Complainant

Respondent

Parties

Daniel Burdacki

Slaney Foods International Unlimited Co.

Complainant

Respondent

Anonymised Parties

Meat Trimmer

Food Producer

Representatives

Krystian Boino, Hoban Boino Solicitors

Siobhan McGowan, Alastair Purdy & Co. Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00022936-001

30/10/2018

The complainant has been employed on a full-time basis as a Meat Trimmer by the respondent since September 2002. The complaint is in relation to the situation whereby it is claimed that a group of workers performing the same duties as the complainant and who are Irish are remunerated at a higher rate than the complainant is. The complainant is Polish.

The complainant is discriminated against on the grounds of race in that he performs the same work as named comparators who are of a different race but receive a lower pay rate.

The complainant is Polish and the comparators are all Irish nationals.

Attempts by the complainant to obtain an explanation from management for the different rates of pay have been unsuccessful.

There can be no objective justifiable reason for the difference in pay for equally skilled long term workers, particularly where a set pay scale exists.

The complainant is duly remunerated in line with his appropriate skill level and at the same scale as all other nationalities working at that skill level.

Arising from technological streamlining in the workplace and following consultation with the workforce, pay was restructured in 2010 which resulted in the abolition of an A rate for Trimmers.

As part of that restructuring Trimmers who were on the higher A rate and had experience of Boning were red circled in recognition of their ability of being able to work in the Boning section and to maintain their earnings.

The group of workers who were red circled at that time included non-Irish nationals.

This complaint was heard in conjunction with the complaints contained in ADJ-00017765 and ADJ-00017766 which were presented by work colleagues employed in the same category as the complainant.

The complainant commenced employment with the respondent in September 2002 as a Trimmer in the respondent’s meat processing factory. Prior to 2010 there was a Boning section housed in a different building from the Trimming section but due to technological changes both sections now operate in the same building in close proximity to each other. Allied to these changes in 2010 a new pay structure was introduced after consultation with the workforce. According to the respondent, prior to that date some Trimmers who possessed a skill set that enabled them to work in the Boning section if necessary were paid what was termed an “A rate” of pay. This rate was abolished as part of the pay restructure but any employees who were on the “A rate” at that time were allowed to maintain that rate on a red circle basis. The employees concerned on the “A rate” were mainly Irish but also included one Czech national.

The wage structure that operates at present is made up of three elements, an hourly rate, an attendance bonus and a productivity bonus. The attendance bonus applies equally to all categories of the production staff and is not a factor in the complaint. The complainant’s rate as a Trimmer is €7.73 per hour plus productivity bonus (plus attendance bonus). The “A rate” Trimmer earns €8.47 per hour plus a productivity bonus that is 50% greater than that applying to the complainant (plus attendance bonus).   Overtime rates are also proportionately different between the two grades. The complainant named four employees who earn the “A rate” as comparators.

The complainant first raised the issue in October 2017 when he sent an email to the HR Manager complaining about some Irish colleagues being paid more for doing the same work and stating that he felt discriminated against in that regard.   He sent a further email in April 2018 and had a meeting with a member of the HR Department in May at which he was promised a response. The complainant referred his complaint to the WRC on 31 October 2018 as he was not satisfied with the respondent’s response.

The respondent, in their submission, raised the issue of the complaint being statute barred.   The respondent noted that the complainant was employed by them at the time of the wage restructuring in 2010 and would, therefore, have been aware of the arrangements whereby the “A rate” was applied to certain Trimmers. Again in 2017 there were further proposals in relation to changes in pay scales.   Individual meetings were held with each employee and there was a trial run of the new mechanisms for determining pay. After this trial run each employee was given a choice of remaining on their present rate or transferring to the new rate which the respondent contended would have increased the complainant’s earnings. The complainant opted for the old rate. The complainant’s representative stated that the complaint referred to an act that extended over a period and was still on-going and reference Section 77(6A) of the Act in this regard.

The complainant has clearly set out in his complaint form that this complaint is in regard to the issue of non-receipt of equal pay because of his race.

Section 29 of the Employment Equality Act states:

(1)    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 that 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.

(2)    For the purposes of subsection (1), in relation to a particular time, a relevant time is any time (on or after the commencement of this section) which falls during the 3 years which precede, or the 3 years which follow, the particular time.

(3)    For the purposes of this Part, where D’s employer is an associate employer of C’s employer, C and D shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment.

(4)    Section 19(4) applies in relation to C and D as it applies in relation to A and B, with the modification that the reference in it to persons of a particular gender (being As and Bs) is a reference to persons (being Cs and Ds) who differ in a respect mentioned in any paragraph of section 28(1) and with any other necessary modifications.

(5)    Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.

Section 28(1) states:

For the purposes of this Part, “C” and “D” represent 2 persons who differ as follows:

(g) in relation to the ground of race, C and D differ as to race, colour, nationality or ethnic or national origins or any combination of those factors.

