FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : THE BUGGYMAN LIMITED (REPRESENTED BY MS SARAH JANE HILLERY B.L., INSTRUCTED BY PATRICK J FARRELL AND COMPANY SOLICITORS) - AND - MR ANDRZEJ WOJCIK (REPRESENTED BY MR DERMOT SHEEHAN B.L., INSTRUCTED BY O'HANRAHAN AND COMPANY SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The Worker appealed the Decision of the Equality Officer to the Labour Court in accordance with Section 83 of the Employment Equality Acts 1998 to 2011. A Labour Court hearing took place on 21st October, 2014. The following is the Determination of the Court:
DETERMINATION:
This is an appeal against the Decision of an Equality Officer in a claim by Mr Andrzej Wojcik against The Buggyman Limited in his claim for equal pay. The Complainant is also claiming to have been victimised and harassed contrary to the provisions of theEmployment Equality Acts 1998 to 2011 (“the Acts”). The claims are on the ground of race.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Andrzej Wojcik will be referred to as “the Complainant” and The Buggyman Limited will be referred to as “the Respondent”.
The Complainant referred his claim under the Acts to the Equality Tribunal on 9thNovember 2011.
The Equality Officer found against the Complainant’s claim that he had been discriminated against. She found that the Respondent was entitled to avail of the defence in Section 14A of the Acts regarding harassment on the grounds of race and that he was not victimised within the meaning of Section 74(2) of the Acts. The Complainant appealed this Decision to the Court.
Background
The Respondent is a supplier of golf buggies. It specialises in the sale, hire and service of golf buggies. The Complainant, who is Polish, was employed as a Light Service Technician with the Respondent from July 2006 until October 2013. He was paid €19,224.40 per annum.
Summary of the Complainant’s Case
Mr Dermot Sheehan, B.L., instructed by O’Hanrahan & Company Solicitors, on behalf of the Complainant submitted that the Complainant received less remuneration when compared to an Irish national, that he was subjected to harassment on the race ground due to his nationality and that he had been victimised.
Equal Pay Claim
Mr Sheehan submitted to the Court that the Complainant performed“like work”in terms of Section 7 of the Acts with a named Irish national comparator who was paid €24, 752 per annum. He said that the Complainant had greater service than the nominated comparator who had commenced in 2007, both attended the same internal training courses withinthe Respondent'sbusiness and both carried out the same duties. In support of his case he stated that the Complainant was occasionally calledon by
colleagues to carry out taskssuch as reassembling agearbox or checking the voltage on devices. It was submitted that when compared to the nominated comparator, the Complainantwas carrying out like work, theirday-to-day duties were the sameandtheywere interchangeable with one another.
Mr Sheehan stated that theComplainant discovered that he was paid less than the nominated comparator in June2010 when he learned that the comparator had received a wage increaseto approximately€416.00 per week net whereas his wages at the time were€342.13 per week net.
Harassment/Victimisation Claims
11thApril 2011
Mr Sheehan submitted to the Court thaton 11thApril 2011the Complainant was called"Fritzl" by an employee of the Respondent, Mr B, whichis a reference to a high profile criminal case in Austria in 2008. He said that theComplainantwhoisPolish speaks withaforeign/non - Irish accent and the offensive association between him and Josef Fritzl was made solely because of the fact that he was non-Irish.In response to this remarktheComplainantinsulted the colleague back and a number of derogatory comments were made in response.
The Complainant alleged that he was routinely called this name at his workplace by his work colleague.
23rdSeptember 2011
It is alleged that Mr B approached the Complainant on 23rdSeptember 2011 and stated words to the effect that "I cannot wait until you are dismissed from your employment". As Mr B walked away he stated loudly in front of other staff of the Respondent that the Complainant was not to spit at him.
6thOctober 2011
It is alleged that a letter dated 6thOctober 2011 sent from the Respondent to the Complainant amounted to an act of discrimination and victimisation on the part of the Respondent. In that correspondence, the Complainant is accused of acts which he had not been confronted about previously. It was alleged by the Complainant that these accusations were dropped into the middle of a lengthy letter in the hope that they would be overlooked by the Complainant. He submitted that this amounts to victimisation as it is in retaliation on the part of the Respondent for complaints made by him relating to his equal pay claim.
28thOctober 2011
It is submitted that the Respondent's letter dated 28thOctober 2011 amounted to an act of discrimination and victimisation as the Complainant was giving a written warning without applying any disciplinary processes or investigatory processes on foot of events which took place on 23rdSeptember 2011.
Summary of The Respondent’s Position
Ms Sarah-Jane Hillery, B.L., instructed by Patrick J Farrell & Co. Solicitors, on behalf of the Respondent, denied the allegations made. She said that theRespondent employs both Irish and non-nationals and ensuresall employees are treated with dignity and respectbothinterms of working conditions including pay and general workplace
relations and contended that theComplainant hadnotestablished a prima facie case of discriminatory treatmenton thegroundof race/nationality. The Respondent had very high regard for the Complainant’s work.
