FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : DONEGAL MEAT PROCESSORS LTD (REPRESENTED BY MATHESON ORMSBY PRENTICE SOLICITORS) - AND - RODRIGO DA SILVA DIAS (REPRESENTED BY CANNY CORBETT SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal under Section 83 Of The Employment Equality Act, 1998
BACKGROUND:
2. A Labour Court hearing took place on 18th February, 2009. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Mr Radrigo Da Silva Dias against the decision of the Equality Tribunal in a claim which he had brought against his former employer, Donegal Meat Processors Ltd. The claim was made under the Employment Equality Acts 1998 and 2004 (the Act). For ease of reference the parties are referred to as they were at first instance. Hence Mr Dias is referred to as the Complainant and Donegal Meat Processors Ltd is referred to as the Respondent.
Introduction.
The Complainant is of Brazilian nationality. He was employed by the Respondent as a general operative from 9th October 2001 until 3rd September 2004. The Claimant was paid €1.00 per hour less than certain general operatives of Irish nationality who were employed by the Respondent. He brought a claim for equal pay pursuant to s.29 of the Act. For the purpose of advancing his claim the Complainant nominated three comparators who were referred to in the course of the hearing as comparator. A comparator B and comparator C.
The Equality Officer found that the Complainant was not engaged in like work with any of the nominated comparators. Accordingly the claim was dismissed. The Complainant appealed to the Court.
Facts
The factual background to the case is as follows:
The Respondent is engaged in meat processing. At the time material to this claim it employed 55 general operatives. 18 of those employees were of Irish nationality. 14 general operatives were of Brazilian nationality and 23 were Polish. The pay and other conditions of employment of all general operatives is determined by negotiation with the trade union SIPTU. There are three pay rates, namely skilled, semi-skilled and basic. The Complainant was placed on the basic rate. The comparators were on the skilled rate.
Workers are placed on a pay rate by management following an assessment of their skills and having regard to the range of functions which they are competent to undertake.
The position of the parties
The Complainant
The Complainant contends that he is competent to undertake the full range of function of a skilled trimmer-boner. He claims that he carried out the same range of functions as those undertaken by his nominated comparators. He claims that he was paid less than his comparators because of his race.
The Complainant gave evidence concerning the work which he performed while employed by the Respondent. He said that he possessed the skills necessary to undertake all functions associated with his job. He accepted, however, that he did not work on the weighbridge nor did he undertake a function described as “sticking”. The Complainant further accepted that he did not have IT skills.
The Respondent
The Respondent contends that the Claimant did not have the same level of skill as the comparators. In consequence, it was argued, there were a number of functions which he did not perform. These functions were classified as either extremely important or very important.
Mr David Grant gave evidence in relation to the work undertaken by the Complainant and the comparators. Mr Grant is slaughter hall manager with the Respondent and held that position at the time material to the claim. The witness told the Court that the process involved in the activities of the slaughter hall comprised 46 functions. These were set out in a document which was referred to as a skills matrix. According to Mr Grant the Complainant was skilled to undertake 12 of these functions. The Court was told that comparator A was able to undertake 23 of the listed functions, comparator B was able to carry out 45 functions and comparator C was also capable of undertaking 45 functions.
Mr Grant accepted that the skill matrix upon which he relied was compiled some years after the Complainant left the employment.
Mr Grant told the Court that he assessed the skills of employees in conjunction with other supervisors and, based on their assessment, employees were progressed through the pay structure. The Court was told that the comparators were allocated the highest skilled rate based on the assessment of their skills and the fact that they were able to perform functions which were classified as extremely important and very important. The Complainant was not in that skill category and was placed on the lowest rate.
Conclusion of the Court.
Before the Complainant can succeed in his claim it must be established that he and his comparators are engaged in like work. Like work is defined by s. 7(1) of the Act. This provides as follows: -
- —(1) Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if—
- (a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,
(b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or
(c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.
- (a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,
The existence of like work between a Complainant and comparator is a condition precedent to any entitlement to equal pay under the Act. This is a question of fact and degree. It is for the Complainant to prove, on credible evidence of sufficient weight, that he was engaged in like work within the statutory meaning.
The Court has heard the evidence of the Complainant and that of Mr Grant on this question. There was significant disagreement between them as to the range of functions which the Complainant performed. The Complainant told the Court that he performed most of the functions listed in the skills matrix. Mr Grant said that the Complainant may have worked on many of these functions for short periods but for the purposes of training. He said that the Complainant was not sufficiently skilled to undertake many of these tasks unsupervised.
The Complainant did, however, accept that he did not undertake work on the weighbridge nor did he undertake “sticking”. He further accepted that he did not have any IT skills which were necessary to perform certain functions.
The Court is satisfied, on the evidence that the functions which the Complainant did not perform are regarded as either extremely important or very important within the Respondent’s job classification system. These functions were performed to one degree or another by the comparators. The Court is further satisfied that an ability to perform these functions is a requirement for placement on the higher skilled rate.
Having regard to all of the evidence the Court has come to the conclusion that the Complainant has failed to establish that he and his comparators were engaged in like work within the meaning of s7of the Act. Accordingly his claim cannot succeed.
Determination
For the reasons set out above the within appeal is disallowed and the decision of the Equality Officer is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
2nd March 2009______________________
AHChairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.