EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-002
PARTIES
Mr Jaroslaw Obuszko
V
Bord Gais Eireann, T/A Brookfield Renewable (Irl) Holdings ltd
(Represented by Mairead Mc Kenna B.L. instructed by Arthur Cox Solicitors)
File No: EE/2014/234
Date of issue: 8th Jan 2016
1 Dispute
This dispute concerns a claim by Mr. Jaroslaw Obuszko (hereafter "the complainant") that he was discriminated against on the grounds of race in relation to:
(i)Equal Pay. The complainant contends that he is entitled to equal pay with a named comparator who is an Irish national, in accordance with S7(1)(a) or (b) of the Employment Equality Acts, and that he is therefore entitled to the same rate of pay as paid by the respondent to this comparator in accordance with S.29 of the Acts
(ii)Access to promotion, (iii)Getting a job and (iv) Access to training in terms of S.6 and contrary to S. 8 of the Employment Equality Acts by Bord Gais Eireann t/a Brookfield Renewable (IRL) Holdings ltd (hereafter "the respondent"). The complainant also alleges that he was subjected to Victimisation and Harassment by the respondent.
1.2 The complainant referred a claim of discriminatory treatment in his conditions of employment to the Director of the Equality Tribunal on 16 April, 2014 under the Employment Equality Acts. On 7 September,2015 in accordance with his powers under section 75 of the Acts, the Director then delegated the cases to Patsy Doyle - 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. As required by Section 79(1) of the Acts, and pursuant to the continuation of my functions set out in S. 83 of the Workplace Relations Act 2015, as amended by S. 20(m) of the National Minimum Wage (Low Pay Commission) Act 2015, and as part of my investigation, I proceeded to hearing on 24 September 2015. I requested further information from both parties at the conclusion of the hearing. I sought further details on documentation of the complainant’s application for income continuance and I sought further details of the specification of grades who transferred to Bord Gais in 2010 from the respondent
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.
2 Preliminary Issue
2.1 At the outset of the hearing, in the course of the explanation of the ground rules for the Hearing to the parties, it was brought to my attention by the respondent that they believed that the Hearing was in fact being taped by the complainant. Given that I had asked for compliance with the “powered off “mobile phone rule, I asked the complainant to comment on this. He admitted that he was recording the hearing and agreed to desist when requested. It is of note that in advance of the hearing, on 2 September, 2015 the Equality Tribunal had already vetoed the complainant’s request to tape the hearing.
Shortly after this, as the hearing commenced, I had some concerns that the complainant seemed in difficulty as he presented as very hostile and accusatory towards me as the Equality Officer. Given that he was unrepresented and with the assistance of the Interpreter appointed by WRC, I took further time to explain the purpose of the hearing. I explained that I was appointed as an Equality Officer to hear both sides of the case and allow the parties as much time as they needed to make their case and to pose questions of the other party. Both parties agreed to proceed on that basis.
During the course of the hearing, the complainant seemed in visible distress and I permitted some break time. I also asked the complainant on two occasions whether he was comfortable and satisfied to proceed with the hearing as we could look at an adjournment. The complainant was very clear that it was his express wish to proceed with the hearing to obtain “the judgement “in the case. I relied on the Interpreter provided to ensure that my communication was understood. Both the complainant’s oral and written English were of an extremely high standard.
3 Summary of Complainants case
3.1 The complainant commenced work as an Accounts Assistant for SWS Natural resources ltd on 11 September 2006. He became a Financial Analyst for the same company in January, 2007 and his salary rose accordingly to €38,000 and subsequently to €48,000 at the beginning of 2008. However, a wage freeze was announced by the company later in 2008. The named comparator, Mr A commenced work as a Financial Analyst with the complainant during 2008 and from the outset, the complainant perceived that Mr Mr A was earning a higher salary. Prior to this, the complainant had worked independently. He now worked alongside Mr A in the position as Financial Analyst. From late 2009 to 2010, SWS was prepared for takeover by Bord Gais Energy.
3.2 In June and July 2010, a number of promotional positions were advertised by Bord Gais which seemed to have a close business link with SWS ltd. The jobs advertised were
1 Commercial Lead Band 3 Salary scale (€69,331- €95,328)
2 Commercial Analyst Band 4 Salary scale (€53,108-€ 76,666)
The complainant did not compete for the positions. On 26th July 2010, the complainant was informed that a Transfer of Undertakings was to take place which resulted in the integration of SWS Energy and the strategic investment division of Board Gays Energy ltd. The complainant’s terms and conditions were to be preserved and the work location changed from Bandon to Cork City.
