EQUALITY OFFICER'S DECISION NO: DEC-E/2013/052
PARTIES
GUBKAUSKAS
(REPRESENTED BY RICHARD GROGAN AND ASSOCIATES - SOLICITORS)
AND
MONAGHAN MUSHROOMS LTD
(REPRESENTED BY WILKIE & FLANAGAN - SOLICITORS)
File No: EE/2009/755
Date of issue May, 2013
Headnotes: Employment Equality Acts 1998- 2008 - sections 6,7, 8, 29 and 74 - race- equal pay- equal treatment - dismissal - victimisation - like work - grounds other than-
1. DISPUTE
This dispute involves a complaint by Mr. Paulius Gubkauskas, who is a Lithuanian national, that he was (i) discriminated against by Monaghan Mushrooms Ltd (hereafter called " the respondent") in respect of his conditions of employment, training and promotion/regrading on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts, (ii) dismissed by the respondent in circumstances amounting to discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts, (iii) dismissed by the respondent in circumstances amounting to victimisation contrary to section 74(2) of the Employment Equality Acts, 1998-2008. The complainant also contends that he performs "like work" in terms of section 7 of the Employment Equality Acts, 1998-2008 with a named Irish comparator and he is therefore entitled to the same rate of remuneration as paid by the respondent to that comparator in accordance with section 29 of those Acts. The respondent rejects the complainant's allegations of discrimination and dismissal. It further rejects the assertion that the complainant performs "like work" with the comparator in terms of section 7 of the Acts and notwithstanding this states that there are factors unconnected with the nationality of the parties involved which render the rates of remuneration paid to them lawful in terms of section 29(5) of the Acts.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent on 30 June, 2008. He states that he was employed as a Quality Controller with the respondent until he was dismissed by the respondent on 4 September, 2009. He contends that during his period of employment he was treated less favourably than an Irish employee as regards his conditions of employment - weekend shifts and holiday entitlements - and that this amounts to discrimination on grounds of race (Lithuanian nationality) contrary to the Acts. He further contends that when he spoke with a senior manager about this treatment of him and about his rate of pay he was dismissed within a week. The complainant contends that this amounts to discriminatory dismissal (on grounds of race - Lithuanian nationality) and/or victimisatory dismissal of him contrary to the Acts. The complainant further contends that he performs "like work" in terms of section 7 of the Employment Equality Acts, 1998-2008 with a named Irish comparator and he is therefore entitled to the same rate of remuneration as paid by the respondent to that comparator in accordance with section 29 of those Acts. The respondent rejects the complainant's assertions in their entirety.
2.2 The complainant's representative referred a complaint on his client's behalf under the Employment Equality Acts, 1998 - 2008 to the Equality Tribunal on 12 October, 2009. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 26 October, 2011 - the date it was delegated to me. A Hearing on the complaint took place on 2 November, 2011. Certain issues in respect of the equal pay element of the complaint were clarified at this Hearing. In addition the complainant's representative withdrew those elements of the complaint connected with training and promotion/regrading. Work Inspections and a Final Hearing took place on 2 April, 2012. A small number of points arose at the Hearing which required further clarification and gave rise to further correspondence between the Equality Officer and the parties. This process concluded in late May, 2012.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that he commenced employment with the respondent as a Quality Controller on 30 June, 2008. He further states that his rate of pay at the outset was €8.75 per hour and that this increased to €10.26 per hour from 19 September, 2008 and remained at that rate until the end of his employment. The complainant contends that he performed "like work" in terms of all subsection of section 7 of the Employment Equality Acts, 1998-2008 for the full period of his employment with a named Irish comparator (Mr. S) and he is therefore entitled to the same rate of remuneration as paid to that comparator by the respondent in accordance with section 29 of the Acts.
3.2 The complainant states that he was required to work on days over the weekend (Saturday/Sunday) during the entire period of his employment. He states that the Irish Quality Controller (Mr. S - who is also his comparator for the equal pay claim) did not have to work weekends and submits that this amounts to less favourable treatment of him on grounds of race. The complainant adds that weekend work was part of the normal working week - he got no additional remuneration for it. He also states that there were 7/8 other Quality Controllers - Latvian, Lithuanian, Polish and Irish employed by the respondent at the same time as him. He adds that Quality Controllers worked in pairs and that these employees worked weekend shifts too. The complainant states that he raised this matter and questioned why he was receiving a lower rate of pay to Mr. S with his Manager (Ms. J) a week before he was dismissed. He further states she replied that he (Mr. S) had worked there longer than him and she merely told him "to return to work". The complainant adds that he told her he would talk with other Quality Controllers about these matters and a week later he was dismissed.
3.3 The complainant states that he was told by Ms. J and other Managers (he was unable to provide details of these) that he was not permitted to take annual leave over the Christmas period 2008. He adds that he did not therefore apply for annual leave during that period. The complainant was unable to say whether other employees, including Mr. S, were allowed take annual leave during the period in question. The complainant accepts that he was off for a number of days over the Christmas period but states he was not rostered on duty for these days - his understanding was that he was unable to apply for leave at all and that the only time off he could avail of was in respect of the days he wasn't rostered. It is submitted on behalf of the complainant that this amounts to less favourable treatment of him on grounds of race contrary to the Acts.
