Equality Officer’s Decision No: DEC-E/2009/060
Parties
Croghan
And
Xtratherm Ltd
File No: EE/2006/372
Date of issue 20 July, 2009
Headnotes:Employment Equality Acts, 1998-2007 – sections 6, 8 14A, 29 and 77 – equal pay – equal treatment – harassment- dismissal- race- membership of traveller community – like work.
1. DISPUTE
This dispute involves a claim by Mr Eamon Croghan, who is an Irish national, (i) that he performs “like work” in terms of section 7 of the Employment Equality Acts, 1998 and 2004 with nine named comparators and he is therefore entitled to the same rate of remuneration as paid by the respondent to those comparators in accordance with section 29 of those Acts, (ii) that the respondent discriminated against him on grounds of race and membership of the Traveller Community, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts, (iii) that the respondent harassed him grounds of membership of the Traveller Community, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 14A of those Acts and (iv) that he was dismissed in circumstances amounting to discrimination on grounds of race, in term of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts.
2. BACKGROUND
2.1 The complainant was employed by the respondent as a general operative, in a variety of positions throughout the company, between September, 2003 and October, 2006. He contends that at various times during his period of employment he performed “like work” in terms of section 7 of the Employment Equality Acts, 1998 and 2004 with nine named comparators. His claim is submitted on the race and Traveller Community grounds. He further contends that he was treated less favourably on the same two grounds as regards certain aspects of his employment, that he was harassed by the respondent on grounds of membership of the Traveller Community contrary to section 14 of the Acts and that he was constructively dismissed in circumstances amounting to discrimination on grounds of race contrary to section 77 of those Acts. In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Act on 12 November, 2007 and my investigation of the complaint commenced on that date.
2.2 A Preliminary Hearing took place on 24 January, 2008 at which the respondent disputed the existence of “like work” between the complainant and three of the named comparators – it conceded the existence of “like work” between the complainant and the other six comparators. It further submitted in the case of four of these comparators that at no time during the period of the equal pay claim were they in receipt of a higher hourly rate of remuneration than the complainant. It accepted, in respect of the other two employees, that they were paid a slightly higher hourly rate of remuneration than the complainant for a short period and stated that this was due to an administrative oversight. It also submitted that the rates of remuneration paid to the complainant and the three named comparators where “like work” is contested, are lawful in accordance with section 29(5) of the Acts. A second Preliminary Hearing took place on 14 April, 2008 and Work Inspections were carried out on 5/6 June, 2008. A Final Hearing on the complaint was held on 17 October, 2008. A number of issues arose at the Hearing which required further clarification and gave rise to correspondence between the Equality Officer and the parties until late January, 2009.
3. SUMMARY OF COMPLAINANT’S CASE
Equal Pay Claim
3.1 The complainant states that he commenced work in the respondent’s Loading Area in September, 2003 and worked with two colleagues who were settled members of the Traveller Community. At the outset they all received €7.50 per hour but that this was increased to €8 per hour in January, 2004 in respect of the two named comparators. The complainant contends he performed “like work” in terms of section 7 of the Employment Equality Acts, 1998 and 2004 and is therefore entitled to that same hourly rate of remuneration as paid to those employees.
3.2 The complainant states that he transferred to the respondent’s T&G Area in September, 2004. He submits that during his time here performed “like work” with four named comparators. In the course of the Hearing on 14 April, 2008 the complainant accepted that he was never in receipt of a lower hourly rate of remuneration than three of these named comparators and withdrew his claims naming those individuals. He also accepted that he was in receipt of a higher hourly rate of remuneration than the other named comparator (Mr. Eglinas) until April, 2005. Consequently, he revised his claim of equal pay with this comparator to cover the period April – October, 2005.
3.3 The complainant states that he was assigned to the respondent’s Laydown Area in November, 2005 and contends that he performed “like work” in terms of section 7 of the Acts with three named comparators. In the course of the Hearing on 14 April, 2008 the complainant accepted that he was never in receipt of a lower hourly rate of remuneration than one of these named comparators and withdrew his claims naming that individual. He also accepted that he was in receipt of a higher hourly rate of remuneration than the other named comparator (Mr. Kozuch) until September, 2006. Consequently, he revised his claim of equal pay with this comparator to cover the period September – October, 2006. His claim against the final comparator (Mr. Kinsey) covered the period November, 2005-October, 2006.
Harassment
3.4 The complainants states that shortly after he commenced employment with the respondent he was “elbowed in the shoulder” by his Manager, Mr. Howard. He adds that a short while later Mr. Howard told him he was being watched by Management on the CCTV. The complainant asserts this constitutes harassment of him on grounds of membership of the Traveller Community.
Discriminatory Treatment and Dismissal
3.5 The complainant states that following a formal appraisal of him in July, 2005, Mr. Howard (Section Manager) commented that the complainant “needs to be more outgoing and take more of a part in the motivation of the people around him – Eamon has more experience” on the Appraisal Form. The complainant asserts that Mr. Howard placed pressure on him to play a motivational role and that this constitutes less favourable treatment of him on grounds of race contrary to the Acts. He adds that he was a General Operative, the same as his fellow employees and he could not understand how he could motivate them.
3.6 The complainant states that he was tricked by Mr. Howard in late 2005 into transferring to the Laydown Area on the premise that he would receive more money. The complainant asserts that this was a ploy on the part of Mr. Howard in order to get him to change from day to shift hours. He states that he approached the Production Manager shortly after being assigned to the Head 2 Operator role in the Laydown Area and told him he felt he was not “cut out” for the job. The complainant states that whilst the Production Manager was sympathetic towards him he told him that “if he did not stick with the job he may be without work”. The complainant adds that whilst he was assigned to the role of Head 2 Operator in the Laydown Area he was expected to train up on the Head 1 Operator role. He contends that this was not the same process applied to Mr. Kozuch, who was free to train without having the Head 2 responsibilities simultaneously. The complainant contends this constitutes less favourable treatment of him on grounds of race contrary to the Acts.
3.7 The complainant states that on 14 September, 2006 he was asked by the Production Manager to train a colleague on the Head 2 role. The complainant refused to do so, on the basis that it was not part of his job description and he felt that if additional tasks were assigned to him he should receive extra money. He adds that he requested a meeting with Management to discuss this issue and when he heard nothing a couple of weeks later he resigned on 25 September, 2005. The complainant states that he attended meetings with Management on 27 and 29 September, 2006 but the matter could not be resolved and his employment subsequently terminated. The complainant states that this was the final straw for him. He believed he was being discriminated against because he was Irish, that the respondent preferred to engage non-Irish employees and he felt he had no option but to resign. The complainant submits that this constitutes constructive discriminatory dismissal on grounds of race contrary to the Acts.
4. SUMMARY OF RESPONDENT’S CASE
Equal Pay Claim
4.1 The respondent accepts that the complainant performed “like work” with the two named comparators in the Loading Area as submitted by him. It further accepts the complainant’s assertion as to the rates of remuneration they each received from January, 2004. The respondent stated that the difference was due to an administrative oversight on its part and acknowledged that the complainant was entitled to arrears of pay for the period in question. It added that it was unaware, at that time, that the comparators were settled members of the Traveller Community and rejected the complainant’s assertion that the situation arose because it was deliberately seeking to discriminate against him on that basis.
4.2 The respondent submits that at all times during the period when the complainant was assigned to the T&G Area, he received a higher hourly rate of remuneration than three of the named comparators. It further submits that the same situation arose in respect of the remaining comparator (Mr. Eglinas) until April, 2005. It adds that at this time Mr. Eglinas was promoted to the Number 2 position in the T&G Area and from then until October, 2005 he was performing work of higher value than the complainant. In support of its assertions in this regard the respondent submitted payslips for each of the employees involved. In summary, it submitted that in the circumstances the only element of equal pay which could be sustained by the complainant was that in respect of Mr. Eglinas for the period April-October, 2005.
4.3 The respondent submits that at all times during the period when the complainant was assigned to the Laydown Area, he received a higher hourly rate of remuneration than one of the named comparators. It rejects the complainant’s assertion that he performed “like work” with either of the two named comparators for the periods claimed whilst he was assigned to the Laydown Area. It states that both the named comparators performed work of higher value to the complainant during the periods covered by the claim and were therefore entitled to a higher rate of remuneration.
