EQUALITY OFFICER'S DECISION NO: DEC-E/2011/226
PARTIES
KEALY
(REPRESENTED BY ARTHUR COX - SOLICITORS)
-V-
BROTHERS OF CHARITY SERVICES CLARE LTD.
(REPRESENTED BY IBEC)
File No: EE/2006/070
Date of issue: 5 December, 2011
Headnotes: Employment Equality Acts 1998 & 2004 - sections 6, 7 & 19 - gender - equal pay - like work
1. DISPUTE
This dispute involves a claim by Ms. Mary Kealy that she performs "like work", in terms of section 7 of the Employment Equality Acts, 1998 and 2004, with two named male comparators and that she is therefore entitled to the same rate of remuneration paid by the respondent to those comparators in accordance with section 19(1) of the Acts. The respondent rejects the complainant's assertion that she performs "like work" with the named comparators.
2. BACKGROUND
2.1 The complainant was appointed to the position of Regional Director of Services for Clare by the Congregation of the Brothers of Charity in October, 1999. On 8 March, 2006 the complainant and another female colleague who was Regional Director of Services for Roscommon referred complaints to the Equality Tribunal in which they contended that they performed "like work" in terms of section 7 of the Employment Equality Acts, 1998 and 2004 with two named male comparators and they were therefore entitled to the same rate of remuneration as paid by the respondent to those named comparators in accordance with section 19 of the Acts. The complaints were assigned 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. At the outset of my investigation the respondent submitted that there were grounds other than gender which rendered the rates of remuneration paid to the complainants and the comparators lawful in accordance with section 19(5) of the Acts. I decided to investigate this matter as a preliminary issue in accordance with section 79(3) of the Acts and issued my Decisions (DEC-E2009-45 & 46) on 10 June, 2009 in which I found against the respondent.
2.2 The respondent appealed these Decisions to the Labour Court and in that Court's Determination of 17 September, 2010 (EDA 1015) it remitted the complaints back to this Tribunal for investigation and decision on the question of whether or not "like work" existed between the complainants and the comparators. A Preliminary Hearing on the complaints took place on 25 November, 2010. At this Preliminary Hearing Counsel for the complainants stated that the complainants were arguing the existence of "like work" between them and the comparators in terms of section 7(1)(c) of the Employment Equality Acts, 1998 and 2004. The respondent's representative submitted that the complainants were not permitted to extend their claims to encompass this aspect of "like work". By letter dated 11 February, 2011 the complainant's legal representative informed me that the second named complainant to the original proceedings on this matter withdrew her complaint in its entirety from the Tribunal, leaving Ms. Kealy to proceed with her complaint. Work Inspections with the complainant and both comparators took place at the locations where they worked on three consecutive days during the week commencing 21 February, 2011. A Final Hearing on the complaint took place on 30 March, 2011.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that at all relevant times to this complaint she was employed by the respondent as Director of Services (the title is now Chief Executive Officer) for the Clare Region. She adds that Comparator A was the Director of Services for the Galway Region and Comparator B was Director of Services for the Limerick Region. She contends that she performs "like work" with either or both of these comparators in terms of section 7 of the Employment Equality Acts, 1998 and 2004 and is therefore entitled to the same rate of remuneration as paid by the respondent to those comparators in terms of section 19 of the Acts. The complainant accepts that at the first Preliminary Hearing of the complaint on 30 November, 2007 her legal representative stated in response to a question from the Equality Officer that the complainant was asserting "like work" with the named comparators under section 7(1)(a) and 7(1)(b) of the Acts. She adds that following the Equality Officer's Decision of 10 June, 2009 the Equality Officer requested, by letter dated 2 July, 2009, that each party should file (i) Job Descriptions in respect of the complainant and each of the comparators and (ii) a submission setting out the relevant arguments in respect of the existence (or not) of "like work". Counsel for the complainant states that the documentation filed in response to this request clearly indicates that the complainant sought to advance her claim on each of the three paragraphs of section 7(1) of the Acts and this submission was copied to the respondent in advance of the Preliminary Hearing of 25 November, 2010. It is submitted therefore that there is no prejudice to the respondent in the circumstances. It is further submitted that the respondent, in the course of its submissions on "like work" to the Tribunal, dealt with all three paragraphs of section 7(1) of the Acts and it is therefore prevented from raising an objection to the inclusion of the claim under section 7(1)(c) at this juncture. Moreover, its actions result, in effect, to acquiescence on the part of the respondent to the inclusion of all three components of "like work" in the claim.
