DEC-E2015-110

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision DEC – E2015 – 110

PARTIES

Mr Marek Mnichowski

and

Lisnavagh Timber Project Ltd.

File Reference: EE/2012/433

Date of Issue: 27th of October, 2015

Keywords: equal pay – race – S. 29 – like work – S. 7(1)(a) or (b) – no prima facie case.

Claim

1.1. The case concerns a claim by Mr Marek Mnichowski, a Polish national, that he is entitled to equal pay with a named comparator who is an Irish national, in accordance with S. 7(1)(a) or (b) of the Employment Equality Acts, and he is therefore entitled to the same rate of remuneration as paid by the respondent to this comparator in accordance with section 29 of the Acts. The complainant worked as a general operative in the respondent’s woodworking workshop. It is his contention that his named comparator performed like work within the meaning of either S. 7(1) (a) or (b) of the Acts, yet earned more than he did. The respondent disputes that the complainant and the comparator performed like work within the meaning of the Acts.

1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 19 October 2012. On 2 June 2015, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. An initial inquiry was scheduled to take place on 1 July 2015, but needed to be adjourned for need of an interpreter. It then took place on 5 August 2015. During the initial inquiry, it transpired that one of the two comparators which the complainant had originally identified, one had left the employment of the respondent several years earlier to emigrate to Germany, and would not be available as a witness. Accordingly, I advised the complainant that I would investigate his complaint with regard to his other named comparator. Following the initial inquiry, both parties made submissions, which were received on 21 August and 3 September 2015, respectively, and exchanged between the parties.

1.3. A work inspection took place on 13 October 2015. During the initial inquiry, I had advised the complainant of the need to bring a note taker for the work inspection, as he would not allowed to be present during the interview of his comparator. Interviewing the complainant and the comparator separately is normal procedure during work inspections, in order to obtain evidence which is not influenced by someone else’s evidence in any way. The representative of a complainant is always allowed to be present, but in this case, the complainant was unrepresented. The complainant was reminded of the work inspection location and the need for the note taker by letter delivered by courier on 12 October 2015. However, the complainant did not bring a note-taker with him, and the interpreter volunteered herself as his note-taker, which I allowed. Her notes were handed to the complainant at the end of the work inspection.

1.4. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a final hearing of the case on 20 October 2015. The final piece of correspondence was received on 27 October 2015.

Summary of the Complainant’s Written Submission

2.1. It is the complainant’s contention that during the time of his employment with the respondent, he earned €2/hour less than his named comparator for doing the same work, and that this constitutes a breach of the equal pay provisions of the Acts on the ground of race pursuant to S. 6(2)(h) of the Acts.

Summary of the Respondent’s Written Submission

3.1. The respondent accepts that there was a difference in remuneration between the complainant and his named comparator. It is the respondent’s contention that this difference arose because the named comparator was the workshop manager, whereas the complainant was employed as a general operative. It is the respondent’s case that the position of manager carries much greater responsibilities, and that it cannot be said, therefore, that the complainant and his comparator performed “like work” within the meaning of the Acts. In particular, the respondent argues that the manager’s duties included responsibilities for health and safety, timber sales, responding to complaints and various other customer-facing duties which the complainant as a general operative did not have.

Conclusions of the Equality Officer

4.1. The issues for decision in this case are whether the complainant and her comparator are engaged in like work as defined in S. 7(1)(a) or (b) of the Acts, and if so, whether there are grounds other than their different nationalities for the difference in their remuneration.

4.2. S. 7(1)(a) defines “like work” as follows: “both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work. I explained to the parties in the course of the initial inquiry that this is essentially a factory-line scenario.

4.3. S. 7(1)(b) defines “like work” as follows: “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.”

4.4. Both the complainant and the comparator worked at the respondent’s premises on the Lisnavagh Estate, Rathvilly, Co. Carlow. I interviewed them about their exact duties during my work inspection on 13 October 2015 and these duties are listed in the appendix to this decision.

4.5. During the final hearing of the complaint, the complainant walked out of the hearing after I had asked for his evidence. I then took the respondent’s evidence, which consisted of only two statements, one of which confirmed the complainant’s evidence, and the other one was in the complainant’s favour. I wrote to the complainant on the same day informing him of these statements and giving him an opportunity to comment. The complainant did not avail of this opportunity.

