EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2012-139
(Represented by Sean Murphy & Co Solicitors)
CHD Limited t/a AD Ireland
File reference: EE/2010/156
Date of issue: 25 October 2012
Headnotes: Employment Equality Acts - sections 6 and 29 - conditions of employment - equal pay - race
1.1 This dispute involves a claim by Mr Piotr Dudek that he was discriminated against in relation to conditions of employment contrary to section 8 of the Employment Equality Acts by CHD Limited t/a AD Ireland and that he performs "like work", in terms of section 7 of the Employment Equality Acts with a named comparator and is entitled to equal remuneration in accordance with section 29 of the Acts on the grounds of race contrary to section 6 of the Employment Equality Acts.
1.2 The complainant referred his claim under the Employment Equality Acts to the Equality Tribunal on 5 March 2010. On 4 September 2012 in accordance with his powers under the Acts the Director delegated the complaint to the undersigned, Hugh Lonsdale, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 28 September 2012.
2. SUMMARY OF THE COMPLAINANTS' CASE
2.1 The complainant started working for the respondent on 30 July 2007. He submits that he and a named comparator were carrying out like work. The comparator, who is Irish, was paid more than the complainant. The comparator worked all his time on repairing Karcher machinery whilst the complainant contends he spent about 90% of his time doing the same work. The rest of the time he was in the workshop carrying out duties related to goods coming in and deliveries to clients. That is apart from a three month period in the Summer of 2009 when someone left and he was working 90% in the stock room. The complainant submits he asked the respondent to rectify the difference in pay on a number of occasions but they took no action.
2.2 From September 2009 the comparator was out sick and the complainant carried out repairs to Karcher equipment all the time. The comparator left shortly after he returned from sick leave in January 2010. In February 2010 the complainant was asked if he wanted to do the Karcher repair job on a full-time basis. He said he would do the job if he received the same rate of pay as the comparator. Although he says he did not know what the comparator was earning a rate of €10.50 per hour was agreed. He submits he was promised this rate would be implemented shortly. However he was not paid this increase in pay, even though he was doing the work, and he consequently left the respondent's employment at the end of March 2010.
2.2 The complainant also submits that he was paid less than the minimum wage after his pay was cut in February 2009 until he left over a year later.
2.3 The complainant submits that when he was not working on Karcher repairs he had more duties and was given additional responsibilities without any additional remuneration. He contends that the respondent made use of his language skills without any acknowledgement or appropriate remuneration by using him to deal with Polish customers.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent submits that the complainant started working for them on 30 July 2007 as a Warehouse Operative and was a back-up for repairs to Karcher machines. His time was split evenly between the two roles whilst the comparator carried out repairs to Karcher machines on a full-time basis. In the second half of 2009 the comparator went on sick leave for 4/5 months and the complainant's duties for this period were almost totally in repairing Karcher machines.
3.2 The comparator returned to work in February 2010 and was made redundant shortly afterwards because of a downturn in the work. The complainant was offered the position of full-time Karcher repair man. He asked for a 30% rise in pay and was offered 13%. This offer was increased to 20% to start from 1 April 2010. The respondent understood the complainant to be happy with this agreement. However, he handed in his notice a few days later and left on 24 March 2010 to take up what the respondent understood was a truck driving job earning more money. Subsequently the respondent employed someone to undertake the Karcher repairs at a salary 14% below that which they had agreed with the complainant.
3.3 The respondent submits that when the complainant was working in the warehouse he did so on the same conditions of employment as other employees.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issues for decision by me are whether the complainant was discriminated against in relation to conditions of employment and if he has a claim for equal pay on the grounds of race. In reaching my decisions I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
Conditions of Employment
4.2 In relation to conditions of employment the complainant contends that he undertook additional duties with more responsibilities than other workers. In particular that he liaised with customers from workshops runs by Polish workers. The respondent did not dispute this but considered this work to be part of his duties. I have to decide if the complainant was discriminated against in relation to conditions of employment in accordance with Section 6(1) of the Acts which states that: "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 claim the ground is race. Whilst the use of his language skills were a factor in this claim and others would not have been asked to speak Polish this does not amount to discrimination. There is no evidence that he used Polish in anything other than in the normal course of his work. The complainant has adduced no other evidence from which I can infer discrimination in relation to conditions of employment.
