Case Number: DEC-E2012-004- Full Case Report. Equality Tribunal

• Docket Number: DEC-E2012-004- Full Case Report
• Date: 09 January 2012
• Court: Equality Tribunal

THE EQUALITY TRIBUNAL EMPLOYMENT EQUALITY ACTS 1998-2011

Decision - DEC-E2012-004

PARTIES

Magnar Tonisson
(represented by Richard Grogan & Associates,
Solicitors)

and

Virgeo McEnery Landscapes Limited
(represented by Athrú Solutions)

File Reference: EE/2009/800
Date of Issue: 9th January, 2012

Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - race - conditions of employment - training - discriminatory dismissal - equal pay - failure to establish a prima facie case

1. Dispute

1.1 This case concerns a complaint by Mr. Magnar Tonisson, who is an Estonian national, that he was:
(i) discriminated against by Virgeo McEnery Landscapes Limited on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of his conditions of employment, training and discriminatory dismissal; and
(ii) that he performed 'like work' with a named employee of a different nationality to him (hereinafter referred to as 'Mr. A') within the meaning of sections 7(1)(a), (b) and (c) of the Acts and he was therefore entitled to the same rate of remuneration as paid by the respondent to that employee in accordance with section 29 of the Acts.

2. Background

2.1 The Complainant referred a complaint under the Employment Equality Acts, 1998 to 2008 to the Director of the Equality Tribunal on 4 November, 2009. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case on 3 November, 2011 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2011. This is the date I commenced my investigation. A written submission was received from the complainant on 25 March, 2010 and from the respondent on 5 May, 2010. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to Hearing on 4 November, 2011.

3. Summary of the Complainant's case

3.1 The complainant, who is an Estonian national, stated that he was employed by the respondent as a general operative from February, 2007 until 18 September, 2009 when his employment was terminated. The complainant stated that the respondent also employed other workers of Lithuanian, Polish, Estonian, Moldovan and Irish origin during his period of employment. The complainant submitted that the respondent failed to provide him with a proper written contract or terms of employment in a language which he could understand when he commenced employment and he contended that this constitutes unlawful discrimination of him on the grounds of race contrary to the Acts.

3.2 The complainant submitted that the respondent did not provide him with proper health and safety documentation or training during the course of his employment. The complainant submitted that the respondent's failure to provide him with a health and safety statement and training in a language which he could understand amounts to discrimination within the meaning of the Acts.

3.3 The complainant also claims that he was subjected to a pay reduction without his consent during his period of employment. The complainant stated that his wages were reduced from €10.50 to €9.50 per hour in April, 2009 and he claims that the wages of a named Irish worker (Mr. A) were not reduced at that juncture. The complainant submitted that the reduction in his pay amounted to discrimination on the grounds of his race contrary to the Employment Equality Acts.

Equal Pay

3.4 The complainant also claims that he was discriminated against in terms of pay on the grounds of race (nationality) in that he was paid less than a named colleague and employee of the respondent of Irish nationality (i.e. Mr. A). The complainant stated that he was paid a rate of €10.50 per hour whereas the named comparator, Mr. A, was paid €14.00 per hour. The complainant submitted that both he and Mr. A performed the same and interchangeable work. The complainant denies that Mr. A was employed in the capacity of a foreman by the respondent or that he took instructions from Mr. A during his period of employment. The complainant submitted that he performed 'like work' within the meaning of section 7 of the Acts with Mr. A and therefore that he was entitled to equal remuneration in accordance with the provisions of section 29 of the Acts.

3.5 The complainant also referred to a number of cases in support of his case, including Campbell Catering Ltd. -v- Rasaq (EED048) and 58 Complainants -v- Goode Concrete (DEC-E2008-020).

4. Summary of the Respondent's case

4.1 The respondent submitted that the complainant was employed as a general landscape operative from March, 2007 until 18 September, 2009 when his employment was terminated. The respondent submitted that the complainant was provided with a contract of employment upon the commencement of his employment. The respondent accepts that this contract was in the English language, however, it submitted that the document was explained to the complainant in his native language and that he did not raise any issue about not having understood the contents of this document at that juncture.

4.2 The respondent submitted that the complainant was provided with health and safety training and documentation during his period of employment....