Equality Officer's Decision No: DEC-E/2011/078
Parties
Palasti
(Represented by Tiernan Lowey BL
Instructed by M Roche & Company - Solicitors)
And
Rapiton t/a Alpine Electrical Engineering
(Represented by Peter O'Brien BL
Instructed by Aaron McKenna - Solicitors)
File No: EE/2009/470
Date of issue 19 April, 2011
Headnotes: Employment Equality Acts, 1998- 2008 - sections 6, 7,8 and 29 - race - equal pay - like work - grounds other than -discriminatory dismissal - prima facie case
1. DISPUTE
This dispute involves a claim by Mr. Gyorgy Palasti, who is a Hungarian national that (i) he performs "like work" in terms of section 7(1) of the Employment Equality Acts, 1998 - 2008 with a named comparator, who is English, and he is therefore entitled to the same rate of remuneration as paid by the respondent to that comparator in accordance with section 29 of those Acts and (ii) the respondent dismissed him in circumstances amounting to discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts.
2. BACKGROUND
2.1 The complainant, who is a qualified electrician, was employed by the respondent as a Panel Builder at its premises in Dublin from 30 June, 2008 until 27 May, 2009, when his employment was terminated by the respondent. The comparator is also a qualified electrician and was employed by the respondent as a Panel Builder. The complainant referred a complaint to the Equality Tribunal on 13 July, 2009 contending that during his period of employment with the respondent he performed "like work" with a named comparator (who is of a different nationality to him) in terms of section 7(1) of the Employment Equality Acts, 1998 - 2008 and is therefore entitled to the same rate of remuneration as paid by the respondent to that comparator in accordance with section 29 of those Acts. He further contends that he was dismissed by the respondent in circumstances amounting to discrimination on grounds of race contrary to the Acts on 27 May, 2009. In accordance with his 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 of the Director under Part VII of the Acts. My investigation of the complaint commenced on 5 May, 2010 - the date it was delegated to me.
2.2 An Initial Inquiry Hearing on the complaint took place on 28 June, 2010 at which the respondent disputed the existence of "like work" between the complainant and comparator and notwithstanding this, submitted that there were grounds other than race which render the rates of remuneration paid to the complainant and comparator lawful in accordance with section 29(5) of the Acts. Having considered the arguments advanced by the parties on this point the Equality Officer decided to investigate the entire complaint and not exercise his discretion to investigate, as a preliminary matter in accordance with section 79(3) of the Acts, the question of whether or not the rates of remuneration paid to the complainant and the comparator were lawful in terms of section 29(5) of the Acts. Job specifications were exchanged between the parties and the Equality Officer conducted a work inspection at the respondent's premises on 27 September, 2010. The respondent further rejects the assertion that it dismissed the respondent in circumstances amounting to discrimination contrary to the Acts. A Final Hearing on the complaint took place on 7 October, 2010. A number of points arose at the Hearing which required further clarification and gave rise to further correspondence between the Equality Officer and the parties. This process concluded at end of January, 2011.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is a Hungarian national, states that he is a qualified electrician and was employed by the respondent as a Panel Builder at its premises in Dublin from 30 June, 2008 until 27 May, 2009, when his employment was terminated by the respondent. He contends that during his period of employment with the respondent he performed "like work" in terms of section 7(1) of the Employment Equality Acts, 1998 - 2008 with Mr. A, whom the complainant states was also a qualified electrician and was employed by the respondent as a Panel Builder. The complainant adds that Mr. A is an English national. He states that the respondent paid Mr. A a higher rate of remuneration than him and he (the complainant) is entitled to the same rate of remuneration as paid by the respondent to that comparator in accordance with section 29 of those Acts.
3.2 The complainant rejects the respondent's assertion that there are grounds which render the rates of remuneration paid by the respondent to him and Mr. A lawful in terms of section 29(5) of the Employment Equality Acts, 1998 - 2008. The complainant states that he was not aware of any pay determination process which operated in the respondent organisation at the relevant time. He adds it was never brought to his attention that he was free to negotiate a better rate of remuneration and no such opportunity was ever afforded to him. He further states that he was not aware of any performance appraisal or review system which operated in the respondent. The complainant states that no such processes had existed during his prior employment with the respondent - he had previously worked with the respondent in the same capacity from August, 2004 until February, 2008. He adds that when he was invited to return to employment with the respondent he was advised by his Supervisor (Mr. C) that he would be paid the same rate of remuneration as paid to other colleagues who were Panel Builders. He states that this was not the case as Mr. A was paid €2 per hour more than he was, although he resumed employment on the same hourly rate of remuneration as he had received when he ceased employment with the respondent four months earlier (February, 2008) and he rejects the respondent's assertion that Mr. A was a Chargehand - which is a supervisory role.
