FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : TMF MANAGEMENT (IRELAND) LTD - AND - VADYM KALININ DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. This is an appeal under Section 83 of the Employment Equality Acts 1998-2011(hereinafter "the Acts"). A Labour Court hearing took place on 14th June 2012. The following is the Court's Determination:
DETERMINATION:
This dispute concerns a claim by Mr Vadym Kalinin (hereinafter "the Complainant") that he was subjected to discriminatory treatment by TMF Management (Ireland) Limited (hereinafter "the Respondent") on the ground of race in terms of Section 6 and contrary to Section 8 of the Acts in relation to promotion/re-grading, training, conditions of employment and study assistance arrangements. He also maintained that he was victimised. He also made a claim in relation to equal pay.
The Complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 23 January 2009. The Equality Officer issued her Decision on the complaints on 19 December 2011. The Equality Officer decided that the Complainant had failed to establish facts from which an inference of discrimination could be drawn in any of the matters before her. She also decided that the Complainant was paid less than his Comparator on objective grounds and accordingly did not uphold this complaint.
The Complainant appealed these decisions to the Labour Court.
The Labour Court considered the appeal at an oral hearing on 14 June 2012. Extensive written submissions were made prior to the hearing and these formed the basis for the investigation conducted at the oral hearing.
The Complainant repeated the complaints made before the Equality Officer. The Court has relied heavily on the descriptionof the Complainant’s and Respondent’s respective cases as set out by the Equality Officer as constituting an accurate statement of their respective positions with which both parties agreed.
The Complainant, who is a Ukrainian/Russian national, was employed by the Respondent as an Accountant from December 2006 until 25th July 2008. He submits that the Respondent discriminated against him in terms of promotion/regrading, training, conditions of employment and study assistance arrangements. He alleges that he was forced to work very hard and to deliver a high volume of work. He contends that when he informed Management that he felt stressed his concerns were not dealt with. He alleges that he was forced to work excessive hours for which he did not receive remuneration or time off. He alleges that he was refused a Reference and that despite promises of training in Amsterdam he was not sent to Amsterdam for training. He contends that he was constantly undermined and ignored as a professional. He also contends that his final wages were not paid to him due to deductions taken without his consent. In his submission he outlined occasions on which he contended that he was subject to inappropriate behaviour from both Management and colleagues.
The Complainant contends that he was victimised by the Respondent.
The Complainant also submitted a claim for equal pay against a named Comparator, Mr. A, on the grounds that he performed the same work as this Comparator or that his work was interchangeable with that of this Comparator.
Respondent’s Position
The Respondent denies that the Complainant has been subjected to discrimination on the ground of race contrary to Section 6 of the Acts. The Respondent states that it is an Amsterdam-headquartered global management and accounting outsourcing firm with more than 3,000 staff across 85 offices and 65 countries. It began operations in Ireland in 2005 with a staff of two. The Irish office grew quickly and staff numbers had reached 31 by the end of 2008.
The Company assembled a small special purpose vehicles (SPV) accounting team in 2006. This comprised a junior accountant, two
partly-qualified accountants (one of whom was the Complainant) and Mr. A, a fully-qualified accountant. An experienced Financial Controller joined the Respondent in July 2007. The Respondent submits that the team was overstaffed in mid-2007 relative to the work and it was recognised that time would be required to build up the required expertise and experience. The Respondent contends that the Complainant's progress on straightforward assignments was very slow. A typical SPV Accountant at the Amsterdam office would be expected to complete 15-20 sets of accounts of average difficulty per year while the goal in the Irish office was to reach 12 plus audited accounts per person while the Complainant completed 7 sets of accounts in 2007. The Respondent states that, while the overall accounting workload was low relative to the number of accounting staff, the team was not performing well either collectively or individually. The Complainant was given a high level of freedom and independence in managing his own work. Despite his weak performance he was not pressurised to improve productivity by his supervisor and was awarded a mid-year increase of 10% of his salary from 1 July 2007 to encourage further commitment.
A period of specialist training was planned for the Complainant and other TMF Accountants in the autumn of 2007. However, the Head Office in Amsterdam decided that it would be more efficient and cost-effective to send one senior Accountant to Ireland for one month rather than sending several people from Ireland to The Netherlands for training.
