Spasic
-v-
Dyflin Media
1. CLAIM
1.1 This case concerns a claim by Ms. Ivana Spasic against Dyflin Media, Dublin that she is entitled to the same rate of pay as that paid to two named comparators in accordance with section 29 of the Employment Equality Acts 1998 and 2004 and that the respondent discriminated against her on the race ground. The respondent accepts that the complainant and the named comparators were engaged in like work but submitted that there were grounds other than race for the difference in pay.
2. BACKGROUND
2.1 The complainant alleges that she was paid less than the two named comparators even though they performed 'like work' within the meaning of Section 7 of the Employment Equality Acts 1998 and 2004. It is the complainant's contention that the difference in pay was related to her race. The respondent accepted like work but submitted that there were grounds other than race for the difference in pay.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 31 March 2006. On 16 March 2007, 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 submission on the issue of grounds other than race was received from the respondent on 3 May 2007 and from the complainant on 10 May 2007. A joint hearing of the claim was held on 15 November 2007 and material requested at the hearing was provided by the respondent on 18 December 2007. A further submission was received from the complainant on 23 January 2008.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant submits that she started working for the respondent in November 2004 and was then told that her initial salary was lower than discussed during her interview and as published in the advertisement. She submits that the Managing Director told her the reason for that was that she was "not from here". She submits that she was also told that her salary would be raised as per the advertisement if she proved that she could sell advertisements during the first month. She submits that in December 2004 she was named "the sales person of the month" but that there was no change in her salary. She submits that she approached the MD but he remained silent on the matter.
3.2 The complainant submits that she worked as an Advertising Executive for the Construction Magazine. She submits that her comparators, Mr. C and Mr. W worked on the same job type as she did and they also worked on the same publication. She submits that they performed the same and interchangeable work which consisted of calling advertisers and selling advertising space in the magazine. She submits that during her employment, she brought in new clients including some of the largest companies in Ireland which was never appreciated by the respondent even though those types of advertisers attract others to advertise and the company could then attract new clients.
3.3 She submits that on top of selling advertisements, she wrote texts published in two editions of the magazine and she was the only executive in the Construction magazine who did that. She submits that she carried out additional work to her comparators and was paid less. She also submits that her texts helped her comparator, Mr. W to sell advertisements.
3.4 She submits that when some of their colleagues left, their advertisers were not split evenly and the Managing Director permitted that they be passed to her comparators. Therefore, she had a much harder task to call new prospective clients and clients who are known to be hard to get. She submits that she brought in some of the largest and most respected advertisers to the magazine which is more valuable than selling to advertisers who don't have such recognised brands to guarantee the quality and value proposition to attract more business.
3.5 The complainant submits that not only was she the sales person at the beginning of the month but that the Managing Director confirmed in writing that she was hard working and extremely capable.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent submits that the complainant commenced employment on 9 November 2004 on a basic salary of €20,000 per annum with a minimum sales target of €3,200 per week (€166,000pa). Working hours were from 9.30am to 5.30pm Monday to Friday. The respondent submits that it employs sales executives with different levels of skills and basic salaries are linked to proven sales abilities and justified with minimum targets which are uniform across the company. This encourages and rewards higher activity and sales.
4.2 During the interview, the complainant was advised of the basic salary and the level of weekly sales required to justify the basic which she accepted. The Managing Director submits that he never used the phrase "not from here". The comparators mentioned by the complainant namely, Mr. C and Mr. W should also have included Mr. T who worked on the construction magazine. Additional sales executives working off the same job description as the complainant include Ms. L and Mr. DC.
4.3 With regard to the texts that the complainant worked on, the respondent submits that this was an arrangement arrived at with the editor of the publication at the complainant's request. The purpose of which was to facilitate the complainant in approaching advertisers for the magazine. In relation to the complainant's claim that she was not treated equally in the distribution of leads, it must be stated that she was given the entire list of previous contacts for all Wallplanners on her first project and had free access on the Management Information System across all magazines published by the respondent.
4.4 The respondent submits that the complainant was engaged in the same work as the named comparators and Mr. T, Ms. L and Mr. DC. All sales representatives working for the respondent are engaged in the same work, i.e. generating advertising revenue on publications. However, they may be paid differently for a number of different reasons such as:
- Performance against sales targets
- Proven sales experience
- Market forces at the time of hiring
- Progression within the company over time
4.5 It submits that in common with other media companies, it employs sales executives with differing levels of experience and the norm within the industry is that remuneration is based purely on the level of advertising revenue generated. Agreed basic salaries are justified by a corresponding weekly/monthly target. The respondent further submits that the basic premise of sales positions in the industry is that staff are paid on performance (level of advertising generated) and as set out in correspondence, the complainant was paid to reflect the revenue that she was expected to generate for the business.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The complainant who is Serbian claims equal pay with two named Irish comparators in accordance with section 29 of the Employment Equality Acts 1998 and 2004. She claims that she was discriminated against on the race ground in relation to her pay. I must therefore consider whether or not the complainant was discriminated against on the race ground in relation to her pay and is therefore entitled to equal pay with the two named comparators In making the decision in this claim, I have taken into account all of the submissions, both written and oral, made to me by the parties.