3.3 It is submitted on behalf of the complainant that there was no transparency in the pay system which existed in the respondent company at the time - there was no formal written policy on how pay negotiations were conducted and the complainant was not aware of the practice asserted by the respondent that he was free to negotiate his rate of remuneration - and it is argued that these are facts which give rise to an inference of discrimination. In this regard the complainant seeks to rely on the judgement of the ECJ in Enderby v Frenchay Health & the Secretary of State for Health. The complainant also seeks to rely on the judgment of that Court in Cadman v Health Service Executive in terms of the assertion that greater experience is not sufficient to justify a difference in rates of remuneration. It is further submitted that there was no evidence adduced by the respondent to support its assertion that the comparator was a Chargehand and Counsel for the complainant referred to the comparator's own evidence at the Work Inspection that he did not hold this position. Finally on this matter, it is submitted on behalf of the complainant, that there is inconsistency between the evidence given by Mr. C (the Production Manager) at the Hearing and the contents of the respondent's submission on the "grounds other than" issue as regards the circumstances surrounding the increase of Mr. A's salary in August, 2007.
3.4 The complainant states that Mr. C called him to his office on or around 19 May, 2009 and informed him (the complainant) that due to a downturn in work he was letting him go and was giving him notice of same. The complainant adds that his last day of employment was 27 May, 2009 and he was the only electrician who had his employment terminated at that time. He further states that Mr. C never mentioned "last in, first out" (LIFO) to him and submits that this system was not operated. The complainant states that Mr. Z - who was an also electrician - was made redundant in February, 2009 and had longer service than him (the complainant). He further states that Ms. S (who was also an electrician) was retained in employment despite having less than three months' service with the respondent. The complainant states that Mr. Z is from Lithuania and Mr. S is from USA and submits that the manner in which each were treated demonstrates that the termination of his employment by the respondent constitutes discrimination of him contrary to the Acts.
3.5 The complainant states that he did not receive a contract of employment and he was not aware of any procedures in place for selection for redundancy. He adds that there was no Grievance Procedure in place to enable him query the termination of his employment or appeal same. He was not offered any alternative work nor was a reduction in hours or lay off discussed. It is submitted on the complainant's behalf that the foregoing when added to the failure of the respondent (i) to have a period of consultation with him before the redundancy as required by common law, (ii) to give the complainant an opportunity to be accompanied or represented at the discussion with Mr. C on or around 19 May, 2009 (when he was informed he was to be made redundant) constitute prima facie evidence that his dismissal was grounded upon race. It is further submitted that there is a greater onus on an employer to explain his/her rights and entitlements to an employee whose first language is not English and it relies on the decision of the Labour Court in Campbell Catering v Rasaq.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent disputes the existence of "like work" between the complainant and comparator and notwithstanding this contention, submits that there are grounds unrelated to the nationality of the complainant and comparator which renders the rates of remuneration paid to them lawful in accordance with section 29(5) of the Employment Equality Acts, 1998-2008 It further rejects the complainant's assertion that it dismissed him in circumstances amounting to discrimination on grounds of race contrary to those Acts and states that due to the serious economic difficulties which it encountered in April/May, 2009 it was forced to terminate the employment of some staff and that the complainant was the last employee recruited at the grade of electrician in the company and his employment was terminated on the basis of "last in, first out" (LIFO).
4.2 The respondent states that the standard rate of pay for an electrician was the union rate, which at the time stood at €18 per hour, although the respondent paid €20 per hour as an incentive to staff to remain in its employment. It adds that the pay determination process (which is in existence for over ten years) involved the four Directors meeting in January of each year and deciding what increases might apply. It states that there was no formal annual or other appraisal process, that staff were free to negotiate their own rates of remuneration with Management and asserts that the complainant was aware of this process. The respondent accepts that there was a difference between the complainant and the comparator at the outset of his employment but rejects that the difference was €2 per hour - stating that the actual difference was €1.50 per hour. It adds that the comparator had sought an increase in his rate of remuneration in 2007 and his request was routed through his Manager (Mr. C) and the increase was approved in light of Mr. A's experience and the difficulty with acquiring new personnel. The respondent further states that the difference between the rates of remuneration of the complainant and comparator ceased on 1 October, 2008 when both had their hourly rate of pay reduced to €18 per hour.
4.3 The respondent states that Mr A is a Chargehand and that the additional remuneration he received was to reflect the additional responsibility of this position. It adds that the knowledge and experience the comparator has, especially as regards the company's operations, is of a significant benefit to it on a daily basis. The respondent further states that there are two other employees who were engaged at Panel Builders at the same time as the respondent (Mr. Y and Mr. Z) - the former is Irish and the latter Lithuanian - both of whom are paid the same hourly rate of remuneration as the complainant. It argues that these employees are valid comparators for the purposes of the complainant's claim and submits that the aforementioned facts support the assertion that there are grounds unconnected with the nationality of the complainant for the difference in the rates of remuneration. The respondent seeks to rely on the judgement of the Supreme Court in NUI Cork v Ahern and Others in this regard.
4.4 The respondent accepts that the complainant was not given a written contract of employment and that there was no Grievance Procedure in operation at the time. It states that in early 2009 it found itself in a situation of economic difficulty arising from a significant fall in business activity and the Directors were forced to consider the staffing levels within the company. The respondent adds that it was forced to make a number of employees redundant during this period, including the complainant. It states that these employees were from both operational and administrative staff and they were selected for redundancy on the basis of LIFO within the various areas or work divisions in the company as the need arose. The respondent accepts that this process was not communicated to the employees (in writing or otherwise) but it assumed that they were aware this was the process it used.
