The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2012-049
PARTIES
Vitalijs Klagliss
(Represented by Richard Grogan & Associates)
AND
Swords Packaging and Logistics Limited
(Represented by Rosemary Mallon B.L., instructed by Arthur Cox)
File reference: EE/2009/806
Date of issue: 26 April 2012
Headnotes: Employment Equality Acts - sections 6 and 19 - conditions of employment - equal pay - race - prima facie
1. DISPUTE
1.1 This dispute involves a claim by Mr Vitalijs Klagliss that he was discriminated against in relation to conditions of employment contrary to section 8 of the Employment Equality Acts by Swords Packaging and Logistics Limited on the grounds of race contrary to section 6 of the Employment Equality Acts and that he performs "like work", in terms of section 7 of the Employment Equality Acts with eight named comparators and is entitled to equal remuneration in accordance with section 29 of the Acts.
1.2 The complainant referred his claim under the Employment Equality Acts to the Equality Tribunal on 5 November 2009. On 9 January 2012 in accordance with his powers under the Acts the Director delegated the complaint to the undersigned, Hugh Lonsdale, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 28 March 2012.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant started working for the respondent on 9 June 2005 and he works as General Operative. The complainant submits he was paid €9.19/hour and eight named Irish comparators were paid more than he was. Also, the Irish comparators were paid overtime rates for working on Saturdays and double time when they worked on Sundays, whilst he was paid normal rates for working on Saturdays and lower overtime rates for Sunday working.
2.2 The complainant submits that Irish workers were paid a bonus in 2008 but he and other non-Irish workers were not.
2.3 The complainant submits he was told that he was not entitled to annual leave because he had been off sick.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent states that all the comparators apart from Mr A started work between 1995 and 1997 for T.J.F. Limited and in April 2001 they, and the work of T.J.F. Limited, were transferred to Roster Packaging Ltd. Mr A started work for Roster Packaging in 2003 and the complainant in 2005. In January 2006 the work and employees of Roster Packaging Ltd transferred to the respondent under a transfer of undertaking. When T.J.F. Limited transferred to Roster Packaging the employees took their pay rates and conditions of employment with them. This meant that the T.J.F. employees, including the first seven comparators were paid particular pay rates, overtime rates and premium payments for working on Saturdays and Sundays. These were higher and more beneficial than those received by the complainant and Mr A. The respondent submits that they were obliged to pay the rates enjoyed by the former T.J.F. Limited employees in accordance with the transfer of undertakings; in effect the first seven comparators were red-circled. Therefore any differences between these comparators and the complainant had nothing to do with race.
3.2 The respondent submits that Mr A started with Roster Packaging on 17 June 2003 and the complainant started on 9 June 2005. The complainant and Mr A shared the same rate of pay, overtime rates and premium payments, apart from 2006 when all those who started before January 2004 received a 2% pay increase; this was based on length of service and not race. From January 2007 onwards the complainant and Mr A received the same rate of pay.
3.4 The respondent does not concede like work with the seven comparators who started working for T.J.F. Limited as they all had some level of responsibility, which the complainant did not have. Particularly Mr B who was a Manager; whilst the complainant was an operator.
3.5 The respondent submits Christmas 2007 was the last time a bonus was paid to any employee. All staff received €75 per year of service and the complainant was paid €150 accordingly.
3.6 The respondent submits that the complainant has taken his claim in relation to annual leave to the Rights Commissioners under the Organisation of Working Time Act and he is therefore estopped from making the same claim to the Equality Tribunal.
3.7 The respondent submits the complainant and Mr A perform like work and receive the same pay. In relation to the other comparators there were reasons other race for any differences in pay, in that they were red circled and they relied on Equality Tribunal Decision DEC-E2005-017, Hedderman v Dublin City Council and Labour Court Decision EDA23/2008, Dyflin Publications v Spasic.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 At the hearing the complainant withdrew his complainant in relation to conditions of employment. Therefore, the issue for decision by me is whether the complainant has a claim for equal pay on the grounds of race. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2 The complainant alleges that he was not paid a bonus in 2008 whilst Irish workers did receive a bonus. At the hearing he confirmed that he did receive a payment, which amounted to a bonus, in 2005, 2006 and 2007. Furthermore, he accepted the evidence of the respondent that no one was paid a bonus in 2008. I also accept the evidence of the respondent and find the complainant has failed to demonstrate a prima facie case of discrimination in relation to the payment of bonuses.
4.3 It is agreed by all parties that the complainant and Mr A perform "like work" in terms of section 7(1)(a) of the Acts, in that "both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to work". Section 29 (1) of the Acts states: "It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer". However, apart from 2006, it is agreed by all parties that the complainant was receiving equal remuneration with the comparator, Mr A. For the year 2006 Mr A received a 2% increase in pay together with all those who started work before January 2004. I accept the evidence of the respondent and find, in accordance with section 29 (5) of the Acts that "nothing in this Part shall prevent an employer from paying, on grounds other discriminatory grounds, different rates of remuneration to different employees". I therefore find that any difference in pay was for reasons other than race and the complainant has failed to prove his claim of equal pay in relation to the named comparator, Mr A.
4.4 In relation to the other seven named comparators, who all started working for T.J.F. Limited, the complainant withdrew his claim in relation to Mr B at the start of the hearing. The respondent contends that the complainant does not perform like work with the other six comparators. They gave evidence at the hearing that four of the six were table supervisors, one was a Production Supervisor who was promoted in April 2008 to Assistant Manager and the other comparator spent three hours per day undertaking duties in the office. It was conceded by the complainant at the hearing that they all at least performed supervisory duties, at least some of the time.
4.5 The respondent also contends that the remuneration of the remaining six comparators was red circled when they moved from T.J.F. Limited to Roster Packaging Limited and was part of a transfer of undertaking when they subsequently moved to the respondent's employment. The differences between these six and the complainant and Mr A were highlighted in the contracts which were subsequently issued. The respondent also provided minutes of meetings in 2007 and 2009 between the Employee Representative Committee and Management in the respondent which highlight the different pay rates, overtime rates and premium rates for weekend working between the different groups. I accept the evidence of the respondent and find, in accordance with section 29 (5) of the Acts that "nothing in this Part shall prevent an employer from paying, on grounds other discriminatory grounds, different rates of remuneration to different employees". I therefore find that any difference in pay were for reasons than race and the complainant has failed to prove his claim of equal pay in relation to the other six named comparators.
5. 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 that the complainant has failed to establish a prima facie case of equal pay on the basis of the race ground and the complaint fails.
_____________________
Hugh Lonsdale
Equality Officer
26 April 2012