3.2 It is submitted on behalf of the complainant that she is not making a new complaint by seeking to have the question of "like work" under all three paragraphs of section 7(1) of the Acts. It is argued that the general nature of the complaint has not changed - it remains one of equal pay - and the facts at issue remain the same. It is further submitted that what the complainant is seeking is similar to a Plaintiff in the High Court seeking to amend pleadings. In this regard the complainant seeks to rely on the judgement of McGovern J in County Louth VEC v Equality Tribunal and Brannigan . Finally on this point, it is submitted that a refusal to assess the claim under all three paragraphs of section 7(1) of the Acts would be contrary to the spirit of the legislation and would be a failure of one of the most fundamental requirements of justice - a fair hearing. In this regard the complainant seeks to rely on the Supreme Court judgement in Halal Meat Packers (Ballyhaunis) Ltd. v EAT .
4. SUMMARY OF RESPONDENT'S CASE
4.1 It is accepted by the respondent that at all times relevant to this claim the complainant was paid a lower rate of remuneration than each of the comparators. It further accepts that this differential ranged between circa €23,300 and €27,300 per annum in respect of Comparator A and circa €6,200 and €21,200 per annum in respect of Comparator B. The respondent rejects the assertion that the complainant performs "like work" with the comparators in terms of section 7 of the Employment Equality Acts, 1998 and 2004. It further argues that the only complaint before the Tribunal is a claim of equal pay on the basis of the existence of "like work" between the complainant and the comparators under section 7(1)(a) and 7(1)(b) of the Employment Equality Acts, 1998 and 2004.
4.2 The respondent states that at the original Preliminary Hearing on 30 November, 2007 the complainant's legal representative expressed the nature of the complaint as being one of equal pay under section 7(1)(a) and 7(1)(b) of the Acts. It submits that as a consequence of this the legal representative expressly excluded any assertion of "like work" in terms of section 7(1)(c) of the Acts from the scope of the complaint. The respondent adds that following issue of the Equality Officer's Decision of 10 June, 2009 it received a letter from the Equality Officer dated 2 July, 2009 requesting (i) Job Descriptions in respect of the complainant and each of the comparators and (ii) a submission setting out the relevant arguments in respect of the existence (or not) of "like work". The respondent adds that it found itself in an unusual position on receipt of this request as it had expected to receive an initial submission from the complainant on the matter and respond to same in due course. It adds that in the interests of advancing the complaint without delay it did not object to proceeding in this manner and complied with the Equality Officer's request.
