Complainant

Respondent

Anonymised Parties

A General Operative

A Manufacturing Company

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00028897-001

06/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00028897-002

06/06/2019

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

CA-00028897-003

06/06/2019

The complainant submits that she was unfairly dismissed, that she was given unequal pay on the grounds of her disability and that she was treated less favourably than full time workers.

The complainant commenced employment on 28 June 2008 and her employment ended on 5 June 2019 when the complainant submitted that she was left with no alternative but to resign her position owing to the behaviour of the respondent.

In January 2019 the complainant reduced her hours down to 24 hours per week owing to an issue with her back. A pay review took place in June 2019 and it was submitted that other employees were given a pay increase of 10% but the complainant only secured an increase of 5%.

The complainant was very upset and resigned verbally to her supervisor Mr A. The complainant confirmed that the CEO Mr B had written to her inviting her to return but that she did not as she felt too upset by what had happened.

The complainant submitted that she had not secured any employment since then and no evidence of efforts to mitigate her loss were provided.

The respondent submitted that the company had gone through significant difficulties in recent times, including examinership and that there had been no pay increases for some time and that they had also difficulties retaining employees particularly engineers. A decision was made to review all salaries and some, but not all staff, received increases and the complainant did receive an increase of 5%.

Evidence from the complainant’s supervisor Mr A was that the complainant was unhappy and resigned suddenly and that he advised management of same.

The CEO Mr B submitted that the complainant had received a contract of employment with a grievance procedure but did not utilise it.   It was also submitted that Mr B wrote out to the complainant asking to meet with her and advised her she could have her job back if she wished. The complainant was also advised that the respondent was at a loss to understand why she was accusing them of unfair dismissal. The complainant did not respond to this.

The claim is one of constructive dismissal, pursuant to Section 1 of the Unfair Dismissal Act 1977. In reaching my conclusion I have carefully evaluated the evidence adduced in the course of the hearing and taken full account of written and oral submission made by the parties.  

It is set out in Section 1 of the Unfair Dismissal Act that constructive dismissal is: “the termination by the employee of his contract of employment with his employer whether prior notice of the termination was or was not given to the employer in the circumstances in which, because of the conduct of the employer the employee was or would have been entitled or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer”.

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. This arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be “entitled” to resign his/her position, often referred to as the “contract test”. The employer is thus “guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance” as held in Western Excavating (ECC) Ltd v Sharp[1978] IRL 332. Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test seeks out whether the employer conducted his or her affairs, in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so he/she is justified in leaving.

The Supreme Court in Berber detailed, “The conduct of the employer complained of, must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly to determine if it is such that the employee cannot be expected to put up with it.” This places the burden of proof on the employee to show that her resignation was justified in all the circumstances.  

The question to be examined includes whether because of the conduct of the Respondent, the Complainant was or would have been entitled, or it was or would have been reasonable for her, to terminate the contract of employment. It is necessary, therefore, to examine the conduct of the parties. In normal circumstances a complainant who seeks to invoke the reasonableness test, must also act reasonably by providing the employer with an opportunity to address any grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment, before taking the step to resign which has been set out in Conway v Ulster Bank LimitedUDA474/1981.   There may also be situations whereby failure to utilise or give prior formal notice of a grievance may be justified such as Liz Allen v Independent Newspapers [2002] 13 ELR

The complainant had been with the respondent since 2008 and resigned her position on 5th June 2019 when she became unhappy with what she perceived as unfairness with the pay increases.   The complainant submitted her complaint to the WRC on 6th June 2018 and the complainant was written to by the respondent shortly afterwards who denied that she had been dismissed and that she was welcome to have her job back.   The complainant rejected this offer.

It was clear from the complainant’s evidence that employees compared their increases with each other and the complainant was upset with her increase.

In Berber Finnegan J. held: -

“The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

A grievance procedure was available to the complainant but she did not avail of it and furthermore I find she appeared to have acted very hastily in resigning her position. While the respondent could perhaps have given more clarity to the complainant regarding the pay increase she received, I find the complainant has not met the standard of reasonableness required to substantiate a claim of constructive dismissal and that the complainant did not give the respondent any opportunity to resolve the issues despite their offer to do so. I find therefore, that the complainant resigned her position and that she was not unfairly dismissed.

