THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
DEC-E2014-032
Andrzej Wojcik
(represented by Sile Rooney B.L. instructed by O’Hanrahan Solicitors)
versus
The Buggyman Ltd
(represented by Helen Coughlan, Patrick J. Farrell Solicitors)
File reference: EE/2011/757
Date of issue: 14th May 2014
Keywords: Employment Equality Acts, Race, Conditions of Employment, Equal pay, Victimisation, Harassment, Training, No prima facie case
1. Dispute
1.1 This dispute concerns a complaint by Andrzej Wojcik, who is Polish, against his former employer The Buggyman Ltd that he was discriminated against regarding conditions of employment, and training on the grounds of race contrary to 8 (1)(b) of the Employment Equality Acts 1998-2011[hereinafter referred to as ‘the Acts’]. He also claims that he was victimised and harassed. A complaint of unequal pay was also claimed.
1.2 Through his legal representative, the complainant referred his complaint under the Acts to the Director of the Equality Tribunal on 9th November 2011. In accordance with his powers under Section 75 of the Act, the Director delegated the case on 10th September 2013 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. A Hearing was held on 27th September 2013 as required by Section 79(1) of the Acts.
2. Summary of the complainant’s case
2.1 The complainant submits that he is paid less than Irish employees for the same work. He submits that the respondent has given loans to other employees but not to him. He maintains the respondent has allowed other employees to make pejorative remarks to the complainant that he should return to his country of origin. Mr Wojcik also states that an other employee has called him ‘Fritzel’ a reference, he submits, to the notorious criminal Josef Fritzel (who was convicted for enslavement, incest and false imprisonment of his daughter) who is also from mainland Europe.
2.2 Since Mr Wojcik has raised these issues he submits that he has been ostracised by his fellow employees and was not invited to the Christmas party.
3. Summary of the respondent’s case
3.1 The respondent specialises in the sale, hire and servicing of golf carts in Ireland. The Buggyman Ltd employed Mr Wojcik on 24th July 2006 as a light service technician. He was previously a baker and the respondent states they had to invest significant time to train him up as he had no prior experience in this kind of work. His salary is €19,224.40. The respondent submits it has an exemplary record regarding employment rights.
3.2 The person Mr Wojcik has named as his comparator (an Irish National) is a qualified mechanic of construction machinery. His job title is Assistant Service Manager – Mr A. His salary reflects his higher status in the company so he earns €24,752. Therefore, the respondent maintains that he is a completely unsuitable comparator for the complainant.
3.3 The respondent states Mr Wojcik has deliberately ignored a fellow Polish national (Mr B) who is a Service technician but earns more than the complainant - €20,037. The respondent states they would love to promote him as technically Mr B is excellent but unfortunately his English is not good enough for dealing with customers.
3.4 The Buggyman Ltd also points to Mr C and Mr D both of whom are Irish and earns €19,015 which is less than the complainant for doing the same role. They earn less than the complainant as they commenced employment with the respondent after the complainant.
3.5 Regarding loans, the respondent freely admits that they allowed employees, on an occasional basis, to purchase tools or laptops from the company’s suppliers and the cost of same be taken out of their wages. It would never exceed €500. In August 2011 Mr Wojcik approached the Managing Director (Mr E) for a loan of €10,000 to purchase a property in Poland. Mr E refused. In October 2011 Mr Wojcik looked for a loan of €6,000 to pay for maintenance for a child in Poland. Again he refused but offered to pay for legal services and interpreter as Mr Wojcik said he could be arrested for not paying child maintenance. No other employee has requested loans of this magnitude and the respondent maintains that if anybody did, that person would also be refused.