4.3 The respondent accepts that its submissions included comments on the issue of "like work" in terms of section 7(1)(c) of the Acts and states that to do otherwise would have created a scenario where the complaint, which had been on-going for over three years at that time, would possibly have been further delayed. It adds therefore that it was reasonable for it to address the matter in its submissions and rejects the assertion that its actions in this regard amount to acquiescence on its part as regards the ambit of the complaint or prevent it from objecting to the inclusion of as assessment of "like work" in terms of section 7(1)(c) of the Acts as part of the Equality Officer's investigation. The respondent further submits that the circumstances in the instant case are fundamentally different to those at issue in County Louth VEC v Equality Tribunal and Brannigan and consequently that authority does not avail the complainant. It adds that in that case the issue concerned was whether or not the complainant could advance further factual matters at the Hearing over what had been averted to in the original complaint form referred to the Tribunal. The respondent further states in that case both categories of matters related to a single complaint - one of discrimination on grounds of sexual orientation and submits that is not what is at issue in the instant case - arguing that the nature of the issue amounts to a new complaint and the Tribunal has no jurisdiction in the matter.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for consideration by me are (i) whether or not the complainant's claim of "like work" in terms of section 7(1)(c) of the Employment Equality Acts, 1998 and 2004 is validly before the Tribunal for investigation and (ii) whether or not the complainant performs "like work" in terms of all, or any, of the paragraphs of section 7(1) of the Employment Equality Acts, 1998 and 2004 which are validly before the Tribunal for investigation with either or both of the named comparators. In reaching my Decision I have taken into consideration all of the submissions and responses, oral and written, made to me by the parties in the course of my investigation and Work Inspections as well as the evidence given by witnesses at the Hearing.
5.2 The first issue I must examine is whether or not the complainant's claim of "like work" in terms of section 7(1)(c) of the Acts is properly before the Tribunal for investigation. It is common case that (i) the complainant's original complaint form (received on 8 March, 2006) stated that "like work" was claimed on all three paragraphs of section 7(1) of the Acts and (ii) in the course of the first Preliminary Hearing on 30 November, 2007 the complainant's legal representative expressed her claim as one under section 7(1)(a) and 7(1)(b) of the Acts. In those circumstances I am satisfied that all parties were under the impression at that particular time the claim was limited to section 7(1)(a) and 7(1)(b) of the Acts. However, as stated by Mc.Govern J in County Louth VEC v Equality Tribunal and Brannigan "if it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim [to this Tribunal].. so long as the general nature of the complaint ...., remains the same.". Having carefully considered the arguments advanced by both parties on this matter I am satisfied that this is what occurred in the instant case. It is clear that the nature of the complaint - equal pay- remained the same as that set out in the original complaint form which was referred to this Tribunal on 8 March, 2003 and of which the respondent was on notice from 27 March, 2006. The complainant merely sought to rectify what had happened at the original Preliminary Hearing. The respondent was on adequate notice of this intention having sight of the Job Specifications and submission filed on behalf of the complainant and copied to the respondent's representative on 3 November, 2010 and receiving confirmation of the extent of the claim at the Preliminary Hearing on 25 November, 2010. It was given an opportunity to address the matter by way of submission between the Preliminary Hearing on that date and the Work Inspections in late February, 2011. It was also able to address all elements of the matter in the course of the Work Inspections. I am satisfied that no prejudice arose for the respondent in the process - indeed the personnel involved in the Work Inspection process and Final Hearing of the complaint were those involved from the outset of my investigation in November, 2007. In light of the foregoing I find that the complainant's claim of "like work" in terms of section 7(1)(c) of the Acts is properly before this Tribunal for investigation.
5.3 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."
5.4 In O'Leary v Minister for Transport, Energy and Communications Murphy J, in delivering the judgement of the Supreme Court, stated as follows -
"To liken patently different categories of work one with another by reference to the demands they make on the skill, effort and responsibility of the workers involved may be a difficult task.
Where however, as in the present case, there is at the very least a significant degree of similarity between the work performed by the claimants and comparators, it should be an easier task to compare the demands which each makes on those engaged in its performance. The possibility of establishing equality of demands or identifying any basis for inequality must be enhanced in proportion to the degree of similarity between the allegedly different works.".
In the instant case the Job Specifications at Appendix A shows some differences between the complainant and Comparator A but are identical in every respect (save some minor grammatical points) between the complainant and Comparator B. It is noteworthy that these Job Specifications were originally appended by the respondent to the respective contracts of employment of the complainant and each of the comparators. It is also noteworthy that in the course of the Work Inspections the complainant and each of the comparators confirmed that these Job Specifications accurately reflected the overall range of duties/responsibilities each of them had as CEO of their regions.