In the second half of 2007 the Complainant's performance had improved a little and he was given due recognition for the improved performance and awarded a further 7% increase in his salary. He was also awarded an exceptional bonuspayment of €3,200. However the Complainant expressed disappointment with his salary review on 28th December 2007 saying that he expected his salary to be increased to at least €45,000 (a 20% rather than 7% increase). The Respondent stated that the Complainant was informed that his salary had increased very rapidly despite poor individual and collective results from the Accounting Department.
The Respondent states in February 2008 the Complainant informed the Respondent of his intention to resign in favour ofa better role elsewhere at €45,000. On 6th March 2008 the Respondent agreed to increase his salary to €45,000 from 1st April 2008 on a personal basis without any change in his duties or responsibilities. He was informed that this would be classified as a promotion from Accountant to Senior Accountant.
The Respondent contends that during his employment the Complainant on a number of occasions had interpersonal difficulties with various staff members. It became clear shortly after he joined the Respondent that the Complainant was experiencing significant personal financial stress even though he had received a 17% increase in salary on recruitment. It also became apparent that the pressures of his accountancy exams, added significantly to his personal stress levels. These pressures appeared to affect his behaviour and performance at work. He demonstrated moody behaviour patterns, moving between calm/cooperative and abrasive/hypersensitive for no obvious reason. Several staff members commented that these frequent and inexplicable mood swings made it difficult to work with him. There were a number of seemingly minor issues with staff members where the Complainant's reaction appeared disproportionately confrontational.
In relation to the Complainant's claim for equal pay, the Respondent contended that the Complainant and the Comparator, Mr A, were not employed on “like work” as the Comparator was senior to the Complainant. Notwithstanding this, it argued that the Comparator's salary reflected his greater qualifications and work experience.
The Respondent submits that the Complainant has not adduced any evidence to establish a prima facie case of discrimination on the ground of race. The onus of proof remains on the Complainant to prove that discrimination occurred and the Respondent submits that he has failed to discharge this onus.
Conclusions of the Court
The issues for Decision by the Court are whether or not the Respondent discriminated against the Complainant on the ground of race in terms of Section 6(2)(h) of the Acts in relation to conditions of employment, training, promotion/regrading, victimisation and equal pay. Section 6(1) of the Acts provides that discrimination shall be taken to occur where" a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in terms of subsection (2)...".Section 6(2)(h) of the Acts defines the discriminatory ground of race asfollows "as between any two persons.. that they are of different race, colour, nationality or ethnic or national origins..."
Thus the Complainant must be the subject of less favourable treatment in comparison to another person on the ground of race, i.e. in this case because he is Russian/Ukrainian.
In evaluating the evidence before the Court it must first consider whether the Complainant has established facts from which discrimination may be inferred. It is only where such facts have been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.
The Labour Court has stated inMelbury Developments Limited and Valpeters:
"Section 85A of the Act provided for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to case and there is no closed category of facts which can be relied upon all that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule."
It is only where facts have been established that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent. In reaching its Decision, the Court has taken into account all of the submissions both written and oral, made by the parties.
Conditions of Employment
The Complainant, both in his submission and in his oral evidence, outlined what he described as inappropriate behaviour relating to the demands made on him in relation to work and also outlined various interpersonal issues he had involving colleagues, Management and junior staff. These were also the subject of email communications within the company with which the Court was copied.
These communications give no indication that the Complainant was experiencing any difficulties in relation to his nationality and race. No reference is made in any of these communications to his race/nationality. The Complainant was unable to provide any evidence that he was treated less favourably because of his race or nationality in terms of his conditions of employment. Therefore, the Court finds that, in relation to his conditions of employment the Complainant has failed to establish facts from which an inference of discrimination could be drawn.
Training
In relation to his claim that he was not sent to Amsterdam for training, the Complainant did not dispute the Respondent's evidence that a staff member from Amsterdam travelled to Dublin to provide training. The Respondent stated that, initially, it had been envisaged that staff from the Irish office (of various nationalities) would travel to Amsterdam for training but it was decided that it would be more economical to bring one person from Amsterdam to provide training rather than incur the costs of several people, including the Complainant, travelling to Amsterdam for the training. The Complainant was unable to provide evidence that he was treated less favourably in relation to this training than other staff.
Study Assistance Scheme
In addition, the Complainant contended that the study assistance agreement under which his studies were part financed by the Company was unfair.
