Case Number: DEC-E2013-022- Full Case Report. Equality Tribunal

• Judgment Date: 01 March 2013
• Docket Number: DEC-E2013-022- Full Case Report
• Court: Equality Tribunal

DECISION NO: DEC-E/2013/022

PARTIES SAMAITAS
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES - SOLICITORS)

AND NURENDALE LTD. T/A PANDA WASTE
(REPRESENTED BY MR. ANTHONY PAUL BYRNE BL INSTRUCTED BY IN-HOUSE SOLICITORS)

File No: EE/2010/130 & EE/2011/555 Date of issue: 19 March, 2013

Headnotes: Employment Equality Acts 1998- 2011 - sections 6, 8 & 74 - race - discriminatory treatment -victimisation - illegal performance of contract - enforcing contract tainted by illegality

1. DISPUTE

This dispute involves claims by Mr. Augustus Samaitas, who is a Lithuanian national, that he (i) was discriminated against by the respondent in respect of his conditions of employment on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts, (ii) performs like work, in terms of section 7(1)(a) of the Employment Equality Acts, 1998-2011 with two named comparators, who are of different nationalities to him, and is entitled to the same rate of remuneration as paid by the respondent to those comparators in accordance with section 29 of those Acts and (iii) was victimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998-2011.

2. BACKGROUND

2.1 The complainant commenced employment with the respondent as a Helper in May, 2007 and was appointed to the position of Driver in February, 2009. He contends that he was discriminated against by the respondent on grounds of race contrary to the Employment Equality Acts, 1998-2008 in terms of his conditions of employment. He further contends that he performs like work with two named comparators, of different nationalities to him and is therefore entitled to the same rate of remuneration as paid by the respondent to those comparators in accordance with section 29 of the Employment Equality Acts, 1998-2011. Finally he asserts that he was victimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998-2011 for having referred a complaint to this Tribunal. The respondent rejects the complainant's assertion that it discriminated against him on grounds of race or that it victimised him in terms of section 74(2) of the Acts. It accepts that the complainant performed like work in terms of section 7(1)(a) of the Employment Equality Acts, 1998-2011 with the two named comparators and submits that (a) there was no difference in the rates of remuneration paid to them for a period covered by the claim and (b) during the period when there was a difference in the rates of remuneration paid to them and the complainant, those rates are lawful in accordance with section 29(5) of the Acts. As a preliminary point the respondent submits that the complaints should not be heard by the Tribunal as the complainant fraudulently misrepresented his position in terms of holding a valid driving licence to perform his duties, a matter which was the subject of criminal proceedings and consequently he invalidated his contract of employment.

2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 -2008 to the Equality Tribunal on 24 February, 2010 alleging that he was discriminated against by the respondent on grounds of race in terms of his conditions of employment. He referred a second complaint to the Tribunal on 26 July, 2011 contending that he performed like work, in terms of section 7(1)(a) of the Employment Equality Acts, 1998-2011, with two named comparators of different nationalities to him and he was therefore entitled to the same rate of remuneration as paid to those comparators by the respondent in accordance with section 29 of those Acts. The complainant referred a third complaint to the Tribunal on 14 December, 2011 asserting that he was (i) discriminated against by the respondent in respect of his conditions of employment on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 -2011 and contrary to section 8 of those Acts and (ii) victimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998-2011 for having referred his previous complaints to the Tribunal. In accordance with his powers under the Acts the Director delegated the complaints to the undersigned - Vivian Jackson, Equality Officer - for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaints commenced on 4 May, 2012 - the date the complaints were delegated to me. A hearing on the complaints took place on 16 May, 2012. At the outset of this Hearing the complainant's representative withdrew the entirety of the first complaint referred to the Tribunal alleging discrimination on grounds of race in respect of his conditions of employment. A number of issues arose at the Hearing which required further clarification and gave rise to correspondence between the Equality Officer and the parties. This process concluded in late August, 2012.

3. SUMMARY OF COMPLAINANT'S CASE

3.1 The complainant rejects the respondent's argument that the Tribunal has no jurisdiction to investigate his complaints. He accepts that he was convicted in the District Court under the road traffic legislation for driving without a valid and correct driving licence but argues that this matter only came to light after he had referred his complaints to this Tribunal. Consequently, the Tribunal should proceed to investigate his complaints.

3.2 The complainant commenced employment with the respondent as a Helper in May, 2007 and was appointed to the position of Driver in February, 2009. His...