ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003582

and

Adjudication Decision Reference: ADJ-00001217

Complaints for Resolution:

Date of Adjudication Hearing: 09/09/2016 and 04/11/2016

Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 8(1B) of the Unfair Dismissals Act, 1977, and Section 79 of the Employment Equality Act, 1998, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

The respondent attended Day 1 of the hearing held on 9 September 2016 accompanied by his accountant. Day one of the hearing dealt with complainants: CA-00005084-001, CA-00002372-001, CA-00004372-001, CA-00001625-001, CA-00001625-003, CA-00001625-004, CA-00001625-005 and CA-00003081-001. Day 2 of the hearing which the respondent did not attend, dealt with complaints: CA-00005087-001, CA-00005579-001 and CA-00002372-002.

Background:

The complainant started working with the respondent on 1^st October 2011 when she was hired as a Financial Consultant providing financial advice primarily to public sector employees. The respondent acts as a broker in respect of pension and insurance products. The complainant’s role was to advise clients on the best financial product for that person’s situation and referred the client to an insurance company or pension provider. If the client was accepted by the insurer and the client paid a monthly fee for the product, then the respondent was entitled to a commission for referring that client to the insurer. Receipt of that commission from the insurer is called “business issued”, prior to that all clients referred to insurers is known as “pipeline business”. The complainant and a previous employee Mr A had been promised a promotion to role of Director which never materialised and resulted in Mr A leaving the company.

The complainant’s annual salary was €28,584.84 gross, paid the last day of each month and there was also commission paid to her as follows: for all business issued in excess of €24,000 in a quarter the applicant was to receive 50% of that figure i.e. if the applicant had business issued of €25,000 in a quarter, she received a commission of €500 being 50% of €1,000 which is in excess of €24,000 in that quarter. If the applicant reached her quarterly target, she was entitled to an added bonus of €1,000. On November 4^th 2015 the respondent advised the complainant that effective 1^st November, her pay structure was changed to a commission only pay structure.

On 12^th January 2016, a meeting was held with the complainant attended by the respondent and his wife to discuss some of the complainant’s grievances but there was no resolution. She has not attended work since February 2016 owing to stress and resigned her position on the basis of being constructively dismissed on 27^th June 2016.

The complainant has brought 7 claims under Payment of Wages Act 1991 for allegedly not receiving payment of commission, salary and failure to receive 11 pay slips.

The complainant has brought 1 claim under Terms of Employment (Information) Act, 1994 for allegedly not receiving a contract of employment.

The complainant has brought 1 claim under Unfair Dismissals Act, 1977 for allegedly being constructively dismissed

.

The complainant has brought 2 claims under Employment Equality Act, 1988 for alleged acts of discrimination on the basis of her gender with regard to conditions of employment, promotion and training.

Day one of the hearing dealt with the complainant’s claims under Payment of Wages Act 1991 and Terms of Employment (Information Act) 1994 which the respondent attended. A second day was rescheduled agreed by all. The respondent sought an adjournment on the grounds of ill health and, advising his unavailability until November 2016 and the adjournment was granted. On 26 September 2016 a letter from the complainant’s doctor was receiving by the WRC outlining that “delaying in resolution of dispute is having very adverse effects” on the complainant”. The case was rescheduled for 4^th November 2016 and proceeded on that date.

On 28^th October 2016 the respondent emailed the WRC advising that “there is a family meeting in Clonakilty in which himself and his wife were required to attend and that he would “do (his) best to have a Company representative there “. Neither the respondent nor a representative attended and no adjournment was requested. Having confirmed that a letter had been issued notifying the Respondent of the date, time and location of the hearing and having been satisfied that the respondent was aware of same, the case proceeded on Day two with the complainant’s two claims under Employment Equality Act 1998 and her claim the Unfair Dismissal Act 1977.

Complainant’s Submission and Presentation - CA-00005084-001

Payment of Wages Act, 1991

This claim relates to outstanding commission due to the complainant in May 2016 to the value of €16,867.07 gross. This amount relates, therefore, to 50% of €33,734.14 that the company received from insurance companies for the complainant’s policies. Detailed financial information was provided in relation to the claim.