5.2 The respondent submitted that there were three other sales executives in addition to the two named comparators who were all doing the same work as the complainant. As the respondent does not dispute like work and submits that there are grounds other than race for the difference in pay, I will proceed to consider this issue. Section 29(5) of the Acts 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." The complainant commenced work in November 2004 on a basic salary of €20,000 with a minimum sales target of €3,200 per week (€166,00 per annum). The complainant stated that her starting salary was not commensurate with her experience. The respondent stated that it employed sales executives with differing levels of skills and basic salaries are linked to previous sales abilities and justified with minimum targets which are uniform across the company.
5.3 The respondent provided the starting salaries of the complainant, the two named comparators and the three other employees who performed like work. Mr. W, the first named comparator commenced employment on 20 July 2004 on a starting salary of €28,000 and an annual target of €252,000. Mr. C commenced employment on 11 November 2002 on a starting salary of €20,800 and an annual target of €176,800. It submitted at the hearing that previous sales experience is quantifiable by ringing the company where the person previously worked and getting direction on the issue. The respondent would specifically query the targets of the prospective employee and whether they were reached. It submitted that Mr. W's experience was the reason he was given a significant target to reach. It further submitted that it was unable to quantify previous sales experience of the complainant as it could not contact any referees named by her, one of whom was in Botswana and the other in Serbia despite efforts made by it. It submitted that the complainant therefore commenced employment on a basic starting salary of €20,000 and that salary bands for the position of Sales Executive/Consultant/Representative ranged from €20,000 to €35,000 depending on verifiable experience.
5.4 Whilst Mr. C commenced employment on 11 November 2002, he had a similar starting salary (€20.800) to the complainant and a similar annual sales target (€176,800). It is also the case that whilst Mr. W was paid a starting salary of €28,000 almost two months before the complainant commenced, he had a corresponding sales target of €252,000 per annum which was in excess of €86,000 higher than the complainant's target. Two other Advertising Sales Executives who commenced employment in February 2002 and September 2003 commenced on starting salaries of €20,000 and €20,800 respectively. The respondent submitted that in all cases, basic salary had to be justified by meeting sales targets over and above which commission was payable. The complainant's contract provides that her initial salary will be €20,000 per annum based on sales of €3,200 per week. I note that Mr. W's (the first named comparator) contract provided for a salary review six months after commencement of employment and annually thereafter. It also stated that the target to validate salary is €4,900 in signed sales per week and that commission would be paid at 10% on sales over the agreed weekly target. The respondent was unable to provide a copy of Mr. C's contract of employment as it could not be located following a move in offices.
5.5 In relation to the contracts of the other Sales Executives, I note also that Mr. T's contract provides for a salary review six months after the commencement of employment and annually thereafter. I note that Ms. L's contract also provides for a remuneration review six months after the commencement of employment and annually thereafter and refers to commission being payable at the rate of 10% on sales in excess of her target. Whilst the complainant's contract did not refer to commission, the respondent submitted at the hearing that 10% commission was payable as standard in the respondent on sales achieved in excess of targets. It submitted that the complainant was also entitled to commission on sales in excess of targets; however, she only received commission on one occasion. It submitted that there were monthly reviews with people where shortfalls in performance were brought to their attention and a discussion in relation to how both parties could improve performance.
5.6 On 22 February 2006, following a meeting with the complainant, the respondent wrote to her in relation to her targets and advised her that reaching the minimum target was a prerequisite for receiving basic salary. At the hearing, it was submitted that in practice, the respondent continued to pay basic salary despite any shortfall in targets. The respondent submitted in evidence records of the complainant's monthly targets during the period of her employment until she left in February 2006. The records indicate that the complainant did not meet her target any month during her employment. Mr. C who started on 11 November 2002 on a salary of €20,800 with an annual target of €176,800 exceeded his target in 2005 by €64,000 (approx). Whilst his salary was revised upwards the following year in 2006, the respondent submitted that he was additionally compensated by receiving 10% commission on excess sales.
5.7 It appears that employees were given an initial starting salary with a corresponding sales target based on previous verifiable experience. The complainant's starting salary and the corresponding sales target was similar to Mr. C's, one of the comparators who commenced employment two years earlier. Mr. W, the other named comparator was given a higher starting salary in August 2004 and a corresponding higher sales target. It is notable that Mr. DC (one of the complainant's other colleagues) who is Irish and who commenced employment as a Sales Executive on 27 September 2004, almost two weeks prior to the complainant was given the same starting salary as the complainant (€20,000) and the same annual target. I have considered all of the evidence and I find that there were grounds other than race for the difference in salary between the complainant and the named comparators. Whilst the complainant's contract did not refer to a salary review, there was nothing to prevent the complainant in the ordinary course of events seeking a salary review. In the circumstances of this particular case where the complainant consistently failed to achieve targets each month since the commencement of her employment in November 2004, the complainant was advised on 22 February 2006 that reaching the minimum target was a prerequisite to receiving her basic salary.
6. DECISION
6.1 On the basis of the foregoing, I find that there are grounds other than race for the difference in pay between the complainant and the named comparators in accordance with section 29(5) of the Acts. Accordingly, I find that the respondent did not discriminate against the complainant on the race ground contrary to section 29(1) of the Employment Equality Acts 1998 and 2004 in relation to her pay.
__________________
Mary Rogerson
Equality Officer
31 January 2008