Gaki V Hillmount Properties Ltd t/a Cumiskey's Bar-Restaurant, Dublin
File Ref: EE/2003/334
Date of issue: 19 December 2005
1. DISPUTE
1.1 This dispute concerns a claim by Ms Dimitra Gaki, employed as a waitress in Cumiskey's Bar-Restaurant, that she was entitled to the same rate of remuneration as that paid to Irish members of staff, in accordance with the provisions of section 29 (1) of the Employment Equality Act 1998. Ms Gaki, who is Greek, claimed that she was not paid for public holidays as her Irish colleagues were.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on 20 October 2003 under the Employment Equality Act 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 25 June 2004 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A preliminary hearing was held on 15 September 2004, submissions were sought from both parties and a final hearing was held on 11 November 2005.
2. THE COMPLAINT
2.1 The complainant's case was referred under the provisions of section 29 (1) of the Act which provides
It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer.
Section 28 states that, in relation to the ground of race, "C" and "D" differ as to race, colour, nationality or ethnic or national origins or any combination of those factors.
2.2 Section 29 (5) of the Act provides that
...nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.
2.3 The respondent conceded like work in respect of the complainant and the comparators, and I therefore proceeded on the basis of investigating whether the different rates of remuneration were justified on grounds other than race.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent described its business as a bar which offered two food options, a carvery from 12pm to 3pm (open seven days) and an à la carte menu served from 4pm to 9pm (closed on Sundays and bank holiday Mondays). Generally, some eight to ten waiting staff were employed at any one time, with extra being taken on during peak periods.
3.2 The respondent said the carvery was staffed by three long-term Irish employees, who worked a standard 20-hour week (that is, Monday to Friday from 11am to 3pm) at a rate of €10 per hour at the time of the claim. It said it was difficult to recruit staff for the carvery, partly because the staff received very few tips and also because the hours were unsuitable for students. In the circumstances, the carvery employees were not required to work bank holiday Mondays but were paid for the day.
3.3 The à la carte menu was served by other staff members, most of whom were Irish, and all of whom worked flexible hours. The respondent described its à la carte waiting staff as relatively transient, with several employees working for just a few weeks or months before moving on. They were engaged on variable shifts of two to five nights per week, with starting times varying from 3pm to 5pm. The roster was prepared from week to week, depending on the days and times people were available. As the à la carte menu was not available on bank holidays, employees were not paid unless they worked those days, for example on the carvery.
3.4 The complainant was among these staff members, and was paid at the rate of €10 per hour at the time she left her employment. The respondent accepted that she may have worked an average of 35 hours per week, Monday to Saturday, but said the failure to pay her for bank holidays was unconnected to the fact that she was not Irish. It was solely because she was among a group of employees who were not obliged to work those days and were therefore not paid.
3.5 The respondent pointed out that the complainant had already lodged a claim under the Organisation of Working Time Act 1997, in respect of non-payment for bank holidays and outstanding holiday pay. It said it had inadvertently failed to attend the hearing before the Rights Commissioner and that the complainant had been awarded all of the monies claimed. The respondent suggested that the complainant's subsequent lodging of a claim of unlawful discrimination on the race ground, in respect of the same facts as were dealt with in her earlier claim, exposed it to double jeopardy.
4. SUMMARY OF THE COMPLAINANT'S CASE
4.1 The complainant said she started working in the respondent premises on 26 October 2001. As this was a bank holiday weekend, she worked on the carvery on the Monday. She said she expected to be paid the appropriate rate, but she received no extra payment for the Monday at the end of that week. She said she approached the Manager about the apparent mistake, only to be told that waiting staff were not paid extra for bank holidays. The complainant said that she felt that, as a new employee, she lacked confidence to deal with the matter further at that time.
4.2 The complainant said she approached the Manager at a later stage when she discovered that some Irish staff members were being paid for bank holiday Mondays, although they were not obliged to work those days. She said the Manager questioned her about her source of information, and indicated that he would pay her for bank holidays if she wanted "to go down that road". However, she claimed that he told her on the following day that she would not receive the payment and could leave if she wished.
4.3 The complainant said she continued to work for the respondent for the respondent until 30 July 2003. During this time she did not receive bank holiday pay. When she finally left her employment, she said that she also did not receive her full entitlement to holiday pay. Both of these matters were resolved in her favour by the Rights Commissioner in her claim under the Organisation of Working Time Act. The complainant asserted that she was the only non-Irish full-time staff member, and claimed that the failure to pay her for bank holidays constituted discrimination on the ground of race since Irish members of staff were so paid.
5. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
5.2 The first matter to be dealt with is the respondent's argument that it is being exposed to double jeopardy. According to Res Judicata and Double Jeopardy (McDermott, Butterworths, 1999), double jeopardy is the generic term used in criminal law to protect an accused in certain circumstances, and is described as deriving from the Fifth Amendment to the United States Constitution which provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb".
5.3 It would appear that the term is not used in civil proceedings. However, the same doctrine applies, properly entitled res judicata. McDermott says "The Latin words res judicata mean, literally, the thing has been decided or, in relation to litigation, the case has already been decided. A final judicial decision pronounced by a court of competent jurisdiction, disposes once and for all of the matters decided so that they cannot afterwards be raised for relitigation between the same parties or their privies."
5.4 It appears to me that the salient words in the above extract are "court of competent jurisdiction". The Rights Commissioner is not a court of competent jurisdiction to determine claims of discrimination, as the Equality Tribunal is not a court of competent jurisdiction to determine claims under the Organisation of Working Time Act 1997. Accordingly, I am satisfied that this is not a matter that has already been determined.
5.5 Further, the Employment Equality Acts exclude certain alternative avenues of redress at section 101. This section provides, for example, that an individual may not mutually pursue claims for unfair dismissal and discriminatory dismissal. Mutual proceedings under the Organisation of Working Time Act and the Employment Equality Acts are not among the exclusions. I am of the opinion, therefore, that I have jurisdiction to investigate this claim.
5.6 The facts of the claim are not in dispute. The only members of staff to receive bank holiday payments were the three carvery waitresses, who worked a set 20-hour week, and were not required to actually work on bank holidays. All other waiting staff, including the complainant, worked flexible hours and were not paid for bank holidays unless they worked on the day.
5.7 The complainant asserted that she was the only full-time non-Irish member of staff who was not paid for bank holidays. However, I note that the respondent's practice was in fact not to pay any of the à la carte waiting staff for bank holidays. The only people who were so paid were the carvery staff who were contracted to work a 20-hour week.
5.8 The complainant did not dispute that she was part of what the respondent described as a relatively transient group of staff, each of whom worked variable and flexible hours. It may be that, on balance, she worked more or less the same hours each week during her employment, but neither she nor her à la carte colleagues had contracted working hours.
5.9 The Rights Commissioner was apparently satisfied that the failure to pay the complainant for bank holidays was incorrect under the provisions of the Organisation of Working Time Act, but this cannot constitute evidence of discrimination under the provisions of the Employment Equality Acts. From the evidence of the respondent, uncontradicted by the complainant, bank holiday payments were not made to any of the à la carte staff, who were both Irish and non-Irish. In the circumstances, I cannot find that the treatment of the complainant constituted less favourable treatment on the race ground.
6. DECISION
6.1 Based on the foregoing, I find that Hillmount Properties Ltd t/a Cumiskey's Bar-Restaurant did not discriminate against Ms Dimitra Gaki on the ground of race in relation to her pay, in terms of section 29 of the Employment Equality Acts 1998 - 2004.
Anne-Marie Lynch
Equality Officer
19 December 2005