THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2013- 044
PARTIES
Jakub Raczyk
(represented by Cathy Hamilton BL instructed by Blazej Nowak, Polish Consultancy Enterprise)
-V-
Robeplan Fitted Furniture Ltd (In Liquidation
(represented by Ian Lawlor Liquidator of jpa brenson lawlor)
File Reference: EE/2011/730
Date of Issue: 17th May 2013
Keywords: Employment Equality Acts 1998-2008 - direct discrimination - Section 6(1), less favourable treatment - Section 6(2)(h), age - Section 7 & 29 - equal pay, like work and work of equal value, prima facie case.
1. Dispute
This dispute concerns a claim by the complainant that he was discriminated against by the above named respondent on the race ground, in terms of section 6(2)(h) and 7(1) and contrary to section 29 of the Employment Equality Acts. He is claiming that he is entitled to equal pay in terms of section 29(1) of the Acts in that he performed "like work" with 2 named male comparators of a different nationality in accordance with section 7(1) of the Acts. Complaints of discriminatory treatment in relation to conditions of employment and discriminatory dismissal were withdrawn at the hearing.
1.2 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 19th October 2011 alleging that the respondent discriminated against him contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case on 21st of February, 2013 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. A written submission was received from the complainant on the 30th January 2012 and 4th March 2013 and from the respondent on the12th March 2012. A hearing was held on the 8th March 2013 and final correspondence in the matter was received 30th April 2013.
2 Summary of the Complainant's case
2.1 The complainant is a Polish national and he states that he was employed by the respondent as a cabinet maker/ production operative and a mobile assembler / fitter. He commenced work on the 11th of June 2010 and his employment terminated on the 25th of June 2011. The complainant said that the respondent was involved in the making and fitting of wardrobes and kitchens and he was employed at first as a general operative in the work shop. There were about 5 people working in the workshop. He is claiming equal pay with two Irish employees. He said that he had no experience in the work being carried out but he was trained for two weeks by the other employees on the floor in the assembly of the units which were made in the workshop. After about two months he was shown how to work the saw and he then started doing this work also. He worked alongside Mr A and they both did the same work measuring cutting and assembling wardrobes. He said that Mr. A was working in the company for two years and was paid €480 per week whereas he was paid €350 per week. The complainant states that he is entitled to the same rate of pay as Mr. A.
2.2 The complainant is also claiming equal pay with Mr. B who is Irish. He states that he was paid €350 while Mr. B was paid €600 per week and they were both doing the same work. He said that Mr. B was employed about a month after him and he got the same training as he got in the beginning and he also did the same work as he did. Mr. B was trained as a fitter and he went out on site fitting wardrobes and kitchens. He denied that Mr. B could do more jobs than he could do. He said that he was also trained in fitting wardrobes and he could go out to clients and fit wardrobes on his own, but on occasions he worked with Mr. B doing this work. He said that he was the only employee who could drive a forklift. He is claiming equal pay with Mr. B.
3. Respondents case
3.1 The respondent company is in liquidation and the liquidator attended the hearing. A submission was received from the company prior to the liquidation and the liquidator also produced documents and a statement from the former management of the company following the hearing of the case. It was submitted that the complainant was employed as a general operative on the 11th of June 2010 and his average weekly wage was €350 per week. He was made redundant on the 17th of June 2011 along with 3 other employees. It was accepted that the complainant was not paid the same as the named comparators because he was not a trained furniture maker or fitter. He was expected to assist the qualified personnel and to drive a fork lift as required.
3.2 It was submitted that Mr. A was employed as a production operative on the 10th July 2009. He is a qualified cabinet maker and he worked mostly in the production workshop making the cabinets which were fitted by other employees. Mr. B. was employed on the 14th February 2011 as a cabinet maker and fitter. He is a qualified cabinet maker in both kitchen and bedroom furniture. He did a 4 year apprenticeship and has in all up to 8 years experience in making and fitting this furniture. It was submitted that the complainant was a general operative and had no experience when he was employed. His role was general factory duty and on occasion he assisted the qualified fitter to load up the materials at the factory and accompanied him to the client but he never fitted a wardrobe on his own. He was not qualified to do so.
