DEC-E2014-089

The Equality Tribunal

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2014-089

PARTIES

Sylwia Patrzylas

(Represented by Will Kelly B.L. instructed by O’Hanrahan and Company Solicitors)

AND

Hudson Killeen Ltd

(Represented by IBEC)

File reference: EE/2011/358

EE/2012/333

Date of issue:17 December 2014

HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 and 8 – Gender, Marital Status, Family Status and Race - Conditions of Employment & Discriminatory Dismissal, Equal Pay.

1.DISPUTE

1.1. This dispute concerns a claim by Ms Sylwia Patrzylas that she was discriminated against by Hudson Killeen Limited on the grounds of gender, marital status, family status and race contrary to section 6 of the Employment Equality Acts in relation to conditions of employment and dismissal in a discriminatory manner contrary to section 8 of the Acts, and that she performed “like work”, in terms of section 7 of the Employment Equality Acts with a named comparator and is entitled to equal remuneration in accordance with section 29 of the Acts.

1.2. The complainant referred her claim to the Director of the Equality Tribunal on 28 March 2011 in relation to conditions of employment and equal pay, and a further claim on the 18 June 2012 in relation to dismissal, under the Employment Equality Acts. On 15 August 2013, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Peter Healy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both parties. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 17 September 2013. Final submissions were received on 13 October 2013. The complaint dropped the ground of marital status at the outset of the hearing and also elements of the complaint relating to getting a job and promotion.

2. COMPLAINANT'S SUBMISSION

2.1. The complainant, a Polish national, commenced employment with the respondent (a commercial print company) as a trainee print finisher on 15 January 2007. She submits that she was paid at a lower rate than a comparable Irish Employee who shared the same job title and performed similar (often easier) work.

2.2. She submits that she was subject to discriminatory treatment in circumstances where her supervisor would structure her duties and tasks in such a way that the complainant’s Irish counterparts were routinely assigned lighter work than non-Irish members of staff.

2.3. Specifically, the complainant submits that she was made to stand for long periods of time loading heavy reams of paper into industrial printing machines and packing finished products into boxes. In contrast she says that Irish members of staff were routinely required to perform light duties which could be performed sitting down, such as folding leaflets. The complainant submits that this caused her to become stressed and tired.

2.4. The complainant submits that in March 2010 she sustained a back injury by reason of the repetitive strain involved in the tasks assigned to her at work. Medical advice at the time indicated that degenerative change was likely and that her condition would probably deteriorate over the following two to three years. The complaint did not advance disability as a ground for consideration by the tribunal.

2.5. In May 2010 the complainant advised the respondent that she was pregnant and requested lighter duties in view of her pregnancy and back problems. She submits that the respondent made no effort to accommodate her and her manager ignored her requests. In May 2010 she had to take a period of sick leave and submits that medical certs indicated her absence from work was due to “ problems with pregnancy”.

2.6. In October 2010 the complainant took another period of sick leave. In November 2010 the complainant’s baby was born prematurely. The complaint submits that her doctor attributed the premature birth to the nature of her work, and that she was required to stand for long hours doing physical tasks.

2.7. In February 2011 the complainant wrote to her supervisor indicating her dissatisfaction with discriminatory work practices and sought assurances from the respondent that the situation whereby she was routinely assigned heavier tasks would cease upon her return to work. A series of correspondence followed culminating in meeting in October 2011, to discuss the complainant’s issues. At that meeting the complainant was informed by senior management that they had investigated her complaints and found nothing to substantiate them. The respondent further stated that the complainant had been treated with the same care and concern applying to all other staff and that her allegations were a source of surprise and hurt to her colleagues.

2.8. A further series of correspondence then followed until in response to a request from the respondent for the complainant to return to work, the complainant sent a resignation E-mail on 30 March 2012. The complainant submits that she has been constructively dismissed in that she could not return to work in these circumstances.

3. RESPONDENT'S SUBMISSION

3.1. The respondent rejects all aspects of the complaint. They submit that its workforce of about 50 employees is comprised of a number of different nationalities. They say that as a small company, senior managers would become aware of unfair work practices if they existed and that it makes no sense for supervisors to discriminate given the varied makeup of the workforce.

3.2. The respondent submits that the complainant began employment in 2007 as a general operative. They submit that the tasks assigned to the complainant were consistent and were no different from those assigned to other employees in the same category. They submit that tasks were assigned according to business needs. They submit that while it may be the case that in particular circumstances tasks would be assigned to individuals who had proven to be more efficient at particular tasks, that this was the exception (limited to busy periods) rather than the norm.

