EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2012 - 065
(represented by Nuala Dockry B.L. instructed by Keaveney Jennings Solicitors)
Coalbrook Ltd trading as Connemara Coast Hotel
(represented by Kevin McNamara, Kieran Murphy and Co. Solicitors)
File reference: EE/2009/211
Date of issue: 28th May 2012
Keywords: Employment Equality Act, Equal Pay, Race, Like work, Grounds other than race, Victimisation
1.1 This dispute concerns a claim by Henry Kowalski, who is Polish, against his former employer Coalbrook Ltd (trading as the Connemara Coast hotel) that he was entitled to the same rate of remuneration as paid to a named Irish comparator in accordance with the provisions of Section 29(1) of the Employment Equality Acts 1998-2008 [hereinafter referred to as 'the Acts']. The respondent denies that like work exists between the complainant and comparator. He also claims discriminatory conditions of employment and victimisation
1.2 Through his legal representative, the complainant referred his complaint under the Acts to the Director of the Equality Tribunal on 30th March 2009. In accordance with his powers under Section 75 of the Act, the Director delegated the case on 9th September 2011 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 26th September 2011 as required by Section 79(1) of the Acts. During the hearing, I interviewed the complainant and comparator about like work. The last piece of correspondence requested by the Equality Officer was received on 28th November 2011. 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 Prior to working for the respondent, the complainant had twenty years experience (including running his own business) as a Painter/Decorator both in Ireland and abroad. Mr Kowalski saw an ad for a Painter/Decorator in the Galway Advertiser on 30th August 2007. His son enquired about the position for his father as the complainant's English was not fluent. The complainant's son submits he was told the salary was €450 per week (including meals) when he rang. At the interview Mr Kowalski submits that Mr A (former Manager of the Connemara Coast hotel) asked mainly about his experience as a painter/decorator. However, when the complainant started in his employment on 12th November 2007, his salary was €305.21. The complainant submits that all employment-related documentation (letter of appointment, contract of employment, job description) was in English. While working there he used a pocket translator. He submits that he, in particular, suffered because he maintains that he was being paid less than the minimum wage there. If his contract was in Polish, he submits that he would have been aware that he was being underpaid.
2.2 When the complainant commenced work in the Connemara Coast hotel, it was undergoing redecoration as it was the quiet season. He maintains that most of the winter months were spent painting. Thereafter he did both painting/wallpapering and general maintenance work e.g. changing light bulbs, fixing taps. He claims like work with the comparator within the meaning of Section 7 of the Acts. A worksheet was produced by the reception staff and that the tasks were allocated to the complainant and comparator by the foreman or by mutual agreement between the complainant and comparator. Mr Kowalski maintains that if any checks on their work were done, they were done by the foreman. The complainant submits that his work was not subject to appraisal by the comparator nor was the complainant answerable or accountable to the comparator.
2.3 The complainant submits that the comparator was engaged by the respondent approximately a fortnight prior to the complainant starting employment there. The complainant submits that the comparator and foreman live in the same area and that is how he got the position. During the summer of 2008 the complainant learned that the comparator's gross weekly wage was €540 (approximately €235 greater than the complainant's). He submits that the comparator expressed amazement many times that Mr Kowalski was paid so much less than him when both their payslips described them as 'Maintenance'. Mr Kowalski states that the comparator often said to him that when he worked in America, all workers doing the same job were paid the same wage no matter where they came from. Mr Kowalski states that he had significantly more experience as a painter/decorator than the comparator. In direct evidence he stated 'I would be able to cover for him but he would not be able to cover for me'. He submits that the comparator left the wallpapering to him as he was more skilled at it. The comparator also asked the complainant to help him with wallpapering in his own home.
2.4 The complainant brought a witness (who continues to work for the respondent as an accommodation assistant) who corroborated his evidence that he and the comparator did the same work.
2.5 He submits that Mr A (the then hotel manager) said that he would get an increase on passing his probation after three months. Mr Kowalski submits he and his son brought this issue up numerous times with Mr A but to no avail. He states that he also raised the issue with the foreman who brought it to the attention of the Human Resources Manager of the Sinnotts hotel group. The complainant submits that because he queried why his salary was so low, he was dismissed.
3. Summary of the respondent's case
3.1 The respondent denies all complaints. They submit that they employ people of different nationalities and regard an inclusive work environment as very important. For many years, the respondent employed three staff in the maintenance department - a Foreman, Painter/Decorator and a Maintenance Assistant. Mr Kowalski, the Connemara Coast hotel submits, was employed as a Maintenance Assistant. His duties were general and included changing light bulbs, fixing sinks, tuning televisions, preparatory work for the Painter/Decorator e.g. stripping wallpaper, putting up festive decorations and lights and acting as Santa Claus at Christmas parties.
