The Employment Equality Act, 1998
Equality Officer Decision
DEC-E2007-030
Mitchell (Unrepresented)
-v-
Har-Bri Fireplaces (Represented by Mc Mullin Solicitors)
1. CLAIM
The case concerns a claim by Mr. Raymond Mitchell that Har-Bri Fireplaces discriminated against him on the gender and race grounds in terms of section 6(2)(a) and (h) of the Employment Equality Act, 1998 and in contravention of sections 19 and 29 of the Act in relation to his pay.
2. BACKGROUND
2.1 The complainant claimed that he was paid less than another male colleague on the grounds of gender and race. The respondent submits that the complainant had settled all claims against the company on the termination of his employment and that he received consideration for the settlement of the claims. It submits that he was represented by his Trade Union in negotiating the settlement. The complainant submits that he did not settle or compromise any claims under the Employment Equality Act, 1998 and that the consideration paid related to his dismissal and the termination of his employment.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 15 March 2004. On 14 June 2006, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, 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 considerable number of submissions were received from the complainant and a submission was received from the respondent on 26 July 2006 on the preliminary issue of the complainant having settled the claim and a submission on the substantive issue was received on 19 September 2006. A joint hearing of the claim was held on 15 March 2007. Information requested at the hearing was received from the respondent on 23 April 2007.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant claims that a named male comparator was paid much higher wages than him. He claims that Mr. C as driver of the van was paid more than him and he submits that he was discriminated against on the gender and race grounds. Their jobs were to fit fireplaces. He submits that the comparator was Irish and that he was paid less than the comparator because he is British. He submits that he started working for the respondent around January 1997 and worked for him for five and a half years until he was dismissed in July 2002 .
3.2 The complainant states that although he and Mr. C fitted the fireplaces together, he mixed the cement to a specific consistency while Mr. C would be standing by waiting for him to carry the buckets across from the van to wherever the fireplaces were to get fitted. He submits that the old fireplace might first have to be removed which is a two man job and both of them would do it. He submits that they would both carry the fireplace to where it was to be fitted and the fireplace would then be lifted by both of them into position and levelled and drilled to the wall by the comparator or himself. He submits that either himself or the comparator would plaster over the gaps surrounding the fireplace to seal it in. As one of them sealed the fireplace, the other one would clean up and remove the dust sheets. He submits that when Mr. C would be cleaning off the fireplaces, he would have to wash buckets, tools and store them in a safe place inside the van. He submits that at times, he also had to drive the van into awkward places or reverse it back out where Mr. C could not do it.
3.3 The complainant submits that he was unfairly dismissed on 12 July 2002 and that he was subsequently paid €7,000 in a settlement for unfair dismissal. He submits that the settlement does not relate to underpaid wages and only refers to the termination of his employment.
3.4 The complainant submits that the comparator is a Northern Ireland person who can claim either Irish nationality or British nationality. He submits that he is a true blue British subject, that there's nothing nomadic about him and that both his parents are British.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent liaised directly with Mr. Mc Kinney of SIPTU subsequent to the complainant initiating unfair dismissals proceedings. The SIPTU representative would have fully advised the complainant of all issues relating to his settlement. As a result of discussions and negotiations between the parties, the settlement agreement of 23 April 2003 was executed.
4.2 The respondent submits that the settlement agreement with the complainant precludes him from taking further claims against the respondent. It was the intention of the parties that it would be in full and final settlement of all claims arising out of the complainant's employment in relation to his rate of pay, holiday entitlements, hours and work. The complainant would have been advised at the time by his Union that the agreement precluded him from making any further claims against the respondent. The respondent submits that the complainant had been so advised and voluntarily signed the settlement agreement.
4.3 The respondent disputes the complainant's contention that the settlement agreement merely covered the issue of dismissal and not wages. The respondent submits that the issue of wages was a crucial issue in the alleged constructive dismissal. The unfair dismissals claim refers to a claim by the complainant in relation to "the issues of rate, pay, holiday entitlements, hours and work". It was the clear intention of both parties that the settlement would address all issues raised in that application to include wages.