4.6. In terms of the burden of proof that rests on the complainant, the Labour Court has consistently held that “the existence of like work between a Complainant and a comparator is a condition precedent to any entitlement of equal pay under the Act. This is question of fact and degree. It is for the Complainant to prove, on credible evidence of sufficient weight, that he was engaged in like work within the statutory meaning.” [Donegal Meat Processors v. Rodrigo Da Silva Dias, EDA093]

4.7. I wish to note that job titles are of no relevance with regard to establishing a prima facie case of like work, and that establishing such a case depends solely on the actual work performed by the complainant and the comparator. The complainant, in his submission containing his work description, did not provide any work description for his comparator. During my work inspection, it became clear that the duties of the complainant and those of his comparator Mr M. are very different in complexity and responsibility. The complainant contended that before Mr M became his manager in May 2012, they performed “like work”, but did not provide any proof for it beyond this general assertion. Furthermore, while the Acts do allow looking back or forward for a period of three years, I am satisfied that this is meant to cover situation where one worker either precedes or succeeds another one in the same role for different pay. I am satisfied that in the absence of any such argument or cogent evidence to the contrary, I am entitled to examine the work performed by a complainant and his or her comparator at the time the complaint was made.

4.8. Based on all of the foregoing, I am therefore not satisfied that the complainant and Mr M. perform “like work” within the meaning of either S. 7(1) (a) or (b) of the Acts, and that the complainant’s case must therefore fail.

Decision

5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Actsand section 41 (5) (a) (iii) of the Workplace Relations Act 2015, that the complainant did not perform “like work” with a named comparator of French nationality in terms of either S. 7(1)(a) or (b) of the Employment Equality Acts 1998 – 2011. Hence I find that the complainant has no entitlement under the legislation to the same rate of pay as that paid to his original comparator.

___________________________

Stephen Bonnlander

Equality Officer/Adjudication Officer

27 October 2015

Appendix: Work Descriptions of the Complainant and the Comparator

Complainant:

The complainant reported to the comparator when the complaint was lodged. His duties included:

· start at 8am, break for tea at 10:15 and finish at 5pm.

· Prepare wood for clearing, plane wood to different levels of thickness, select logs depending on orders to avoid waste.

· When there was a shortage of timber, the logs which came from the kiln were cut into boards and then into shorter pieces according to requirements.

· The complainant was then involved in the production process to the finished board, as well as in packing boards for shipping. He did not do engraving or marking.

· In terms of who was his supervisor, the complainant stated that he did not have it in writing who he reported to. However, he stated that his comparator was his supervisor at the time he filed the complaint.

· The complainant was not managing staff.

· He had no involvement in complaints and no client contact.

· He had no responsibility for stock control, only to check numbers on the timber for the inventory.

· He had no involvement in the sales process.

· In response to the question of what would happen if he were out sick for a week, the complainant stated that production levels would fall.

Comparator:

The comparator, Mr M., reports to the owner of Lisnavagh Timber Project, Mr B. He holds a FETAC level 5 carpentry qualification and is also trained in wood turning.

His duties include:

· Start at 8am with the opening of the workshop. Look at orders and make a list of products to hand to staff, be involved in production, pack orders, take phone calls. Also look after production issues, quantities, selecting the timber, checking the moisture content of the timber and loading the kiln for kiln-drying. Close the workshop at 5pm, deliver parcels to Carlow.

· In the evening, computer work: entering trees on database, giving each tree a log number in line with the respondent’s traceability programme, taking in timber from the estate and from outside suppliers. According to Mr M., he finishes at 5pm about 60% of the time, or else later because of these duties.

· Mr M. has between two and three staff to manage, including the complainant, and looks after health and safety, basic discipline like lates, while escalating more serious issues to Mr B. He is also involved in the interviewing and hiring of new staff.

· Mr M. is responsible for stock control in the business. The inventory is updated at the end of the month, from weekly lists which the workers provide.

· Mr M. is taking phone calls when the sales assistant is not around.

· Mr M. is responsible for timber sales to outside customers for woodworking projects, including selection, costing, rough cutting, planning and sanding.

· Mr M. estimates that if he were out sick for a week, the workers would get by with supervision from Mr. B.