Equality Officer Decision No: DEC-E/2014/051
Parties
Kaniewska and Iscerjakova
(Represented by Ms. Joanna Kwiatkowska)
-v-
Patrick Moore t/a Rooster Take Away
(Represented by Peninsula Business Services Ltd.)
File No: EE/2009/737 & 738
Date of issue: 18 July, 2014
Headnotes: Employment Equality Acts 1998- 2008 – sections 7 and 29 – equal pay- race - like work – actual comparator – prima facie case
1. DISPUTE
This dispute involves (1) a claim by Ms. Aleksandra Kaniewska, (who is a Polish national (hereafter called “the first named complainant”) that she (i) was discriminated against by Patrick Moore t/a Rooster Take Away (hereafter called “the respondent”) 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 relation to her conditions of employment, (ii) that she 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 and (iii) performs “like work” in terms of section 7 of the Employment Equality Acts, 1998-2008 with three named Irish comparators and is therefore entitled to the same rate of remuneration as paid to those comparators by the respondent in accordance section 29 of those Acts and (2) a claim by Ms. Zoja Iscerjakova , who is a Latvian national, (hereafter called “the second named complainant”) that she was discriminated against by Patrick Moore t/a Rooster Take Away (hereafter called “the respondent”) 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 relation to her conditions of employment and (ii) that she performs “like work” in terms of section 7 of the Employment Equality acts, 1998-2008 with three named Irish comparators and is therefore entitled to the same rate of remuneration as paid to those comparators by the respondent in accordance section 29 of those Acts.
2. BACKGROUND
2.1 The first named complainant referred a complaint to the Equality Tribunal on 30 September, 2009 alleging discriminatory treatment and discriminatory dismissal on grounds of race contrary to section 8 of the Employment Equality Acts, 1998-2008 and claiming equal pay with three named Irish comparators (Mr. A, Mr. B and Ms. C) pursuant to section 29 of those Acts. The second named complainant referred a complaint to the Equality Tribunal on 29 September, 2009 alleging discriminatory treatment on grounds of race contrary to section 8 of the Employment Equality Acts, 1998-2008 and claiming equal pay with the same three named Irish comparators as the first named complainant, pursuant to section 29 of those Acts. In accordance with his powers under the Acts the Director delegated the complaints to the undersigned - Vivian Jackson, Equality Officer - for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 23 February, 2012 - the date the complaints were delegated to me.
2.2 An Initial Inquiry Meeting took place on 31 May, 2012 to enable me clarify each of the elements of the complainants’ complaints and decide how best to proceed with the remainder of my investigation. In the course of this Meeting the first named complainant confirmed that she ceased employment with the respondent on 15 October, 2007. The second named complainant confirmed that she ceased employment with the respondent on 8 June, 2007. In the light of this information I advised the parties that the discriminatory treatment element of both complaints and the discriminatory dismissal element of the first named complainant’s complaint had not been referred to the Tribunal within the timelimits prescribed by section 77 of the Employment Equality Acts, 1998-2008. Consequently, those elements of the complaints were not properly before the Tribunal and I had no jurisdiction to investigate them.
2.3 The complainant’s representative confirmed that her clients were claiming equal pay with the three named comparators under all three paragraphs of section 7(1) of the Acts and clarified the period for which that claim was made. In each case it was the period commencing three years before the date of referral of the complaints to the Tribunal and the date of cessation of employment. This means that the relevant periods for the claims are as follows: 1 October, 2006 – 15 October, 2007 in respect of the first named complainant and 30 September, 2006 – 8 June, 2007 in respect of the second named complainant. It was accepted by both parties that the rates of rate of remuneration for the first named complainant during the relevant period was €7.65 per hour. It was also agreed that the second named complainant received this rate of remuneration until February, 2007, when it increased to €8.30 per hour. It was agreed between the parties that Mr. A and Mr. B received €10 per hour during the relevant period but the respondent contested the existence of like work (under any of the three categories covered by section 7(1) of the Acts) between them and either of the complainants. The respondent argued that like work existed between Mr. A and Mr. B in terms of section 7 of the Acts but this was disputed by the complainants. Consequently, it was noted that any work inspection will have to include both comparators.
2.4 The respondent conceded the existence of “like work” in terms of section 7 of the Acts between Ms. C and both of the complainants. It stated that Ms. C received the same rate of remuneration as both of the complainants (€7.65 per hour), which was the minimum wage at the time and was the starting rate that all General Assistants received. It added therefore that there was no basis to a claim for equal pay citing Ms. C as a comparator. The complainants disputed this asserting that that Ms. C received €10 per hour – the same rate of remuneration as the other two comparators – but they were unable to furnish any documentary or other evidence in support of this assertion. They were requested to furnish any such evidence to the Equality Officer as soon as possible. It was agreed by both parties that “like work” existed between the two complainants. The Equality Officer stated that in the circumstances it would be necessary to conduct work inspections and it was agreed, given the respondent conceded the existence of “like work” between the two complainants, that the first named complainant would be interviewed for the purposes of establishing the existence of “like work” between the complainants and each of the two comparators.