3.6 The respondent submits that they have a robust Bullying and Harassment policy which is contained in the employee handbook. This was submitted as evidence. In May 2011 Mr Wojcik complained that an other employee Mr F said ‘go back to your own country’. Mr E investigated the incident and compiled a written report. Mr F admitted he made this remark but this was only after the complainant said Mr F ‘hung around the Curragh to shag sheep’. It was meant in banter. Mr E reprimanded Mr F nevertheless. Mr E stated in direct evidence that there appeared to be no animosity between Mr Wojcik and Mr F as the night after this incident, the complainant booked Mr F’s taxi (which he worked at weekends) from the company’s phone. Regarding the remark where Mr Wojcik states somebody called him ‘Fritzel’, Mr E said that the first he heard about it was in the complainant’s submission. He tried investigated it but Mr Wojcik did not identify who said it.
3.7 On 6th October 2011 Mr Wojcik was given a written warning for a combination of a few incidents. He threw a ratchet at a colleague on 23rd September. He was given an opportunity to respond and was allowed to give his account of events in Polish. Mr Wojcik never took the opportunity to respond. A customer had also complained about his manner. The respondent states that they have a number of prestigious clients e.g. the K Club so they pride themselves on excellent customer service.
3.8 In 2010 and 2011 the respondent did not have a paid Christmas party because of the downturn. On 22nd December 2011 a few of the employees organised lunch among themselves in a local establishment. The management were not involved. Some went and others did not. At the last minute, Mr E and his wife were invited and his wife insisted that he pay for his staff’s lunch which he did. Mr Wojcik was not present as he was on Annual Leave since 19th December.
4. Conclusions of the Equality Officer
4.1 Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is race.
(i) Whether the complainant is entitled to equal pay in accordance with Section 29 (1) of the Acts?
(ii) Was the complainant discriminated in relation to his conditions of employment on ground of race in terms of 8(1)(b) of the Acts?
(iii) Was the complainants discriminated in relation to training on ground of race in terms of 8(1)(b) of the Acts?
(iv) Was the complainant harassed within Section 14 of the Acts?
(v) Was the complainant victimised as defined in Section 74 of the Acts?
4.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:
Section 85A of the Act provided for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.[1]
Equal Pay
4.3 Section 29 (1) of the Act provides that where A and B represent two people of the different nationalities it shall be a term of the contract under which A is employed that A shall at any time be entitled to the same rate of remuneration for the work A is employed to as B who, at that or any other relevant time, is employed to do like work by the same or associated employer. The existence of like work between a complainant and comparator is a necessary condition to any entitlement to equal pay under the Act. Therefore I will first examine whether like work exists between Mr Wojcik and his named comparator – Mr A. Mr Wojcik is entitled to choose his own comparator.
4.4 Like work is defined in Section 7 of the Act:
…in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if-
(a) both perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work
(b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or
(c) the work performed by one is equal in value to the work performed by the other having regards to such matters as skill, physical or mental requirements responsibility and working conditions
In order to see whether or not the work of the complainant and the named comparator in their roles is equal in value as per Section 7(1)(c), I will examine same under the headings of skill, physical or mental requirements, responsibility and working conditions. As the complainant has also claimed like work within the meaning of Section 7 (1)(a) and (b), I will also consider whether each of roles constitutes like work as per those subsections.
4.5 Skill:
Both serviced golf buggies. However Mr Wojcik only dealt with the simple tasks e.g. checking batteries, replacing water etc. On the other hand, Mr A completed a four year apprenticeship in Construction Plant Fitting and also had prior relevant experience before starting with respondent. Mr A was able to diagnose complex hydraulic problems. He was also able to weld and rectify electrical faults in machinery. Mr E gave evidence that Mr A was essential to his business as there were some problems only he could solve. The only person who came close was Mr B (a Polish national) but his English was not good enough to discuss complex problems with customers or explain to other service technicians how to solve these problems.
Physical or Mental Requirements:
Similar levels of physical effort were necessary for both positions. Both roles required significant physical exertion as golf carts weigh 500lb. Greater mental requirements were required by Mr A as he dealt with the more complex repair issues.
Responsibility:
Mr A had significantly more responsibility. He was the Assistant Manager of the workshop. When the Manager was absent, it was his responsibility to him assign work - including to the complainant. Often when customers had a problem, they only wanted to speak to him as he was the most technically proficient. Mr Wojcik had no supervisory responsibilities.