3.4 The complainant states that when he reported for work on 4 September, 2009 he was instructed to report to the office of Mr. L (the respondent's Group Production Manager). He adds that Mr. L informed him his employment was being terminated and that he could appeal this decision if he wished. The complainant states that the reason he was given for his dismissal was that he had received two warnings under the respondent's Disciplinary Policy over the previous few days for performance related issues - errors in labelling products. The complainant states that Mr. S had made similar errors and had not been disciplined but he was unable to provide any further details in support of this assertion. The complainant states that he did not receive the respondent's letter of 31 July, 2009 requiring him to attend a Disciplinary Hearing on 4 August, 2009 and that this meeting never occurred. He adds that the first time he was requested to attend a Disciplinary Hearing was Ms. Q's letter of 27 August, 2009 requiring him to attend on 1 September, 2009.The complainant accepts that he had been Counselled under the Disciplinary Policy sometime in the past due to errors in labelling and a failure to move product to a chilled area, but states that no formal warning issued to him.
3.5 The complainant states that he appealed the decision to terminate his employment but the decision to dismiss him was upheld by Mr. W (the respondent's Chief Operations Officer) and this was communicated to him in writing on 25 September, 2009. It is submitted on the complainant's behalf that he was dismissed without proper reason or procedure and that this amounts to a discriminatory dismissal on grounds of race contrary to the Acts. In the alternative, it is submitted on behalf of the complainant that the dismissal amounts to victimisation in terms of section 74(2) of the Acts. In this regard it is submitted that there is a direct nexus between the application of the Disciplinary Code to complainant (and ultimately his dismissal) and the conversation the complainant had with Ms. J about (i) the difference in remuneration between him and Mr. S and (ii) the fact that he (Mr. S) did not work at weekends.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions in their entirety. It accepts the employment dates and hourly rates of remuneration as submitted by the complainant. It further accepts that Mr. S received a higher hourly rate of remuneration than the complainant but states that the comparator's rate of remuneration is "red circled" on foot of negotiations between the respondent and the relevant trade union in 2004 which were facilitated by the Conciliation Services of the Labour Relations Commission. It adds that as a result of this process the comparator, who commenced employment with the respondent in February, 2002, retained his hourly rate of remuneration and staff who commenced employment after August, 2004 received a new lower composite hourly rate. The respondent adds that the Agreement also applied to other terms (breaks, access to sick pay and allowances) in respect of existing employees in August, 2004 which were not available to employees recruited after that time. It states that the pre-August, 2004 terms applied to staff engaged prior to that date on a "red circled" basis regardless of nationality. It adds that similarly, the composite rates and terms applied to all staff recruited after that date regardless of nationality and were only increased in accordance with national wage agreements etc.
4.2 Notwithstanding the above arguments, the respondent rejects the contention that the complainant and Mr. S performed "like work" in terms of section 7 of the Acts. It states that due to Mr. S's experience and competence gained as a Quality Controller (when employed by the respondent and in his previous employments) he assumed more responsibility when performing his tasks during a shift. The respondent states that staff would raise queries with him before addressing the issue with a Manager given his experience. It adds that as a result of this Mr. S was given the night shifts as these were the most demanding shifts during which the potential for financial loss is highest and that he was in fact the night shift Supervisor.
4.3 The respondent states that rosters are prepared by the Senior Quality Controller every week. It adds that the factory operates on 24/7 basis and rosters require the attendance of six Quality Controllers each day - three teams of two over the twenty-four hour period. The respondent states that Mr. S works night shifts- generally Monday-Thursday and that every effort is made to ensure that weekend shifts are divided out amongst staff. The respondent accepts it is possible that the complainant worked a significant amount of weekends but states that if that is the case it is coincidental and has nothing to do with his nationality. It adds that the complainant was treated in the same manner as other Quality Controllers who are Lithuanian, Latvian, Polish and Irish and furnished details of the shifts for each for the entire period of the complainant's employment.
4.4 The respondent (Ms. J) rejects the assertion that the complainant was informed he would not be permitted to take annual leave over the Christmas period in 2008. It adds that no formal policy for granting annual leave exists although regard would be had to seniority if necessary. However, the respondent (Ms. D from HR) could not recall this being an issue in the past. The respondent states that leave has to be applied for in advance on an official form and that Mr. S formally applied for three days off over the Christmas period on 7 November, 2008. The respondent provided a copy of this application form and copies of forms in respect of other employees, including the complainant (in relation to other periods of annual leave). It adds that none of the other Quality Controllers requested annual leave over the Christmas period and that all of them were rostered both on and off between 24 December, 2008 and 2 January, 2009. The respondent submits that the roster over the Christmas period was arranged in a fair manner having regard to the needs of the company and that it does not amount to less favourable treatment of the complainant on grounds of race contrary to the Acts.