2.5 Both parties were requested to file job specifications in respect of the work performed etc. by the first named complainant, Mr. A and Mr. B. The complainants filed this documentation in mid-June, 2012. However, due to illness the respondent was unable to instruct his representatives for several months and its documentation in this regard was not filed with the Tribunal until late November, 2012. Given that (i) the complainants were no longer employed by the respondent at this time, (ii) both parties had given a comprehensive overview of the working environment, (iii) there would be considerable disruption to the respondent’s business if on-site work inspections took place, (iv) there were considerable health and safety considerations for those who might attend on-site work inspections given the limited space of the working area and (iv) the parties could elaborate on matters at the work inspection interviews, I decided that on-site work inspections were not necessary. Work inspection interviews and a Final Hearing were scheduled for 15 February, 2013. However, shortly before the work inspections the respondent’s representative advised the Tribunal that neither Mr. A nor Mr. B would be in attendance. It added that (i) the former had recently emigrated to the United States and the respondent did not realise that his attendance at the work inspection was necessary and (ii) the latter was under medical care and was certified as medically unfit to attend for the foreseeable future (a copy of this medical report was furnished to me). I informed the parties that the work inspections would proceed as scheduled and that I would proceed on the basis of the information and evidence adduced by the parties. At the work inspections responses on the nature of the duties performed by both comparators was given by the proprietor (Mr. Paddy Moore) and a significant number of documents in support of this were furnished to the Equality Officer. A number of issues arose at the work inspections and Hearing which required further clarification and gave rise to further correspondence between the Equality Officer and the parties.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainants assert that they perform “like work” with each of the three named Irish comparators in terms of section 7(1) of the Employment Equality Acts, 1998-2008 and consequently they are entitled to the same rate of remuneration as paid by the respondent to those comparators in accordance with section 29 of the Acts. The complainants assert that the respondent paid Ms. C €10 per hour, although they were unable to produce any documentary evidence in support of this assertion. In the course of the Final Hearing the complainants stated that they never saw a payslip from Ms. C indicating this and confirmed that it was merely their belief that she received this higher hourly rate of pay. They further stated that they were never advised that Ms. C was a Shift Supervisor at any stage during their employment with the respondent.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent accepts that the complainants performed “like work” in terms of section 7 of the Acts with Ms. C but states that she was at all times relevant to the complainants’ claim, paid the national minimum wage, the same as all other General Assistants employed at the time. The respondent adds that Ms. C had another job at the time she worked for it and that it agreed with Ms. C to keep her earnings at a particular weekly rate i.e. €125, in order that she could maximise income tax benefits. The respondent adds that it adopted this practice during 2006 and 2007 adjusting her weekly hours of works as necessary having regard to the appropriate minimum wage rate at the time and that this arrangement only ceased when she was appointed a Shift Supervisor in late October, 2007
4.2 The respondent rejects the complainants’ assertion that they perform “like work” in terms of section 7 of the Acts with either of the remaining two named comparators. It states that whilst Mr. A and Mr. B were present at the establishment at different times during the day, they may not have spent the full duration of the complainants’ entire shift in the premises and they were involved in other work relevant to the business, which could be conducted from an office located at the respondent’s home.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the complainants (i) have established a prima facie case that they were paid a lower rate of remuneration to that paid by the respondent to Ms. C in circumstances where it is accepted they performed “like work” with her in terms of section 7 of the Employment Equality Acts, 1998-2008 and are therefore entitled to that higher rate of remuneration in accordance with section 29 of the Acts and (ii) performed “like work” with both, or either of the other two named comparators, in terms of section 7 of the Employment Equality Acts, 1998-2008 and they are therefore entitled to the same rate of remuneration as paid by the respondent to those comparators in accordance with section 29 of those Acts. In reaching my decision I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal as well as evidence advanced at the Work Inspections and Hearing.
