Complainant

Respondent

Anonymised Parties

Foreman

Respondent

Representatives

Appeared in Person

No Appearance by or on behalf of the Respondent

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00025507-002

03/02/2019

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

CA-00025507-003

03/02/2019

This claim was submitted by the Complainant a Polish National on 3 February 2019. He had worked as Foreman and Line Leader with the company since 7 August 2001. Gross Pay €641.69 weekly at the time of the complaint.

The Complainant, a lay litigant raised two complaints on Terms of Employment and Employment Equality. The Respondent, while notified of these complaints, did not file a defence, attend the arranged hearing, or send a representative on July 10, 2019. After the hearing, I needed further information to assist in my investigation under the Employment Equality Act. I wrote to the Company at the registered address within my powers permitted under Section 95 of the Act. I did not receive a response.

The Complainant has changed address, and this was submitted to WRC for information purposes and to ensure a correct contact for issuing of the decision in the case.

The Complainant has been a long-standing employee at the Respondent business since 2001. He became a Foreman in 2005. The Complainant has been on sick leave since 1 March 2019.The Complainant exhibited a contract for the role of Manufacturing Operator co-signed in August 2001

CA -00025507-002 Terms of employment

The Complainant submitted that he had not been notified in writing of a change in his terms of employment. He told the hearing, that he recommenced work post the Christmas break on January 7,2019. At 6.45 pm, he was requested by his Line Manager to attend the Canteen to meet with The Personnel Manager, Ms A.

He submitted that he had been handed a Post It by Ms A, which set out a wage decrease from €750.13 to €641.69 to take place in line with his demotion from Foreman to Line Leader the following Monday, 14 January. The Complainant exhibited a “expanded copy of the post it “

The Complainant stated that he had been informed by the Respondent that there was no need for a new contract when he moved to Foreman in 2005, as everything was on file.

Late in the evening of 9 January, 2019, the Complainant contested the impending pay cut and role revision in an email to Ms A. He stated that “ I am not happy to accept this demotion and do not believe it to be fair as I have been doing a good job and to the best of my knowledge there is not a problem with production or cash flow at the business . I hold the position of foreman since 2005 and wish to continue as foreman. “He did not receive a response and moved his complaint to the WRC.

The Complainant told the hearing that he had tried to resolve this conflict but had not been given a contract of employment for Foreman and had not been notified of any change in writing. He was also denied a copy of the grievance procedure the change was affected at the lower rate from the third week of January 2019. The Complainant explained that he felt abandoned by the Respondent and he had been very loyal during his employment.

On his complaint form, the complainant submitted that on his return from a period of sick leave in July 2018, he was relocated to a different production section and not called on to function as a Foreman, but he had retained the Foreman Pay. The Complainant submitted comparative pay slips for 14 December, 2018 and 18 January, 2019, which reflected that the revised wage structure had been executed.

CA -0002557-003 Employment Equality

The Complainant submitted that he had not receive equal pay with a named Irish employee and Foreman, Mr A. He submitted that this was directly attributed to his Polish nationality and he had been discriminated against.

He submitted that on 14 December, 2018, he had received a Christmas bonus at just half the Line Leaders rate. At that stage, he had no knowledge of his impending re-assignment from Foreman to Line Leader which followed in January 2019.   There had been a lull in payment of this bonus in 2016 and 2017.

The Complainant gave evidence that the bonus habitually took the form of cash and a voucher. He had no awareness of a Policy governing the practice, outside of knowing that the four foremen received a full payment in 2015 of €500 in voucher and €875 in a financial award whereas he received a €250 voucher and €312in a financial award in 2018.

The Complainant submitted that Mr A and he were paid at the same rate. He had not been provided with a job description. He had requested a copy of the grievance procedure and the staff handbook.

The Complainant described a workforce of 1300 employees, 100 of whom worked in the Depot. He stated that a lot of employees were leaving. There were no written rules governing the employment. He understood that if employees complained the Christmas bonus would be reduced. He could not secure a platform to discuss the reduction in payment of his bonus.

The Complainant went on to describe a series of interactions with a named Manager, Mr B. He had gone to his office to request some hours off in an earlier finish to support his wife when he was asked whether he intended to harm himself at work? This question had relevance as it appears that two workers had taken their own lives in August and September 2018 and the company had implemented measures to manage this risk. The Complainant denied being at risk himself.

The Complainant submitted that he was then informed if he couldn’t work 10 hr days he ought to go to Poland and was informed that he would have to work on Saturdays.

He told the hearing that he took time off the next day, unpaid to see a Solicitor who advised him to contact the Personnel Manager. He did this but did not receive a response.

He went on to describe the period 9 January -16 March 2019, where the Respondent asked him “when are you going to quit your job? “He was offered redundancy or demotion. He became very ill, stressed by traumatic events at work. He was aware that 20-30 people had quit their jobs at the factory.

He believes that he was singled out for demotion and all he wanted was for to be treated with respect. He did not expect to be able to return to work soon.

The Complainant presented pay slips to exhibit payment of a “Christmas “€312.50 on 14 December 2018. He did not advance any details on the earnings of Mr A.

