FULL RECOMMENDATION
SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974 PARTIES : O' SULLIVAN D'ARCY ENGINEERING LIMITED (REPRESENTED BY THE CONSTRUCTION INDUSTRY FEDERATION) - AND - MANDATE DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Ms Ni Mhurchu |
1. Appeal against Equality Officer's Recommendation EP23/98 and appeal for Determination that Equality Officer's Recommendation EP23/98 has not been implemented.
BACKGROUND:
2. The claimant is employed as a shop assistant at Killarney Household and Gifts, Plunkett Street, Killarney. In January, 1998, the Union submitted a claim to the Company on her behalf that she was entitled to the same rate of remuneration as that paid to one or other of two named male comparators who were employed at Killarney Hardware, College Street, Killarney. Both businesses are owned by the same company. One of the comparators was employed as a sales assistant, on a higher rate of remuneration than that paid to the claimant. The other comparator carried out a joint managerial role, in addition to sales, and was paid a higher rate of remuneration than both the first comparator and the claimant.
Following the Company's rejection of the claim, the Union referred the dispute in April, 1998, to an Equality Officer for investigation and recommendation under the terms of the Anti-Discrimination (Pay) Act, 1974. The Union claimed that the claimant performed "like work" with the two comparators within the meaning of Sections 3(b) and 3(c) of the Act. It rejected the Company's contention that there were grounds other than sex to justify the pay differentials between the claimant and the comparators. It argued that length of service with the Company was immaterial to the jobs being performed and that the Company placed a greater value on the jobs of the comparators.
The Company rejected the Union's claim that "like work" as defined by Section 3(b) and/or Section 3(c) of the Anti-Discrimination (Pay) Act, 1974, existed between the work of the claimant and that of the named comparators. The Company also contended that the comparators' longer service and the managerial responsibilities of one of the comparators amounted to grounds other than sex to justify the pay differentials.
Following his investigation the Equality Officer concluded that the claimant performed "like work" with one of the named comparators, but not with the other. He found that the Employer had not discharged the onus on her to show that there were grounds other than sex to justify the pay differential. He found that the claimant had an entitlement to equal pay with the named comparator. He issued his Recommendation on the 23rd of December, 1998, as follows:-
"In view of my conclusions that Ms. Looney performs like
work with the work performed by Gerard Warran, in terms of
Section 3(b) of the Anti-Discrimination Act, 1974, and as I
have also found that there are no grounds other than sex
to justify the difference in their remuneration I find that she
has an entitlement to the same rate of remuneration as that
paid to him.
The claim for equal pay was received on the 30th April,
1998. Section 8(5) of the Act provides for the payment of
arrears of remuneration up to a maximum of three years
from the date on which the relevant dispute was referred. I
therefore recommend that the appropriate retrospection be
paid to the claimant."
On the 15th of January, 1999, the Union appealed the Recommendation to the Labour Court for a Determination that the Equality Officer's Recommendation EP23/98 had not been implemented.
On the 27th of January, 1999, the Construction Industry Federation, on behalf of the Employer, appealed against the Recommendation on the following grounds:-
"1. We do not agree with the Equality Officer's finding, that
the claimant in this case, Ms. Carmel Looney, performs
"like work" with the comparator, Mr. Gerard Warran.
2. We feel that imposing the maximum penalty available
under the Act to be a punitive measure against the
Company, particularly in light of the circumstances of
this case."
The Labour Court heard the appeal in Tralee, Co. Kerry, on the 8th of July, 1999. Both parties made written and oral submissions to the Court. The Court also carried out work inspections of the duties of both the claimant and the comparators on the 7th of September, 1999.
DETERMINATION:
This is a claim by MANDATE on behalf of a female shop assistant for equal pay with one or other of two named comparators under the Anti-Discrimination (Pay) Act, 1974. The claim was investigated by an Equality Officer who found that the claimant was entitled to equal pay with one of the named comparators. The Equality Officer also recommended that the claimant receive arrears of remuneration for the three years prior to the date on which the dispute was referred. It is against this recommendation of the Equality Officer that the respondent appealed to the Court.
MANDATE, on behalf of the claimant, have accepted the recommendation of the Equality Officer and have approached the case on the basis that the claimant is engaged in like-work with the comparator identified by the Equality Officer in his recommendation.
The background and material facts of this case are accurately recited in the report of the Equality Officer.
The Court has carefully considered the written and oral submissions made by the parties and has reviewed the report of the Equality Officer (EP23/98). The Court also conducted its own inspection of the work of the claimant and the comparators. On the basis of its own investigation the Court finds itself in full agreement with the conclusions reached by the Equality Officer. The Court adopts those conclusions and the reasoning on which they are based.
The Court upholds the Equality Officer’s recommendation and determines that the claimant performs like-work with the work performed by the named comparator in terms of Section 3(b) of the Anti-Discrimination (Pay) Act, 1974. The Court also finds that there are no grounds other than sex to justify the difference in remuneration between the claimant and the comparator. On the basis of this finding the claimant is entitled to the same rate of remuneration as that paid to the comparator.
The Court further affirms the recommendation of the Equality Officer that the claimant be paid the difference between the pay she received and the pay received by the comparator backdated for a period of three years from the date of claim (i.e. 1st of May, 1998).
The appeal by the respondent is dismissed and the recommendation of the Equality Officer is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
30th September, 1999______________________
D.G./D.T.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Dympna Greene, Court Secretary.