Discriminatory Treatment, Harassment and Dismissal
4.4 The respondent rejects the complainant’s assertions that he was harassed contrary to the Acts during his time in the Loading Area. It states that it has no record of the alleged “elbowing” incident and submits that even if it occurred it could not be attributed to the fact that the complainant was not a member of the Traveller Community. The respondent adds that CCTV is used for security reasons and rejects the assertion that the complainant was singled out for particular scrutiny at all, let alone because he was/was not a member of the Traveller Community.
4.5 The respondent accepts that the comment submitted by the complainant was included on his Appraisal Form in July, 2005. It states that the comment was included in the Development Needs Section of the form and was signed off by the complainant. The respondent states that it would have been Mr. Howard’s style to encourage staff to motivate colleagues as the work in the T&G Area (where the complainant was working at the time) was team based and team targets operated. It adds that as the complainant was a more experienced member of staff it was suggested he might assume a more proactive role in the area. The respondent rejects the assertion that this constitutes less favourable treatment of him on grounds of race.
4.6 The respondent rejects the complainant’s assertion that he was duped into taking a post in the Laydown Area. It states that the possibility of moving was discussed with him and he was given the opportunity to move into the role in order to broaden his skill base. The respondent accepts that the complainant spoke with the Production Manager (Mr. Duignan) and states that he felt the complainant could do the job and attempted to encourage him to stay. It accepts that a comment about alternative work may have been made but that it arose in the context of a role in the Production Area, which is the only area Mr. Duignan would have been aware of any vacancies. The respondent rejects the assertion that the complainant was subjected to a different training regime than applied to Mr. Kozuch in terms of training for the Head 1 Operator post and states that he (Mr. Kozuch) was a Head 2 Operator whilst at the same time training for the Head 1 post – the same as the complainant.
4.7 The respondent accepts that it asked the complainant to train a colleague on the Head 2 Operator post and that he refused to do so. It states that Mr. Duignan considered the request to be reasonable and was covered by the complainant’s job description. It also accepts that meetings occurred between the parties on 26 and 29 September, 2006 and states that during these meetings the complainant raised a number of grievances for the first time. It adds that the issue of training a colleague, which prompted the meetings, was set aside and that attempts were made to discuss the other issues, but were unsuccessful. The respondent states that the complainant had given notice of his resignation on 25 September, 2006 and submits that his actions cannot amount to constructive discriminatory dismissal on grounds on race in terms of the Acts.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me is whether or not (i) the complainant performed “like work” in terms of section 7 of the Employment Equality Acts, 1998 and 2004 with three named comparators and is therefore entitled to the same rate of remuneration as paid by the respondent to those comparators in accordance with section 29 of those Acts, (ii) the respondent discriminated against the complainant on grounds of race and membership of the Traveller Community, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts (iii) the respondent harassed the complainant on grounds of membership of the Traveller Community, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 14A of those Acts and (iv) the complainant was dismissed in circumstances amounting to discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts. In reaching my Decision I have taken into account all of the submissions, written and oral, made to me by the parties as well as the responses of various people at the work inspections and the evidence given by the parties in the course of the investigation.
Equal Pay Claim
5.2 The first element of the complainant equal pay claim relates to a period post January, 2004 when he was assigned to the respondent’s Loading Area. The respondent accepts that the named comparators were paid 50 cent per hour more than the complainant, that they all performed “like work” in terms of section 7 of the Acts and that the comparators were members of the Traveller Community – a point which was clarified at the first Preliminary Hearing. The complainant is therefore entitled, in accordance with section 29 of the Acts, to the same rate of remuneration as paid to those comparators for the period when that differential existed and an order in that regard will be made. I am satisfied on balance, having examined the evidence presented by the parties on this issue, that this situation whereby the complainant received a slightly lower hourly rate of remuneration than that paid to the named comparators, was due to an administrative oversight on the part of the respondent and was not a deliberate attempt by the respondent to discriminate against the complainant on the basis of membership (or not) of the Traveller Community.
5.3 The second period of the complainant’s equal pay claim covers the time when he was assigned to the respondent’s T&G Area. In the course of the Hearing on 14 April, 2008 the complainant accepted, based on documentation submitted by the respondent, that three of the named comparators in respect of this element of his claim were in receipt of a lower hourly rate of remuneration than him during his time in the T&G Area and in the circumstances he withdrew his claim based on those comparators. He also accepted that he received a higher hourly rate of remuneration than the remaining comparator – Mr. Eglinas - until April, 2005. The complainant contends that he performed “like work” in terms of sections 7(1)(a) 7(1)(c) of the Acts, with that comparator at that time and continued to do so until he left the Area in October, 2005. He submits that he is therefore entitled to the same rate of remuneration as paid to that comparator. The respondent rejects the complainant’s assertion as regards “like work”. It states Mr. Eglinas was promoted to Team Leader in April, 2005 and that this is the reason why he received a higher rate of remuneration than the complainant. I conducted a work inspection in respect of this element of the claim and have set out my findings in this regard at Appendices A-C attached to this Decision. Having regard to the conclusions set out at Appendix C in particular, I find that the complainant performed “like work” in terms of both section 7(1)(a) and 7(1)(c) of the Acts and in accordance with section 29 of the Employment Equality Acts, 1998 and 2004 he is entitled to the same rate of remuneration as paid to Mr. Eglinas by the respondent for the period April-September, 2005.
5.4 The final element of the complainant’s equal pay claim relates to the period when he was assigned to the respondent’s Laydown Area. He contends that he performed “like work” in terms of section 7(1)(a) and 7(1)(c) of the Employment Equality Acts, 1998 and 2004 with two named comparators during his employment in that area. The respondent rejects the complainant’s assertions. I conducted a work inspection in respect of this element of the claim and have set out my findings at Appendices A-C attached to this Decision. Having regard to the conclusions set out at Appendix C in particular, I find that the complainant did not perform “like work” in terms of either section 7(1)(a) and/or 7(1)(c) of the Acts with the named comparators and he is not therefore entitled to the same rate of remuneration as paid by the respondent to those employees.
Discriminatory Treatment, Harassment and Dismissal
5.5 Section 85A of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination (a prima facie case), that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of him his case cannot succeed.
5.6 The complainant alleges he was harassed by Mr. Howard during his time in the Loading Area and contends that this was on the ground of membership of the Traveller Community. As the complainant is not a member of the Traveller Community it would seem his argument centres on the premise that he was treated in the manner alleged because he was not a member of the Traveller Community. Having examined all of the evidence submitted on this point, I find that the complainant has failed to establish a prima facie case of harassment contrary to the Acts and this element of his complaint therefore fails.
5.7 The first element of the complainant’s discriminatory treatment claim relates to the alleged pressure placed on him by the respondent (Mr. Howard) to motivate colleagues when assigned to the respondent’s T&G Area. I note that the output of the Area was team based and by virtue of the complainant’s own submissions, he considered himself to be competent to perform almost every task in that Area. I therefore consider it reasonable, in the context of an appraisal process, for Mr. Howard to suggest that an employee with that level of experience might proceed to the next step and motivate colleagues to perform better. I find therefore that the complainant has failed to establish a prima facie case of discrimination on grounds of race in respect of this issue. The next element of the complainant’s treatment complaint relates to his move to and employment in, the respondent’s Laydown Area. The complainant has failed to adduce any evidence to support his assertion that his assignment to the Laydown Area was discriminatory on grounds of race and membership of the Traveller Community. The complainant further contends that his training for the post of Head 1 Operator was different to that given to Mr. Kozuch. The respondent denies this and states that they were trained in similar fashion. This view was corroborated in the course of my investigation by both Mr. Kozuch and Mr. Kinsey, the latter having been involved in the training of both the former and the complainant. In the circumstances I find that the complainant has failed to establish a prima facie case of discrimination on grounds of race and membership of the Traveller Community in respect of this aspect of his complaint.