4.5 The respondent accepts that it dismissed the complainant but rejects the assertion that it amounts to either discrimination on grounds of race or victimisation contrary to the Acts. It states that he was dismissed as a consequence of poor performance which was raised through the Disciplinary Procedure. Moreover, it rejects the complainant's assertion that he raised any grievance with Ms. J about his rate of pay in the week prior to his dismissal. It states that the complainant was counselled under it Disciplinary Policy in late May, 2009 (along with a colleague) in respect of labelling errors but that no sanction ensued. It adds that the complainant was requested (by letter dated 31 July, 2009) to attend a Disciplinary Hearing on 4 August, 2009 but accepted at the Hearing that it was possible this meeting did not take place as there is no record of same on its files. The respondent states that the complainant attended separate Disciplinary Meetings on 1 September, 2009 and 4 September, 2009, both in connection with labelling errors. It adds that there are significant cost implications for it when labelling errors occur given the client base it serves and the lifespan and perishable nature of the product. The respondent states that following the Disciplinary Hearing on 1 September, 2009 the complaint received a First Written Warning under its Disciplinary Policy. It adds that after the Disciplinary Hearing on 4 September, 2009 it was decided by Mr. L (the respondent's Group Production Manager) that the actions of the complainant in failing to detect a labelling error amounted to Gross Misconduct and it was decided to terminate his employment with immediate effect. The respondent states that the complainant was advised he could appeal this decision and did so. It adds that the Appeals Process was conducted by Mr. W (the respondent's Chief Operations Officer) and he upheld the decision to dismiss. The respondent further states that it applies the Disciplinary Policy on a regular, fair and even-handed manner. It states that quality control is an important element on its production line and is one which is takes extremely seriously. It furnished the Tribunal with documentation applying the Disciplinary Policy to other employees, including Mr. S, and submits that this demonstrates the complainant's nationality had no bearing on it decision to apply the Disciplinary Process to him and ultimately terminate his employment.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are whether or not (i) the complainant was discriminated against by the respondent in respect of his conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts, (ii) the complainant was dismissed by the respondent in circumstances amounting to discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts, (iii) the complainant was dismissed by the respondent in circumstances amounting to victimisation contrary to section 74(2) of the Employment Equality Acts, 1998-2008 and (iv) whether or not the complainant performs "like work" in terms of section 7 of the Employment Equality Acts, 1998-2008 with a named Irish comparator and he is therefore entitled to the same rate of remuneration as paid by the respondent to that comparator in accordance with section 29 of those Acts. 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.
5.2 Section 85A of the Employment Equality Acts 1998- 2008 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of him his case cannot succeed.
5.3 I propose to deal with the complainant's equal pay claim first. Section 7(1) of the Employment Equality Acts, 1998-2008 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 Appendix A sets out my job descriptions of the complainant and comparator on foot of the Work Inspection. Appendices B and C respectively set out (i) my analysis of the respective roles of the complainant and the comparator 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 the comparator 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 the named comparator.
5.5 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 the comparator
5.6 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 the named comparator.
5.7 In the normal course this would be the end of the complainant's equal pay claim. However, the respondent submitted, (albeit late in the investigation and after Work Inspections had been scheduled) notwithstanding its arguments the complainant and the named comparator did not perform "like work" in terms of section 7 of the Acts, that there were grounds unconnected with the nationality of the complainant and comparator which rendered the rates of remuneration paid to each lawful in accordance with section 29(5) of the Acts. As the matter has been argued before me I have decided to address it for completeness and for ease of the parties and the Labour Court in terms of any appeal to the Court. The essence of the respondent's arguments on this matter is that the comparator's (higher) rate of remuneration is "red circled" on foot of a restructuring process and consequential negotiations between it and the relevant trade union in 2004, which were facilitated by the Conciliation Services of the Labour Relations Commission. It adds that as a result of this process the comparator, who commenced employment with the respondent in February, 2002, retained his hourly rate of remuneration and staff who commenced employment after August, 2004, including the complainant, received a new lower composite hourly rate.
5.8 The term "red circling" does not appear in the legislation and it is a phrase frequently used in industrial relations. It has been accepted in the past as a defence justifying different rates of remuneration between men and women under equality legislation1. In Irish Crown Cork Co. v Desmond and others2 Lynch J commented "that the term 'red circling'.... can mean different things to different people" and went on to state that what must be considered in the context of section 2(3) of the Anti-Discrimination (Pay) Act, 1974 (which is now section 19(5) of the Employment Equality Acts, 1998-2008) "is whether the difference in the rates of pay between the claimant and the defendants is or is not genuinely attributable to grounds other than sex.". Whilst these authorities refer to the ground of gender under the legislation which preceded the current employment equality legislation they apply equally to the additional discriminatory grounds provided in that legislation. As section 29(5) of the Employment Equality Acts, 1998-2008 provides an absolute defence to the respondent it must satisfy me that the difference in the rates of remuneration paid to the complainant and comparator is genuinely attributable to grounds other than race.