4. Conclusions of the Equality Officer
4.1 In this case, I must consider the complainant's claim that the respondent discriminated against him on the race ground in terms of section 7(1) of the Employment Equality Acts, in contravention of section 29(1) of the Acts in relation to equal pay. I must also decide if the complainant was engaged in like work under section 7 of the Acts with two named comparators and entitled to equal pay in accordance with section 29 of the Acts.
Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. The complainant submitted evidence of his pay and that of his named comparators. He contends that he performs "like work" with the two named comparators of a different nationality to him in terms of section 7(1) of the Acts.
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".
4.2 The existence of "like work" between a complainant and a named comparator is required to establish any entitlement to equal pay under the Acts. Therefore, I will first examine whether "like work" exists. It was accepted by both parties at the hearing that a jobs inspection was not possible because the respondent company was in liquidation. For the purpose of establishing whether there was like work, it was agreed I could make the decision on this aspect of the complaint on the basis of the submissions, the evidence presented and the follow up submissions.
4.3 Like work is defined in Section 7 of the 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 are of small importance in relation to the work as a whole or occur with 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 regards to such matters as skill, physical or mental requirements responsibility and working conditions
4.4 In order to see whether or not the work of the complainant and the named comparators in their various roles is equal in value as per Section 7(1) (c), I will examine same under the headings of skill, physical or mental requirements, responsibility and working conditions. As the complainant has also claimed "like work" within the meaning of Section 7 (1) (a) and (b), I will also consider whether each of roles constitutes like work as per those subsections.
4.5 Comparison of work performed by the complainant and the comparators
The complainants own job description is set out above at paragraph 2.1 and 2.2. The respondent's job descriptions of the complainant and comparator are set out above at 3.1 and 3.2.
4.6 Skill:
I am of the view in this case that the skills required by the complainant are not equal to those required by the comparators. The complainant was recruited as a general operative and on his own evidence he had no experience as a cabinet maker or fitter prior this. Any skills he obtained in this regard were learned on the job, whereas the comparators had both done apprenticeships. Mr. A was a qualified cabinet maker with 2 years experience working with the respondent and Mr. B. was a qualified carpenter/cabinet maker who had 7 to 8 years experience before he joined the respondent company. While the complainant had a fork lift driving skill which the comparators did not have, I am satisfied that the level of skill required of the comparators was much higher than that required of the complainant. For these reasons, I am satisfied that the skill required from the complainant was not equal to that required of the comparators.
Physical or Mental Requirements:
Similar levels of physical effort were required of both the complainant and comparators in relation to lifting the cabinets and loading and unloading them from the delivery truck. In relation to mental requirements, I am satisfied a higher level of mental effort was required of the comparators in relation to ensuring that the measurements of the cabinets were correct and that they were made in accordance with the specifications and that they were fitted properly. Any of the work the complainant did in relation to the making or fitting of the cabinets was done under the supervision of the comparators. I find therefore, that the mental requirements made on the complainant were not equal to those made on the comparators.
Responsibility:
The complainant had never any responsibility for the making or the fitting of the cabinets by himself; he only carried out his work under the supervision of other employees including the comparators. Therefore I find the comparators had higher levels of responsibility than the complainant.
Working Conditions:
The working conditions were similar for both the complainant and the comparators. They all worked 39 hours per week and a 5 day week. I am satisfied that the complainant's working conditions were equal to those of the comparators.
Therefore I consider that the demands made on the named Irish comparators in terms of the level of skill, mental requirements, responsibility were greater than those made on the complainant and the demands made in respect of working conditions were the same. Consequently, I find that the complainant did not perform 'like work' with a named comparators in terms of Section 7(1)(c) of the Acts.
4.7 In relation to Section 7(1)(a) and (b) I also find that all work done by the complainant and comparators was not similar in nature and interchangeable. Therefore, I find that the complainant did not carry out "like work" within the meaning of Section 7 (1) (a) and (b) of the Acts.
5. Decision
5.1 I have concluded my investigation of the complaint and I hereby make the following decision in accordance with Section 79(6) of the Act. I find that
(i) The complainant was not engaged in "like work" with the named comparators in terms of Section 7(1)(a), (b) and (c) of the Acts and therefore he is not entitled to the same rate of remuneration as the comparators in accordance with Section 29 of the Acts.
__________________________
Marian Duffy
Equality Officer
17th May 2013