EDA202

This is an appeal by Gregorz Szyszka (the Complainant) against the Adjudication Officer’s Decision ADJ-00017765 in his complaint of discrimination on the ground of race by Slaney Foods International Unlimited Company (the Respondent). The complaint was made pursuant to the Employment Equality Acts 1998-2015 (the Acts). The Complainant submitted his claim on the 31st October 2018, claiming that his employer failed to provide him with equal pay. The Adjudication Officer found that the complaint was not well-founded.

Background

The Complainant is employed with the Respondent since 24h July 2006 and at all times worked as a Trimmer. It is his case that there are two rates of pay in operation an “Irish Trimmers rate” and a “Trimmers rate” and that the “Irish Trimmers” rate is a higher rate. The Respondent disputes that there are two rates.

Summary of Complainant’s case

From the commencement of the Complainant’s employment with the Respondent he was paid a B Trimmers hourly rate of €7.73, an attendance bonus of €8.83 and a B rate Bonus of 100%. He then discovered that Irish Trimmers were on a different hourly rate of €8.47 an attendance Bonus of €8.83 and an A rate Bonus of 150%. The Complainant identified four named Comparators who were Irish and who were receiving the higher rate of pay. It was his submission that he and his nominated Comparators were doing “like work” within the meaning of the Act.

Respondent’s position

The Respondent denied that the Complainant was subjected to discrimination, either directly or indirectly. It is accepted that the Complainant and the nominated Comparator were doing “like work”. However, the Comparators were on a red circled rate. There are Irish Trimmers on the same rate as the Complainant. It was the Respondent’s submission that in fact there were more Irish on the same rate as the Complainant than there were on the red circled rate. The red circled rate also included a non- Irish national who was of a different nationality to the Complainant.

The Respondent stated that in 2002 the Sheep boning hall was closed down and staff who were employed as boners in that hall were transferred to the beef boning facility where they were incorporated in to what was known as the A Trimmer rate. At the time of the transfer they were told there would be no diminution in their rate of pay. At that time the category of “Trimmer” was divided into the A rate and B rate depending on the skillsets you held. The A rate applied to worker’s with higher skill sets for instance having boning skills or being a qualified butcher. The Complainant was employed on the B rate because of the skill set he held at the time he commenced work. In 2010 following negotiations with the Union during a difficult trading time the A rate Trimmers were red circled, and nobody has been recruited on to that rate since 2010. At the time of the red circling there were only Irish nationals and 1 Czech national on the rate. However, previously there had been a broad range of nationalities including polish on the A rate. Further changes have taken place in the method of payment since 2015 with workers opting to go onto a piece rate system. The Complainant has opted to stay on his existing rate.

The Law

The claim falls to be decided by reference to the provision of Section 29 of the Act.

Section 29(1) of the Act provides a general entitlement to equal pay as between persons who are differentiated on any of discriminatory grounds and who are engaged in like work. However, subsection (5) of Section 29 provides a general saver which allows for the payment of different remuneration to employees on grounds other than the discriminatory grounds. It provides as follows: -

• “nothing in this part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employee”.

It follows that, in relation to direct discrimination, if the Complainant was paid less than his Irish comparator for genuine reasons unrelated to his race, whether or not the distinction was fair or unfair is not a matter for consideration under the Act.

Discussion

In this case the Respondent contends that the difference in pay as between the Complainant and his Comparator was unrelated to race/nationality. The fact that others of Irish nationality were also employed on the same hourly rate as the Complainant appears to support the contention that the race/nationality of employees was not a relevant consideration in determining levels of pay. In advancing its defence the Respondent places reliance on the fact that over the years it had to make operational changes to stay in business which resulted in worker’s being placed on red circled pay rates and that the differential being relied on in this case arose from the Comparators being a group of worker’s who had their existing rate of pay red circled. The Court accepts that the difference in pay was unrelated to race/nationality, therefore, whatever the reason for the difference, the Court is satisfied that there was no unlawful discrimination as a matter of law.

Determination

For the reasons referred to herein the Court is satisfied that the Respondent discharged the onus which it bore and held that there were grounds other than race/nationality for the difference in pay.

The appeal is disallowed. The Adjudication Officers Decision is upheld

The Court so Determines.

Signed on behalf of the Labour Court



Louise O'Donnell
CR______________________
14 January, 2020Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.