3.2 The respondent points out that Mr Kowalski countersigned his letter of Appointment and Job Description on 27th November and his rate of remuneration was set out therein. These documents and the equivalent documents for his comparator were submitted as documentary evidence. The title of his comparator's position on his job description is Painter/Decorator. The respondent argues that the comparator carried out tasks of greater value. It states that the work Mr. Kowalski carried out was relatively unskilled and menial. The respondent states that Mr Kowalski was NEVER asked to do skilled work. The respondent submitted documentary evidence to demonstrate that they have an outside contractor for wallpapering.
3.3 The respondent denies that either the complainant or his son raised any query regarding his wages during the course of his employment.
3.4 The respondent submits that it took all reasonable steps to ensure that Mr Kowalski understood the terms and condition of his employment. His son attended his interview with Mr A (as a translator) and throughout the course of his employment co-workers assisted with translation. The respondent maintains that Mr Kowalski did not suffer any prejudice in his employment with them due to his less-than-perfect English. It points out that their Health and Safety statement is translated into numerous languages including Polish. Photographic evidence of same was provided.
3.5 According to the respondent, Mr Kowalski was made redundant due to the economic downturn, not his nationality. The Connemara Coast hotel employed 83 people in October 2006. By October 2008 the workforce had reduced to 69. At the time of the hearing, the hotel employed 43 people. At a meeting on 3rd September 2008, the reasons for Mr Kowalski's termination of employment were given to him. A Polish colleague attended to translate.
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. On the race ground, the issues for me to decide are:
(i) Was the complainant entitled to equal pay with the comparator?
(ii) Was the complainant discriminated in relation to conditions of employment on ground of race in terms of 8(1)(b) of the Acts?
(iii) Was the complainant victimisatorily dismissed 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.
4.3 Before turning to the substantive issue, I must comment on the credibility of the parties. Mr Kowalski maintained that it was the comparator who told him how much he (the comparator) earned as they had a friendly working relationship. The complainant also stated that the comparator commented numerous times to him on the unfairness of the pay disparity as they did similar work. The comparator denies this and said that he would never discuss his pay with a work colleague. The respondent also accused the complainant of obtaining the comparator's payslip surreptitiously. I prefer the complainant's evidence on this issue. It is clear from the comparator's message on the 'going away' card to Mr Kowalski (where he included his mobile phone number to keep in touch) and the fact that the comparator asked the complainant to help him with redecorating his own house that they enjoyed a cordial relationship while working together. The accusation that Mr Kowalski stole the comparator's payslip is far-fetched. I believe it was said to discredit the complainant and does not reflect well on either the respondent or comparator (who I acknowledge is in a difficult position because he continues to work there).
4.4 I am satisfied that the complainant applied for the position of Painter/Decorator following seeing an advertisement in a local newspaper. I accept his son's evidence that initially he was told the salary was €450 per week for this position. Mr A stated in direct evidence that 80 applicants applied for this position. It is logical that with such a large pool of applicants an employer would recruit somebody with significant painting/decorating experience when a major redecoration project is planned. I accept the complainant's evidence that most of the questions asked at the interview related to his experience as a painter/decorator. Having seen Mr Kowalski's experience on his CV and checked his references, he was selected. That his significant experience and skills would then be ignored and that his role would be demarcated to mere paint stripping and ladder-holding stretches credibility beyond its limits.
4.5 I accept that the respondent also employed a sub-contractor to do wallpapering. However, from the invoice submitted the sub-contractor appeared to do communal areas while the complainant and comparator redecorated the bedrooms.
4.6 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.
4.7 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 comparator 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.
Notwithstanding his job title as Maintenance Assistant, it is clear that the bulk of the complainant's duties involved painting and decorating. The complainant kept a written record of all rooms completed in the hotel. In direct evidence, Mr Kowalski said he maintained this practice of noting work completed from his time running his own business as a painter/decorator. The respondent does not deny that the complainant had some involvement in redecorating these rooms (with the exception of one which the complainant acknowledged as a transcription error) but maintains that his role consisted of preparatory work and holding the ladder. This argument is hard to believe. The comparator (who is still employed by the respondent) was evasive on how much work the complainant completed by himself. When pressed in direct evidence, he stated that Mr Kowalski did complete the rooms stated including the bridal suite on his own. The complainant submits that he was more skilled at wallpapering than the comparator which was acknowledged by the comparator. Therefore, I am satisfied that the complainant's skills were at least equal to that of the comparator.