5.9 The respondent furnished the Tribunal with an array of documentation dated from late 2003/early 2004 which sets out the negotiations between the respondent and the relevant trade union at that time. From perusal of this documentation it is clear that these discussions initially yielded little by way of agreement and the Conciliation Service of the Labour Relations Commission became involved on 8 January, 2004. Following a conciliation conference on that date further negotiations at local level occurred from which revised proposals emerged. These revised proposals provided for the elimination of overtime payments, compensation for future loss of earnings in that regard for existing employees, red-circling of certain rates of pay and conditions of employment for existing employees and the introduction of a new composite rate of pay for employees recruited after a certain date. A second conciliation conference took place on 18 August, 2004 and the revised proposals were recommended for acceptance by the Industrial Relation's Officer of the Conciliation Service. Both parties agreed same and the terms were introduced by the respondent immediately. I am satisfied (again on the basis of the documentation submitted) that the respondent applied this (lower) composite rate of pay to all Quality Controllers recruited after August, 2004 irrespective of nationality. In light of the foregoing I find that there are grounds unconnected with the grounds of race which render the rates of remuneration paid to the complainant and the comparator lawful in terms of section 29(5) of the Employment Equality Acts, 1998-2008.
5.10 I shall now look at the equal treatment part of the complainant's case. The complainant states that he was required to work on days over the weekend (Saturday/Sunday) during the entire period of his employment. He states that Mr. S (who is Irish) did not have to work weekends and submits that this amounts to less favourable treatment of him on grounds of race - his Lithuanian nationality. The respondent furnished the Tribunal with details of the rosters for all of the Quality Controllers in the Packhouse Area for the full duration of the complainant's employment. From perusal of this documentation it appears that Mr. S only worked on Saturday or Sunday on eight occasions during this period. It is common case that Mr. S worked nights only and I accept the respondent's evidence that it considered Monday-Thursday to be the busiest nights and in that regard it suited all concerned that Mr. S work those evenings and this had been the case for some time. From perusal of the rosters it appears that during his employment with the respondent the complainant worked on twenty-nine occasions when he was rostered on both Saturday and Sunday in the same weekend, fourteen occasions where he worked either Saturday or Sunday and fourteen occasions when he worked neither day. This attendance pattern is similar to that of the other Quality Controllers (excluding Mr. S) employed by the respondent at various times over that period. These employees are Lithuanian, Latvian, Polish and Irish. I have given careful consideration to the evidence advanced by both parties on this issue and I am not satisfied that the complainant has established facts from which it could be inferred that he was treated less favourably on the basis of his Lithuanian nationality in respect of this element of his complaint and it fails.
5.11 The next part of the complainant's case refers to his assertion that he was told by Ms. J and other Managers (he was unable to provide details of these) that he was not permitted to take annual leave over the Christmas period 2008 and consequently he did not apply for same. He states that Mr. S was permitted to take leave over that period and that this amounts to less favourable treatment of him on grounds of race contrary to the Acts. The respondent (Ms. J) emphatically rejects this assertion. The respondent operates a fairly informal process as regards annual leave although requests for same must be made in writing on a Holiday Request Form as early as possible to ensure adequate cover on the roster. The respondent accepts that Mr. S applied for and was granted three days' annual leave between 24 December, 2008 and Friday 2 January, 2009 - which comprises nine working days - and states that he had applied for this in writing on 7 November, 2008. I am satisfied that the complainant was aware of the process as regards applying for annual leave - he had completed the relevant Request Form the previous August. The complainant was unable to furnish details (other than Ms. J) as to the identity of the Managers who informed him he could not take annual leave that Christmas or when those comments were made.
5.12 I have examined the rosters in respect the Quality Controllers for the period in question and I am satisfied that Mr. S was the only member of that group who was on annual leave at that time - he obtained three days. Consequently, when his normal rostered attendance pattern is added he only worked two days out of the nine working days over the period. The complainant worked five days out of nine. Of the remaining eight Quality Controllers two worked three days, two worked four days, two worked six days and two worked seven days out of the nine. These employees were Latvian, Lithuanian, Polish and Irish nationals. In addition, during the period there were only five days when the full complement of Quality Controllers were on duty. On the other four occasions there were five Quality Controllers on duty two of the days and four on each of the remaining two. Moreover, in several cases they worked times which were not standard shifts. In light of the foregoing I am satisfied that there was some flexibility facilitated by the respondent as regards staff and rosters over the period and the complainant's evidence is inconsistent with the recorded situation. Having carefully considered the evidence adduced by the parties I find that the complainant has failed to establish a prima facie case of discrimination and this element of his complaint cannot therefore succeed.
5.13 The final element of the complainant's case refers to his dismissal. It is submitted on his behalf that he was dismissed in circumstances amounting to discrimination on grounds of race contrary to the Acts or in the alternative victimisation contrary to the Acts. The respondent accepts that it dismissed the complainant but rejects that it amounts to discrimination or victimisation contrary to the Acts and states that he was dismissed as a consequence of poor performance which was raised through its Disciplinary Procedure. The respondent furnished the Tribunal with a considerable amount of documentation and there was a level of confusion as to when the complainant attended meetings with the respondent in respect of his performance. However, from examination of this documentation I am satisfied that the complainant attended meetings with Management regarding performance related issues on three separate occasions during 2009 - 21 May, 2009, 3 September, 2009 and 4 September, 2009. All three meetings related to alleged labelling errors by the complainant. I accept the respondent's statement that labelling errors can give rise to significant financial loss to it either by way of penalties (provided for in terms of contracts with customers) or by way of product rejection and returns by customers. I further accept that in seeking to keep such loss to a minimum it operates rigorous checks on the labelling process. In the course of the Hearing the complainant accepted that this was the case. He further accepted that on the three occasions mentioned above he had been involved in labelling errors. The complainant argues that Ms. S made similar errors and was not subjected to the respondent's Disciplinary Policy, but he was unable to provide any further details in support of this assertion.