5.2 Section 85A of the Employment Equality Acts 1998- 2008 sets out the probative burden 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 s/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 complainantdoes not discharge the initial probative burden required his/her case cannot succeed. This requirement equally applies to claims of equal pay insofar as a complainant must identify “an actual concrete real life comparator”[1] and establish prima facie that this comparator is receiving a higher rate of remuneration for performing “like work”. The respondent concedes the existence of “like work” in terms of section 7 of the Acts between the complainants and Ms. C. However, the parties disagree on the rate of remuneration paid to Ms. C. The complainants assert that she was paid €10 per hour but can offer no further evidence in support of this assertion. In Melbury Developments v Arturs Valpetters[2] the Labour Court held that an assertion unsupported by any evidence was insufficient to discharge the initial probative burden required of a complainant. The respondent states that Ms. C was paid the appropriate statutory minimum wage at any given time, the same as the complainants, and was never paid €10 per hour. In this regard the respondent produced copy of payroll documentation and furnished an explanation as to why she received a standard weekly wage of €125 until she was appointed Shift Supervisor in late October, 2007. Having carefully considered this matter I am not satisfied, on balance, that the complainants have discharged the initial probative burden required of them, in terms of demonstrating that the comparator received a higher rate of remuneration, and this element of their complaint – a claim of equal pay with Ms. C – fails.
5.3 At the Initial Inquiry the complainants disputed the existence of “like work” between the two comparators. Consequently, the role of both comparators had to be examined in the course of the work inspections. As stated at paragraph 2.5 above due to the unavailability of both comparators at the work inspections responses on the nature of the duties performed by the comparators was given by the proprietor (Mr. Paddy Moore) and a significant number of documents in support of this were furnished to the Equality Officer. I found Mr. Moore to be a forthright and truthful witness. Having carefully considered his evidence and having examined the documentation furnished by him in support of this, I find that the comparators perform “like work” with each other, in terms of section 7 of the Employment Equality Acts, 1998-2008 (see my job descriptions of the comparators’ roles at Appendix A). The parties agreed that “like work” existed between the two complainants and that the role of the first named complainant (Ms. Kaniewska) would be used for the purposes of the work inspection. In light of the foregoing the comparison of the first named complainant’s work - as determined by me at the work inspections (see Appendix A) in terms of section 7 of the Acts- will be conducted with the role of Comparator A, as determined by me at the work inspections.
5.4 Section 7(1)of the Acts 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.”
5.5 Appendix B and C, respectively, set out my analysis of the roles of the comparator and the complainant on foot of work inspections. Appendix D details 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 complainants are claiming “like work” with the comparator in terms of all three paragraphs of section 7(1) of the Employment Equality Acts, 1998-2008. 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, C and D of this Decision I find that the complainant does not perform “like work” in terms of 7(1)(a) of the Acts with Comparator A.
5.6 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, C and D of this Decision, I find that the complainant does not perform “like work” in terms of 7(1)(b) of the Acts with Comparator A.
5.7 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, C and D of this Decision, I find that the complainant does not perform “like work” in terms of 7(1)(c) of the Acts with Comparator A.
6. DECISION OF THE EQUALITY OFFICER.
I have completed my investigation of these complaints and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2011. I find that –
(i) the complainants do not perform “like work” in terms of section 7(1)(a) of the Employment Equality Acts, 1998-2008 with either Comparator A or Comparator B and are therefore not entitled to the same rate of remuneration as paid by the respondent to those comparators in accordance with section 29 of the Acts.
(ii) the complainants do not perform “like work” in terms of section 7(1)(b) of the Employment Equality Acts, 1998-2008 with either Comparator A or Comparator B and are therefore not entitled to the same rate of remuneration as paid by the respondent to those comparators in accordance with section 29 of the Acts.
(iii) the complainants do not perform “like work” in terms of section 7(1)(c) of the Employment Equality Acts, 1998-2008 with either Comparator A or Comparator B and are therefore not entitled to the same rate of remuneration as paid by the respondent to those comparators in accordance with section 29 of the Acts.
(iv) the complainants have failed to establish a prima facie case that the respondent paid Comparator C a higher rate of remuneration than it paid to them for performing “like work” in terms of section 7 of the Employment Equality Acts, 1998-2008.
(v) the discriminatory treatment and discriminatory dismissal elements of the first named complainant’s claim were not referred to the Tribunal within the timelimits prescribed at section 77(5) of the Employment Equality Acts, 1998-2008 and the Tribunal has no jurisdiction to investigate those matters,
(vi) the discriminatory treatment element of the second named complainant’s claim was not referred to the Tribunal within the timelimits prescribed at section 77(5) of the Employment Equality Acts, 1998-2008 and the Tribunal has no jurisdiction to investigate those matters and their complaints fail in their entirety
_______________________________
Vivian Jackson
Equality Officer
18 July, 2014
Appendix A
Equality Officer's Job Descriptions
in respect of the Complainant and Comparators
on foot of Work Inspections
Job Holder: Aleksandra Kaniewska
Job Title: General Assistant
Reports to: Shift Supervisor
No. of Staff: None
Rate of Pay: €7.65 per hour.
