EQUALITY OFFICER'S DECISION NO: DEC-E/2010/176
PARTIES
SALA
(REPRESENTED BY POLISH CONSULTANCY ENTERPRISE )
AND
PAT BURKE ELECTRICAL LTD. (IN LIQUIDATION)
File No: EE/2007/221
Date of issue :14 September, 2010
Headnotes: Employment Equality Acts, 1998&2004 - sections 6,7 & 29 - race- equal pay- grounds other than
1. DISPUTE
This dispute involves a claim by Mr. Zenon Sala that he performs "like work", in terms of section 7 of the Employment Equality Acts, 1998 and 2004, with two named Irish comparators and that he is therefore entitled to the same rate of remuneration paid by the respondent to those comparators in accordance with section 29(1) of the Acts. The respondent rejects the complainant's assertion that he performs "like work" with the named comparators and notwithstanding this argument it submits that there are grounds unconnected with the ground of race which render the rates of remuneration paid to the complainant and comparators lawful in terms of section 29(5) of the Acts.
2. BACKGROUND
2.1 The complainant, who is a Polish national, commenced employment with the respondent in late November, 2004. It is a matter of dispute as to what he was engaged as. The complainant asserts it was as a qualified electrician while the respondent contends it was as an electrician's assistant. The complainant submits that he performs "like work" in terms of sections 7(1)(a) and 7(1)(b) of the Employment Equality Acts, 1998 and 2004 with two named Irish male comparators and he is therefore entitled to the same rate of remuneration as paid by the respondent to those named comparators. He referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 26 April, 2007 in this regard. In accordance with her powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 29 January, 2010 - the date the complaint was delegated to me. A Preliminary Hearing on the complaint took place on 23 February, 2010.
2.2 At this Preliminary Hearing the respondent rejected the assertion that the complainant performed "like work" in terms of the Acts with the named comparators and notwithstanding this contention, submitted that there were grounds other than race which rendered the rates of remuneration paid to the complainant and the comparators lawful in accordance with section 29(5) of the Acts. The Equality Officer decided to investigate this matter as a preliminary issue in accordance with section 79(3) of the Acts. A further Hearing on the complaint took place on 10 June, 2010. A number of points emerged at the this Hearing which required further clarification and gave rise to correspondence between the parties and the Equality Officer. This process concluded late August, 2010 at which time the Tribunal was informed by the then legal representative of the respondent, that the Directors of the respondent had recently resolved to put the company into Liquidation.
3. SUMMARY OF RESPONDENT'S CASE
3.1 The respondent states that the complainant was engaged as an electrician's assistant (labourer) in November, 2004. It adds that the complainant was paid the appropriate rate of remuneration for employees at his level and competence from the outset of his employment and in this regard it asserts that there were two other employees recruited around the same time as the complainant who received the same starting rate of remuneration as him. The respondent further states that during the period covered by the complainant's claim one of the named comparators was a qualified electrician and the other was in the process of completing his apprenticeship. It adds that the complainant was not qualified as an electrician and consequently the comparators were paid higher rates of remuneration than the complainant. In this regard it states that the complainant never produced any paperwork to prove he was a qualified electrician, despite several requests that he do so.
3.2 The respondent states that the complainant received an increase of €3 per hour in his hourly rate of remuneration in March, 2005 in the hope that he might improve his performance and quality of work. It adds that this did not happen and it was necessary for the respondent to ensure that he was constantly supervised during his period of employment for health and safety reasons.
3.3 In summary, the respondent contends that the complainant was not qualified, competent or capable of carrying out the work carried out by the named comparators and therefore received a lower rate of remuneration than that paid to those comparators - a rate which was commensurate with the grade he was employed as and was consistent with the rate of remuneration paid to other employees recruited at that level.
4. SUMMARY OF COMPLAINANT'S CASE
The complainant states that he qualified as an electrician in Poland in 1986. He accepts that he received an increase of €3 per hour in March, 2005 but contends this arose because he approached the respondent at that time seeking an increase in wages. He rejects the assertion that the respondent ever raised any issue about his performance with him. The complainant further states that he was not asked for a copy of his formal qualifications until Mr. C - one of the comparators - asked for them in March, 2006. He adds that he copied the documents and gave then to Mr. C and the matter was never discussed again. It is submitted on the complainant's behalf that in all of the circumstances the respondent has failed to provide evidence that the difference in the rates of remuneration paid to him and the named comparators is lawful in terms of section 29(5) of the Acts.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the difference in the rates of remuneration paid to him and the named comparators is lawful in terms of section 29(5) of the Employment Equality Acts, 1998 and 2004. In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by witnesses at the Hearing.
5.2 Section 29(5) of the Acts provides "Subject to subsection (4) nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.". As this provides an absolute defence to the respondent, it is for the respondent to satisfy me that the difference in the rates of remuneration paid to the complainant and comparators is genuinely attributable to grounds other than race - i.e. the nationality of the complainant. In examining this matter I note the comments by Keane J in Minister for Transport, Energy and Communication v Campbell & Others where he stated that "the Labour Court is entitled and indeed bound to approach such an issue on the basis that the employer must prove that the differentiation is genuinely attributable to grounds other than sex. In other words, the subsection cannot be used to uphold a practice which seeks to conceal discrimination on sexual grounds". Whilst Keane J was dealing with matters connected with a claim for equal pay on grounds of gender under the Anti-Discrimination (Pay) Act, 1974, the principle set out clearly applies to the instant case.
5.3 It is the respondent's case that (i) the complainant was not a qualified electrician - the comparators were, (ii) the complainant was paid a rate which was commensurate for the grade he was - a labourer/electrician's assistant - and that he was paid the same rate as other employees who were at this grade and (iii) the complainant's performance was unsatisfactory during his period of employment and despite its best efforts it did not improved sufficiently to warrant a higher level of remuneration. The Labour Court has held on a number of occasions that since the facts necessary to prove an explanation that a process was free from discrimination can only be in the possession of the respondent, that Court (and therefore this Tribunal) should expect cogent evidence to discharge the burden of proof placed on an employer. The Court further held that it must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution . The respondent has failed to adduce a single document to support any of the three arguments advanced in relation to its contention that the rates of remuneration are lawful in terms of section 29(5) of the Employment Equality Acts, 1998 and 2004. In addition in the course of the Hearing I found the respondent's evidence to be contradictory and inconsistent at times. In light of the foregoing I find that the respondent has failed to demonstrate to my satisfaction that the difference in the rates of remuneration paid to the two comparators and the complainant is genuinely attributable to grounds other than race. Consequently, the respondent cannot avail of the defence set out at section 29(5) of the Acts.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of these complaints and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find that the respondent has failed to demonstrate to my satisfaction that the difference in the rates of remuneration paid to the two comparators and the complainant is genuinely attributable to grounds other than race. Consequently, the respondent cannot avail of the defence set out at section 29(5) of the Acts.
_______________________________________
Vivian Jackson
Equality Officer
14 September, 2010