Respondent’s Submission and Presentation – CA-00005084-001:

The respondent advised that the organisation was under financial pressure. The respondent requested a short adjournment which was granted, to allow time to review the documentation submitted by the complainant in relation to the outstanding payment. On resumption of the hearing the respondent confirmed that this claim related to outstanding commission due in May 2016 to the value of €16,867.07 gross. The respondent confirmed that the complainant was due this amount and that it had not been paid.

Findings CA-00005084-001:

Section 5(1) of the Payment of Wages Act, 1991, states:

An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless –

1. the deduction (or payment) is required or authorised to be made by virtue of an statute or any instrument made under statute,
2. the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or
3. in the case of a deduction, the employee has given his prior consent in writing to it

On the basis of the evidence presented at the hearing and given that the respondent when given an opportunity to review the detailed paperwork provided to support the claims did not dispute the figures presented by the claimant, my decision is as follows:

Decision: CA-00005084-001

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that this complaint under the Payment of Wages Act, 1991, is well founded and I order the respondent to pay the complainant compensation to the amount of €16,867.07 gross.

Complainant’s Submission and Presentation - CA-00002372-001

Payment of Wages Act, 1991

This claim relates to salary owed to the complainant since November 2015 to the value of €1,191 gross. The complainant alleges that her pay structure had been salary plus commission-based but that on 4^th November 2015 she received an email advising that effective “1^st November 2015, (no matter what company it is with) 50 % of the commission will be paid to the rep on receipt of payment from the insurance company”. The complainant claims that this change was implemented without any prior notice and without any agreement.

Respondent’s Submission and Presentation – CA-00002372-001:

The respondent advised that the organisation was under financial pressure. The respondent requested a short adjournment which was granted, to allow time to review the documentation submitted by the complainant in relation to details around the outstanding payment. On resumption of the hearing the respondent confirmed that this claim relates to salary owed since November 2015 to the value of €1,191 gross. The respondent confirmed that the complainant was due this amount and that it had not been paid.

Findings CA-00002372-001:

Section 5(1) of the Payment of Wages Act, 1991, states:

An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless –

4. the deduction (or payment) is required or authorised to be made by virtue of an statute or any instrument made under statute,
5. the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or
6. in the case of a deduction, the employee has given his prior consent in writing to it

On the basis of the evidence presented at the hearing and given that the respondent when given an opportunity to review the detailed paperwork provided to support the claims did not dispute the figures presented by the claimant, my decision is as follows:

Decision: CA-00002372-001

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that this complaint under the Payment of Wages Act, 1991, is well founded and I order the respondent to pay the complainant compensation to the amount of €1,191.

Complainant’s Submission and Presentation - CA-00004372-001

Payment of Wages Act, 1991

This claim relates to outstanding commission due to the complainant in April 2016 to the value of €3,201.51 gross. This amount relates, therefore, to 50% of €6,403.02 that the company received from insurance companies for the complainant’s policies. Detailed financial information was provided in relation to the claim.

Respondent’s Submission and Presentation – CA-00004372-001:

The respondent advised that the organisation was under financial pressure. The respondent requested a short adjournment which was granted, to allow time to review the documentation submitted by the complainant in relation to details around the outstanding payment. On resumption of the hearing the respondent confirmed that this claim relates to outstanding commission due in April 2016 to the value of €3,201.51 gross. The respondent confirmed that the complainant was due this amount and that it had not been paid.

Findings CA-00004372-001:

Section 5(1) of the Payment of Wages Act, 1991, states:

An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless –

7. the deduction (or payment) is required or authorised to be made by virtue of an statute or any instrument made under statute,
8. the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or
9. in the case of a deduction, the employee has given his prior consent in writing to it

On the basis of the evidence presented at the hearing and given that the respondent when given an opportunity to review the detailed paperwork provided to support the claims did not dispute the figures presented by the claimant, my decision is as follows:

Decision: CA-00004372-001

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that this complaint under the Payment of Wages Act, 1991, is well founded and I order the respondent to pay the complainant compensation to the amount of €3,201.51 gross.