4.4 The complainant had no experience in the fireplace trade and was employed as a general unskilled labourer. As an unskilled labourer, his duties were to carry out the following tasks:
¨ tending to the fireplace fitter by way of carrying equipment, mixing cement, fetching tools and all ancillary tasks as delegated by the fitter;
¨ when on company premises and on site, his duties included the general upkeep of the premises including the grounds i.e. sweeping the yard, grass cutting, cleaning, guttering, lifting leaves etc.
On commencement of his employment, the complainant was paid a weekly wage of £130 which was a standard wage for an unskilled person with no responsibilities and who was entering the workplace on a FAS Back to Work Scheme.
4.5 Normally, each fireplace fitter would be assigned an unskilled labourer to assist them. They would then be assigned a number of fireplaces to fit in various locations. The labourer would load the van which would then be driven by the fitter to each location. They would return to the yard at 5.30pm. During the time that the complainant was employed, there were 6 other staff members. All other staff members had higher skill levels in their areas of work and were paid in accordance with their level of experience and responsibility. These included a fireplace sprayer (UK), a manufacturer of marble fireplaces (Irish), a carpenter/fitter (Irish), a carpenter/fitter (UK), fireplace fitter (UK -. the comparator) and an unskilled labourer, (UK). The respondent believes the complainant to be Scottish but of Irish descent and has been living in Ireland for 10 years or more. The respondent's work force at the time was made up of mainly UK residents of different denominations and still is to this day. The complainant's role within the company was a completely different role than that of all the other fireplace fitters and Mr. C, the comparator.
4.6 Following the commencement of the unfair dismissal proceedings, the complainant was represented by SIPTU and a settlement agreement was signed following negotiations. It transpired that the complainant had been liaising with SIPTU for 2-3 years prior to taking his unfair dismissal claim. At no stage did the complainant raise the issue of discrimination or any of the other issues now being raised. The respondent disputes that the complainant was discriminated against.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly discriminated against him on the gender and race grounds in relation to his pay. The complainant also sought to refer claims of discrimination, harassment and victimisation. The claims were deemed by the Tribunal to be inadmissible as they were referred over a year and a half after the complainant ceased in employment and were therefore outside the statutory time limit for referring claims. A preliminary issue arose as to whether the complainant had compromised an equal pay claim when he signed an agreement following his dismissal to accept a sum of money in full and final settlement of all matters relating to the termination of his employment. I will deal with the preliminary issue before dealing with the substantive issue of whether discrimination occurred. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
5.2 The relevant extract from the agreement dated 23 April 2003 which was signed by the complainant states:
"Without prejudice to either parties position, Har-Bri Manufacturing Ltd., agrees to pay Mr. Raymond Mitchell the sum of €7,000 net lump sum payment and Mr. Raymond Mitchell for his part agrees to accept this sum as a full and final settlement of all matters relating to the termination of his employment by Har-Bri Manufacturing Ltd."
On 14 October 2003, the complainant signed a document accepting the monies which stated that the cheque was in "full and final settlement in all matters relating to the termination of my employment....."
Caselaw on compromising claims
5.3 The High Court in PMPA Insurance Co. v. Keenan (1) considered the issue of whether an equal pay claim had been compromised. Ms. Justice Carroll stated in relation to the settlement of claims generally:
If an individual currently receives equal pay under his or her contract of employment, and an agreement not to pursue a claim for arrears of equal pay is supported by consideration (e.g., additional benefits to which the individual would not otherwise by entitled), I can see nothing contrary to public policy in allowing the parties to compromise, in such a fashion, what is a claim for a liquidated sum. If there was no such consideration, and an employer, being legally obliged to pay equal remuneration from the 31st December, 1975, agreed to pay it from a later date provided there was a waiver of past claims, it could not be said that there had been a valid waiver since the employer would have done nothing that he was not obliged to do by law; therefore, there would have been no consideration to support the waiver.
5.4 In the PMPA case, the High Court also considered the meaning of "all claims" and held:
"The words "all claims" could not mean "all claims by employees" -- e.g., including a claim by an employee for personal injuries against the company. The words must be limited by the context of the negotiations. In my opinion, they could be construed as meaning all claims connected with the matters on which the trade union was negotiating, i.e., current remuneration.