In his submission the complainant named 4 employees as comparators. It is accepted that these employees are working as trimmers but are paid the “A rate”.  It is also accepted that the comparators are all Irish. The respondent’s submission is that the events that led to the decision to red-circle some employees occurred in 2010. At that time the respondent employed a total of 72 workers in the Boning / Trimming sections. These comprised of 23 Boners, 11 “A rate” Trimmers and 38 “B rate” Trimmers. As noted, the “A rate” was applied to Trimmers who, as required, could also perform the Boning function. The Boning was done in a separate building to the Trimming. A re-organisation resulting from new technology introduced a more streamlined operation with the Boning and Trimming now taking place in adjacent areas in the same building. According to the respondent this also reduced the requirement for the number of employees classed as Boners. Pay was restructured as part of this rationalisation and it was decided to in future have one rate for Trimmers. Five employees who were Trimmers on the “A rate” were red-circled at this time. The respondent’s evidence is that this was done in order to preserve their earnings and maintain the ability for them to perform boning if necessary. Four of these employees were Irish and one was Czech.   Of the “B rate” Trimmers, 34 were Polish, 3 were Irish and there was 1 Czech. I note that the respondent states that this arrangement was arrived at following consultation with the employees but that no written record of an agreement could be produced in this regard. I also note that there was no evidence that any issue was raised by the respondent at that time. In 2012 the Czech worker on the “A rate” left the employment of the respondent and even though he returned within weeks he was placed on the “B rate” as he had broken his service.

The respondent has argued that the complainant’s skills are not at the same level as that of the comparators and that, without prejudice to other matters, the claim for equal pay cannot succeed. Section 7 of the Act states:

(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 as a whole, or

(c)     the work performed by one is equal to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

There is a difference in opinion as to whether the employees on the “A rate” continued to be utilised in the Boning section since 2010. The complainant and his two colleagues at the hearing stated that they had not witnessed such utilisation. The respondent said in evidence that the employees could step up if required but accepted that, in practice, it happened infrequently. In my opinion, therefore, the difference identified by the respondent, i.e. the ability to upskill to the Boning section, occurs with such irregularity as not to be significant as a whole.

In 2017, as set out above, the complainant raised the issue of different pay rates with management as he was aware of it and, according to his evidence, had been given different explanations in this regard, including that it was for Irish employees or that it was based on service. Whilst the complainant was unhappy with the manner in which the respondent dealt with the grievance it is accepted that there was a meeting between the complainant and the Production Manager at which the Manager explained the background to the different wage rates. The complainant in evidence said that while he understood what red-circling meant he was not satisfied with the explanation and emailed the HR Dept. requesting a written explanation. There was a meeting with a HR Manager but according to the complainant there was no follow-up.

According to figures supplied by the respondent in November 2017 there were 4 “A rate” Trimmers, all Irish, and 44 “B rate” Trimmers consisting of 10 Irish and 34 Polish workers. As noted, a further re-structuring exercise was engaged in by the respondent in 2017 which introduced new mechanisms for the determination of pay and the complainant opted to remain on his existing pay structure.

Section 85A of the Act states:

(1)    Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

In the jurisprudence of the Labour Court the test for applying this notion is that developed in Southern Health Board v Mitchell (2001) E.L.R.201 in which the Court adopted the following analysis of Article 2 of the Burden of Proof Directive:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

The facts that the complainant has established is that he is performing like work to that performed by 4 named persons and that he is remunerated at a lesser rate than they are.   The complainant is of Polish nationality and the comparators are all of Irish nationality.  In his own submission the complainant accepts that the comparators comprise a small group of the workforce.

In Intesa Sanpaolo Life Ltd. v Nowak (EDA1840) the Court stated:

“It is settled law that, in circumstances such as this, the mere coincidence of nationality and a perceived detriment is not sufficient to ground a complaint of discrimination. Something more must be established that would suggest the possibility that there is a relationship between these two facts.”

The respondent’s evidence is that the difference exists because of a decision to red-circle the remuneration of 5 employees (4 Irish and 1Czech national) in 2010. There were two factors involved in this decision.   The pay level of these employees was maintained as it was the decision of the respondent not to utilise their skills in the Boning Hall. The employees concerned still had the ability to perform those skills if required.  Section 29(5) of the Act permits an employer to pay different rates of pay to different employees provided that it is done on grounds other than discriminatory grounds.

Red-circling of an employee or employees for pay purposes has been accepted by the Court in a number of cases. In Campbell v Minister for Transport(1996 E.L.R. 106) the Court accepted red-circling “where for specific reasons an individual or group may not be required to perform what would normally be considered the full list of the duties of their grade and an arrangement is made whereby those concerned retain their grade while being reassigned to duties which, in the normal course, would attract a lower rate of pay.”   It is not necessary therefore that the red-circled employees continue to utilise their full range of skills.

It would have been helpful if such an arrangement had been committed to paper. In examining the breakdown of grades provided by the respondent, however, it appears to me that this is consistent with the fact that a red-circling exercise had occurred insofar as in 2017 there were only 4 persons on the “A rate” and the “B rate” included 10 employees of Irish nationality.  There were in 2017 more Irish nationals on the “B rate”, which the complainant was on, than were on the “A rate”.  I therefore accept that the respondent decided to maintain the comparators’ rate of pay / bonus for the reasons outlined in evidence.

I must state that the respondent could have engaged more actively with the complainant when he first raised the issue in October 2017. It is inherent in any grievance procedure that matters are dealt with in a timely manner. I find the respondent’s decision to pay the “A rate” to certain Trimmers is attributable to grounds unconnected with the ground of race.

Having regard to the evidence before me, however, I find that the complainant has not established a prima facie case of discrimination based on the ground of race and consequently the complaint fails.

Complaint No. CA-00022936-001:

For the reasons outlined above I find this complaint not to be well founded and it accordingly fails.