The salary on transfer was € 49,761 per annum plus a discretionary 10% bonus. In the run up to the takeover, the complainant had expressed unease with his proposed salary on transfer. He understood that his then manager, Chris Mc Carthy had agreed to raise his case for higher pay, but nothing happened. The complainant contended that the position of Commercial analyst advertised by Bord Gais in July 2010 accurately reflected his position and he contended that he should have been awarded the salary for the position i.e. Band 4 salary . He met with the Financial Director before the take over and raised the issue of salary but did not resolve the matter. The complainant signed the contract with Bord Gais as a Commercial Analyst, Band 5, Range D1 on 16 August , 2010.
3.2 Throughout the remainder of 2010 and the early part of 2011, the complainant struggled to find somebody at the company to engage with on the topic of his dissatisfaction with his remuneration. He held a strong view that the company favoured Irish workers and that the rate attached to the Commercial lead position as well as the Commercial analyst position continued to elude him, he was disadvantaged because he was Polish. He had some difficulty adjusting to the new role and he felt unsupported. He had an understanding that his salary was the second lowest salary paid in the financial dept. and he attributed this to his race.
3.3 The complainant had a series of meetings with the company to seek to address his pay, but did not succeed.
3.4 The company advanced a Voluntary severance programmer in July 2011 and Mr A availed of the package and left the company. The complainant remained at the company as he wished to resolve his pay claim. He was clear that he was encouraged to avail of the severance package but did not do so. Instead, he began to experience a sense of exclusion based on the workplace commentary and media releases that immigrants were taking Irish jobs. He stated that he was the only foreigner employed at SWS prior to the takeover by Bord Gais Energy.
3.5 The complainant’s dissatisfaction with workload and salary continued throughout Autumn 2011 and he met with his line Manager in early December. At this meeting he reported an enhanced dissatisfaction that his concerns on salary had not been heard. Instead, the company relied on the job analysis undertaken by Hay as the rationale for his revised salary. In addition, a 5 year companywide pay freeze was re-affirmed. The complaint was escalated to a formal grievance. The grievance was heard on 16 February, 2012 by the HR Manager, Christine Campbell and Reward Manager, Jody Jordan. In Dublin.
3.4 At this meeting, the complainant advanced his case that the Band 4 Commercial Analyst role which the company advertised in July 2010 was the exact fit to his job description as Band 5 Commercial Analyst and that he had been disadvantaged by the omission to pay him at that level. On February 21 2012, the complainant was advised that he had reached 97% in his performance rating and a 10% bonus was applied. On March 1, the company agreed to repeat the job evaluation exercise for the position of Commercial Analyst. There was some disagreement on the agreed outcome of this meeting, the complainant contended that Ms. Jordan had represented herself as the decision maker in the first job evaluation exercise on behalf of the company. The outcome of the grievance was shared by the company on 16 April 2012.This centered on the response to the complainants submitted job description for his current role.
· The Job Sizing exercise had not recommended a revision of the complainants grading
· The pay freeze did not permit an “out of cycle pay increase”
· A commitment to review the salary once the company emerged from the pay freeze.
· The Commercial Analyst graded at Band 4 prior to the takeover had in fact been appointed at Band 5 at Bord Gais.
3.5 The complainant began to consider his options and decided to take a brief recess on the issue prior to seeking legal advice. In the meantime, the company began to restructure again and the complainant was assured by the line manager, Ms Kent that his job was safe and he became involved in rebuilding of corporate models aimed at sustaining the business. In October, 2012, the complainant availed of career guidance advice which recommended that he should leave the company as his role would not be of central importance going forward . He was advised to seek work at advisory companies .
3.6 On 17 October, 2012 the complainant applied for the position of Budgeting Forecasting Finance Project Manager, his application was not progressed as the company stated that he did not hold the requisite qualification of accountancy. The complainant was dissatisfied with this as he held a strong view that his Masters in Economics and subsequent experience was adequate for the position. In addition, he undertook a review of the qualifications of his Commercial Lead colleagues and found a lack of uniformity in their qualifications. He felt unnecessarily excluded and decided to seek legal advice. On 19 December, the complainant sought the intervention of the company MD, Mr. Dave Kirwan to address his salary grievance. . Mr. Kirwan delegated the issue to HR and Linda Holland.
On 21 December, 2013, the parameters of the “ recognised accountancy qualification “were explained by Linda Holland, HR as full membership of the chartered accountancy bodies ,ACCA,CIMA,ACA. They referenced the complainant’s previous efforts to explore exemptions for CIMA.