There was no appearance by or on behalf of the Respondent at hearing. The Respondent did not file a defence to the claim.

CA -00025507 -002 Terms of Employment

I wrote to the Respondent just after the hearing seeking a copy of the Foreman contract of employment 2005 -2019. I did not receive a response.

CA -00025507-003 Equal Pay Claim

The Respondent did not make any defence of appearance in this case. Having heard from the complainant on 10 July, I wrote to the Respondent seeking information in accordance with Section 95 of the Employment Equality Act. I sought;

·         Staff Handbook

·         Details of the Company Bonus Payment Policy, grievance, equality and sick leave policy

·         Records of whom bonus payments were made 2001-2018

·         Copy of Complainant and Mr A contract of employment and job description

·         Nationality of Foremen

·         Details of the reported demotion and pay deduction on 7 January

·         Was demotion applied to all Foremen

I allowed 4 weeks to illicit a response and none followed by mid-October as I now submit this Decision.

I am satisfied that the Respondent was on correct notice of the hearing in this case. I delayed the commencement of the hearing to allow for any in eventuality. I have not received any reason for the non-appearance of the Respondent or a Representative in this case.

CA -00025507-002 Terms of Employment

When I met with the Complainant, he presented as very disappointed by his treatment by the company. He explained that he had been very unwell and continued so. He was particularly aggrieved that he had supported the Respondent in many court actions and he was now abandoned by the same company. I detected that that he exhibited a high level of trauma regarding his encounter with the Line Manager / Personnel Manager on January and that he felt excluded when nobody would address his concerns seeking retention of salary.

A careful reading of Section 5 of the Act:

Notification of changes.

5

5.— (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute , other than a registered employment agreement or employment regulation order, or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3or 4.

I have invited a response to the claim from the Respondent and have been unsuccessful. The sole contract/statement of terms of employment date from August 2008 and refer to a Manufacturing role with payment in pre-euro currency of £300 weekly in arrears.

Both pay slips relied on by the Complainant contain the differential reflected on the” Post It”. Based on the Complainants uncontested evidence, I have established that the pay slip dated 18 January 2019 (€750.13, gross) reflected a lower pay rate than the pay slip dated 11 January 2019 (€641.69, gross)

Both pay slips reflected a Time Off at €74.60 Pay Slip 1 and €56.72 in Pay Slip 2. This seems to corroborate a change in wages. This does not comply with the requirements of Section 5 of the Act on notification of the “nature and date “of the change in writing within the statutory time limit of 1 month after the changes took effect.

I find the claim contending a breach of Section 5 of the Act is well founded.

CA -0002557-003 Employment Equality

I have considered the case raise by the complainant. On 9 January 2019, he raised that he had not received a bonus for the years 2016 and 2017 and he had received half the line leaders’ rate in 2018. He asked for reasons for this, and whether it would be backdated? He wrote to the company by email on February resigned to not receiving a response and thus placing the matter before the WRC. The Complainants initial request to his Employer of 18 years read as a workplace grievance. The failure of the company to respond caused the complainant to visit his Solicitor who appears to have advised an elevation to a complaint of race discrimination. The Solicitor was not present at the hearing and the Complainant had little to no knowledge of the parameters of the Legislation on Equal Pay. In addition, I have found that the complainant presented as very troubled at the hearing an exhibited a strong sense of alienation from a company he had previously been extremely loyal. He gave evidence of being on medication for both physical and mental health issues.

His complaint reflects that he has not received equal pay because of his race. He named Mr A, an Irish Foreman as a Comparator but was unable to present any details on Mr A as an employee as is required under Section 7 of the Act.

Like work.

7

7.— (1) Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if—

(a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,

(b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work or occur with such irregularity as not to be significant to the work, or

(c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

(2) In relation to the work which an agency worker is employed to do, no person except another agency worker may be regarded under subsection (1) as employed to do like work (and, accordingly, in relation to the work which a non-agency worker is employed to do, an agency worker may not be regarded as employed to do like work).

(3) In any case where—

(a) the remuneration received by one person (“the primary worker”) is less than the remuneration received by another (“the comparator”), and

(b) the work performed by the primary worker is greater in value than the work performed by the comparator, having regard to the matters mentioned in subsection (1)(c),

then, for the purposes of subsection (1)(c), the work performed by the primary worker shall be regarded as equal in value to the work performed by the comparator.

In Employment Equality, 2012, Bruton, Kimber and Bolger 1st Edition:The Authors engage in a very thorough analysis of the two-step challenge to proving discrimination on equal pay. They emphasise the key role, endorsed by ECJ Jurisprudence, of a real and identifiable comparator and not a hypothetical comparator, Power V Blackrock College DEC -E-2008 -72.

In examining whether the complainant and their chosen comparator undertake like work, the examination is of the work carried for which the comparator was recruited and not during a transitional and familiarisation phase.

The determination of the Equality Tribunal in 29 Named Complainants v Courts Service EDA 1125, as affirmed by the Labour Court on appeal, is useful for seeing the extent of the comparison undertaken by the Equality Officers.