4.5 The respondent states that due to the significant downturn in business it decided to make the complainant's position redundant at the end of May, 2009 and accepts the complainant's version of the conversation with Mr. C in mid-May, 2009 on the matter. It adds that the complainant was selected because he was the most recently recruited electrician in the panel building area (Controls Section) and the redundant post was in that area. It accepts that Mr. Z was made redundant before the complainant and that he had more service than him. It adds however, that whilst Mr. Z performed similar duties to the complainant, he worked in a different operational area (Distribution Section) and the need to cut the post on the previous occasion was in that section. The respondent also accepts that Mr. S is a qualified electrician and that he was recruited after the complainant. It states however, that Mr. S was recruited to work on generating new business and whilst he did, on occasion, work in the Distribution Section, he was predominantly in the office or "on the road". The respondent rejects the complainant's assertion that the treatment of these two employees supports his claim that he was dismissed on grounds of race. It argues that LIFO is a well established and fair method of selection for redundancy and relies on the decision of the EAT in Devlin & Leahy v McInerney Construction Ltd. in this regard. It submits that in the circumstances it found itself in 2009 - having to reduce it staff numbers - it was reasonable for it to utilise the LIFO process and rejects the assertion that the termination of the complainant's employment constitutes a discriminatory dismissal on grounds of race contrary to the Acts.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are (i) whether or not the complainant performs "like work" with the named comparator in terms of section 7(1) of the Employment Equality Acts, 1998-2008, (ii) if so, are there grounds other than race which render the rates of remuneration paid to the complainant and comparator lawful in accordance with section 29(5) of the Employment Equality Acts, 1998-2008 and (iii) whether or not the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts. 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 information furnished by the complainants and comparators in the course of the work inspections and the evidence adduced at the Hearing.
5.2 Section 7(1) of the Acts defines "like work" as follows -
"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 is of small importance in relation to the work as a whole or occur which 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."
Appendix A sets out my job descriptions in respect of the complainant's and comparator's posts on foot of the work inspections. Appendices B and C set out my analyses of the comparator's and complainant's jobs respectively across the five factors provided in section 7(1)(c) of the Acts. Taking into account the overall demands of the respective posts across the five factors prescribed at section 7(1)(c) of the Employment Equality Acts, 1998-2008 (as set out at Appendix D), I find that the complainant and comparator were engaged on "like work" in terms of section 7(1)(c) of the Acts. In the interests of completeness I also find (based on the analysis set out at Appendix D) that the complainant and comparator were engaged on "like work" in terms of section 7(1)(b) of the Employment Equality Acts, 1998-2008 as the differences in the work performed by each is of such small importance in relation to the work as a whole and/or the differences in the tasks occur with such irregularity as not to be significant to the work as a whole. However, I am not satisfied that the complainant and comparator were engaged on "like work" in terms of section 7(1)(a) of the Acts as their roles were not interchangeable with each other - each performed tasks that the other did not.
5.3 The existence of "like work" between the complainant and the comparator does not, of itself, confer an entitlement of equal pay. Section 29(5) of the Acts provides that an employer may pay two employees performing like work different rates of remuneration if it can show that the difference is based on factors unconnected with the impugned ground - in this instance race. The respondent argues that there are grounds unconnected with the nationalities of the complainant and comparator which render the rates of remuneration paid to them lawful in terms of the aforementioned provision. It states that the rates of remuneration were examined and determined by the Directors at the start of each year and that the pay determination process it operated left it open to all employees at any stage to seek, to negotiate an increase in salary and the complainant did not pursue this avenue. In addition, it states that the extra remuneration paid to the comparator reflected the additional responsibility he had as a Chargehand. Finally, it submits that there are two other employees (Mr. Y and Mr. Z) who are valid comparators and they were paid the same rate of remuneration as the complainant. It submits that they must be examined in any analysis of equal pay and relies on the judgement of the Supreme Court in NUI Cork v Ahern and Others in this regard. The complainant rejects the assertions that (i) he could negotiate his rate of pay with the respondent and submitted that the system it operated lacked transparency - a situation that was held by the ECJ in Enderby v Frenchay Health & the Secretary of State for Health to constitute prima facie evidence of discrimination and (ii) the comparator was a Chargehand.
5.4 In the course of the Hearing the respondent confirmed that (i) there was no formal annual appraisal system in operation, (ii) there was no documentation in existence which advised staff that they could seek to negotiate an increase in remuneration at any time and (iii) there were no notes or other records of the pay determination discussions of the Directors in January of each (or any) year. It is therefore quite likely that the complainant was unaware of the respondent's pay determination process and I accept his evidence that even if the process existed - and I make no finding on that point - this was indeed the case. In addition, the evidence of Mr. C as to how the comparator's rate of remuneration increased to €21.50 in July, 2007 (I am satisfied that the complainant is incorrect in his assertion that the comparator was ever paid €2 per hour more than him) is entirely inconsistent with the evidence adduced by the respondent on this issue in its written submission to the Tribunal. In Minister for Transport, Energy and Communications v Campbell and Others Keane J held that the Labour Court (and therefore this Tribunal) - in examining the question of whether there are grounds unconnected with the impugned ground which would render the difference in the rates of remuneration paid to the parties lawful - "is entitled and indeed bound to approach such an issue on the basis that an employer must prove that the differentiation is genuinely attributable to grounds other than sex.". Whilst the High Court was looking at section 2(3) of the Anti-discrimination (Pay) Act, 1974 in this case, that provision is identical to section 29(5) of the Employment Equality Acts, 1998-2008 and the rationale of the judgement applies to the instant case. Having carefully considered the evidence adduced by the respondent as set out above I am not satisfied that it has established facts that would assist it in discharging the burden of proof required to enable it rely on section 29(5) of the Acts.
