Complainant

Respondent

Parties

Teodor  Dragomir

Teodor  Dragomir v B-Pods (Ireland) Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Peter Leonard BL instructed by Katie Timmins Irish Human Rights and Equality Commission

Evan O' Dwyer solicitor

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-00060145-001

21/11/2023

The Complainant is of Romanian extraction. He is currently employed as a plumbers mate in B-Pods in Co Mayo. It is agreed that he commenced employment with the Respondent on 7th June 2022 at a rate of pay of €12 euro per hour. It is also agreed that he came to work with the Respondent following contact from a then employee of the company who recommended the Complainant to the Respondent. Initially the Complainant was employed as a tiler. After a few weeks, his role changed to that of a plumber’s mate also at a rate of pay of €12 per hour. A new contract for a plumbers mate was signed by the Complainant on 22nd July 2022. There is some difference as to the discussion which took place between the parties about the Complainants qualification when he commenced working as a tiler. The Respondent maintains the Complainant was not a particularly good tiler hence the change of role. The Complainant maintains he told the manager of his skill as a trained and qualified plumber when he started, that this was known to the employee who recommended him, and therefore he was able to transfer to the work on producing bathroom pods.

B-Pods is described as a construction company operating in Ballyhaunis in Co Mayo. The business of the Respondent is to construct bathroom pods on their own premises and deliver them to the clients premises where they are installed (not by the Respondent). The Complainant works in the area where the pods are assembled in accordance with the individual specification for the pods for each contract.

The Complainant is one of nine plumbers mates who are a mixture of national origin (Irish) and other nationalities with the majority not Irish. All are paid no more than the current minimum wage, €12.70. The information provided by the Respondent shows two people employed as plumbers, both Irish, hereinafter referred to as S and J. These are paid €17.32 per hour(S) and €16 (J)respectively.

Following the clarification set out in the procedures section, claims of two protected grounds remain for decision. The first is race/nationality. The second is age. In essence these are all equal pay claims where work of equal value is claimed as id equivalence of qualifications. The Complainant contends that he should receive the same pay as an Irish plumber in the employment as he performs like work with the only reason he is not receiving equal pay being due to the employer refusing to recognise his qualification and experience as a plumber in Romania and elsewhere, which he contends is discrimination. Additionally, a comparison is made with plumbers in the wider construction industry in Ireland in respect of like work and far less favorable pay. A link was suggested between the age ground and the type of qualifications as between Ireland and Romania at the time when the Complainant would have been starting out on his training and education many years ago.

The claims are rejected in their entirety by the Respondent. The Complainant was employed as a tiler and signed a contract with this job title. However after a few weeks, when the quality of his tiling work was not of an acceptable standard, following a discussion he was offered a further contract, as a plumbers mate which he signed. Job descriptions were provided which together with the observations of the Respondent representative on a site visit, indicate a difference in the work of the Comparators over the Complainant.  The initial response of the Respondent to the Complainants representative in respect of the qualifications of the complainant as a plumber still stands i.e., that the qualification and training of the complainant received in Romania does not qualify him as a plumber in Ireland under the Irish system of accreditation. Complaints concerning an external comparison with the construction industry and on the age ground are rejected in their entirety by the Complainant on the basis of the case made out by the Complainant over the course of the hearing.

On the second day of the hearing, the Complainant was asked to specify the relevant sections of the legislation on which the complaints are based. What follows are those sections and subsections identified by the Complainant together with the essential information related to each one.

Discrimination for the purposes of this Act.

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

And

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

The Complainant is of Romanian origin who arrived in Ireland in 2022. The two internal comparators are of Irish origin.

Section 7 Like Work

Like work.

7.—(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 to the work as a whole, or

(c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.[this emphasised section is the one identified by the Complainant from s7.)

Comparators

The job descriptions provided by the Respondent to the second day of the hearing created some difficulties and confusion as to  the identity of the  ‘plumber/s’ for the purposes of the job description. The Respondent further clarified the application of the job descriptions on the third day of hearing. On the basis of that clarification, the position of the Respondent is that the job description for the position of plumber applies to S and J.

The internal comparators are therefore S  and J.

There is no named comparator for the purposes of the claim related to the wider construction industry.

Discrimination by employers etc.

8.— (1) In relation to—

(b) conditions of employment,

   an employer shall not discriminate against an employee….

And

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

Subsection (6) refers to pay as a condition of employment. The complaint is concerned with  less favourable treatment than the named comparators in the employment and also the broader construction industry norms.

This subsection was clarified as applying to  possible future differences in employment conditions arising from the complainant not being regarded as a plumber and therefore potentially suffering other disadvantages arising from less favourable treatment.

