The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2013-184
(Represented by Dermot Sheehan B.L. instructed by O’Hanrahan & Co Solicitors)
Steam Distilled Pure Water Limited
(Represented by Conor Keogh B.L. instructed by David R Fowler Solicitors)
File reference: EE/2011/390
Date of issue: 18 December 2013
Headnotes: Employment Equality Acts – sections 6 and 29 - equal pay – age & race
1.1 This dispute involves a claim by Mr Przemek Czyzak that he was discriminated against in relation to promotion and conditions of employment contrary to section 8 of the Employment Equality Acts by Steam Distilled Pure Water Limited 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 and age 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 12 April 2011. On 19 June 2013 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 1 October 2013 and final information was received on 21 October 2013.
2. SUMMARY OF THE COMPLAINANTS’ CASE
2.1 The complainant is Polish and was aged 24 in 2010. He started working for the respondent on 3 May 2007. He carried out production work; which included bottling, fixing machines, ensuring labels were placed on bottles and cleaning the warehouse. He was paid €250 per week net.
2.2 The complainant submits that before January 2010 he would be required to carry out deliveries when the comparator was on leave or sick.
2.3 In January or February 2010 the comparator had a heart attack and the complainant submits he carried out his duties from that time. In March 2010 the owner of the company asked the complainant to sign a new contract and told him he would be doing the comparator’s work, plus his own duties. He was to be paid €389.65 for working 45 hours per week.
2.4 The complainant submits that the comparator, who is Irish and approximately 53 at this time, was earning €450 per week. He was a driver making deliveries and 2/3 times per month he would help with production.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent submits that the complainant started working for them in September 2007. He was issued with a contract to work 30 hours per week. A handbook with the conditions of employment, including a grievance procedure, was available to him but the complainant never raised an issue regarding his nationality whilst he was employed by the respondent. The respondent sought out and arranged English classes through Skillsnet for the complainant.
3.2 The complainant was initially paid €7.65 per hour, this was increased to €8.30 and subsequently to €8.65 in 2010. From March 2010 he was paid to work full-time following the comparator’s illness. The respondent submits that the complainant was not able to undertake the full-time role to the same level as the comparator. The owner undertook most of the comparator’s duties himself whilst he was out sick.
3.3 The respondent submits that in September 2010 because of the trading position he made a Temporary Short Time Application and both the complainant and the comparator (who had returned to work in July 2010) worked reduced hours. The respondent submits that it is unreasonable for the complainant to expect an increase in salary when the company was suffering significant trading difficulties.
3.4 The respondent submits that when the complainant did deliveries he was paid an extra rate, in line with the comparator. It was agreed that this money would go towards the complainant repaying the respondent for a loan he had taken.
3.5 The respondent submits that the comparator started working for them in January 2006. In 2010 and 2010 he was working as a delivery driver who also worked in the warehouse when necessary. He had much more experience and longer service than the complainant. He worked full-time and he undertook more work, in that he was also a driver.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 At the start of the hearing the complainant withdrew his claims in relation to promotion and conditions of employment. Therefore, the only issue for decision by me is whether the complainant has a claim for equal pay on the grounds of race and age. In reaching my decision 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.
4.2 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”.
4.3 The complainant was employed to work in the production unit of the respondent for thirty hours per week. At the hearing the parties could not agree how many hours he actually worked but the complainant was paid for thirty hours regardless of how many hours he worked. He often worked less but did the work that was asked of him. The respondent states there was an agreement that any hours under thirty that the complainant did not work would be owed to the company and he could be asked to work them at a later date. The complainant disagreed with this. I note that no documentation was available to support this contention, one way or the other. However, I accept this was the respondent’s understanding, even though it was not formalised.
4.4 After he obtained a driving licence, some time in 2008, until January 2010 the complainant carried out deliveries when the comparator was on leave or out sick. He was paid for any extra hours he worked at the same rate of pay. At the hearing the complainant was unable to confirm how often and for how long he carried out deliveries during this period. The owner was also not clear of the hours the complainant undertook this work but he did confirm that the complainant was paid for the extra hours he worked at the same rate of pay he received for the rest of his work.