3.7 On 21 January,2013, the complainant placed the respondent on notice that he intended on taking legal action to address his unresolved remuneration . On February 4th, 2013, the company informed the complainant that they were not in a position to continue to deal with “an identical grievance” as of April 2012.On 18th February, the complainant received confirmation of the award of his performance related bonus of 10%.
3.8 A further issue arose for the complainant when he had a concern regarding an aspect of the business model which was commercially sensitive. He raised his concerns with the Company Secretary directly and the company launched an investigation. The complainant did not believe that his concerns were being taken seriously. He was informed that the topic of his concern had been endorsed and approved by the Bord Gais board on the 19th February.
3.9 The complainant was requested to undertake on-line training on 6 June ,2013. He contended that the Incident Overview training was prepared solely for him and he contended that it was harmful to him, so he did not complete it.
3.10 He continued to raise his concerns on the business sensitive issue and on May 29th, he attended an external meeting conducted by the Head of Internal Risk and an external Consultant. The complainant explained his conscientious objection to the business model and was disappointed when there was no immediate outcome. On June 24th 2013, the complainant placed the senior management team on notice of his intention to bring his concerns to an external body charged with overseeing Bord Gais in addition to the Gardai. He sought a period of unpaid leave to facilitate this. He was granted paid leave.
3.11 On 27 June 2013, the complainant commenced a period of medically advised sick leave. He was reviewed by an Occupational Health Consultant on 4 July 2013, who advised that the complainant was “actually ill “and advised a further review on August 1. In October, in response to his concerns he received a copy of the company Bullying and Harassment Policy.
3.12 On 17 October, the company shared the outcome of the investigation into the Business issue raised at May 29th meeting. The Report indicated that the complainant’s concerns were not well founded but that he had acted in good faith.
3.13 Around this time, the complainant again sought the support of a legal advice and representation. On December 9th 2013, his nominated Solicitor sought a response from the Company on:
· Discriminatory rates of pay
· Discrimination on conditions of employment
· Bullying , Harassment and Victimisation
· Deterioration in health
· Potential for resolution of the problems
The letter was acknowledged by the Managing Director. The company responded on 13 December agreeing to meet but rejecting the entire claim. The Complainant submitted sick notes throughout this period.
3.14 Thereafter, the Complainant detailed that he failed to make progress at the company on any level. The Company sought his application for income continuance in light of the passing of his sick pay to half pay. The complainant felt this was an unfair request as he was not guaranteed confidentiality and he did not trust the process. The complainant sought to protect his and his family’s interests by inserting some clauses on the application form but the Insurance company was unable to process the form and income protection was not paid.
3.15 The Company did make contact with the Complainant in February 2014, but by then, he had lost confidence in them and instructed his advisors to advance a claim for Constructive Dismissal and a claim to the Equality Tribunal.
3.16 The Company arranged a Psychiatric Assessment for the complainant in Dublin in January 2014, which he attended. Consent was a pre requisite for the consultation and while the Psychiatrist permitted the interview to be taped, the complainant did not give his consent to the assessment because he did not want his Employer to receive records of any disclosures. He wished to protect his health.
3.17 The Complainant received his performance bonus for 2013
3.18 He remained ill and instructed a new Solicitor around March 2014. This time an attempt was made to secure settlement terms . This did not work out and the complaint was lodged with the Equality Tribunal . The Complainant did not return to work and his position was terminated in March 2015. The company was taken over by SWS ltd in March 2014 and the current name of the company is Brookfield Holdings Ireland Limited.
3.19 The Complainant wanted the Tribunal to issue a judgement in his case . He had a very strong view that he had been discriminated against on race grounds . He contended that he wanted the Tribunal to have regard for the precedent established in Dr Eva Michalak v Mid Yorkshire Hospitals NHS Trust[1]. His experience at work had caused him to lose trust in his Employer and in the Irish Statutory authorities. He was clear that he had been significantly disadvantaged, harassed and victimised.
The Complainant did not have witnesses on the day of the Hearing. At the conclusion of the hearing, I asked the complainant to submit anything in his possession which could support his contention that he had been harassed during the application for income continuance. The complainant submitted a supplementary submission in early October 2015, there was a delay in receipt and it was resubmitted .In this, the complainant detailed the pressure that he was placed under by the company representatives and the Insurance company to submit to medical examinations to maintain pay . He found this to be wrong and caused him to be disadvantaged. He expressed the view that the respondent’s legal representatives had advised the company to identify a serious psychiatric problem in him.
