OFFICE OF THE DIRECTOR OF
EQUALITY INVESTIGATIONS
EMPLOYMENT EQUALITY ACT, 1998 TO 2008
EQUALITY OFFICER’S DECISION NO: DEC-E -2008 - 043
PARTIES
Mr Rodrigo da Silva Dias
(Represented by James Canny, Solicitor)
AND
Donegal Meat Processors
(Represented by Matheson Ormsby Prentice, Solicitors)
File No: EE /2005/088
Date of Issue : 5 August, 2008
1. DISPUTE
1.1 This dispute concerns a claim by Mr Rodrigo Dias that the respondent discriminated against him on the grounds of his race in relation to pay and that he was dismissed in circumstances amounting to discriminatory dismissal contrary to the provisions of the Employment Equality Acts, 1998 to 2008 (referred to here as the Acts).
2. BACKGROUND
2.1 The complainant, who is of Brazilian nationality, was employed as a General Operative in the Slaughterhall at Donegal Meat Processors from 9th October, 2001 until 3rd September, 2004. In his initial complaint the complainant stated that he was being paid €1 per hour less than his Irish counterparts but did not name any comparators. He also alleged that he was ‘let go’ from his employment because of his race however this aspect of the complaint was later withdrawn.
2.2 The complainant referred a complaint to the Director of Equality Investigations on 16th March, 2005 under the Employment Equality Act, 1998. In accordance with her powers under section 75 of that Act, the Director delegated the case on 30th September, 2005 to Raymund Walsh, Equality Officer, for investigation, hearing and decision.
3. NAMING OF COMPARATORS
3.1 A preliminary hearing was held on 29th March 2006. The complainant, while referring to Irish co-workers in general terms, was unable to specifically name Irish workers whom he considered to be valid comparators except for the first name of one employee. The respondent, which was represented by IBEC at this point in the investigation, indicated that it would reserve its position in relation to the names of possible comparators until its submission and that it would contest the existence of ‘like work’ within the meaning of Section 7 of the Acts. I advised the parties that job descriptions would be required from each each side in relation to the complainant and comparator(s) but that it was for the complainant in the first instance to name one or more comparators. I indicated that I would also require a submission on behalf of the complainant in relation to alleged discriminatory dismissal. The complainant’s representative undertook to revert to the Equality Officer with the names of the comparators. Correspondence ensued up to 5th October, 2006 in which the complainant’s representative gave the first names of three comparators and said that he was still endeavouring to establish full names through a local contact.
3.2 I referred the parties on 18th January, 2007 to a recent decision of the Labour Court under the 1998 Act in Irish Ale Breweries (Trading as Diageo European Global Supply) and Noeleen O'Sullivan (ADE/05/13 Determination No.0611 dated 18th August, 2006) where the Court stated :
“The Court accepts that it is normally for the Complainant to prove the existence of like work with her nominated comparator. However, the rigid application of this rule could impair the effectiveness of the protection afforded by the Directive and the Act. It follows that where a Complainant is obstructed by her employer in obtaining evidence which is in the employer's power of procurement, the employee cannot be thus deprived from an effective means of advancing her claim and the employer cannot derive an advantage from its own default.”
While the complainant had not sought information directly from the respondent pursuant to Section 76 of the Acts nor been refused information as happened in the above case, I indicated to the parties that the Labour Court decision above could have a bearing on any decision that I would be required to make in the matter and asked the respondent if it was prepared to make available to the complainant’s legal representative the names and grades of staff which he might consider relevant to the claim. IBEC, on behalf of the respondent, requested a further preliminary hearing in the matter. A further preliminary hearing scheduled for 27th February, 2007 was postponed at the request of the complainant’s representative and took place on 5th June, 2007. The respondent however continued to reserve its position in relation to the full names of possible comparators although I requested this information at the hearing. In subsequent correspondence with the IBEC representative I referred the respondent to provisions of Sections 95, 96, 99 and 100 of the Acts regarding the requirements on persons to provide information in the course of an Equality Officer’s investigation and the sanctions for failing to do so. I also repeated my request that the respondent provide additional information in relation to the comparators for which the complainant had provided first names.
