The Equality Tribunal
Employment Equality Acts 2000 to 2011
DECISION NO: DEC-2013-165
(Represented by Richard Grogan & Associates)
Ballinard Transport Ltd.
(Represented by Kate Ni Chonfhaola, BL)
Date of Issue: 13 December 2013
File No. EE/2012/158
Keywords: Employment Equality Acts - discriminatory treatment - race - conditions of employment - prima facie case
1. Dispute and delegation
1.1 This dispute concerns a claim by Mr. Rimantas Kazdalis (hereafter "the complainant") that he was subjected to discriminatory treatment in his working conditions on grounds of race by Ballinard Transport Ltd. (hereafter "the respondent"). The complainant states that he was discriminated against on grounds of race, in that, he was not given the national minimum wage.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 9 March 2012 under the Employment Equality Acts. On 30 September 2013, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh- 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 which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 23 October 2013.
2. Summary of Complainant’s case
2.1 The complainant is a Lithuanian national and was employed as a haulage driver by the respondent from 15 May 2011 until 2 December 2011. The complainant was paid a basic wage of €300 for a five day week and €350 for a six day week. He was working over 48 hours a week which resulted in his rate of pay being €6 per hour which is less than the national minimum wage. The complainant’s representative states that the respondent structured matters in such a way as to pretend that the complainant would receive a rate of €90 per day, inclusive of subsistence allowances. The complainant contends that before he obtained legal advice, he was of the view that he was being paid €90 a day through the tax system. The complainant’s representative states that this type of scheme is not operated for employees who are Irish nationals. While Irish nationals may obtain subsistence payments, their rates of pay will always be in excess of the national minimum wage. The complainant does not have a specific comparator as regards the treatment and therefore puts forward the argument of a notional comparator.
3. Summary of Respondent’s case
3.1 The respondent denies the allegation of discrimination on grounds of race. It states that the complainant was paid in accordance with his contract. The respondent contends that it does not treat its Irish employees any differently to its non-Irish employees and that the complainant has failed to particularise any difference in treatment. The respondent submitted to the Tribunal details including payslips for two Irish haulage drivers showing equal treatment with that of the complainant in relation to methods of payment. The respondent submits that no notional comparator could be found that would show discrimination on behalf of the respondent against the complainant. The respondent confirms that all employees, whether Irish nationals or not, are employed under the same contract and conditions of employment. The respondent refutes the allegation of discrimination and states that there is no basis for same.
4. Conclusions of Equality Officer
4.1 I have considered all the evidence both written and oral presented to me. Section 85A 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 from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a recent Determination the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows –
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. 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 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.”
4.2 The complainant has received recompense from the Rights Commissioner for breaches of the legislation relating to the National Minimum Wage Act. Having examined all the evidence relating to this complaint under the Employment Equality Acts, I am satisfied that there is no prima facie evidence to substantiate a complaint of discriminatory working conditions on behalf of the complainant. Based on the evidence, I am satisfied that all employees were employed under the same contract and conditions of employment. The complainant has provided no evidence to demonstrate that he was treated less favourably in his working conditions vis a vis a person of a different nationality or an Irish employee. Therefore, I find against the complainant in this case.
5. Decision of the Equality Officer
In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that the complainant was not discriminated against by the respondent in relation to his conditions of employment on grounds of race, in terms of section 6(2) of the Acts and contrary to section 8 of the Acts. Therefore, the case fails.
13 December, 2013
 Arturs Valpeters v Melbury Developments  21 E.L.R. 64.