5.5 The respondent also submits that the difference in the rates of remuneration arose because the comparator was a Chargehand. The comparator stated that this was not the case in the course of my investigation and on balance I prefer his evidence on this point. Finally, the respondent states that the complainant performs like work with two other employees (Mr. Y and Mr. Z), that they are valid comparators for the purposes of the complainant's claim and relies of the judgement of the Supreme Court NUI Cork v Ahern and Others in this regard. It is well established that a complainant is entitled to select his/her comparator for the purposes of a claim for equal pay but the Ahern Supreme Court judgement held that the context in which comparators are employed must be taken into account in any assessment of the relative value of jobs to an employer. The respondent submits that the Tribunal must have regard to the work performed by Mr. Y and Mr. Z and the circumstances connected to the rate of remuneration paid to those employees, in reaching any decision on the question of whether the rate of remuneration paid to the complainant and named comparator (Mr. A) are lawful in terms of section 29(5) of the Acts. In the Ahern case the Supreme Court held that the Labour Court erred in restricting its assessment of "like work" to the comparators named by the complainants and should have looked at those other employees in the same grade as the named comparators, but had not been named as such by the complainants, in reaching its conclusions. It went on to find, in the circumstances of that case, that there were grounds other than gender for paying the comparators a higher rate of remuneration than the complainants. On the respondent's own evidence in the instant case, the comparator was a Chargehand - neither Mr. Y nor Mr. Z were Chargehands - they were in the same grade as the complainant. The respondent did not argue that there were other employees in the same grade as the Mr. A who were valid comparators in accordance with the Ahern judgement. The respondent therefore cannot avail of the Supreme Court judgment in the instant case.
5.6 In the course of the Hearing the complainant accepted that both Mr. Y and Mr. Z did the same type of work as him. These employees are Irish and Lithuanian respectively and documentary evidence was adduced by the respondent to show that both received the same hourly rate of remuneration as the complainant from end June, 2008 to September, 2008 i.e. €20 per hour - indeed Mr. Y attended at the Hearing and confirmed his rate of remuneration during that time. This period is relevant because these two employees, along with both the complainant and the comparator, all had their hourly rate of remuneration reduced to €18 per hour with effect from 1 October, 2008 and consequently any claim for equal pay on the complainant's part would cease on that date. It is clear that the respondent valued the work of the complainant and these two comparators to be equal and all three to be of less value than the work carried out by the comparator. In C&D Food Ltd. v Cunnion & Others Barron J held that "ultimately what is like work is a matter not for an employer but for an Equality Officer or the Labour Court on appeal" to decide. He added the fact that there were men and women in both grades (the claim was on the gender ground under the Anti-Discrimination (Pay) Act, 1974) whilst a factor to be considered, did not of itself signify that the practice was lawful. Section 29(5) of the Acts provides the respondent with an absolute defence and permits it to depart from the principle of equal pay enshrined in the European Treaties. As stated above it must therefore satisfy me that the difference in the rates of remuneration paid to the complainant and the comparator is genuinely attributable to grounds unconnected with their nationalities. I have carefully considered the evidence adduced by the parties on this point and I cannot accept that respondent's opinion on the relative value of the work of the complainant, the comparator, Mr. Y and Mr. Z is anything other than a subjective one. In light of my comments in this and the preceding two paragraphs, I find that the respondent has not adduced sufficient evidence to avail of the defence provided at section 29(5) of the Acts.
5.7 The complainant submits that he was dismissed with effect from 27 May, 2009 in circumstances amounting to discrimination on grounds of race contrary to the Acts. The respondent rejects this assertion stating that due to a significant downturn in business it decided to make the complainant's position redundant at the end of May, 2009. It adds that the complainant was selected because he was the most recently recruited electrician in the panel building area (Controls Section) and the redundant post was in that area. It further states that it adopted the LIFO process of selecting someone for redundancy and that this process is a well established method of selection for terminating employment and cannot be considered to constitute discrimination of the complainant. It accepts that Mr. Z had more service than the complainant and was made redundant before him but adds that whilst Mr. Z performed similar duties to the complainant he worked in a different operational area (Distribution Section) and the need to cut the post at that time was in that section.
5.8 Section 85A of the Employment Equality Acts 1998-2008 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting the he suffered discriminatory treatment. It is only where such facts have been established and are regarded by an Equality Officer as being of sufficient significance to raise a presumption of discrimination that the onus shifts to the respondent to prove that the principle of equal treatment was not infringed. If the complainant fails to establish a prima facie case of discrimination his complaint cannot succeed.