Complainant’s Submission and Presentation - CA-00001625-001

Payment of Wages Act, 1991

This claim relates to outstanding salary owed since December 2015 to the value of €2,382.00 gross. The complainant alleges that her pay structure was salary plus commission but that on 4^th November 2015 she received an email advising that effective “1^st November 2015, (no matter what company it is with) 50 % of the commission will be paid to the rep on receipt of payment from the insurance company. This was implemented without any prior notice and without any agreement.

Respondent’s Submission and Presentation – CA-00001625-001:

The respondent advised that the organisation was under financial pressure. The respondent requested a short adjournment which was granted, to allow time to review the documentation submitted by the complainant in relation to details around the outstanding payment. On resumption of the hearing the respondent confirmed that this claim relates to outstanding salary owed since December 2015 to the value of €2,382.00 gross. The respondent confirmed that the complainant was due this amount and that it had not been paid.

Findings CA-00001625-001:

Section 5(1) of the Payment of Wages Act, 1991, states:

An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless –

1. the deduction (or payment) is required or authorised to be made by virtue of an statute or any instrument made under statute,
2. the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or
3. in the case of a deduction, the employee has given his prior consent in writing to it

On the basis of the evidence presented at the hearing and given that the respondent when given an opportunity to review the detailed paperwork provided to support the claims did not dispute the figures presented by the claimant, my decision is as follows

Decision: CA-00001625-001

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that this complaint under the Payment of Wages Act, 1991, is well founded and I order the respondent to pay the complainant compensation to the amount of €2,382.00 gross.

Complainant’s Submission and Presentation - CA-00001625-004

Payment of Wages Act, 1991

This claim was withdrawn on the day.

Decision: CA-00001625-004

CA-00001625-004

This claim was withdrawn on the day.

Complainant’s Submission and Presentation - CA-00001625-005

Payment of Wages Act, 1991

This claim relates to outstanding commission due to the complainant in relation to Jan, March, June, July and August2016 to the value of €3,100.90 gross. This amount relates, therefore, to 50% of the €13,721.25 that the company received from insurance companies for the complainant’s policies less €3,759.72 which the complainant received). Detailed financial information was provided in relation to the claim.

Jan:        Complainant owed €397.69         (in relation to total issued commission of €7,855.81, complainant received already €3,530.21)

Mar:      Complainant owed €45.54            (in relation to total issued commission of €550.11 complainant received already €229.51)

June:     Complainant owed €448.81        (in relation to total issued commission of €897.62)

July:       Complainant owed €1,965.58      (in relation to total issued commission of €3,931.16)

Aug:       Complainant owed €243.27         (in relation to total issued commission of €486.55)

The complainant claims that the respondent has advised her that he will not pay it as he wishes to keep this money to pay off a debt he has with the bank.

Respondent’s Submission and Presentation – CA-00001625-005:

The respondent advised that the organisation was under financial pressure. The respondent requested a short adjournment which was granted, to allow time to review the documentation submitted by the complainant in relation to details around the outstanding payment. On resumption of the hearing the respondent confirmed that this claim relates to outstanding commission due from Jan, March, June, July and August2016 to the value of €3,100.90 gross.

Jan:        €397.69

Mar:      €45.54

June:     €448.81

July:       €1,965.58

Aug:       €243.27

The respondent confirmed that the complainant was due this amount and it has not been paid.

Findings CA-00001625-005:

Section 5(1) of the Payment of Wages Act, 1991, states:

An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless –

the deduction (or payment) is required or authorised to be made by virtue of an statute or any instrument made under statute,

the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

in the case of a deduction, the employee has given his prior consent in writing to it

On the basis of the evidence presented at the hearing and given that the respondent when given an opportunity to review the detailed paperwork provided to support the claims did not dispute the figures presented by the claimant, my decision is as follows:

Decision: CA-00001625-005

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that this complaint under the Payment of Wages Act, 1991, is well founded and I order the respondent to pay the complainant compensation to the amount of €3,100.90.

Complainant’s Submission and Presentation - CA-00003081-001

Payment of Wages Act, 1991

This claim relates to outstanding commission due to the complainant in relation to February 2016 to the value of €2,762.12 gross. This amount relates, therefore, to 50% of €6,590.03 that the company received from insurance companies for the complainant’s policies less €532.90 which the complainant received). Detailed financial information was provided in relation to the claim.

