Complainant

Respondent

Anonymised Parties

A Department Manager

A Large Department Store

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00026089-001

07/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00026089-002

07/02/2019

The Complainant submitted two complaints before the WRC dated 7 February 2019.

1.That he had been discriminated on age grounds, during his application to extend employment beyond age 60.

2.That he had been denied an annual salary raise.

The Complainant had also submitted a complaint under the Industrial Act which was subsequently objected to by the Respondent in the case.

There were some administrative difficulties in this claim regarding identification of the correct address for the Respondent.

In preparation for the hearing, I requested a written submission from the Complainants Representative and this was received on 21 June 2019 and duly copied to the Respondent. The Respondent submitted a responding submission on June 24, the day before the hearing.

Both parties were represented in the case, the complainant by his Solicitor, Terence O Sullivan and the Respondent by Counsel Marcus Dowling, B.L.

The Complainant has worked as a Manager with the Respondent since March 2007.He had worked in several stores, having last relocated in March 2018 and February 2019.

CA-00026089-001 Employment Equality

On 7 February 2019 the complainant filed a complaint before the WRC that he had been discriminated against on age grounds and unlawfully discriminated against in conditions of employment.

He submitted that he would be 60 in April 2019 and was compelled to retire at that age .He had made two applications to extend his employment and the Respondent “ has failed , refused and neglected to grant me my extension” He asserted that the denial of contract extension, available to other employees was denied to him as part of a bullying and harassment from his Manager .

By way of written submission dated June 21, the Complainants Solicitor intimated that the Equality issue had been “somewhat addressed by the Respondent after the filing of the complaint “

On the day of hearing, The Complainants Solicitor outlined the background to the case. The Complainant had experienced inter personal difficulties following his transfer in March 2018. He had sought, with the support of representation to address these by seeking lodging a formal complaint of bullying and  a relocation. The Complainant had also considered seeking to extend his tenure post age 60 retirement and was aware of the practice of seeking application by letter in advance.

The Complainant submitted his application on 20 August and was concerned when he failed to receive a response. In January 2019, the Store manager explained that the process “takes a while “and suggested that he re-do the letter and pass it to her. He filed his second application on 16 January 2019.

The Complainant confirmed that he had been offered his requested transfer and his extension post age 60 on 6 February 2019 and he accepted both offers by text at 4pm on the following Friday.

The Complainant confirmed that he was not refused an extension post aged 60, but he had been troubled by the delay in receiving a response.

The Complainants Representative submitted that the circumstances of the application should be considered in the context of the claim for discrimination on age grounds.

CA -00026089-002 Payment of Wages Claim

The Complainants representative submitted that he had been wrongly denied his habitual annual salary raise for 2018. He contended that he had been denied his salary increase because of bullying at the hands of his Manager.

He went on to outline that the complainant had commenced working in a new store in March 2018. Thereafter, he experienced bullying behaviour from a Manager. He sought a transfer from the store. He commenced on sick leave during summer 2018. He sought representation and lodged a complaint of bullying in July 2018. He returned to work in July 2018. The Complainant experienced on going inter personal   and operational difficulties with his manager. On 24 November 2018, he was informed that his complaint had not been upheld.

The Complainant also had several unsatisfactory conversations with his area manager, Mr A the Complainants representative outlined that for 12 years the complainant had received salary increases on an annual basis. The Complainant was refused his increase in December 2018, while his Manager colleagues received theirs.

There was no performance review or Disciplinary process grounding this exclusion. There was no provision for appeal. The 2.5% -3% salary increase was now lost to him as a “life forfeiture” He had anticipate receiving €820.00 as a 2% value increase.

The Complainant told the hearing that the Grocery Manager had informed him that his name was not on the list of salary increase recipients and he couldn’t get an answer on why he had been omitted. He understood that he had failed to progress on salary due to the unfavourable account of his performance given by his line manager.

The Complainant sought an order of payment for this salary increase.

The Respondent runs a large group of Department Stores.

CA-00026089-001 Employment Equality

Counsel for the Respondent denied any allegation discrimination on age grounds or in relation to conditions of employment. He outlined that the Company considers applications for extended working post retirement age of 60 with the assistance of the Code of Practice on Longer Working, SI 600/2017. He confirmed that the complainant’s initial application of 20 August had been misdirected. The Company had acceded to his request following reception of the application dated 16 January 2019. He was granted another year.

Counsel denied that the complainant had been discriminated against and concluded that the claim was moot.