Hours of Work: 11:30am – 6pm or 11:30am-3pm four/five days per week on a rostered system. In general 25-30 hours per week.
Preparation of chicken
The complainant carries boxes of chicken from a refrigerated store area about fifteen metres from the food preparation area. Each box would weigh approx. 6-7 kg and she carries two boxes at a time. She would normally prepare four boxes of chicken each shift. She removes the chicken from the boxes, washes it in the sink and cuts it into strips/pieces. The complainant then coats the chicken pieces in pre-prepared breadcrumb/batter mix before placing a number of pieces in a wire basket and placing the basket in the deep fat fryer. At the outset of this process the complainant would switch on the deep fat fryer so as the oil would reach the required temperature by the time the chicken was prepared. The oil temperature can be observed by the electronic temperature dials on the fryer but she would check the oil was suitably hot by placing a single piece in the oil initially. The complainant would prepare a sufficient amount of chicken which would be stored in the specially heated storage drawer in the service counter. She would prepare further batches during the course of her shift as instructed by the Shift supervisor or someone on the Service Counter. The complainant states that she performs this task every shift.
Preparation of Vegetables and Sauces
The complainant states that (on a daily basis) she was also responsible for the preparation (washing and cutting) of a variety of vegetables (onions, tomatoes, lettuce) for use in the food presentation. The complainant must carry the vegetables to the appropriate workbench in the food preparation area. The weight of items vary between 2-5kg. The vegetables are washed and cut and placed in large bowls/containers, covered with foil/cling film and placed in the refrigerator. The complainant states that she performs these functions 2/3 times per week.
The complainant states that she in responsible for the preparation of curry sauce (as necessary). This involves carrying a 2.5kg drum of dehydrated powder to the workbench. The complainant follows the instructions on the drum by mixing the appropriate amount of powder to boiling water and cooking it for several minutes. The finished sauce is placed in large containers, covered and allowed to cool. Later the complainant carries the containers (which weigh approx. 2kg) from the workbench to the refrigerator which is 3 metres away.
Preparation and Cooking of Battered Sausages and Onion Rings.
The complainant carries the sausages and onions (weighing between 4-7kg) from the storage area to the workbench in the food preparation area. She also carries the batter (which is prepared) from the refrigerated area to the food preparation area. She coats the sausages/onion ring in the batter, places a number of them in a wire basket and places the basket in the deep fat fryer. The oil temperature can be observed by the electronic temperature dials on the fryer but she would check the oil was suitably hot by placing a single piece in the oil initially. She part cooks the sausage/onion ring for a few minutes (she knows when to remove the food from the oil by observing the colour/texture of the batter) and places them on a wire tray to drain off. She prepares sufficient items for the shift (she would be instructed in this regard by the Shift supervisor but it was generally eighty items) and places the trays of food in the refrigerator about 5 metres away.
Carrying chips from peeling/chipping store to Cooking Area.
The potato peeling and chipping machines are located in a shed outside the main building (approx. 15-20 metres away). The complainant carries buckets of chipped potatoes from this area to a large container located beside the chip fryers in the cooking area. Each bucket weighs around 10kg. The complainant carries two buckets at a time for convenience and to save time. She performs this task every shift and can do so 10-15 times during a busy shift.
The complainant also carries (on average one/twice during a shift) uncooked burger and fish from the external refrigerated storage area to the refrigerated area in the food preparation area. Each box weighs around 5kg and the distance between the two areas is 15 metres.
Washing and Cleaning
Once the initial tasks are complete the complainant washes all of the utensils used in the food preparation and she must ensure that all of the utensils used are clean and put back in the proper location before her shift ends. However, there were occasions where she was required to wash utensils from a previous shift if they were left dirty. In addition she bundles all of the boxes/cartons which are left as refuse and places them outside. She also ensures that all the black refuse sacks are placed outside for collection - this is a continuous task but she must ensure the workplace is clean at the end of her shift.
Customer Service
The complainant states that sometime during every shift she would answer the telephone and take orders from customers for delivery/collection and she would complete these orders. She adds that she also worked on the front counter serving customers. She adds that she would complete the orders, ring the items on the till, take the customers money and give the appropriate change. She states that she performed these tasks (on a daily basis) from May, 2006 until January, 2007 (when she went on sick leave immediately followed by a period of maternity leave).
General
The complainant states that if a problem/issue arose during her shift she would raise the matter with the Shift Supervisor or someone in authority. She adds that both the comparators were present in the outlet every day although generally speaking her shifts did not overlap to any great extent with Comparator B. She further states that the working environment is hot and slightly cramped (internally) and depending on the weather, is cold and damp externally.