The case was also made for indirect discrimination which brings s8(4) into consideration

(4) A person who is an employer shall not, in relation to employees or employment—

(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

The claim of indirect discrimination centres on the application of a requirement that to receive the rate of pay of a plumber requires  the Complainant to hold a qualification equivalent to an Irish craft persons plumber qualification. The position of the Complainant is that his qualification and experience obtained in Romania and elsewhere qualify him as a plumber.

Key Inter party correspondence

On 28 July 2023, with the assistance of the IHREC, the Complainant sent a form EE2 to the Respondent. The Respondent did not reply and a complaint was submitted to the WRC on 21/11/22 alleging various breaches of the Employment Equality Act.

On 31 May 2024,the IHREC wrote to the Respondent providing what was described as details of the Complainants qualifications and extensive experience as a plumber.

-          A Certificate from the Romanian Ministry of Labour and Social Protection, dated 18 June 1999, which states that my client was declared as a qualified worker in thetrade of plumbing and gas fitter

-          An Authorisation from a Romanian Local Council, dated 8 May 2002,which states that my client worked on sanitary and gas installations.

-          Letter dated 17 June 2004, certifying that my client was employed as a sanitary plumber with a company called Altex-Impex SRL in Romania, including his employment contract which confirms that his job title was ‘installer of technical and gas installations.’

-          A letter from Energy House, Nicosia, confirming that my client was employed by the company as a plumber during the period December 2020/December 2021.

It is clear from the documentation that my client is a very experienced plumber, and has been for the entirety of his employment with B-Pods(Ireland) Limited. This evidence establishes my clients entitlement to be paid in accordance with the highest rate available for a qualified plumber effective from the date of commencement of his employment with B-Pods(Ireland) Limited.’

 The following are key extracts from the Respondents reply of 13 June 2024:

‘ After careful review, we regret to inform you that the evidence provided does not meet the requirements for recognition as a qualified plumber in Ireland. To be employed by BPOD as a plumber, Mr Dragomir must provide proper plumber qualifications to meet the strict standards to work as a qualified plumber in Ireland(described as typically QQ1 level 6)..

Mr Dragomir must provide proper plumbing qualifications QQ1 Level 6 to work as a qualified plumber in Ireland. For now he will remain as a plumber’s mate on his current salary of €12.70/hour.’

No claim of a comparison with the construction industry was made to the Respondent at that stage. No detail of the complaint on the age ground or other grounds specified in the complaint form was provided to the Respondent at that stage. This claim of discrimination in  comparison with the Irish qualified plumber, related  to  claims of like work and equivalent qualifications, is presented as  applying to  both elements of this aspect of the  complaint i.e., nationality and age.

Internal Comparisons-summary of legal arguments

The Complainant is aware that other colleagues carrying out identical work are receiving significantly higher rates of pay. This was confirmed in January 2024 when the Complainant received redacted documentation from the Respondent containing details of other employees remuneration. This showed that some employees were being paid €17.32 per hour.

The material around the qualifications of the Complainant sent on  31 May 2024 showed that he is a very experienced and highly qualified plumber who should be paid at the highest rate available from the date of commencement of employment. It is clear from the Respondents reply of 13 June 2024, that the Complainant is the subject of repeated direct discrimination in the course of his duties. He is also the subject of repeated indirect discrimination in the course of his duties as he is being assessed solely in accordance with the Irish QQ1 standard, which is axiomatically discriminatory on the basis that the Complainant is a non-national who received his training in a country other than Ireland. The Respondent rejection of the documentary evidence put forward on behalf of the Complainant is entirely self-serving and contrary to their obligation to ensure that every effort is made to verify his qualifications and to ensure that he is treated equally when compared to Irish colleagues. 

Using the NARIC tool for assessing the comparability of qualifications, it is possible to equate the ‘Certificate de Absolvire’ to level 3,4 and 6but does confirm for comparison purposes the certificate isrecognised in this jurisdiction. Categorising the Complainant as a plumbers mate with no qualifications is clearly inaccurate. When the Complainant informed the manager that he had papers showing he is a plumber, he was told not to worry about it as it was clear that he was a trained and highly an experienced plumber.

External comparison-the Construction Industry

It is further submitted that the plumbing work carried out by the Complainant obviously qualifies under the heading of construction work, meriting the appropriate rates of pay which are generally applicable to Irish plumbers. The work carried out by the Complainant involves manufacturing finished structures off-site which are then installed and fitted into construction projects. Assembling bathrooms off site is the same or comparable to assembling bathrooms on-site. Accordingly, the construction industry rate of pay should also be applied ot the Complainant.  The evidence of S to the hearing confirms that the work of a qualified  plumber in construction bears comparison with that performed by the Complainant in his work with the Respondent. Further Details of the relevant comparisons between the role of a plumber in construction and that of the Complainant in B-Pods were contained in the second written submission. A plumbers mate as the Complainant is described by the Respondent is an antiquated terms used to describe a plumbers assistant or labourer.

Further submissions on the external comparisons were made by reference to the 2018 SEO and the description of the work of a plumber which is akin to that performed by the Complainant off site and which if he were to perform on site would attract the rates of pay applicable in the construction industry as provided for in the previous and pending SEO( currently of the order of €27 per hour)

Case law of C-341/08 and C-16/19 both from the CJEU were cited by short extracts in support of the requirement to examine appropriate comparators i.e., those who may be subject to different employment contracts and the requirement to conduct an overall evaluation.

The issue of appropriate comparators was given legislative effect under the Fixed Term Work Act,2003,  where a comparable employee is defined. [s.5.]

The right to equal remuneration under the Employment Equality Act is as set out in s29 of the Employment Equality Act 1998(as amended).

The retention of the Complainant on the minimum wage rate in light of his qualifications and experience is entirely self-serving.

Addressing the external comparator in a  further written submission for day two of the hearing, the Complainant representative referred to a discussion with a named trade union. They were informed that the term plumbers mate is an antiquated term no longer in use in the construction industry. The union confirmed that the mechanical SEO is the one which applies to plumbers working in the construction industry and their hope that a revised SEO would be in place with effect from August 2024.

Evidence of Teodor Dragomir

The Complainant gave evidence over two days about his work background, his qualifications and experience obtained over many years commencing in Romania in 1999.

He was an early school leaver, and he went on to work in plumbing learning his trade, later completing a four month educational course after he which he was awarded a certificate. In his evidence he described working in Romania and how his employer organised the certificate course as he needed the cert to be able to work on certain types of government contracts. The certificate was confirmation by the Government he was qualified to do plumbing work inside and outside. His work covered all types of plumbing and also he was deemed qualified to work as a gas fitter. In 2008 he moved to Cyprus where he worked as a self-employed plumber. In 2022 he was contacted by a friend working in B-Pods who knew of his plumbing work and asked if he was interested in moving to Ireland to work with B-Pods. He said he was and he moved here. When he arrived, there was no plumbing work available and as had he had experience of tiling he agreed to do tiling work and  started working as a tiler. After a few weeks he transferred to plumbing work. On his transfer to plumbing, T(the manager) accepted he was a qualified plumber. He offered to provide his papers, but T told him there was no need for papers, he could see his was an experienced and qualified plumber. T worked alongside him on the line.  When working on the line, he selected the timber and the materials for each job and then worked alone on each Pod. Asked about welding work( work disputed by the Respondent), he accepted the work he was describing is soldering, explaining the difference in the language was a difficulty with the translation.

He stated he was asked by T to do training of others on the line.

T was not on the line anymore-he was there at the time (of the complaint).

His work is the same as that of S and J on the line. On the first day of his evidence he disputed the job description of the plumber-saying that was the job description of the manager, T. It was this dispute which led to the adjournment of the hearing. He himself does not do testing as mentioned in the job description for a plumbers mate, that is a separate job done by another named employee, not the plumbers or plumbers mates. He agreed that S did do planning work for the pods.

On day two of his evidence following the clarification and additional information provided by the Respondent, the Complainant repeated that S does the same plumbing work as he does and J is the same as the Complainant, working on the same line, doing the same work.

Regarding the preparation work for the pods, he said the plumbers look at the plans, they decide how to design the work, then those on the line follow what was said.

He had asked T about his pay. He repeated his discussion with T who said he looked like a professional plumber, that he did not need to bring his qualifications, to just keep going. Other were getting more money for doing the same work so then he decided to go to IHREC, to do something about it. T said we appreciate you, but nothing happened about his pay. He believed he is a qualified plumber.

Under cross examination, when asked why he left tiling, he replied he preferred to do plumbing and after about two months plumbing work became available. He said when he came first, the employer knew he was a plumber, that he had applied for a plumbing job. A Mr. F told him there was no plumbing work available. It was put to him that he came as an unskilled labourer, that he lasted two months as a tiler, that it did not work out, that he was not any good at tiling and when he was asked if there was anything else he could do, he said he had some experience at plumbing work. The Complainant replied that when he was in Cyprus he was plumbing, that he was asked when he arrived if he would do tiling until plumbing became available and he accepted the tiling until then.

Asked if he had known that S had four years training to be a qualified plumber, he replied, no, he did not have that information before. Asked if he accepted that his qualifications are not equal to those in Ireland, the Complainant replied no, he did not accept that, his documents and his experience shoe he is equal to (a plumber in) Ireland.

In respect of his work, the Complainant said he works with S and J on the line putting on the piping and the connections. His is first fix work. He accepted he does not do quality control testing. He does not do supervision. He disagreed with aspects of the job description for the plumber in the case of S saying either they were done by T or he was not told they were part of the role of S.  Regarding the pre-work on a new pod to specify and plumb the first of each new pod, he was never asked to do that work-he agreed it was not incorrect (to say this was S’s job). Asked who was responsible if there was a problem on the line, he replied Stephen.

In response to questioning, he replied re other plumbing work he had done in Ireland and elsewhere covering a range of work, EU Regulations and gas fitting. The responses indicated a wide range of experience in plumbing work, including some private work on sanitary plumbing, in Ireland.

In relation to the job description for a plumber as it applied to Justin the Complainants response to the points was as follows:

1-No-not accepted

2-No not accepted

3-Yes

4-Yes

5-Yes

6-Oversee-does not know what that means- S not doing this

In their concluding written submission, responding to additional post hearing  information requested of the Respondent, the material showed the Respondent had recognised the qualifications of another (deceased) employee as level 5 in the NARIC standard but provided no reason why, having established this level of qualification, he was then moved to ‘testing’  and not accepted as a plumber or why that employees qualifications were accepted as level 5 whereas the Complainants qualifications were assessed only at level 3. Noting the second employees certificate was issued in accordance with regulations of 2010 a process not available when the Complainant qualified under the previous system, confirmed the case of prima facie indirect discrimination based on age. Both cases confirm the disregard the Respondent has for non-national employees.

CJEU K v Tesco Limited C-624/19 as requiring that in assessing comparable work, the comparison must be entirely qualitative.

 The Complainant was initially hired as a trainee tiler in June 2022 on the recommendation of a work colleague who told the Respondent he had tiling experience. After a few weeks he was told that his work was not up to standard and that his employment would be terminated. It was at that point he told the Respondent his experience was in plumbing and his request to transfer to the plumbing department was agreed. He was asked to provide his plumbing qualifications for a higher rate of pay but prior to the submitting the complaint to the WRC he had not submitted any papers. The employer denies any discrimination. A pay rise was never requested. Following the receipt of his EE.2 form, the Complainant was invited to meet with the employer  to discuss the matter, but declined to do so. The documentation concerning his qualifications from Romania was not received until May 2024, after the complaint was submitted to the WRC and only after mediation in the WRC was unsuccessful.

The Complainant is diligent but largely unskilled. There is an internal grievance procedure which was not utilized by the Complainant at any stage. Recognising that the Complainant is not obliged to use the internal procedure before submitting a complaint, it seems unusual not to do so before making a complaint to the WRC.

Complaint of Discrimination - Age

The claim that there is discrimination based on age related to his experience over two decades is at best a stretch. Prior to the submission of the complaint, there was no formal or informal indication to the Respondent of a concern about discrimination based on age. His age has not been an impediment to the Complainant in respect of his work. There is no factual basis for this aspect of the complaint. He should be able to demonstrate that he has been treated less favourably than a younger employee due to his age. He should be able to maintain a complaint of discrimination based on his qualifications without having to cross pollinate the claim with his age.

Complaint of Discrimination - Race

There is no EU standardised qualifications which the Complainant or the Respondent can rely on in support of his claim that he is a qualified plumber to the Irish standard. Every effort has been made by the Respondent to ascertain exactly what the Complainant was qualified to do. This was left almost exclusively to the Respondent to do. The Respondent has been denied approval by Solas to support approved apprenticeships in plumbing within the business.

The Respondent employs a large number of foreign nationals and takes very seriously any suggestion that it is prejudicial or discriminatory towards any foreign national.

At no point when signing his first or second contracts did the Complainant object to his rate of pay or his job description as a plumbers mate.

No reference to a comparison with the construction industry was made within the WRC complaint form.

Regarding the external comparison, the Respondent is engaged in manufacturing. The customers are property developers of residential and hotel type multi-unit and multi storey units. Bespoke pods are made to the customers specifications and can range from half a dozen to over a hundred in number. The manufacturing process begins and end at the Respondents premises. Once transported to a site, it is the responsibility of the customer to remove the completed pods from the transportation and to install them on site without an involvement of the Respondent or their employees.

The Complainant claims in his initial documentation that he was hired as a plumber-but there is no documentary or other evidence to support this claim. The Complainant signed a contract as a trainee tiler and then a plumbers mate-which he holds until this day.

In relation to the qualifications, it is accepted the Complainant has provided documentation. However, there is no certainty provided as to what this documentation should equate to. There is no definitive adjudication on the commensurate level of the Complainants qualification when placed alongside the Irish equivalent. The Complainant cannot establish definitely through NARIC what his qualification is in Irish terms and therefore cannot establish that he is being discriminated against by his employer in not accepting the qualifications held by the Complainant are equal to the Irish Equivalent(level 6). It is beyond the scope of the WRC  Adjudicator to make such an assessment.

In terms of skill, the Complainant has exhibited no skills that would lead the Respondent to believe he is a qualified plumber. His role is to assist a qualified plumber. He has not exhibited the appetite or an initiative to allow him to be treated as an unqualified plumber with the aptitude to fulfil a plumbing role.

All materials are labelled and placed near to the production line. There is no skill required to select the necessary parts because there are limited numbered options. Fittings are gathered each night by the storemen and laid out to be picked by the plumbers the following morning. The Complainant is incorrect where he states that he is responsible for arranging and cutting necessary timber. This is done by other workers in a different area.

The Complainant refers to welding-there is no welding-this is not a term used in plumbing. There is soldering work. When he started as a plumbers mate the Complainant   was shown how use a pipe bender and solder.

The Complainant is not tasked with air or water testing.

The Complainants claims regarding other employees including training were rejected in detail including any allegation of more favourable treatment of others or less favourable treatment of the Complainant.

Regarding the external comparison with the Construction Industry, the Respondents business is manufacturing. It is not a unionised employment and the Complainant is therefore non-union. His work in a manufacturing business falls outside of the scope of the SEO because of the absence of plumbing in a manufacturing context within the SEO. As a result of these two key considerations, the comparisons provided by the Complainant are inappropriate. It is the Respondent position that the SEO(s) does not have any binding effect on it for the reasons stated

The Complainant was hired at a rate above the minimum wage when he was engaged as a trainee tiler.

Once translated records were available after mediation, the Respondent was able to make lengthy investigations and established that they should be recognised at level 3 and not level 6 as claimed for the Complainant.

The Respondent is willing and able to engage with the Complainant if he wishes to upskill to the point where he can obtain  Irish certification in plumbing. This would involve engaging on his behalf with employers in the construction industry to obtain an apprenticeship for him and holding his position open until he is qualified to return as a plumber.

On the third day of the hearing ,the Respondent provided relevant contracts of employment signed by other employees, confirming titles and rates of pay; a list of plumbers and mates with detail of whether they worked at first or second fix; relevant correspondence regarding the assessment of the qualifications including a table of education and training in Romania; recent recruitment material issued by an agency using the title of plumbers mate indicating this is not an antiquated title no longer in use. Documentation providing a plumbing certificate for testing and compliance was also provided-each one signed by the manager – T - all  in 2023.

Evidence of Stephen Mulligan

The witness is an Irish Qualified plumber by trade. He gave evidence of his apprenticeship in 1992 in FAS in Galway and the places he worked which involved learning all aspects of plumbing work. He gave evidence of where he worked after he qualified. He was required to produce his papers (to show he was a qualified phubber) to every employer, including B-Pods. In his experience elsewhere, plumbers mates are employed without papers-they can work as a plumber without the qualifications.

He described the stages of work involved in completing a pod for a customer. He and J get a drawing for a pod from the office. They figure out where the pieces are to go, no one tells him what is to be done. He and Jason build the prototype for the plumbing work for each pod. Training of new mates is done by him and J-the plumbers do it.

The Complainant came to him when first employed. Asked how much effort was required to bring the Complainant up to speed, he replied, it took a bit, showing him how to use the bender, took a bit. He referred to the compliance and quality assurance and testing for air work. If there was a problem at the QC stage with the plumbing, it would be sent back to him, adding mistakes can happen to anyone.

In the cross examination, the witness was asked about the work of a plumber in construction, where he had worked, which he described as a team. The witness said on a construction site there would be a team of 10-12 lads, apprentices and plumbers who had specific roles.

Asked about the plumbing work on a construction site compared to B-Pods the witness replied the work is similar with more jobs to be done on a building site, where the plumber has to connect things up.

The witness was asked why he had returned to Mayo when the rate of pay was lower than he would be paid in construction. The witness explained that he is a retained firefighter and with B-Pods he was able to do both roles, which suited him. 

Asked about the difference between a mate and a plumber, the witness replied that some of the work, the plumber is not qualified to do it, they help with the work, they have no papers. They are there to help not to do the plumbing.

Asked if he accepted the Complainant does the same work on the line (as a plumber) he replied near enough all of it, he does plumbing work, it is skilled work, you would have to have a head for it. Asked if he accepted the Complainant was an experienced plumber, he referred to having to show him how to do ‘elbows’.

Asked if he accepted that the Complainant has done training  of others on the line, the witness said he had never seen it, that is the supervisors role in the line.

The witness said he is in charge of the line, that he took the role over from T about a year ago. Before that change, T was in charge of the line, he is now a manager.

In a redirect, the witness was asked how much of his training, skills, qualifications as a plumber he now uses on the job in B-Pods-to which he replied, about 20% related to bathroom work.

Asked about the work and qualifications of others, the witness agreed that most of J’s work is the same as the Complainants. J is a qualified plumber.

Evidence of Sandra Kilkelly

The witness is the office manager with the Respondent. The Company employs Irish and non-national employees (Romanian and Ukrainian. Explaining how the Complainant was recruited, she said that one of the other employees(F) asked if they were looking for any workers. He was told they were looking for trainee tilers and he referred the Complainant for tiling work. She said there was no mention of plumbing work at that time. The Complainant was hired by the factory manager as a trainee tiler. He signed a contract as a trainee tiler and started to work. She was told he did not have enough experience for the tiling work. He must have spoken to one of the managers about his plumbing experience and he was moved to plumbing for which he signed a second contract. He did not say anything to her about being a qualified plumber at the start.

Asked if the Complainant sought a pay rise, the witness said he did so just a couple of weeks before making the complaint. He came to the office asking about more money, that he was a qualified plumber. She said to bring in the papers, that she would get them translated. He didn’t bring in the documents and she didn’t see them translated until the first submission to the WRC. She contacted NARIC about the qualifications. They replied that his qualifications looked like they are at level 3 which is not equal to Irish qualifications. Solas would not approve the employment for apprenticeships in plumbing or electrical. The Complainant kept saying he was fully qualified.

Regarding the rates of pay, these are set out in each contract. He said he was equivalent to Stephen. She said he if he could provide the documents in support of his qualifications they would be looked at, she had done this for another non-national before and his qualifications were accepted. [On this point at the request of the undersigned, the Respondent provided the documentation post the hearing regarding that other employee( deceased).That documentation showed the Respondent accepting that his qualifications were the equivalent of level 5. The Respondent went on to say that employee was moved to testing (work not performed by the Complainant) and he had never worked as a plumber.]

In cross examination, asked how many employees were in receipt of the minimum wage, the witness replied she was not sure, possibly half. Asked about how workers are recruited, the witness replied through local radio, word of mouth. Other employees are asked to recommend someone. In the case of the Complainant, another employee, ‘F’, said he had a friend looking for work. He said his friend could tile. She heard that when he moved to plumbing, that went well.

Pay rates are assessed every year, but the person who does that assessment is currently out of work and this year’s assessment has not taken place.

1.      Discrimination based on the protected ground of Race.

There are two parts to the complaint on grounds of race to be decided in relation to comparisons:

1.A. The comparison with a plumber in the construction industry

1.B.  The in-house comparisons.

1.A. The comparison with the construction(mechanical) industry

The evidence to support this complaint initially consisted of a generalised comparison between  the job of a plumber on a building site and the work of the Complainant within B-Pods. The comparable rates of pay cited were those in the Construction Industry SEO. On day one of the hearing, I brought to the attention of the Complainant representatives, that plumbers are not, as a craft group, covered by the Construction Industry SEO, but rather they are included in any SEO for the mechanical and electrical industries. It was also pointed out that the most recent approved SEO for those industries(2018) and therefore plumbers was struck down by the High Court and had no legal application. The Complainant side then returned to the issue at the second day of hearing citing a conversation with a member of  named trade union who informed them that the description ‘plumbers mate’ is an old fashioned one no longer in use and that the relevant parties are in negotiations with a view to agreeing an SEO for the relevant categories of workers. They provided no factual or independent or verifiable evidence to support the claim of like work as between the Complainant and a plumber qualified in Ireland under the State apprenticeship scheme working in the Construction Sector. In what is best described as a search for  evidence to support the claim of like work as between the Complainant and a plumber on a building site, the Complainant side questioned the Respondent witness Mr Mulligan as to his work when he previously worked on building sites and concluded their summary of the Complainants case on this claim drawing on his evidence.

 No evidence was provided of what the Comparator might be paid if he were working as a plumber on a construction site and specifically, whether he would be paid the same as a plumber with an Irish qualification. Would he in fact be paid the same or a lesser rate of pay. Would he be regarded as a labourer or some other category of worker. The Complainant failed to have regard to the fact that within the employment, neither of the Irish qualified plumbers are in receipt of rates of pay approximating to those under the Construction or Mechanical pay terms[this refers to the SEO rates in the order of 2018 later struck down).  

In their opening submission, the Complainant side cited the Fixed Term Work Act to provide a reference point for a comparable worker. What they did not do, as is required under that same legislation, is have any regard to the requirement that the comparable worker must be an employee of the same or an associated employer. Describing the work of the plumbers and mates in B-Pods as the same as a plumber on a construction site, even if there were evidence to support this contention, would not make B-Pods the same employer or an associated employer. There is no evidence that B-Pods is comprehended by either the Construction Sector or Mechanical SEOs(even if there were one for the latter when the complaint was made) or is part of or has any association with a comparable associated employer.

 What the Complainant was seeking to establish, that he was discriminated against based on his age and or his race in comparison with external employments, was an attempt to make a case of discrimination based on theory rather than evidence, to the point of being vexatious. It is beyond my comprehension as to why the legal representatives of the Complainant insisted on pursuing this aspect of the complaint, leaving it up to myself as the adjudicator to decide. I do not find in favour of the Complainant on the claim of comparison with the Construction Industry. The complaint will be decided as not well founded.

1.B.  The in-house comparisons.

The Complainant is as matter of fact not Irish whereas the two employees to whom he is compared are Irish and as both are  in receipt of higher pay, it follows that the Complainant has less favourable terms of employment in respect of pay. Both of the comparators are designated as plumbers based on their work and Irish qualifications. The elements of like work and qualifications  as between the Complainant and both comparators are contested. by the Parties

On the basis of the forgoing, where there is a difference in race and the complainant is treated less favourably than the comparators in pay terms, there is sufficient evidence to justify moving on to examine the respective work of the Complainant and the Internal Comparators by reference to the provisions of s 7 of the Act, like work and specifically the evidence to support the application of terms of s7 !1) (c ), as claimed. The Comparator must establish a case of like work for the purposes of the Act before the disputed element of qualifications can be considered. If the Complainant is not engaged in like work  as defined with each comparator, then the dispute regarding the qualifications is immaterial. If on the other hand, the Complainant is successful in establishing like work for the purposes of the Act, then the burden of proof would pass to the Respondent to justify their difference regarding the qualification as a basis for the less favourable conditions of employment.

Like work.

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

Comparator S.

From his own evidence and that of the Complainant, it is clear than when assembling pods and working on the line both S and the Complainant are engaged in like work as defined in s7(1) (c), as claimed. However, whatever about other differences in the Complainants understanding of the responsibilities of S as described in the job descriptions provided by the Respondent , he and the Respondent and S  are all agreed that the work performed at point 3 in the purpose of the job of the plumber is performed by S but not by the complainant. The significance of this work was highlighted by the Respondent solicitor on day 3 of the hearing based on his own site visit.

Point 3 is ‘Template new POD installations for review and design critique’ Point 3 is linked in turn to the third bullet point under Main Responsibilities: ‘Review new POD type layouts and compliance with regulations’.

While the Complainant asserted in his evidence  that he was not asked to do the work described , this assertion acts to clearly confirm that he does not carry out the work at point 3 as part of his duties ,unlike S..

The pre-production specification work performed by both S forms the basis of all work on the line, the parts provided, and the assembly work by plumbers and plumbers mates. As a general proposition I accept that work is greater in value than the assembly work performed by the Complainant and others who follow the specifications set out by S(and J) who do not perform this work. Furthermore, it marks a critical difference between the work of the Complainant and S.

Also from his evidence, I am satisfied that S justified the use of the term supervisor or certainly performing supervisory duties which he took over approximately a year ago  from ‘T’ (who the Complainant described in his evidence as the manager) when T  was promoted from the role of supervisor on the line to manager. The Complainant and the Respondent may differ as to the extent and the manner in which the various duties under the headings within the main responsibilities are carried out by S, but this does not alter the fact that in his capacity as a supervisor, S has those responsibilities, whereas the Complainant does not. I also find that supervisory functions are by their nature more responsible than those of the assembly workers, the plumber and the plumbers mates.  On the basis of the available evidence, I am satisfied that the differences in their respective work  are such that the work of the Complainant and that of S is not of equal value but rather that with the pre-production work and the associated supervisory duties, S performs work which is greater in value and more responsible than that of the Complainant. Based on the conclusion that the work of the Complainant is not equal in value to that of S, I do not find in favour of the claim of like work for the purposes of s7(1) (c ) where S is the comparator.

On the basis of the available evidence and by reference to s7(1) ( c ) of the legislation, I find the work of the Complainant is not equal in value to that of the internal comparator J and therefore the complaint of discrimination based on race/nationality cannot succeed. Consequently, the Respondent is not required to justify their position based solely on the  ground of the disputed qualification in this case, on objective grounds, or at all.

Comparator J.

The material provided by the Respondent for the job description of the internal comparators(no job description was provided by the Complainant) was unsatisfactory on day two which led to an adjournment and remains unsatisfactory. If I am to accept that S performs supervisory functions as well as those which are the same as the Complainantwhen on the line and also performs higher value  pre-production work for each new pod, then his is one job description and there should be a second job description for J-as a plumber and the third would then be that of the Complainant, as a plumbers mate. It simply is not credible that S who is on  a higher rate of pay than J and gave sworn evidence of  replacing T when the latter was promoted, would perform all the same duties as J who is on a lower rate of pay or vice versa.As a consequence, I have no written job description for J which I can rely on completely  to make a decision on the internal comparison with the Complainant. I do however have the oral testimony of the Complainant and S as evidence and I believe this is sufficient to arrive at a decision, relating that evidence to the two job descriptions which were provided

Having accepted that S is a supervisor, I have no evidence which suggests that J is also a supervisor on the line or performs the tasks associated with that of a supervisor as part of his job. The paperwork provided to the third day of hearing included a line identifying which of the plumbers and plumbers mates worked at which stage of the process i.e., first or second fix. The Complainant and J both work as first fix. Therefore, to that point their work must be regarded as equal in value and responsibility. This conclusion is supported by the oral evidence of S, and as recorded by the Complainants solicitor, provided to the Chairperson post the hearing as requested, that the work of J and the Complainant is broadly similar and the same when on the line. The one key difference, as agreed by the Complainant in his oral evidence to the AO, is  that he accepts that J also does the pre-production work on the pods-earlier identified as number 3 on the job description for a plumber.

Point 3 is ‘Template new POD installations for review and design critique’ Point 3 is linked in turn to the third bullet point under Main Responsibilities: ‘Review ne POD type layouts and compliance with regulations’.

The evidence of S is that he does this work with J.

The Complainant, working through the job description of the plumber with the AO  identifying the areas where he agreed and disagreed with the description of the comparators work:

ADJ-Template? Sample Pod? Told S take new pod and the passed to line.. You accepted S. Justin?

Yes.

On the understanding that the pre-production specification work performed by both S  and J forms the basis of all work on the line, the parts provided, the assembly work by plumbers and plumbers mates. As a general proposition I accept that this work is greater in value than the assembly work performed by the Complainant who does not perform this work. Furthermore, it marks a critical difference between the work of the Complainant and J. To be fair to the Complainant side, their main concentration was on the work of the Complainant and the evidence of S who was present at the hearing and is also on the higher rate of pay of the two internal comparators. On day one of the hearing it was pointed out to the parties that was presented in the complaints, is in effect an equal pay claim. The onus was on the Complainant to make out the substance of that case under s7 in the first instance. There was no dispute that J performs the pre-production work nor any case made by the Complainant that this work is not higher in value than the assembly work performed by all on the line, whether they have a craft related qualification or not. Or to put it another way no argument was made  that all assembly work performed by those on the  line, including the Complainant, is equal in value and responsibility  to the preassembly work.

On the basis of the available evidence and by reference to s7(1) ( c ) of the legislation, I find the work of the Complainant is not equal in value to that of the internal comparator J and therefore the complaint of discrimination based on race/nationality cannot succeed. Consequently, the Respondent is not required to justify their position in this case based solely on the  ground of the disputed qualification on objective grounds, or at all.

Discrimination based on the protected ground of Age

Aside from the Complainants age(which his barrister mistakenly gave as 49 and the Complainant corrected as 46), no evidence of any kind was presented to support a complaint of discrimination based on age. No comparator was provided. To the extent that any case was made for discrimination on said ground, there was an attempt to make what is best described as a tenuous connection between when the Complainant qualified, some time ago and educational qualifications at that time. That connection was so tenuous that the complaint on grounds of age is one made without any evidence and therefore without any prospect of succeeding. I do not find in favour of this complaint. The Decision will be that the complaint is not well founded.

Discrimination under S.8

As the Complainant has failed to satisfy the test of like work for the purposes of the Act, the complaint of indirect discrimination based solely on the claim of equivalence of qualifications as a basis for a finding of discrimination without a finding of like work cannot succeed. The Decision will be that the complaint is not well founded.

A separate claim under s.8 regarding future terms was not clarified nor evidence provided to support this aspect of less favourable conditions and is not explored further in this analysis. The Decision will be recorded as the complaint is not well founded.

CA-00060145-001

In accordance with S 79 of the Employment Equality Act, I am required to give a decision in respect of each claim of discrimination in this case:

1.      Protected ground : Race/Nationality Construction  Industry Comparison - Terms of Employment. This Complaint by Teodor Dragomir against B-Pods(Ireland) Ltd  is not well founded.

2.      Protected ground Race /Nationality Internal Comparator S -Terms of Employment. This complaint by Teodor Dragomir against B-Pods(Ireland) Ltd is not well founded.

3.      Protected Ground Race/Nationality  Internal Comparator J -Terms of Employment. This complaint by Teodor Dragomir against B-Pods(Ireland) Ltd  is not well founded.

4.       Protected Ground Race/Nationality Indirect discrimination - Terms of Employment. The complaints of indirect discrimination related to equivalence of qualifications, related to future terms of employment are not well founded as complaints of discrimination by Teodor Dragomir against B-Pods(Ireland) Ltd.

5.      Protected Ground Age This complaint of discrimination by Teodor Dragomir against B-Pods(Ireland) Ltd.  is not well founded.

Discrimination-EEA-Race and Age-like work -industry and internal comparators- direct and indirect discrimination- qualifications