5.9 The respondent provided the Equality Officer with financial accounts showing the operations of the company for the years 2007-2010 inclusive. This material shows that the respondent's turnover fell by €1.1m over the period 2007-2009 and that it fell by a further €250,000 in 2010. It also shows that the respondent went from a position of profit in 2007 to a position of accumulated losses of just over €100,000 by end 2009 and this despite reducing its staff numbers by nine during 2009. Consequently, it is clear that the respondent was experiencing financial difficulties during this period. The respondent states that it operated a LIFO policy having regard to the areas where the need to reduce staff arose and from the documentary evidence adduced by the respondent in this regard I am satisfied, on balance, this was the case. Mr. Z was therefore made redundant before the complainant as the need for an electrician in the Distribution Area (where the former worked) diminished and work was still available in the Control Area. The complainant was not therefore subjected to less favourable treatment on that occasion as Mr. Z had more service than him. Whilst the second employee (Mr. S) was recruited after the complainant and did, on occasion, perform duties in the Control Area, the complainant confirmed at the Hearing that he (Mr. S) spent a significant amount of his time in the Office. I accept the respondent's assertion that his role was primarily to generate new business for the company and he was not therefore in a comparable situation to the complainant. It is submitted on behalf of the complainant that the approach adopted by the respondent did not conform to fair procedures and that this constitutes less favourable treatment of him contrary to the Acts. The issue at hand in the instant case is not one of unfair dismissal rather it is one of discriminatory dismissal and the complainant has failed to show that any alleged failure to comply with fair procedures by the respondent constitutes discrimination of him on the ground cited. The complainant makes reference to the Labour Court decision Campbell Catering v Rasaq and in particular the need for an employer to make extra efforts to fully explain to an employee whose first language is not English any rights/entitlements s/he might have. I am satisfied, from my observations of the complainant during the course of my investigation, that his level of English is very good. In light of the foregoing, I find, on balance, that the complainant has failed to establish a prima facie case of discriminatory dismissal on grounds of race contrary to the Acts and this element of his complaint cannot therefore succeed.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find -
(i) that the complainant and the comparator do not perform "like work" in terms of section 7(1)(a) of the Employment Equality Acts, 1998-2008.
(ii) that the complainant and the comparator perform "like work" in terms of section 7(1)(b) and 7(1)(c) of the Employment Equality Acts, 1998-2008.
(iii) that the rates of remuneration paid to the complainant and the comparator during the period 1 July, 2008 to 30 September, 2008 are not lawful in terms of section 29(5) of the Employment Equality Acts, 1998-2008 and the complainant is therefore entitled to the same rate of remuneration as paid to the comparator by the respondent for this period.
(iv) that the complainant has failed to establish a prima facie case he was dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts.
6.2 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2008 I order that the respondent pay the complainant appropriate arrears of remuneration i.e. the difference of €1.50 per hour for the hours worked during the period commencing 1 July, 2008 and finishing 30 September, 2008, with relevant adjustments for any hours of overtime. As this represents earnings on the part of the complainant it is subject to the PAYE/PRSI Code.
_______________________________________
Vivian Jackson
Equality Officer
19 April, 2011
Appendix A
Equality Officer's Job Descriptions
in respect of the Complainant and Comparator
on foot of Work Inspections
Job Holder: Gyorgy Palasti
Job Title: Electrician- Panel Builder
Reports to: Production Manager
No. of Staff: None specifically but is responsible for the quality of the output of a number of apprentices on a daily basis when they assist him.
Rate of Pay €20 per hour reduced to €18 per hour in October, 2008. Hours in excess of normal attendance attract overtime at agreed rates.
Hours of Work: 7:30am - 4:15pm or 8:30am - 5:15pm Monday - Friday
Assembly of Control Panels
The complainant is a qualified electrician and the most frequent element of his work entails the construction and assembly of control panels for electrical circuits controlling heating, ventilation or air conditioning. His work is assigned to him, as necessary, by Mr. C (Production Manager). The complainant works from diagrams/plans furnished to him by Mr. C which contain the dimensions of the cabinet to house the panel and the front layout of the scheme. On receipt of these diagrams the complainant must (i) get the appropriate cabinet from stock and (ii) make up a list of the components from the drawings. On some occasions the full details of the components are provided but more often than not the complainant must work out the correct component using details from the drawings such as the electrical current involved. If the complainant thinks that there is an error on the drawings he will assess the matter himself and if he is sure he will amend them and include the correct component. If he is not sure he will discuss the matter with Mr. C and seek clearance/clarification. He gets all of these items from Stores and takes them to his workbench.
The complainant firstly drills and fixes the necessary rails/trunking to accommodate the components into the cabinet using the drawings as guidance. He will then insert the appropriate "breaker" and insert the remainder of the components by clipping them to trunking. The complainant then wires the various components using the correct wire/cable - there are standard colour codes for the various wires. If there are any special wiring needs he will be instructed as to them from Mr. C - although he knows the cabling requirements in over 95% of cases due to experience or from the drawings. The complainant then drafts the labels (in pencil) for each of the relevant components on the plastic strip to enable the apprentice cut and engrave the labels. The complainant will then assess what the requirements for lights/switches on the door of the panel are and will instruct the apprentice accordingly - normally by drawing a sketch of the door - so that the apprentice can prepare it. The complainant ensures that the door is correct once the apprentice is finished the work and makes any necessary adjustments that arise.
