ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00003120
Parties:
| Complainant | Respondent |
Parties | Piotr Pyrtek | O Reilly Concrete |
Representatives | Piotyr Pyrtek | Eamonn Carolan Patrick J. Carolan & Co |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00004508-002 | 17/May/201617/May/2016 |
Date of Adjudication Hearing: 10/Aug/2016
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 [ and/or Section 79 of the Employment Equality Acts, 1998 - 2015,] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
At the hearing the claimant undertook to furnish documentation in support of his allegation of less favourable treatment on the ground of race and to identify a comparator – which he was unable to do at the hearing .He has since confirmed to the commission that he has been unable to identify a comparator or obtain documentation to support his complaint.
Summary of Complainant’s Case:
The claimant was employed as a General Operative with the respondent and submitted that he was not receiving equal pay because of his race.He asserted that he was a Polish national and that he was denied a travel allowance which had been paid to Irish workers.The workforce moved between 2 locations and he argued that his Irish colleagues and one other Polish worker received a travel allowance for moving between sites but he was denied the payment on the grounds of race.He complained that he was only furnished with a contract of employment after he moved location.He named another non national as his comparator but was unaware if his comparator did or did not receive the allowance.He asserted that he complained to the respondent about the non payment of the allowance . |
Summary of Respondent’s Case:
The respondent categorically denied that the claimant received less pay and submitted that the claimant had failed to identify a comparator.It was contended that the movement between sites was a temporary measure driven by a fall off in orders and argued that the claimant was paid an additional 10 hours per week while he was assigned to another location. It was submitted that this had been a loose arrangement depending on the inconvenience involved for the employee and that it amounted to positive discrimination.It was submitted that this was a large company with 84 general operatives and their profile was 38 Polish , 3 Lithuanian and the remainder being Irish or Scottish.It was submitted that this was a very serious complaint , that no evidence was advanced to support it and that Polish workers had been promoted by the company.The company was unionised and it was argued that no evidence had been presented to support a complaint of unequal pay on the grounds of race. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I have reviewed the evidence presented at the hearing and noted that the claimant has been unable to identify a comparator or submit any further documentation in support of his claim of unequal pay on the grounds of race.
Section 85a of the Act requires that claimants discharge a burden of proof in equality cases ….. “… 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”. In Melbury v Valpetters (EDA 917), the Labour Court has already determined that mere speculation or assertions , unsupported by evidence , cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.The burden of establishing the primary facts is placed squarely on the complainant and the language of Section 85A admits no exceptions to this evidential rule. In these circumstances , the claimant has failed to provide evidence to support his allegation of inequality in pay on the grounds of race – he has failed to discharge the burden of proof required and accordingly I do not uphold the complaint. |
Dated: 31st July 2018
Workplace Relations Commission Adjudication Officer: Emer O'Shea