ADJ-00012851

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00012851

Parties:

Complaints:

Date of Adjudication Hearing: 28/08/2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, andfollowing 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.

BACKGROUND.

The Complainant has been employed with the Respondent from 18th September 2008. She is paid £40,000.00 per annum and also Commission and a Bonus. The Complainant referred complaints to the Workplace Relations Commission on 24th January 2018 alleging the Respondent had breached Section 3 of the Terms of Employment (Information) Act, 1994 – a complaint under the Organisation of Working Time Act, 1997 - a complaint under the Employment Equality Act, 1977 that she had been discriminated against on the grounds of her Gender and a dispute under the Industrial Relations Act, 1969. The Complainant referred a further complaint to the WRC on 25th April 2018 alleging she had been discriminated against by the Respondent on the basis of her Gender, Civil Status and her Family Status and that she had been victimised.

The dispute under the Industrial Relations Act, 1969 was withdrawn at the Hearing – CA-00017171-003.

Summary of Complainants Position. – Complaints submitted on 24th January 2018.

Terms of Employment (Information) Act, 1994. The Complainant stated that she had been issued with a written statement of her Terms and Conditions of Employment in 2012 but that this statement does not comply with Section 3 of the Act in that S.I. 49/1998 is missing from the statement as is a reference to the National Minimum Wage.

Organisation of Working Time Act, 1997. The Complainant stated that the Respondent has breached Section 12 of the Act in that she is not afforded breaks after working 4.5 hours in the period from 25th July 2017 to 24th January 2018.

Employment Equality Act, 1977. The Complainant stated that she commences her working day usually at 8am by driving to her destination. She has a 15 minute coffee break in the morning and a 45 minute break for lunch around 1pm. In October 2016 some of her accounts were taken from her and given to another named male employee and her accounts reduced from 180 to 130 when another group of accounts were taken and given to another male employee, named. No accounts were given to her to replace this loss. On 4th January 2018 she was informed by the named Managing Director that her job was at risk if she did not meet her targets. In November 2017 she had a meeting at which she was informed to think of a reasonable target but in January 2018 the MD did not want to know but expected her to meet the same targets as all other employees. In January 2018 she had 30 Clients added bringing her total to 160.

The evidence was the Complainant served a EE.2 Form on the Respondent on 24th January 2018.

SUMMARY OF RESPONDENT’S POSITION. Complaints lodged with the WRC on 24th January 2018.

Terms of Employment (Information) Act, 1994. The Respondent provided a copy of the written statement issued to the Complainant and signed and dated by both Parties on 19th August 2012. The Respondent confirmed there is no reference to the National Minimum Wage as provided for at Section 3(ga) of the Act and SI 49/1998

Organisation of Working Time Act, 1997. The Respondent stated the Complainant has a list of clients/customers which she visits and she is assigned to such clients in Donegal, Kerry, Cork and Galway. The Complainant is not required to clock in or out and the Respondent has no control over the time the Complainant decides to commence and finish on any particular day. The Complainant does her own scheduling of clients to visit and when she does this. Her Contract of August 2012 is clear that she works a total of 37.5 hours a week and that she must take a 60 minute break when she has worked 6 hours or more. The Complainant has never made a complaint that she is unable to take breaks and in her complaint she confirms that she does take a break when she arrives at her destination and that she also takes a lunch break.

Employment Equality Act, 1998. The Complainant has not satisfied the burden of proof in relation to this complaint. In her complaint form states she has been discriminated against by the Respondent on grounds of her Gender in getting a job. However she has not specified in her Complaint Form or at the Hearing what job she did not get.

Findings and Conclusions. Complaints of 24th January 2018.

Terms of Employment (Information) Act, 1994.CA-00017171-001. On the basis of the evidence I find this complaint is well founded. I direct the Respondent to issue the Complainant with an amended written statement to comply with Section 3 of the Act.

DECISION – CA-00017171-001. In accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is well founded. I direct the Respondent to issue the Complainant with a revised Contract of Employment within 42 days of the date of this Decision.

Organisation of Working Time Act, 1997.CA-00017171-002. On the basis of the evidence from the Parties in which it was confirmed the Complainant is required to travel from her home to clients in Galway, Donegal Cork and Kerry, it is clear that S.I. 44 of 1998 applies to the Complainant. Annex – General Exemptions at Section 1 which provides as follows – “….persons employed in the following activities shall be exempt from the application of ss. 11, 12 and 13 of the Act…..(1) An activity in which the employee is regularly required by the Employer to travel distances of significant length, either from his or her home to the workplace or from one workplace to another workplace”. This also provides for compensatory rest periods and the Complainant confirmed both verbally and in her complaint form that she does take breaks .