CA-00026089-002 Payment of Wages Claim

The Respondent representative outlined the law under Section 5 of the Act. The Respondent denied that the salary increase was properly payable and went further in stating; “ To succeed in his claim that there was an unlawful deduction from salary, the complainant must prove that the increased salary to which he asserts an entitlement was “properly payable” to him. To do so, he must prove that he had a legal entitlement to same “

The Respondent argued that the complainant had no contractual entitlement to an annual salary increase in 2019.

The Respondent submitted that the Complainant had not disclosed a cause of action under the Payment of Wages Act, 1991 and the Respondent had no case to answer.

The Respondent submitted that salary increase had not materialised over the years 2009-2014. The Complainant had received the following payments during the month of February which were back dated.

2014 €250

2015 €2000

2016 €500

2017 €1185

These amounts were paid at the absolute discretion of the employer and were non-contractual. The Respondent representative argued that a subjective view of performance could not, therefore be elevated into a contractual entitlement. There had been no agreement on the payment of this amount. He explained the process of how these sums emerged through a Meridian process.

In relying on Dunnes Stores (Cornels court) ltd and M lacey and N O Brien at the High Court in [2005] IEHC 417, Counsel re-affirmed that the discretionary payment had not been underpinned by agreement. There was no binding contractual entitlement.

The Respondent also made also reference to relevance of Cleary and Ors and B and Q Ireland ltd [2016] ELR 121, in the case.

Mr A, Area Manager:

Mr A for the Respondent works as Area Manager, he had been engaged in the formulation of salary increases for 19 years. He confirmed that more people than not received these increases which ranged from 1% to 4%. No Appeal existed for non-inclusion. The criteria applied centred on the performance of the store and performance of the individual with regional input submitted to Head Quarters, who were the ultimate decision maker.

Different stores received different salary increases.

Mr A confirmed that he was aware that the complainant had specific operational performance issues, these centred on his initiative in his role. He was also aware of the complainant’s interpersonal difficulties with his manager.

During cross examination, he confirmed that the complainant had not been participant in any performance improvement plan or disciplinary procedure. Based on the feedback of two managers, he had not recommended an increase for the complainant.

He confirmed that the complainants base store at that time was doing well and he had based his evaluation on regular store visits, store standards and individual performance. There was no formal process of decision or communication. He recalled that he had omitted the complainant from the list in the past.

Mr A confirmed that the complainant had not received prior notification of his omission from the list and he was not afforded an appeal.

The Respondent representative closed by submitting that the complainant’s performance negated the good faith principle associated with the discretion surrounding the salary review.

CA-00026089-001 Employment Equality

I have considered the claim of discrimination on age grounds and in relation to conditions of employment. I note that the complainant experienced some interpersonal difficulties on his transfer to a certain store in March 2018. I understand a period of sick leave followed this transfer.

The Complainant raised a complaint of bullying and harassment in July 2018. Shortly after this he first raised the prospect of seeking an extension of his tenure post 60 years of age. I appreciate that some administrative delays followed this application which seem to have been rectified by February 6, 2019.

The Complainants Manager re-submitted his request in mid-January 2019, which was acceded to. In the complainant’s own words, he was not refused an extension to his contract of employment. He was instead troubled by the delay in processing his request. I have been asked to consider the circumstances around this application in terms of alleged discrimination.

I did not hear evidence on a Comparator in the case.

It may be of benefit at this point for me to reflect on the definition of discrimination under the Act.

 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 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,

(b) a person who is associated with another person —

(I) is treated, by that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by paragraph (a), constitute discrimination.

Section 8 prohibits discrimination in an employment setting.

I accept that the Complainant was actively engaged in a parallel employment issue during the same period pertinent to the instant complaint. It was clear to me from the submissions made on his behalf that this was a very difficult period for him.

However, I am bound to investigate whether the Complainant was discriminated against on grounds of his age as described in Section 6 above.

It was regrettable that the first application seems to have been mislaid during 2018. I note that the 20 August application was sent by way of a Generic heading, rather than a named contact. It is of note that the Complainants local line manager subsequently assisted in ensuring that the second application reached the desired decision maker.

In engaging at hearing, the complainant understood that he had been offered his desired transfer and his desired extension of tenure during February 6, 2019.

I accept the Respondent submission that the Company followed the recommendations on managing applications for longer working set down in SI 600/2017. He was not refused an extension of tenure.

For my part, I have found that the complainant got a little lost in the multiplicity of activities surrounding his work from July 2018 onwards. It may have been of benefit to have raised a grievance in respect of the first application which was deemed “misdirected “by the Respondent.

This may have allowed the request for an extension of tenure to be viewed as a stand-alone issue rather than getting caught up in the complainant’s perception of the live antecedent events of July 2018.