Respondent’s Submission and Presentation – CA-00003081-001:

The respondent advised that the organisation was under financial pressure. The respondent requested a short adjournment which was granted, to allow time to review the documentation submitted by the complainant in relation to details around the outstanding payment. On resumption of the hearing the respondent confirmed that this claim relates to outstanding commission due in February 2016 to the value of €2,762.12 gross. The respondent confirmed that the complainant was due this amount and that it had not been paid.

Findings CA-00003081-001:

Section 5(1) of the Payment of Wages Act, 1991, states:

An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless –

the deduction (or payment) is required or authorised to be made by virtue of an statute or any instrument made under statute,

the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

in the case of a deduction, the employee has given his prior consent in writing to it

On the basis of the evidence presented at the hearing and given that the respondent when given an opportunity to review the detailed paperwork provided to support the claims did not dispute the figures presented by the claimant, my decision is as follows

Decision: CA-00003081-001

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that this complaint under the Payment of Wages Act, 1991, is well founded and I order the respondent to pay the complainant compensation to the amount of €2,762.12.

Complainant’s Submission and Presentation - CA-00001625-002

Payment of Wages Act, 1991

This claim relates to the absence of 11 pay slips that the complainant alleges that she never received since January 2015.

Respondent’s Submission and Presentation – CA-00001625-002:

The respondent replied the payslips had been available and that the complainant never looked for them.

Findings CA-00001625-002:

Section 4(1) clearly states:

“An employer shall give or cause to be given to an employee a statement in writing specifying clearly the gross amount of the wages payable to the employee and the nature and amount of any deduction therefrom and the employer shall take such reasonable steps as are necessary to ensure that both the matter to which the statement relates and the statement are treated confidentially by the employer and his agents and by any other employees.

The complainant alleges that she never received 11 pay slips; the respondent stated that the pay slips were available for her. While there is a requirement for a “statement (to) be given to the employee”, and the employer was in breach of this provision, I have no jurisdiction to award compensation for a breach of Section 4 (see Lis v Brifol Enterprises Ltd PW72/2005) and accordingly the appellants claim for compensation under the Payment of Wages Act, 1991 fails.

Decision: CA-00001625-002

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the complaint fails as I have no jurisdiction to award compensation for a breach of Section 4 of the Payment of Wages Act, 1991.

Complainant’s Submission and Presentation - CA-00001625-003

Terms of Employment (Information) Act 1994

The complainant alleges that she never received any terms or conditions of employment during her employment and that this impacted significantly on her especially when amongst other things, the respondent failed to pay her her salary and unilaterally changed her terms and conditions of employment with regard to her pay structure and that there was no grievance procedure which she could reference. She stated that in November 2015 she looked for a contract of employment but none was forthcoming.

Respondent’s Submission and Presentation – CA-00001625-003:

Terms of Employment (Information) Act, 1994

The respondent advised that he had assumed Mr A had issued the complainant with a contract when she commenced employment.

Findings CA-00001625-003:

Section 3(1) of the Terms of Employment (Information) Act, 1994, states:

Anemployer shall, not later than 2 months after the commencement of an employee’s employment with an employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of employee’s employment…

Sec 7 (2) (d) of the Act orders

“…the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act, 1977”

The respondent did not dispute that the complaint had not received a contract of employment but stated it was the responsibility of another employee to issue it, who has since left the organisation. While he may have delegated this responsibility to another employee, there was an onus on the respondent to ensure that all employees had contracts of employment. I, therefore, find that this complaint under the Terms of Employment (Information) Act, 1994, is well founded and succeeds.

Decision: CA-00001625-003

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that this complaint under the Terms of Employment (Information) Act, 1994, is well founded and I order the respondent to pay the complainant compensation to the amount of €2,382.00. This award reflects the seriousness and impact that arose from the breach of the Act.

Complainant’s Submission and Presentation - CA-00005087-001

Employment Equality Act 1998

Victimisation

The claim for victimisation was withdrawn.