DECISION.- CA-00017171-002. In accordance with Section 41(5) of the Workplace Relations Act, 2015 and on the basis of my findings above I declare this complaint is not well founded.

Employment Equality Act, 1998. CA-00017171-003. On the basis of the evidence I find the Complainant has not met the Burden of Proof as is required by Section 85A of the Act. The Complainant’s complaint was that she was discriminated against on the basis of her gender and in not getting a job. She also made generalised statements concerning the movement of accounts from her to other named males in the Sales Team which she alleged resulted in a drop in her Commission. The Respondent provided the following statistics to the Hearing. There are 10 employees in the Sales Team, 5 female and 5 male. Of these, seven employees had a reduction in their Commission in Quarter September 2016 and Quarter Dec 2016. Seven employees had a reduction in their Commission with two females having a reduction of 34% and 19% respectfully and one male having a reduction of 20%. The Complainant had a reduction in her Commission of 19% while two males and one female had a reduction of 15%, 12% and 4% while one female had an increase in commission of 4% and two males had an increase of 4% and 7% in their Commission.

Section 85A(1) of the Act provides as follows: “Where in any proceedings facts are established by or on behalf of a complaint from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary”. The Labour Court has ruled on this issue in a number of cases. In Southern Health Board v Mitchell DEE 1/2001 the Court considered the extent of the evidential burden which a Complainant must discharge before a prima facie case of discrimination can be established. The Court held “The first requirement is that the Claimant must establish facts from which it may be presumed that the principal of equal treatment has not been applied to them. This indicates that a Claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. 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 is no infringement of the principle of equal treatment”.

The Labour Court in ADE/12/30 UCD –and- Dr Eleanor O’Higgins held as follows: -

• It is for the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination 2. If the Complainant discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for. 3. It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts. 4. In cases concerning the filling of a post it is not the role of the Court to substitute its views on the merits of candidates for those of the designated decision makers. Its only role is to ensure that the selection process is not tainted by unlawful discrimination. 5. The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result. 6 A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination. 7 Where a prima facie case of discrimination is made out and where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out. 8 The Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.

This Decision of the Labour Court was appealed to the High Court who in a Decision delivered on 8th November 2013 O Higgins- and The Labour Court and University College Cork, which disallowed the appeal.

DECISION – CA-00017171-003. In accordance with Section 79 of the Act and on the basis of my findings above I find that the Complainant has not satisfied the Burden of Proof as is required by Section 85A of the Act I declare the complaint is not well founded

Summary of Complainant’s Position – Complaint of 25th April 2018, -Employment Equality Act, 1977.

The Complainant is alleging she was discriminated against by the Respondent on the grounds of her Gender, Civil Status and Family Status in relation to her Conditions of Employment and in Victimising her.

Gender Discrimination. The Complainant stated that the facts of discrimination on the basis of her gender are the same as those outlined in the complaint lodged with the WRC on 24th January 2018 and set out above.

Discrimination on the grounds of Civil Status. The Complainant stated that she is female, married with children. She named her comparator as a male who is also married with children. She stated that the Respondent did not take her situation into account in allocating her to clients in Donegal, Cork, Kerry and Galway.

Discrimination on the grounds of Family Status. The Complainant stated that she had a number of accounts in Kerry and Cork and are very far away from where she lives in Galway. She stated it was a waste of her time as these accounts are part of a buying group that are looked after by another named employee, male with children. She stated she has to cover from Donegal to Kerry and is supposed to visit every four weeks, involving her having to stay over in Donegal, Cork and Kerry each month. She stated she has two children, ages 7 and 4. None of the four male representatives, named, have to do stay overs. She stated that when she complained the buying groups were moved from her and she stated she believed she has been treated this way for lodging a claim on 24th January 2018

Victimisation. The Complainant stated that she had lodged a complaint with the WRC on 24th January 2018. On 4th January 2018 she had 30 clients in Cork, Kerry and 2 in Tipperary which were moved to her and that she had to stay over to visit these clients. She stated that the majority of these are buying groups that are looked after by a named male employee and that these should have been moved back to him She stated that she was victimised as her clients in Donegal and Kerry were left with her which necessitated considerable travel to these counties, which necessitated a stay over. The Complainant stated that she had some 9/10 stopovers. She stated that she has two children age 7 and 4 and that none of the named male comparators have to do stayovers. She stated that when she complained the buying groups were moved back to the Sales Representatives for these areas. She states that she was treated this way for lodging her complaint on 24th January 2018 to the WRC.