3.3. The respondent disputes the claim that the complainant was involved in heavy duties as no such duties exist.

3.4. The respondent submits that the complainant received the same adequate on the job training as other staff. They also submit that the complainant was accommodated during her pregnancy in that her shift patterns were altered to her advantage.

3.5. The respondent submits that no difference in treatment existed between Irish employees and employees of other nationalities with regards to the division of duties. However, should the complainant have requested a meeting with the respondent to discuss her difficulty in performing her duties, the respondent would have sought to further accommodate the complainant during her pregnancy. The respondent says that no issue relating to this matter was ever raised; subsequently the respondent was not in a position to address the complainant’s concerns.

3.6. In regards to the issue of equal pay, the respondent submits that it is well known that employees in the Irish print industry are paid according to their experience and length of service in the industry. The respondent submits that it adheres to the employment agreement between the Irish Printing Federation and the The Printing Trades’ Group of Unions and therefore pays rates of remuneration in line with this agreement.

3.7. The respondent submits that the comparator named by the complainant has over forty years experience as a bindery operator within the printing industry and has therefore reached a higher rate of remuneration then the complainant due to length of service. In addition the named comparator was remunerated at a higher rate as she had been acting in a supervisory capacity for a short period in November 2009, which she retained when returning to her role of General operative. The respondent submitted a copy of the pay agreement for consideration by the Tribunal.

3.8. The respondent submits that differences in remuneration were not based on any discriminatory grounds, but were in keeping with the provisions of the Employment agreement.

3.9. The respondent submits that no formal grievance regarding the alleged discriminatory treatment was ever raised by the complainant under a procedure (which the respondent submits the complainant was fully aware of) agreed with the relevant workers union. The respondent submits that in was only made aware of the complainant’s grievances in a letter of complaint in February 2011, despite the complainant’s submission that the alleged discrimination had existed since the complainant began working for the respondent in 2007.

4. FINDINGS & CONCLUSION

4.1. At the start of the hearing the complainant withdrew her claims in relation to marital status, getting a job and promotion. Therefore, I have to decide if the complainant was discriminated against in relation to conditions of employment, equal pay, access to training and discriminatory dismissal on the grounds of gender, family status and 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. 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.Section 6(1) of the Employment Equality Acts, 1998 and 2004 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 subsection (2)…..”.

4.3. Section 6 of the Acts makes it clear that I have to consider whether the complainant was treated less favorably than someone with a different family status. No evidence was adduced by the complainant to show she was treated differently than anyone else due to her family status and I accept the respondent’s contention that they treated all their staff the same, regardless of family status. I therefore find that the complainant has failed to establish a prima facie case of discrimination in relation to family status.

Conditions of employment

4.4. The complainant contents that she was subject to discriminatory treatment in circumstances where her supervisor would structure her duties and tasks in such a way that the complainant’s Irish counterparts were routinely assigned lighter work than non- Irish members of staff. At the hearing, I heard direct detailed evidence from the complainant, two of her work colleagues (one of whom was the complainant’s supervisor) and a senior manager regarding all of the tasks and duties carried out by the complainant and her colleagues. The accounts from both parties were very similar in most respects. The two witnesses for the respondent were consistent and reasonable and their account of the way tasks and duties were assigned does not vary greatly from the account given by the complainant. Five or six general operatives worked on the same shifts as the complainant their work varied between attending machines of sitting at a table working with paper products. The supervisor let operatives vary between both tasks in order to provide some variety. This variation could be initiated by an individual employee. Both sides agree that he complainant never raised any issue with her supervisor about this arrangement until the official letter in February 2011.

4.5. It is agreed that during the complaints employment that were never any references to race and there were no arguments of any kind regarding work. The complainant’s biggest issue is that she was made to stand longer than others loading paper into a particular machine. The only evidence of this is the complainant’s perception of what a long time was in comparison to other workers. Witnesses for the respondent simply expressed surprise that this was the complainant’s perception and submit that they spent equally as long engaged in the same duties. In the absence of any specific evidence from the complainant, and taking into account all of the circumstances, I accept the respondent’s version of events and find the assertion that the supervisor assigned tasks on the basis of nationality to be based on personal speculation by the complainant. Further I accept that the complainant never communicated her concerns to her supervisor or colleagues when she was in the workplace.

