FULL RECOMMENDATION
SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001 PARTIES : DUNNES STORES (CAVAN) (REPRESENTED BY WILLIAM FRY SOLICITORS) - AND - GROUP OF WORKERS (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr. Somers |
1. Appeal against a Rights Commissioner's decision PT9890-9928/02, PT 10884, PT 11196-11204, PT11235, PT 10885.
BACKGROUND:
2. There were two issues in dispute (a) 'Sick Pay' and (b)'Service Pay'. The Union claimed that in respect of sick leave entitlements and service pay they are being treated in a less favourable manner than a named comparable full time employee, contrary to Section 9(1) of the Protection of Employees (Part-time) Work Act, 2001.
The dispute was referred to a Rights Commissioner for investigation. The Rights Commissioner decisionwhich issued on the 23rd September, 2003, states:"In accordance with Section 16(2)(a) of the Act I declare the complaint presented by the claimants is well founded. The Employer imposed on them different and lesser conditions of employment in respect of their entitlement to sick pay than that of the comparable full time employees cited by them. There are no objective grounds for the difference".
The Company appealed the Decision to the Labour Court on the 3rd November, 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 5th February, 2004.
DETERMINATION:
The dispute before the Court under the Protection of Employees (Part-Time Work) Act, 2001 (the Act), concerns a claim by the Union on behalf of its members, who are employed in the Cavan branch as part-time workers, that they are treated less favourably than full-time comparators.
The claims before the Rights Commissioner concerned the application of the Company’s sick pay scheme and service pay scheme to part time workers.
The Rights Commissioner's decision issued on the 23rd September 2003. In concluding that the claims were well founded, she decided that the Company should take the steps necessary to comply with: -
(i) the terms of the sick pay scheme, in the same manner as applies to the comparable full-time employee with effect from specified dates (details contained in the decision)
- and
She also awarded compensation in respect of each complaint.
The Company appealed the Rights Commissioner’s decision to the Labour Court on the 3rd November 2003, in accordance with Section 17(1) of the Protection of Employees (Part-Time Work) Act, 2001.The appeal was made on the basis that the Rights Commissioner erred in fact and in law in holding that a comparator with more than 10 years service was a valid comparator and that the awards of compensation were excessive in all the circumstances. The finding of the Right's Commissioner that the terms of the sickpay scheme were in breach of the Act were not, per se, part of the grounds of appeal.
Sick Pay Scheme
The Company operates a Sick Pay Scheme, which differentiates, in terms of qualification and benefits, between full-time and part-time staff.
Full-time workers qualify for sick pay after six months service, full basic pay less Social Welfare is paid on the first day of illness and medical certification is not required for the first or second day. Full-time staff are entitled to twelve paid days sick pay, and to three days uncertified paid sick pay, per calendar year.
Part time workers qualify for sick pay benefit after one years service working at least eighteen hours per week and benefit is not paid for the first three days of illness. Part-time workers have no sick pay entitlement to uncertified sick days.
The Rights Commissioner decided to uphold the complaint and require the respondent to treat the claimants no less favourably in respect of Sick Pay than the named comparable full time employee, in accordance with the provisions of the legislation, with effect from a date specified in respect of each named claimant. She awarded €500 net compensation to each claimant in accordance with the provisions of Section 16 (3) of the Act.
Company’s Arguments
The Company submitted that the instant case may be distinguished from ED/02/34 Determination No:02/12 NBK Designs v Ms. Maria Inoue and from ED/02/58 Determination No: 03/5 A Company v A Worker. In both these cases the complainants had lost their jobs because of discrimination, which involved compensation for the distress and inconvenience caused.
The Company stated that the only distress or inconvenience the claimants have suffered is in appending their signature to the forms they completed. Therefore any compensation should be limited to actual loss if any, suffered by them.
The Company further stated no figures had been put forward by the Union as to actual losses sustained.
Unions Arguments
The Union submits that the rights at issue in this case arise from the Community Charter of the Fundamental Social Rights of Workers. Where such rights are breached, the redress available to the worker must provide adequate compensation and must deter employers from future infractions.