The complainant submits that she was treated less favourably than full time workers when she received a 5% pay increase and they received greater increases.

The respondent denied the claims and provided details of pay increase for employees such that employees received either 0%, 5%, 10% or 13%, regardless of whether a worker was a part-time or full-time employee.

The complainant submits that she received less of a pay increase than full time employees. The respondent denies the claims.

Section 9 of the act provides

“.—(1) Subject to subsection (2) and (4) and section 11(2) , a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

(2) Without prejudice to section 11(2) , if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

(3) Nothing in subsection (2) shall be construed as affecting the application of a relevant enactment, by virtue of section 8, to a part-time employee.

(4) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a part-time employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-time employee.

(5) For the avoidance of doubt, the reference in this section to a comparable full-time employee is a reference to such an employee either of the opposite sex to the part-time employee concerned or of the same sex as him or her.

Having reviewed the pay increases given to employees I note that some full-time employees received pay increases of either 0%, 5%, 10% or 13% and that part-time employees received pay increases of either 0% or 5%. On the basis of the evidence provided I do not find that the complainant was treated less favourably because she was a part time employee.

I must find the complaint is unfounded.

The complainant submits a claim of unequal pay on the basis of her disability such that she only received a 5% pay increase and other without a disability received more than her.

The respondent denied the claims and provided details of pay increase for employees such that employees received either 0%, 5%, 10% or 13%.

The complainant submits in her claim form that her comparators were full time workers but clarified on the day that her comparators are those without a disability

Section 6(1) of the Employment Equality Acts 1998 and 2004 (the Act) provides, as follows:

‘‘(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,

Section 6(2)(g) provides that

“As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

( g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “ the disability ground”),

Section 19 provides that .— (1) It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer.

(2) In this section ‘relevant time’, in relation to a particular time, is any time (including a time before the commencement of this section) during the 3 years which precede, or the 3 years which follow, the particular time.

(3) For the purposes of this Part, where B’s employer is an associated employer of A’s employer, A and B shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment.

Section 29 refers to Entitlement to equal remuneration.

29.— (1) It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer.

(2) For the purposes of subsection (1), in relation to a particular time, a relevant time is any time (on or after the commencement of this section) which falls during the 3 years which precede, or the 3 years which follow, the particular time.

(3) For the purposes of this Part, where D’s employer is an associated employer of C’s employer, C and D shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment.

(4) Section 19(4) applies in relation to C and D as it applies in relation to A and B, with the modification that the reference in it to persons of a particular gender (being As or Bs) is a reference to persons (being Cs or Ds) who differ in a respect mentioned in any paragraph of section 28(1) and with any other necessary modifications.

(5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.

Section 28 refers to The comparators.

28.— (1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:

( f) in relation to the disability ground, C is a person with a disability and D is not, or vice versa, or C and D are persons with different disabilities;;

(2) In the following provisions of this Part, any reference to C and D which does not apply to a specific discriminatory ground shall be treated as a reference to C and D in the context of each of the discriminatory grounds (other than the gender ground) considered separately.

and Section 7 refers to Like Work

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 as a whole or occur with such irregularity as not to be significant to the work as a whole, 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.

Section 85A (1) of the Act states: “Where in any proceedings facts are established by or on behalf of a complainant 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.”   This means that the Complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the Respondent. In Determination EDA082 McCarthy v Cork City Council the Labour Court pointed out that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.

In Melbury Developments v Arturs Valpeters the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

The complainant submitted that she compared herself to those without a disability but submitted no evidence to support any facts from which discrimination could be inferred. The complainant has not established a prima facia claim that there is a difference in pay because of discrimination on the grounds of disability.

CA-00028897-001

I find that the complainant was not unfairly dismissed

CA-00028897-002

I find that the complaint is not well founded.

CA-00028897-003

The complainant has not established a prima facia claim that there is a difference in pay because of discrimination on the grounds of disability and I find that the complainant was not discriminated against.

Part time worker, unfair dismissal, equal pay, discrimination