The complainant puts the labels on the relevant components on the "plate" (i.e. the grid of rails/trunking and components) and physically lifts the plate into the cabinet (with assistance if necessary). He then secures the plate to the inside of the cabinet and fixes the door onto the cabinet body. The complainant pulls the wiring through the trunking and connects it to the appropriate switch on the door. He connects each of the switches in turn in the same fashion using the diagram/plan for reference if necessary. Once all of the wiring is finished the complainant tidies up the door by trimming excess wire and systematically tightens all of the components/connections in the panel. He then makes a final check to ensure that the make-up of the panel conforms to the drawing/plan and make any necessary adjustment.
The complainant then tests the panel by connecting it to a power supply and checking each connection by hand and ensuring it operates. In the event that the connection does not work properly the complainant re-checks the wiring etc. until the problem is located and rectified. Once the complainant is happy with the panel it is cleaned and made ready for to be transported to the customer. The complainant tests between 70%-80% of his own work. The remainder of his work would be tested by the comparator or Mr. C and he would also be responsible for testing colleagues' work.
Logstrup System
The complainant assists in the assembly of large industrial type panels - called Logstrup System - about once/twice a month. The system is similar to the control panel process but on a much larger and heavier scale. The complainant checks that all of the necessary components are delivered and if any are missing he reports it to the storeman. The complainant assists other colleagues to assemble the plinth and frame from the diagrams provided. This is physically demanding work as these components can be 10kg-20kg in weight. Instead of small bore wiring the components are connected with copper bars which must be bent to fit the frame and heavy duty cable. Each section of the frame has to be assembled individually and the frame can run to 12m length. The complainant is only involved in the assembly of the frame - he is not responsible for testing same. If there was any problem on this work he would discuss the matter with one of the more experienced employees.
Installations on Site
The complainant was involved in the installation of panels and frames on site. He performed this type of work about fifteen times during the period covered by his claim in locations around the country which he had to drive to, although the work never involved him staying away overnight. The work was carried out in new buildings and he was mostly alone - although there would be other workers on site. At least five of them involved working on the roof of the building. Four of them involved physically securing three sections of a Logstrup system and connecting up the interconnecting cables in accordance with the diagram/plan provided. Others involved the installation of smaller panels. The tasks would be assigned to him by Mr. C.
Modification of Panels/Boards on Site.
The complainant is involved with the modification and/or repair of existing panels and boards on site. During the period covered by the complainant performed this type of work on at least ten occasions. The work would be assigned to him by the Production Manager (Mr. C) and involved him travelling to several locations around the country but it never involved him staying overnight. The complainant would have details of a contact person on site to ensure that the live current was disconnected before he commenced work. The complainant normally performed these duties alone - although the buildings were normally occupied. The complainant would carry out the modifications as per the diagram or instructions given which may involve him removing/replacing various components from the panel and the associated rewiring. Once the work was complete the complainant was responsible for testing the modified panel/board as set out above. If there was a problem on site the complainant would contact Mr. C and seek his advice/assistance.
Flash-testing
The complainant was asked by Mr. C to flash-test a Panel on site at a location in Newbridge and he did so three times over a three week period. The complainant prepared the board by making the necessary adjustments to the board and disconnecting the neutral and switching off the control. He switches on the testing unit which generates 2.5 kilovolt of current. He put on special gloves and places the paddles of the testing unit against the appropriate components of the panel. The flash-testing unit provides a reading on a gauge and the complainant checks that against a standard reading to ensure the board is in working order. The complainant had been previously been instructed in how to conduct the test and knew the sequences he had to follow
Job Holder: Mr. A
Job Title: Electrician - Panel Builder
Reports to: Production Manager
No. of Staff: None specifically but is responsible for the quality of the output of a number of apprentices on a daily basis when they assist him.
Rate of Pay €21.50 per hour reduced to €18 per hour in October, 2008. Hours in excess of normal attendance attract overtime at agreed rates.
Hours of Work: 7:30am - 4:15pm Monday - Friday
Assembly of Control Panels
The comparator is a qualified electrician and the most frequent element of his work entails the construction and assembly of control panels for electrical circuits controlling heating, ventilation or air conditioning. His work is assigned to him, as necessary, by Mr. C (Production Manager). The comparator works from diagrams/plans furnished to him by Mr. C which contain the dimensions of the cabinet to house the panel and the front layout of the scheme. On receipt of these diagrams the comparator must (i) get the appropriate cabinet from stock and (ii) make up a list of the components from the drawings. On some occasions the full details of the components are provided but other times the comparator would work out the correct component using details from the drawings such as the electrical current involved. If the complainant thinks that there is an error on the drawings he will assess the matter himself will discuss the matter with Mr. C and seek clearance/clarification before proceeding. He gets all of these items from Stores and takes them to his workbench.
The comparator first drills and fixes the necessary rails/trunking to accommodate the components into the cabinet using the drawings as guidance. He will then insert the appropriate "breaker" and insert the remainder of the components by clipping them to trunking. The comparator then wires the various components using the correct wire/cable - there are standard colour codes for the various wires. He then drafts the labels (in pencil) for each of the relevant components on the plastic strip to enable the apprentice cut and engrave the labels. The comparator will then assess what the requirements for lights/switches on the door of the panel are and will instruct the apprentice accordingly - normally by drawing a sketch of the door - so that the apprentice can prepare it. The comparator ensures the door is correct once the apprentice is finished the work and makes any necessary adjustments that arise.