Physical or Mental Requirements:
Similar levels of physical effort were necessary for both positions. Both roles required significant physical exertion. I am satisfied that both had to do repair work as well as painting and decorating. Maintenance tasks were entered onto the maintenance database at the hotel's reception. I am satisfied that these basic repair works were divided evenly e.g. both the comparator and complainant had to replace light bulbs, fix taps etc.
Neither the complainant nor comparator had a supervisory role which is acknowledged by the respondent. Responsibility for ordering paint lay with the comparator. However, I am satisfied that, in reality, it was an interchangeable task. I am satisfied that both the complainant and comparator decided how much of each product was necessary e.g. paint, wallpaper adhesive etc. Therefore, I find that responsibility was equal.
Both complainant and comparator worked 39 hour week over 5 days (meals included). The complainant was required to work Tuesday to Saturday while the comparator was not required to work at weekends. The comparator received travelling expenses while the complainant did not. Therefore, I find the complainant's working conditions not as good as the comparators.
4.9 The Labour Court point out that 'it is well settled that the law does not require a mathematical exactitude of equality between jobs before they can be regarded as equal in value under Section 7 (1) (c ) of the Act.' I find that the demands made on the complainant as Maintenance Assistant in terms of skill, physical or mental requirements, responsibility and working conditions are equal to the demands made on the comparator. I, therefore, find that Mr Kowalski performed like work with the comparator in terms of Section 7(1)(c) of the Acts.
4.10 I find that all work was similar in nature as well as being interchangeable between the complainants and comparator. The job descriptions provided to each of them with their contract of employment are almost identical albeit with different job titles. Both were listed as maintenance on their payslips. Sometimes both of them worked on their own and they also worked on some projects together i.e. constructed the children's playground Therefore, this also constitutes like work within the meaning of Section 7 (1) (a) and (b).
Grounds other than race
4.11 Once like work is established, the respondent must demonstrate that the difference in pay is on grounds other than the discriminatory grounds as per Section 29 (5) of the Act. The only argument advanced that there were grounds other than race for paying the comparator significantly more than the complainant was that the comparator had significant experience in the USA of managing contracting projects e.g. house extensions. However, the complainant also was able demonstrate evidence of owning his own company and managing large-scale projects. The market forces argument cannot apply as the complainant was appointed only a few weeks before the comparator. Having evaluated the evidence presented to me, I find there are not grounds other than race for the pay disparity. Therefore the complainant is entitled to equal remuneration with the comparator from the date of the complainant's commencement of employment to the termination of the complainant's employment. The difference in gross pay between the complainant and comparator was €234.79 and the period that they worked together was approximately 46 weeks.
Conditions of Employment
4.12 To assert that in all cases there is legal requirement to provide foreign nationals with documentation in a language likely to be understood by the employees is simply incorrect in law. Indeed mastery of a language does not necessarily mean a familiarity with the laws of a State where that language is spoken. For example, one could be fluent in German and not be aware of one's rights and responsibilities under employment legislation in Germany. It is axiomatic that the inverse is also true. Therefore, I accept the respondent's contention that Mr Kowalski was not prejudiced by his Contract of Employment and Job Description not being translated into Polish. His son attended the interview where the terms and conditions of his employment were explained to him. The complainant in this case has been able assert his rights under employment legislation here and in other fora despite not being fluent in English. For these reasons this strand of his case fails.
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 he was dismissed following him pointing out the difference in pay between himself and his comparator who is Irish. I accept the evidence of the complainant and his son that they raised this issue more than once with the respondent. However, I am satisfied that Mr Kowalski was dismissed not because he made a complaint under the Acts but because of the economic downturn. I accept the respondent's evidence regarding the amount of staff let go. Therefore, this strand of his case fails.
I have concluded my investigation of Mr Kowalski's complaint and hereby make the following decision in accordance with Section 79(6) of the Act. I find that
(i) The complainant and the comparator were engaged in like work within the meaning of Section 7 of the Acts for the duration of the complainant's employment. There are not grounds other than race.
(ii) The complainant was not discriminated on the ground of race in relation to his conditions of employment in terms of 8 (1) (b) of the Acts
(iii) The complainant was not victimised within the meaning of Section 74(2) of the Acts.
In accordance with Section 82 of the Act, I therefore order that
(a) that the complainant is entitled to equal remuneration with the comparator for the duration of the complainant's employment. As this redress is in relation to remuneration, it constitutes income for the purposes of the Income Tax Acts.
(b) the respondent conduct a review of its policies and procedures to ensure that they are in compliance with the Employment Equality Acts especially in relation to remuneration.