ADJ-00003982

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003982

Complaints and Dispute for Resolution:  

Date of Adjudication Hearing: 08/11/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, Section 27 of the Organisation of Working Time Act, 1997, Section 13 of the Industrial Relations Act, 1969 and Section 79 of the Employment Equality Act, 1998 following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute.

Attendance at Hearing:

Complainant’s Submission and Presentation:

The complainant is a Turkish national who commenced work as a “ Software Localisation and Quality Assurance Specialist” with the respondent on 14 June 2014. She was based on a secondary site and was paid €34,000 per annum as an Independent contractor . The complainant became a direct employee on the Turkish Team on the same salary scale on 13 March 2015 .She relocated to a new site in August 2015. The complainant stated that she had never received any communication from the company about a pay rise review.

The complainant asked for a pay rise on 31 March 2016.She was assured at a meeting with her Vendor Manager, (Mr VM) in the company of a colleague from the Turkish team that there was no reason why her request would be denied .On 25 April, 2016, the pay claim was refused. On 6 May, 2016, the complainant asked for reasons for the refusal and did not receive a response.

On May 18, 2016, the complainant was invited to a meeting by the HR Administrator,( Ms HRA), but declined the invitation due to the conflicts in position adopted by the respondent and her desire to have communication in written form .On May 20, 2016; she received an email from Human Resource Manager, (Ms HRM) which stated:

“Our Salary review process is driven very much by the business relationship with our client. In that context, we are unfortunately not in a position to increase your salary at this time “

The complainant contended that this was a departure from her contract and it lacked transparency as the client had no role in the salary review as mentioned in the contract .Nobody on the Turkish Team received a pay rise which contrasted with other nationalities who were receiving pay rises annually .

The complainant told the hearing that three members of the Turkish Team had been suspended with full pay due to an ongoing investigation initiated by the client.

The complainant submitted that her performance had always been excellent and nobody had ever complained about her work. She also took issue with the way that performance was being evaluated at the company a contended that a highly scored work performance should inform a salary increase.

The complainant contended that the repeated refusals to increase her pay were base on her Turkish nationality as none of the members received a pay rise during their employment, despite an excellent performance .Some of the complainant’s colleagues from different nationalities who commenced employment around the same time as her had pay increases. The complainant named a Greek Colleague as a comparator who earned €38,000 and submitted that this was proof of the inequality in salary review.

1 Claim for Annual leave and Public Holidays

This claim covered a period of time of July 2014 to March 2015 where the complainant disputed her employment status as an Independent contractor and sought access to annual leave and public holidays for this period.

2 Industrial Relations Claim

The complainant disputed the respondent refusal to grant her a pay increase in May 2016 without reason.

The complainant submitted that she required an investigation into the period of time from July 2014 –March 2015 as she did not accept that she was correctly classified as an Independent contractor and wished to be recognised as an employee for that period.

3 Employment Equality Complaints

The complainant submitted a complaint that she had been discriminated against on race grounds on 24 June 2016. She submitted that she was victimised because of her nationality as one of a group of Turkish workers.

Respondent’s Submission and Presentation:

The respondent disputed all three claims .The respondent submitted a copy of the complainants contract of employment which commenced in March 2015. They confirmed that the complainant had been an Independent contractor from July 2014 – March 2015 at the company.

1. Organisation of Working Time Act, 1997

The respondent contended that while it was not accepted by the respondent that the complainant should be treated as an employee from 14 July, 2014, Section 27(4) of the Act does not provide jurisdiction for the Adjudicator to hear the claim .They referred to the High Court case of HSE V John Mc Dermott [2014] IEHC 331 and contended that the claim is out of time.

2 Industrial Relations Act Claim

The respondent rejected the claim and stated at the hearing that the complainant had not engaged with the company regarding the pay claim. She refused to avail of an offer to have a direct face to face meeting with the Human Resource Team or utilise the grievance procedures open to her.

The respondent was not prepared to accept that the claim for annual leave could be addressed under this claim. They disputed her employee status before March 2015.

The respondent confirmed that no member of the complainants team received a salary increase since early 2015, unless they were promoted (point of contact) position with additional responsibility justifying that increase.

3 The respondent disputed the claim of discrimination on the grounds of race. The complainant commenced her contract of service on 23 March 2015. The complainant had not mentioned a comparator in her submission. At the hearing, the respondent was presented with a named Greek comparator, named as Ms C. The company sought an opportunity to make a supplementary submission and this was received on 11 November, some three days after the hearing.

“ We can now confirm that Ms C was initially engaged by our client as a contractor in 2012 and continued as a contractor until March, 2015 when she was offered a permanent employee contract and accepted it .Due to her previous experience as a contractor over a number of years , her daily rate had increased over the years to €144 per day which equated with €38,000 per annum for a permanent employment contract ……Ms C has received no increase in her wages since March 2015….Ms C was a contractor for a longer period of time than the complainant “

The respondent submitted that MS C was on a higher salary due to her longer length of service .They contended that the company employed a large number of employees from a vast array of different countries and every employee is treated equally.