4.5 The comparator had a heart attack in January 2010 and was off sick until July 2010. The complainant was asked to undertake more delivery work. In March 2010 he was given a contract which stated he was to be paid €8.65 per hour for 45 hours work per week (€389.25 per week). The complainant contends that during this period he undertook the comparator’s delivery work as well as his own. At the hearing the complainant asserted that he spent 25 hours per week on deliveries and the remaining time on production duties. The respondent gave evidence that the complainant probably spent an average of 12-15 hours per week on deliveries. No documentation was provided by either party to confirm these hours. It is accepted that the complainant was paid at the same hourly rate for all work undertaken. Again, the respondent contends that the complainant rarely worked the 45 hours for which he was paid, in accordance with his contract.
4.6 The comparator started working for the respondent in January 2006 and according to his contract, a copy of which was provided at the hearing, he was paid €490 per week for a 40 hour week (€12.25 per hour). His role was ‘Warehouseman (Production & Operations) and Van Driver (Collection & Deliveries) and other duties for the performance of company duties’. When he started he was the only employee apart from the owner and undertook a mix of production and delivery duties. When the complainant started work the comparator was only occasionally involved in production. His primary responsibility was making deliveries. The owner also gave evidence at the hearing that the comparator spent a proportion of his time when he was out in the van on sales work. He would drop leaflets into possible customers and then follow this up with personal calls. The owner estimated that the comparator had obtained 10-15% of the company’s business, including one of their biggest customers, through this work. I note that this evidence was not included in the respondent’s written submission. The complainant said he was unaware that the comparator was carrying out this sales work and confirmed he never undertook sales took.
4.7 The comparator returned to work in July 2010 and returned to delivery duties. The company went on short time working in September 2010 when the complainant worked three days per week and the comparator two days per week. From January 2011 the complainant worked one day per week, at his own request. He left the respondent’s employment in March 2011.
4.8 The issue for decision by me is whether or not the complainant performs "like work" with the comparator. The respondent contends that in accordance with section 29 (5) of the Acts which states “nothing in this Part shall prevent an employer from paying, on grounds other discriminatory grounds, different rates of remuneration to different employees” that any difference in pay was for reasons other than race or age. They contend that the comparator was more experienced than the complainant, that he worked full time and he carried out a different role.
4.9 There is a clear division of work between the complainant and the comparator until January 2010 and this was accepted by the complainant who agreed in direct evidence that the comparator had a more important role than him before January 2010. The complainant spent the vast majority of his time on production duties and a small amount on deliveries when the comparator was not available. The comparator spent the vast majority of his time out on the road making deliveries and trying to get new orders and a small amount of his time on production duties when he had no reason to be on the road. Having considered all the evidence I conclude, based on differences in their duties, that there were reasons other than race and age for any difference in pay before January 2010.
4.10 The comparator was off sick from January to July 2010 and the owner had to make arrangements to ensure all deliveries were made until the comparator returned to work. The complainant did undertake more delivery duties than he had previously, but I accept the owner’s evidence that he carried out the majority of the driving duties himself. The complainant confirmed at the hearing that he did not undertake any sales work when he was out on deliveries. Although it was not in the respondent’s written submission I do accept the owner’s direct evidence at the hearing that the comparator did undertake sales work when he was out on deliveries. I also accept his evidence as to how much extra time the complainant spent on deliveries. Based on all the evidence I conclude that from January to July 2010 the complainant worked more hours undertaking deliveries. These were duties he undertook, albeit on a lesser scale, before January 2011. He was paid at the same rate for all the hours he worked, in the same way he was before January 2011. However, I do not accept his contention that he undertook the comparator’s work as well as his own. He never undertook sales and I accept that this is more responsible work for which the comparator received an enhanced payment. I therefore find that there were reasons other than race and age for any difference in pay between the complainant and the comparator for the period from January to July 2010.
4.11 After July 2010, when the comparator returned to work, until he left the respondent’s employment in March 2011 the complainant returned predominantly to production work and the comparator predominantly to delivery work. This is similar to the period before January 2010 and I conclude that there were reasons other than race and age for any 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 pay
18 December 2013