5.5 Appendices B and C respectively set out (i) my analysis of the respective roles of the complainant and the comparators on foot of Work Inspections and (ii) my evaluation of their respective roles in comparison with each other across each of the five factors provided at section 7(1)(c) of the Acts. The complainant is claiming "like work" with each of the comparators in terms of all three paragraphs of section 7(1) of the Employment Equality Acts, 1998 and 2004. Section 7(1)(a) of the Acts requires that the work performed by one person (the complainant) must be the same or interchangeable with that performed by the other person (the comparator). Having regard to the contents of Appendices B and C of this Decision I find that the complainant does not perform "like work" in terms of 7(1)(a) of the Acts with either of the named comparators.
5.6 Section 7(1)(b) of the Acts requires that that the work performed by one person (the complainant) must be similar in nature to that performed by the other person (the comparator) or that any differences in the work performed or the conditions under which it is performed is either of small importance or occurs with such irregularity so as to be not be significant to the work as a whole. Having regard to the contents of Appendices B and C of this Decision, I find that the complainant does not perform "like work" in terms of 7(1)(b) of the Acts with Comparator A. However, I find that she does perform "like work" with Comparator B in terms of this provision of the Acts.
5.7 Section 7(1)(c) of the Acts requires that the work performed by one person (the complainant) must be equal in value to that performed by the other person (the comparator) having regard to the level of skill and responsibility involved, the mental and physical requirements necessary to perform the work and the working conditions under which it is performed. Having regard to the contents of Appendices B and C of this Decision, I find that the complainant does not perform "like work" in terms of 7(1)(c) of the Acts with Comparator A. However, I find that she does perform "like work" with Comparator B in terms of section 7(1)(c) of the Acts.
6. DECISION OF THE EQUALITY OFFICER.
I have concluded my investigation of this complaint and hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts, 1998-2011. I find that -
(i) the complainant does not perform "like work" in terms of section 7(1)(a) of the Employment Equality Acts, 1998 and 2004 with either of the named comparators.
(ii) the complainant does not perform "like work" in terms of section 7(1)(b) of the Employment Equality Acts, 1998 and 2004 with Comparator A.
(iii) the complainant performs "like work" in terms of section 7(1)(b) of the Employment Equality Acts, 1998 and 2004 with Comparator B.
(iv) the complainant does not perform "like work" in terms of section 7(1)(c) of the Employment Equality Acts, 1998 and 2004 with Comparator A.
(v) the complainant performs "like work" in terms of section 7(1)(c) of the Employment Equality Acts, 1998 and 2004 with Comparator B
during the period which is covered by this complaint - 9 March, 2003 (three years prior to the date of referral of the complaint) to date.
______________________________________
Vivian Jackson
Equality Officer
5 December, 2011
APPENDIX A
Job Specifications filed with the Tribunal
in respect of the complainant and
the two named comparators
APPENDIX B
Analysis of complainant's role and that
of the two named comparators on foot of Work Inspections
GENERAL
The respondent is one of a number of individual local companies established in January, 2007 which took responsibility for the delivery of services on a regional basis which had previously been delivered by the Congregations of the Brothers of Charity. The complainant is Regional Director of Services (Chief Executive Officer) for the Clare Region. Comparator A is Director of Services (Chief Executive Officer) for the Galway Region and Comparator B is Director of Services (Chief Executive Officer) for the Limerick Region. Each of them report to the Chairperson of their respective Board of Directors and have a second reporting relationship with the Congregation's National Director.
Each agrees that the Job Specification at Appendix A accurately reflects the range of duties/responsibilities which attaches to the post of Chief Executive Officer of the respective companies. Each also agrees that it would not be possible for one to be transferred as a replacement for another in that latter person's region and indeed this has never happened previously.
The complainant and both comparators served as Company Secretary to the new organisations from 1 January, 2007.