5.8 The complainant asserts that the respondent’s request for him to train a colleague was the last straw for him. He refused to comply with the request and sought a meeting with Management to discuss his concerns. When the respondent did not revert to him within 10 days he resigned and submits that this constitutes constructive discriminatory dismissal of him. Constructive dismissal is a concept which has emerged under unfair dismissal legislation. The is a significant corpus of caselaw on this issue and two of the principles which have been established are (i) that the impugned behaviour must be serious or significant and go to the root of the contract between the parties and (ii) that an employer must be given an opportunity to address an employee’s grievance before the latter can take the unilateral action of resigning and then seeking redress for doing so. These principles transfer to the concept of discriminatory dismissal but in addition what must be addressed is whether or not the alleged actions which give rise to the resignation could be regarded as discriminatory under the Acts. Having evaluated all of the evidence submitted I am not satisfied that the complainant has discharged the necessary burden that the behaviour relied upon to warrant resignation was discriminatory. The complainant stated that the first time he formally raised these issues with the respondent and submitted that he considered them to be unlawful in terms of employment equality legislation, was at the meeting of 26 September, 2006. In the circumstances the respondent was unable to address the complainant’s concerns before he decided to resign. I note the respondent did not have a formal Grievance Procedure in place at the time. However, I am satisfied that the complainant was perfectly capable of airing his grievance if he wished and but he did not do so. The nature of the alleged behaviour of the respondent was also not of sufficient seriousness to be considered reasonable for the complainant to terminate his employment. His resignation was therefore premature and unreasonable in terms of grounding a complaint of constructive discriminatory dismissal. In light of the foregoing I find that the complainant has failed to establish a prima facie case of discriminatory dismissal in terms of the Employment Equality Acts, 1998 and 2004. However, before leaving this point I would strongly recommend that the respondent introduce, if it has not already done so, a comprehensive Grievance Policy for all employees.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and issue the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -
(i) the complainant performed “like work” in terms of section 7 of the Acts with two named comparators who were members of the Traveller Community during his period of employment in the respondent’s Loading Area. The complainant is therefore entitled to the same rate of remuneration as paid to those comparators for the period when that differential existed in accordance with section 29 of the Acts. I order, in accordance with section 82(1) of the Acts, that the respondent pay the complaint the appropriate arrears of remuneration for the period when the differential existed. Arrears of remuneration are subject to the tax code.
(ii) the complainant performed “like work” in terms of section 7 of the Acts with a named comparator who was a different nationality to the complainant during his period of employment in the respondent’s T&G Area. The complainant is therefore entitled to the same rate of remuneration as paid to that comparator for the period when that differential existed in accordance with section 29 of the Acts. I order, in accordance with section 82(1) of the Acts, that the respondent pay the complaint the appropriate arrears of remuneration for the period when the differential existed (April-October, 2005). Arrears of remuneration are subject to the tax code.
(iii) the complainant has failed to establish a prima facie case of discrimination on grounds of race and membership of the Traveller Community and his complaint cannot succeed.
(iv) the complainant has failed to establish a prima facie case of harassment on grounds of membership of the Traveller Community and his complaint cannot succeed
(v) the complainant has failed to establish a prima facie case of discriminatory dismissal on grounds of race and his complaint cannot succeed.
_______________________________________
Vivian Jackson
Equality Officer
20 July, 2009
APPENDIX A
EQUALITY OFFICER’S
JOB DESCRIPTIONS ON FOOT OF
WORK INSPECTIONS
Job Holder: Mr. Eamon Croghan
Job Title: General Operative
Reports to: Team Leader/No. 1 Head Operator
No. of Staff: None
Rate of Pay: €8.16 - €8.50 per hour in T&G Section.
€9.23 - €9.51 per hour in Laydown Area. Hours in excess of normal hours attract overtime payment at agreed rates
Hours of Work: 8am to 4:30pm Monday to Friday
T&G Area
The Complainant had a variety of general operative type tasks. At the outset of his time there he was assigned to the “Bagging Area. This involved physically catching 6-8 foot lengths of aluminium foil covered wall cavity insulation boards from the machine and placing them in a plastic bag and passing the “bagged” board on to the stacker for placing on a pallet and taping them in place. There was an element of quality control in this aspect of the job and damaged boards were not bagged. The complainant then moved on to the stacking position on the line which involved taking the “bagged” board from the Bagger and placing them on a pallet – 25 Boards per pallet and taping them with a large roll of cellophane. The complainant was also responsible, along with colleagues, for keeping the area generally clean of waste product.
The complainant also drove the forklift truck for 1-2 hours per day. This would happen during the shift and at the end of the shift. During the shift the complainant was responsible for moving pallets of “blank boards” from the storage area to the T&G Area for processing and vice versa. He must ensure that there is sufficient “blank boards” to keep the production line flowing and that the finished product is not taking up too much space in the T&G Area. He also had responsibility for recording the numbers of pallets of products processed during the shift. This was necessary to assess the Team output against the targets set. The complainant calibrated the T&G machine as necessary. This entailed adjusting the ridges which scored the product by measuring the distance between the top and bottom of the clamp. The position of the ridges was determined by the size (Depth) of the product being processed. The complainant also had responsibility, when operating the forklift, to remove damaged product to the recycling area and for ensuring the forklift was charged and in working order – if necessary he would liaise with Maintenance Section in respect of the latter.
Laydown Area
The complainant commenced work as the Head 2 Operator in the Laydown Area in November, 2005. The complainant was responsible for ensuring that the correct foil facer was placed on the rollers and that there was sufficient on the machine to complete the product run. These details were obtained from the production schedule. The complainant was also responsible for ensuring that the Heads were clean and enabled a constant flow of the polymer liquid and that a spare set of Heads were available during each shift. The complainant must ensure that the foil facer moves through the rollers and into the machine cleanly and without and kinks. If difficulties arose during production the complainant was responsible for adjusting the facer through a series of switches and levers. The complainant was also responsible for keeping the area tidy and clean.
The complainant commenced training on the Head 1 operation in the Laydown Area. The first task required involved the complainant turning on the chemical tanks and ensure the correct combination of the various chemicals for the product. This was done in accordance with a written recipe from the Polymer Engineer. The complainant was also responsible for ensuring that there were sufficient quantities of chemical in the tanks which were located in the Chemical Room located close by the Laydown Area. The Laydown Machine was then started by depressing a button. The complainant then ran a test “bag shot” of the Heads to ensure that the polymer liquid was flowing freely. The Head 1 Operator was the Line Manager for the Head 2 Operator and was therefore responsible for ensuring that correct Heads and Facer were on the machine for the product which was scheduled – obtained from the Production Schedule which was kept in the Area. Once the machine starts the Head 1 Operator is responsible for ensuring the quality of the product. If something happens the Head 1 Operator would correct things, generally by adjusting the Heads or changing the formulation inputs. At the end of the shift (if the shift finished at the end of the day) the Head 1 Operator was responsible for turning off the chemical tanks and ensuring the machine was switched off. If the Head 1 Operator is unable to deal with a problem on the Laydown Production Line he would contact Maintenance, the Production Manager or the Polymer Engineer as appropriate.
Job Holder: Mr. Jonas Eglinas
Job Title: Team Leader T&G Area
Reports to: Team Supervisor
No. of Staff: None
Rate of Pay: €8.75- €9 per hour. Hours in excess of normal hours attract overtime payment at agreed rates
Hours of Work: 8am to 4:30pm Monday to Friday
The comparator performed the same functions on the forklift as outlined in the job description for the complainant in the T&G Area and maintaining the necessary records. He also performed the same duties as outlined for the complainant as regards calibrating the T&G machine and starting it up. This task was more frequent after April, 2005. If there were problems he would contacted the Team supervisor or Maintenance as appropriate. The comparator was also responsible for keeping the work area clean and tidy.
Job Holder: Mr. David Kozuch
Job Title: Head 1 Operator
Reports to: Production Manager
No. of Staff: One
Rate of Pay: €10- €10.25 per hour. Hours in excess of normal hours attract overtime payment at agreed rates
Hours of Work: Split shifts Monday to Friday
The comparator performed all of the functions of Head 1 Operator as outlined above. In addition he had responsibility for training up anyone who was considered competent to train as Head 1.