The comparator puts the labels on the relevant components on the "plate" (i.e. the grid of rails/trunking and components) and physically lifts the plate into the cabinet (with assistance if necessary). He then secures the plate to the inside of the cabinet and fixes the door onto the cabinet body. The complainant pulls the wiring through the trunking and connects it to the appropriate switch on the door. He connects each of the switches in turn in the same fashion using the diagram/plan for reference if necessary. Once all of the wiring is finished the comparator tidies up the door by trimming excess wire and systematically tightens all of the components/connections in the panel. He then makes a final check to ensure that the make-up of the panel conforms to the drawing/plan and make any necessary adjustment.
The comparator then tests the panel by connecting it to a power supply and checking each connection by hand and ensuring it operates. In the event that the connection does not work properly the complainant re-checks the wiring etc. until the problem is located and rectified. Once the complainant is happy with the panel it is cleaned and made ready for to be transported to the customer. The complainant tests only around 10% of the panels he assembles - the remainder of his work is tested by Mr. C.
Logstrup System
The comparator assists in the assembly of large industrial type panels - called Logstrup System - about once/twice a month. The system is similar to the control panel process but on a much larger and heavier scale. The comparator does not perform any tasks associated with the construction of the frame - he only performs tasks associated with the cabling of the panel. Instead of small bore wiring the components are connected with copper bars which must be bent to fit the frame and heavy duty cable.
Installations on Site
The comparator was involved in the installation of panels and frames on site. He performed this type of work about as necessary - although he cannot be specific about the number of times he performed this work he states that he visited sites (for both installation and modification/repair) over 100 times during his five year period of employment with the respondent. The work involved travelling to locations around the country which he had to drive to, only one of which involved him staying away overnight. The work was carried out in occupied buildings - although he worked on vacant building on a couple of occasions and he generally accompanied by an apprentice. The tasks would be assigned to him by Mr. C and he was generally given a diagram/drawing to follow.
Modification of Panels/Boards on Site.
The comparator is involved with the modification and/or repair of existing panels and boards on site. He performed this type of work about as necessary - although he cannot be specific about the number of times he performed this work he states that he visited sites (for both installation and modification/repair) over 100 times during his five year period of employment with the respondent. The work would be assigned to him by the Production Manager (Mr. C) and involved him travelling to several locations around the country but it never involved him staying overnight. The comparator would have details of a contact person on site to ensure that the live current was disconnected before he commenced work. The comparator normally performed these duties alone - although the buildings were normally occupied. The comparator would carry out the modifications as per the diagram or instructions given which may involve him removing/replacing various components from the panel and the associated rewiring. Once the work was complete the comparator was responsible for testing the modified panel/board as set out above. If there was a problem on site the comparator would contact Mr. C and seek his advice/assistance.
General
The comparator stands is to some extent for Mr. C when he (Mr. C) is in annual leave. Mr. C gives him the scheduling responsibilities for the period involved and the complainant would monitor the workload to ensure the timeframe is adhered to. He would report any problems to the respondent Senior Management during these periods and the responsibility lay with them to address those matters.
Appendix B
Analysis of Comparator's Post
Skill
The comparator must be able to understand a drawing/diagram/plan which contains significant amounts of technical information in assembling a panel from scratch. He therefore requires high levels of literate and numerate skills to discharge these particular functions. Given the large volume of small wires that are involved in the process the comparator must adopt a highly organised approach to the work. He is assisted as necessary by apprentices and must demonstrate good communication and interpersonal skills in this part of his tasks.
There is significant danger attached to the comparator's work when he is performing tasks off site and he must be cognisant of the various aspects of health and safety requirements, this is particularly relevant when dealing with situation involving live current, in order to ensure his own personal safety and the safety of others working with him.
Responsibility
The comparator does not have direct line responsibility for any staff although he is responsible for the work of an apprentice in respect of any tasks that person performs for him. The comparator has joint responsibility with Mr. C for testing and signing of panels assembled by him in the respondent's premises - on a 10% - 90% basis. He is responsible for testing of panels and boards on site following repair or modification. He states that he must follow the diagrams/drawings and has no discretion to depart from same - any departure must be discussed and approved by the Production Manager.
The comparator denies that he was a Chargehand although he agrees he was asked by Mr. C to monitor the scheduling of orders when Mr. C was on annual leave. The comparator states that this did not include the overall responsibility for the output of the control section - this always rested with Management - and he would alert them if there were any problems. He states that he never spoke with a customer in this respect of this aspect of his work - adding that he only spoke with customers if he was making arrangements for a site visit which required same.
Mental Requirements
The cabling of control panels at assembly/modification/repair stage involves a significantly high level of concentration given the large volume of small wires involved. Accuracy is important as errors can result in significant time loss at testing stage. A similar level of concentration is required in cabling panels under the Logstrup System. The comparator must therefore maintain high levels of concentration whilst performing these tasks.
Physical Requirements
The weight of the components on an individual basis which comprise the control panel is not significant. However, when the plate is fully assembled it can be sometimes reach 20kg in weight. The comparator must lift the plate into the cabinet and secure same, although he may enlist the assistance of a colleague in that regard. He will also enlist that assistance when moving the finished cabinet from his workbench to the area for transportation. The work itself involves long period standing at the workbench, sometimes bending and stretching with the associated physical demands.
