EDA1111

SUBJECT:
1. Appeal Under Section 83 Of The Employment Equality Acts, 1998 To 2008


BACKGROUND:

2. A Labour Court hearing took place on the 10th March, 2011, in accordance with Section 83 of the Employment Equality Act, 1998 to 2007. The following is the Court's determination:-

DETERMINATION:

This is an appeal by the Johnston Logistics Limited against the decision of an Equality Officer in a complaint of discrimination brought by Mr. Joselito Quiber under the Employment Equality Acts 1998 to 2008 (the Acts). In this Determination the parties are referred to using the designation prescribed by Section 77(4) of the Act. Hence the Johnston Logistics Limited is referred to as the “Respondent” and Mr. Joselito Quiber is referred to as the “Complainant”.

The Complainant claimed that he performed 'like work' in terms of section 7 of the Acts 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.

The Complainant was employed as an articulated lorry driver for the Respondent from 21st May 2001 until 30th March 2005.

The Equality Officer found that the Complainant performed like work with the Comparators and found that there were no objective grounds other than race for the difference in pay in accordance with Section 29(5) of the Act and accordingly found that the Complainant has been discriminated against by the Respondent.

The Equality Officer ordered that the Respondent pay 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 articulated lorry 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 15� 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);The Respondent’s Appeal:

The Respondent did not appeal against the substantive decision that the Complainant had been discriminated against but did appeal against the level of redress awarded by the Equality Officer, on the following grounds: -

(1) The Equality Officer erred in law by disregarding the definition of “remuneration” as set out in the Employment Equality Acts 1998 – 2008.
(2) The Equality Officer made a compensation award not in accordance with Section 82(4) of the Employment Equality Acts 1998 – 2008 and it was grossly disproportionate in the circumstances.Mr. David Ensor on behalf of the Respondent submitted to the Court that the difference in pay between the Complainant and the Comparators was €10,707, less an award of arrears of pay which was paid to the Complainant on foot of Labour Court Decision MWD062, (€6619) under the National Minimum Wage Act 2000.

Mr. Ensor maintained that the definition of “remuneration” as set out in Section 2 of the Acts provides for elements other than pay to be taken into account and allows for in-kind benefits as were provided to the Complainant.

Mr. Ensor submitted that the Complainant was paid in-kind remuneration, not enjoyed by his Comparators, which should be taken into account in any assessment of arrears due to him. He told the Court that the Complainant has free use of the Company’s articulated lorry to travel to and from work. He calculated this benefit as a value of €9200.

On the second ground of his appeal Mr. Ensor held that the Equality Officer had erred in law in awarding the sum of €25,000 when the maximum award which may be granted under section 82(4) in these circumstances was €12,697. In any event he submitted that the latter amount would be totally disproportionate in this case as there was no evidence of any distress suffered by the Complainant and when consideration is given to the level of arrears due, the award is totally disproportionate.

The Complainant’s Response to the Appeal

Mr. Oliver McDonagh, SIPTU, representative for the Complainant held that the Complainant should be adequately compensated for the discrimination suffered.

Mr. McDonagh submitted that the arrears due to the Complainant exceeded that calculated by the Respondent by a significant amount. He stated that the Complainant had earned €272.36 per week whereas the Comparator earned €474.30 per week, giving a difference of €202.04 per week. Therefore, he calculated the arrears due over the period of the Complainant’s employment at a sum of €31,518.24, less the Labour Court award of €6619 under the National Minimum Wage Act 2000, thereby yielding an arrears amount of €24,899.24 due.

Mr. McDonagh submitted that the Respondent’s argument regarding the provision of transport to and from work does not stand up. The Complainant was provided with accommodation in Newbridge and the Company’s depot was based in Rathcoole. The Complainant brought the articulated lorry home and reported for work each day at the depot. Mr. McDonagh submitted that the Respondent’s decision to accommodate the Complainant quite a long distance away from the depot was made on the basis that the house was personally owned by a Director of the Company and in any event it suited the Respondent that the Complainant had the articulated lorry in order to be at the depot at the unsocial hours he was required to work.

Mr. McDonagh submitted that the element of pay included in the Complainant’s gross pay of €71.85 to provide for accommodation costs should not be taken into account in determining his remuneration, as the accommodation provided was not worth this amount.

Mr. McDonagh told the Court that the award of compensation ordered by the Equality Officer was appropriate in terms of the distress the Complainant suffered due to the discrimination that occurred and as a sanction against the Respondent was proportionate, effective and dissuasive.

The Court’s FindingsThe only issue which the Court must decide is whether the redress awarded by the Equality Officer was appropriate in the circumstances. In making an order for the payment of arrears due to the Complainant the Equality Officer did not specify the amount.

The Court notes that the Respondent confirmed that as a result of the complaint under the Act, all employees are now paid the same rates of pay irrespective of their race.

The jurisdiction of the Equality Tribunal, and of this Court on appeal, to award redress is grounded on Section 82 of the Act. Section 82(1)(c) of the Act provides that the Court may make an order for compensation for the effects of acts of discrimination. Where this form of redress is decided upon the Court is required to follow the decision of the ECJ inVon Colson andKamann[1984] ECR 1891. Here the ECJ held that the sanction for breaches of Community rights must be effective, proportionate and dissuasive. This means that the compensation awarded must fully compensate the complainant for the economic loss which he or she sustained as a result of the breach of his or her Community rights. It must also contain an element that reflects the gravity of the infringement and acts as a disincentive against future infractions.

In examining the level of arrears payment due to the Complainant the Court does not accept that the provision of the Company’s articulated lorry to travel to and from his accommodation can be considered as a benefit-in-kind in the circumstances described. The Court was told that when the Complainant arrived home to his accomodation another resident, also an employee of the Respondent, used the articulated lorry to commence his duty.

The Court has assessed the level of arrears due and is satisfied that the figures given by the Respondent are correct. The figures supplied by the Union fail to take account of the level of subsistence paid to the Complainant and yet include this payment when quoting the Comparator’s rate of pay. Accordingly, the Court finds that the level of arrears of pay which are due is €4088.

The Court is of the view that the award of €25,000 ordered by the Equality Officer is excessive in the circumstances and is satisfied that the award of €5000 is appropriate and adequately meets the criteria enunciated by the ECJ inVon Colson.

Determination

The Court awards the sum of €4088 arrears of pay in accordance with section 82(1)(a) of the Acts plus the sum of €5000 compensation, no part of the latter award is in respect of pecuniary loss.

The appeal herein is allowed and the decision of the Equality Tribunal is varied accordingly.







Signed on behalf of the Labour Court



Caroline Jenkinson
14th April, 2011______________________
DNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.