SKILL
Each of the parties displays significant leadership skills. They are responsible for setting the strategy and direction of how the services in each region are to be delivered and to drive this vision through the staff and resources available to him/her. Each demonstrates innovation in delivering these goals particularly against the background of transformation in the delivery of services which the Congregation embarked on during the period covered by the claim. Each also demonstrates an intense passion, dedication and commitment to the work they do which undoubtedly contributes to the leadership each display on a daily basis.
This leadership is further displayed by the partnerships forged with national and international bodies to conduct research and collaboration into how best to deliver services to users. One such project in the complainant's case involved collaboration between the Clare Region and The National Institute for Intellectual Disabilities and resulted in the production of three publications which were informed by the life experiences of people with intellectual disabilities. In the case of Comparator B an example of such leadership and innovation was the implementation and accreditation of staff under the Excellence Through People Award.
All three displays considerable communication skills. Internal communication with staff etc. is essential to the smooth running of the organisation. The parties are the primary links between the organisations and the respective Boards of Directors and as such exercise a different range of communication skills in that capacity. Finally, all three parties have significant role in terms of external communication - with the HSE, Government Departments, NGO's, users and their families, international organisations, stakeholders and a wide range of interest groups. They have all delivered papers/presentations at national and international conferences/symposiums but at differing levels and frequency.
All three parties are required to demonstrate on an almost daily basis analytical and decision making skills. Each must review and re-evaluate on a regular basis the needs of the users and how best to deliver the relevant services to those users given the model of delivery required and the budgetary environment within which each of the parties operate in their respective regions.
All three parties demonstrate considerable planning and organisational skills. As CEO of their respective regions they must ensure, in conjunction with their Senior Managers, that the strategic goals of the organisation are achieved in the most effective and efficient manner possible.
Each of the parties place significant emphasis on continued professional development and attend relevant courses and other relevant learning opportunities in that regard, sometimes at their own expense.
RESPONSIBILITY
Each of the parties have responsibility for engaging with the HSE for annual budgets and ultimately for engaging with their respective Board of Directors to sign off on the Service Agreement with the HSE, which is the legal arrangement between each company and the HSE governing Exchequer-based funding for the year. Monitoring of this expenditure rests with each Chief Executive Officer (CEO), usually with the assistance of another senior member of staff who operates as Finance Officer. However, the final decision on how and where funding is spent rests with the CEO in each case. Funds may be secured from other sources by each CEO through personal contact or fund raising. Such activity was carried out to a greater extent by Comparator B - although this appears to arise due to several years of what was described as underfunding in the region. Responsibility for complying with the terms/limits of the budget rests with the CEO of each organisation.
The complainant and both comparators have overall responsibility for the delivery of the services to the users in the most effective and efficient manner possible. In the complainant's region this is done on a team based model supporting individuals and their families to enable the person using the services to live at home or in a community based setting. This is clearly in accordance with the Congregation's agenda to move from the provision of generic programmes of support to the provision of individual based support in order that the person using the service may achieve his/her own life goals. The model of delivery is significantly different for both comparators as they have large residential institutions in their regions.
Comparator A is responsible for delivery of services to users in a community setting but also delivers services to users who reside in two residential institutions in the region - Kilcornan Services, which accommodates approximately 60 service users with severe to profound disabilities and John Paul Services, which accommodates approximately 35 service users with moderate to severe disabilities. These numbers have reduced in recent years in line with the ethos of movement away from a residential setting and the innovation and leadership of Comparator A.
Comparator B has similar responsibility for delivery of services to users in a community setting but also delivers services to users who reside in two residential institutions in the region - Bawnmore Centre, which is the largest residential institution in the Congregation's organisation and accommodates just over 100 service users with a wide range of disabilities and mental health issues some of which are secondary in nature. These numbers have reduced in recent years in line with the ethos of movement away from a residential setting and the innovation and leadership of Comparator B with a view to the permanent closure of the facility at Bawnmore. The second institution is the Foynes Services which caters for 12 profoundly disabled people.