I find that the complainant was offered an extension of his tenure by means of a 1-year contract in advance of his making his complaint to the WRC at 08.25hrs on 7 February 2019. On that basis, I have determined that his complaint is misconceived.

Dismissal of claim.

77A

77A. — (1) The Director General of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

(2) (a) Not later than 42 days after the Director General of the Workplace Relations Commission dismisses a claim under this section, the complainant may appeal against the decision to the Labour Court on notice to the Director General of the Workplace Relations Commission specifying the grounds of the appeal.

(b) On the appeal the Labour Court may affirm or quash the decision.

I dismiss this complaint.

CA-000026089-002 Payment of Wages Claim

I have carefully considered both parties submissions, both oral and written in this case. I have also considered the case law referenced by the Respondent.

Once again, I see that 2018 seemed a challenging year for the complainant and losing out on an anticipated salary increase came as a further disappointment to him.

However, I am obliged to consider this complaint in accordance with Section 5 of the Act and to decide whether the failure to secure the salary increase amounted to a deduction in wages through the “properly payable “prism outlined in Section 5(6).

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

It has been important for me to reflect on the nature of the salary increase, to the facts of the case. As I understand it, the payment amounts to an annual salary increase, both variable and variant in nature, but which if secured, is added to the base salary. I found a worrying lack of transparency surrounding the calculation of this payment. The Respondent submitted that the respondent practiced a discretion in the application of this award, which in my opinion differs from a loyalty bonus, such as outlined in the facts of the Labour Court Case of Bord Gais Energy Ltd V Niall Thomas PWD 1729, where both parties to the case accepted service criteria governed payment. In the instant case, the parties were not at one with the prevailing circumstances for payment of the annual salary increase. I could not establish the presence of printed scheme rules. I have, therefore relied on the evidence of Mr A.

I did not have the benefit of a contract of employment or any collective agreement on the matter. While the type of payment seems to match the term, increment referenced in Lacey and O Brien, it is not a long service agreement and is not showcased or set out in written form in either party’s documents. I appreciate that the complainant in this case works as a Manager and is not a party to a Union agreement on salary increases.

Non the less, I accept that the payment is incorporated in the Section 1 definition of wages. The Complainant submits that the award is properly payable, and the Respondent has hotly disputed this by stating that operational performance and not his complaint of bullying served as a real and objective justification from his omission from the list of secured payments, which was not universal.

I have taken some guidance from the seminal case on what constitutes a properly payable wage payment in Sullivan V Department of Education [1989]9 ELR 217

We consider the word ‘payable’ to be significant. Whereas Mr O'Ruairc contended that there is no deduction where an employee continues to receive the same amount (and the same composition) of wages from the outset, the Tribunal considers that if an employee does not receive what is properly payable to him or her from the outset then this can amount to a deduction within the meaning of the 1991 Act. We take ‘payable’ to mean properly payable. The definition of ‘wages’ goes on to give examples of types of payments which can amount to ‘wages’ and states that the payments can amount to wages ‘whether payable under [his] contract of employment or otherwise ….’ Although in our view it is not simply a matter of what may have been agreed or arranged or indeed paid from the outset but, in the view of the Tribunal, all sums to which an employee is properly entitled.

An employee may not be aware of his or her full entitlements and an employer may have a greater awareness of the employees entitlements in terms of pay etc. and it would be highly unjust for an employee to lose a claim under the Payment of Wages Act 1991 for an unlawful deduction simply because an employer, being aware of the employee's proper entitlement, chose, unknown to the employee, to pay less than that from the outset.

The question for me then is whether the salary increase constituted a proper entitlement for the complainant to secure a successful application of Section 5(6) of the Act. I have established that this payment had not followed the complainant perennially during his working life. There were some years that the company did not apply it corporately and other years where the complainant’s manager did not recommend it. I note that the complainant did not raise a grievance in pursuit of the payment prior to referral to the WRC. He approached the case believing that he had been punished for raising a complaint of bullying. I cannot say that the annual payment was covered by the custom and practice provision outlined in O Reilly V Irish Press , [1937] 71 ILTR 194 . The amounts were not paid sequentially an they were variable and variant in nature .

I did identify that the Area Manager had some operational concerns regarding the complainant which were separate to this. For my part, I found that there was a complete vacuum of communication surrounding this payment. For such a large corporate expenditure, I would have expected to see proper protocols in place. The Complainant has projected a €820     amount was payable, but this has not been elaborated on or compared to other payments.

