THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
(represented by Diarmuid Murphy B.L. instructed by Maguire McClafferty Solicitors)
Campion Concrete Products Limited
File Reference: EE/2009/360
Date of Issue: 16th December 2013
Keywords: Employment Equality Acts 1998-2011 - direct discrimination - Section 6(1), less favourable treatment - Section 6(2)(h), race – section 8, conditions of employment, Constructive dismissal, Section 7 & 29 – equal pay, failure to establish a prima facie case, statutory time limits, no jurisdiction in relation to constructive dismissal.
This dispute concerns a claim by a complainant that he was discriminated against by the above named respondent on the race grounds, in terms of Sections 6(1) and 6(2)(h) of the Employment Equality Acts 1998-2011, and pursuant to section 8 in relation to his conditions of employment, constructive dismissal and Section 7 and 29 in relation to pay
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 21st May 2009 alleging that the respondent discriminated against him contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 the Director delegated the case on the 12th June, 2012 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the complainant on the 22nd April 2010 and from the respondent on the 19th May 2010. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 27th November, 2013 and the last correspondence was received on the 29th of November 2013.
3. Complainant’s Case
3.1 The complainant is a Polish national and he states that he was employed by the respondent as a shutter carpenter on the 2nd of October 2008 at the rate of €18.60 per hour. He said that there were 5 other shutter carpenters, some employed on the same day as he was employed and they were also paid €18.50. He said that he is a qualified carpenter, but he has worked with a tiling company for a number of years before joining the respondent. He said that after about 7 weeks in the employment the respondent called him to a meeting to tell him that he had been overpaid and that his hourly rate was being reduced to €9.25 per hour and he was given a new contract of employment to sign with the new rate. The complainant said that the respondent also requested him to refund the overpayment, the balance between €9.25 per hour and €18.60. He denied that he was employed as a general operative and submits that the respondent reduced his hourly rate of pay because of his nationality. He said that he worked making shuttering the same as the other employees. There were about 6 tables with 2 people working on each table and they were all making shuttering for moulds and they all did the same work. He said that the Polish employees were paid less than the Irish employees. He is a claiming equal pay and named 2 comparators. He said that his two comparators, Mr A, who was the manager and Irish and Mr B who was also Irish, did the exact same work as he did and they were paid €18.60 per hour.
4. Respondents case
4.1 The respondent stated that the complainant contacted him looking for a job. The complainant told him that he was working as a tiler and he was earning over €8 per hour. He offered to employ him as a general operative on €9.25 per hour. The complainant accepted these conditions and commenced work on the 2nd of October 2009. The company manufactures concrete panels for the building industry. The concrete panels are made from timber moulds and the shutter carpenter draws up the plans for the mould and supervises the making of them. He said that these panels are very expensive and have to fit when they go out to the site and if there is a design fault it would cost the company a lot of money. It is crucial therefore that the measurements are accurate. As a general operative, the complainant was assisting a more senior person, who did the measuring in accordance with the plans, and that person who was with the company since January 2007 was earning €12 per hour having started off on a much lower rate. The manager or another shutter carpenter always checked the measurements. He said that he has two shutter carpenters employed full time; one employed as a manager and he also took on others on a contract basis and they were paid €18.60 per hour.
4.2 On the 25th of November 2009 the respondent discovered that the complainant was being paid the rate of €18.60 per hour, the same rate as the shutter carpenters and this was due to a clerical error. The complainant was called to a meeting and the error was explained to him and it was also put in writing. He was asked about paying back the money which was paid to him in error and it was explained to him that an arrangement would be made which suited him. The complainant requested a postponement of the meeting so that he could bring his wife to it. On the 28th of November 2009 the meeting was rearranged and the complainant and his wife attended. The clerical error was explained to both of them and he was advised that they would come to an arrangement whereby the overpayment could be paid back in stages. The complainant was handed his terms and conditions of employment, but he handed them back and refused to sign them. The complainant did not turn up for work the following day. He returned on the following Monday and worked for a half day. He then left the company and never returned.
