THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2012-097
Parties
Albert Debowski
(represented by Deirdre Costello B.L instructed by B & P Byrne Solicitors)
versus
Wicklow Golf Club
(represented by Mary Paula Guinness B.L. instructed by Haughton McCarroll Solicitors)
File reference: EE/2009/749
Date of issue: 25th July 2012
Keywords: Employment Equality Act, Equal Pay, Race, Like work, Grounds other than race, Harassment, Discriminatory Dismissal, Victimisation
1. Dispute
1.1 This dispute concerns a claim by Albert Debowski, who is Polish, against his former employer Wicklow Golf Club that he was entitled to the same rate of remuneration as paid to two named Irish comparators in accordance with the provisions of Section 29(1) of the Employment Equality Acts 1998-2011[hereinafter referred to as 'the Acts']. He also claims harassment, discriminatory dismissal and victimisation.
1.2 Through his legal representative, the complainant referred his complaint under the Acts to the Director of the Equality Tribunal on 8th October 2009. In accordance with his powers under Section 75 of the Act, the Director delegated the case on 31st January 2012 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. A Hearing was held on 14th March 2012 as required by Section 79(1) of the Acts. In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties.
2. Summary of the complainant's case
2.1 The complainant worked with the respondent from 24th May 2007 to 24th July 2009 initially as a General Operative and then as an Assistant Greenkeeper. He submits that one of the other Greenkeepers, Mr Z harassed him on the grounds of race. Mr Debowski submits that Mr Z used to verbally abuse him saying things like 'You are stealing Irish jobs' and 'You Polish c*nt'. On one occasion, Mr Z hid the keys of the staffroom just before Mr Debowski was about to finish work. As a result Mr Debowski could not access his personal belongings i.e. his mobile phone and house keys. He had to climb in a window to get them. Mr Debowski submits that his colleagues were laughing at him. He complained to his supervisor who reported it to the Manager/Secretary of the Golf Club - Mr Y. Mr Y admonished Mr Z and Mr Z was 'on his best behaviour' for a few weeks after that.
2.2 According to the complainant, Mr Z began to behave aggressively again. The three of them discussed the matter. Mr Y said they were acting like boys and made them shake hands. However, the complainant submits that Mr Z reverted to his old behaviour. Mr Debowski said that he reached the end of his tether when Mr Z threw grass at him and threatened him with a rake. Mr Debowski lost his temper and punched Mr Z in the face. Mr Debowski was suspended with pay while the matter was investigated. Mr Z was not suspended. Mr Debowski was dismissed on 24th July 2009 for gross misconduct for his assault on Mr Z. The complainant submits that he was provoked by the psychological abuse he endured from Mr Z. After he was dismissed, he submits Mr Z was seen lurking around Mr Debowski's house - staring in the window at his girlfriend and badmouthing Mr Debowski to his neighbours.
2.3 Mr Debowski also claims equal pay with Mr Z and Mr X. He submits that they all did mainly the same work but the other two were paid more.
3. Summary of the respondent's case
3.1. The respondent submits that it became apparent In June 2008 that there had been ongoing issues between Mr Debowski and Mr Z. This culminated in the prank where Mr Debowski's belongings were locked away. The respondent submits that this matter was taken seriously and Mr Z was reprimanded. However, the respondent submits that there was a competitive relationship between both of them i.e. that Mr Debowski used to tease Mr Z also. The respondent denies ever hearing Mr Z using racist language and submits that it is not something they would tolerate. The relationship between the two employees deteriorated again and on 28th June 2008 the matter was escalated to Mr Y, Secretary/Manager of the Golf Club. An informal mediation took place. He met with both employees separately and then together. He told them they were acting immaturely and suggested that they shake hands and to learn to work together which they agreed to do. Over the next year, Mr Y maintains that he regularly checked with Mr Debowski to see how he and Mr Z were getting on and states that Mr Debowski never made any further complaints to him.
3.2 On 8th July 2009, Mr Debowski punched Mr Z in the face resulting in a nosebleed. As per their employment procedures, a full investigation was carried out. Mr Z maintains that he was not provoking Mr Debowski. Before making their final decision regarding his dismissal, Mr Debowski was allowed to state his case at a meeting of the Club Committee. He was advised of his right to bring a representative. Mr Debowski chose to go on his own. The committee formed the view that Mr Debowski exaggerated the harassment by Mr Z endured to bolster his case. They proceeded to dismiss him.
3.3 Regarding the equal pay complaint, Mr Z started in 1997 and his hourly rate in July 2009 was €11.35. Mr X started work in August 2007 (three months after Mr Debowski) and he was paid €10 an hour. The complainant started in May 2007 and he was paid €9.13. The respondent states that Mr Z was paid more because of his significantly longer service. The respondent cites the CJEU Cadman v HSE case:
34. The Court acknowledges that rewarding, in particular, experience acquired which enable the worker to perform his duties better constitutes a legitimate objective of pay policy.