4.6. Taking into account the agreed description of tasks and duties, I find the respondent’s assertion that the complainant was not required to carry out heavy duties to be reasonable. Evidence presented at the hearing by the complainant of the most physical task required, which was that she feed quantities of paper into a machine. I accept, agreed evidence, that the paper and the machine were at hip height (no bending required), only men did heavy lifting of finished products/boxes and that a chair was available if wanted. It is agreed that the complainant could decide on the amount and weight of paper to feed into the machine. This task may be considered to be heavy duty if the length of time was excessive but I have dealt with that at 4.5 above.

Dismissal

4.7. The complainant contends she was constructively dismissed due to the respondent’s failure to deal with her grievances.

Section 2 of the Act defines dismissal as follows:

‘‘dismissal’’ includes the termination of a contract of employment by

the employee (whether prior notice of termination was or was not

given to the employer) in circumstances in which, because of the

conduct of the employer, the employee was or would have been

entitled to terminate the contract without giving such notice, or it

was or would have been reasonable for the employee to do so, and

‘‘dismissed’’ shall be construed accordingly;

4.8. In the instant case I find the following to be the relevant facts,

• the first communication of the complainants grievances were in a letter in February 2011.
• The complainant did not avail of established procedures, which the respondent reasonably expected she was aware of.
• When advised of grievances by the complainant, the respondent did investigate and reasonably found no evidence to substantiate the complainant’s grievances.
• The respondent requested that the complainant return to work.
• The respondent resigned.

It is clear from the evidence that the complainant resigned so I will consider the matter as a claim for discriminatory constructive dismissal. In An Employer (Mr O) v A Worker (No.2) [2005] E.L.R. 132 the Labour Court comprehensively addressed the issue of constructive dismissal under employment equality legislation. It noted that the above definition was practically the same as the definition of "dismissal" contained in the unfair dismissals legislation and held that the tests for constructive dismissal developed under that legislation - the "contract" test and the "reasonableness" test - were applicable tests under the Employment Equality Acts. In addition, the Court held "that what is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case".

4.9. In the instant case I am satisfied that the "reasonableness" test is the more appropriate. It requires the complainant to satisfy the Tribunal that the behaviour of the respondent was so unreasonable that she could not fairly be expected to put up with it any longer and she was therefore entitled to resign from its employment. The corpus of case law developed on this point requires the complainant, before taking the unilateral step of terminating her employment, to give the respondent the opportunity to address her grievance or complaint. The complainant did so in this instance, although not through established procedures, and the respondent’s investigation found nothing to substantiate her claims. I have found that her allegations of discrimination, the treatment she seeks to ground her claim of constructive dismissal upon, are not well founded. Consequently, the behaviour of the respondent could not be considered to be unreasonable in terms of grounding a complaint of constructive discriminatory dismissal. In light of the foregoing I find that the complainant has failed to establish a prima facie case of discriminatory dismissal in terms of the Employment Equality Acts, 1998 -2008 and this element of her complaint cannot succeed.

Equal pay

4.10. In relation to equal pay the complainant confirmed that she was employed by the respondent from January 2007 as a trainee print finisher but that in October 2007 the scope of her duties was increased and her remuneration was increased to €11.59 per hour. It is agreed that she was remunerated at a lower rate than a named comparator. It is agreed the other members of the complainants shift (including the named comparator) carried out like work. The respondent submits that it adheres to the employment agreement between the Irish Printing Federation and the The Printing Trades’ Group of Unions and therefor pays rates of remuneration in line with this agreement. This agreement gives a detailed breakdown of the rates of pay based on experience in the industry and has been in place since 1988.

4.11. It is not contested that the named comparator had been working with the respondent longer (18 years) then the complainant. At hearing other employees gave evidence that their pay depended on their length of service. I am satisfied that the named comparator was remunerated at a different rate as a result of the pay agreement and not on the basis of the grounds under consideration. Further, having heard all of the evidence I am satisfied that a hypothetical comparator, specifically an Irish male ( as all of the complainant colleagues were female) would be paid in accordance with the pay agreement.

5. DECISION

I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that:

• the complainant has failed to demonstrate a prima facie case of discrimination in relation to conditions of employment,
• the complainant was not dismissed in a discriminatory manner.
• the complainant does perform ‘like work’ with the named comparator in terms of Section 7 (1) (b) of the Acts but I find that there are objective grounds other than race for the difference in pay and that the complainant has not been discriminated against by the respondent.

____________________

Peter Healy

Equality Officer

17 December 2014