Decision and Recommendation:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints and dispute in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 27 of the Organisation of Working Time Act, 1997 requires me to make a decision in this case. Section 13 of the Industrial Relations Act, 1969 requires me to investigate and make a recommendation on the claim before me .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.

The complainant submitted her complaint form via her Union in July 2016, The Union was off record on the day of the hearing and I accepted the attendance of the complainants chosen representative for the purpose of the hearing .

1. Preliminary Issue of Employee Status of the Complainant July 2014-March 2015

In order for the complainant to ground a complaint for this period of time, she would need to submit information and evidence of her role and function during this period. The complainant’s submission on the day of the hearing referred to her working life as an employee and commenced with a copy of her contract of service from March 2015. I found that this was her central cause of action .I did not receive any account from her in relation to her experience as an Independent Contractor bar the reference to the uniform salary covering both periods of time . Yet, the reference to seeking Adjudication on determining her status as an employee formed a central part of her complaint form.

The complainant in common with a number of co –claimants at the respondent business submitted a complaint on determination of employee to SCOPE section of the Dept. of Social Welfare and is currently awaiting feedback. I have listened carefully to both parties submissions in this matter and I find that I have insufficient evidence on which to base a decision on the complainant’s employee status from July 2014 – March 2015. 

1 Claim under Organisation of Working Time Act 1997 CA-00005771-001

As I have not determined that the complainant was an employee during this period, I find that I do not hold the jurisdiction to hear this claim.

2 Industrial Relations Act Claim CA-00005771-002

I have listened and considered both parties responses to this claim which is in two parts:

1 Determination of Employee Status July 2014-March 2015

I have found that there was insufficient evidence placed before me to assist in a consideration of this claim by the complainant. I am mindful that the respondent disputed the claim.

I find that this aspect of the claim cannot succeed.

2 Claims for a Wage Increase in 2016. 

The definition of a Trade Dispute can be found in the Industrial Relations Act, 1990 which redefined “trade disputes” as: 

Any dispute between employers and workers which is connected with the employment or non-employment, or the terms or conditions of, or affecting the employment of any person.

I find that the circumstances surrounding the claim as advanced by the claimant constituted a Trade Dispute.

I have considered the parties oral and written submissions with regard to this claim .I have inquired further into this claim. I note that the complainant transferred from Independent Contractor status to direct employee in March 2015 on a salary of€ 34,000.This was not disputed. The respondent submitted that there had been no pay increases at the company since early 2015.

I examined the salary clause on the contract of employment

“Your Gross Salary which will normally be reviewed at least annually is €34,000….Overtime is paid at time and a half “

The claimant introduced her pay claim on 31 March, 2016 against a backdrop of a 21 month history of working for the company of which there were 12 months as a permanent employee .She requested feedback, which arrived some three weeks later and was a rejection of the claim by Ms HRA.In the meantime she had had a meeting with her On site manager for the respondent in the company of another team member, she took a positive sounding from this meeting and was disappointed to have a refusal. She believes it to be unfair and sought a rationale for the refusal.

The respondent invited the claimant to a meeting with Human Resources and the Operations Manager on May 20^th. I find that the claimants decision not to attend this meeting to be unreasonable .I could not establish why she felt insecure about attending as her approach had been very focussed and assertive up to that point . I was concerned that the claimant was reticent to meet with her Managers.

I began to understand a little more that the bi location of the company on one operational site and on another associated employer site went to the root of the case. The claimant associated with her field manager for the respondent whom she worked with on the associate employer site, yet all formal decisions regarding her contract were made on the operational base .It was this Operational base that she refused to attend .The claimant received confirmation that her pay claim had been escalated within the company on May 20.There was no detail as to whose desk? . This was accompanied by a reminder from Human Resources that the company preferred face to face dialogue.

I find that there was a very noticeable communication lag between the claimant and the Operational base which undermined optimal employer /employee relations. I find that there was also an insufficient orientation programme regarding the changes to be expected following the transition from independent contractor to direct employee.

The issue of the claimant’s suspension is not a matter before me and I do not propose to remark on it.

The claimant submitted a lot of detail on how the company measure performance and some records of collective concerns surrounding this.

The claimant submitted a copy of a staff handbook dated 21 July 2016; I reviewed the 2015 contract to discover that a staff handbook for that period accompanied this contract. While the grievance procedure was extensively outlined in schedule 18 of the staff handbook (2016) I could not establish that either party activated or responded reliant on this procedure either through the initial claim or via the respondent response. I found the thread of emails exchanged between the parties to be no substitute for an engagement where the claimant may at least have been given an understanding of the current state of play of the interface between the Turkish Team and a potential, if any for a pay review. The annual review contained in the contract read to me as a discretionary term .I find that the claimant should have been less reliant on email correspondence and should have replaced it with human contact with Managers at the Operational base to assist her claim .

