The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
EQUALITY OFFICER'S DECISION DEC-E2010-092
PARTIES
Jose Lito Quiber
(Represented by SIPTU)
AND
Johnston Logistics Limited
File reference: EE/2005/344
Date of issue: 8 June 2010
HEADNOTE
Employment Equality Acts, 1998-2008 Race - Equal Pay.
1. DISPUTE
1.1 This dispute concerns a claim by Mr Jose Lito Quiber that he performs 'like work' in terms of section 7 of the Employment Equality Acts 1998-2008 with two 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(1) of the Acts. The claim is made on the grounds of race and the named respondent is Johnston Logistics Limited. The complainant worked as an articulated truck driver for the respondent from 21 May 2001 until 30 March 2005 and claims that he carried out the same work or work of equal value to the two named comparators, Mr Ger Meade, who was an articulated truck driver and Mr Gary Grant, who was a rigid vehicle driver. The respondent rejects the complainant's assertion that he performs "like work" with the named comparators.
1.2 The complainant also made claims in relation to access to employment, promotion/re-grading, training and conditions of employment but these were withdrawn.
1.3 The complainant referred his claim to the Director of the Equality Tribunal on 7 October 2005. On 16 October 2008, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation began. A preliminary hearing was held on 30 April 2009 following which both parties made submissions and a substantive hearing took place on 10 November 2009 and final information was received on 10 March 2010.
2. RESPONDENT'S SUBMISSION
2.1 The respondent submits that the complainant was recruited from the Philippines and he had a lengthy learning curve when he started work in order to become familiar with the work, the routes and in communicating. Hence he was started on a different pay rate than other articulated vehicle drivers already working for them. It was intended that the pay would be equalised when his performance reached the required level. However the complainant never reached that level of 12 deliveries and revenue of €750 per day. They submitted evidence which showed that in September 2004 the complainant was doing an average of 9.1 deliveries per day earning a revenue of €533 per day, whilst other articulated truck drivers were earning an average revenue of €724 per day. Drivers of rigid vehicles were earning an average revenue of €639 per day.
2.2 The respondent submits that the complainant did not carry out like work with the two named comparators. Whilst the complainant drove the same type of vehicle as Mr Meade he never achieved the level of performance required for him to be paid the same as other articulated truck drivers. Also the rigid truck driven by Mr Grant was a different vehicle to the articulated truck. The work was similar but the vehicle was smaller and able to access areas where an articulated truck could not go, therefore they made a similar number of deliveries but they were of a smaller individual size. Because of the different nature and number of deliveries his work and pay was calculated differently.
2.3 The respondent submits that Mr Meade drove a similar vehicle to the complainant he was not a suitable comparator because his long service had put him on a rate of pay which was effectively "red circled". They submit that Mr Grant was not a suitable comparator because of the different nature of the pay calculation.
2.4 The respondent submits that as well as looking at the complainant's basic pay the following should be taken into account as part of remuneration:
- the respondent was obliged to pay €2000 in air fares
- the complainant was provided with serviced accommodation at a subsidised rate of €63.49 per week, approximately €15 per week below the going rate
- initially a minibus took the complainant and other Philippino colleagues to work, subsequently the complainant had the use of his truck to take him between his work and his accommodation, which amounts to a benefit of €80 per week.
3. COMPLAINANT'S SUBMISSION
3.1 The complainant submits that he worked as an articulated truck driver for the respondent from 21 May 2001 until 30 March 2005 and that he carried out the same work or work of equal value to the two named comparators, Mr Gary Grant, who was a rigid vehicle driver, and Mr Ger Meade, who was an articulated truck driver. He was initially paid €6.35 per hour, 1.25 hours per day were deducted for travel from his home, where the lorry was left by a colleague, to the workplace; even though he started 50% of the trips from his home and not the workplace. Also, 2 hours were deducted each day for breaks even though he only took a maximum of 1 hour.
3.2 The complainant accepts that it took some time for him to adapt to his work but submits that within a matter of weeks he was up to speed with all the other drivers. He was never told that he was on a special rate of pay while training and was told that he was on the same rate of pay as the Irish drivers. The complainant also submits that he was never told about any deficiencies in his performance and he received no complaints about his work. Also he cannot accept that he should have made 12 deliveries every day as some days he made one drop and one collection and other days he made multiple drops and collections. Furthermore, he was given different routes each day whereas Mr Meade worked on a particular route.