Ms. Justice Carroll then considered that in that case, it was not clear that the union officials were negotiating in respect of individual claims for arrears of equal pay and the parties were not estopped from claiming arrears.
On appeal to the Supreme Court, Mr. Justice Henchy agreed with Ms. Justice Carroll's interpretation of "all claims" and held:
"The words "all claims" should be held to include no more than salary claims made in the negotiations leading to that settlement, and there is no evidence that the present claim came up in those negotiations."
The evidence in this case
5.5 The complainant referred a claim of Unfair Dismissal to the Labour Relations Commission on 15 July 2002. The claim form states that the complainant was dismissed for standing up for his rights as an employee in relation to his rate of pay, holiday entitlements, union membership and hours of work. A SIPTU Union Official acting on behalf of the complainant liaised with the respondent in relation to seeking to agree a settlement of the claim. The Union Official who negotiated the settlement on behalf of the complainant gave evidence that he explained the situation to the complainant that the settlement was the best that could be achieved and he gave him examples of the amount of awards at the time. He also discussed the settlement terms briefly with another Union Official before the complainant signed it. He did not specifically raise with the complainant the issue of equality proceedings and he stated that dismissal and proper payment of wages were the main issues he was dealing with at the time. It was not submitted by the respondent and there is no evidence to suggest that the parties in the course of negotiations leading up to the signing of the agreement discussed any equality claim that the complainant might pursue. On the contrary, the respondent stated in its written submission that "At no stage did the Claimant raise the issue of discrimination or any of the other issues now being raised." It is also the case that there was no equality claim in existence at the date that the agreement was signed. Taking into account the context of the negotiations and the evidence of the parties, I find that there was no compromise of an equal pay claim and that the consideration in the Settlement Agreement related to consideration for settling the complainant's unfair dismissal claim and does not relate to consideration for a compromise of an equality claim by the complainant. I shall therefore proceed to consider the claim of equal pay on the grounds of gender and race. The complainant is seeking equal pay with a named male comparator on the grounds of gender and race in terms of Section 19(1) and 29(1) of the Employment Equality Act, 1998.
Gender Discrimination Claim
5.6 The complainant who is male referred a claim for equal pay on the grounds of gender. The named comparator, Mr. C is also male. In accordance with section 6 of the Employment Equality Act, 1998, a claim on the gender ground may only be made on the basis that one person who is male is paid less than another person who is female or vice versa. As the complainant and the named comparator are both male, it follows that any difference in pay between them cannot be due to their gender and the claim on the gender ground therefore fails.
Race claim
5.7 The complainant has also sought to refer a claim for equal pay on the grounds that he is British and received less pay than the comparator who is Irish. The respondent submitted that the respondent's workforce at the time that the complainant was employed was made up mainly of UK residents of different denominations and still is to this day. The respondent submitted that the named comparator, Mr. C is also British. The comparator, Mr. C gave evidence at the hearing that he is British and holds a British passport and does not hold an Irish passport. His passport was submitted in evidence. The passport is a UK passport which was issued in June 2004. Again, as the complainant and the comparator both claim the same nationality, any difference in their pay cannot be attributable to their nationality and the claim on the race ground therefore fails.
Amounts of pay
5.8 The complainant claims that he was dismissed on 12 July 2002. The respondent submitted copies of the P35 Declarations sent to the Revenue Commissioners for the full tax year ending 5 April 2001 and the adjusted tax year from April 2001 to 31 December 2001. On consideration of the Declaration for the year ending 31 December 2001, the calculations arising from the information contained in the document indicates that the complainant was in receipt of £5.28 (punts) per hour based on a forty hour week. However, I must point out that the complainant disputes that he worked a 40 hour week. Mr. C's gross salary per hour at that time based on the information provided and the respondent's statement that he worked a 16 hour week due to family commitments was £5.63 (punts).
6. DECISION
6.1 On the basis of the foregoing, I find that the respondent did not discriminate against the complainant on the gender and race grounds in terms of section 6(2)(a) and (h) of the Employment Equality Act 1998 in relation to his pay.
________________
Mary Rogerson
Equality Officer
24 May 2007
notes
(1) [1983] 1 I.R. 330