EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-026
PARTIES
OLUMIDE SMITH
AND
CISCO SYSTEMS INTERWORKING (IRELAND) LIMITED.
(Kate O’Toole BL, instructed by Lewis Silkin LLP)
File Reference: EE/2013/605
Date of issue: 18th February 2016
HEADNOTES: Employment Equality Acts, Section 6, Discrimination on grounds of race. Equal pay.
DISPUTE
The complainant referred his claims to the Director of the Equality Tribunal on 28 November 2013 under the Employment Equality Acts 2000 – 2105. On 15 September 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Niamh O’ Carroll Kelly, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 23 September 2015.
This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
PRELIMINARY APPLICATION.
1.1 The Complainant alleges he was discriminated against by the respondent on the grounds of race pursuant to section 2 (2) (h) of the Act.
1.2 The respondent alleges that all but one of the complaints are statute barred.
Allegation 1
It is alleged that the Complainant was assigned/instructed to carry out more complicated/complex work assignments relative to or which are above the requirement/capacity of a Grade level 6 Software QA/Engineer II in the period 24 January 2008 to December 2008. Pursuant to Section 77 this claim should have been referred on or before 29 June 2009. It was referred over four years after that date.
Allegation 2
The Complainant also alleged that “a Major and a minor unnatural challenges encountered in the Respondent’s premises in May 2008 which could have impaired” his performance. The most recent date the Complainant refers to in respect of this claim is 22 May 2008. Pursuant to Section 77 this claim should have been referred on or before 21 November 2008. It was referred five years after that date.
Allegation 3
That the Complainant was assigned/instructed to carry out more complicated/complex work assignments relative to or which are above the requirement/capacity of a Grade level 6 Software QA/Engineer II in the period 2 January 2009 to December 2009. Pursuant to Section 77 this claim should have been referred on or before 29 June 2010. It was referred over three years later.
Allegation 4
The Complainant also alleged that “another Unnatural Event/Service failure” occurred on 10 February 2009. Pursuant to Section 77 this claim should have been referred on or before 9 August 2009. It was referred more than four years later.
Allegation 5
That the Complainant was assigned/instructed to carry out more complicated/complex work assignments relative to or which are above the requirement/capacity of a Grade level 6 Software QA/Engineer II in the period 2 January 2010 to December 2010. Pursuant to Section 77 this claim should have been referred on or before 29 June 2011. It was referred over two years after that date.
Allegation 6
That the Complainant was assigned/instructed to carry out more complicated/complex work assignments relative to or which are above the requirement/capacity of a Grade level 6 Software QA/Engineer II in the period 2 January 2011 to December 2011. Pursuant to Section 77 this claim should have been referred on or before 29 June 2012. It was referred over one year after that date.
Allegation 7
The Complainant makes specific allegations of discrimination in respect of the Satellite Sec Con. The most recent date to which the Complainant refers is 2 November 2011. Pursuant to Section 77 this claim should have been referred on or before 1 May 2012. It was referred over one year after that date.
Allegation 8
That the Complainant was assigned/instructed to carry out more complicated/complex work assignments relative to or which are above the requirement/capacity of a Grade level 6 Software QA/Engineer II in the period 2 January 2012 to 2 July 2013. The Complainant refers to a number of incidents. The first incident took place on 2 February 2012. Pursuant to Section 77, it should have been referred on or before 1 August 2012. It was referred over one year later.
Allegation 9
The second incident took place between 13 March 2012 and 16 April 2012. It should have been referred on or before 15 October 2012. It was referred over one year later.
Allegation 10
The third incident took place between 27 July 2012 and 31 July 2012. Pursuant to Section 77 it should have been referred on or before 29 January 2013. It was referred over nine months later It is alleged the Complainant has not provided a justifiable reason for an extension of time to be granted. The complainant stated that he was relatively new to the company and didn’t want to cause trouble for himself so he decided not to file the claim at that time.
