THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS
Decision DEC - E2011-243
TMF Management (Ireland) Limited
File references: EE/2009/039
Date of issue: 19 December 2011
Headnotes: Employment Equality Acts, 1998-2008 - sections 6 ,8 29,74,77A - race- prima facie case - conditions of employment - equal pay -victimisation-misconceived..
1.1 This dispute concerns a claim by Mr Vadym Kalinin, (hereinafter "the complainant"), that he was subjected to discriminatory treatment by TMF Management (Ireland) Limited (hereinafter "the respondent") on the grounds of race in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts in relation to promotion/re-grading, training, conditions of employment and other. He also maintained that he was victimised. He also made a claim in relation to equal pay.
1.2 The complainant referred a complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 23 January 2009. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Deirdre Sweeney, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 27 June 2011 the date the complaint was delegated to me. Submissions were received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 13 September 2011.
2. Summary of the Complainant's Submission
2.1 The complainant, who is a Ukrainian/Russian national, was employed by the respondent as an accountant from December 2006 until 25 July 2008. He submits that the respondent discriminated against him in terms of promotion/regrading, training and conditions of employment. He alleges that he was forced to work very hard and to deliver a high volume of work. He contends that when he informed management that he felt stressed his concerns were not dealt with. He alleges that he was forced to work excessive hours for which he did not receive remuneration or time off. He alleges that he was refused a reference and that despite promises of training in Amsterdam he was not sent to Amsterdam for training. He contends that he was constantly undermined and ignored as a professional. He also contends that his final wages were not paid to him due to deductions taken without his consent. In his submission he outlined occasions in which he contended that he was subject to inappropriate behaviour from both management and colleagues.
2.2 The complainant contends that he was victimised by the respondent. The complainant also submitted a claim for equal pay against a named comparator Mr. A on the grounds that he performed the same work as this comparator, or his work was interchangeable with that of this comparator.
3 Summary of the Respondent's Submission
3.1 The respondent denies that the complainant has been subjected to discrimination on the grounds of race, contrary to section 6 of the Employment Equality Acts. The respondent states that it is an Amsterdam-headquartered global management and accounting outsourcing firm with more than 3000 staff across 85 offices and 65 countries. It began operations in Ireland in 2005 with a staff of just two people. The Irish office grew quickly and staff numbers had reached 31 by the end of 2008.
3.2 A small special purpose vehicles (SPV) accounting team was assembled in 2006. This comprised a junior accountant, two partly qualified accountants (one of whom was the complainant) and Mr. A, a fully qualified accountant. An experienced Financial Controller joined the respondent in July 2007. The respondent submits that the team was overstaffed in mid-2007 relative to the work, it was recognised that time and space would be required to build up the required expertise and experience.
3.3 The respondent contends that the complainant's progress on straightforward assignments was very slow. A typical SPV accountant at the Amsterdam office would be expected to complete 15-20 sets of accounts of average difficulty per year while the goal in the Irish office was to reach 12 plus audited accounts per person, the complainant completed 7 sets of accounts in 2007. The respondent states that while the overall accounting workload was low relative to the number of accounting staff, the team was not performing well collectively or individually. The complainant was given a high level of freedom and independence in managing his own work. Despite his weak performance he was not pressurised to improve productivity by his supervisor and was awarded a mid year increase of 10% of his salary from 1 July 2007 to encourage further commitment.
3.4 A period of specialist training was planned for the complainant and other TMF accountants in the autumn of 2007. However the Head Office in Amsterdam decided that it would be more efficient and cost-effective to send one senior accountant to Ireland for one month rather than sending several people from Ireland to the Netherlands for training.
3.5 In the second half of 2007 the complainant's performance had improved a little and he was given due recognition for the improved performance and awarded a further 7% increase in his salary. He was also awarded an exceptional bonus payment of €3200. However the complainant expressed disappointment with his salary review on 28 December 2007 saying that he expected his salary to be increased to at least €45000 (a 20% rather than 7 % increase). The respondent stated that the complainant was informed that his salary had increased very rapidly despite poor individual and collective results from the Accounting Department.