In 2008, the latest year for which details were furnished the complainant operated a budget over €11.1m and the number of staff engaged in the region was 178. In the case of Comparator A's the corresponding details were €58.7m and 847 staff. Those for Comparator B were €32.5m and 493 staff. The number of direct reports to the complainant and the two comparators are 9, 16 and 13 respectively.
The institutions in Comparator B's region have been the subject of industrial relations problems on two occasions during the period under review which involved personal involvement by the comparator in resolving the issues in dispute. He is also involved, as necessary, with HR and industrial relations disputes of a minor nature as necessary, although many of these are disposed of by the comparator's HR Manager. The institutions in Comparator A's region have been the subject of industrial relations problems over the years which involved personal involvement by the comparator in resolving the issues in dispute.
Comparator A had responsibility as official spokesperson for the Congregation for dealing with media and other related queries in respect of allegations of child and other service user abuse by members of the Congregation. Neither the complainant nor Comparator B had any such role.
Comparator A was a member of the Regional Council for County Galway from 2001 until December, 2006, when the Council was effectively subsumed into the new company, Brother of Charity (Services ) Galway Ltd. which came into operation on 1 January, 2007. The Regional Council met 6-8 times per year and comprised stakeholders, staff, service users and parents. It was a mechanism for those people to have a view and influence on the service and delivery of same. Comparator A, as Director of Services for the Galway region was held to account for decisions taken etc and was responsible for bringing comments and views back to the Congregation. Neither the complainant nor Comparator B had a similar role.
From 1997 onwards Comparator A had responsibility for overseeing the Congregation's response to allegations of child and physical abuse by members of the Congregation. The initial role he filled was that of "Delegate" or designated person and he was appointed to that role by the Brother Superior of the Congregation. He was the initial point of contact for persons who wished to make allegations of abuse against a member of the Congregation - taking a statement, informing the Gardaí and/or HSE or other suitable authority, making appropriate reports to the Congregation and informing the alleged perpetrator. At its peak the comparator was dealing with two fresh allegations a month. He ceased this role in 2000.
From 2000 Comparator A was a member of the Congregation's Senior Advisory Group on Service User Safety. This Group assesses reports of alleged abuse received from the Delegate and operates in a consultative manner advising the Brother Superior on what action or response the Congregation should take in a particular case. At its height the Group met around six times a year. It also had a management role in terms of a member of the congregation who had previously abused. During Comparator A's time on the Group it handled over 200 files.
Between 1998 and 2008 Comparator A was actively involved in an external inquiry into allegations of abuse against members of the Congregation in the Galway region, initially conducted by the HSE and eventually concluded by an external expert. The Report was known colloquially as the McCoy Report. Comparator A took the lead role in handling the media fallout on publication of the report and also appeared in front of the Joint Oireachtas Committee on Health and Children. The recommendations of the McCoy Report were implemented by 2009 - implementation was overseen by a Committee chaired by the Congregation's National Chief Executive. Comparator A was a member of this Committee. During the period under review Comparator A also had a significant role in terms of the Congregation's interaction with the Commission to Inquire Into Child Abuse and the Redress Board Initiative. Neither the complainant nor Comparator B had any similar role in the area of alleged abuse.
Each of the parties serves on internal committees and groups within the Congregation structure generally. Some of these committees/groups are structured/standing in nature (National Meetings of Directors of Services) and some are established for a particular task/purpose and may have a defined lifespan (Implementation Committee/Sub-committees). Their roles on these committees/groups encompass what one might label a traditional member to that of Chairperson or Facilitator. All three are also members of several external committees and groups connected with their role.
All three parties have contributed to the development and production of a magnitude of policy documents covering a wide range of aspects of daily life and the activities of the Congregation, both at national level and on occasion specific to their respective regions.
