Case Number: DEC-E2012-050- Full Case Report. Equality Tribunal
| Docket Number | DEC-E2012-050- Full Case Report |
| Date | 26 April 2012 |
| Court | Equality Tribunal |
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2012-050
PARTIES
Antoni Kapusta, Slawomir Rutkowski & Przemyslaw Smolarek
(Represented by Joanna Kwiatkowska)
AND
Edward McDonald
File reference: EE/2009/393, EE/2009/394 & EE/2009/395
Date of issue: 26 April 2012
Headnotes: Employment Equality Acts - sections 6 and 19 - conditions of employment - discriminatory dismissal - equal pay - race
1. DISPUTE
1.1 This dispute involves claims by Mr Antoni Kapusta, Mr Slawomir Rutkowski and Mr Przemyslaw Smolarek that they were discriminated against in relation to conditions of employment and dismissed in a discriminatory manner contrary to section 8 of the Employment Equality Acts by Edward McDonald on the grounds of race contrary to section 6 of the Employment Equality Acts and that they perform "like work", in terms of section 7 of the Employment Equality Acts with two named comparators and are entitled to equal remuneration in accordance with section 29 of the Acts.
1.2 The complainants referred their claims under the Employment Equality Acts to the Equality Tribunal on 11 June 2009. On 28 February 2012 in accordance with his powers under the Acts the Director delegated the complaint to the undersigned, Hugh Lonsdale, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. A hearing was scheduled for 30 March 2012 and both parties were informed of the hearing details on 7 February 2012. By letter dated 8 March 2012 the respondent's representative informed the Equality Tribunal that he was no longer representing the respondent. The respondent was advised of the hearing details by letter sent by both registered and ordinary mail on 12 March 2012. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 30 March 2012. The respondent made no contact with the Equality Tribunal and did not attend the hearing. However, I am satisfied that all reasonable efforts to inform the respondent of the hearing were made.
2.1 The complainants made similar claims and submit they were paid less than two named comparators and other Irish workers with whom they performed like work. They also claim that they were treated differently on the basis of their race in that they had to work much harder and work longer hours.
2.2 They submit they were required to work on Sundays and Public Holidays, whilst Irish workers were not required to work on these days. On occasions the sites were locked when they worked at weekends and on Public Holidays and they had to jump over fences. Furthermore, they received no premium payment for working on Sundays and Public Holidays.
2.3 They submit they were not paid when they took annual leave.
2.4 They submit they were paid different rates for working overtime than Irish workers.
2.5 They submit they received no payslips, no P60s and no P45, nor written terms and conditions of employment. They also submit that when they left the respondent's employment and tried to make claims with the Department of Social Protection they found out that the respondent had made no PRSI contributions for them and had not registered their employment with Revenue.
2.6 They submit that their conditions of employment were very bad. They were given the worst kind of work, which was more dangerous. On a number of occasions they were piled into a car trailer to get to work.
2.7 They submit that they were dismissed without any notice and received no redundancy pay.
2.8 Mr Kapusta gave evidence at the hearing that he worked for the respondent as a
General Operative building reinforced concrete walls and tanks from 27 March 2006 until 27 March 2009 and he was paid €95 per day at the time he left this employment. He contends that the first named comparator, Mr A, was a brother of the respondent and he was paid €200 per day but did the same work as the complainant. He contends the second named comparator, Mr B, was paid €160 per day and did exactly the same work as he did. Mr B told him that he would not work for the kind of money the complainant got. He contends that both comparators told him what money they were earning but he did not know what the other Irish workers were earning.
2.9 Mr Kapusta gave several examples where he and the other complainants were made to carry out the most dangerous elements of the work being undertaken. He contends that they were afraid they would be dismissed if they did not do this work. He gave evidence that they were forced to work some weekends and bank holidays at a flat rate of pay and Irish workers did not work on weekends and bank holidays. He contends that only Polish workers were treated in this way.
2.10 The complainant gave evidence that he was not paid when he went on two weeks holidays and he did not know if he would get work when he returned.
2.11 The complainant contends he was dismissed when he received a phone call to say he was not needed anymore. This was the day after he and other Polish workers finished work on a house.
2.12 Mr Kapusta confirmed at the hearing that he had problems claiming Social Welfare entitlements when he finished working for the respondent because no PRSI or tax payments had been made on his behalf.
2.13 Mr Rutkowski gave evidence at the hearing that he worked for the respondent as a
General Operative building reinforced concrete walls and tanks from 12 March 2007 until 27 March 2009 and he was paid €90 per day at the time he left this employment. He contends that the first named comparator, Mr A, was a brother of the respondent and he was paid €180 per day and he was supposed to supervise the complainants. He contends the second named comparator, Mr B, was paid €160 per day, he carried out the same work as the complainants and had some supervisory responsibilities. He contends that both comparators told him...
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