EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-052
PARTIES
Noel Cantwell
-AND-
G4S Secure Solutions (IRE) Limited
File Reference: EE/2013/527
Date of Issue: 31st March 2016
1. DISPUTE
1.1 This dispute concerns a claim by the Complainant that he was discriminated against by the Respondent on the grounds of age contrary to Section 6(2)(f) of the Employment Equality Acts (hereinafter also referred to as ‘the Acts’) in that he performs ‘like work’ in terms of Section 7 of the Acts with a named comparator and is therefore entitled to equal remuneration in accordance with Section 29 of the Acts.
1.2 The Complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 9th October 2013. On 2nd September 2015, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Aideen Collard, an Adjudication / 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 which date my investigation commenced. Submissions had been sought and received from the Parties. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 2nd October 2015. Both Parties represented themselves with witnesses from Management and HR attending on behalf of the Respondent. Additional documentation and submissions from both Parties clarifying the contractual position of the Complainant and his Comparator were received subsequent to the hearing and all oral evidence presented and submissions and documentation submitted before, during and after the hearing have been taken into consideration. I also indicated that I would be relying upon the key statutory provisions and relevant case law in my consideration of this matter.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission (hereinafter ‘WRC’) on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83 of the Workplace Relations Act 2015.
2. PRELIMINARY OBJECTION
2.1 The Respondent raised a preliminary objection to the complaint herein on the basis that the Complainant has not identified an appropriate comparator as being required to found an equal pay claim.
2.2 There was no dispute between the Parties that the Complainant was employed on a casual part-time basis as a Stewarding Supervisor by the Respondent at events held at Thomond Park Stadium, Limerick for approximately 12 days per year. He is 63 years of age and is paid €9.34 per hour for the hours worked.
2.3 The Complainant identified his Comparator as Mr D, who is approximately 47 years of age. He contends that at a rate of €10.75 per hour, Mr D is paid more than the Complainant for doing ‘like work’ or work of equal or less value at the same events at Thomond Park Stadium on various dates during 2012 and 2013 and that this disparity amounts to pay discrimination on the grounds of age under the Acts.
2.4 The Respondent submitted documentation and proffered evidence confirming that the named Comparator, Mr D is misconceived and he is in a completely different position to the Complainant. Firstly, he has a separate long-term full time contract with the Respondent as a Security Supervisor based at Shannon Aerospace in respect of which he is paid at a rate of €10.75 per hour in accordance with various collective agreements. Secondly, events at Thomond Park Stadium are stewarded using a mix of volunteers and paid security staff. There is a practice of existing staff assisting at such events, which are primarily rugby matches, on a voluntary basis in return for free entry and/or tickets. Mr D only ever worked on a voluntary basis at such events and therefore never received any remuneration for such work. The Respondent also submitted that all stewards/supervisors in the Complainant’s position regardless of age are paid the same rate per hour and submitted documentation confirming same. On this basis, the Respondent submits that this claim is also totally misconceived. The Complainant refuted the Respondent’s position but was unable to provide any evidence demonstrating a contrary position.
3. FINDINGS AND CONCLUSIONS OF THE ADJUDICATION / EQUALITY OFFICER
3.1 The issue for decision is whether or not the Complainant has identified an appropriate comparator who was employed to undertake ‘like work’, by which I can determine the substantive issue, being whether he was discriminated against in relation to his pay/remuneration under the Acts on the grounds of age.
3.2 Section 85A of the Acts sets out the burden of proof which applies to all claims of discrimination and requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised. When investigating a complaint, the role of the Tribunal (now WRC) includes undertaking an examination of any conflicts in the evidence presented by the Parties to arrive at reasoned findings of fact.
3.3 Section 7 of the Acts defines ‘like work’ and Section 29 sets out the requirements for establishing an entitlement to equal pay and specifically Section 29(1) which provides that: “It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer.” It is therefore an essential requirement of an equal pay claim under any of the discriminatory grounds for the Complainant to identify a comparator who is employed to do ‘like work’ by the same or an associated employer.
3.4 Having considered all of the evidence submitted, I am satisfied that the named Comparator, Mr D, was not employed by the Respondent when engaged in the same capacity as the Complainant and he is therefore not an appropriate comparator in relation to this claim of pay discrimination on the grounds of age. In particular, I accept the Respondent’s position that whilst Mr D has a separate full-time contract with the Respondent, he was only ever engaged in a voluntary capacity in relation to the work complained of herein. I am also satisfied that the Complainant has been furnished with all relevant documentation and information regarding the nature of both his and Mr D’s employment with the Respondent. The Complainant has not proffered any evidence showing a contrary position.
4. DECISION
4.1 I have concluded my investigation of this complaint and based on the aforementioned, I find pursuant to Section 79(6) of the Act, that as the Complainant has not identified an appropriate comparator required to found his claim of unequal pay for ‘like work’ on the grounds of age and hence establish in the first instance, facts from which discrimination may be inferred, this complaint must therefore fail.
____________________
Aideen Collard
Adjudication / Equality Officer
31st March 2016