Job Holder: Mr. Lionel Kinsey
Job Title: Head 1 Operator
Reports to: Production Manager
No. of Staff: One
Rate of Pay: €10.25- €11.07 per hour. Hours in excess of normal hours attract overtime payment at agreed rates
Hours of Work: Split shifts Monday to Friday
The comparator performed all of the functions of Head 1 Operator as outlined above. In addition he had responsibility for training up anyone who was considered competent to train as Head 1. In this regard he trained both the complainant and the comparator.
APPENDIX B
EQUALITY OFFICER’S ANALYSIS
OF COMPLAINANT’S JOB
SKILL
The complainant must be competent to drive the forklift in the T&G Area. He must also demonstrate organisational skills by ensuring a constant supply of “blank board” in the area whilst also ensuring that the area does not become overly cluttered with finished product. He must also ensure that the “blank board” is taken in sequence from the storage area so that more recently prepared product is not scored first. In addition he must maintain records to enable stock control and team targets to be calculated and assessed.
These skills are equally applicable to the Laydown Area. In addition the complainant, when performing Head 1 tasks must be constantly vigilant to ensure the board is of the required standard. Any problems which arise must be dealt with immediately. This requires an analysis of the situation and development of the appropriate response in order to ensure that the production line is not shut down for excessive periods of time.
PHYSICAL DEMANDS
There are significant physical demands - lifting, bending, stretching and standing in terms of the work performed by the complainant in the T&G Area. These demands are present to a lesser extent in the Laydown Area.
MENTAL REQUIREMENTS
The complainant must keep close watch on the processes in both the T&G and Laydown Areas and be ready to stop the process if necessary. He must ensure the accuracy of the recipe mix when operating Head 1 and ensure that the chemical levels are recorded. In addition, the complainant must be vigilant at all times when operating the forklift. Finally, the accuracy of the paperwork in both Areas is of significant importance.
RESPONSIBILITY
The complainant operates in the T&G Area as part of a team. Responsibility for starting, maintaining and the general operation of the production line rests with the Team Supervisor. The complainant therefore has the same level of responsibility as other person in the Team.
The Head 1 Operator is the Team Leader in the Laydown Area and has direct Line Management responsibility for the Head 2 Operator. Whilst the Head 2 Operator has responsibility for his own work area overall responsibility for the production line rests with the Head 1 Operator.
WORKING CONDITIONS
The T&G Area can be cold and dusty. The noise of machinery is constant and there is the continual hazard of forklifts negotiating the area. Conditions in the Laydown Area are similar as regards noise and hazards. However, temperatures here are high and the environment can be stuffy.
APPENDIX B
EQUALITY OFFICER’S ANALYSIS
OF COMPARATORS’ JOBS
Jonas Eglinas
SKILL
The comparator must be competent to drive the forklift in the T&G Area. He must also demonstrate organisational skills by ensuring a constant supply of “blank board” in the area whilst also ensuring that the area does not become overly cluttered with finished product. He must also ensure that the “blank board” is taken in sequence from the storage area so that more recently prepared product is not scored first. In addition he must maintain records to enable stock control and team targets to be calculated and assessed.
PHYSICAL REQUIREMENTS
There are significant physical demands - lifting, bending, stretching and standing in terms of the work performed by the complainant in the T&G Area
MENTAL REQUIREMENTS
The comparator must keep close watch on the processes in the T&G Area and be ready to stop the process if necessary. In addition, the complainant must be vigilant at all times when operating the forklift. Finally, the accuracy of the paperwork is of significant importance in that it is used for stock control and Team target purposes.
RESPONSIBILITY
The comparator is responsible for his own tasks but has no responsibility for the tasks of others in the Team.
WORKING CONDITIONS
The comparator works in the T&G Area which can be cold and dusty. The noise of machinery is constant and there is the continual hazard of forklifts negotiating the area.
David Kozuch and Lionel Kinsey
SKILL
The comparators demonstrate organizational skills in that they must use their Teams effectively to ensure that disruption to the production line is kept to a minimum. They must be constantly vigilant to ensure the board is of the required standard. Any problems which arise must be dealt with immediately. This requires an analysis of the situation and development of the appropriate response in order to ensure that the production line is not shut down for excessive periods of time.
PHYSICAL REQUIREMENTS
There comparators stand for most, if not all of the shift. They are also exposed to lifting, bending and stretching during each shift.
MENTAL REQUIREMENTS
The comparators must keep close watch on the processes in the Laydown Area and be ready to stop the process if necessary. They must also be able to record the data relating to the chemicals and monitor it usage. They must also be able to record the daily inputs/outputs in respect of the process.
RESPONSIBILITY
The comparators are Line Managers of the Head 2 Operators and are therefore responsible for the entire production process, including those tasks performed by the Head 2 Operators. They also have responsibility for training staff as necessary.
WORKING CONDITIONS
The comparators work in the Laydown Area where the noise of machinery is constant and there is the continual hazard of forklifts negotiating the area. The temperature can be high and the environment can be stuffy.
Appendix 5
Comparison of Complainants’ and Comparator’s
Jobs in terms of Section 7(1)(c)
of the Acts
Comparison of the complainant’s post with that of Mr. Eglinas
SKILL
Both the complainant and the comparator are required to be numerate and literate in order to perform their duties. They must be competent to operate a forklift truck and be vigilant at all times.
I find that the skills required of the comparator and complainant to be equal
PHYSICAL REQUIREMENTS
The complainant and comparator are exposed to the same physical demands in the course of their working day.
I find that the demands made on the comparator and complainant in terms of physical effort to be equal
MENTAL REQUIREMENTS
The complainant and comparator demonstrate the same level of mental requirements in fulfilling their duties.
I find that the mental effort required of the comparator and complainant to be equal.
RESPONSIBILITY
Both the complainant and comparator operate as part of a Team and therefore they both strive towards reaching the Team targets. They have no responsibility for the work of any other member of the Team.
I find that the demands made on the comparator and complainant
in terms of responsibility to be equal
WORKING CONDITIONS
Both the complainant and comparator work in the same working environment and are exposed to the same working
I find that the demands made on the comparator and complainant in terms
of working conditions to be equal.
Comparison of complainant’s post with that of Mr. Kozuch and Mr. Kinsey
SKILL
The complainant performed some of the tasks associated with Head 1 Operator on an incremental basis from March, 2006 onward. During this time he was under the direct supervision of Mr. Kinsey and was in effect, training up for the Head 1 Post. Whilst he may have been learning the various skills involved with that post he was not proficient in them and was never fully signed off as competent. The comparators were fully trained Head 1 Operators and were responsible for the entire production process. They were expected to lead their respective Teams and “troubleshoot” as necessary.
I find that the skills required of the comparators to be greater than those
required of the complainant.
PHYSICAL REQUIREMENTS
The comparators and complainant stand for most, if not all of the shift. They are also exposed to lifting, bending and stretching during each shift.
I find that the demands made on the comparators and complainant in terms of
physical effort to be equal.
MENTAL REQUIREMENTS
The comparators must keep close watch on the processes in the Laydown Area and be ready to stop the process if necessary. They must also be able to record the data relating to the chemicals and monitor it usage. They must also be able to record the daily inputs/outputs in respect of the process. The complainant was expected to display these competencies when operating Head 1. However, this was not an everyday occurrence and only became more regular from July, 2006 onward, during the time when he was training.
I find that the demands placed on the comparators in terms of mental requirements to be greater
than those required of the complainant
RESPONSIBILITY
The comparators are Line Managers and responsible for the entire production line, including the tasks performed by those staff at Head 2 level. The complainant was a Head 2 Operative and was training to perform the functions of a Head 1. However, whilst he may have performed the full range of duties associated with the Head 1 position, he did so incrementally over several months and never acquired responsibility for the role.
I find that the demands made on the comparators in terms of
responsibility exceed those placed on the complainant
WORKING CONDITIONS
The complainant and comparators work in the same area and are therefore exposed to the same working environment. They also worked split shifts.
I find that the demands made on the comparators and complainant in terms
of working conditions to be equal.