 Summary of Respondent’s Position – Complaint of 25th April 2018 – Employment Equality Act, 1998

The Respondent provided evidence to the Hearing in relation to all the employees named in the complaint. There are 10 employees, 5 male and 5 female. All are provided with Petrol Cards and they are required to claim Subsistence each month. They provided the following information of Kilometres covered by the Complainant and the four named comparators. –

                                                2015                       2016                       2017                       2018 to July

Complainant                      49,032                   48,176                   48,500                   27,538

Comparator 1                     32,576                   42,100                   47,559                   27,843

Comparator 2                     26,636                   57,433                   54,265                   29,796

Comparator 3                     57,176                   53,301                   54,737                   31,073

Comparator 4                     47,879                   54,989                   54,220                   32,805. 

The Complainant had 2 overnight stays in 2016 – 3 in 2017 and 5 in 2018. These were in the Donegal Client area. She had no stayovers for Cork and Kerry

Comparator No 4 had 1 overnight in 2016 – 3 in 2017 and 3 in 2018.

Comparator No 2 had I overnight in 2018

There were no records provided for the other Male Comparators or indeed the other female comparators.

The Complainant lived in Galway and covered Donegal, Galway, Cork and Kerry

Comparator No 1 lives in Dublin and has the Buying groups in Dublin as well as Westmeath and Offaly

Comparator No 2 lives in Wicklow and covers Wexford, Louth, Dublin, Carlow, Waterford, Tipperary, Wicklow and Kildare

Comparator No 3 lives in Dublin and was appointed Territory Manager in 2018 for Limerick, Cork and Kerry and lives in Dublin

Comparator No 4 lives in Castlebellingham and covers Louth, Monaghan, Dublin, Cavan and Longford

The Respondent also did a comparative change of Commission earned by all 10 Employees. This shows that 4 of the 5 females had a reduction in their Commission between 12% to 34% while 3 of the male employees had a Commission reduction of 4% to 20%. This also shows that one female employee had an increase in Commission of 4% while two males had an increase of 4% and 7%.

The Respondent stated that there was no evidence presented by the Complainant to the Hearing of how she had suffered discrimination on the basis of her Gender, civil status or how she had been victimised by the Respondent.

FINDINGS AND CONCLUSIONS.

Gender Discrimination. Complaint of 25th April 2018 CA-00018846-001

On the basis of the evidence I find the Complainant has not met the Burden of Proof as is required by Section 85A of the Act. The Complainant’s complaint was that she was discriminated against on the basis of her gender and in not getting a job. She also made generalised statements concerning the movement of accounts from her to other named males in the Sales Team which she alleged resulted in a drop in her Commission. The Respondent provided the following statistics to the Hearing. There are 10 employees in the Sales Team, 5 female and 5 male. Of these seven employees had a reduction in their Commission in Quarter September 2016 and Quarter Dec 2016. Seven employees had a reduction in their Commission with two females having a reduction of 34% and 19% respectfully and one male having a reduction of 20%. The Complainant had a reduction in her Commission of 19% while two males and one female had a reduction of 15%, 12% and 4% while one female had an increase in commission of 4% and two males had an increase of 4% and 7% in their Commission.

Section 85A(1) of the Act provides as follows: “Where in any proceedings facts are established by or on behalf of a complaint from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary”. The Labour Court has ruled on this issue in a number of cases. In Southern Health Board v Mitchell DEE 1/2001 the Court considered the extent of the evidential burden which a Complainant must discharge before a prima facie case of discrimination can be established. The Court held “The first requirement is that the Claimant must establish facts from which it may be presumed that the principal of equal treatment has not been applied to them. This indicates that a Claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. 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 is no infringement of the principle of equal treatment”.

The Labour Court in ADE/12/30 UCD –and- Dr Eleanor O’Higgins held as follows: -

• It is for the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination 2. If the Complainant discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for. 3. It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts. 4. In cases concerning the filling of a post it is not the role of the Court to substitute its views on the merits of candidates for those of the designated decision makers. Its only role is to ensure that the selection process is not tainted by unlawful discrimination. 5. The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result. 6 A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination. 7 Where a prima facie case of discrimination is made out and where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out. 8 The Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.

This Decision of the Labour Court was appealed to the High Court who in a Decision delivered on 8th November 2013 O Higgins- and The Labour Court and University College Cork, which disallowed the appeal.