3.3 The legal representatives named above for the respondent were then instructed to act for the respondent and requested an extension of the time allowed to respond to issues raised in earlier correspondence. In subsequent correspondence the respondent’s legal representatives named three employees to whom the complainant may have been referring when he gave the first names of three comparators however the respondent requests that I have regard to the fact that the full names were not provided by the complainant and that it cannot conclusively state that they are in fact the same three persons. Submissions were subsequently furnished by the parties in relation to ‘like work’ and ‘grounds other than race’ however the complainant’s representative, having provided no statement as requested in relation to alleged discriminatory dismissal, confirmed on 19th February, 2008 that the investigation was to proceed solely on the basis of an equal pay complaint.
3.4 A full hearing and workplace inspection took place on 28th February, 2008 at which I requested additional information from the respondent with regard to the grading, nationalities and pay of slaughter hall operatives and also with regard to slaughter licences and licences to classify beef carcases said to have been held by the three named comparators. Further correspondence ensued up to 8th May, 2008 including correspondence with the Beef Carcase Classification Section of the Department of Agriculture, Fisheries and Food.
4. SUMMARY OF THE COMPLAINANT’S CASE
4.1 The complainant argued that he carried out exactly the same slaughter hall duties as his Irish counterparts but was paid a lower rate of pay. The background to the naming of specific comparators in the case is outlined above. In an initial statement the complainant’s legal representative listed the complainant’s duties as follows :
1. Killing and processing of the animal in the killing section
2. Boning, de-boning
3. Processing the meat along the full production line of the factory.
The complainant is described in the statement as a fully trained slaughterer and boner who was qualified to work in every department and who worked in every department.
4.2 In a later submission, subsequent to the work inspection, the complainant’s representative refers to an apparent lack of a structured company training policy enabling lower skilled operatives to progress to higher level duties in the slaughterhall and a lack of records in this regard. The complainant argued that the skills matrix provided by the respondent ( paragraph 5.1 below) was prepared for the purposes of this investigation in order to justify the pay differential, did not exist when the complainant was employed by the respondent and should therefore be disregarded. The complainant refers to C & D Foods Ltd v Cunnion (Barron J, High Court 1996) where Barron J held ‘what is like work is a matter not for the employer but for an Equality Officer or the Labour Court on appeal’(p152).
4.3 Regarding the respondent’s contention that the complainant did not hold a slaughter licence, the complainant refers to Rita O’Leary v Minister for Transport, Energy and Communications (Supreme Court, 1998). The complainant argues that the judgement is supportive of the argument that findings regarding ‘like work’ must be made by reference to the skills and responsibilities demanded by the work rather than by reference to the qualifications stipulated by others.
4.4 The complainant’s representative refers to the complainant’s evidence in the course of the work inspection that he frequently replaced co-workers in certain tasks including first legging, second legging, bunging, evisceration and carcase splitting which were not identified among his functions on the respondent’s skills matrix (Appendix 2). The complainant rejected the respondent’s assertion that he could only carry out these tasks under supervision. The complainant refers to Nimz v Friei Und Hanstadt Hamburg 1991 (ECJ C-184/89) IRLR 222 where the court held that the reasons for which some employees are paid more than other must be based on objective criteria unrelated to any discrimination based on sex arguing that the same principles apply in non-gender grounds. The complainant also refers to 550 Sales and Clerical Assistants v Penneys Ltd 1998 ELR 1994 where Barron J held that the correct principle to apply is whether the difference in remuneration between the comparator is objectively based on economic grounds.
