FULL RECOMMENDATION
SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001 PARTIES : CAHILL MAY ROBERTS - AND - RACHEL O'LEARY (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr Somers |
1. Appeal of Rights Commissioner's Decision PT8836/02/FL - Work Inspection arising from Labour Court Determination PTD034.
BACKGROUND:
2. The dispute before the Court concerns a claim by the Union on behalf of its member who is employed by the Company as a part-time worker, that she is treated less favourably than a named full time comparator. The Union states that the claimant should be paid the same hourly rate as her comparator. It claims that the Company is in breach of the Protection of Employees (Part-Time Work) Act, 2001, (the Act).
The Company rejects the claim stating that the job descriptions of the claimant and the named comparator are different and this difference is reflected in the rates of pay.
The dispute was referred to a Rights Commissioner for investigation. The Rights Commissioner's Decision issued on the 22nd of January, 2003, as follows:-
"The claim is well founded.
The claimant shall be entitled to be paid the same rate of pay as her comparator, i.e. the higher operative rate, from the 1st of January, 2003.
The employer shall pay the claimant €500.00 compensation in respect of the breach of the Act".
The Company appealed the Decision to the Labour Court on the 21st of February, 2003, in accordance with Section 17(1) of the Protection of Employees (Part-Time Work) Act, 2001. A Labour Court hearing took place on the 16th of May, 2003. Determination No. PTD034 was issued on the 5th September, 2003 and stated: "The Court upholds the Decision of the Rights Commissioner on this aspect of the case and rejects this ground of appeal. In relation to the second ground for appeal, namely that the claimant and the comparator do not perform like work, the Court now proposes to address the job content of the claimant and the comparator by means of a work inspection. When that inspection has been concluded, the Court will issue a final determination"The work inspection was carried out on the 23rd March, 2004. The following is the Court's determination.
DETERMINATION:
The Court in Determination No. PTD034 dealt with the issue of objective reasons for the unfavourable treatment of part-time workers, and determined that the reasons for the difference in treatment were no longer objectively justifiable. This determination should be read in conjunction with that determination.
The Court upheld the Decision of the Rights Commissioner on that aspect of the case and rejected the company’s ground of appeal.
In relation to the second ground for appeal, namely that the complainant and the comparator do not perform like work, the Company argues it is not treating the part-time workers less favourably simply because of their part-time status, but rather because the work performed and more particularly the responsibilities assigned to them are quite different and justify different rates of pay.
The Union argues that the differences in the duties performed by the complainant and the comparator are quantitative rather than qualitative, being based on the number of hours worked.
On this aspect of the case, the Rights Commissioner rejected the employer’s arguments and found for the complainant.
The Company appealed this aspect of the Rights Commissioner's decision on the grounds that he erred in law and fact :
(i) in failing to give due consideration to the full range of duties contained in the job description of the comparator and in failing to carry out a proper examination and evaluation of the assigned tasks and responsibilities applicable to both the complainant and the comparator.(ii) in finding that the difference between duties are quantitative rather than qualitative.(iii) in concluding that the main reason for the quantitative difference is the difference in the number of hours they work .
(iv) in failing to find that the differential levels of pay between the complainant and the comparator was based on the greater value which the work of the comparator has for the company than the work of the complainant.
Section 7 (3) of the Act refers to the requirement for both the part time worker and the comparable full time worker to perform the same or similar work under the same or similar conditions :-
(a) “both of the employees concerned perform the same work under the same or similar conditions, or each is interchangeable with each other in relation to the work,(b) the work performed by one of the employees concerned is the same or 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,
- and
The Court decided to carry out an inspection of the workplace of the complainant and the comparator on 23rd March 2004.
The inspection was carried out in accordance with the wishes of both parties who indicated that they were satisfied that all aspects of the work of the complainant and the comparator were thoroughly inspected. Every opportunity was given to both sides to highlight any detail which could be considered relevant in the determination of this case.
The Court has considered the responsibility, skill, physical/mental effort and working conditions attaching to the work of the complainant and the comparator. In so doing, it has carefully evaluated the submissions of the parties and the outcome of the work inspections.
The Company classifies the complainant as a warehouse person while the comparator is classified as a team leader. The Union argues that the comparator is not a team leader, but a warehouse operative, similar to the complainant.
The Company supplied the Court with a list of fourteen duties, which the comparator performs and indicated that the complainant is only required to carry out four of these duties. The Company highlighted the importance of the comparator’s early morning work, which the complainant does not perform.
This was disputed by the Union who indicated that when the complainant is required to report for work before her normal starting time she also performs the early morning duties. This work involves the assembly of refrigerated products. The Company maintains that team leaders normally perform these duties; the Union states that contract drivers occasionally carry them out.
The Company contends that the comparator is required to have a greater involvement in agency work than the complainant; this work involves the processing of documents.
The Company further contends that training is an integral part of the comparator's job and that she had specific responsibility over the ‘returns’ area. The complainant has no such responsibility.
Conclusions of the Court
The Court finds that there are many similarities between the work of the complainant and the work of the comparator. Having interviewed the comparator and having observed the work that she performs the Court is satisfied that her role does not involve a level of supervision and direction of other staff as would warrant the title ‘team leader’. In relation to the fourteen duties mentioned, the Court found that there appears to be flexibility and interchangeability between the complainant and the comparator in terms of these duties. The Court found that neither the comparator nor the complainant carry out all these duties.
While taking responsibility for the ‘returns’ area is one difference in the duties undertaken by the comparator and the complainant, the Court is of the view that this duty, undertaken at her own initiative, is a minor part of the comparator's duties overall and does not require any significant skill or level of responsibility.
Having examined the information supplied to the Court concerning the involvement of the comparator in training other staff, the Court can see no instances when the comparator carried out this role. The information supplied shows that the complainant and the comparator both received similar training, during the period in question.
It is the conclusion of the Court, that greater demands are not placed on the comparator than on the complainant in term of responsibility, working conditions and physical effort.
In regard to skill and mental effort, the Court does not find any significant difference in the demands placed on the complainant and the comparator.
Accordingly, the Court cannot accept that the evidence bears out the Company’s contention that the duties performed and the responsibilities undertaken by the comparator are of such difference as to justify the maintenance of different levels of pay between the complainant and the comparator.
Taking the evidence as a whole, the Court agrees with the conclusion of the Rights Commissioner that the comparator has no formal title that would distinguish her from her fellow workers in the warehouse, that the differences in duties were quantitative rather than qualitative, and the differences in the level of responsibilities are insignificant.
Having regard to all the circumstances of this case, the Court has concluded that the complainant and the comparator are engaged in the same or similar work within the meaning of Section 7(3) of the Act. Accordingly, the decision of the Rights Commissioner awarding the claimant the same rate of pay as the comparator i.e. the Higher Operative rate from the 1st of January, 2003, and awarding her €500 compensation is upheld and the appeal is dismissed.
Signed on behalf of the Labour Court
Caroline Jenkinson
4th May, 2004______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.