4 SUMMARY OF THE RESPONDENT’S CASE
4.1The respondent denied all claims of discrimination, harassment and victimisation . In written and oral submissions they detailed the complainants time in employment from 11 September 2006 as an Accounts Assistant to the transition to Financial Analyst in 2007 . They set the back drop for the takeover of SWS by Bord Gais in 2010 . SWS and Bord Gais Energy Investments were to integrate into Bord Gais Energy Organisation in September 2010.
In the run up to this change, the Managing Director of Assets Organisation sent an email to staff announcing promotional opportunities in a number of positions. In addition to this Bord Gais hired Hay Consulting to advise of “ job sizing” and “job evaluation “ in the new company . This was conducted in tandem with the line Managers and based on job descriptions . The complainants position was banded at 5, D1, Commercial Analyst .The Finance Director , Mr Tom O Brien met with the Mr Obuszko in advance of the merger to explain the details on offer to him regarding a salary increase and an increase in bonus . He did illicit that the complainant had an issue with his pay at SWS but in evidence to the Tribunal he explained that the company had full confidence in the Hay evaluation method . The company received a signed contract of employment for Band 5, €49,700.At the time of the transfer,18 Band 5 roles were transferred from SWS to Bord Gais .The complainant was the sole non national at that time . The Tribunal was informed that in the Finance Dept post transfer there were 19 Band 5 roles out of 71 employees , 14 of whom were non nationals.
4.2 No further issues arose for the respondent until the complainant raised the matter of his pay in February , 2011 at a performance review meeting with his then line manager .The company reinforced that the role had been evaluated and the salary was in keeping with the role . There were several more discussions on pay which culminated in the company advising that if the complainant wished he could activate the grievance procedure.
4.3 on 25th January, 2012, the HR dept advised the complainant that his grievance had been addressed and set out a letter detailing
· The Hay evaluation methodology
· Details of the job description provided at the time of transfer for evaluation purposes
· Bord Gais were not responsible for SWS absence of salary progression for the complainant
· Pay freeze was instigated in 2008 at SWS and this carried over to Bord Gais .
4.4 On January 30th, the complainant appealed his salary level and the “ job sizing “. The respondent appointed Ms Jordan, Rewards Manager to hear the appeal on 16 February. Ms Jordan responded on 16 April detailing that the role of Commercial Analyst Band 4 was an error . The appointment made to this position was at Band 5 . Ms Jordan explained the rationale that applied to recognition of Band 4 and 5 classification . Ms Jordan asked Hay to re-open the evalaution exercise and she submitted a job description agreed by the complainant which reflected his role to Hay . On 16th April, the respondent informed the complainant that the revised exercise had maintained the Band 5 for him and the company pay freeze prevented salary progression.
4.5In October,2012, The respondent received an application for the position of Budget Forecasting Finance Project Manager from the complainant. This post carried an essential criteria of “ a recognised accounting qualification preferably having trained in practice, with a minimum of 6 years relevant PQE in a large complex organisation “. The company was unable to progress the application but completely rejected any reference to race as a deciding factor . Instead , they told the Tribunal that the accountancy qualification was an objective criteria and while they recognised the complainant’s Masters in economics , the position demanded an accountancy qualification .
4.6 In December 2012, the Managing Director received a request from the complainant to re open the question of his salary , he assigned the HR manager to address the issue but the complainant refused to meet her . The respondent wrote to the complainant in early February, 2012 stating that they were not prepared to revisit an already decided grievance .
4.7 In February 2013, the company received a confidential complaint under the whistle blowing policy . The matter was commercially sensitive and warranted investigation. A senior internal manager and external manager were assign to conduct an internal review. The complainant attended for interview in May and the process concluded in October, 2013 where the Company Secretary wrote to the complainant informing that his complaint was not “well founded “but was grounded in good faith.
The respondent was put on notice at CEO level of the complainant’s unease with the company and his contention of discrimination and harassment. The complainant was given the company policy by HR, which was never actioned. the performance review was paid in February 2013.
4.8 In June 2013, the respondent heard from the complainant that he intended to report his concerns on the commercially sensitive matter to the Gardai and an Oversight body for Bord Gais . He asked for and was granted time off . This transitioned to sick leave in July 2013 and the complainant never returned to work.
4.9 The respondent accepted the medical certificates submitted by the complainant and referred him to an Occupational Health Physician . On December 9th , the Respondent received a representation from the Complainants Solicitor alleging discrimination and serious ill health . The company responded denying the claims but offered to meet to resolve the workplace difficulties .