Job Holder: Mr. A (Comparator A)
Job Title: Manager
Reports to: Proprietor (if necessary) but has full authority to deal with any matter.
No. of Staff: Shift Supervisor(s) report direct to him. Staff on the shift would also report to him as necessary.
Rate of Pay €10 per hour. Hours in excess of normal attendance (48 hours) did not attract any additional payment.
Hours of Work: Around 60 hours per week on average. Rostered over 7 days whenever necessary
Maintenance of Food Quality and Health and Safety
The comparator is a fully trained in HACCP (food hygiene and safety management). The comparator monitors the quality of the raw materials from their arrival in the establishment to the point of sale. He signs for the delivery of the produce checking that it is of the appropriate quality. He shares this role with Comparator B and the Proprietor. On occasion the Shift Supervisor may perform this task but this seldom arises. Produce which is not considered to be of the appropriate quality is returned to the supplier.
If produce quality is not of the appropriate standard the comparator will seek alternative suppliers. Moreover, he has responsibility for extending the range of products and sourcing suppliers who can provide same of an appropriate standard and at an economic price. In particular the comparator is involved in the sourcing and grading of potatoes in terms of starch content/quality.
The comparator trains staff members on the HACCP requirements for food preparation, cooking and storage. However, responsibility for maintenance of these standards rested with the comparator. This requires constant vigilance and observation of staff to ensure they were following procedures – handling and preparation of raw meat/fish, storage of cooked/raw foods to prevent cross contamination and the necessary personal hygiene requirements on staff in those circumstances. The comparator randomly checks core temperatures (in cooked and refrigerated foods) during the course of the day to ensure that they comply with HACCP requirements. In this regard he checks the temperature in all refrigerated areas during his shift (the temperatures are required to be taken again later in the day and if he is there he will do it, otherwise the task is performed by the Duty Manager at that time) and record them to ensure that they comply with HACCP Guidelines.
The comparator assists in the training of staff (as necessary) in the operation of all equipment in the establishment. He also ensures (along with the Shift Supervisor) that staff comply with health and safety requirement in terms of appropriate attire etc., during work.
Whilst general cleanliness and hygiene is a matter for all staff and responsibility initially rests with the Shift supervisor, the comparator is responsible for ensuring that all floors, walls, counters, workbenches etc. are fully cleaned on a daily basis and in this regard he does a general check on this on a daily basis and if standards are below what is required he will raise the matter with the Shift supervisor for appropriate action.
Customer Service
The comparator trained staff members on the basics of customer interaction and how to serve customers in a fast, efficient and friendly manner. He observes staff in the course of their duties (those dealing with customers in particular) and raises any concerns he has in this regard – a role he shares with any other Duty Manager (including Comparator B and the Proprietor) and the Shift Supervisor. Customer complaints are handled at this level also – General Assistants are required to bring such matters to Management’s attention for appropriate action. In general customer complaints are resolved by an apology and replacement food. The comparator will follow up customer complaints with the staff member involved or with the Shift Supervisor for such action as he deems appropriate.
Stock Control
The comparator takes a full stock count of all major items every day before the establishment opens. He reconciles/compares these figures with the previous days’ figures, any new levels of stock delivered and the daily sales details to ensure that there is no major irregularity in stock figures. He had discretion to disregard some minor differences but should any significant discrepancy arise he brings the matter to the attention of the Proprietor and embarks on an investigation to explain the difference. The comparator liaises with the Shift Supervisor each morning to inform her of stock levels in fridges etc. so s/he can arrange appropriate amounts of items are transferred from external locations to the appropriate convenient locations at the internal food preparation areas. The comparator is also responsible for updating the relevant stock sheets on a daily basis by recording items delivered during each day.
Purchasing.
The respondent has between 12-15 standard suppliers. The comparator uses the stock control process detailed above to identify the necessary levels of each product required. Each supplier delivers 2/3 times each week so the comparator must monitor the situation to ensure that orders are placed in a timely fashion to minimise the prospect of running out of any particular items. In doing so the comparator also examines trends of sales (particularly where promotions are in place) as generally speaking sales levels of promotion items are higher than normal. The comparator generally places the orders with the suppliers by phone each morning. Deliveries are normally made each morning and as stated above he is present to sign for delivery and update the relevant stock records.
The comparator has a particular role in purchasing potatoes. This product is seasonal in nature and can be sourced from several locations. The comparator is responsible for ensuring potatoes are sourced from the most suitable supplier at any given time having regard to quality and price. He has a similar responsibility in terms of chicken products.
Payment of Suppliers
The comparator is responsible (along with Comparator B and the Proprietor) that suppliers are paid in a timely fashion. This involves checking the delivery dockets against invoices and ensuring that they are in order for payment. Should any issues arise he will take it up (usually by phone) with the supplier. When he is satisfied that the invoice is in order he will authorise payment – the comparator is a signatory on the respondent chequebook along with Comparator B and the Proprietor.