5.14 On examination of the documentation furnished by the respondent (referred to in the previous paragraph) I am satisfied that Mr. S had previously been subjected to the Disciplinary Policy for labelling errors. I am further satisfied that the policy was applied to several other employees for similar issues, before, during and after the complainant's employment with the respondent. These employees were Latvian, Lithuanian and Polish. The respondent's Disciplinary Policy includes "serious neglect causing unacceptable loss, damage or injury" within the definition of "Gross Misconduct". The complainant was involved in two incidents in quick succession in late August/early September, 2009 where labelling errors occurred. I am satisfied that whilst the incidents did not result in the respondent suffering loss, they had the potential to do so. I am further satisfied that the respondent reacted in its normal manner when presented with such circumstances and invoked its Disciplinary Policy against him. As a result he attended disciplinary meetings on 3 and 4 September, 2009. Following the first of these meetings the company decided to issue him with a First Written Warning. Following the second meeting the respondent decided to dismiss him with immediate effect.
5.15 It is submitted on the complainant's behalf that the respondent failed to follow fair procedure in dismissing the complainant and that it would not have acted in a similar manner if an Irish employee had being involved. Whilst it could be argued that there were certain procedural defects in the process operated by the respondent which could fall foul of the standards of fairness required under the unfair dismissals legislation3, an employer's failure to apply fair procedures is not, of itself, sufficient to discharge the initial probative burden required of the complainant. In Mulleadys Ltd v Gedrimas4 the Labour Court stated that "The Court has dealt with many cases where employers are accused of dismissing workers without resorting to the appropriate disciplinary procedures and such cases are by no means confined to workers whose national origin is outside Ireland." and I accept this proposition. Moreover, the issue before this Tribunal is that the complainant was dismissed on grounds of race, in particular his Lithuanian nationality. However, the complainant merely asserts that his dismissal was based on this characteristic. In Melbury Developments v Arturs Valpetters5 the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are 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". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule". Having carefully considered the evidence adduced by the parties on this matter I find that the complainant has failed to establish a prima facie case that he was dismissed in circumstances amounting to discrimination on grounds of race contrary to the Acts.
5.16 The complainant was afforded the opportunity to appeal the decision to dismiss him to the respondent's Chief Operations Officer and did so. The appeal meeting took place on 17 September, 2009 and the original decision to dismiss him was upheld. The respondent furnished copies of the minutes of this meeting and the complainant took no issue with same. I have examined these minutes and I am satisfied that there is nothing in them which could remotely support the assertion that the complainant's nationality was a factor which influenced the decision. The complainant did not adduce a shred of evidence in support of his assertion that this process was tainted by discrimination on grounds of race. Consequently, the complainant has failed to discharge the initial probative burden required of him and this element of his complaint fails.
5.17 It is submitted on behalf of the complainant, in the alternative to discriminatory dismissal, that the respondent terminated his employment in circumstances amounting to victimisation in terms of section 74(2) of the Employment Equality Acts, 1998-2008. Section 74(2) of the Employment Equality Acts, 1998-2007 defines victimisation as follows:
"For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to -
(a) a complaint of discrimination made by an employee to the employer.............
(f) an employee having opposed by lawful means and act which is unlawful under this Act.......
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs"
5.18 In Tom Barrett v Department of Defence6 the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have take action of a type referred to at paragraphs (a)-(g) of section 74(2) - what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant. In the course of the Hearing in the instant case the complainant was asked to identify what protected act he had taken and his representative replied that he was relying on the conversation he had with Ms. J concerning the difference in remuneration between him and Mr. S and (ii) the fact that he (Mr. S) did not work at weekends. The respondent (Ms. J) rejects the assertion that this discussion took place however, on balance, I am satisfied that such a discussion did occur. The complainant's representative did not clarify which paragraph of section 74(2) the complainant was relying on but in light of the response set out above to the previous question it must fall within paragraphs (a), (f) or (g) of that provision. The complainant adduced no evidence that when he related his grievance to Ms. J he informed her it was in any way related to his nationality. Rather it was more in the form of a general complaint of unfair treatment. I therefore find that the complainant's actions do not amount to a protected act as set out by the Labour Court in the Barrett determination and his complaint that he was dismissed in circumstances amounting to victimisation contrary to the Acts cannot succeed.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of these complaints and in accordance with section 79(6) of the Employment Equality Acts, 1998-2011 I issue the following decision. I find that -
(i) the complainant has failed to establish a prima facie case of discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts in respect of his conditions of employment,
(ii) the complainant has failed to establish a prima facie case that he was dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts,
(iii) the complainant has failed to establish a prima facie case that he was dismissed in circumstances amounting to victimisation contrary to section 74(2) of the Employment Equality Acts, 1998 - 2008,
(iv) the complainant does not perform like work, in terms of section 7 of the Employment Equality Acts, 1998-2008 with a named comparator and he is not therefore entitled to the same rate of remuneration as paid by the respondent to that comparator in accordance with section 29 of those Acts,
(v) the respondent has established that there are grounds other than race for the difference in the rates of remuneration paid by it to the complainant and comparator and those rates of remuneration are therefore lawful pursuant to section 29(5) of the Employment Equality Acts, 1998-2008.