MENTAL REQUIREMENTS
There are no real differences in the mental requirements of the roles under review. Each operate in an intense and highly pressurised working environment coping with the issues the nature of the work they perform inevitably creates. Each of the parties must have a comprehensive knowledge of the national legislation relevant to the work they do. In addition, they must have relevant working knowledge of (i) EU policies and initiatives relevant to their area and (ii) International Conventions and other Instruments.
PHYSICAL REQUIREMENTS
There are no real differences in the physical demands of the roles under review. Each operate in an intense and highly pressurised working environment coping with the issues the nature of the work they perform inevitably create.
WORKING CONDITIONS.
All three parties had contractual hours of 39 hours per week, Monday - Friday although all carried out official duties outside of normal working hours on many occasions. None are entitled to, or are paid any, additional remuneration for these extra duties. All spend a significant amount of their working day in an office based environment.
APPENDIX C
Comparison of complainant's role and that
of the two named comparators on foot of Work Inspections
SKILL
It is clear that during the period under review as part of the equal pay claim (March, 2003 to date) the respondent's structures have changed considerably. The Congregation's mission statement and strategic goals transformed from delivering services in a conventional institutional model to providing individualised services to support each person to live within his/her community. Against this backdrop the parties have been required to demonstrate a wide range of skills and to display those at a very high level.
The first of these can be described as Entrepreneurial Skills - which encompasses the Leadership and Innovation which all display to achieve the vision of empowering users to have the highest quality of life possible in a setting that is most conducive to attainment of that goal given the users circumstances. The parties achieve this goal by using significant Interpersonal Skills - both internal and external with a plethora of stakeholders in the process. Communications and Networking are important skills which all three display on a continuous basis. Financial Planning and Management Skills are also significant, although these are generally displayed as part of a Senior Management Team.
All three display considerable Planning and Organisational Skills. As CEO of their respective regions they must ensure, in conjunction with their Senior Managers, that the strategic goals of the organisation are achieved in the most effective and efficient manner possible. The fact that these skills are displayed on more occasions on a daily/weekly basis by the comparators - due to the fact that the have larger budgets - does not result in the posts requiring a greater level of skill relative to each other. It is sufficient that the parties must display these skills on a regular basis. In this regard it is worth noting that it is well settled that the law does not require a mathematical exactitude of equality between two jobs before they can be regarded as equal in terms of section 7 of the employment equality legislation.
All three parties are required to demonstrate on an almost daily basis analytical and decision making skills. Each must review and re-evaluate on a regular basis the needs of the users and how best to deliver the relevant services to those users given the model of delivery required and the budgetary environment within which each of the parties operate in their respective regions. Again, it is clear that the comparators might be required to display these skills on a more frequent basis due to larger budgets but the same rationale as set out in the previous paragraph equally applies here.
The comparators had institutions in their regions which over the years had involved both displaying industrial relations skills. Whilst this is true and may have necessitated personal involvement by both, it was not a frequent occurrence in either case - indeed Comparator B stated it was only on two occasions. Other staff related issues are now handled by the respective HR Managers in the regions and the involvement of the comparators is reduced significantly.
I find that the demands made on the complainant and both
comparators in terms of skill to be equal
RESPONSIBILITY
The complainant and both comparators are responsible for developing, negotiating and monitoring of the annual budgets, usually with the assistance of another senior member of staff who operates as Finance Officer. In the case of each the final decision on how and where funding is spent rests with them. Responsibility for complying with the terms/limits of the budget rests also with the CEO of each organisation.