Handling Cash
The comparator is responsible (along with Comparator B and the Proprietor) for reconciliation of the daily takings. This involves printing off the records from the tills and ensuring that the takings match up. Discrepancies over a certain amount are investigated until reconciliation within certain small margins is achieved – although the lodgement is not delayed unnecessarily. The takings are recorded and placed in the safe. Lodgement of same is carried out by the comparator, Comparator B or the Proprietor.
Equipment Maintenance etc.
The respondent promises contains several pieces of valuable equipment – pressurised fryers, deep fat fryers, refrigeration units, potato peelers and chipping machines. The comparator is trained (by suppliers and qualified fitters) in the maintenance and upkeep of many of these pieces of equipment. The respondent retains an inventory of various spare parts to enable the comparator (along with Comparator B) to repair this equipment as necessary. The comparator is responsible for contacting the appropriate Repair Agent/Fitter to deal with any issues he cannot deal with. Time is of the essence as the respondent loses money when a piece of equipment is out of order.
General
The comparator is a son of the owner and therefore works whatever hours are necessary for to maintain the business. In that regard he performs many of the standard duties carried out by the complainants as the need arises. Significant amounts of the administrative and accounts work is completed at an office located at the family home.
Job Holder: Mr. B (Comparator B)
Job Title: Manager
Reports to: Proprietor (if necessary) but has full authority to deal with any matter.
No. of Staff: Shift Supervisor(s) report direct to him. Staff on the shift would also report to him as necessary.
Rate of Pay €10 per hour. Hours in excess of normal attendance (48 hours) did not attract any additional payment.
Hours of Work: Around 48 hours per week on average. Rostered over 7 days whenever necessary
Maintenance of Food Quality and Health and Safety
The comparator is a fully trained in HACCP (food hygiene and safety management). The comparator monitors the quality of the raw materials from their arrival in the establishment to the point of sale. He signs for the delivery of the produce checking that it is of the appropriate quality. He shares this role with Comparator A and the Owner. On occasion the Shift Supervisor may perform this task but this seldom arises. Produce which is not considered to be of the appropriate quality is returned to the supplier.
If produce quality is not of the appropriate standard the comparator will seek alternative suppliers. Moreover, he has responsibility for extending the range of products and sourcing suppliers who can provide same of an appropriate standard and at an economic price. In particular the comparator is involved in the sourcing and grading of potatoes in terms of starch content/quality.
The comparator trains staff members on the HACCP requirements for food preparation, cooking and storage. However, responsibility for maintenance of these standards rested with the comparator. This requires constant vigilance and observation of staff to ensure they were following procedures – handling and preparation of raw meat/fish, storage of cooked/raw foods to prevent cross contamination and the necessary personal hygiene requirements on staff in those circumstances. The comparator randomly checks core temperatures (in cooked and refrigerated foods) during the course of the day to ensure that they comply with HACCP requirements. In this regard he checks the temperature in all refrigerated areas during his shift (the temperatures are required to be taken again later in the day and if he is there he will do it, otherwise the task is performed by the Duty Manager at that time) and record them to ensure that they comply with HACCP Guidelines.
The comparator assists in the training of staff (as necessary) in the operation of all equipment in the establishment. He also ensures (along with the Shift Supervisor) that staff comply with health and safety requirement in terms of appropriate attire etc., during work.
Whilst general cleanliness and hygiene is a matter for all staff and responsibility initially rests with the Shift supervisor, the comparator is responsible for ensuring that all floors, walls, counters, workbenches etc. are fully cleaned on a daily basis and in this regard he does a general check on this on a daily basis and if standards are below what is required he will raise the matter with the Shift supervisor for appropriate action.
Customer Service
The comparator trained staff members on the basics of customer interaction and how to serve customers in a fast, efficient and friendly manner. He observes staff in the course of their duties (those dealing with customers in particular) and raises any concerns he has in this regard – a role he shares with any other Duty Manager (including Comparator A and the Proprietor) and the Shift Supervisor. Customer complaints are handled at this level also – General Assistants are required to bring such matters to Management’s attention for appropriate action. In general customer complaints are resolved by an apology and replacement food. The comparator will follow up customer complaints with the staff member involved or with the Shift Supervisor for such action as he deems appropriate.