Allegation 11
That the Complainant was treated unfairly and differently to other named employees in connection with the annual performance reviews and appraisal report rating for 2008, 2009, 2010 and 2011. The performance review for 2008 is dated 13 August 2008. Pursuant to Section 77 this claim should have been referred on or after 12 February 2009. It was referred four years after this date.
Allegation 12
The performance review for 2009 is dated 31 August 2009. Pursuant to Section 77 this claim should have been referred on or after 27 February 2010. It was referred three years after this date.
Allegation 13
The performance review for 2010 is dated 27 August 2010. Pursuant to Section 77 this claim should have been referred on or after 26 February 2011. It was referred two years after this date.
Allegation 14
That the Complainant was treated unfairly and differently to other named employees and was ambushed or subjected to malicious, unfounded, libelous and surprise feedback from his manager on 6 August 2009 and was allegedly threatened by his manager approximately two weeks after this date. The Complainant also refers to 28 August 2009 and 29 November 2010 in respect of this claim. Pursuant to Section 77 this claim should have been referred on or before 28 May 2011. It was referred over two years after this date.
Allegation 15
That the Complainant was treated unfairly and differently to others after he initiated a harassment complaint on a number of dates between 29 November 2010 until 16 March 2011. Pursuant to Section 77 this claim should have been referred on or before 15 September 2012. It was referred over one year after this date.
Allegation 16
The Complainant was treated unfairly and differently to other employees in relation to his 2012 performance review. In respect of this claim the Complainant refers to a number of alleged incidents on various dates between 16 August 2011 and 6 December 2012. Pursuant to Section 77 this claim should have been referred on or before 5 June 2013. It was referred over five months later and the respondent states that the Complainant has not provided a justifiable reason for an extension of time to be granted.
The complainant stated that he made the decision not to file the complaint as he was relatively new the company and didn’t want to ‘rock the boat’. He stated that he wanted to wait and see how things worked out.
Allegation 17
It is alleged that the Respondent assassinated the Complainant’s professional character with bogus, libelous, illegitimate and unfounded feedback claims/statements/comments which were used to support its performance assessment of a void resolution plan, which were used to fail the Complainant’s performance appraisal for the 2012 performance review. The Complainant relies on feedback provided in 2012 and the last date that feedback was provided was 13 June 2012. Pursuant to Section 77 this claim should have been referred on or before 12 December 2012. It was referred almost one year after this date.
Allegation 18
That the Complainant was treated unfairly and differently to other employees as he was neither formally informed about the status of his application for Senior QA manager nor allowed to participate in the hiring process for that role. In support of this claim the Complainant relies on an email from the Respondent of 15 August 2012. Pursuant to Section 77 his claim should have been referred on or before 14 February 2013. It was referred nine months after this date.
The complainant repeated his reason for not filing the claim and said that he didn’t want to cause trouble and decided to wait to see how things worked out.
Allegation 19
That the Complainant suffered discrimination in respect of the grievance, attempted mediation and grievance appeal. The grievance appeal was made and communicated to the Complainant by letter dated 12 March 2013. Pursuant to Section 77 this allegation should have been referred on or before 11 September 2013. It was filed in November, 2013. The complainant reasons for not filing the complaint were the same as allegation 16,17 & 18 above.
Allegation 20
That the Complainant suffered discrimination in the form of isolation and humiliation during his employment. In support of this claim the Complainant relies on four incidents. The first incident took place on 30 April 2012. Pursuant to Section 77 it should have been referred on or before 29 October 2012. It was referred over one year later.
Allegation 21
A second incident took place on 24 October 2011. Pursuant to Section 77 it should have been referred on or before 23 April 2012. It was referred over one year later.
Allegation 22
The third incident took place on or around 21 February 2012. It should have been referred on or before 20 August 2012. It was referred over one year later.
FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER ON THE PRELIMINARY APPLICATION.
The Respondent states that the complainant, pursuant to Section 77 (5) had six months to file his claims with this Tribunal or in certain circumstances that period could have been extended to 12 months pursuant to the provision of section 77 (6) .