The complainant and both comparators have overall responsibility for the delivery of the services to the users in their regions in the most effective and efficient manner possible. Whilst the manner with which this delivery of services differs between the complainant's region and those of the comparators, the end product remains the same - the delivery of services to the user in a manner which best supports that person to achieve his/her life's goals in a manner most conducive to that person's needs. In the complainant's case this is done by a team based model who support individuals and their families to enable the person using the services to live at home or in a community based setting. Comparator A is responsible for delivery of services to users in a community setting but also delivers services to users who reside in two residential institutions in the region Comparator B has similar responsibility for delivery of services to users in a community setting but also delivers services to users who reside in two residential institutions in the region. It is therefore understandable that the budgets in each of the comparators' regions is significantly higher than that in the complainant's given the numbers of users, the level of disability they have and the nature of the environment in which services are delivered. However, I cannot accept that having a larger budget and residential institutions comports a higher level of responsibility given the role of each CEO in the Mission Statement of the Congregation. The end result remains the same in all cases - the most effective and efficient delivery of service to the user.
In tandem with this budgetary difference there are also differences in the number of staff each region employs to discharge these functions. However, each organisation has its own hierarchical structure (which is similar in nature) which results in each level reporting to the one above and ultimately the complainant and the comparators have direct reports of 9, 16 and 13 staff respectively. There is no significant difference in these numbers -it is accepted by the Labour Court that a reporting relationship is not a matter which should properly be taken into account in measuring the value of two different jobs when determining "like work" and therefore a guarded approach to such a factor should be adopted. The respondent placed significant emphasis on industrial relations matters and having medical professionals reporting to the CEO in terms of responsibility. The first issue was not significant at all and as regards the second point Comparator B stated those reports "were not a big deal".
Comparator A had a significant role in the Regional Council for County Galway from 2001 until December, 2006. Neither the complainant nor Comparator A had a similar role.
From 1997 onwards Comparator A had responsibility for overseeing the Congregation's response to allegations of child and physical abuse by members of the Congregation and played a significant part in that regard, in a variety of roles, with considerable responsibility, until he retired in 2009. Neither the complainant nor Comparator B had any similar role in the area of alleged abuse.
The roles of the parties on internal/external committees and groups vary. However, I do not consider it necessary for the purposes of my evaluation to calculate the exact number of times each person chairs or facilitates such committees/groups. It is clear that over the period of the claim they each exercised the full range of roles required. Moreover, given their respective experience and expertise in the area it is clear that each would have contributed enormously to the work of the particular committee/group whatever their role in same.
All three parties have contributed to the development and production of a magnitude of policy documents covering a wide range of aspects of daily life and the activities of the Congregation, both at national level and on occasion specific to their respective regions. Again I do not consider it necessary to calculate the exact number of policy documents and other publications each were involved with on the basis.
I find that the demands made on the Comparator A in terms of
responsibility exceed those placed on the complainant
I find that the demands made on the Comparator B and the complainant
in terms of responsibility to be equal.
MENTAL REQUIREMENTS
There are no material differences in the mental requirements of the roles under review. Each operate in an intense and highly pressurised working environment coping with the issues the nature of the work they perform inevitably create. The fact that the comparators may for example be required to make decisions on complex issues perhaps three times a day whilst the complainant may only have to make such a decision once a day does not give rise to any material difference in the mental requirements of the posts. It is sufficient that they must make such decisions as part of their job. Each of the parties must have a comprehensive knowledge of the national legislation, European policies and initiatives and International Conventions and other Instruments relevant to the work they do.
I find that the mental efforts required of the complainant and both
comparators to be equal
PHYSICAL REQUIREMENTS
The complainant and comparators do not have any physical demands in their positions other that what might be expected a person primarily carrying out office based duties.
I find that the demands made on the complainant and both comparators in terms
of physical requirements to be equal
WORKING CONDITIONS.
All three parties had contractual hours of 39 hours per week, Monday - Friday although all carried out official duties outside of normal working hours on many occasions. None are entitled to, or are paid any, additional remuneration for these extra duties. All spend a significant amount of their working day in an office based environment.
I find that the demands made on the complainant and both comparators in terms
of working conditions to be equal