Working Conditions
The workshop is a warehouse type building. The area in constantly noisy and given its size can be cold in the winter. There is some natural light although electrical lighting is necessary a lot of the time. When working away from the respondent's premises the comparator worked in a combination of occupied buildings and sites.
Appendix C
Analysis of Complainant's Post
Skill
The complainant must be able to understand a drawing/diagram/plan which contains significant amounts of technical information in assembling a panel from scratch. He therefore requires high levels of literate and numerate skills to discharge these particular functions. Given the large volume of small wires that are involved in the process the complainant must adopt a highly organised approach to the work. He is assisted as necessary by apprentices and must demonstrate good communication and interpersonal skills in this part of his tasks.
There is significant dangers attached to the complainant's work when he is performing tasks off site and he must be cognisant of the various aspects of health and safety requirements, this is particularly relevant when dealing with situations involving live current, in order to ensure his own personal safety.
Responsibility
The complainant does not have direct line responsibility for any staff although he is responsible for the work of an apprentice in respect of any tasks that person performs for him. The complainant has joint responsibility with Mr. C for testing and signing of panels assembled by him in the respondent's premises - on an 80% - 20% basis. He is responsible for testing of panels and boards on site following repair or modification. He states that he generally follows the diagrams/drawings and if he notices an error which he is sure of he will amend the drawing and use the correct component - any other departure must be discussed and approved by the Production Manager.
The complainant performed flash-testing on three occasions over a three week period. Whilst this is involves a considerable degree of responsibility I note that it was concentrated at a single location over a relatively short period of time and it was not a task he performed on any other occasion during his period of employment with the respondent.
Mental Requirements
The cabling of control panels at assembly/modification/repair stage involves a significantly high level of concentration given the large volume of small wires involved. Accuracy is important as errors can result in significant time loss at testing stage. A similar level of concentration is required in cabling panels under the Logstrup System. The comparator must therefore maintain high levels of concentration whilst performing these tasks.
Physical Requirements
The weight of the components on an individual basis which comprise the control panel is not significant. However, when the plate is fully assembled it can be sometimes reach 20kg in weight. The complainant must lift the plate into the cabinet and secure same, although he may enlist the assistance of a colleague in that regard. He will also enlist that assistance when moving the finished cabinet from his workbench to the area for transportation. The work itself involves long period standing at the workbench, sometimes bending and stretching with the associated physical demands.
The complainant performed tasks connected with the assembly of panels under the Logstrup System about twice. The work involved in the construction of the frame is quite physical as some of the components can weigh between 10-20kg and the frame itself can reach 12m in length. However, this element of the work does not occur on a frequent basis.
Working Conditions
The workshop is a warehouse type building. The area in constantly noisy and given its size can be cold in the winter. There is some natural light although electrical lighting is necessary a lot of the time. When working away from the respondent's premises the comparator worked in a combination of occupied buildings and sites.
Appendix D
Comparison of Complainant's and Comparator's Posts
in terms of section 7(1) of the Acts
Skill
Both the complainant and the comparator are required to be numerate and literate in order to perform their duties. In addition, both must possess good organisational skills and display communication and interpersonal skills when assigning tasks to an apprentice.
I find that the skills required of the comparator and complainant to be equal
Responsibility
Neither the complainant nor comparator has staff line management responsibilities, although both are responsibility for the output of any apprentice who assists them. Both have responsibility for their own work although the complainant tests a considerably higher percentage of the panels he assembles than the comparator. Both have their work assigned to them by Mr. C and both clear any problem or issue with him as necessary. Both are responsible for testing and signing off their own work on site.
The complainant performed flash-testing on three occasions over a short period. The comparator had responsibility for monitoring the scheduling of orders when Mr. C was on annual leave. The comparator states that this did not include the overall responsibility for the output of the control section - this always rested with Management - and he would alert them if there were any problems. He states that he never spoke with a customer in this aspect of his work and that it did not happen very often. In addition, he rejected that he was a Chargehand at any time during his employment with the respondent.
I find that the demands made on the comparator and complainant in terms of
responsibility to be equal
Mental Requirements
The comparator and complainant must exercise high levels of concentration when performing the full range of tasks associated with their jobs. This is necessary due to the cost implication of troubleshooting problems at the end of the process and the fact that on occasions they are operating with live current.
I find that the mental efforts required of the comparator and the complainant to be equal.
Physical Requirements
The physical requirements placed on the complainant and comparator when assembling control panels in the respondent's premises are very similar. Whilst the complainant performs duties associated with the assembly of the frame Logstrup System which requires a high level of physical demand it is unclear how often he performs such tasks. It appears to me that the frequency of this task is such that it occurs with such irregularity that it is not significant to the work as a whole.
I find that the demands made on the complainant and the comparator in terms of
physical requirements to be equal
Working Conditions
The complainant and comparator work primarily at the respondent's premises. Their workbenches were side by side. Both worked off site as necessary and these locations were primarily premises that were occupied or had other personnel in attendance. Both worked the same number of hours per week - although their attendance patterns differed - and both received overtime payments on the same basis.
I find that the demands made on the complainant and comparator
in terms of working conditions to be equal.