It stated that as the claim was served on the Company within six months of the coming into effect of the Act any loss suffered by the claimants from 20th December 2001 should be compensated. The award of the Rights Commissioner merely provided compensation from the date of the receipt of the complaint by the Rights Commissioner Service. The Company derived a benefit from not having applied the provisions of the Act appropriately and on time.
Conclusion of the Court
Having considered the circumstances of this case the Court accepts that while it may not be feasible to quantify the actual losses incurred concerning the Company’s sick pay scheme, that such losses did occur as a result of the Company’s infringement of the Act. The Court does not accept that the award of compensation recommended by the Rights Commissioner was excessive in all the circumstances and concurs with her findings.
Service Pay
The Company provides a service pay scheme to full time workers as follows:
After 5 years: €0.64
After 10 years: €1.27
After 15 years: €1.91
After 20 years: €2.54
Part time workers with less than 10 years do not receive service pay.
The Rights Commissioner decided to uphold the complaint and require the respondent to treat the claimants no less favourably in respect of Service Pay than the named comparable full time employee, in accordance with the provisions of the legislation, with effect from the date of the decision (23rd September 2003). She awarded €60 net compensation to each claimant in accordance with the provisions of Section 16 (3) of the Act.
The Applicable Law
Section 9 (1) of the Act states:
" subject to subsection (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment be treated in a less favourable manner than a comparable full-time employee"
Section 7 defines the criteria, which must be fulfilled in order for the two employees to be comparable. Amongst these are:
7(2) an employee is a comparable employee in relation to the employee first mentioned in the definition of part-time employee ……………. if;
- (a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees.
The conditions referred to in subsection (3) are as follows:
- (a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work or;
- (b) the work performed by one of the employees concerned is of the same or 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
- (c) the work performed by the relevant part-time employee is equal or greater in value to the work performed by the other employee concerned having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.
It is common case between the parties, that for the purposes of the Act, the claimants are part-time employees and the comparators are comparable full-time employees and that both the claimants and the comparators perform the same work.
Section 10 (1) states:
- "The extent to which any condition of employment referred to in subsection (2) is provided to a part-time employee for the purpose of complying with Section 9(1) shall be related to the proportion which the normal hours of work of that employee bears to the normal hours of work of the comparable full-time employee concerned.
Union Arguments
The Union argues that the Rights Commissioner was right in holding that the comparable full-time employee named by the Union, was a valid comparator for the purposes of the Act.
It is the Union’s submission that the comparator is a comparable full-time employee in relation to each of the claimants and that the conditions set out at Section 7(3) of the Act are fulfilled in respect of each of them.
The Union hold that the Act is derived from a Directive which is based on the same general principles of equal treatment as are enshrined in Article 141 of the European Treaty and Directive 75/117 in relation to equal remuneration as between men and women. In accordance with the underlying principle of the Directive, what has to be decided is the value, which is placed on the job by the employer where it is carried out by a full-time employee. Less favourable treatment occurs where it can be shown that the same job is given a lesser value where part-time employees carry it out.
The Union maintains that the purpose of a ‘comparator’ is to illustrate the value placed on the job when a full-time worker carries it out. It is submitted by the Union that it is sufficient to show that the comparators were in receipt of the amount claimed at a point when they had the same service as the claimants had when they made their claim.
Finally, the Union argues that there is nothing in the wording of the Act, which indicates that it is necessary for the comparator to be in receipt of the condition of employment at issue at the date on which it is claimed by the claimant. The Union cites ECJ caseMcCarthys Ltd v mith Case C-129/79in support of its argument that the claimant and the comparator do not have to be employed by the same employer at the same time.
Therefore, the Union claims that the difference in treatment afforded to the claimants relative to the comparators relates solely to their status as part time workers and on that basis they are entitled to succeed.
Company’s Argument
The Company submit to the Court that the comparator chosen by the claimants has over 10 years service and as such is not an appropriate comparator, therefore their complaint is imprecise and unsustainable. The Company citedBrides v Minister for Agriculture [1998] 1 I.R. 250andMcCarthy Limited v Smith [1980] E.C.R. 1275.
It also argued that the entitlement to service pay is dependent on the number of hours worked within the meaning of Section 10 (2) of the 2001 Act and that, having regard to Section 10 (1), the Company is in compliance with Section 9 (1). In this respect, it reserves the right to rely onDanfoss [1989] E.C.R. 3199.
