Complainant

Respondent

Parties

Nabil  Hadj Mohand

Wallace Contracting Ltd

Representatives

Self-represented 

Foley Solicitors LLP

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00072601-001

19/06/2025

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00072601-002

19/06/2025

Mr. Hadj Mohand’s complaint is that as an asylum seeker and foreign worker he did not receive equal pay compared to an Irish worker.

On the second complaint, he claims that his employer did not keep proper records on the terms of his employment. It was clear from WRC Complaint Form and the complainant’s written submission that CA-00072601-002 concerned his terms of employment and was unrelated to transportation.

Summary of Mr. Hadj Mohand’s Evidence

Mr. Hadj Mohand gave testimony that he was unaware of the WRC procedures and was late in submitting the WRC Complaint Form. He requested an extension of time due to reasonable cause. His application was solely based on his lack of knowledge on WRC procedures.

On his equal pay complaint, he named a comparator who was Irish and a general operative who carried out the same or similar tasks for the company. He contested the respondent’s assertion that he was employed as a cleaner, particularly as he had previous construction experience. He said he carried out duties such as skirting, lifting slabs, using machinery/tools and drove construction vehicles occasionally. He said he was paid €12 per hour for 7-weeks and then this was increased to €14. He confirmed that he was paid the correct hourly rate of €17.50 from September 2024 when he was issued with a contract. He said he knew from discussions with other colleagues that his comparator was paid more although he had no proof of this. He submitted all his payslips as evidence.

Under cross-examination, he was asked if he provided a C.V and references for his previous experience when he commenced employment. He replied that he was asked for a C.V and a staff member took a picture of it. He said he had previous construction experience, used heavy duty tools, had a digger licence, and drove machinery occasionally.

He was asked about his pay comparator and the circumstances under which he left the employment in October 2024. He replied that he suspected that no other staff were paid less than €15 per hour. He replied that he left the employment as he was promised a higher rate of €19 euro which he did not receive and other staff were laughing at him due to an injury he incurred.

It was put to him that his comparator had a teleporting licence and was more experienced. He replied that the comparator did not have more experience and he carried out the same if not more tasks. He said the comparator drove machinery occasionally the same as him prior to him getting his teleporter licence.  

Preliminary Issue

Ms. Foley on behalf of the respondent submitted that there was a preliminary issue of jurisdiction as the complaints were out of time. She submitted that ignorance of the law was not considered a reasonable cause and the test was well established in Cementation Skanska v Carroll DWT0425. She submitted that the complainant had provided insufficient reasons to extend the time.

Summary of Mr. Wallace’s Evidence

Mr. Wallace said he is Managing Director and he could not confirm whether previous references or a C.V had been provided when the complainant commenced employment. He confirmed that the complainant had received pay increases as he became more experienced and carried out tasks outside of cleaning. He said the comparator was earning €17.04 per hour.

Under cross-examination, he was asked whether a C.V was provided, and whether he could provide proof that the complainant was employed as a cleaner and carried out different duties to the comparator. He repeated that he was taken on as a cleaner and when he gained experience and carried out other tasks he was paid more.

Closing Submission

Ms. Foley submitted that the complainant’s comparator was employed before the complainant and had a teleporter licence, which accounted for the different pay rates. She submitted that the experience of each worker was not comparable. The complainant had not documented his experience when he commenced employment and never raised a grievance about his pay.

Preliminary Issue: Time Limits

Section 41(6) of the Workplace Relations Act 2015 states as follows:

"Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates."

The period of 6-months can be extended to 12-months when the complainant can show reasonable cause as established in Cementation Skanska v Carroll DWT0425.

As the reasonable cause outlined by the complainant was that he was unaware of the timeframe, I find that this reason is insufficient to extend time as established by Cementation Skanska v Carroll DWT0425.

For the reasons outlined, I decide I have no jurisdiction to hear the complaint on terms and conditions for CA-00072601-002.

The equal pay claim does not have the 6-month time limit as section 77 (5) (c) of the Employment Equality Act provides for equal pay to be treated differently. Therefore, I have jurisdiction to investigate the equal pay complaint.

CA-00072601-001- Equal Pay Complaint

The Law

Like work.

7.—(1) Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if—

(a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,

(b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or

(c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

Redress which may be ordered.

82.—(1) Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

(a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral under section 77(1) which led to the decision;

(b) an order for equal remuneration from the date referred to in paragraph (a);

Finding

Unequal pay, based on any of the discriminatory grounds, is prohibited as between workers who are employed by the same employer, and carry out like work. The complainant claims he was paid less due to his nationality (race ground). As required by the Act, he named a comparator who is an Irish worker. It was established at the hearing that this comparator earned €17.04 per hour.

In investigating this complaint, I am confined to the relevant testimony of the witnesses along with the pay slips submitted by the complainant as no job descriptions or other documents were put into evidence. I was supplied with a new contract which was signed by both parties in early October 2024 although the complainant clarified that this included the correct rate of pay and it was the earlier period of his employment when he did not receive equal pay.

The respondent gave testimony that he was initially employed as a cleaner although no documentary evidence of this was presented in evidence. Regardless of whether a written contract or job description is in place, what needs to be investigated in this type of complaint is what tasks were being carried out in practice.

Bolger, Bruton, Kimber, in Employment Equality Law, 2nd Ed 20222 describe work which is similar in nature at paragraph 11-151-

Being “similar in nature” suggests that the two types of work are not identical or even interchangeable, but are still alike in many respects and whatever differences exist are not significant. Thus, differences between the jobs are permitted, even where those differences are somewhat frequent, so long as the differences are of little importance in relation to the job as a whole.

The Code of Practice on Equal Pay 2022, states at paragraph 31-

“Pay Differentials”

In some cases pay differentials may have an explanation not related to a protected characteristic, such as length of service, working hours, differing levels of responsibility, atypical working patterns, key role differences , etc but where the differential impacts adversely on an individual or a group with a protected characteristic then an inference of discrimination may be appropriate.

Inference of Discrimination

In this case, having reviewed the testimony and payslips, I am satisfied that the complainant has provided sufficient evidence to infer that he may have been discriminated against on race grounds. Although there were no relevant documents presented in evidence, his testimony that he carried out equal work was convincing. He had no proof of his comparators rate of pay although suspected it was higher and this was confirmed in testimony.

Respondent Rebuttal

The respondent is relying on the comparator having a different job title, more experience and having a teleporter licence.

Having considered the testimony, I am not satisfied that the respondent’s has provided sufficient evidence or reasoning to explain the two different pay rates. The complainant gave testimony that although he did some cleaning, he was not employed as a cleaner and carried out general operative duties. He also said he had experience in construction and that his comparator only received his teleporter licence in or around September/October 2024. Although there may have been differences in the nature of work, there was no persuasive documentary evidence that they did not perform equal work.

As the respondent has not rebutted the inference of discriminatory treatment with any corroborative documentary evidence, I find that the complainant did not receive equal pay for equal work due to his nationality (race ground). I decide the complaint is well founded.

Redress

From the payslips submitted, the comparator was paid €5.04 more per hour for seven weeks from the commencement of employment. The comparator was paid €3.04 more per hour up to 8th August 2024. I estimate that the gross earnings owed to the complainant is €6,696.04.

I decide the complaint is well founded and order the respondent to pay €6,696.04 gross wages to the complainant.

CA-00072601-001- Equal Pay Complaint

I decide the complaint is well founded and order the respondent to pay €6,696.04 gross wages to the complainant.

CA-00072601-002- Terms of Employment Complaint

I have no jurisdiction to investigate this complaint as it is out of time.

Equal Pay, Race Ground