In Lacey and O Brien, Justice Finnegan in the High Court commented in Paragraph 3

3. Historically service pay has been a feature of wage scales for the Appellant’s employees. The first named Respondent at the time of the application to the Rights Commissioner was entitled to service pay of €3.81 per week and the second named Respondent €3.17 per week. Relevant employees with over five years’ service were entitled to receive between 50 cent and €3.50 per week payment being by way of staged increases up to 30 years’ service. In relation to Dublin based employees the payment was made pursuant to a Registered Employment Agreement, but similar terms were applied to employees outside Dublin. In 1999 MANDATE the Respondent’s trade union sought the introduction of a long service increment for its members. The Appellant refused, and the matter was referred to the Labour Relations Commission, but no agreement was reached there. The dispute was then referred to the Labour Court pursuant to the Industrial Relations Act 1990 section 26(1). In its recommendation dated 26th October 2001 the Labour Court recommended that a long service increment of £7.83 per hour (sic) effective from the date of the recommendation be introduced at ten years’ service. I assume that this should correctly refer to €7.83 per week but that is irrelevant to the issue I must decide. Such a recommendation is not of binding effect. The Appellant issued a memorandum dated the 18th September 2002 designed to give effect to the Labour Court recommendation as understood by the Appellant. This provides as follows –

“Long Service Increment to Existing Staff with more than Ten Years’ Service 4. In addition, long service increment of 0.23c per hour will be paid to all sales assistants with more than ten years’ service. This payment will not apply to canteen, cleaning, security or timepiece. This payment will be backdated to October 26th, 2001. Therefore, sales assistants with more than ten years’ service will be paid €10.47 per hour.

5. The old system of weekly service pay for full-timers is now being abolished for all staff with more than ten years’ service as of October 26th, 2001. Any service pays received by full-timers in the interim will be set against the back pay for the new service rates by the Wages Department. Again, this payment will be made directly into staff bank accounts this Friday.

6. However full-timers with between five- and ten-years’ service will continue to receive their weekly service pay until they reach ten years’ service when this will be replaced by the hourly payment. Therefore, on an ongoing basis staff who have over five years’ service will continue to receive weekly service pay until they have reached ten years’ service when their weekly pay will be replaced by hourly service pay.”

7. The effect of the memo is that staff with less than ten years’ service continue to receive service pay. Staff with ten years’ service no longer receive service pay but receive a higher sum described as a long service increment.

Ultimately, he held that no deduction in pay had occurred but rather pay had been unilaterally increased.

At the centre of this case is the deliberative process surrounding the discretionary payment of an annual pay increase. This discretion must be seen to have been applied fairly and exercised reasonably as outlined in B and Q. This case centred on the application of a discretionary bonus, earned in accordance with the “terms of the scheme as operated”. A recommendation for payment was made retrospectively rather than prospectively.

I listened very carefully to Mr as evidence where he outlined the 3 criteria which fed into the submission for payment of an annual award, which was then ultimately endorsed by the corporate headquarters. I noted that he confirmed that the store had done well that year. That, for me is a tangible fact, while not as material as the allowance in Sullivan, it serves, in the absence of scheme rules, as a tangible criterion on which the payment was made.

In a recent labour Court case of Boston Scientific and Trevor Cotter, PWD 1919, the Court held that the exercise of discretion now of payment had not been exercised unfairly, unreasonably or capriciously.

I must agree with the Respondent, that I cannot look behind the performance of the complainant in the case. I can, however express my concern that the complainant was omitted from a direct conversation on this performance linked payment. It is important to reflect on the objective of the payment which I understand to be a reward for effective work. Everyone likes to be rewarded or at least given an opportunity to discuss the reward.

I have reflected on the Respondent evaluation that the complainants store performed to a satisfactory target. I have found that the complainant was therefore, unreasonably excluded from the application of the award in relation to overall store performance. I have not identified enough threads of communication which would justify his exclusion from this criterion.

I find that the complainant is entitled to succeed in his claim for a properly payable annual payment for his proximity to the successful store performance criteria during 2018. I find that he has earned this aspect of the award. B and Q applied.

I cannot make a reciprocal award for the other 2 criteria of individual store visits or individual performance as I cannot look behind the complainant’s performance. I did not detect that he was curtailed for having made a complaint of bullying. The Respondent held stated concerns on his individual performance.

I have found that the complaint is partly well founded.

CA-00026089-001 Employment Equality

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have found the claim was not well founded and I have dismissed it .

CA-00026089-002 Payment of Wages Claim

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

Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in accordance with Section 5 of the Act.

I have found the claim partly well founded. I order the Respondent to pay the complainant €300 as his annual salary increase for 2018. I have identifiable that this amount is properly payable in accordance with Section 5(6) of the Act and the non-payment constituted a deduction in pay.

Age Discrimination, Payment of Wages.