EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-163
PARTIES
DUSAN STIPALA
-V-
LONGFORD POOL CONSTRUCTION LIMITED
(Represented by Daniel Rooney
Secretary of Longford Pool Construction Limited)
File reference: EE/2014/027
Date of issue: December 2015
HEADNOTES: Employment Equality Acts – Race – Equal Pay
1. DISPUTE
This case concerns a complaint by Dusan Stipala (the “Complainant”) of Slovak nationality, that he was discriminated against on the grounds of race, within the meaning of Section 6(2) (h) of the Employment Equality Acts 1998-2008 (the “Acts”) by Longford Pool Construction Limited (the “Respondent”) for failing to provide equal remuneration to him as required by an equal remuneration term by comparison with named comparators of Irish Nationality who performed like work, contrary to Section 29 of the Acts.
1. The Complainant referred his complaint under the Acts to the Director of the Equality Tribunal on the 25th of January 2014. A submission was received from the Complainant on the 5th of February 2014. A further submission from Connellan solicitors who were solicitors for the Claimant at the time on the 9th of January 2015 and then a submission from the Respondent was received on the 18th of March 2015. On the 2nd of September 2015 in accordance with his powers under Section 5 of the Acts the director delegated the case to me Marguerite Buckley an Equality Officer for investigation hearing and decision and for exercise of other relevant functions as the Director under part VII of the Acts. On this date my investigation commenced. As required by Section 79 (1) of the Acts and as part of my investigation I proceeded to hold a hearing of the case on the 11th of September 2015.
This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
Preliminary Application
2.1 At the outset of the hearing the Respondent requested an adjournment. The Claimant had been absent from work due to illness for a number of dates prior to the hearing date. The Respondent did not wish to proceed with the hearing as he did not wish for the Claimant to fall ill for the reasons he was on sick leave, namely have an asthma attack. The Claimant gave evidence that he had booked the date off as an unpaid day a number of weeks before the hearing. He stated that the sick certificate he submitted from his GP referred to dates up to the hearing date, but not including the hearing date. The Respondent did not wish to proceed without a “back to work certificate” being provided by the claimants GP confirming that the claimant was fit to attend work.
2.2 I adjourned the case for a short period of time to allow the Respondent to take legal advice.
2.3 When the case recommenced the Respondent advised that he would proceed with the case.
Complainants Case
3.1 The Complainant commenced employment with the Respondent on the 14th of July 2007. He was hired initially as a gym instructor and received a job description for same. At a later date, he was given a job description as a leisure attendant which encompassed both working in the gym and the swimming pool at the Respondents premises in Longford town.
3.2 The Complainant was paid an hourly rate of €10.40. He worked 39 hours per week.
3.3 The Complainant argued that he was paid less than three named comparators for doing like work because of his nationality.
4.1 The Claimant was trained as a gym/fitness instructor in Slovakia and holds a lifeguard qualification from the Irish Water Safety Authority.
4.2 The named comparators were MDS and DM who work on a full time basis as leisure attendants covering both the gym and the pool. DM commenced employment with the Respondent, working in the pool only. Three years ago DM became a gym instructor also. ST works on a full time basis also. All three are of Irish nationality. All comparators also started working for the Respondent in 2007.
4.3 All comparators either have given swimming lessons or give swimming lessons. All comparators receive an hourly wage of €13.40. This hourly rate was agreed by the Respondent.
5. The three named comparators were agreed as comparators by the Respondent.
6. The Claimant stated that he was the only foreign national working for the Respondent between the years 2011 and 2014.
6.1 He claimed that there were a number of promotions in the company but they were not offered to him. He stated that nobody asked him if he would upgrade his qualifications to be able to teach swim lessons.
6.2 The Claimant stated that he was not offered the opportunity to improve his qualifications.
6.3. The Claimant claimed that the start date of the discrimination was January 2011 and the discrimination is continuing.
6.4 The Claimant claimed that he works alongside the comparators and does the same work or work of equal value and ought to be paid the same as them.