By December, 2013 sick pay was approaching half pay and the company requested that the complainant attend for a psychiatric assessment in light of the medical certification on anxiety and depression . Initially , the complainant agreed to the consultation but would not sign a consent to assessment due to issues on confidentiality . The company agreed to furnish the complainant with the report but this did not resolve matters and the consultation did not progress .
In parrallel , the complainant was asked to apply for the company income protection which preserves 75% salary in illness . This involved a phone interview with a nurse followed by an administration process .The complainant completed the Nursing assessment but respondent was informed by the complainant that he had issues with confidentiality which precluded the completion of the application . The respondent extended the window of response time .On April 10th, 2014 .The Insurance company, with full permission of the respondent wrote directly to the complainant . They sought to extend the time in which the complainant could respond ie April 18th as they had received an application form from the complainant which had been amended by a refusal for consent or to obtain information .They assured the complainant that his personal details would not be shared with his Employer . The claim was not processed due to the complainant’s non compliance .
4.10 By then the respondent had also been approached by the Vice Consul from the Polish Embassy ,who expressed concerns for the complainant’s welfare . The respondent confirmed that the matter was receiving attention .
4.11 On February 24th a new Solicitors firm came on record for the complainant and sought to enter into severance talks .
4.12 The Respondent remarked that previous legal advice given to the complainant demonstrated that he had not wished to resolve any of his grievances, but instead wished to secure a high ranging severance package to enable him to leave Ireland .
4.13 The respondent disputed that Mr A was an appropriate comparator as he was a Commercial Lead prior to leaving the company and the work was neither like work nor of equal value . He was paid more on objective grounds . The respondent relied on Dooley v Catholic University School[2] as precedent from the High Court where Dunne J held based on the facts of the case that the chosen compartor was inappropriate .
4.14 The Budget Forecast position was the sole promotional post applied for in the complainant’s history with Bord Gais .
4.15 The respondent disputed any harassment or victimisation . They told the Tribunal that the complainant was well liked and performed well as evidenced by his uninterrupted pay bonuses. They wished the Tribunal to see the context and back ground of the pay freeze as determined by market forces and not as a personal curtailment to Mr Obuszko . The respondent also disputed the reliance on their language of defence contained in December 13 letter from Arthur Cox . The complainant had taken issue with a final paragraph that the company would pursue him for legal costs . They wanted the Tribunal to see this as legal process .
4.16 The respondent denied witholding training from the complainant .Ms Kent, his line Manager did tell the Tribunal in evidence that there were many opportunities for training which she led out on but the complainant did not actively seek them. During the hearing the respondent pointed to a days training which the complainant did not attend .
4.16 I asked the respondent to furnish details of the breakdown of Band 5 grades who had transitioned to Bord Gais Energy .I have incorporated their response .
4.17 The Respondent wanted the Tribunal to know that Bord Gais was a highly unionised employer , where employees are permitted to and did make complaints. The respondent dealt fairly with all the complainants stated concerns on salary and the commercially sensitive issue via the company’s whistleblowing policy. The respondent’s actions on the management of sick leave were justified by the obligations of the policy, yet the complainant refused to co- operate, this placed access to the income continuance beyond the complainant’s reach.
5 WITNESSES ON BEHALF OF THE RESPONDENT
5.1 Mr. Tom O Brien, then Financial Director confirmed his meetings with the complainant and the residual legacy issue of salary at SWS. He genuinely believed that there were no live issues when the complainant accepted employment at Bord Gais Energy . Mr O Brien was clear that he did not ignore or ridicule the complainant at any time.
5.2 Ms. Maria Treacy, HR detailed her role in the handling of the initial grievance and the income protection up until her maternity leave. She confirmed a large body of emails where she had sought to support the complainant in his application for income protection. She was clear that she had not dissuaded the complainant from mentioning salary to the Managing Director.
5.3 Ms. Ruth Kent stated that courses were on offer to the complainant but he did not avail of any. She mentioned that financial support was available to accompany these courses.
6. Findings and Conclusions of the Equality/Adjudication Officer
Time Limits.
6.1The complainant sought an extension of the time limit associated with his case in light of his illness and delay in securing advice in advance of the Hearing. He did not advance on this at the Hearing. However, I feel I should deal with the request in the interest of fairness and in response to the complainant’s original question. It was the respondent’s submission that the complaint was out of time.