Equality Officer’s Decision No: DEC-E/2009/060
Parties
Croghan
And
Xtratherm Ltd
File No: EE/2006/372
Date of issue 20 July, 2009
Headnotes:Employment Equality Acts, 1998-2007 – sections 6, 8 14A, 29 and 77 – equal pay – equal treatment – harassment- dismissal- race- membership of traveller community – like work.
1. DISPUTE
This dispute involves a claim by Mr Eamon Croghan, who is an Irish national, (i) that he performs “like work” in terms of section 7 of the Employment Equality Acts, 1998 and 2004 with nine named comparators and he is therefore entitled to the same rate of remuneration as paid by the respondent to those comparators in accordance with section 29 of those Acts, (ii) that the respondent discriminated against him on grounds of race and membership of the Traveller Community, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts, (iii) that the respondent harassed him grounds of membership of the Traveller Community, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 14A of those Acts and (iv) that he was dismissed in circumstances amounting to discrimination on grounds of race, in term of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts.
2. BACKGROUND
2.1 The complainant was employed by the respondent as a general operative, in a variety of positions throughout the company, between September, 2003 and October, 2006. He contends that at various times during his period of employment he performed “like work” in terms of section 7 of the Employment Equality Acts, 1998 and 2004 with nine named comparators. His claim is submitted on the race and Traveller Community grounds. He further contends that he was treated less favourably on the same two grounds as regards certain aspects of his employment, that he was harassed by the respondent on grounds of membership of the Traveller Community contrary to section 14 of the Acts and that he was constructively dismissed in circumstances amounting to discrimination on grounds of race contrary to section 77 of those Acts. In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Act on 12 November, 2007 and my investigation of the complaint commenced on that date.
2.2 A Preliminary Hearing took place on 24 January, 2008 at which the respondent disputed the existence of “like work” between the complainant and three of the named comparators – it conceded the existence of “like work” between the complainant and the other six comparators. It further submitted in the case of four of these comparators that at no time during the period of the equal pay claim were they in receipt of a higher hourly rate of remuneration than the complainant. It accepted, in respect of the other two employees, that they were paid a slightly higher hourly rate of remuneration than the complainant for a short period and stated that this was due to an administrative oversight. It also submitted that the rates of remuneration paid to the complainant and the three named comparators where “like work” is contested, are lawful in accordance with section 29(5) of the Acts. A second Preliminary Hearing took place on 14 April, 2008 and Work Inspections were carried out on 5/6 June, 2008. A Final Hearing on the complaint was held on 17 October, 2008. A number of issues arose at the Hearing which required further clarification and gave rise to correspondence between the Equality Officer and the parties until late January, 2009.
3. SUMMARY OF COMPLAINANT’S CASE
Equal Pay Claim
3.1 The complainant states that he commenced work in the respondent’s Loading Area in September, 2003 and worked with two colleagues who were settled members of the Traveller Community. At the outset they all received €7.50 per hour but that this was increased to €8 per hour in January, 2004 in respect of the two named comparators. The complainant contends he performed “like work” in terms of section 7 of the Employment Equality Acts, 1998 and 2004 and is therefore entitled to that same hourly rate of remuneration as paid to those employees.
3.2 The complainant states that he transferred to the respondent’s T&G Area in September, 2004. He submits that during his time here performed “like work” with four named comparators. In the course of the Hearing on 14 April, 2008 the complainant accepted that he was never in receipt of a lower hourly rate of remuneration than three of these named comparators and withdrew his claims naming those individuals. He also accepted that he was in receipt of a higher hourly rate of remuneration than the other named comparator (Mr. Eglinas) until April, 2005. Consequently, he revised his claim of equal pay with this comparator to cover the period April – October, 2005.
3.3 The complainant states that he was assigned to the respondent’s Laydown Area in November, 2005 and contends that he performed “like work” in terms of section 7 of the Acts with three named comparators. In the course of the Hearing on 14 April, 2008 the complainant accepted that he was never in receipt of a lower hourly rate of remuneration than one of these named comparators and withdrew his claims naming that individual. He also accepted that he was in receipt of a higher hourly rate of remuneration than the other named comparator (Mr. Kozuch) until September, 2006. Consequently, he revised his claim of equal pay with this comparator to cover the period September – October, 2006. His claim against the final comparator (Mr. Kinsey) covered the period November, 2005-October, 2006.
Harassment
3.4 The complainants states that shortly after he commenced employment with the respondent he was “elbowed in the shoulder” by his Manager, Mr. Howard. He adds that a short while later Mr. Howard told him he was being watched by Management on the CCTV. The complainant asserts this constitutes harassment of him on grounds of membership of the Traveller Community.
Discriminatory Treatment and Dismissal
3.5 The complainant states that following a formal appraisal of him in July, 2005, Mr. Howard (Section Manager) commented that the complainant “needs to be more outgoing and take more of a part in the motivation of the people around him – Eamon has more experience” on the Appraisal Form. The complainant asserts that Mr. Howard placed pressure on him to play a motivational role and that this constitutes less favourable treatment of him on grounds of race contrary to the Acts. He adds that he was a General Operative, the same as his fellow employees and he could not understand how he could motivate them.
3.6 The complainant states that he was tricked by Mr. Howard in late 2005 into transferring to the Laydown Area on the premise that he would receive more money. The complainant asserts that this was a ploy on the part of Mr. Howard in order to get him to change from day to shift hours. He states that he approached the Production Manager shortly after being assigned to the Head 2 Operator role in the Laydown Area and told him he felt he was not “cut out” for the job. The complainant states that whilst the Production Manager was sympathetic towards him he told him that “if he did not stick with the job he may be without work”. The complainant adds that whilst he was assigned to the role of Head 2 Operator in the Laydown Area he was expected to train up on the Head 1 Operator role. He contends that this was not the same process applied to Mr. Kozuch, who was free to train without having the Head 2 responsibilities simultaneously. The complainant contends this constitutes less favourable treatment of him on grounds of race contrary to the Acts.
3.7 The complainant states that on 14 September, 2006 he was asked by the Production Manager to train a colleague on the Head 2 role. The complainant refused to do so, on the basis that it was not part of his job description and he felt that if additional tasks were assigned to him he should receive extra money. He adds that he requested a meeting with Management to discuss this issue and when he heard nothing a couple of weeks later he resigned on 25 September, 2005. The complainant states that he attended meetings with Management on 27 and 29 September, 2006 but the matter could not be resolved and his employment subsequently terminated. The complainant states that this was the final straw for him. He believed he was being discriminated against because he was Irish, that the respondent preferred to engage non-Irish employees and he felt he had no option but to resign. The complainant submits that this constitutes constructive discriminatory dismissal on grounds of race contrary to the Acts.
4. SUMMARY OF RESPONDENT’S CASE
Equal Pay Claim
4.1 The respondent accepts that the complainant performed “like work” with the two named comparators in the Loading Area as submitted by him. It further accepts the complainant’s assertion as to the rates of remuneration they each received from January, 2004. The respondent stated that the difference was due to an administrative oversight on its part and acknowledged that the complainant was entitled to arrears of pay for the period in question. It added that it was unaware, at that time, that the comparators were settled members of the Traveller Community and rejected the complainant’s assertion that the situation arose because it was deliberately seeking to discriminate against him on that basis.
4.2 The respondent submits that at all times during the period when the complainant was assigned to the T&G Area, he received a higher hourly rate of remuneration than three of the named comparators. It further submits that the same situation arose in respect of the remaining comparator (Mr. Eglinas) until April, 2005. It adds that at this time Mr. Eglinas was promoted to the Number 2 position in the T&G Area and from then until October, 2005 he was performing work of higher value than the complainant. In support of its assertions in this regard the respondent submitted payslips for each of the employees involved. In summary, it submitted that in the circumstances the only element of equal pay which could be sustained by the complainant was that in respect of Mr. Eglinas for the period April-October, 2005.
4.3 The respondent submits that at all times during the period when the complainant was assigned to the Laydown Area, he received a higher hourly rate of remuneration than one of the named comparators. It rejects the complainant’s assertion that he performed “like work” with either of the two named comparators for the periods claimed whilst he was assigned to the Laydown Area. It states that both the named comparators performed work of higher value to the complainant during the periods covered by the claim and were therefore entitled to a higher rate of remuneration.