Conclusion of the CourtThe Court has carefully considered the submissions and the evidence advanced by the parties in this claim.
The central point at issue is whether the claimants, part-time workers who have between 5 and 10 years service, are entitled to use as a comparator a full time worker who has between 10 and 15 years service. The Court was referred by both parties to the case ofMcCarthys Limited v Wendy Smith 129/79 ECJ(the Smith case) and by the respondents to the case ofBrides and Ors v Minister for Agriculture Food and Forestry and ors [1998] 4 I.R. 250(the Brides Case).
In addition the Company states that if the claimants are entitled to service pay that entitlement is a benefit which is dependant on the number of hours worked within the meaning of section 10 (2) of the Act and therefore the payment in accordance with Section 10 (1) must be proportionate to the number of hours worked by the claimantvis a visthe full-time comparator. The Company in its submission stated that it would be relying on the case ofHandels- og Kontorfunktionaerernes Forbund I Danmark V Dansk Arbejdgiverforening acting on behalf of Danfoss Case 109/88(The Danfoss Case) to show that it was in compliance with its obligations under Section 9 (1) of the Act.
To dispose of the second of these contentions first, for proportionality to apply the benefit must be dependant on the hours worked by the part-time worker in any particular periodvis-a-visthe hours worked by the full-time comparator in any particular period. This is a claim in respect of service, which is dependant on the number of years worked by the claimant. It is not a claim dependant on the hours worked and therefore in the view of the Court, Section 10 of the Act is not applicable in this particular case. The respondent did not identify any particular portion of the Danfoss case on which it would rely on in support of its contention, and this Court, cannot identify any particular passage which might assist the respondents in their argument. On this point therefore, the respondent fails.
In relation to the contention advanced by the respondents that the comparator is not the correct comparator, the Court has studied the relevant provisions in section 7 of the Act. The Court is of the view that the claimants and the comparator both fulfil the criteria under Section 7 of the Act. The Court is asked to find that the comparator must be somebody with a contemporaneous length of service. There is no such criteria laid down by the Oireachtas and accordingly no such criteria could be imposed by this Court.
The Court is assisted in its view by the findings of the European Court of Justice (ECJ) in the Smith Case at paragraph 19. The ECJ states:
- “ Article 119 applies to the case where it is established that, having regard to the nature of their services, a woman has received less pay than a man who was employed prior to the woman’s period of employment and who did equal work for the employer”.
It must be accepted therefore that if a former employee may be used as a comparator, a current full time employee may also be used as a comparator.
The respondents also sought to rely on the statement of Budd J at page 270 of the Irish Report in the Brides case wherein he stated:
- “ In short, one has to find an actual concrete real life comparator”
- “ In short, one has to find an actual concrete real life comparator”
Given the criteria laid down in section 7 of the Act and the statement of the European Court of Justice in the Smith case, this Court cannot accept this contention.
The Court therefore finds that the comparator is a comparable employee within the meaning of the Act. It further finds that the claimants are entitled to compare the service pay, which the comparator received during the period between his fifth and tenth year of service with the service pay or lack of it, which they are receiving during the same period of their employment.
Based on this comparison the Court finds that the claimant has been subjected to less favourable treatment in breach of Section 9 of the Act, that no objective justification has been advanced for this treatment and that the condition of employment to which this treatment applies does not come within the scope of Section 10(2) of the Act
Determination
The Court determines that the respondent's policy of not paying service pay to those with service between 5 and 10 years constitutes a contravention of section 9(1) of the Act. The Court dismisses the Company’s appeal on this ground.
As previously stated, having considered the circumstances of this case the Court accepts that while it may not be feasible to quantify the actual losses incurred concerning the Company’s sick pay scheme, that such losses did occur as a result of the Company’s infringement of the Act. It also accepts that the claimants are at a loss of service pay as a result of the Company’s non application of this benefit to those with between five and ten years service.
The Court does not accept that the award of compensation recommended by the Rights Commissioner in respect of this aspect of the claim was excessive in all the circumstances and concurs with her findings. The Court dismisses the Company’s appeal.
In accordance with its powers under section 17 (1), the Court determines that the complaint is well founded and upholds the decisions of the Rights Commissioner.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
12th_May, 2004______________________
JB/MCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.