Section 77(5)(b) of the Act provides, in effect, that where reasonable cause is shown for a delay in presenting a claim under the Act the 6-month time limit at subsection (4)(a) of that section may be extended to a period not exceeding 12 months., I am taking into account the view of the High Court on extending time where there is "good reason to do so" in the case of O'Donnell v Dun Laoghaire Corporation [3] where Costello J stated as follows:
"The phrase "good reason" is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the Court should not extend the time merely because an aggrieved plaintiff believed he/she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay”
6.2 The Labour Court has followed this recently in the case of Ballinamore House Nursing Home/Raicam Holdings ltd v Aster Kassa Guinan[4]. The Court did not accept that a co existant illness was sufficient grounds to delay the submission of a complaint as the requisite application form was not an arduous process. “However, the Court does not accept that in order to present a complaint to the Equality Tribunal it was necessary to provide a particularised account of the circumstances giving rise to the claim.”
6.3 It is possible for a complainant to bring into their complaint more historic incidents of discrimination. The complainant has raised issues which occurred some years before the referral of his complaint to the Equality Tribunal. Section 77(5) of the Employment Equality Act requires that a claim for redress in respect of discrimination be referred within six months from the date of the most recent occurrence. This limitation period may be extended to 12 months where reasonable cause is shown. This maybe where events complained of are part of a wider discriminatory regime or where there is sufficient connection between the incidents or Acts as in Cork County VEC v Hurley[5]The complainant must, however, establish that a discriminatory act occurred within the limitation period.
6.4 In this case, I find that the complainant decided on submitting his claim on 19thDecember, 2012. He placed the respondent on notice of this on 21 January, 2013. He knew that the claim would be defended. He had the benefit of a range of legal advisors, access to the Equality Authority and indeed the Polish Embassy throughout the period. The complainant and his representatives were in contact with the company after he commenced long term sick leave in July 2013 and before he lodged his complaint on April 14, 2014.
I appreciate that the complainant was ill during this period, however, I believe that both his carefully compiled log of events taken in conjunction with the depth of communication on remuneration and extraneous matters indicated a connectivity which could have reasonably led to the furnishing of a complaint to the Equality Tribunal within the timeline required. Therefore, I cannot grant the extension to 12 months as requested as I cannot see that” reasonable cause“ has been established.
Accordingly,I find the complaints in relation to promotion and access to training to be out of time. However, the complaints of harassment and victimisation relate to different events and I find them to be in time, as detailed below. The Equal Pay claim is outside this limitation period.
7 Equal Pay Claim:
7.1 The issue for decision in this case is whether the complainant and his comparator are engaged in like work as defined in S.7(1)(a) or (b) of The Acts, and if so, whether there are grounds other than their different nationalities for the difference in their remuneration. In addressing this issue, I have taken account of all oral and written submission in addition to evidence adduced at the hearing.
S.7(1)(a) defines like work as follows: both perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work.
S.7(1)(b) defines like work as follows “The work performed by one is of similar nature to that performed by the other and any differences between thee 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.
7.2 Prior to the Hearing, the complainant put the context and background of the unequal pay firmly in the domain of SWS ltd prior to 2010. He did accept that his pay increased in September 2010 both in terms of pay and bonus on transition to Bord Gais Energy. He wished the Tribunal to see his work as equal in value to Mr A when they both worked for SWS as Financial Analysts.
7.3 On the day of the Hearing, the complainant told the Tribunal that he did not do the same job as Mr A and the comparator had left the company. I had no access to the comparator. The respondent was clear that Mr A held a Commercial Lead post prior to leaving the company and prior to that his role was different to the complainants as his post held a negotiating component. I was not pointed to any certainty in the salary of the comparator.
In considering this I am mindful of the Labour Court in [6]Buckley v HSE
“The Court takes the view that, whilst the historic origin of a salary scale may be an important factor in explaining the background to a particular case, any particular complaint of discrimination must be assessed at the time the complaint is submitted. “The compliant in this case was submitted on April 16th 2014.
7.4 The Labour Court has consistently held that” It is for the complainant to prove, on credible evidence of sufficient weight that he was engaged in like work within the statutory description “.Donegal Meat Processors v Rodrigo Da Silva Dias [7]
The complainant was visibly uncomfortable when his evidence was being tested, on one level he asserted that his race was the reason he was paid less and on another level, he did not submit any evidence to the Tribunal. He stated that he was tired.