3.3 The complainant submits that it was a condition of granting the Work Permit to the respondent that they pay the airfare and therefore is a cost of recruitment and cannot be considered part of his remuneration. The accommodation was owned by the company manager and there were 10 people sharing a three bedroom house in very poor conditions and the need to provide transport to work only arose because the house was in Newbridge and not adjacent to the depot in Rathcoole.
4. FINDINGS AND CONCLUSIONS
4.1 The issue for decision is whether the complainant has a claim for equal pay on the grounds of race. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
4.2 It is accepted that the complainant and Mr Meade both drove an articulated truck. When requested to provide job descriptions for both of them the respondent conceded that the complainant and the Mr Meade performed the same work; their contention being that the complainant performed less work. I therefore find that the complainant and Mr Meade performed like work in accordance with section 7 (1)(a) of the Acts.
4.3 The respondent contends that in accordance with section 29 (5) of the Acts there are grounds other than race for the difference in remuneration; in that the reason for the difference in pay, which is also not contested, is because the complainant performed less work. The only evidence produced by the respondent was a single sheet purporting to show average daily revenue produced by each vehicle for September 2004. When requested by the Tribunal the respondent declined to produce any more documents for the remainder of the complainant's employment. In these circumstances I cannot take the evidence produced to be persuasive. The complainant gave oral evidence that, after an initial training period, he was as busy as the other drivers, including Mr Meade. Also, Mr Meade had the advantage of driving a regular run whilst the complainant did not. Other than an issue when the complainant refused to travel to Northern Ireland, no disciplinary matters were taken up with the complainant. I find this difficult to reconcile with the respondent's contention that the complainant was performing below their expected levels for the entirety of his time with them; nearly four years. I also accept the complainant's evidence that he was never told he started on a training rate of pay, he was never told he was underperforming and after a short settling in period he carried out the same work as the comparator. I find the complainant's evidence to be credible and therefore find that the respondent's defence in relation to grounds other than race in accordance with section 29(1)(5) of the Acts fails.
4.4 I find that the complainant and the comparator, Mr Meade, performed the "same work" and as the defence under section 29(1)(5) fails I find that the reason for the difference in pay between the complainant and Mr Meade was because of the complainant's race. I do not find that any of other factors put forward by the respondent can be considered as part of pay; air fare, accommodation costs or transport to and from work. I do accept that Mr Meade's pay was enhanced relative to the other Irish drivers but this does not make him an unsuitable comparator. The relevant pay is what Mr Meade was paid less the enhancements, which the other Irish articulated truck drivers did not receive.
4.5 The complainant also claimed that he performed like work with Mr Grant, who drove a rigid truck. The respondent put forward the case that the work is different between articulated and rigid trucks, in that the rigid truck is smaller and able to access areas where an articulated truck could not go, therefore they made a similar number of deliveries but they were of a smaller individual size. Because of the different nature and number of deliveries his work and pay was calculated differently. The respondent used this to explain why Mr Grant was paid less than the other comparator, Mr Meade, and the other Irish articulated truck drivers. I accept that Mr Meade was performing work of higher value than Mr Grant. However Mr Grant was paid more than the complainant. Given that I have found that the complainant performs like work with Mr Meade it must be accepted that he performed work of higher value than Mr Grant and in accordance with section 7(3) of the Acts I find that they performed work of equal value.
5. DECISION
I have investigated the above issues and make the following decisions in accordance with section 79 of the Acts that
- Mr Jose Lito Quiber does perform 'like work' with the named comparator, Mr Ger Meade, in terms of Section 7(a) of the Acts, and
- Mr Jose Lito Quiber does perform 'like work' with the named comparator, Mr Gary Grant, in terms of Section 7(b) of the Acts.
I find that there are no objective grounds other than race for the difference in pay in accordance with section 29(5) of the Act and I, therefore, find that the complainant has been discriminated against by the respondent.
I hereby order that the respondent pay to the complainant:
- arrears of pay, that is the difference between the complainant's pay and the pay of the comparator, Mr Meade less the enhancements paid to Mr Meade that were not paid to the other Irish articulate truck drivers, from three years before the claim was made, 7 October 2002, until he left the respondent's employment on 30 March 2005, in accordance with section 82(1)(a) of the Acts; and
- in line with Council Directive 2000/43/EC Article 15¹ which states that "sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive", compensation for the effects of the discrimination in accordance with section 82(1)(c), in the sum of €25,000. This award is intended to be dissuasive to the respondent for the discrimination in pay suffered by the complainant because of his race. This award relates to compensation for distress and breach of rights under the Acts and does not contain any element of lost income and is not therefore subject to tax);
___________________
Hugh Lonsdale
Equality Officer
8 June 2010
¹ Council Directive 2000/43/ec of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin