Ms Winifred Kiely (Represented by Kieran T Flynn & Co, Solicitors) AND Thornhill Regasketing Ireland Limited (Represented by McMahon O'Brien Downes, Solicitors),
Thornhill Technology Limited, Thornhill Services (UK) Limited
1.1 This dispute concerns a claim by Ms Winifred Kiely, formerly employed at Thornhill Regasketing Ireland Ltd, that she was entitled to the same rate of remuneration as that paid to two named male comparators employed at the company. The complainant also names two associated UK companies as respondents i.e. Thornhill Service (UK) Ltd and Thornhill Technology Ltd however the first named respondent disputes the relevance of the latter two companies. A UK based firm of solicitors, Irwin Mitchell, writing on behalf of Thornhill Service (UK) Limited stated that the complainant was at all times employed by Thornhill Regasketing Ireland Limited and added that the second named UK based company i.e. Thornhill Technology Limited was no longer trading. This solicitor did not attend any of the proceedings. Any reference in this Decision to 'the respondent' is a reference to the first named respondent.
2.1 The complainant was employed at Thornhill Regasketing Ireland Ltd in Kilmallock, initially as an office administrator and then as General Manager. The complainant states that she was paid a lower rate of remuneration than the male General Manager whom she replaced and who subsequently resumed the position when she left the company in disputed circumstances. The complainant also states that she was paid a lower rate of remuneration than the male Sales Rep whose duties she states she also took over when he was made redundant. Ms Kiely believes that she was paid a lower rate of remuneration because of her gender and has sought redress under the provisions of the 1998 Act.
2.2 The complainant, initially citing grounds of gender and marital status, referred a complaint to the Director of Equality Investigations on 21st June 2002 under the Employment Equality Act, 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 9th September, 2002 to Raymund Walsh, an Equality Officer, for investigation, hearing and decision. A preliminary hearing was held on 29th November 2003. The complainant in her initial referral had also alleged harassment, victimisation and a complaint in relation to an equality clause however it was confirmed at the preliminary hearing that the claim was one of equal pay on the gender ground. The respondent indicated at the preliminary hearing that it was disputing 'like work' between the complainant and two named comparators and submissions were sought from the parties. A work inspection took place at the respondent's premises in Kilmallock on 22nd July, 2003 followed by a further hearing at a nearby hotel. Subsequent correspondence with the parties arising from the work inspection and hearing concluded in September 2003.
3. SUMMARY OF THE COMPLAINANT'S CASE
3.1 The complainant worked at Thornhill Regasketing Ireland Limited at Kilmallock, Co Limerick. She states that her letter of appointment to the position of General Manager and subsequent letter of termination came from the Human Resources Manager at Thornhill Technology in England. She argues that it is appropriate that the UK companies be also named as respondents and believes that the parent UK company could wind up the Irish company in an attempt to avoid any financial liability arising from these proceedings.
3.2 The complainant contends that while employed as General Manager she did "like work" with the first named comparator within the meaning of Section 7 of the 1998 Act and further contends that she did "like work" with the second named comparator and is therefore entitled in the first instance to receive the same rate of remuneration as the first named comparator, or alternatively, she is entitled to the same rate of remuneration as that paid to the second named comparator.
3.3 The complainant describes how she was appointed to the position of General Manager at the Kilmallock plant after the employment of the previous incumbent, referred to here as Mr X, was terminated. She received a phone call from the then Managing Director of Thornhill Service (UK) to the effect that she would be in charge of the operation in Ireland. The phone call was followed up by a letter, a copy of which was presented in evidence and is included at Appendix 1. The letter sets out her conditions of appointment and annual salary i.e. IR£20,000 plus possible commission.
3.4 In her submission the complainant describes various functions which she carried out at the plant and these are summarised below in the order presented by the complainant:
- complainant describes an incident involving an acid spillage from a tank, the subsequent clean up and remedial measures aimed at preventing a recurrence - was responsible for all decisions relating to Irish operation, except large or expensive decisions stating she 'ran them through the UK'. One such decision was the decision to employ a full time Sales Rep which she cleared through the UK. She advertised the position in an Irish newspaper, carried out the first stage interviews and then called the UK Sales Manager over to sit in on the final interview.
- complainant made all day to day decisions including customer orders and service requests
- the two workshop staff reported to complainant and she organised their work, both in the workshop and on customer sites
- complainant prepared monthly Management Accounts which were sent to the UK and at the end of her first year prepared the annual budget for the following year which was approved by the UK Managing Director.
- carried out all necessary paperwork for the Sales Rep including Customer Quotations, Price Selling, job assessment and attended meetings with customers - organised collection and delivery of product
- ordered gaskets from the UK and prioritised jobs for the workshop staff
- if working to a tight deadline complainant would assist in workshop cleaning and regasketing plates
- after the Sales Rep was made redundant complainant took up where he left off and secured a new order for the following month but was herself let go before the work commenced
- complainant transported UK visitors to and from the airport, represented the company at a UK exhibition and worked with the Sales Rep in setting up a stand at an exhibition in Cork
- set up new racking in the workshop to deal with overstocking in the UK company
- attended a Euro conversion course so that the accounts system could be changed over smoothly to the new currency.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent states that the complainant was at all times an employee of the Irish company and following the work inspection and second hearing, furnished copies of returns to the Revenue Commissioners in Ireland showing Ms Kiely as an employee of the Irish company.