7.5 I find that I must examine the claim and the work performed at the time the complaint was made. Marek Mnichowski and Lisavagh Timber Project ltd[8] On the date of submission, April 16th, 2014, the Complainnat had been on sick leave for almost nine months. He referred to the issue of salary as a legacy issue from SWS ltd yet he did not submit evidence on the differential in the salaries. I heard from both parties that salary for both the complainant and his named comparator had been aligned upwards following a Hay evaluation process in 2010. I have viewed this document and note its complexity. I am mindful that this job evaluation was conducted via the line managers and the external consultants and accepted by the complainant in 2010. I find that it may have been more helpful and transparent if the complainant had been allowed to address the job evaluators himself given his eventual disquiet on the matter. The complainant’s employment changed ownership on two occasions and it does seem, on my reading of the case that the complainant’s role as Commercial Analyst was indeed less central to the development of operations than what he actually envisaged. I note that the respondent did discuss this with him on a number of occasions but the issue of securing equal pay took precedence for the complainant.
7.6 Both parties acknowledged that a pay freeze was imposed in SWS ltd and Bord Gais ltd from 2008 apart from the application of the annual bonus. The respondent gave evidence that Mr A was an Accountant and did a vastly different job to the complainant. Based on all of the above, I am not satisfied that the complainant and Mr A performed like work within the meaning of either S7(1) (a) or (b) of the Acts and the complaint cannot succeed.
8 Harassment
8.1 Harassment is defined in S14 A (7) of the Acts and refers to
Any form of unwanted conduct related to any discriminatory grounds, being conduct which in either case has the purpose/effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating environment
8.2 In considering the time frame of 14 October 2013 onwards, I have referred to the complainant’s initial complaint form. He detailed a deterioration in his working life from joining Bord Gais in September 2010. He felt isolated. He described hearing derogatory comments repeatedly directed towards him but did not attribute them to a named party. He understood that he was being directed out of the company and back to Poland. It was clear that the complaint had adjustment issues with Bord Gais . Medical Reports indicated a long standing medical condition in the July 2013 report . I find that the complaints can be dealt with during the course of the limitation period as:
· Feedback on the complaint on the commercially sensitive issue
· Referral to the Psychaitrist
· Application for income continuance
All occurred during this timeline. These issues caused the complainant a large amount of concern and warrant investigation.
The cover note to the Tribunal on 18 December, 2014 was signed by two parties, Jaroslaw and Hanna Obuszko. I find that Mr. Obuszko is the sole complainant in this case, as he alone had standing to address the claim. While he was a non-national at SWS at the time of the takeover by Bord Gais , He was not the sole non-national as he alleged.
The complainant contended that he was selected for more arduous work on grounds of race but did not submit proof of this pressure through witnesses , records or evidence of any kind
The complainant was under medical supervision throughout the 6-month lead in period to the complaint and consequently, was not present in the workplace.
He did not consent to the proffered psychiatric assessment on confidentiality grounds. The company took the approach of explaining that this report was necessary to comply with the company sick leave scheme and accepted the complainant’s refusal to attend.
The company adopted a similar approach to the management of the application for income continuance. They extended the deadlines to accommodate the complainants need for clarification. I was encouraged by the generosity of this approach.
I can accept that the complainant was very upset and distressed throughout his period of illness. He had a certain unshakeable belief that he was unwanted, yet no evidence was adduced outside subjective commentary and supposition.
It was a common feature of the Hearing that Mr. Obuszko was not keen when evidence was tested. In the interest of fairness, I sought a supplementary submission on what records he had on his treatment by the company in the face of the income protection scheme. I was concerned that the complainant had lost out on an income continuance which seemed to be an entitlement. I reviewed the records in the course of my investigation relying on the Labour court Ntoka vs Citi bank [9]
“This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant’s power of procurement. Hence the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondent’s capacity of proof.”
The records produced did not point to any undue pressure placed on the complainant . The complainant did submit taped recordings of interviews. I have to find that these were inadmissible to my investigation as there was sufficient opportunity for the complainant to make his case through preparatory submission and at the Hearing.
8.3 I found that the references to instances in the complaint mostly referred to the early days of 2010 takeover by Bord Gais and how the complainant struggled to find his way. I note that the complainant reported having a supportive line Manager who was then promoted and lost to him. It is clear that the complainant felt unsupported in a changing company. However, I need to address events in accordance with the limitation period set down in the Act, i.e. 6 months. This was a period of sick leave for the complainant and events as complained of referred to the commercially sensitive issue, the referral to the Psychiatrist and the application for income continuance.
8.4 The complainant made strident efforts to secure a pay revision and highlight the commercially sensitive concerns throughout the period, (2010-2014) up to and including his approaches to external bodies. This was underpinned by strong focus and determination. In addition, I accept the respondent contention that an exit strategy was in contemplation by the complainant. I did probe this at the hearing only to be told that there had been some discussions but no agreement.