_______________________________________
Vivian Jackson
Equality Officer
28 May, 2013
1 Roches Stores v Mandate DEP3/2001 and Madden V Aer Lingus DEC-E2002/07
2 [1983] ELR 180
3 See in particular UD197/2011
4 EDA 092
5 EDA 0917
6 EDA1017
APPENDIX A
EQUALITY OFFICER'S JOB DESCRIPTIONS
IN RESPECT OF THE COMPLAINANT AND COMPARATOR
ON FOOT OF WORK INSPECTIONS
Job Holder: Paulius Gubkauskas
Job Title: Quality Controller
Reports to: Shift Supervisor or Quality Assurance Manager
No. of Staff: None
Rate of Pay €10.26 per hour. The complainant does not receive overtime rates.
Hours of Work: 7:30am - 8pm (Day Shift) or 8pm - 8am (Night Shift) rostered five days out of seven
General Safety
The complainant has no specific staff supervision role but is responsible for ensuring that staff on the Production Line observe hygiene and health and safety requirements at the start of each shift. In the event he notices any non-compliance issues he informs the Shift Supervisor who deals with the matter. Moreover he is responsible for ensuring that general health and safety requirements on the Production Line are observed and non-compliance issues reported to the Shift Supervisor. These issues are not regular occurrences however.
Process and Product Inspections
There are eight automated Production Lines in the Packhouse Area. One of these is the "bulkline" which accommodates heavier and larger punnets of mushrooms - weighting 2kg. The others Production Lines accommodate smaller punnets. The bulkline is overseen by one Quality Controller and the other seven production lines are overseen by two Quality controllers working as a team. The Supervisor is responsible for inputting the order details into the computer - weight, dates, temperature and customer - at the beginning of each order run. The complainant checks same from details of the product run from a notice board located close to the machines. Operatives place the correct punnets and product on the machine lines and the process automatically weighs the correct amount of product and places them in the punnets. The filled punnets then move along the line and are routed through a metal detector. The complainant is responsible for removing any product that sets the metal detector off. He records details of this product on a particular form, removes the product to a particular area and advises the Supervisor in due course.
The complainant closely observes the punnets passing along the line. He is continuously checking the product for quality, primarily by observing the colour of the product but sometimes by touch and smell. Any substandard product is removed and recorded as above. The punnets then pass through another area of the machine which sealed them with transparent cling wrap and places a label of them. The individual packed product is then packed into plastic containers by Operatives at the end of the line. These plastic containers are then placed on pallets for transmission to the dispatch area. The complainant takes a number of these plastic containers at random (usually one from the top, middle and bottom of the pile) and checks three/six of the punnets therein for consistency in size and quality, having regard to the type of product involved, that the packaging is airtight and the weight correct. Again any rejects are removed and recorded and reported in due course.
The complainant checks the temperature of the product in the crates stacked on the pallets by inserting an electronic temperature probe into the crates at three/four different locations on the stacked pallets. The complainant must ensure that the temperature falls within the acceptable range of the temperature on the labels (which were initially inputted by the Supervisor at the start of the run). The complainant knows the scale of acceptable range - but they are recorded on the notice board located nearby in any event - as they differ depending on the customer and distance the product has to travel. If the temperature is acceptable the complainant approves the product for dispatch to the customer. The pallets are covered with heavy duty plastic, the complainant places the relevant label on it and the pallet is moved to the dispatch area - these labels will have been generated by the Supervisor at the outset. If there is a problem with the temperature the complainant reports the matter to the Supervisor. The Supervisor will decide whether or not the product should go to dispatch or be removed to a special refrigerated area to enable the temperature fall within the acceptable range. The complainant will return to the refrigerated area periodically to check the correct product temperature has been achieved and when he is satisfied that this is the case he will release the pallet to dispatch.
Throughout the course of each particular product run the Quality Controller is responsible for ensuring the accuracy of the order by checking the labels at the start and finish of the run. If there is a problem with the labels the complainant stops the line and reports same to the Supervisor. The labels are corrected and the line re-run. The details on the labels must be verified and recorded in the label verification book. Consequently, the complainant asks the other Quality Controller on shift to counter sign the label verification process to ensure it is correct in all respects and vice versa. This is particularly important as errors in weight, product or temperature can result in significant financial loss for the respondent should the customer reject the product.
The complainant performs a similar operation on the bulkline. He states that he works on the bulkline one/twice per week. The process is identical save the weight of the punnets on the ordinary lines.
General
The complainant checks the lights on the automatic doors between the Production Area, the Dispatch area and the Refrigerated Holding Area each week and records they are fully operational and in order. If there is a problem he reports the matter to the Supervisor. The complainant also ensures (at the start and end of each shift) that the two knives located on the wall near the Production Line are securely chained to the wall and records same.
