submitted that the Respondent had not offered any proof that the drivers on post-2012 contracts were of mixed nationalities. He submitted that the table presented by the Respondent in relation to 22 drivers had been cherry-picked.
3. Submissions and evidence of the Respondent:
3.1 At the outset of the hearing, the representative of the Respondents clarified that the proper Respondent was the first-named Respondent. The Respondent outlined that there were two contracts in existence for its lorry drivers. The contract that pre-dated 2012 had better terms and 110 drivers were subject to these contracts. 73 drivers had been employed on the post-2012 contracts. There was a mixture of nationalities amongst both categories of drivers. The Respondent submitted that the Complainant had not established a prima facie case of discrimination as drivers were paid according to the terms of their contracts. It referred to a sample of 22 drivers from the depot in which the Complainant worked who also had post 2012 contracts. Most drivers in this sample group were Irish. In reply to the Complainant the Respondent outlined that another named colleague had been on the old, better contract, so had been paid accordingly. The Respondent submits that the Complainant has not made out a prima facie case of either direct or indirect discrimination on grounds of race.
4. Findings and conclusions:
4.1 I make the following findings having considered the oral and written submissions of the parties. The Complainant commenced working for the Respondent in 2014 and compares his terms and conditions to an Irish colleague whose employment pre-dated 2012. The Respondent asserts that in 2012 it offered new employees contracts with less favourable terms and conditions than existing employees. It refers to a list of Irish and non-Irish employees who signed up to these contracts in the period since 2012. It also refers to Irish and non-Irish staff who have the pre-existing, more beneficial contracts. There is no suggestion that there is any post 2012 employee who has benefitted from the better terms and conditions available to employees of longer standing. It follows that the Respondent has rebutted any inference of discrimination that can be drawn from the differing terms and conditions between the Complainant and his comparator. I also note that the Respondent has addressed the issue of indirect discrimination in pointing to the Irish and non-Irish drivers employed by the Respondent since 2012 and who have been subject to the same post 2012 contract.
5. Decision:
5.1 I have concluded my investigation of this complaint. Based on all of the foregoing, I find, pursuant to Section 79 of the Act, that the Complainant has not established either direct or indirect discrimination on grounds of race.
_______________________________
Michael McEntee
Adjudication Officer / Equality Officer
26th May 2017