Complainant

Respondent

Anonymised Parties

Quality Control Technician

A Medical Device Company

Representatives

Linda Kelleher Torc Solicitors

Pat McInerney Holmes O'Malley Sexton

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-00029101-001

17/06/2019

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

CA-00029101-002

17/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00029101-003

17/06/2019

The Complainant commenced work as a Quality Control Technician with the Respondent on 7 July 2008.

CA-00029101-001

The Complainant seeks redress for discrimination on the grounds of gender, family status in the promotion of her. The Complainant also claim she was victimised and harassed by the Respondent. The Complainant states the most recent date of discrimination as being 8 March 2019. The Complainant submitted the claim form to the Workplace Relations Commission on 17 June 2019.

The Complainant withdrew the claim for victimisation at the hearing.

CA-00029101-002

The Complainant claims she was discriminated on the grounds of gender and did not receive equal pay.

CA-00029101-003

The Complainant seeks a recommendation pursuant to the Industrial Relations Act 1969 for the Respondent’s alleged failure to apply bullying and harassment procedures.

CA-00029101-001

Promotion

The Complainant gave evidence that she was on sick leave from September 2017 before going on maternity leave from 5 February 2018 until 6 July 2018. From the period of 7 July 2018 to 13 August 2018 the Complainant used her accrued annual leave and public holiday entitlements. She then availed of parental leave from 13 August 2018 up to 21 December 2018. She has been on sick leave from work from 21 December 2018 to the date of the hearing.

She gave evidence that prior to going on leave she told her line manager that she was interested in progressing her career and wanted to be informed if promotion opportunities arose.  

The Complainant gave evidence that her colleague was promoted in August 2018 while she was on leave. She gave evidence that she was not notified of the opportunity, express interest in the position or interview for the position. She also noted that the position was not advertised internally or externally.

The named comparator, a male BH, was given additional duties which she would have undertaken prior to going on leave and this continued when she returned from her leave in January 2019. The Complainant also gave evidence that he was awarded a pay increase to go along with the promotion.

The Complainant’s witness, another colleague, gave evidence that the Complainant did undertake duties which were given to BH as part of his promotion. The witness also gave evidence that there was a change in the working environment while the Complainant was on leave and again upon her return to work.

Harassment

The Complainant gave evidence that she had a performance review in 2015. She stated that in July 2018 her colleagues were given an opportunity to participate a performance review and goal settings. Pay increases were awarded in line with these reviews. She claims that she was not notified of these reviews in July 2018 nor was she invited to participate in a performance review upon her return to work from leave in January 2019. It is the Complainant’s case that when she sought a performance review she was told that she was not entitled to a review or the associated pay rise. The Complainant states that when she challenged this decision she was isolated and made to feel difficult and claims she was subjected to harassment by the Respondent.

CA-00029101-002

The Complainant gave evidence that she undertook co-ordination duties prior to going on maternity and parental leave. However, on her return she gave evidence that she was removed from these duties and was answerable to her former peer, BH, whom she believes was promoted.

The Complainant gave evidence of her educational and professional qualifications and how she felt her pay was not reflective of her achievements. She gave evidence that she is paid less than her comparator, a less qualified male.

CA-00029101-003

The Complainant gave evidence of several incidents which can be summarised as follows:

7 January 2019 – the Complainant’s first day back to work after leave where she states items from her desk were not where she left them. She felt the atmosphere was uneasy from her Line Manager. She states she was removed from the work email list.

9 January 2019 – She felt the atmosphere with her Line Manager was deliberate.

10 January 2019 – The Complainant described an uncomfortable situation at breakfast with her Line Manager.

15 January 2019 – The Complainant described her confusion as to the role BH held and her interaction with him to seek clarification. She notes that she used to complete these tasks and was never paid a premium for these tasks.

21 January 2019 – The Complainant gave evidence that her Line Manager would only speak with BH with regards to work in progress in the lab. She names another colleague who was consistently asking her how far along she was with her work. The Complainant complains that she was asked to email her Line Manager daily detailing that she was working on and her progress. She felt there was now two new people superior to her and earning more than her based on the outcome of their performance reviews.

28 January 2019 –A Senior Technician returned to work from maternity leave. BH’s role continued despite a Senior Technician being placed higher on the organisational chart. The Complainant received an email inviting her to partake in the new Performance Management Process. She was instructed to only to fill in Section IV Goals as she would only be partaking in the 2019 version, i.e. Feb 2019 to end of June 2019. The Senior Technician was asked to complete the same sections.

4 February 2019 – The Complainant competed the required section of the performance review. She stated that her Line Manager only communicated with BH in the lab.

12 February 2019 -The Complainant gave evidence of an incident where her Line Manager who wanted her to stop what she was doing and complete another task compared to her colleagues who were given additional time to complete the same task.