Stock Control
The comparator takes a full stock count of all major items every day before the establishment opens. He reconciles/compares these figures with the previous days’ figures, any new levels of stock delivered and the daily sales details to ensure that there is no major irregularity in stock figures. He had discretion to disregard some minor differences but should any significant discrepancy arise he brings the matter to the attention of the Proprietor and embarks on an investigation to explain the difference. The comparator liaises with the Shift Supervisor each morning to inform her of stock levels in fridges etc. so s/he can arrange appropriate amounts of items are transferred from external locations to the appropriate convenient locations at the internal food preparation areas. The comparator is also responsible for updating the relevant stock sheets on a daily basis by recording items delivered during each day.
Purchasing.
The respondent has between 12-15 standard suppliers. The comparator uses the stock control process detailed above to identify the necessary levels of each product required. Each supplier delivers 2/3 times each week so the comparator must monitor the situation to ensure that orders are placed in a timely fashion to minimise the prospect of running out of any particular items. In doing so the comparator also examines trends of sales (particularly where promotions are in place) as generally speaking sales levels of promotion items are higher than normal. The comparator generally places the orders with the suppliers by phone each morning. Deliveries are normally made each morning and as stated above he is present to sign for delivery and update the relevant stock records.
The comparator has a particular role in purchasing potatoes. This product is seasonal in nature and can be sourced from several locations. The comparator is responsible for ensuring potatoes are sourced from the most suitable supplier at any given time having regard to quality and price. He has a similar responsibility in terms of chicken products.
Payment of Suppliers
The comparator is responsible (along with Comparator A and the Proprietor) that suppliers are paid in a timely fashion. This involves checking the delivery dockets against invoices and ensuring that they are in order for payment. Should any issues arise he will take it up (usually by phone) with the supplier. When he is satisfied that the invoice is in order he will authorise payment – the comparator is a signatory on the respondent chequebook along with Comparator A and the Proprietor.
Handling Cash
The comparator is responsible (along with Comparator A and the Proprietor) for reconciliation of the daily takings. This involves printing off the records from the tills and ensuring that the takings match up. Discrepancies over a certain amount are investigated until reconciliation within certain small margins is achieved – although the lodgement is not delayed unnecessarily. The takings are recorded and placed in the safe. Lodgement of same is carried out by the comparator, Comparator A or the Proprietor.
Equipment Maintenance etc.
The respondent promises contains several pieces of valuable equipment – pressurised fryers, deep fat fryers, refrigeration units, potato peelers and chipping machines. The comparator is trained (by suppliers and qualified fitters) in the maintenance and upkeep of many of these pieces of equipment. The respondent retains an inventory of various spare parts to enable the comparator (along with Comparator B) to repair this equipment as necessary. The comparator is responsible for contacting the appropriate Repair Agent/Fitter to deal with any issues he cannot deal with. Time is of the essence as the respondent loses money when a piece of equipment is out of order.
General
The comparator is a son of the owner and therefore works whatever hours are necessary for to maintain the business. In that regard he performs many of the standard duties carried out by the complainants as the need arises. Significant amounts of the administrative and accounts work is completed at an office located at the family home.
Appendix B
Analysis of Comparator’s Post
Skill
The comparator demonstrates significant organisational skills in terms of his role as a whole. He must ensure that deadlines are met in terms of suppliers so as to ensure sufficient stock is available for the efficient running of the operation. He demonstrates interpersonal/communication skills in terms of his interaction with customers, suppliers and staff on a daily basis. He also exercises numeracy skills in terms of the daily stock-take and reconciliation, the reconciliation of the daily takings and the processing of invoices for payment. Finally he demonstrates time-management skills in terms of ensuring that certain aspects of his role – deliveries and general monitoring of HACCP standards – are carried out each day.
Responsibility
The comparator is Manager of the establishment and therefore has ultimate responsibility for all matters arising during the course of his shift. The Shift Supervisor reports direct to him – s/he has line management responsibility for all other staff on the shift – so in effect he is the second Line Manager.. He has sole responsibility for ensuring the quality and quantity of the produce delivered each day and deals with the suppliers where either of those matters are in issue. The comparator is responsible for reconciling the daily stock and the takings and investigating any discrepancies which arise in either case. He is also responsible for securing the takings at the end of the day (if he is on that shift) and arranging the lodgement of same to the bank in due course. Moreover, he has responsibility (using the stock take details) to place the appropriate order with relevant supplier.
The comparator is responsible for the maintenance and repair (either personally or by arranging an external source) of the equipment in the establishment. Finally, he has overall responsibility for ensuring that the practices/processes operated by staff comply with HACCP Guidelines and must deal with any departure from those standards.
Mental Requirements
The comparator displays significant attention to detail in terms of several aspects of his role. In particular he must ensure accuracy in terms of the stock take and records so that the respondent is not carrying too much stock of perishable items.
The comparator displays significant levels of concentration when performing any of the functions connected with the food preparation/cooking. Health and safety practices are of paramount importance given the nature of the working environment and the risks associated with it. Vigilance is necessary at all times to minimise risk of accident.