Discriminatory Treatment, Harassment and Dismissal
4.4 The respondent rejects the complainant’s assertions that he was harassed contrary to the Acts during his time in the Loading Area. It states that it has no record of the alleged “elbowing” incident and submits that even if it occurred it could not be attributed to the fact that the complainant was not a member of the Traveller Community. The respondent adds that CCTV is used for security reasons and rejects the assertion that the complainant was singled out for particular scrutiny at all, let alone because he was/was not a member of the Traveller Community.
4.5 The respondent accepts that the comment submitted by the complainant was included on his Appraisal Form in July, 2005. It states that the comment was included in the Development Needs Section of the form and was signed off by the complainant. The respondent states that it would have been Mr. Howard’s style to encourage staff to motivate colleagues as the work in the T&G Area (where the complainant was working at the time) was team based and team targets operated. It adds that as the complainant was a more experienced member of staff it was suggested he might assume a more proactive role in the area. The respondent rejects the assertion that this constitutes less favourable treatment of him on grounds of race.
4.6 The respondent rejects the complainant’s assertion that he was duped into taking a post in the Laydown Area. It states that the possibility of moving was discussed with him and he was given the opportunity to move into the role in order to broaden his skill base. The respondent accepts that the complainant spoke with the Production Manager (Mr. Duignan) and states that he felt the complainant could do the job and attempted to encourage him to stay. It accepts that a comment about alternative work may have been made but that it arose in the context of a role in the Production Area, which is the only area Mr. Duignan would have been aware of any vacancies. The respondent rejects the assertion that the complainant was subjected to a different training regime than applied to Mr. Kozuch in terms of training for the Head 1 Operator post and states that he (Mr. Kozuch) was a Head 2 Operator whilst at the same time training for the Head 1 post – the same as the complainant.
4.7 The respondent accepts that it asked the complainant to train a colleague on the Head 2 Operator post and that he refused to do so. It states that Mr. Duignan considered the request to be reasonable and was covered by the complainant’s job description. It also accepts that meetings occurred between the parties on 26 and 29 September, 2006 and states that during these meetings the complainant raised a number of grievances for the first time. It adds that the issue of training a colleague, which prompted the meetings, was set aside and that attempts were made to discuss the other issues, but were unsuccessful. The respondent states that the complainant had given notice of his resignation on 25 September, 2006 and submits that his actions cannot amount to constructive discriminatory dismissal on grounds on race in terms of the Acts.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me is whether or not (i) the complainant performed “like work” in terms of section 7 of the Employment Equality Acts, 1998 and 2004 with three named comparators and is therefore entitled to the same rate of remuneration as paid by the respondent to those comparators in accordance with section 29 of those Acts, (ii) the respondent discriminated against the complainant on grounds of race and membership of the Traveller Community, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts (iii) the respondent harassed the complainant on grounds of membership of the Traveller Community, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 14A of those Acts and (iv) the complainant was dismissed in circumstances amounting to discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts. In reaching my Decision I have taken into account all of the submissions, written and oral, made to me by the parties as well as the responses of various people at the work inspections and the evidence given by the parties in the course of the investigation.
Equal Pay Claim
5.2 The first element of the complainant equal pay claim relates to a period post January, 2004 when he was assigned to the respondent’s Loading Area. The respondent accepts that the named comparators were paid 50 cent per hour more than the complainant, that they all performed “like work” in terms of section 7 of the Acts and that the comparators were members of the Traveller Community – a point which was clarified at the first Preliminary Hearing. The complainant is therefore entitled, in accordance with section 29 of the Acts, to the same rate of remuneration as paid to those comparators for the period when that differential existed and an order in that regard will be made. I am satisfied on balance, having examined the evidence presented by the parties on this issue, that this situation whereby the complainant received a slightly lower hourly rate of remuneration than that paid to the named comparators, was due to an administrative oversight on the part of the respondent and was not a deliberate attempt by the respondent to discriminate against the complainant on the basis of membership (or not) of the Traveller Community.
5.3 The second period of the complainant’s equal pay claim covers the time when he was assigned to the respondent’s T&G Area. In the course of the Hearing on 14 April, 2008 the complainant accepted, based on documentation submitted by the respondent, that three of the named comparators in respect of this element of his claim were in receipt of a lower hourly rate of remuneration than him during his time in the T&G Area and in the circumstances he withdrew his claim based on those comparators. He also accepted that he received a higher hourly rate of remuneration than the remaining comparator – Mr. Eglinas - until April, 2005. The complainant contends that he performed “like work” in terms of sections 7(1)(a) 7(1)(c) of the Acts, with that comparator at that time and continued to do so until he left the Area in October, 2005. He submits that he is therefore entitled to the same rate of remuneration as paid to that comparator. The respondent rejects the complainant’s assertion as regards “like work”. It states Mr. Eglinas was promoted to Team Leader in April, 2005 and that this is the reason why he received a higher rate of remuneration than the complainant. I conducted a work inspection in respect of this element of the claim and have set out my findings in this regard at Appendices A-C attached to this Decision. Having regard to the conclusions set out at Appendix C in particular, I find that the complainant performed “like work” in terms of both section 7(1)(a) and 7(1)(c) of the Acts and in accordance with section 29 of the Employment Equality Acts, 1998 and 2004 he is entitled to the same rate of remuneration as paid to Mr. Eglinas by the respondent for the period April-September, 2005.
5.4 The final element of the complainant’s equal pay claim relates to the period when he was assigned to the respondent’s Laydown Area. He contends that he performed “like work” in terms of section 7(1)(a) and 7(1)(c) of the Employment Equality Acts, 1998 and 2004 with two named comparators during his employment in that area. The respondent rejects the complainant’s assertions. I conducted a work inspection in respect of this element of the claim and have set out my findings at Appendices A-C attached to this Decision. Having regard to the conclusions set out at Appendix C in particular, I find that the complainant did not perform “like work” in terms of either section 7(1)(a) and/or 7(1)(c) of the Acts with the named comparators and he is not therefore entitled to the same rate of remuneration as paid by the respondent to those employees.
Discriminatory Treatment, Harassment and Dismissal
5.5 Section 85A of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination (a prima facie case), that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of him his case cannot succeed.
5.6 The complainant alleges he was harassed by Mr. Howard during his time in the Loading Area and contends that this was on the ground of membership of the Traveller Community. As the complainant is not a member of the Traveller Community it would seem his argument centres on the premise that he was treated in the manner alleged because he was not a member of the Traveller Community. Having examined all of the evidence submitted on this point, I find that the complainant has failed to establish a prima facie case of harassment contrary to the Acts and this element of his complaint therefore fails.
5.7 The first element of the complainant’s discriminatory treatment claim relates to the alleged pressure placed on him by the respondent (Mr. Howard) to motivate colleagues when assigned to the respondent’s T&G Area. I note that the output of the Area was team based and by virtue of the complainant’s own submissions, he considered himself to be competent to perform almost every task in that Area. I therefore consider it reasonable, in the context of an appraisal process, for Mr. Howard to suggest that an employee with that level of experience might proceed to the next step and motivate colleagues to perform better. I find therefore that the complainant has failed to establish a prima facie case of discrimination on grounds of race in respect of this issue. The next element of the complainant’s treatment complaint relates to his move to and employment in, the respondent’s Laydown Area. The complainant has failed to adduce any evidence to support his assertion that his assignment to the Laydown Area was discriminatory on grounds of race and membership of the Traveller Community. The complainant further contends that his training for the post of Head 1 Operator was different to that given to Mr. Kozuch. The respondent denies this and states that they were trained in similar fashion. This view was corroborated in the course of my investigation by both Mr. Kozuch and Mr. Kinsey, the latter having been involved in the training of both the former and the complainant. In the circumstances I find that the complainant has failed to establish a prima facie case of discrimination on grounds of race and membership of the Traveller Community in respect of this aspect of his complaint.