The respondent denies that the complainant’s wages were reduced because of his nationality.
5. Conclusions of the Equality Officer
5.1 The first matter I have to consider is whether the complaint in relation to dismissal is validly before me and if the complaint was referred within the statutory time limits. At the hearing the complainant’s barrister submitted that there was a complaint of constructive dismissal before me. The complainant’s solicitor referred a complaint on form EE1 to the Tribunal on the 21st of May 2009. He ticked the race box box and stated that the respondent discriminated against him in relation to his conditions of employment and claimed equal pay. There was no indication that there was a discriminatory dismissal referred. In the complainant’s submission of the 22nd of April 2010, his solicitor stated that he was claiming constructive dismissal.
Section 77(5)(a) of the Acts provides as follows:
“Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable case direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction”.
I note the complainant said in evidence that his employment ended on the 1st of December 2008 and the date that the submission, in which his claim of constructive dismissal was first mentioned, was the 22nd April 2010 which is more than a year after the date of the alleged dismissal. I find that the complainant of constructive dismissal was referred outside the statutory timeframe and therefore I have no jurisdiction in the matter.
5.2 In this case, I must consider the complainant's claim that the respondent discriminated against him on the race ground in terms of section 8 of the Employment Equality Acts in relation to his conditions of employment 7(1), in contravention of section 29(1) of the Acts in relation to equal pay. I must decide if the complainant was engaged in like work under section 7 of the Acts with two named comparators and entitled to equal pay in accordance with section 29 of the Acts.
Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “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.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. The complainant submitted evidence of his pay and that of his named comparators. Hecontends that he performs "like work" with the two named comparators of a different nationality to him in terms of section 7(1) of the Acts.
Section 29 (1) of the Acts states: “It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer”.
5.3 The existence of “like work” between a complainant and a named comparator is required to establish any entitlement to equal pay under the Acts. The complainant named two comparators and he was paid the same rate as these two people up until he was informed that there was an error in his pay. He left the employment a few days later. Therefore the complainant cannot establish that he was paid a different rate of pay because of his race, while he was in the employment of the respondent, because he never worked at the reduced rate. In any event I accept that the complainant was not performing like work to the two named comparators one was employed as a manager and the other as a shutter carpenter who also supervised the measurements as the need arose.
5.4 The next matter I have to consider is whether the complainant was discriminated against in relation to his conditions of employment. The complainant said that the respondent tried to change his contract of employment and downgraded him from a shutter carpenter to a general operative. I found the evidence of the respondent more convincing than that of the complainant. The complainant said that when he sought work from the respondent he was interviewed by the manager and it was the manager who agreed to employ him as a shutter carpenter. I am satisfied from the evidence that the complainant was employed as a general operative at the rate of €9.25 per hour and that he was paid the higher amount due to an administrative error. The person he was assisting, who was also Polish, was there a number of years and had much greater experience than he had and was paid €12 per hour. It would not have made any sense to pay the complainant a higher rate than the person he was assisting. I note that all the general operative were Polish and there rates of pay ranged from €9 per hour upwards. For these reasons I am satisfied that the complainant was employed as a general operative. Therefore, he has not established that he was treated less favourably than another person of a different nationality was treated in similar circumstances in relation to his conditions of employment. If an administrative error had occurred with an Irish employee, I am satisfied that the respondent would also seek to recoup the overpayment and readjust the hourly rate. In the circumstances the complainant has failed to establish a prima facie case of discriminatory treatment.
6.1 I have concluded my investigation of the complaint and I hereby make the following decision in accordance with Section 79(6) of the Act. I find that
(i) The complainant cannot establish discrimination on the race ground in relation to his pay in accordance with the Acts because due to an administrative error he was paid the same rate as the named comparators up until he left the employment.
(ii) The complainant has failed to establish that he was discriminated against on the race ground in accordance with Section 8 in relation to his conditions of employment.
(iii) The complaint in relation to constructive dismissal was referred outside the statutory time frame in accordance with section 77 of the Acts.
16th December 2013