35. ....Length of service goes hand in hand with experience, and experience generally enables the worker to perform his duties better.1
In 2007 the club had lost two green keeping staff in quick succession as they paid a lower salary than neighbouring golf clubs so Mr Z's salary was increased. The respondent submits that he was an efficient and thorough worker so he was rewarded for that as well as his loyalty.
3.4 Mr X was paid at a higher salary as he was able to operate machinery which Mr Debowski nor Mr Z was not e.g. roof lawn mower. Therefore the respondent concedes like work with Mr Z but cites Cadman as an authority for the pay disparity being based on grounds other than race. The respondent disputes like work with Mr X.
3.5 Mr Debowski was initially employed as a General Operative with responsibility for cleaning around the clubhouse, tending to flowerbeds etc. At this time he was paid the minimum wage. When a vacancy arose as a Greenkeeper, he was offered the opportunity and his salary was increased. According to the respondent, he performed well for the first year but then his performance deteriorated. He was not sufficiently conscientious; he did not rake the bunkers properly and he left work early without permission on more than occasion.
4. Conclusions of the Equality Officer
4.1 Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is race. The issues for me to decide are:
(i) Was the complainant entitled to equal pay with the two comparators?
(ii) Was the complainant harassed within the meaning of Section 14A (7) of the Acts?
(iii) Was the complainant discriminatorily dismissed?
(iv) Was the complainant victimised by the respondent contrary to Section 74(2) of the Acts?
4.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. 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 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 establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.2
Equal pay
4.3 Section 29 (1) of the Act provides that where A and B represent two people of the different nationalities it shall be a term of the contract under which A is employed that A shall at any time be entitled to the same rate of remuneration for the work A is employed to as B who, at that or any other relevant time, is employed to do like work by the same or associated employer. The existence of like work between a complainant and comparator is a necessary condition to any entitlement to equal pay under the Act. Therefore I will first examine whether like work exists.
4.4 Like work is defined in Section 7 of the 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 regards to such matters as skill, physical or mental requirements responsibility and working conditions
In order to see whether or not the work of the complainant and the named comparators in their roles is equal in value as per Section 7(1) (c), I will examine same under the headings of skill, physical or mental requirements, responsibility and working conditions. As the complainant has also claimed like work within the meaning of Section 7 (1) (a) and (b), I will also consider whether each of roles constitutes like work as per those subsections.
4.5Skill:
All three were involved in the maintenance of the greens. This involved raking bunkers, mowing the greens, strimming around the bunkers. However Mr X had to operate a roof lawn mower which Mr Debowski and Mr Z were unable to do. Therefore I am satisfied that Mr X's role required more skill. Mr X had worked on farms so therefore he had more experience of operating big machinery than either Mr Z or Mr Debowski.
Physical or Mental Requirements:
Similar levels of physical effort were necessary for the three positions. All roles required significant physical exertion. Slightly greater mental requirements were required by Mr X due to the operation of other equipment.
Responsibility:
Neither the complainant nor comparators had supervisory roles. Therefore, I find that responsibility was equal.
Working Conditions:
The complainant and comparators worked 39 hour week over 5 days. Occasionally when there was a golf competition on they were asked to work for a few hours at weekends for which they were paid overtime. Therefore, I find their working conditions were similar.
4.6 I find that the demands made on the complainant in terms of skill and mental requirements, are less than the demands made on Mr X. I, therefore, find that Mr Kowalski did not perform like work with Mr X in terms of Section 7(1)(c) of the Acts.
4.7 Neither do I find that this constitutes like work within the meaning of Section 7 (1) (a) and (b) as Mr X used machinery which the complainant (and indeed Mr Z) were unable to use. Wicklow Golf Club required somebody who was able to use this machinery as it would be inefficient for the greens of a golf club to be mowed using a push lawnmower or even a sit-on lawnmower. Being able use this machinery was not an interchangeable function nor was it insignificant to the work of Wicklow Golf Club. The complainant readily acknowledges that he was unable to use this machinery. Therefore, the complainant is not entitled to claim like work with Mr X.