5. SUMMARY OF RESPONDENT’S CASE
5.1 The respondent company employs approximately 230 workers at its plant in Carrigans. There are approximately 60 general operatives working in the Slaughterhall where the complainant was employed. General operatives are paid either the Basic, Semi-qualified or Qualified rates of pay according to their skill levels and duties undertaken. The complainant was among those paid the Basic rate. The respondent furnished a general job description for ‘Meat Plant General Operative (Slaughter Hall)’ included at Appendix 1 along with a ‘Skills Matrix’ the data from which is included at Appendix 2, listing 46 functions carried out in the slaughter hall from the point of the arrival of the live animal at the plant to weighing of the processed carcass and passing through to the next stage in the plant. Two functions were identified as being ‘Extremely Important Role’ and five were identified as ‘Very Important Role’. Those functions identified as extremely important are :
(i) Scales operations
(ii) Fat Plant Operations.
Those functions identified as very important are:
(i) Slaughtering (hold slaughter licence)
(ii) Shackling
(iii) Sticking
(iv) First Legging
(v) Second Legging.
In relation to the three comparators (referred to as Comparators A, B and C), the respondent provided details regarding start dates, date of leaving and key skills. The respondent gave evidence that the three comparators were paid the Skilled Rate of pay. It is the respondent’s contention that the complainant was on the basic rate of pay because, unlike the comparators, he was not qualified to nor did not carry out the higher level functions listed above. The respondent stated that the pay structure reflected a Company/Union agreement negotiated with SIPTU and increased in line with Social Partnership agreements. Of the 46 functions listed on the tabular statement the respondent states that the complainant was only able to carry out 12 functions while Comparators A, B and C, all of whom were more experienced than the complainant, carried out 23, 45 and 45 functions respectively. The respondent in later correspondence, identified two Irish workers whose functions were similar to those of the complainant and who were in receipt of the same rate of pay.
5.2 Referring to Section 29(5) of the Acts, the respondent states that notwithstanding its contention that the complainant was not engaged on like work with the comparators, an employer may regulate the remuneration of its employees for reasons unconnected with the discriminatory grounds. The respondent states that the complainant and comparators were paid according to their skills and ability to carry out certain functions, reasons unconnected with the complainant’s race. In this regard the respondent refers to the Equality Officers’ decisions in Cassidy V Citigroup (EE/2003/210), Lally v Citigroup (EE/2004/205) and the ECJ in Brunnhofer v Bank Der Osterreichischen Postparkasse (C-381/99).
6. CONCLUSIONS OF THE EQUALITY OFFICER
6.1 In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties to the case. I note the respondent’s contention that the complainant failed to provide the full names of the comparators and that a doubt remains as to the correct identity of the persons whom the complainant believes were engaged on like work with him. However I am satisfied from the information provided by the parties in relation to the names of the comparators, their duties and remuneration that the comparators have been correctly identified. I note also the complainant’s legal representative’s contention that the skills matrix provided by the respondent was prepared for the purposes of this investigation and did not exist when the complainant was employed by the respondent and should be disregarded. However I am satisfied that the skills matrix constituted part of the respondent’s job descriptions for complainant and comparators and as such provided a sequential framework within which to conduct the work inspection from the point of entry of the live animal at the lairage to the final weighing and labelling of the carcase.
6.2 No slaughtering was taking place on the day of the work inspection however it was agreed by the parties beforehand that the inspection could proceed by way of a walk through the various stages in the process where the task involved, equipment used and working conditions could be assessed. As two of the comparators had left the respondent’s employment and as the third was on extended leave of absence, the work inspection took place in the absence of any comparators. The walk through the slaughterhall followed the stages outlined in the ‘skills matrix’ provided by the respondent and the complainant described the functions which he carried out and equipment used. The ‘skills matrix’ identifies with an ‘X’ in the relevant column the duties which the respondent states were carried out by the complainant and each of the comparators.