I find that the claimant may have lost out on a pay rise given to employees of the company in early 2015 and before she became an employee. At that time, she was an Independent contractor and not identified by the respondent for a pay rise. It does not appear to have featured in the transitionary arrangements from Contractor to employee and I can understand that the pressures of PAYE and employee PRSI and USC were being faced for the first time by the claimant. However, I can only examine the time line of the claim during her period of direct employment.

I find that the claimant was disadvantaged by the lack of clarity on the decision makers on pay determination at the respondent company .This was due to the bi location of the operational HQ and the claimants base on the site of an associate employer, where she understood that Mr VM was the point of contact . I note also that the reference to an annual review is qualified as “normally “in the contract. I am not satisfied that this term is fairly described or delineated and is bound to be confusing to an employee of any origin.

I recommend that the claimant addresses her claim through the company grievance procedure in the first instance in accordance with the rules of engagement outlined therein. In the event that progress is not achieved, she may return her claim to the WRC within a three month period. I note that the grievance procedure may need to be amended to incorporate that pathway. I recommend that the respondent accommodates this suggestion.

3 Employment Equality Claim CA-00005771-003

The complainant submitted that she was a Turkish national in an employment of many nationals .She was denied a salary increase and this was also applied to other Turkish workers .The complainant contended that she was discriminated against on grounds of race and victimised . The complainant submitted the name of a Greek colleague named Ms C who received a €38,000 salary as opposed to the complainant’s €34,000 salary.

I have listened to and considered both parties’ submissions in this case .I am mindful at the potential for overlap in parallel proceedings with the IR claim and I confine my decision in this case to the facts as submitted in relation to the claim for discriminatory treatment on grounds of race as no complaint was submitted on victimisation.

I have inserted a definition of Discrimination as set down in the Employment Equality Acts 1998-

Discrimination for the purposes of this Act.

6

6. — (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

( a ) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘ discriminatory grounds ’ ) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

I have investigated the complaint to ascertain whether the complainant was treated less favourably by the respondent on grounds of race.

The complainant submitted a number of documents which pointed to her being a high performing employee during the life time of the claim. This was not disputed by the respondent. She also submitted that there were underlying issues raised by her colleagues on the criteria to be relied on for performance management .It is clear to me that the complainant held a strong view that her Turkish nationality precluded her access to a pay rise and her reliance on the comparator of Ms C required further scrutiny.

The complainant operated as an Independent contractor for a period 8 months prior to becoming an employee in March 2015. She transferred on her existing salary and the respondent began to apply statutory deductions on tax, prsi, usc from her salary .She anticipated an annual pay review accompanied by an upward alignment of salary as an employee and sought to action that clause of her contract in March 2016. It was clear to me that the complainant genuinely believed that her pay would raise in accordance with her high performance on the project based at an associate employer site. The situation was complicated by evidence of a hybrid workforce in terms of contractors and employees and the further division of the work force into teams based on nationality. The complainant contended that she was treated unfavourably on race grounds.

The respondent disputed this and engaged with the submitted comparator of Ms C stating that the salary of €38,000 was in Ms Cs contract for service as an independent contractor and she held this salary without increase. The respondent went on to point out that no one on the Turkish Team had a salary increase from early 2015 unless through promotion .

Section 85A of the Act 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.

I find that the complainant was earnestly seeking a pay increase in March 2016.She sought a rationale for her exclusion from this process and did not feel comfortable in attending the May 20^th meeting at the Operational HQ of the respondent to advance her claim (This is incorporated in the IR aspect of the case above)

I note that both Ms C and the complainant converted to permanent employee status from the baseline salary they held as an Independent contractor .I note that Ms C had longer service with the respondent as a contractor since 2012 and had a higher per diem payment. No evidence was placed before me on whether this issue of wage differential was raised when both colleagues were independent contractors.

I note that the respondent stated that neither Ms C or any colleague on the Turkish Team received pay increases since early 2015.I accept that the complainant spent 21 months on the same salary prior to lodging her pay claim . The complainant asked me to consider that other teams had received pay increases in the identical time line to this claim but I have not received tangible evidence of this. The respondent stated that the vast majority of the complainant’s grade was employed on €34,000 per annum and there were no sanctioned pay increases over the 6 month period before the hearing date in November, 2016. I am struck by the mixed message contained in the witness statement of Ms T a colleague on the team

“ …. The complainant raised her concerns regarding both the fact that she received no reply (to pay claim) and the fact that there is a lack of a salary review process. Mr VM replied to the complainant that based on her excellent performance he sees no reason why her pay rise request would be denied”

The statement went on to state that she, herself had also been denied a pay increase. The witness was not in attendance at the hearing and I accept that the statement has limited probative value as this could not be tested by the respondent. I have commented on it as it displays some inconsistencies that point to some inequity and unfairness, however, this is a claim for discriminatory treatment on race grounds.

I find that the complainant has not established a sufficient connection between the refusal to grant her a pay rise and her race in order to raise an inference of discrimination .I have completed my investigation and find against the complainant .

Patsy Doyle, Adjudicator. 

Dated:   22 March 2017