5.8 The complainant asserts that the respondent’s request for him to train a colleague was the last straw for him. He refused to comply with the request and sought a meeting with Management to discuss his concerns. When the respondent did not revert to him within 10 days he resigned and submits that this constitutes constructive discriminatory dismissal of him. Constructive dismissal is a concept which has emerged under unfair dismissal legislation. The is a significant corpus of caselaw on this issue and two of the principles which have been established are (i) that the impugned behaviour must be serious or significant and go to the root of the contract between the parties and (ii) that an employer must be given an opportunity to address an employee’s grievance before the latter can take the unilateral action of resigning and then seeking redress for doing so. These principles transfer to the concept of discriminatory dismissal but in addition what must be addressed is whether or not the alleged actions which give rise to the resignation could be regarded as discriminatory under the Acts. Having evaluated all of the evidence submitted I am not satisfied that the complainant has discharged the necessary burden that the behaviour relied upon to warrant resignation was discriminatory. The complainant stated that the first time he formally raised these issues with the respondent and submitted that he considered them to be unlawful in terms of employment equality legislation, was at the meeting of 26 September, 2006. In the circumstances the respondent was unable to address the complainant’s concerns before he decided to resign. I note the respondent did not have a formal Grievance Procedure in place at the time. However, I am satisfied that the complainant was perfectly capable of airing his grievance if he wished and but he did not do so. The nature of the alleged behaviour of the respondent was also not of sufficient seriousness to be considered reasonable for the complainant to terminate his employment. His resignation was therefore premature and unreasonable in terms of grounding a complaint of constructive discriminatory dismissal. In light of the foregoing I find that the complainant has failed to establish a prima facie case of discriminatory dismissal in terms of the Employment Equality Acts, 1998 and 2004. However, before leaving this point I would strongly recommend that the respondent introduce, if it has not already done so, a comprehensive Grievance Policy for all employees.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and issue the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -
(i) the complainant performed “like work” in terms of section 7 of the Acts with two named comparators who were members of the Traveller Community during his period of employment in the respondent’s Loading Area. The complainant is therefore entitled to the same rate of remuneration as paid to those comparators for the period when that differential existed in accordance with section 29 of the Acts. I order, in accordance with section 82(1) of the Acts, that the respondent pay the complaint the appropriate arrears of remuneration for the period when the differential existed. Arrears of remuneration are subject to the tax code.
(ii) the complainant performed “like work” in terms of section 7 of the Acts with a named comparator who was a different nationality to the complainant during his period of employment in the respondent’s T&G Area. The complainant is therefore entitled to the same rate of remuneration as paid to that comparator for the period when that differential existed in accordance with section 29 of the Acts. I order, in accordance with section 82(1) of the Acts, that the respondent pay the complaint the appropriate arrears of remuneration for the period when the differential existed (April-October, 2005). Arrears of remuneration are subject to the tax code.
(iii) the complainant has failed to establish a prima facie case of discrimination on grounds of race and membership of the Traveller Community and his complaint cannot succeed.
(iv) the complainant has failed to establish a prima facie case of harassment on grounds of membership of the Traveller Community and his complaint cannot succeed
(v) the complainant has failed to establish a prima facie case of discriminatory dismissal on grounds of race and his complaint cannot succeed.
_______________________________________
Vivian Jackson
Equality Officer
20 July, 2009
APPENDIX A
EQUALITY OFFICER’S
JOB DESCRIPTIONS ON FOOT OF
WORK INSPECTIONS
Job Holder: Mr. Eamon Croghan
Job Title: General Operative
Reports to: Team Leader/No. 1 Head Operator
No. of Staff: None
Rate of Pay: €8.16 - €8.50 per hour in T&G Section.
€9.23 - €9.51 per hour in Laydown Area. Hours in excess of normal hours attract overtime payment at agreed rates
Hours of Work: 8am to 4:30pm Monday to Friday
T&G Area
The Complainant had a variety of general operative type tasks. At the outset of his time there he was assigned to the “Bagging Area. This involved physically catching 6-8 foot lengths of aluminium foil covered wall cavity insulation boards from the machine and placing them in a plastic bag and passing the “bagged” board on to the stacker for placing on a pallet and taping them in place. There was an element of quality control in this aspect of the job and damaged boards were not bagged. The complainant then moved on to the stacking position on the line which involved taking the “bagged” board from the Bagger and placing them on a pallet – 25 Boards per pallet and taping them with a large roll of cellophane. The complainant was also responsible, along with colleagues, for keeping the area generally clean of waste product.
The complainant also drove the forklift truck for 1-2 hours per day. This would happen during the shift and at the end of the shift. During the shift the complainant was responsible for moving pallets of “blank boards” from the storage area to the T&G Area for processing and vice versa. He must ensure that there is sufficient “blank boards” to keep the production line flowing and that the finished product is not taking up too much space in the T&G Area. He also had responsibility for recording the numbers of pallets of products processed during the shift. This was necessary to assess the Team output against the targets set. The complainant calibrated the T&G machine as necessary. This entailed adjusting the ridges which scored the product by measuring the distance between the top and bottom of the clamp. The position of the ridges was determined by the size (Depth) of the product being processed. The complainant also had responsibility, when operating the forklift, to remove damaged product to the recycling area and for ensuring the forklift was charged and in working order – if necessary he would liaise with Maintenance Section in respect of the latter.
Laydown Area
The complainant commenced work as the Head 2 Operator in the Laydown Area in November, 2005. The complainant was responsible for ensuring that the correct foil facer was placed on the rollers and that there was sufficient on the machine to complete the product run. These details were obtained from the production schedule. The complainant was also responsible for ensuring that the Heads were clean and enabled a constant flow of the polymer liquid and that a spare set of Heads were available during each shift. The complainant must ensure that the foil facer moves through the rollers and into the machine cleanly and without and kinks. If difficulties arose during production the complainant was responsible for adjusting the facer through a series of switches and levers. The complainant was also responsible for keeping the area tidy and clean.
The complainant commenced training on the Head 1 operation in the Laydown Area. The first task required involved the complainant turning on the chemical tanks and ensure the correct combination of the various chemicals for the product. This was done in accordance with a written recipe from the Polymer Engineer. The complainant was also responsible for ensuring that there were sufficient quantities of chemical in the tanks which were located in the Chemical Room located close by the Laydown Area. The Laydown Machine was then started by depressing a button. The complainant then ran a test “bag shot” of the Heads to ensure that the polymer liquid was flowing freely. The Head 1 Operator was the Line Manager for the Head 2 Operator and was therefore responsible for ensuring that correct Heads and Facer were on the machine for the product which was scheduled – obtained from the Production Schedule which was kept in the Area. Once the machine starts the Head 1 Operator is responsible for ensuring the quality of the product. If something happens the Head 1 Operator would correct things, generally by adjusting the Heads or changing the formulation inputs. At the end of the shift (if the shift finished at the end of the day) the Head 1 Operator was responsible for turning off the chemical tanks and ensuring the machine was switched off. If the Head 1 Operator is unable to deal with a problem on the Laydown Production Line he would contact Maintenance, the Production Manager or the Polymer Engineer as appropriate.
Job Holder: Mr. Jonas Eglinas
Job Title: Team Leader T&G Area
Reports to: Team Supervisor
No. of Staff: None
Rate of Pay: €8.75- €9 per hour. Hours in excess of normal hours attract overtime payment at agreed rates
Hours of Work: 8am to 4:30pm Monday to Friday
The comparator performed the same functions on the forklift as outlined in the job description for the complainant in the T&G Area and maintaining the necessary records. He also performed the same duties as outlined for the complainant as regards calibrating the T&G machine and starting it up. This task was more frequent after April, 2005. If there were problems he would contacted the Team supervisor or Maintenance as appropriate. The comparator was also responsible for keeping the work area clean and tidy.
Job Holder: Mr. David Kozuch
Job Title: Head 1 Operator
Reports to: Production Manager
No. of Staff: One
Rate of Pay: €10- €10.25 per hour. Hours in excess of normal hours attract overtime payment at agreed rates
Hours of Work: Split shifts Monday to Friday
The comparator performed all of the functions of Head 1 Operator as outlined above. In addition he had responsibility for training up anyone who was considered competent to train as Head 1.