3.7 The respondent states in February 2008 the complainant informed the respondent of his intention to resign in favour of a better role elsewhere at €45000. On 6 March 2008 the respondent agreed to increase his salary to €45000 from 1 April 2008 on a personal basis without any change in his duties or responsibilities. He was informed that this would be classified as a promotion from Accountant to Senior Accountant.
3.8 The respondent contends that during his employment the complainant on a number of occasions had interpersonal difficulties with various staff members. It became clear shortly after he joined the respondent that the complainant was experiencing significant personal financial stress even though he had received a 17% increase in salary on recruitment. It also became apparent that the pressures of his accountancy exams added significantly to his personal stress levels. These pressures appeared to affect his behaviour and performance at work. He demonstrated moody behaviour patterns, moving between calm/cooperative and abrasive/hypersensitive for no obvious reason. Several staff members commented that these frequent and inexplicable mood swings made it difficult to work with him. There were a number of seemingly minor issues with staff members where the complainant's reaction appeared disproportionately confrontational.
3.9 In relation to the complainant's claim for equal pay, the respondent contended that the complainant and the comparator Mr A were not employed on like work as the comparator was senior to the complainant. Notwithstanding this, it argued that the comparator's salary reflected his greater qualifications and work experience.
3.10 The respondent submits that the complainant has not adduced any evidence to establish a prima facie case of discrimination on the grounds of race. The onus of proof remains on the complainant to prove that discrimination occurred and the respondent submits that he has failed to discharge this onus.
4. Conclusions of the Equality Officer.
4.1 The issues for decision by me are whether or not the respondent discriminated against the complainant on grounds of race in terms of Section 6(2)(h) of the Employment Equality acts in relation to conditions of employment, training, promotion/regrading, victimisation and equal pay.
Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where " 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 terms of subsection (2)...". Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows "as between any two persons.. that they are of different race, colour, nationality or ethnic or national origins..."
Thus the complainant must the subject of less favourable treatment in comparison to another person on grounds of race, i.e. because he is Russian/Ukrainian.
4.2 In evaluating the evidence before me I must first consider whether the complainant has established a prima facie pursuant to Section 85A of the Employment Equality Acts .This 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. The Labour Court has stated in Melbury Developments Limited and Valpeters:
"Section 85A of the Act provided for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to case and there is no closed category of facts which can be relied upon all that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule."
4.3 It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
Conditions of Employment
4.4 The complainant, both in his submission and in his oral evidence, outlined what he described as inappropriate behaviour relating to the demands made on him in relation to work, and also outlined various interpersonal issues he had involving colleagues, management and junior staff. These were also the subject of email communication within the company with which I have also been copied. These communications give no indication that the complainant was experiencing any difficulties in relation to his nationality and race. No reference is made in any of these communications to his race/nationality. The complainant was unable to provide any evidence that he was treated less favourably because of his race or nationality in terms of his conditions of employment. Therefore a prima facie case of discrimination has not been established by the complainant in relation to conditions of employment.
4.5 In relation to his claim that he was not sent to Amsterdam for training, the complainant did not dispute the respondent's evidence that a staff member from Amsterdam travelled to Dublin to provide training. The respondent stated that, initially, it had been envisaged that staff from the Irish office (of various nationalities) would travel to Amsterdam for training but it was decided that it would be more economical to bring one person from Amsterdam to provide training rather than incur the costs of several people including the complainant travelling to Amsterdam for the training. The complainant was unable to provide evidence that he was treated less favourably in relation to this training than other staff.
4.6 In addition, the complainant contended that the study assistance agreement was unfair. The study assistance scheme provided for the reimbursement of up to 80% of the cost of registration/course fees, exam fees etc. As part of this scheme an employee is obliged to immediately repay all reimbursed study costs to the respondent if the employee leaves the respondent's employment during the period of the course or within one year after completing the course. The complainant contended that the request from the respondent for this repayment when he was leaving their employment and the respondent's subsequent deductions from his final salary to cover some of the reimbursement due to be repaid by him were unfair. The complainant accepted that this scheme applies to all staff and he was unable to provide any evidence that any other staff member leaving before completing their course of study was treated more favourably than he was.