Conditions of Employment

The complainant alleges that she had been discriminated against in terms of her conditions of employment. She advised that she is the only female financial advisor and the others who are male have been paid but that she has not. Furthermore, the complainant alleged that the reason she has not been paid her outstanding commission was that it has been used to pay the male employees: Mr X, Mr Y and Mr Z. She referred to the agreed minutes of a meeting dated 12 January 2016 (page 3) where at a meeting with the respondent it states that “other consultants have been writing business and got more money before Christmas by doing so”.  The other consultants are all male. The minutes go on to say that “they (employee X, Y, and Z) received more funds as a result of increased sales”. She claims that the respondent consistently ignored that she had spent a significant part of 2015 giving him support in relation to Mr A’s court case. She provided evidence that she had generated the highest level of business as well as the greatest level of a pipeline which she cited had been accepted by the respondent at Day 1 of the hearing. The complainant advised that another employee Ms B was brought in to try to resolves issues between the complainant and the respondent but there was no resolution.

Respondent’s Submission and Presentation – CA-00005087-001:

Employment Equality Act, 1998

No oral or written submission was submitted by the respondent in relation to the complaint but it should be noted that on day 1 of the hearing, when the complaints were read into record, the respondent denied that the complainant had been discriminated against.

Findings CA-00005087-001:

The claim for victimisation was withdrawn. The complainant’s stated that she was discriminated against on the basis of her gender under her conditions of employment. The complainant is the only female financial advisor and states that she was not paid regularly while others who were male were paid. Furthermore, the complainant alleged that the reason she has not been paid her outstanding commission is that it has been used to pay the male employees: Mr X, Mr Y and Mr Z.

Section 85A of the Employment Equality Act sets out the burden of proof that applies to complaints of discrimination. In the first instance, it requires the complainant to establish facts upon which they can rely in asserting that they were discriminated against. It is only where such a prima facia case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Addressing the issue of the burden of proof in EDA0917 [2010] 21 E.L.R, Valpeters v Melbury Developments Ltd, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows:-

"Section 85A of the Acts provides 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. What those facts are will vary from case to case 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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

In Graham Anthony and Co Ltd v Mary Margretts, EDA 038, in an age discrimination case, the Labour Court remarked:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred”

It was unfortunate that the respondent did not attend the hearing and therefore, I only have the evidence of the complainant. However, the minutes of a meeting dated 12 January 2016 were reviewed at Day 1 of the hearing and it was agreed by both sides that these minutes were an accurate reflection of that meeting.

Page 3 of these minutes detail that the respondent’s wife mentioned that “other consultants have been writing business and received more funds as a result of the increased sales”. Further on in these minutes the respondent’s wife who is also a director confirmed that these employees “have been writing business and got more money before Christmas by doing so”. Further on, in page 6 of these minutes, the complainant highlights that she feels she “is victimised, she does not want to be singled out” and while the respondent denied this, the evidence presented indicated that male financial consultants continued to be paid and the female consultant (the complainant) did not, despite her equal entitlement to be paid.

It is clearly set out in Mitchell -v- Southern Health Board (2001) ELR 201 that, in the first instance, the complainant:

“must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”. It continued: “It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”

I find the Complainant to be a credible witness and accept her unrefuted evidence and I am, therefore, satisfied on the balance of probabilities that the Complainant has met the requisite threshold as set out in Mitchell above and has met the requisite prima facia case of discriminatory on the ground of gender and in the absence of any direct evidence on behalf of the Respondent, find that same has not been rebutted. I find that the claim succeeds.

Decision: CA-00005087-001

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I find that the complaint succeeds. In accordance with Section 82 of the Act, I order the Respondent to pay the Complainant €28,584 in compensation for the finding of discrimination in terms of conditions of employment on the ground of gender. The award equates to approximately 12 months’ salary and is arrived at having regard to the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate”. This figure represents compensation for infringement of her rights under the employment equality legislation in relation to discrimination and does not include any element relating to remuneration.

Complainant’s Submission and Presentation - CA-00002372-002

Employment Equality Act 1998

The complainant alleges that she was discriminated against in relation to Promotion, Training, and Conditions of Employment.

Victimisation

The claim for victimisation was withdrawn.

Promotion:

The complainant alleges that she has been promised a promotion to the role of Director but the Respondent reneged on this numerous times. It has been promised to her in December 2012, 2013, and April 2015.