6.3 It became clear in the course of the work inspection that there was a disparity between the position set out in complainant’s statement i.e. that the complainant ‘was fully trained and worked as a fully trained slaughterer and boner in the factory and worked in and was qualified to work in every department’, his evidence at the hearing and his evidence in the course of the work inspection. While the complainant’s statement indicated that he carried out slaughtering duties (referred to as ‘sticking’ on the skills matrix (18)), the complainant in the course of the work inspection made it clear that he did not carry out this function.
6.4 The complainant identified five functions which the respondent had not identified among his duties which he indicated he was capable of carrying out and on which he frequently replaced other workers i.e. first legging (No.20 on matrix), second legging (21), bunging / trimming (29), evisceration / bellies (30) and carcase splitting (31). The respondent’s position was that where the complainant did stand in for another colleague he did so under supervision and was not fully competent to carry out the functions on his own.
6.5 While it was clear from the information provided by the respondent that Comparator A had a considerably shorter list of functions for which he was regarded as fully trained than Comparators B and C, all three comparators carried out slaughtering and scales operations. It is the respondent’s contention that these functions are at a higher skill level and carry additional responsibility. A slaughterer is required to be licenced by the local authority pursuant to the Slaughter of Animals Act, 1935 and the respondent later provided copies of slaughter licences in respect of the three comparators. I note that Comparator A’s licence was issued after the complainant had left the company.
6.6 In relation to the weighing operation, the respondent gave evidence that the scales operations are a designated Critical Control Point in the company’s HACCP (Hazard Analysis and Critical Control Point) plan and that there is a legal requirement on the respondent to ensure that each carcass is weighed and labelled for traceability purposes. The respondent gave evidence that the scales operator also verifies that DNA testing has been carried out. The respondent indicated thatthe scales operator is required to be certified by the Department of Agriculture, Fisheries and Food (DAFF) for the purpose of beef carcase classification. The respondent undertook to provide copies of licences for the three comparators but later indicated that it only had a copy of Comparator A’s certificate and had no licence records in relation to the other two comparators who had left the company. However the DAFF later stated in correspondence with the Equality Officer that it had no record of licences ever having been issued in respect of Comparators B and C. The respondent later set out in correspondence that prior to mid 2004 the DAFF’s own inspectors certified meat carcases and that after that date the company was required to carry out the function. Comparator A underwent the training and received certification. Comparators B and C had both carried out the scales operation however Comparator B left the company in March, 2004 prior to the licensing requirement and Comparator C did not undergo the necessary training as he was spending the bulk of his time on fat plant operations at that time.
6.7 While I consider that the confirmation of the issue of licences would have been supportive of the respondent’s contention that the comparators were fully trained and licenced to carry out these functions, I do not consider that the absence of licences in itself assists the complainant in seeking to establish that he carried out like work as he himself gave evidence that he did never carried out these functions. Having regard to the skill and level of responsibility of the slaughter and scales operations in particular, I consider that the complainant has failed to identify any alternative functions or combination of functions which he undertook which could be considered to be of equal value to those of the comparators. I must conclude therefore that the complainant has failed to establish that he was engaged on like work with the comparators.
6.8 Subsequent to the hearing and work inspection the respondent furnished details of the slaughter hall general operatives employed at the time of the complaint by start date, rate of pay and nationality. I note that two Irish employees who had 1 year 10 months and 2 years 3 months more experience than the complainant were on the same basic rate as the complainant. Having found above that the complainant was not engaged on like work with the comparators I do not need to address further the arguments in relation to grounds other than race however this evidence would be supportive of a conclusion that race was not a determining factor in relation to pay.
7. DECISION
7.1 Having concluded my investigation of the above complaint and on the basis of the foregoing, I find in accordance with Section 79(6) of the Acts that Donegal Meat Processors did not discriminate against Mr Rodrigo da Silva Dias on the race ground with regard to his pay in terms of section 29(1) of the Employment Equality Acts, 1998 to 2008.
Raymund Walsh
Equality Officer
5 August, 2008