DECISION –Complaint of 25th April 2018. CA-000188465-001. On the basis of the evidence my findings above and in accordance with Section 79 of the Act .I find that the Complainant has not satisfied the Burden of Proof as is required by Section 85A of the Act. I declare this complaint is not well founded

Ground of Civil Status. Complaint of 25th April 2018 – CA-00018846-002

Section 2(1`) of the Act defines “Civil Status” as follows – “means being single, married, separated, divorced, widowed, in a civil partnership within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or being a former partner in a civil partnership that has ended by death or being dissolved”.

Section 6(1) of the Act provides as follows – “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”….

Section 6(2) provides as follows – “ As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are- (b) that they are of a different civil status (in this Act referred to as the civil status ground”.

There was no evidence presented to me at the Hearing of a named comparator who had a different civil status to the Complainant. Section 85A(1) of the Act provides as follows: “Where in any proceedings facts are established by or on behalf of a complaint from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary”. The Labour Court has ruled on this issue in a number of cases. In Southern Health Board v Mitchell DEE 1/2001 the Court considered the extent of the evidential burden which a Complainant must discharge before a prima facie case of discrimination can be established. The Court held “The first requirement is that the Claimant must establish facts from which it may be presumed that the principal of equal treatment has not been applied to them. This indicates that a Claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. 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 is no infringement of the principle of equal treatment”.

Decision. Complaint of 25th April 2018. CA-00018846-002

On the basis of the evidence, my findings above and in accordance with Section 79 of the Act I find the Complainant has not met the burden of proof that she was discriminated against on the civil status ground. I declare the Complaint is not well founded.

Discrimination on the grounds of Family Status. Complaint of 25th April 2018 – CA-00018846-00

Section 2 of the Act defines “Family Status” as follows – “means responsibility – (a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years”.

Discrimination for the purposes of the Act is set out at Section 6 of the Act as follows – (1) For the purposes of this Act….discrimination shall be taken to occur where (2)(c) that one has family status and the other does not (in this Act referred to as the family status ground”. The Complainant named the Comparator as (named) who is married with children.

There was no evidence presented to me at the Hearing of a named comparator who had a different family status to the Complainant. Section 85A(1) of the Act provides as follows: “Where in any proceedings facts are established by or on behalf of a complaint from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary”. The Labour Court has ruled on this issue in a number of cases. In Southern Health Board v Mitchell DEE 1/2001 the Court considered the extent of the evidential burden which a Complainant must discharge before a prima facie case of discrimination can be established. The Court held “The first requirement is that the Claimant must establish facts from which it may be presumed that the principal of equal treatment has not been applied to them. This indicates that a Claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. 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 is no infringement of the principle of equal treatment”.

DECISION – Complaint of 25th April 2018 – CA-00018846-00

On the basis of the evidence, my findings above and in accordance with Section 79 of the Act I find the Complainant has not met the burden of proof that she was discriminated against on the family status ground. I declare the Complaint is not well founded.

Victimisation. – Complaint of 25th April 2018 CA-00018846-00

Section 74 – Interpretation defines victimisation as follows – “victimisation shall be construed in accordance with subsection (2).

Section 74(2) provides as follows – “For the purposes of this part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to – (a) a complaint of discrimination made by the employee to The employer. (b) any proceedings by a complainant.”

The Complainant in her evidence to the Hearing stated that she had been victimised on 4th January 2018 when 30 Clients in Cork, Kerry and two in Tipperary were assigned to her. The evidence was that the Complainant had made a complaint of gender discrimination to the WRC on 24th January 2018. Therefore on the Complainant’s own evidence she was victimised before she had made a complaint to the WRC on 24th January 2018. The alleged victimisation took place on 4th January 2018.

Section 85A(1) of the Act provides as follows: “Where in any proceedings facts are established by or on behalf of a complaint from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary”. The Labour Court has ruled on this issue in a number of cases. In Southern Health Board v Mitchell DEE 1/2001 the Court considered the extent of the evidential burden which a Complainant must discharge before a prima facie case of discrimination can be established. The Court held “The first requirement is that the Claimant must establish facts from which it may be presumed that the principal of equal treatment has not been applied to them. This indicates that a Claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. 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 is no infringement of the principle of equal treatment”.

DECISION. Complaint of 25th April 2018 – CA-00018846 -00

On the basis of the evidence, my findings above and in accordance with Section 79 of the Act I declare this complaint is not well founded. I find the Complainant has not met the burden of proof that she was victimised by the Respondent after she had made a complaint to the WRC on 24th January 2018 .

Dated:   January 17th 2019

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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