Conditions of Employment

It was alleged that the respondent hired 2 male sales consultants and would constantly criticise the complainant for the business she was generating. The complainant felt this was very unfair as she had to spend a significant part of 2015 assisting the respondent with his legal issues but despite this the complainant alleges that she generated the highest level of business for the company in 2015 and currently held the highest value of pipeline business waiting to be paid to the company for which she provided evidence of.

Training

The complainant alleges that there she was not provided with training during her employment particularly in relation to access to training for QFAs. She advised that when she asked about being trained up, the respondent and Mr A reassured her that she did not need to worry about this. She advised that Employee X, Employee Y and Employee Z had all sat QFAs and that one of these employees (Employee Z) had started employment 2 years after her.

Respondent’s Submission and Presentation – CA-00002372-002:

Employment Equality Act, 1998

No oral or written submission was submitted by the respondent in relation to the complaint but it should be noted that on day 1 of the hearing, when the complaints were read into record, the respondent denied that the complainant had been discriminated against.

Findings: CA-00002372-002

The claim for victimisation was withdrawn. The complainant stated that she was discriminated against on the basis of her gender in relation to promotion, training and conditions of employment. For clarity and completeness I will repeat some of what I have stated in relation to the previous complaint under the Employment Equality Act 1998, and that is that Section 85A of this Act sets out the burden of proof that applies to complaints of discrimination. In the first instance, it requires the complainant to establish facts upon which they can rely in asserting that they were discriminated against. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Addressing the issue of the burden of proof in EDA0917 [2010] 21 E.L.R, Valpeters v Melbury Developments Ltd, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows:-

"Section 85A of the Acts provides 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. What those facts are will vary from case to case 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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

In Graham Anthony and Co Ltd v Mary Margretts, EDA 038, in an age discrimination case, the Labour Court remarked:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred”

It was unfortunate that the respondent did not attend the hearing and therefore, I only have the evidence of the complainant.

Promotion

In relation to the failure of the respondent to promote the complainant, the last promise of which occurred 8 months before the referral of her 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. It can be possible for a complainant to bring into their complaint more historic incidents of discrimination where they can establish that they are part of a wider discriminatory regime or where there is sufficient connection between the incidents or acts. The complainant must, however, establish that a discriminatory act occurred within the limitation period (see the decisions of the Labour Court in Cork County VEC v. Hurley EDA 24/2011 and County Dublin VEC v. Dodo EDA1327/2013). As the complaint referred to previously (CA-00005087-001) finds that the complainant was discriminated against, I will consider the complaint of promotion in terms of it being part of a wider discriminatory regime and that there is sufficient connection between the incidents or act. However, to succeed the complainant must establish in the first instance a prima facia case of discrimination on the basis of her gender in relation to her lack of promotion.

The complainant states that the she was offered a promotion and that this was announced at a Christmas party in December 2012 and that further promises were made up to April 2015. Promises of promotion were also made to another male employee and these were not honoured also and this employee subsequently left. While I can appreciate how frustrating and upsetting this must have been for the complainant I find that this in itself does not amount to discrimination and the complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.   The Complainant has made an assertion in relation to why she did not get promoted which does not meet the level required to raise a presumption of discrimination and upon which an inference of discrimination can be drawn and I find she is unable to establish a prima facie case of discrimination on the grounds of gender in relation to promotion and thus this part of her complaint fails.

Conditions of Employment

The complainant alleges that she was discriminated against in relation to her conditions of employment owing to the respondent criticising her in a way that he would not criticise other male employees. It was alleged that he regularly singled her out in front of the others as not performing and stated publically that the other male sales consultants were performing better which she stated was completely untrue. She cited other examples of this criticism which the male consultants would not have endured such as the respondent’s failure to respond to her emails, his instruction to her in January 2015 not to contact a client regarding queries and then later telling her not to contact the office as she was taking up too much time.