Equal Pay Claim
The Respondent denied the equal pay complaint and contended that the nominated comparator was paid a higher rate of pay because he was a qualified Mechanic and was the Assistant Service Manager.Ms Hillery said that the reason for the significant difference in pay in June 2010 when the Complainant discovered that the nominated comparator had an increase in his pay was due to the fact that the latter went from working a four-day week to a five-day week at the time. She said that his qualifications differed significantly from those of the Complainant as the nominated comparator has a FETAC Meritin Construction and Plant Fitting.He subsequently obtained an Engineering Degree from the Dublin Institute of Technology.Heworked in a garage prior to his employment with the Respondent and was headhunted for hisexpertise.
Ms Hillery stated that due to his specialist qualifications the nominated comparator was capable of diagnosing complex mechanical problems, he had significantly more responsibility and was assigned supervisory duties. He was responsible forallocating work duties to employees, making senior technical decisions regarding therepair of equipment and dealing with queries from customers.She said that the Complainantwouldnot have been expected to,norwould he have carried out such dutiesand refuted the assertion that they were interchangeable with one another.
In support of the Respondent’s position, Ms Hillery gave details of four Service Technicians whose duties were broadly similar to those of the Complainant. Three of these were Irish nationals and one was a Polish national. There were some differences in the qualifications and experience of these four, one of the Irish national Service Technicians earned €19,864 as he had two years’ more experience with the Respondent and also had event management responsibilities. Two Irish nationals earned less that the Complainant as they had less experience and the remaining Polish Service Technician was earning €20,037 as he was a qualified Mechanic and had longer experience than the Complainant.
Harassment/Victimisation Claims
Ms Hillery denied the allegation of harassment and victimisation. She stated that the Respondent has a robust bullying and harassment policy in place which forms part of each employee's Handbook and terms and conditions of employment.
She said that the Respondent treated the complaint regarding the alleged incident of 11thApril 2011 very seriouslyand tookreasonablypracticable steps to preventharassment.It was addressed by the Respondent at a meeting with the Complainant on the morning of 20thApril and was followed up with a letter to him dated 10thMay 2011 which stated that the Company had a zero tolerance policy to any form of bullying and harassment. Furthermore, the Respondent informed the Complainant that the employee who was alleged to have made the discriminatory remarks was given a warning that no form of discrimination would be tolerated under any circumstances.
Ms Hillery referred to the incident which occurred on 23rdSeptember 2011 in which it was alleged by a fellow employee that the Complainant assaulted him. This employee alleged that the Complainant spat at him and threw a ratchet at him. The Respondent instigated an investigation into the allegations and witnesses were invited to furnish a written report setting out their version of events. The Respondent invited the Complainant to set out his version, in Polish if he wished, however, he declined to do so. Therefore she refuted the allegation that there was any form of discriminatory treatment or victimisation.
A meeting took place on 5thOctober 2011 in which the Complainant was
offered the opportunity to have another work colleague orindependent third party present to support him and this invitation was declined. A number of issues was
discussedincluding theincident of 23rdSeptember 2011. By letter dated 6thOctober 2011 the Respondent furnished him with a written warning over his unacceptable conduct to other colleagues and his failure to participate in the investigation.
When the Complainant sought to appeal the written disciplinary warning, the Respondent suggested that in the interest of fairness the appeal should be referredfor
investigation and adjudication to an independent third party such as the Conciliation Service or Rights Commissioner Service of the Labour Relations Commission, however, the Complainant failed to participate in this process.
Conclusions of the Court
The Court heard witness testimony from the Complainant; Mr Liam Ross, Managing Director of the Respondent organisation; Mr Jackson, nominated comparator; and Mr Darius Bednarczuk, Service Technician.
Equal Pay Claim
Before the Court the Complainant stated that he had for some considerable period of time been seeking an increase in his rate of pay but to no avail. When he discovered that one of his colleagues had received an increase in pay and he had not, he again approached the Respondent about an increase in his pay. However, the claim that was submitted to the Equality Tribunal was a claim for equal pay pursuant to Section 29 of the Acts.
Before the Complainant can succeed in an equal pay claim it must be established that he and the nominated comparator were engaged in like work. Like work is defined by Section 7(1) of the Act. This provides as follows: -
- —(1) 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 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 regard to such matters as skill, physical or mental requirements, responsibility and working conditions.
- (a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,
In order to see whether or not the work of the Complainant and the nominated comparator in their respective roles are equal in value as per Section 7(1)(c), the Equality Officer examined same under the headings of skill, physical or mental requirements, responsibility and working conditions. As the Complainant had also claimed like work within the meaning of Section 7 (1)(a) and (b), she also considered whether each of the roles constituted like work as per those Subsections.
The Equality Officer found:-
“Skill:
Both serviced golf buggies. However the Complainant only dealt with the simple tasks e.g. checking batteries, replacing water etc. On the other hand, Mr A [the nominated Comparator] 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 [the Managing Director]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. The Complainant 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.
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 the Complainant did not perform like work with Mr A in terms of Section 7(1)(c) of the Acts.
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, the Complainant is not entitled to equal pay with Mr A.”