Grounds other than race
4.8 The respondent concedes like work with Mr Z but submits that the difference in pay is on grounds other than the discriminatory grounds as per Section 29 (5) of the Act. Mr Z had ten years more experience than the complainant in Wicklow Golf Club and, excluding the disciplinary issue mentioned at 2.1 and 3.1, he consistently performed at a high level. I find that Cadman is relevant to this instant case. In common with the comparators in the Cadman judgment, Mr Z's experience was with the same employer. Market forces were also a factor as Wicklow Golf Club wanted to retain an efficient member of staff. Mr X had experience working on farms so he was able to use this machinery. It is understandable that he was paid slightly more for a higher skill level. In the opinion of Advocate General Maduro regarding the Cadman case, he said:
Where the use by an employer of the criterion of length of service as a determinant of pay has a disparate impact as between relevant female and male employees, Article 141 EC, together with Article 2(2) and Article 4 of Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex, require the employer to demonstrate that the way in which the criterion is used as a pay determinant in respect of the post concerned takes into account the business needs of the undertaking and that the criterion is applied proportionately so as to minimise the disadvantageous impact it has on women. If the employer is unable to provide justification for the structure of the pay system, it will have to provide specific justification for the difference in pay levels as between the employee who has complained and other employees performing the same job.3
In the instant case, I find the respondent took account of the business needs of the undertaking (staff retention) and the pay differentials were proportionate. Neither Mr X nor Mr Z were paid significantly more than the complainant. Having evaluated the evidence presented to me, I find there are also grounds other than race for the pay disparity between both Mr X and Mr Z.
Harassment
4.9 Section 14A (7) of the Act defines harassment as any form of unwanted conduct related to any of the discriminatory grounds and being conduct which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
4.10 Section 14A (2) provides a defence for an employer if it can prove that it took reasonably practicable steps to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects [my emphasis]. I have examined the respondent's Workplace Bullying (Code of Practice) and the compilation of this document may be regarded as one 'reasonably practicable step' to prevent harassment.
4.9 I accept the evidence of the various witnesses for the respondent that they never heard Mr Z use racist language to the complainant. However, I also accept the complainant's evidence that Mr Z did direct racist remarks at the complainant but avoided doing it in front of an audience. Nevertheless I am satisfied that this was not a 'David and Goliath' situation with the complainant being David and Mr Z being Goliath. However, whether the complainant retaliated or not, it still constitutes harassment within the meaning of the Acts. The complainant admits that he never made a complaint about the racist language used by Mr Z to his employer. Therefore, in the instant case the respondent cannot be held responsible for it in a situation where an anti-harassment policy existed and Mr Debowski did not make a complaint.
4.10 I find that the incident where his personal belongings were locked away, even if it was intended as a practical joke, was also harassment. However, the respondent is to be commended on the way the situation was handled. It is common case that Mr Debowski made a complaint about the incident, it was taken seriously, the matter was investigated and Mr Z was reprimanded. When Mr Debowski made a further complaint about Mr Z's behaviour, Mr Y mediated the dispute. Mr Y also regularly checked with Mr Debowski to see how he was getting on with Mr Z. I accept Mr Y's evidence that Mr Debowski never used this opportunity to make a complaint about Mr Z. In continuing to keep a watchful eye on the situation, the respondent followed the spirit as well as the letter of their Workplace Bullying (Code of Practice). Therefore while I accept that that Mr Debowski was harassed within the meaning of the Acts, the respondent is entitled to avail of the defence provided in Section 14A(2) as it did attempted to reverse the effects of harassment by conducting an investigation, reprimanding Mr Z, mediating a further dispute and monitoring the situation to make sure it did not happen again.
Discriminatory Dismissal
4.11 The complainant submits that he was dismissed while Mr Z was not even though Mr Z was harassing him because he was Polish. I find this to be a skewed interpretation of the facts. I accept the respondent's evidence that the complainant and Mr Z had a bickering relationship. I am also satisfied that there may have been some aggravation leading up to Mr Debowski punching Mr Z. Nevertheless, I find that hitting a colleague with the intention to injure him (especially within the workplace), even under provocation, is gross misconduct. I am satisfied that if an Irish employee had done the same thing s(he) too would have been dismissed by the respondent. Therefore, the complainant has failed to establish a prima facie cases of discriminatory dismissal.
Victimisation
4.13 Section 74 (2) of the Act state victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant, the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.
4.14 The complainant submits that the respondent 'had it in for him' once he made a complaint. There is no factual evidence to support this claim. When Mr Debowski made a complaint it was taken seriously and Mr Z was admonished. After he hit Mr Z, an investigation took place in line with fair procedures, before he was dismissed. In fact the respondent's procedures and the appropriate way they implemented them would put many larger employers to shame. Therefore, this strand of his case fails.
Decision
I have concluded my investigation of Mr Debowski's complaint and hereby make the following decision in accordance with Section 79(6) of the Act. I find that
(i) The complainant is not entitled to equal remuneration with either of the comparators
(ii) The complainant did endure some harassment during his employment but the respondent is entitled to avail of the defence in Section 14A of the Acts
(iii) The complainant was not discriminatorily dismissed
(iv) The complainant was not victimised within the meaning of Section 74(2) of the Acts.
_____________
Orlaith Mannion
Equality Officer
1 BF Cadman v Health and Safety Executive Case C-17/05
2 Labour Court Determination No. EDA0917
3 http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30ddc0abcb0ca8ab424fadc0eafe0963c81f.e34KaxiLc3qMb40Rch0SaxqTbN10?docid=72549&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&cid=139949