The study assistance scheme provides for the reimbursement of up to 80% of the cost of registration/course fees, exam fees etc. It is a condition of the scheme that an Employee is obliged to immediately repay all reimbursed study costs to the Respondent if the Employee leaves the Respondent's employment during the period of the course or within one year after completing the course.
The Complainant contended that the request from the Respondent for this repayment when he was leaving their employment and the Respondent's subsequent deductions from his final salary to cover some of the reimbursement due to be repaid by him were unfair. The Complainant accepted that this scheme applies to all staff and he was unable to provide any evidence that any other staff member leaving before completing their course of study was treated more favourably than he was. He submits that, given his personal circumstances, the impact of implementing the agreement in full had a more profound financial effect on him. However, he presented no evidence that he was treated differently to any other member of staff who had left the Company.
The Court finds that, in relation to training, the Complainant has not established “facts from which an inference of discrimination could be drawn.”
Promotion/Regrading
The Complainant did not provide any evidence that he was treated less favourably than other staff in relation to promotion. There was no evidence that any other staff at his level had been promoted. The increase in salary, which he received in April 2008, was classified by the Respondent in documentation at that time as a promotion from Accountant to Senior Accountant.
Therefore in relation to promotion/regrading the Court finds that the Complainant has not “established facts from which an inference of discrimination could be drawn”.
Victimisation
Section 74(2) of the Acts specifies that victimisation occurs where dismissal or other adverse treatment of an Employee occurs as a reaction to, inter alia, an Employee making a compliant of discrimination to the Employer or the Employee having opposed by lawful means an act which is unlawful under this Act.
The Complainant contends that the Company's attempt to enforce the "non-compete" clause in his contract of employment was victimisation.
The Court finds that the Company’s decision to enforce the non-compete clause arose out of its policies in relation to this matter and not because the Complainant made a complaint of discrimination to the Employer.
Equal Pay
Section 29 (1) of the Acts provides that "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",where in relation to the ground of race, C and D differ as to race, colour, nationality or ethnic or national origins or any combination of those factors.
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 rejects the assertion that the Complainant performed "like work" with the named Comparator and, notwithstanding this, submits that there were grounds other than race for the difference in the respective rates of remuneration paid to them. The Respondent argued that the Complainant and the Comparator were not employed on like work as the Comparator was senior to the Complainant. Notwithstanding this, it also argued that the Comparator's salary reflected his greater qualifications and work experience. The Respondent contends that there are grounds unconnected with the races/nationalities of the Complainant and Comparator that render the rates of remuneration paid to them lawful in terms of the aforementioned provision.
The Respondent provided the Court with copies of the Curriculum Vitae of both the Complainant and the Comparator that had been submitted at the time of their recruitment in 2006. It is clear from this evidence that Mr. A was a qualified Accountant (ACCA) since February 2000 and had almost seven years' experience at that level in the financial services sector at the time of his recruitment in December 2006. The Complainant was a part-qualified ACCA with several further exams to pass and with less experience in that sector. At the hearing the Complainant confirmed that he passed his final exams in June 2009 and qualified as an ACCA then.
The Court concurs with the Equality Officer’s finding that Mr. A's rate of pay reflected his higher qualifications and greater relevant experience.
Having regard to Section 29(5) of the Acts, Mr A received a higher rate of pay to that of the Complainant for reasons other than the discriminatory ground of race and therefore the Respondent can avail of the defence in Section 29 (5) of the Acts.
The Court concurs with the Decision of the Equality Officer that the Complainant is not entitled to the same remuneration as the named Comparator. Therefore the Complainant's case fails.
The Court affirms the Decision of the Equality Officer and finds in favour of the Respondent in this matter.
Decision of the Court
The Court has considered the appeal before it in accordance with Section 83(2) of the Acts. The Court makes the following Determination: -(i) the Respondent did not discriminate against the Complainant on the race ground pursuant to Section 6(2)(h) of the Acts in terms of his conditions of employment, training, promotion/regrading and for study assistance arrangements contrary to Section 8 of the Acts. (ii) the Respondent did not victimise the Complainant within the meaning of Section 74(2) of the Acts (iii) the Respondent did not discriminate against the Complainant on the race ground pursuant to Section 6(2)(h) of the Acts in relation to his pay.
Signed on behalf of the Labour Court
Brendan Hayes
9th July, 2012______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.