EDA1519

The Court heard oral evidence from one witness on behalf of the Appellants (Mr Aleksandrovs) and from Mr McGuinness, a manager with the Respondent.

Background

The Respondent operated a wholesale fruit and vegetable distribution business, at the material time, largely from two adjacent warehouse facilities at Swords Business Park. The Respondent also fulfilled wholesale orders for flowers, particularly at busy times of the year such as Mothers’ Day, Easter and Christmas. A part of the Respondent’s business to which the complaint relates was also conducted from a premises in Coolock. The Appellants were employed by the Respondent to pick fresh fruit and vegetables to fulfil orders for one of the Respondent’s customers, Total Produce Ireland Limited, who at that time had the contract to supply a major supermarket chain both in Northern Ireland and in the Republic of Ireland. The items destined for the supermarkets in Northern Ireland were, for the most part, picked from a bulk delivery received at the premises in Coolock; those for the Republic of Ireland were picked at the Swords premises. Occasionally, the former orders were also picked in Swords but in a separate building some 50 metres from the Respondent’s main warehouse.

The Appellants allege that they performed like work with a named Irish comparator – Mr AF – who received an annual salary of €28,698.28 which equated to €551.89 per week. The Appellants were paid €10.17 per hour. They were also paid a premium of €70.00 for working on a Sunday in addition to their normal hourly rate.

It is common case that the Appellants’ average weekly earnings during the 3-month period immediately prior to the date of the complaint were as follows:

• 
  (a) Mr Aleksandrovs €493.68 per week;

  (b) Mr Sidorov €459.68 per week;

  (c) Mr Rikmanis €452.03 per week;

  (d) Mr Timofejus €418.49 per week; and

  (e) Mr Sinicins €490.09 per week.

Position of the Parties

The Appellants

The Appellants’ case is that they were discriminated against by the Respondent on the grounds of race within the meaning of section 6(2)(h) of the Employment Equality Act 1998 (“the Act”) arising from the Respondent’s failure to remunerate them on an equal basis with a named Irish comparator (“the Comparator”) with whom, they submit, they performed like work and that such discriminatory treatment was contrary to section 29 of the Act.

The Appellants chose to put up Mr Aleksandrovs as their sole witness on the basis that there was no material difference between the work performed by all five of the Appellants or their terms and conditions of employment. The witness described his work and that of the Comparator in some detail to the Court. He told the Court that he was fully aware of the work undertaken on a daily basis by the Comparator and that, in his view, both he and the Comparator performed the same type of work i.e. picking fruit and vegetables from the bulk delivery in order to fulfil orders for individual stores. He accepted that the Comparator worked from time to time in a building some 50 metres from where he (the witness) generally worked, however, he had first-hand knowledge of the work done by the Complainant on those occasions as he often walked around to see what was being done there. The witness also stated that he worked on average four days per week to fulfil orders for the Republic of Ireland supermarkets and one day a week with the Comparator at the Coolock location to fulfil orders destined for Northern Ireland. He denied that the Comparator acted in a supervisory capacity vis-�-vis him or any of his fellow Appellants. The witness named three individuals – other than the Comparator - whom he accepted did have a supervisory role. They included one Latvian national. The supervisors reported directly to the manager, Mr McGuinness (who gave evidence on behalf of the Respondent).

The witness accepted that the Comparator, in addition to his general picking duties, was responsible for picking a small number of orders for flowers, normally approximately 5 to 10 orders per week and this took no longer than 10 to 15 minutes, in the witness’s opinion. This work was done at the location referred to earlier, some 50 metres from the witness’s normal workstation. On special occasions such as Mothers’ Day, the number of orders for flowers increased and the witness also worked to fulfil orders for flowers on those occasions.

The witness did not accept the Respondent’s manager’s evidence to the Court that he personally gave the pick list for the Northern Ireland orders to the Comparator on a daily basis. According to the witness, that list was given randomly to anyone of the pickers, including himself, who was present and available to receive it.

Finally the witness told the Court that the Complainant did not perform any particular duties which could not be performed by any one of the non-supervisory pickers if the Complainant was absent from work.

The Respondent

The Respondent fully accepts that there was a disparity between the Comparator’s salary and the average gross wages earned by the Appellants. However, it submits that the difference in question is not attributable to unequal treatment on the grounds of race but is accounted for by the additional responsibilities undertaken by the Comparator. The Respondent submitted five specific examples of such additional responsibilities (each of which is disputed by the Appellants):

• 
  (a) The Comparator was responsible for checking the “bulk” of product each day before individual orders were picked;

  (b) The Comparator was responsible for ensuring that there was sufficient product available to meet the daily orders and liaised with the retailers if a shortfall occurred;

  (c) The Comparator liaised directly with the supplier if a difficulty arose in connection with the delivery of an order;

  (d) The Comparator had sole responsibility for all plants and flower orders;

  (e) The Comparator supervised and directed the pickers on the Northern Irish line;

Evidence was given on behalf of the Respondent by Mr McGuinness who was the overall manager of the operation in Swords at the material time. The supervisors at the site reported directly to him. Mr McGuinness told the Court that the Comparator supervised the picking operations to fulfil the orders for the Northern Ireland stores and that the witness for the Appellants was sometimes (but not regularly) assigned to work with the Comparator. Of the Appellants, he believed Mr Sinicins worked most frequently with the Comparator. According to Mr McGuinness, the Comparator worked away from the main centre of operations in Swords for much of the time: at busy times of the year the Comparator could be at the Coolock site from 10 days up to 2 weeks at a time where the Northern Ireland orders were most often fulfilled.

Mr McGuinness also told the Court that the Comparator was responsible for checking the bulk order each day. If there was a shortage of product to fulfil particular orders, the Comparator was required to telephone Mr McGuinness who then directed him as to what items could be substituted for those in respect of which there was a shortfall. Mr McGuinness’s evidence was that he gave the pick sheet for Northern Ireland to the Complainant each day and it was the latter’s responsibility to amend that sheet as required. He also stated that he never gave the list to a non-supervisor picker, including the Appellants. If the Complainant was absent, he gave the list to whichever one of the other supervisors was deputising for him.

Conclusion

The Court, in this case, was presented with two diametrically opposing views of the key issues and facts. However, having considered in detail both the parties’ written submissions and the evidence tendered by the witnesses, the Court finds that the Appellants have failed to establish that they performed work of equal value to that of the named Comparator. It follows, therefore, that the disparity between the Appellants’ rate of pay and that of the Comparator does not give rise to an inference of less favourable treatment on the race ground such that the evidential burden of disproving discriminatory treatment shifts to the Respondent. Nevertheless, the Court accepts the Respondent’s explanation that the aforementioned disparity in rates of pay arises as a consequence of the additional duties undertaken by the Comparator, as outlined to the Court by Mr McGuinness.

Determination

For the reasons set out above, the Court determines that the appeal fails and the decision of the Director of the Equality Tribunal is upheld.

Signed on behalf of the Labour Court



Alan Haugh
30th November 2015______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.