It is clear from the evidence that the complainant generated the highest level of business for the company in 2015 and had the highest value of pipeline business waiting to be paid.   Furthermore, the complainant did assist the respondent with his legal issues that occurred in April 2015 resulting in her staying in his house on many occasions and working long hours to prepare for the court case regarding Mr A. Therefore, it leaves the question as to why was the complainant criticised in the manner in which she was criticised and asked not to make contact with clients and later the office. It was unfortunate that the respondent did not attend the hearing to respond to this. I find pursuant to Section 79(6) of the Act, that the Complainant has made out a prima facie case of discriminatory treatment on the ground of gender in relation to her conditions of employment contrary to Sections 6(1), 6(2)(a) and 8 of the Employment Equality Acts as the other male consultants were not criticised in this way and in fact were praised. The Respondent has failed to rebut same. I find that the claim succeeds and that complainant was discriminated against in relation to her conditions employment on the basis of her gender.

Training

The complainant alleges that she was not provided with training during her employment particularly in relation to access to training for QFAs. She advised that when she asked about being trained up the respondent and Mr A reassured her that she did not need to worry about this. She advised that Mr X, Mr Y and Mr Z had all sat QFAs and that one of these employees (Mr Z) had started employment 2 years after her. These employees are all male employees.

In relation to whether the complainant did not get receive training owing to her gender, I find the complainant a very credible witness and accept her version of events that her requests for training were dismissed by the respondent for reasons relating to her gender and that the lack of training may impact her securing future employment in the industry. She has established a prima facie case of discrimination and the respondent did not attend and did not rebut same. I find her claim for discrimination on the grounds of gender in relation to training succeeds.

I have concluded my investigation of the complaint in relation to CA-00002372-002 and based on the aforementioned, I find that the complainant was not discriminated on the grounds of gender in relation to promotion but was discriminated on the grounds of gender in relation to conditions of employment and training.

Decision: CA-00002372-002

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

In accordance with Section 82 of the Act, the claim in relation to discrimination on the grounds of gender in relation to promotion fails. I order the Respondent to pay the Complainant €9,528 in compensation for the finding of discrimination on the grounds of gender in terms of conditions of employment (this equates to approximately 4 months salary) and a further €11,910 in compensation for the finding of discrimination on grounds of gender in terms of training (this equates to approximately 5 months salary). The combined award of €21,438 equates to approximately 9 months’ salary and is arrived at having regard to the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate”.This figure represents compensation for infringement of her rights under the employment equality legislation in relation to discrimination and does not include any element relating to remuneration.

Complainant’s Submission and Presentation - CA-00005579-001

Unfair Dismissals Act 1977

The complainant has brought a claim for constructive dismissal on two levels. Referencing the background to her employment the complainant highlighted that firstly the respondent breached a fundamental element of her contract of employment in relation to payment of the complainant’s salary. Further that the implied term of trust and confidence between the respondent and applicant had broken down as a result of the respondent’s unilateral decision to stop paying the complainant’s salary and withholding of commission which was due to her. In those circumstances, the complainant was left with no choice but to consider that her employment was terminated on 27^th June 2015 as a result of the respondent’s actions, namely, ceasing to pay her monthly salary, changing her to a commission based payment structure only without consultation, not paying her full commission, withholding commission owed to her and failing to resolve her grievances. This action amounted to a significant breach going to the root of the contract of employment.   The complainant referenced Kevin Kilkerr v Burke Fabrications Ltd UD 470/2013, namely “when an employee provides labour and services to an employer, it is reasonable for the employee to expect to be paid for its labour and or services”. No contact was received from the respondent from approximately February 2016 and the complainant continued to hope that he would pay her what she was owed and resolve the issues. By the end of June the whole experience had had a significant impact on her health and she realised that he would not listen to her grievances or pay her the outstanding monies and she submitted a letter that she was left with no alternative but to resign.

The complainant highlighted that it was impossible for her to engage with the grievance procedure as she did not have a contract of employment setting out what the grievance process was and secondly, her grievance was with the director of the company and therefore, there was no other forum for her to take her grievance. Despite this she attempted numerous times to resolve the grievances with him but to no avail including some “without prejudice” discussions with her legal representative, however, she believe that the respondent did not engage with these discussions in any meaningful way.

The complainant provided evidence of her attempts to secure alternative employment but to no avail and should she be successful in her complaint, compensation was the preferred form of redress. It was also put forward that should her claim be successful, that her average weekly pay should be calculated on the basis of her pay from January 2016-June 2016.