In that case there were 29 complainants who were grouped into categories. In order to evaluate their claim that they were engaged in work of equal value with the named comparators, the Equality Officer undertook a series of work inspections agreed in advance by the parties in court locations throughout the country between July and November 2008. In February 2010, the Equality Tribunal issued its decision and found that the complainants were not engaged in “like work” with the named comparators in terms of s.7(1)(c) of the Employment Equality Acts and were therefore not entitled to the same rate of remuneration as paid to the comparators.

Section 81 of the Employment Equality Act provides a mechanism to address a vacuum in supply of requested information under Section 76. The Labour Court addressed this in Irish Ale Breweries V O Sullivan [2007] 18 ELR 150 and accepted that rebuttable evidence could be accepted, and inferences drawn from a void in requested information.

 Consequences of failure to supply information etc.

81

81.— If, in the course of proceedings on a reference under section 77(3) or of an investigation under section 79 , it appears to the Circuit Court Director General of the Workplace Relations Commission ] ] as the case may be—

( a) that the respondent failed to supply information which the complainant sought by questions under section 76 and which was in the respondent’s possession or power, or

( b) that the information supplied by the respondent in response to any such question was false or misleading or was otherwise not such as the complainant might reasonably have required in order to make the decision referred to in section 76(1) ,

the Circuit Court, Director General of the Workplace Relations Commission (as the case may require) may draw such inferences as seem appropriate from the failure to supply the information or for the supply of information as mentioned in paragraph (b).

The Complainant in the instant case, did not utilise the provisions of Section 76 on request for information.

This caused me to exercise my function under Section 95 of the Act, which in turn has been ignored by the Respondent. I have considered this vacuum in response and I have reflected on my powers allowed under Section 96 of the Act to refer the failure to comply with Section 95(1) to the Circuit Court.

I have decided not to exercise that option as this time. It is clear to me that the parties need to engage on the matters in dispute between them. I am also concerned that the complainant is on long term sick leave from his employment. I will return to this later.

As a first step in a complaint of discrimination on equal pay, the complainant must first satisfy the burden of proof that he is covered by the grounds of his complaint, i.e. that he is a Polish National. Secondly, he must prove that he is engaged in like work as provided for in Section 7 of the Act based on a live comparator. I accept that the complainant is a Polish National.

The Complainant, by his own admission, had no details on the pay, bonus structure or job description of the named Irish Foreman, Mr A. He could not advance on a submission on claiming discrimination on equal pay outside assertions on how he believed that he had been treated differently on race grounds and had been singled out for demotion and a reduced bonus. In short, he did not satisfy the exacting provisions of Section 7 of the Act. He had not made a request for information in accordance with Section 76 of the Act.

While I have tried to obtain further information for my investigation, mindful that traces of discrimination are frequently not visible and require in depth probing. This is reflected in the shared burden of proof. I have not succeeded.

On that basis, I cannot establish that the Complainant has satisfied the burden of proof necessary in Section 85A of the Act. He has not raised a prime facie case of discrimination.

This part of his claim is not well founded.

Decision:

CA -00025507-02 Terms of Employment

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 7 of the Terms of Employment (Information) Act 1994 requires that I decide in the case in accordance with Section 5 of the Act.

I have found the claim well founded and in accordance with my powers under Section 7 of the Act, I have explored the correct remedy to apply in the case.

The Complainant has contested any attempt to demote him and was at a distinct disadvantage by not possessing a Foreman Specific statement of Terms of Employment. It appears to me that he worked from 2005 as a Foreman and seems to have changed from this role following his return from sick leave in August 2018. He retained the Foreman rate which preserved the implied term of Foreman in a notional contract of employment. This rate was unilaterally altered without a written detail on the nature of the change. I accept that the pay slip reflects the date of change.

This process has placed the complainant at a distinct disadvantage. The fact that he has been ignored in seeking to counter the action is unhelpful. I find that I must apply the maximum award in this case. I order the Respondent to pay the complainant 4 weeks pay at €2,566.76. In addition, I order the Respondent to issue a statement of terms of employment to the complainant in accordance with their obligations under Section 3 of the Act.

CA -0002557-003 Equal Pay.

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 for equal pay to be unfounded.

However, I would make a supplementary comment on the absence of the Respondent in this case. The Complainant has an 18-year tenure of employment. I am concerned that the complainant states that he is still employed by the Respondent but is ill. I have taken guidance from Sinead Beirne and An Post National Lottery DEC -E 2011-132.

In that case, the Respondent succeeded in rebutting a claim of discrimination on gender grounds but the then Equality Officer made a recommendation for further transparency in the treatment of a term of employment.

I would like the Respondent to read this decision. I strongly recommend that the parties engage on the topic of the Christmas bonus and the demotion in a bid to resolve matters through the company grievance procedure. This should involve face to face contact with representation if necessary as email contact is wholly unsuitable to reaching a mutual resolution of a long-standing conflict.

Notification of Change in terms and conditions. Discrimination on Race, Equal Pay.