8.5 The respondent sick leave scheme was known by the complainant. This linked payment to completion of medical assessments. I find that in light of the Medical certs referring to a mental health condition, it was reasonable for the respondent to follow through on the scheme. I find that the complainant did act to his own detriment by not availing of the cushion of income continuance and I cannot find any evidence from the complainant that points to an undue pressure placed on him by the respondent, such as would constitute Harassment.
The complainant displayed a strong determination and focus in pursuing a wage differential which he saw as unfair. However, my investigation allows me to conclude that this pursuit may have taken over and the nuances on the changing role of the company were missed by the complainant, which in turn made adjustment more difficult. This may have added to his unease.
8.6 I reviewed the case of Dr Eva Michalak and Mid Yorkshire Hospitals NHS Trust for application purposes and I find that the case is distinguished from the instant case on a number of grounds . The UK case concerned “ a career loss” case through complaints received against the Doctor at the centre of the case and involved periods of suspension , disciplinary processes and maternity leave, none of which were issues in this case . It was of considerable note to me to find that the Decision in the case was clearly informed by detailed medical evidence obtained through assesment.
8.7 I am struck by the two concurrent approaches relied on by the complainant, a period of intense activity and a period of extended rest in relation to attempted problem solving in this case. I find that the complainant felt under pressure at the company from the initial take- over in 2010. I find that the respondent did engage with the complainant but the central issue of being underpaid went to the root of the case.
However, the Act requires me to consider this compliant under Section 14 and in that regard, on this occasion and for the reasons cited, I find that the complainant has not established a prima facie case which gives rise to an inference of Harassment under Section 14(A) of the Acts.
9 Victimisation
9.1 Section 74 (2) of the Act states 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.
9.2 The complainant contended that he was adversely treated and victimised for his capacity
to speak out and question while working for Bord Gais over a number of years outside the
limitation period. He did not adduce evidence at the Hearing, preferring to refer to a
generalist submission on his wish to improve his standing and salary at work. He honestly
believed that he was treated differently by his line management team, Human Resource
Managers and Senior Managers because of his race.
He first raised the topic of discrimination within his notification under the whistle blowing
policy. He did not action a complaint for over 16 months later. I note the methodological
manner in which the respondent managed the complainant’s concerns. In my investigation, I
paid careful attention to the arrangement of the medical appointments. I find that the
complainant accepted the first Occupational Health report without incident. The report
confirmed a long standing illness. I find that the company acted responsibly under their sick
leave policy to try to get to the root of the problem with the referral to a Specialist. I find that
the complainant acted to his detriment by withholding his consent to assessment by the
Psychiatrist and his non-compliance with the rules associated with income protection was
unreasonable. In Barrett v Dept. of Defence[10] the Labour court has set out a test for
Victimisation.
1 The complainant must have taken action under S 74(2)
2 He must have been subject to adverse treatment by the employer
3 The adverse treatment must have been a reaction to the protected Act
9.3 The complainant was off work on sick leave and away from the company for some 10
months before he made the complaint to the Equality Tribunal. He stated in his submissions
that nobody contacted him during that period. He had many self-professed exchanges with his
management team during this period in relation to issues of sick leave, medical appointments,
income protection and the commercially sensitive issue. I cannot establish that any of these
encounters were tainted by adverse treatment towards the complainant. I find instead that the
respondent displayed considerable lea way in the management of income continuance in the
complainant’s interests. It is regrettable that such a beneficial support mechanism was parked
in this case which, may have preserved up to 75% of salary for the complainant during his illness.
9.4 I find that the incidents complained of do not reach the required burden of proof in this
case and the complainant has not established a prima facie case of Victimisation.
10. Decision
10.1 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 on that date, pursuant to the continuation of my functions set out in S.83 of the Workplace Relations Act, 2015.
1. The claims in relation to promotion and access to training are out of time,
2. the complainant has failed to establish a prima facie case of discrimination in relation to pay
10.2 Based on all the foregoing, I find, pursuant to section 79(6) of the Acts, that the respondent did not discriminate against the complainant on grounds of race and did not harass or victimise the complainant within the meaning of SS 14(1) and 74(2) of the Acts.
Patsy Doyle
Adjudication Officer/Equality Officer
Date: 8th Jan 2016
Footnotes
[1] UK Employment Appeals Tribunal 1810815/2008
[2] 1 2010 IEHC 496
[3] O Donnell v Dun Laoighaire Corporation [1991]ILRM 301
[4] EET 152, Labour Court, 2015
[5] EDA 24/2011
[6] Buckley v HSE EDA 113
[7] EDA 093
[8] DEC-E2015-110
[9] 2004 ELR 3116