Respondent’s Submission and Presentation – CA-00005579-001:

Unfair Dismissals Act, 1977

No oral or written submission was submitted by the respondent in relation to the complaint but on Day 1 of the hearing, when the complaints were read into record, the respondent denied that the complaint had been constructively dismissed.

Findings for CA-00005579-001

The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977.

Section 1 of the Unfair Dismissal Act defines constructive dismissal as:

“the termination by the employee of his contract of employment with his employer whether prior notice of the termination was or was not given to the employer in the circumstances in which, because of the conduct of the employer the employee was or would have been entitled or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer”

 The burden of proof, which is a very high one, lies on the claimant and it in necessary that she show that her resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp 1978 ICR221, the legal test to be applied is “an and / or test”. Firstly, I am required to look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

“if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”

If I am not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test.

“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”

When assessing the reasonableness test all of the circumstances of the case must be considered to establish whether or not it was reasonable for the claimant to terminate her contract of employment.

However, in the first instance I will examine whether or not there has been a significant breach going to the root of the contract. From August 2015 the respondent failed to pay the complainant salary on time and when it was paid it was paid in part and irregularly. From November 2015 the respondent unilaterally changed her to a commission based payment structure and withheld commission that she was due. No written contract of employment existed which detailed out a grievance procedure and her manager was the Director of the company and therefore, there was no where else for the complainant to take her grievance when her attempt to resolve it failed. As detailed in Kevin Kilkerr v Burke Fabrications Ltd UD 470/2013 “it is reasonable for the employee to expect to be paid for its labour and or services” and even in the absence of a written contract, this was implied by her previous employment history. Therefore, having given consideration to all the evidence it is my view that the “contract test” which indicate a significant breach going to the root of the contract has been proven and the complaint succeeds. There is no requirement for me to go any further and consider the “reasonableness” test and taking into consideration all the evidence, I deem compensation the more appropriate form of redress.

I am satisfied, that the complainant has made significant efforts to secure other employment but has not been successful todate. It should be noted that I find that the complainant’s absence from Feb 2016–June 2016 to be directly attributable to the behaviour of her employer and as per Browne v Ventelo Telecommunications (Ireland) Ltd(UD 597/2001) this period is deemed reckonable for the calculation of compensation.

In calculating loss of earnings, it is appropriate to reference SI 287/77 (Calculation of Weekly Remuneration)) Regulations 1977 which outlines the manner in which weekly earnings should be calculated:

For the purpose of Regulations 5 and 7 (b) of these Regulations, any week during which the employee concerned did not work shall be disregarded and the latest week before the period of 26 weeks mentioned in the said Regulation 5 or 7 (b), as the case may be, of these Regulations or before a week taken into account under this Regulation, as may be appropriate, shall be taken into account instead of a week during which the employee did not work as aforesaid.

I am mindful that the complainant’s pay structure had been one that was mostly salary for much of her employment, that the respondent changed this to commission-only structure around November 2015 without the agreement of the complainant, that while the complainant agreed to this change in January 2016 it was on the condition that she be paid all outstanding amounts. While the complainant outlined that earnings between January 2016–June 2016 were a more appropriate reference period to calculate her average weekly earnings; the complainant was absent for much of this period. As SI 287/77 specifically excludes any week which the employee did not work coupled with whether or not the complainant had agreed to the change in the salary structure, I deem the complaint’s appropriate earnings to be that detailed on the complaint form - €2,382.07 monthly - which was the complainant’s salary up to the respondent unilaterally changing her salary structure in November 2015.

Decision: CA-00005579-001

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I find that the complainant was unfairly dismissed and the complaint succeeds. In accordance with s.7 of the Act, I order the Respondent to pay the Complainant the sum of €28,584 (equivalent of 52 weeks pay), which reflects the significant breach going to the root of the contract that was contravened and a further €14,292 (26 weeks pay) which reflects the future loss of earnings of the complainant taking into consideration that despite significant efforts to secure employment she has been unsuccessful to date and this may continue to be for a period of time in the future. This combined award is therefore €42,876 (the equivalent of 78 weeks’ pay).

Dated:   30^th January 2017