13 February 2019 – The Complainant had her goal setting meeting for the period from 13 February to June 2019. The next performance review meeting was scheduled to take place in July 2019. The Complainant enquired of her Line Manager about having a performance review based on 2018 where she states her colleagues received significant promotions and pay rises. She gave evidence that her request was meant with some hesitation and she was told that she did receive a pay rise while on maternity leave. The Complainant accepted this, having received it in November 2017, but it was allocated to all QC Technicians and not related to her performance. The Complainant stated that she did not receive a pay rise for 2018 and wanted an opportunity to discuss her academic qualifications gained in 2017. The Complainant outlined her achievements which she felt ought to be considered in her performance review. Her Line Manager asked how she could have a performance review when she was not there for the period from July 2017 – June 2018. She agreed to discuss the pay rise and performance review with the MD.

27 February 2019 – The Complainant gave evidence of a meeting with colleagues and management. She felt her Line Manager rolled her eyes and sighed loudly during her presentation.

7 March 2019 – the Complainant noticed that BH was not scheduling her work on the board despite scheduling work for her colleagues. The Complainant went to her Line Manager to follow up on the review and she was told the MD was not open to doing a performance review as she was on leave.

8 March 2019 – The Complainant met with the MD who advised her that she was getting a 1.25% pay rise and the performance appraisal system changed last year. When she requested a retrospective performance review she felt he became hostile and advised there would not be pay rises in the middle of the fiscal year. He added she was not automatically entitled to a pay rise.

When the Complainant questioned BH’s role and why she was not informed or invited to apply, she was told that “Things had to change, and they had to protect their business while you weren’t there.” The parties had an exchange of views on this issue concluding in the MD agreeing that the Complainant’s Line Manager would give her a performance review

11 March 2019 – The Complainant met with her Line Manager regarding the performance review. The issue as regards the time period for the review was discussed between them again with the Complainant left feeling that she was not given an equal opportunity compared to her colleagues while she was on leave. She left work very upset on that day.

12 March 2019 – The Complainant had an interaction with BH as regards the scheduling of work and who was responsible for prioritising work. She stated that BH was trying to withhold information from her and was purposely being evasive about his role due to manner in which he was appointed. The Complainant requested a copy of her September 2015 performance review. She received a copy of it after 21 March 2019 which she stated was not complete.

29 March 2019 – The Complainant returned her completed performance review to her Line Manager.

2 April 2019 – The Complainant stated that significant pay rises were awarded to the Department despite the MD’s claim that pay increases would not be awarded in the middle of the fiscal year.

30 April 2019 – The Complainant had not received a date for her review.

2 May 2019 - The Complainant gave evidence that she felt she was treated unfairly, bullied and in a discriminatory way. She stated that she contacted her Line Manager and the MD but the matters remained unresolved. She stated she felt the need to put her grievances in writing using the Equal Status ES1 Form from the Workplace Relations Commission website. The Complainant reviewed the Safety Procedure and the examples of bullying listed. She also noted the failure of the procedure to refer to a formal document for recording her grievance. For this reason, she used the ES1 Form and delivered to the Respondent on 8 May 2019.

The Complainant received two responses from the MD which she perceived as aggressive and unhelpful. She felt that it was not constructive in resolving this issue. She did receive an acknowledged that HR in the US would look into the matter on 15 May 2019 but nothing further. She gave evidence of the effect of this treatment on her mental and physical health.

The Respondent denies all the Complainant’s claims.

CA-00029101-001

The Respondent submitted that at all times there have been four QC Technicians employed by the Respondent (of which the Complainant was one) with each having identical family status.

Promotion

At no stage at the hearing or in its statements did the Respondent agree that BH was given a promotion. The Respondent’s evidence was BH was given additional duties in August 2018 due to a critical issue that arose with on time deliveries for customers.

Undisputed statistics were presented by the Respondent as evidence of the critical level of 49% in August 2018 and subsequent steady increase in performance to 95% at the time BH ceased the additional duties in August 2019. The General Manager stated in his evidence that the on-time delivery issue was at a critical level with the customer calling him directly. The General Manager gave evidence that it was the first time in his 22 years with the Respondent that the performance reached such a critical level.

Undisputed evidence of a weekly pay increase of €50 was paid to BH during the period in question to compensate him for the additional duties was presented by the Respondent.

Harassment

In response to the allegations around the failure of the Respondent to carry out a performance review with the Complainant, the Respondent gave the following evidence of the system that was in place:

A Performance Evaluation Process was introduced by the Respondent in 2018 for the first time. Prior to this there was an Individual Development Plan process, which while identifying areas for developmental improvement is not a performance evaluation process linked to pay increases.

Prior to 2018, there was no process for performance evaluation linked to pay review in the QC department. There were simply generic increases determined by the Respondent but not linked to performance.