Section 77 (5)
“Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relate”.
Section 77 (6)
If on an application made by the complainant the Director, the Labour Court or, as the case may be, the Circuit Court is satisfied that exceptional circumstances prevented the complainant's case (other than a claim not to be receiving remuneration in accordance with an equal remuneration term) being referred within the time limit in subsection (5)—
(a) the Director, the Labour Court or the Circuit Court, as the case may be, may direct that, in relation to that case, subsection (5) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction, and
(b) where such a direction is given, this Part shall have effect accordingly.
HSE v Whelehan the Labour Court found:
“A time limited of the type in issue is analogous to a limitation period for the bringing of actions in civil law. It is settled law that limitation periods run from the time a cause of action accrues and not from the date of knowledge of the material facts grounding the cause of action unless there is an express statutory provision to the contrary”
I find that Allegations 1-15 ( excluding 10) 20,21,22 are Statute Barred each claim having been filed in excess of one year post the event.
I find that in relation to the Allegations 10,16,17,18,19, the complainant failed to give any reason/s for the delay in filing the claims which could amount to exceptional circumstances . He stated that he made the conscious decision not to file the claim because he was either new to the company and/or didn’t want to rock the boat. I find that the claims 10,16,17,18,19 are statute barred.
DECISION ON THE PRELIMINARY APPLICATION.
I have investigated the above complaints and make the following decisions in accordance
with section 79 of the Acts that:
The complainant failed to file any of the claims within the Statute period and all claims 1- 22 are statute barred.
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Equal Pay.
The claimant only remaining claim is that in relation to his pay.
The Complainant alleges that he was paid less than the Respondent’s salary range for the role he was hired for which was Software QA/Engineer II Grade Level 6 (the “Role”). In this regard he claims that he was treated “unfairly and differently relative to others” of the same race as the Human Resources Manager. He is a white Irishman aged 38. The Complainant specifically asks whether nine named individuals commenced work in Cisco at a wage level which was lower than their grade level’s salary range. These named individuals appear to be his comparators. The respondent states that the facts upon which the Complainant is making this allegation are inaccurate. I agree with the respondent for the reasons set out below. The Complainant compares his starting salary of €38,100, with the salary range that related to his level five years later. That was €38,200 - €57,200. It is the Respondent’s policy to gradually increase the salary ranges for its employees over the course of their employment so the salary range that related to the Complainant’s level in 2008 is lower than the salary range that relates to this level in 2013. The Complainant, if comparing like with like, should only compare the salary he received when he started in employment with the corresponding salary which related to that particular year.
The Respondent sets out in their submissions that it is their policy that a compensation ratio of 0.80 – 1.20 is applied to a salary range and employees joining the organisation are generally paid at the lower end of the compensation ratio to allow for progression within the range. Employees usually join the organisation at a compensation ratio of 0.85. The Complainant joined the organisation at a compensation ratio of 1.04 meaning that the Complainant commenced employment at a higher rate of pay than would be customary at the Respondent.
The Complainant alleges that as a result of starting employment on a lower salary than what he should have been paid, when he received wage increases, he received lower increases than he should have received. This is not the case, where, as explained in the previous paragraph, he commenced employment at a rate of pay which was well within the salary range which applied to his grade.
The Complainant alleges that as a result of starting employment on a lower salary than what he should have been paid, when he received his performance bonus of 8% this was less than what he should have received. Based on the information provided by the parties I can find nothing to support the complainant’s argument. I am satisfied that at no stage during the Complainant’s employment was he paid a lower salary than what was provided by his salary range.
The Complainant has failed to show that he was treated less favourably in comparison.
7. DECISION
7.1. I have investigated the above complaints and make the following decisions in accordance
with section 79 of the Acts that:
· The complainant failed to establish a prima facia case of discrimination on pay grounds.
· The complaint fails.
_____________________________
Niamh O’ Carroll Kelly BL
Adjudication Officer/Equality Officer
18th February, 2016