THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2013 - 069
Mr Vytautas Zagurskas (represented by Richard Grogan and Associates, Solicitors)
Elephant Haulage Ltd (in liquidation)
File References: EE/2011/516
Date of Issue: 10th July 2013
Headnotes: Race - equal remuneration - no prima facie case - discrimination in terms and conditions of employment
1.1. The case concerns a claim by Mr Vytautas Zagurskas that Elephant Haulage Ltd discriminated against him on the ground of race contrary to Section 6(2)(h) of the Employment Equality Acts 1998 to 2008, in terms of access to employment, conditions of employment, discriminatory dismissal, other discriminatory conduct, and the right to equal remuneration pursuant to S. 29 of the Acts.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 27 June 2011. A submission was received from the complainant on 23 November 2011. No submission was received from the respondent; however, the respondent's liquidators wrote to the Tribunal on 6 January 2012 to advise that they would not contest the case. On 21 February 2013, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 22 March 2013. The last piece of correspondence relating to the complaint was received on 20 May 2013.
2. Summary of the Complainant's Written Submission
2.1. The complainant alleges that he was paid less than six named comparators. He further states that he was dismissed when others with lesser service were retained.
3. Summary of the Respondent's Written Submission
3.1. As noted above, the respondent's liquidator advised that it would not contest the case.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against within the meaning of the Acts, which includes as to whether he received less pay than his comparators because of his race.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
4.3. At the hearing of the complaint, his representative withdrew all aspects of the complaint except for the one for equal remuneration and conditions of employment. As for the complaint of equal remuneration, the complainant stated that he was doing groundworks and driving a dump truck, whereas his named comparators were only doing groundworks. However, he was unable to answer even basic questions as to his comparators' pay compared to his, or their job titles. He stated that they worked similar hours to him.
4.4. The complainant struck me as a truthful person, however, I find the fact that he had no knowledge whatsoever of his comparators' remuneration, to be fatal to his complaint of equal remuneration. Under these circumstances, it is simply impossible for me to determine whether a valid complaint exists at all.
4.5. With regard to his complaint about discrimination in conditions of employment, I do accept the complainant's evidence that he received a contract only in English, and needed to find a friend to translate it for him with no help from his employer, whereas his Polish colleagues received a contract in English and Polish. The complainant, whose English was limited and who gave evidence through an interpreter, stated that none of the respondent's 20 Lithuanian employees received a contract in Lithuanian translation. I am satisfied that this constitutes less favourable treatment of the complainant compared to workers of a different nationality, and therefore amounts to discrimination in his conditions of employment.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Elephant Haulage Ltd discriminated against Mr Vytautas Zagurskas in his terms and conditions of employment, contrary to S. 8(1) of the Acts, on the ground of race.
5.2. It did not discriminate against him right to equal remuneration pursuant to S. 29 of the Acts.
5.3. In accordance with S. 82(1)(c) of the Acts, I hereby order that the respondent that the respondent pay Mr Zagurskas €500 in compensation for the discrimination which occurred in his terms and conditions of employment. This award is a compensation for the discrimination suffered by the complainant, is not in the nature of pay and therefore not subject to tax.
10 July 2013