A prima facie case of discrimination on grounds of race has not been established by the complainant in relation to training.
4.7 The complainant did not provide any evidence that he was treated less favourably than other staff in relation to promotion. There was no evidence that any other staff at his level had been promoted. Indeed I note the increase in salary, he received in April 2008, was classified by the respondent in documentation at that time as a promotion from Accountant to Senior Accountant. Therefore a prima facie case of discrimination on grounds of race has not been established by the complainant in relation to promotion/regrading.
4.8 Section 74(2) of the Employment Equality Acts specifies that victimisation occurs where dismissal or other adverse treatment of an employee occurs as a reaction to inter alia an employee making a compliant of discrimination to the employer or the employee having opposed by lawful means an act which is unlawful under this Act. At the hearing I asked the complainant for details of the adverse treatment he received as a result of making a complaint of discrimination. He stated that the company's attempt to enforce the "non-compete" clause in his contract was victimisation. He stated that he considered the victimisation occurred because he had taken other complaints in relation to this employment to other employment rights bodies. In relation to his claim of victimisation at the hearing the complainant confirmed that he was not contending that he suffered adverse treatment as a reaction to a complaint of discrimination under these Acts. I informed both parties at the hearing that this complaint appeared to be misconceived in terms of Section 77A of the Acts as it is incorrectly based in law. I consider that the complaint is misconceived in terms of Section 77A of the Acts and I find that I have no jurisdiction to investigate this complaint of victimisation.
4.9 Section 29 (1) of the Acts 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", where 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.
4.10 The existence of "like work" between the complainant and the comparator does not, of itself, confer an entitlement of equal pay. Section 29(5) of the Acts provides that an employer may pay two employees performing like work different rates of remuneration if it can show that the difference is based on factors unconnected with the impugned ground - in this instance, race. The respondent rejects the assertion that the complainant performs "like work" with the named comparator and, notwithstanding this, submits that there are grounds other than race for the difference in the rates of remuneration paid to them. The respondent argued that the complainant and comparator were not employed on like work as the comparator was senior to the complainant. Notwithstanding this, it also argued that the comparator's salary reflected his greater qualifications and work experience. The respondent contends that there are grounds unconnected with the nationalities of the complainant and comparator which render the rates of remuneration paid to them lawful in terms of the aforementioned provision. I decided to investigate this matter as a preliminary issue in accordance with Section 79 (3) of the Act.
4.11 The respondent provided me with copies of the c.v. of both the complainant and the comparator submitted at the time of their recruitment in 2006. It is clear from this evidence that Mr A was a qualified Accountant (ACCA) since February 2000 and had almost seven years experience at that level in the financial services sector at the time of his recruitment in December 2006. The complainant was a part-qualified ACCA with several further exams to pass and with less experience in that sector. At the hearing the complainant confirmed that he passed his final exams in June 2009 and qualified as an ACCA then. I am satisfied that Mr A's rate of pay reflected his higher qualifications and greater relevant experience. Having regard to Section 29(5) of the Acts Mr A's received a higher rate of pay to that of the complainant for reasons other than the discriminatory ground of race and therefore the respondent can avail of the defence in section 29 (5) of the Acts. I am satisfied that the complainant is not entitled to the same remuneration as the named comparator. Therefore the complainant's case fails. Accordingly, I find in favour of the respondent in this matter.
5. DECISION OF THE EQUALITY OFFICER
5.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision
(i) the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2)(h) of the Acts in terms of his conditions of employment, training and/or promotion/regrading contrary to section 8 of the Acts.
(ii) the complainant's claim of victimisation is misconceived and I dismiss it under the provisions of S. 77(A) of the Employment Equality
(iii) the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2)(h) of the Acts, in relation to his pay.
19 December 2011