ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Parties |
| Complainant | Respondent |
Anonymised Parties |
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Representatives | Yousuf Abdi, Hatem Mohamed, | DID NOT ATTEND |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00026181-001 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was employed as a Technical Sales Representative from 30th January 2017 to 5th October 2017. He was paid €40,000 p.a. and sales bonuses. He has claimed that he did not receive equal pay for the work that he did in a same work, same conditions environment. He has sought compensation. |
Summary of Complainant’s Case:
The Complainant stated that this complaint was within the time limit. He has claimed that he was paid less than the comparators because of his race. The comparators wee paid vastly more than he was because they are perceived to come from the “right” countries. He stated that he was doing like work in a same conditions environment. When he commenced employment, he was placed on a 6 month probation which was extended by for months due to alleged poor performance as he had not reached revenue targets. He was told that he needed to increase the number of calls made and generate bonuses by generating more revenue. He reluctantly agreed to the extension. He stated that he was paid €40,000 + €375 and bonus. His comparators were as follows S was paid €44,000; D & M & Y he assumed were paid €50,000. All were on probation. There was at least €4,000 between himself and S. HE also stated that the Hiring Manager told him that it was a mistake to hire him ass he was not Egyptian. S was an Israeli while the other comparators were Egyptian. He believes that the reason that he was paid less was because he was Somalian. He did not raise a grievance with HR because he was in probation. He was concerned about his tenure as he was on probation. He stated that he has an Irish degree, none of the others have. He always reached his targets. He made an freedom of information request but it had not been received by the date of the hearing. He believes that the only reason why he was paid less was because he was not hired by the Egyptian hiring manager . That hiring manager only wanted people who had worked in the Cairo office. He has claimed that he was discriminated against on grounds of race and he is seeking compensations. |
Summary of Respondent’s Case:
The Respondent did not attend and was not represented. They wrote on 15th March 2019 to advise that the complaint was statute barred. The employment ended on 5th October 2017 and his claim was lodged with the WRC on 9th February 2019, some 16 months later. |
Findings and Conclusions:
Time limit Sec 77 5 ( c) states, “This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term”. |
Therefore, I find that this complaint was not statute barred and the Complainant has a right to bring this claim.
Prima Facie Case of Discrimination
Sec 85 A5(1) states “Where is 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
It has been the well-established practice of the Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated: “The first requirement is that the complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.
In the case of Arturs Valpeters v Melbury Developments Ltd [2010] 21 E.L.R. 64 the Court stated in respect of the provision in S 85A that; “This requires that the 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 must 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. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”
In Margetts v Graham Anthony & Company Limited, EDA038,the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows: “The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”2.4
So, it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised. The
It is clear from the above that the Complainant must prove, on the balance of probabilities, the primary facts on which he is relying upon in seeking to raise a presumption of unlawful discrimination.
It is clear that It is only if those primary facts are established to the satisfaction of the Adjudication Officer and they are regarded as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.
I find that the Complainant named four comparators and stated that S was paid €44,000 and he had assumed that the other three (D,M,Y) were paid €50,000.
I find that the Complainant produced no evidence of the earnings of S.
I find that relying upon assumptions of earnings does not meet the requirements of establishing a prima facie case of discrimination.
I find that the Complainant has failed to produce facts to support his position.
I find that the Complainant has not established the primary facts on which to rely upon in seeking to raise a presumption of unlawful discrimination.
Decision:
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.
For the above stated reasons I have decided that the claim was not well founded and so it fails.
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Dated: 12.6.19
Workplace Relations Commission Adjudication Officer:
Key Words:
Equal Pay |