Harassment Claim
The Complainantmade various complaints to the Equality Tribunal on 9thNovember 2011 concerning incidents which he contended amounted to discrimination on the ground of his nationality and victimisation as a consequence of making a complaint of discrimination to his employer. The reference to being called “Fritzl” occurred more than six months from the date on which the matter was referred to the Equality Tribunal and was, accordingly, outside the time limit prescribed by Section 77(5) of the Acts. However, the Complainant alleged that he was routinely called this name at his workplace by his work colleague.
In Determination EDA 1124,Ann Hurley v County Cork VEC,the Court considered the circumstances in which discrimination can be held to be continuous for the purpose of applying the time limit in Section 77 of the Act. Section 77(5) provides that the time limit runs from the most recent occurrence of the discrimination complained of. Section 77(6A) provides that where discrimination extends over a period the time limit runs from the end of that period.
In the instant case, the Complainant maintained that the reference to being called “Fritzl” was a manifestation of the discriminatory treatment on a continuous basis and comes within the time limit.
In these circumstances the case turns on whether or not the Respondent, as the employer of the perpetrator of the alleged harassment in issue, can be fixed with liability for that act of harassment.
- Section 14A of the Act provides: -
- (1) For the purposes of this Act, where—
- (a) an employee (in this section referred to as “the victim”) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as “the workplace”) or otherwise in the course of his or her employment by a person who is—
- (i) employed at that place or by the same employer,
(ii) the victim's employer, or
(iii) a client, customer or other business contact of the victim's employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or
- (i) such harassment has occurred, and
(ii) either—- (I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or
(II) it could reasonably be anticipated that he or she would be so treated, the harassment or sexual harassment constitutes discrimination by the victim's employer in relation to the victim's conditions of employment .
- (I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or
- (i) employed at that place or by the same employer,
(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable—- (a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and
(b) in a case where subsection (1) (b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim's employment and, if and so far as any such treatment has occurred, to reverse its effects.
- (a) an employee (in this section referred to as “the victim”) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as “the workplace”) or otherwise in the course of his or her employment by a person who is—
- (1) For the purposes of this Act, where—
In a situation where there is continuing harassment the defence provided by Section 14A(2)(a) will normally succeed or fail on the adequacy of the employer’s response to any complaint made by the victim. Hence, where an employer fails to conduct an adequate investigation, or fails to apply adequate sanctions on a harasser, the employer will be fixed with liability for any subsequent acts of harassment.
The Court is satisfied that the Respondent took steps which were reasonably practicable following the incident complained of in April 2011 and is satisfied that such action was taken to prevent further incidents of harassment. No further complaints of this nature were brought to the Respondent’s attention. Furthermore, the Court notes that the Respondent had a Dignity at Work Policy in place which makes it clear that harassment of all forms is unacceptable and is satisfied that that Policy was properly disseminated and in this instance was fully implemented and adhered to.
The Court notes that the incident which occurred within the time limit, i.e the23rd
September 2011 incident, involved an altercation between the Complainant and a work colleague over who was going to drive a Land Cruiser which resulted in the Complainant being accused of assaulting his work colleague. However, there appears to be no reference of aracist nature directed at the Complainant’s nationality. The Respondent carried out an investigation which the Complainant refused to participate in. In such circumstances the Court finds no grounds to substantiate a claim of discrimination.
Victimisation Claim
Section 74(2) of the Acts provides, in effect, that victimisation occurs where a person is subjected to adverse treatment as a reaction to,inter alia,a complaint of discrimination made by him to his employer. That suggests that‘but for’the complaint the Complainant would not have suffered the detriment. The detriment relied upon by the Complainant was the assertion that he was issued with a written warning and false accusations were made against him by the Respondent in its letters dated 6thOctober 2011 and 28thOctober 2011. He submitted that this was an act of victimisation in consequence of his equal pay complaint.
In his evidence to the Court the Complainant stated that he had been seeking an increase in his pay for some time, including prior to June 2010 when he discovered that his colleague had a pay increase and he felt aggrieved at this, however, he did not contend at the time that the reason for the difference in pay was due to his nationality. Therefore, this could not be described as a complaint of discrimination. In these circumstances it could not be held to be victimisation within the meaning of Section 74 of the Acts. However, for the sake of completeness, as the Complainant had made a complaint of discrimination regarding the incident complained of in April 2011, the Court will examine the allegation that he was victimised for so doing.
Following the meeting held on 5thOctober 2011 which dealt with theincident of 23rdSeptember 2011, the Court is satisfied that the written warning which issued was related to his conduct towards other colleagues and as he failed to participate in the investigation process it was not unreasonable of the Respondent in the circumstances to issue such a warning.
In such circumstances the Court is satisfied that there was a reasonable explanation for the written warning contained in the letters complained of and finds that the Complainant was not victimised within the meaning of Section 74 of the Acts.
Determination
For the reasons set out above the within appeal is disallowed and the Decision of the Equality Officer is affirmed.
Signed on behalf of the Labour Court
Caroline Jenkinson
17th November 2014______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.