The complainant has no specific staff supervision responsibilities but provides assistance to staff, in particular new staff, as necessary. He reports all issues to the Shift Supervisor and although he would have sought the assistance of Mr. S on occasion he (the complainant) was never aware he (Mr. S) was regarded as a Senior Quality Controller.
Job Holder: Mr. S
Job Title: Supervisor Quality Controller
Reports to: Quality Assurance Manager
No. of Staff: None
Rate of Pay €13.24 per hour. The comparator does not receive overtime rates
Hours of Work: Sunday-Thursday 8pm-8am.
Note: The comparator was not available to the Equality Officer during the course of the Work Inspection. The comments below are based on responses received from staff and Management who worked with the comparator during the period in question.
Process and Product Inspections
There are eight automated Production Lines in the Packhouse Area. One of these is the "bulkline" which accommodates heavier and larger punnets of mushrooms - weighting 2kg. The others Production Lines accommodate smaller punnets. The bulkline is overseen by one Quality Controller and the other seven production lines are overseen by two Quality controllers working as a team. The Supervisor is responsible for inputting the order details into the computer - weight, dates, temperature and customer - at the beginning of each order run. The comparator checks same from details of the product run from a notice board located close to the machines. Operatives place the correct punnets and product on the machine lines and the process automatically weighs the correct amount of product and places them in the punnets. The filled punnets then move along the line and are routed through a metal detector. The comparator is responsible for removing any product that sets the metal detector off. He records details of this product on a particular form, removes the product to a particular area and advises the Supervisor in due course.
The comparator closely observes the punnets passing along the line. He is continuously checking the product for quality, primarily by observing the colour of the product but sometimes by touch and smell. Any substandard product is removed and recorded as above. The punnets then pass through another area of the machine which sealed them with transparent cling wrap and places a label of them. The individual packed product is then packed into plastic containers by Operatives at the end of the line. These plastic containers are then placed on pallets for transmission to the dispatch area. The comparator takes a number of these plastic containers at random (usually one from the top, middle and bottom of the pile) and checks three/six of the punnets therein for consistency in size and quality, having regard to the type of product involved, that the packaging is airtight and the weight correct. Again any rejects are removed and recorded and reported in due course.
The comparator checks the temperature of the product in the crates stacked on the pallets by inserting an electronic temperature probe into the crates at three/four different locations on the stacked pallets. The complainant must ensure that the temperature falls within the acceptable range of the temperature on the labels (which were initially inputted by the Supervisor at the start of the run). The comparator knows the scale of acceptable range - but they are recorded on the notice board located nearby in any event - as they differ depending on the customer and distance the product has to travel. If the temperature is acceptable the comparator approves the product for dispatch to the customer. The pallets are covered with heavy duty plastic, the comparator places the relevant label on it and the pallet is moved to the dispatch area - these labels will have been generated by the Supervisor at the outset. If there is a problem with the temperature the comparator reports the matter to the Supervisor. The Supervisor will decide whether or not the product should go to dispatch or be removed to a special refrigerated area to enable the temperature fall within the acceptable range. The comparator will return to the refrigerated area periodically to check the correct product temperature has been achieved and when he is satisfied that this is the case he will release the pallet to dispatch.
Throughout the course of each particular product run the Quality Controller is responsible for ensuring the accuracy of the order by checking the labels at the start and finish of the run. If there is a problem with the labels the complainant stops the line and reports same to the Supervisor. The labels are corrected and the line re-run. The details on the labels must be verified and recorded in the label verification book. Consequently, the comparator asks the other Quality Controller on shift to counter sign the label verification process to ensure it is correct in all respects and vice versa. This is particularly important as errors in weight, product or temperature can result in significant financial loss for the respondent should the customer reject the product.
The comparator did not operate on the bulkline.
Supervisor Quality Controller
The respondent states that the comparator was never formally appointed Supervisor Quality Controller but adds that he was de facto performing the functions associated with this position from 2006 onwards. The respondent adds that the night shifts were busier and consequently Mr. S was assigned to these duties exclusively given his knowledge and experience - he had been a Quality Controller since 2002. It adds that the comparator acted as Supervisor for this shift and staff went to him with issues which arose during those shifts and he dealt with them. Moreover, the comparator was used as the conduit by Management to route any issues of general application to staff on the night shift. It further states that if he was unable to deal with the matter he contacted MG. G for assistance. Ms. G states that on the occasions the comparator was not on duty at night she picked up the calls from staff on duty because they did not have the same experience and knowledge as him.
Quality Audits
The comparator was involved in Quality Audits on several occasions during the period under review. These were planned visits by customers to ensure that the respondent was complying with the highest standards in mushroom production. The comparator was involved in providing assistance as necessary but in particular, collating traceability documentation.
Mentoring,
The comparator was never formally appointed as a mentor but the respondent states that he performed this role on a consistent basis from 2006. It states that he assessed all of the Quality Controllers in the Packhouse Area, including the complainant, and reported back to Management. He was always available to staff to assist as necessary and trained staff on new procedures as the need arose and the respondent states that this arose on several occasions during the period of the claim.