6.5 On a typical day he is responsible for reception duties, acting as a lifeguard in the pool, working in the gym or the sports hall or on the astro-turf. He is also involved in cleaning the pool area, toilets and closing up the facility at night.
6.6 When queried, the Claimant confirmed that the comparators do similar work but DM and MDS do not work in the gym.
6.7. The Claimant confirmed that all three comparators give or have given swimming lessons in the past. MDS would not have taught swimming lessons for at least 12 months. She ceased teaching swimming lessons once she became pregnant. She has not returned to giving lessons.
6.8 The Claimant does not teach any classes in the gym. The Claimant sets programs and is supervisor of these programs.
6.9 The Complainant produced a job description which was general to leisure attendants working for the Respondent. These listed:
Reception duties
Lifeguard duties
Supervision of all facilities operated by the company
Gym inductions and program design
Teaching of any and all classes as required
Assisting with any and all classes as required
Cleaning and maintenance of all areas operated by the company to ensure high standard of safety and cleanliness
7.1 The Claimant confirmed that he was not involved in teaching of any classes.
7.2 The Claimant confirmed that there was a teaching allowance for swimming lessons that the comparators held but that this was withdrawn due to financial difficulties in the Respondent in 2011.
7.3 The Claimant stated that he believed that the comparators should be treated the same as he is. When their teaching allowance was withdrawn they should have been put on his hourly rate of pay for the weeks that they didn’t teach swimming lessons.
Summary of Respondents Case
8.1 Due to the financial state of the company, a restructuring of staff wages was carried out to reduce costs in 2011.
8.2 The restructuring measures did not involve the Claimant as he did not teach swimming lessons. As a result the Claimant did not suffer any reduction in his income. Other staff including the comparators did suffer reductions.
8.3 It was and is the policy of the Respondent to encourage all staff to upskill and to improve their qualifications. The comparator DM himself has upgraded his skills. Any employee of the Respondent can “pick a course” and seek approval from the Respondent for time off to do the course or even in some cases receive part payment of fees to do a course. An application needs to be made to the Respondent with relevant information to show that it is linked and relevant to their position.
8.4 A number of newly hired staff who are Irish and involved in teaching are paid the minimum wage. These work on a part time basis.
8.5 Before the cost cutting measures in 2011, those members of staff teaching swimming lessons received a teaching allowance. At that stage both the Claimant and the comparators were in receipt of basic hourly rate of pay of €10.40 per hour.
8.6 Because of the withdrawal of the teaching allowance, the basic rate of those who taught swimming lessons was increased to €13.56 per hour. This restructuring took place in 2011.
8.7 In addition to changing the rate of pay for those providing swimming lessons there were other changes to the terms and conditions such as days leave for birthday and holidays.
8.8 The Respondent agreed that the Claimant was paid less than the comparators but argued that the comparators did not do like work with the Claimant. The comparators could give swimming lessons which were a large source of income for the Respondent.
8.9 There was no witnesses for either side.
Conclusion
9.1 The issue for consideration by me is whether or not the Claimant performed “like work” in terms of Section 7(i) of the Acts to the comparators. In reaching my decision I have taken into consideration all of the submission and responses, oral and written made to me by the parties.
9.2 Section 7 (1) of the Acts defines “like work” -
“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 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.”
9.3 In the course of the hearing it became evident that the Complainant and the comparators clearly did not carry out the same work, work of a similar nature or work of equal value.
9.4 The comparators were all trained and qualified and could give swimming lessons and the Complainant could not. The swimming lessons were an important source of income to the Respondent. They did not carry out work of equal value.
9.5 I have completed my investigation of this complaint and I make the following decision in accordance with Section 79(6) of the Acts. I find that the Complainant did not perform like work in terms of Section 7 (1) (a), (b) or (c) with the named comparators during the period in which the comparators were paid more than the complainant.
_____________________________
Marguerite Buckley
Equality Officer
December 2015