4.5 The complainant contends that he performs "like work" with the named comparator in terms of section 7(1) of the Acts. Section 29 (1) of the Acts states: "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".
4.6 It is the case that the comparator was working all his time on repairs to Karcher machines. The respondent agreed that the complainant was carrying out the same work as the comparator, in accordance with section 7 (1) (a) of the Acts, when he was carrying out repairs on Karcher machines. From July 2007 until around June 2009 the complainant was working somewhere between 50% and 90% of his time on these repairs. In evidence at the hearing the respondent agreed it was often more than 50% but he said there was no way he could be more accurate. He conceded that it may be somewhere in the middle. Assessing the evidence of both parties it appears the volume went up and done on a daily and weekly basis. It may have been as high as 90% some weeks and as low as 60% other weeks. I therefore conclude that the complainant spent an average of around 75% of time from July 2007 to June 2009 on Karcher repairs. From June to August 2009 he was 100% in the warehouse and from September 2009 until he left in March 2010 he was 100% on Karcher repairs.
4.7 The respondent gave evidence that the complainant was originally employed to work in the warehouse and to act as a back-up for the Karcher repairs and his pay was set on that basis. It seems that this changed very quickly after he started to regularly spending more than half of his time on Karcher repairs. The complainant was earning €9.47 per hour from when he started in July 2007 until the general 10% pay cut in February 2009 when he was earning €8.54 per hour until he left in March 2010. This was below the minimum wage of €8.65 per hour. The respondent contends this was an oversight and the complainant did not bring it to their attention until January 2010. The complainant received recompense for this error following a Rights Commissioner hearing in July 2010. According to the respondent the complainant was paid the same as others working in the warehouse with similar service.
4.8 The respondent gave evidence that the comparator was earning €13.10 per hour before the general pay cut of 10% in February 2009 when he was earning €11.79 per hour.
4.9 It is accepted that the complainant carried out like work with the comparator in that he performed the same work as the named comparator when he was carrying out Karcher repairs. I conclude from the evidence presented by both sides that the comparator was paid an enhanced rate because of the level of responsibility attached to carrying out the Karcher repairs. I also conclude that the complainant received no such recompense for the time he was working at that same level of responsibility in carrying out the Karcher repairs.
4.10 The respondent contends that the difference in pay had nothing to do with the complainant's race because they employed an Irish worker at 13% below that offered to the complainant in March 2010. However, by their own admission, the work was declining at that point and this rate was clearly a cost-saving measure. I am looking at the pay of the complainant during the time of his employment and I find that the respondent has not been able to show that there were reasons other than the complainant's race for the difference in pay.
5. DECISION OF THE EQUALITY OFFICER.
I have concluded my investigation of this complaint and hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts that:
- the complainant has failed to establish a prima facie case of discrimination in relation to conditions of employment, and
- the complainant performed 'like work' with the named comparator in terms of Section 7(a) of the Acts for 75% of his time from July 2007 to May 2009 and for 100% of his time from September 2009 to March 2010. I find that there are no objective grounds other than race for the difference in pay in accordance with section 29(5) of the Act and that the complainant has been discriminated against by the respondent.
I hereby order that the respondent pay to the complainant:
- arrears of pay of €9,550, in accordance with section 82(1)(a) of the Acts; and
- in line with Council Directive 2000/43/EC Article 15¹ which states that "sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive", compensation for the effects of the discrimination in accordance with section 82(1)(c), in the sum of €5,000. This award is intended to be dissuasive to the respondent for the discrimination in pay suffered by the complainant because of his race. This award relates to compensation for distress and breach of rights under the Acts and does not contain any element of lost income and is not therefore subject to tax).
25 October 2012