Job Holder: Mr. Lionel Kinsey
Job Title: Head 1 Operator
Reports to: Production Manager
No. of Staff: One
Rate of Pay: €10.25- €11.07 per hour. Hours in excess of normal hours attract overtime payment at agreed rates
Hours of Work: Split shifts Monday to Friday
The comparator performed all of the functions of Head 1 Operator as outlined above. In addition he had responsibility for training up anyone who was considered competent to train as Head 1. In this regard he trained both the complainant and the comparator.
APPENDIX B
EQUALITY OFFICER’S ANALYSIS
OF COMPLAINANT’S JOB
SKILL
The complainant must be competent to drive the forklift in the T&G Area. He must also demonstrate organisational skills by ensuring a constant supply of “blank board” in the area whilst also ensuring that the area does not become overly cluttered with finished product. He must also ensure that the “blank board” is taken in sequence from the storage area so that more recently prepared product is not scored first. In addition he must maintain records to enable stock control and team targets to be calculated and assessed.
These skills are equally applicable to the Laydown Area. In addition the complainant, when performing Head 1 tasks must be constantly vigilant to ensure the board is of the required standard. Any problems which arise must be dealt with immediately. This requires an analysis of the situation and development of the appropriate response in order to ensure that the production line is not shut down for excessive periods of time.
PHYSICAL DEMANDS
There are significant physical demands - lifting, bending, stretching and standing in terms of the work performed by the complainant in the T&G Area. These demands are present to a lesser extent in the Laydown Area.
MENTAL REQUIREMENTS
The complainant must keep close watch on the processes in both the T&G and Laydown Areas and be ready to stop the process if necessary. He must ensure the accuracy of the recipe mix when operating Head 1 and ensure that the chemical levels are recorded. In addition, the complainant must be vigilant at all times when operating the forklift. Finally, the accuracy of the paperwork in both Areas is of significant importance.
RESPONSIBILITY
The complainant operates in the T&G Area as part of a team. Responsibility for starting, maintaining and the general operation of the production line rests with the Team Supervisor. The complainant therefore has the same level of responsibility as other person in the Team.
The Head 1 Operator is the Team Leader in the Laydown Area and has direct Line Management responsibility for the Head 2 Operator. Whilst the Head 2 Operator has responsibility for his own work area overall responsibility for the production line rests with the Head 1 Operator.
WORKING CONDITIONS
The T&G Area can be cold and dusty. The noise of machinery is constant and there is the continual hazard of forklifts negotiating the area. Conditions in the Laydown Area are similar as regards noise and hazards. However, temperatures here are high and the environment can be stuffy.
APPENDIX B
EQUALITY OFFICER’S ANALYSIS
OF COMPARATORS’ JOBS
Jonas Eglinas
SKILL
The comparator must be competent to drive the forklift in the T&G Area. He must also demonstrate organisational skills by ensuring a constant supply of “blank board” in the area whilst also ensuring that the area does not become overly cluttered with finished product. He must also ensure that the “blank board” is taken in sequence from the storage area so that more recently prepared product is not scored first. In addition he must maintain records to enable stock control and team targets to be calculated and assessed.
PHYSICAL REQUIREMENTS
There are significant physical demands - lifting, bending, stretching and standing in terms of the work performed by the complainant in the T&G Area
MENTAL REQUIREMENTS
The comparator must keep close watch on the processes in the T&G Area and be ready to stop the process if necessary. In addition, the complainant must be vigilant at all times when operating the forklift. Finally, the accuracy of the paperwork is of significant importance in that it is used for stock control and Team target purposes.
RESPONSIBILITY
The comparator is responsible for his own tasks but has no responsibility for the tasks of others in the Team.
WORKING CONDITIONS
The comparator works in the T&G Area which can be cold and dusty. The noise of machinery is constant and there is the continual hazard of forklifts negotiating the area.
David Kozuch and Lionel Kinsey
SKILL
The comparators demonstrate organizational skills in that they must use their Teams effectively to ensure that disruption to the production line is kept to a minimum. They must be constantly vigilant to ensure the board is of the required standard. Any problems which arise must be dealt with immediately. This requires an analysis of the situation and development of the appropriate response in order to ensure that the production line is not shut down for excessive periods of time.
PHYSICAL REQUIREMENTS
There comparators stand for most, if not all of the shift. They are also exposed to lifting, bending and stretching during each shift.
MENTAL REQUIREMENTS
The comparators must keep close watch on the processes in the Laydown Area and be ready to stop the process if necessary. They must also be able to record the data relating to the chemicals and monitor it usage. They must also be able to record the daily inputs/outputs in respect of the process.
RESPONSIBILITY
The comparators are Line Managers of the Head 2 Operators and are therefore responsible for the entire production process, including those tasks performed by the Head 2 Operators. They also have responsibility for training staff as necessary.
WORKING CONDITIONS
The comparators work in the Laydown Area where the noise of machinery is constant and there is the continual hazard of forklifts negotiating the area. The temperature can be high and the environment can be stuffy.
Appendix 5
Comparison of Complainants’ and Comparator’s
Jobs in terms of Section 7(1)(c)
of the Acts
Comparison of the complainant’s post with that of Mr. Eglinas
SKILL
Both the complainant and the comparator are required to be numerate and literate in order to perform their duties. They must be competent to operate a forklift truck and be vigilant at all times.
I find that the skills required of the comparator and complainant to be equal
PHYSICAL REQUIREMENTS
The complainant and comparator are exposed to the same physical demands in the course of their working day.
I find that the demands made on the comparator and complainant in terms of physical effort to be equal
MENTAL REQUIREMENTS
The complainant and comparator demonstrate the same level of mental requirements in fulfilling their duties.
I find that the mental effort required of the comparator and complainant to be equal.
RESPONSIBILITY
Both the complainant and comparator operate as part of a Team and therefore they both strive towards reaching the Team targets. They have no responsibility for the work of any other member of the Team.
I find that the demands made on the comparator and complainant
in terms of responsibility to be equal
WORKING CONDITIONS
Both the complainant and comparator work in the same working environment and are exposed to the same working
I find that the demands made on the comparator and complainant in terms
of working conditions to be equal.
Comparison of complainant’s post with that of Mr. Kozuch and Mr. Kinsey
SKILL
The complainant performed some of the tasks associated with Head 1 Operator on an incremental basis from March, 2006 onward. During this time he was under the direct supervision of Mr. Kinsey and was in effect, training up for the Head 1 Post. Whilst he may have been learning the various skills involved with that post he was not proficient in them and was never fully signed off as competent. The comparators were fully trained Head 1 Operators and were responsible for the entire production process. They were expected to lead their respective Teams and “troubleshoot” as necessary.
I find that the skills required of the comparators to be greater than those
required of the complainant.
PHYSICAL REQUIREMENTS
The comparators and complainant stand for most, if not all of the shift. They are also exposed to lifting, bending and stretching during each shift.
I find that the demands made on the comparators and complainant in terms of
physical effort to be equal.
MENTAL REQUIREMENTS
The comparators must keep close watch on the processes in the Laydown Area and be ready to stop the process if necessary. They must also be able to record the data relating to the chemicals and monitor it usage. They must also be able to record the daily inputs/outputs in respect of the process. The complainant was expected to display these competencies when operating Head 1. However, this was not an everyday occurrence and only became more regular from July, 2006 onward, during the time when he was training.
I find that the demands placed on the comparators in terms of mental requirements to be greater
than those required of the complainant
RESPONSIBILITY
The comparators are Line Managers and responsible for the entire production line, including the tasks performed by those staff at Head 2 level. The complainant was a Head 2 Operative and was training to perform the functions of a Head 1. However, whilst he may have performed the full range of duties associated with the Head 1 position, he did so incrementally over several months and never acquired responsibility for the role.
I find that the demands made on the comparators in terms of
responsibility exceed those placed on the complainant
WORKING CONDITIONS
The complainant and comparators work in the same area and are therefore exposed to the same working environment. They also worked split shifts.
I find that the demands made on the comparators and complainant in terms
of working conditions to be equal.