Gathering Samples
The comparator was responsible for gathering samples of product for customers from the growing sheds and liaising with Management and external growers about any queries which arose. The respondent states that the comparator was solely responsible for this task from 2004 and that it was a process which was ongoing.
General
The respondent states that it is its practice to conduct trials on new product, punnet shape/size, packaging etc. on the lines during night shifts. It states that the comparator was responsible for overseeing this process and reporting back to Ms. G via the Deputy Quality Assurance Manager (Ms. A) if any matters arose. The respondent states that this occurred, on average, every two months.
APPENDIX B
Analysis of complainant's and comparator's roles
on foot of Work Inspections
SKILL
In performing quality control functions both the complainant and comparator demonstrate significant observation skills on a consistent basis during each shift. This requirement extends from the beginning of the run until the product is certified suitable for dispatch. The comparator further exhibits these skills when performing tasks connected with the Quality Audits, Sample Gathering and Trials.
Both are required to demonstrate numeracy and literacy skills in the course of their tasks as regards temperature control, reject products, accuracy of the various labels which must be checked and the recording of all these details as necessary. The comparator further exhibits these skills when performing tasks connected with the Quality Audits, Sample Gathering and Trials.
Both complainant and comparator display considerable Communication and Interpersonal skills on a daily basis given the considerable interaction they have with colleagues and in the comparators case, with customers and Management.
RESPONSIBILITY
Both the complainant and comparator are responsible for the quality of the product they dispatch. In circumstances where they are satisfied it meets the respondent and customer requirements they can certify the product suitable for dispatch themselves. In the event that there are deviations from these standards they report to Management who ultimately make the decision on dispatch. The comparator is responsible for supervising the night shift Sunday-Thursday and staff revert to him if issues arise on those nights. In this regard I note the complainant accepts that he approached him on a number of occasions when he (the complainant) worked those shifts. The comparator is also responsible for collecting samples for customers, compiling the documentation for Quality Audits and liaising with Management on both of these issues. It is submitted by the respondent that the comparator has a significant role in mentoring and training staff on the night shift and on the basis of the evidence (oral and written) produced by the respondent I am satisfied, on balance, that the comparator performed this role, although perhaps not to the extent the respondent asserts.
MENTAL REQUIREMENTS
Both the complainant and comparator apply considerable attention to detail when performing the functions connected with quality control. They must be constantly vigilant of substandard product and foreign bodies (pieces of metal etc) being present in the product which might ultimately be dispatched to customers. The environment they operate in is hectic and pressurised once the product run commences.
PHYSICAL REQUIREMENTS
There are no real differences in the physical demands of the roles under review. Both must perform general manual handling functions - lifting, pulling, pushing. Shifts require them to be constantly on their feet and moving around the Production Line Area.
WORKING CONDITIONS.
The Packhouse Area is large and open making it susceptible to temperature fluctuation. On the day of the Work Inspection the area was cold. Given the number of machines in operation at any time the area is noisy and requires a person to raise ones voice if the person to who s/he is speaking is not beside them. The comparator in general worked 48 hours per week (4 x 12 hour shifts) - although these were always night shifts. The complainant weekly hours varied - the lowest being 26 hours and the being 55 - although the vast majority of weekly hours fell between 35-45 hours. The complainant worked both night and day shifts.
APPENDIX C
Comparison of complainant and comparator roles
on foot of Work Inspections
SKILL
The complainant and comparator apply the same type and level of skills on a daily basis in the discharge of their duties.
I find that the demands made on the complainant and comparator in terms of skill to be equal
RESPONSIBILITY
The complainant and comparator are responsible for the quality of the product they dispatch. In circumstances where they are satisfied it meets the respondent and customer requirements they can certify the product suitable for dispatch themselves. In the event that there are deviations from these standards they report to Management who ultimately make the decision on dispatch. I am satisfied that that the complainant operates as the night shift Supervisor and assumes the responsibilities that role entails. The complainant has no such role. I am also satisfied that the comparator has responsibilities in respect of Quality Audits and Collecting Samples which the complainant does not have.
I find that the demands made on the comparator in terms of responsibility exceed those placed on the complainant
MENTAL REQUIREMENTS
Both the complainant and comparator apply considerable attention to detail when performing the functions connected with quality control. They must be constantly vigilant of substandard product and foreign bodies (pieces of metal etc) present in the product which might ultimately be dispatched to customers. The environment they operate in is hectic and pressurised once the product run commences.
I find that the mental efforts required of the complainant and comparator to be equal
PHYSICAL REQUIREMENTS
Both the complainant and comparator perform general manual handling functions - lifting, pulling, pushing, bending. Shifts require them to be constantly on their feet and move around the Production Line Area.
I find that the demands made on the complainant and comparators in terms of physical requirements to be equal
WORKING CONDITIONS.
The complainant and comparator perform the vast majority of their functions in the same location. The comparator worked night shifts exclusively but had a number of consecutive days off thereafter. The complainant worked both day and night shifts but his hours fluctuated.
I find that the demands made on the complainant and both comparators in terms of working conditions to be equal