Physical Requirements
The functions performed in the food preparation/cooking involves long period standing at the workbench or service counter, sometimes bending and stretching with the associated physical demands. It also involves a significant amount of carrying (between 2kg-10kg) for distances of up to 20 metres. Apart from this the comparator has no particular physical demands
Working Conditions
The comparator (as the son of the proprietor) and Manager of the establishment works approximately 60 hours per week and is “on-call” at other times and attends the premises should the need arise. When on the premises the comparator operates in the working environment with other staff - which is generally hot, stuffy and cramped internally and cold/damp externally (depending on the weather conditions).
Appendix C
Analysis of Complainant’s Post
Skill
The complainant displays organisational and time-management skills as she knows that certain tasks must be performed at certain stages of the shift each day. She also operates interspersonal/ communication skills in her interaction with other staff and the customers. The complainant numeracy and literacy skills in terms of following instructions on drums in certain food preparation activities and reading the temperature dials on the fryers etc.
Responsibility
The complainant has no staff working to her. Her main responsibility is to ensure that certain routine tasks are completed on schedule each day. Any other tasks are performed at the instruction of the Shift supervisor or other member of Management.
Mental Requirements
The complainant displays significant levels of concentration when performing any of the functions connected with the food preparation/cooking. Health and safety practices are of paramount importance given the nature of the working environment and the risks associated with it. Vigilance is necessary at all times to minimise risk of accident.
Physical Requirements
The complainant performs her entire shift standing. The functions performed in the food preparation/cooking/cleaning involves long period standing at the workbench, service counter, or sink with significant acts of bending and stretching with the associated physical demands. The complainant’s role also involves a significant amount of carrying (between 2kg-10kg) for distances of up to 20 metres.
Working Conditions
The complainant generally works in the food preparation are of the establishment. This area is generally hot, stuffy and cramped internally and cold/damp externally (depending on the weather conditions).
Appendix D
Comparison of Complainant’s and Comparator’s Posts
in terms of section 7(1) of the Acts
Skill
Both the complainant and the comparator are required to be numerate and literate in order to perform their duties. However, the requirement on the complainant is at a much lower level of complexity to that required of the comparator. Both demonstrate good organisational skills and time-management skills on a regular basis. However, the level required of the comparator in this regard is again higher than the required of the complainant. Both display communication/interpersonal skills on a daily basis. However, the requirements in this regard are significantly higher in respect of the comparator (in particular as regards his role in dealing with suppliers) that those displayed by the complainant when assigning tasks to an apprentice.
I find that the skills required of the comparator to be greater than those required of the complainant
Responsibility
The comparator is Manager of the establishment and has responsibility for all issues arising during a shift. The Shift Supervisor reports direct to him. This person is Line Manager for staff at the complainant’s level. The complainant has no staff supervision role. The comparator has responsibility for (i) ensuring the produce purchased by the respondent is of a suitable standard; (ii) that HACCP Guidelines and standards are applied in the establishment, including compliance with health and safety standards; (iii) the daily stock reconciliation, stock control and purchasing; (iv) reconciliation of the daily takings, including the security and lodgement of same and (v) maintenance and upkeep of the equipment in the establishment. The complainant has no function whatsoever in any of those tasks.
I find that the demands made on the comparator in terms of responsibility to exceed those required of the complainant
Mental Requirements
Both the comparator and complainant exercise high levels of concentration when performing tasks associated with food preparation/ cooking to the potential risks in the working environment. The comparator displays significant attention to detail in terms of several other aspects of his role. In particular he must ensure accuracy in terms of the stock take and records so that the respondent is not carrying too much stock of perishable items. The complainant has no requirement to exercise as high a level of attention to detail in the discharge of any of her duties which are not associated with food preparation/cooking.
I find that the mental efforts required of the comparator to exceed those required of the complainant
Physical Requirements
The physical requirements placed on the complainant and comparator when performing tasks associated with food preparation/cooking are very similar. No evidence was adduced to demonstrate that the other tasks performed by the comparator placed any higher level of physical demand on him.
I find that the demands made on the complainant and the comparator in terms of physical requirements to be equal
Working Conditions
When performing tasks associated with food preparation/cooking/serving the complainant and comparator work in the same areas and are therefore exposed to the same working environment and working conditions during that period. The comparator works approx. 60 hours per week and is “on call” at other times. Should the need arise when “on call” he attends the premises. The complainant works between 25-30 hours per week on a shift basis. Whilst these shifts may be at unsocial times the complainant has no obligation to be available after hours.
I find that the demands made on the complainant in terms of working conditions exceed those required of the complainant.