Working Conditions:
The complainant and comparators worked 39 hour week over 5 days. Therefore, I find their working conditions were similar.
4.6 I find that the demands made on the complainant in terms of skill, mental requirements and responsibility, are significantly less than the demands made on Mr A. I, therefore, find that Mr Wojcik did not perform like work with Mr A in terms of Section 7(1)(c) of the Acts.
4.7 Neither do I find that this constitutes like work within the meaning of Section 7 (1) (a) and (b) as the work is certainly NOT interchangeable. As like work has not been established, Mr Wojcik is not entitled to equal pay with Mr A.
Conditions of employment
4.8 Regarding conditions of employment, Section 8(6)(c) of the Acts states that an employer shall be taken to discriminate against an employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee the same treatment [my emphasis] in relation to overtime, shift work, short time transfers layoffs, redundancies, dismissals and disciplinary measures as the employer offer or affords to another person where the circumstances in which both such persons are employed are not materially different.
4.9 Mr Wojcik has adduced no evidence to demonstrate that he was treated less favourably on the grounds of race. When two people were made redundant in 2008, they were Irish rather than foreign nationals. Neither do I accept that the respondent discriminated against the complainant regarding the refusal of the loans. It would be extremely unusual for an employer to agree to give employees loans of that magnitude on an ad hoc basis. Therefore this strand of his case fails.
Harassment
4.9 Section 14A (7) of the Act defines harassment as any form of unwanted conduct related to any of the discriminatory grounds and being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
4.10 Section 14A (2) provides a defence for an employer if it can prove that it took reasonably practicable steps to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects [my emphasis]. I have examined the respondent's Dignity at Work Policy and the compilation of this may be regarded as one 'reasonably practicable step' to prevent harassment.
4.11 If Mr Wojcik will not identify who called him ‘Fritzel’, then it is very difficult to investigate. In direct evidence I found Mr Wojcik to be quite evasive on this issue. For these reasons, I cannot escape the conclusion that he was not called that name in the workplace.
4.12 In relation to the remark about ‘going back to your country’ this could be perceived as racial harassment. Banter is not necessarily a defence although the context in which remarks are made must be considered. One person’s banter can be interpreted by somebody else as harassment. However, harassment is a subjective experience. If Mr Wojcik was offended by the remark, I find it surprising that in his spare time he would use Mr F’s taxi services so soon after the remark was made. It is noteworthy that Mr Wojcik lives in an area where there is a surfeit of taxis. Despite the comment being made, the respondent is entitled to avail of the defence provided in Section 14A(2) as it did attempt to reverse the effects of harassment by conducting an investigation, reprimanding Mr F and monitoring the situation to make sure it did not happen again. In fact the respondent’s procedures and the appropriate way they were implemented would put many larger employers to shame.
Training
4.13 Not a scintilla of evidence was adduced that Mr Wojcik was discriminated against in relation to training.
Victimisation
4.14 Section 74 (2) of the Act state victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant, the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.
4.15 The complainant submits that the respondent banished him from the Christmas party. Mr E gave cogent evidence that this was not the case. Mr Wojcik, by his own choice, was on leave when an informal lunch was organised. Mr E was invited at the last minute, and imbued with Christmas generosity, paid for his staff’s lunch.
Decision
I have concluded my investigation of the complaints of Andrzej Wojcik and hereby make the following decision in accordance with Section 79(6) of the Act. I find that
(i) Mr Wojcik is not entitled to equal remuneration with Mr A
(ii) The respondent did not discriminate against Mr Wojcik regarding his conditions of employment on the ground of race.
(iii) The respondent did not discriminate against Mr Wojcik regarding his conditions of employment on the ground of race.
(iv) the respondent is entitled to avail of the defence in Section 14A of the Acts regarding harassment on the grounds of race
(v) The complainant was not victimised within the meaning of Section 74(2) of the Acts.
Therefore Mr Wojcik’s complaints fail.
_______________
Orlaith Mannion
Equality Officer
Footnotes:
[1] Labour Court Determination No. EDA0917