4.2 The respondent states that Mr X, who was employed by and paid by the UK company Thornhill Gasket Co. Limited, was appointed as General Manager of the Kilmallock company in 1998 in order to set up a new Irish operation catering for a niche market identified in Ireland. He was technically qualified to test heat exchangers (PCN certified) and also had experience in sales. He managed all aspects of the new company from sourcing equipment, setting up and commissioning the plant, to visiting customers and working on the workshop floor. Given the expanding business and the demands on Mr X's time, the complainant was recruited as an office assistant with secretarial skills. She had no technical or sales experience. There was at that time one other member of staff i.e. a general operative who worked in the workshop. The respondent furnished two job descriptions for Mr X, the second one refers to the period after February 2002 when Mr X resumed the position following Ms Kiely's termination and includes the addition of 'the management and supervision of service and office staff'. This second job description is included at Appendix 2.
4.3 The respondent did not provide any detailed job descriptions for the complainant or the second named comparator and any comparative information was derived from the work inspection and hearings. The respondent's position was that Mr X possessed the necessary background and technical skills to set up the plant from the very beginning and included sourcing, installing and commissioning the necessary equipment, training and overseeing the two shop floor operatives and sourcing and liaising with customers. Mr X as Managing Director had a level of autonomy from the UK company in relation to financial decisions, cheque signing, accounts management which the complainant did not have. The complainant was permitted to sign cheques up to the value of IR£2,500 while no limit was specifically assigned to Mr X.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 I shall firstly address the matter of the appropriate respondent in this case. I indicated to the parties before and in the course of the preliminary hearing that from the evidence presented by the complainant i.e. letters of appointment and termination issued by the UK parent company, it would be necessary for me to consider the relevance of the UK companies to the complaint. While it is clear that the complainant's terms and conditions were determined by Thornhill Technology, her contract of employment (copy provided by complainant subsequent to work inspection and hearing) and the relevant returns to the Revenue Commissioners in Ireland show that her employment was with Thornhill Regasketing Ireland Ltd. I note that in proceedings taken by the complainant to the Employment Appeals Tribunal (EAT) in relation to alleged unfair dismissal the employer is named as Thornhill Regasketing Ireland Limited and I note that the EAT has made a nominal award against that company in relation to its failure to follow correct procedures in that case. I conclude therefore that Thornhill Regasketing Ireland Limited is the appropriate
respondent in this case.
5.2 The investigation of the substantive issue of entitlement to equal pay presented certain practical difficulties. The company concerned was clearly winding down and trading at a very low level of activity. The only employee at the time of the work inspection was Mr X. The complainant in her submission outlined various tasks undertaken by her while working as General Manager and these are outlined at 3.4 above. The work inspection took the form of a visit to the company premises, an examination of the plant and equipment on the shop floor, none of which was in use at the time, a visit to the adjoining office and a review of the complainant's duties in the presence of the legal representatives followed by a review of Mr X's duties. The evidence presented in relation to the work of the second comparator i.e. the former Sales Rep, other than his earnings, was cursory in nature and of little value to my investigation.
5.3 I formed the opinion that Mr X had brought with him the technical knowledge and experience to set up the business in Ireland and that the business would not have existed without that expertise. Mr X established the plant. The process of removing worn gaskets from client companys' equipment, stripping down plates and assembling and testing new gaskets involved a considerable level of technical knowledge and competence. Mr X possessed this the technical competence and trained the operatives in the execution of the various tasks. The complainant, who joined the company in a secretarial / administrative capacity, did not possess this technical competence and I formed the opinion that any practical contribution she made at shop floor level after Mr X's departure, apart from overseeing the other two shop floor workers, was at operative level. There was no significant disagreement between the parties as to the everyday functions of managing customer orders, monthly accounts, budgets etc. as outlined by the complainant.
5.4 It was evident from my discussions with the complainant and Mr X, that the latter operated at a higher level of knowledge, responsibility, authority and financial independence with regard to the Irish operation compared to Ms Kiely. Mr X was not restricted to the issue of cheques below IR£2,500 and there was no evidence that he regularly deferred to the UK parent company in relation to major decisions unlike the complainant who did so regularly as evidenced in her submission. While the Irish operation was apparently trading at a lower level of activity at the time of my visit, I
consider that Mr X's overall level of responsibility in relation to the operation was unchanged between his two terms as General Manager. I concluded that in relation to skill, physical and mental requirements and responsibility, the complainant was not engaged on like work as that of the first named comparator.
5.5 The complainant stated in her submission that the second named comparator i.e. the former Sales Rep, whose recruitment she states came about on her recommendation, involved cold calling, meeting customers face to face and informing them of the services offered by the company. I note that the Sales Rep's employment with the company was terminated by the parent company in the UK without any prior consultation with the complainant. The complainant states that during his period of employment with the company she carried out all his paperwork including quotations and job assessments. Other than the above general description of the Sales Rep's duties, I could not ascertain the value of his work to the company, the conditions under which he may have worked, the hours he spent on the road, the knowledge and skills he brought to bear on his work etc. It is evident from information provided by the respondent that his annual salary of IR£28,000 was considerably higher than the complainant's salary of IR£20,000 but in the absence of any substantive evidence I must conclude that the complainant has failed to establish that she was engaged on like work with that of the second named comparator.
6.1 On the basis of the foregoing, I find that Thornhill Regasketing Ireland Ltd did not discriminate against Ms Winifred Kiely on the gender ground with regard to her pay in terms of section 19(1) of the Employment Equality Act, 1998.
28 June, 2004