In 2018 the concept of merit increase linked to performance was introduced for the first time by the Respondent.

The average merit increase through the performance evaluation process in 2018 was 1%. This was entirely in line with the increase given to the Complainant following her return from maternity / parental leave and which was backdated to ensure no loss to her.

There were 23 salaried employees that received merit increases related to the results of their performance appraisals in 2018. These merit increases only apply to salaried staff (does not include production operators).

·       0% Increase applied to “Needs Improvement” (1 employee)

·       1% Increase applied to “Expected Performance” (16 employees)

·       2% Increase applied to “Continuously Exceeds” (6 employees)

The review period in question was fiscal year 2018 (July 2017 to June 2018). It was during this time that the Complainant was on leave and she was not called in to participate (custom and practice was not to call in employees on leave).

Upon the Complainant’s return to work following maternity / parental leave, she was awarded the average merit increase for the company and for her peer group. In prior years the percentage increase across the QC Technician group was the same, which is the approach the Respondent also took in 2018.

Payroll adjustments were made thereafter manually, and when it was realised that the Complainant had not received her 1% increase, this was applied and increased to 1.25% (time adjusted), along with back pay applied to ensure there was no adverse monetary impact to her. The slight delay in applying the merit increase was a genuine one and was corrected immediately once discovered.

CA-00029101-002

The Respondent stated that a pay rise awarded to the Complainant shortly after her return from leave (and which was back-dated) was entirely consistent with that awarded to her QC comparators as evidenced from the undisputed spreadsheet.

The named comparator, BH, received a 1% merit increase in 2018 the same as the Complainant. He did receive a €50/week increase on a temporary basis, and this was brought to an end in August 2019 when Respondent’s on time delivery had fully recovered. Documentary evidence was produced by the Respondent to substantiate this claim.

The Complainant’s claim that two people in the department received significantly more money through the performance evaluation process was simply not correct.

CA-00029101-003

The Respondent submitted that the Complainant did not make a complaint of bullying or harassment either formally or informally prior to invoking a claim before the Workplace Relations Commission.

The Respondent gave evidence in response to the Complainant’s claims as follows:

The Respondent had no record of disposing of any Company property previously assigned to the Complainant. The QC lab is a busy shared working area, busy office area. Nothing was intentionally disposed of during the period of her absence from work.

Contract Outside testing mailing list: There is no standard distribution list, every email is unique.

Email lists: there is one standardised email distribution list for vendor emails. The Complainant has consistently been a member of this distribution list since 2013. However, not all vendors use this email address.

The Complainant previously advised her Line Manager that she had managed to delete her entire sent emails folder and was told if she contacted IT they could recover emails.

21 January 2019 - Document Review was previously undertaken by the Quality Manager until s/he was on sick leave when a QA Specialist took over the role. This was not a promotion. The position of QA Specialist is a different role to that of the Complainant.

Progress emails / reports were requested from all QC technicians. This is a very minor change to procedures in place since April 2018 and applied to all QC Technicians.

The scheduling of tasks on a board was an enhancement of what was there already and is not a major change. The work that the QC technicians do in this regard has not changed, the board allowed for more effective management of workload.

There were not 2 new “superior” people in work nor was there significant pay increases given to those two people.

12 February 2019 – The Complainant’s Line Manager, Quality Manager, gave evidence that data is sometimes required quickly, to facilitate a decision to release a material or product for shipment. That is what happens in a manufacturing environment. In the case cited, the Respondent’s most important customer had run out of product. The Respondent was in a crisis situation. The customer was urgently in need of data to release product so their production lines would not come to a halt. That is why this information was urgently needed.

13 February 2019: Meeting with Quality Manager where the Complainant discussed her goal setting for the remainder of the year where the Complainant signed off on her goal setting form. The Quality Manager stated that if she was unhappy, she should not have signed the form.

Up to 2018 there were no performance related pay rises. The Quality Manager stated that she did not recall stating that a performance review could not be completed for the period in which the Complainant was not present.

27 February 2019 – The Quality Manager gave evidence that it was a group goal for all QC Technicians to work with visual management, not specific to the Complainant. There was a discussion of ideas at the meeting which the Respondent describes as an entirely normal and reasonable exchange of views between employees. The allegations of sighing and eye-rolling are denied absolutely.

7 March 2019: Meeting with MD was to discuss pay and review. At no stage did the Complainant mention a grievance. The MD gave evidence that he explained the new process around performance review to the Complainant, that she would be receiving a 1% merit increase and how the 1% was time adjusted to 1.25% to cover the period to September 2018 and ensure no loss to Complainant. He stated to the Complainant that not everyone is automatically entitled to a pay increase every year and that her increase was the same level as her peer group.

The MD stated to the Complainant there would not be merit increases outside what had already been put in place, no change to bands (0%, 1%, 2%) and no change to the 1% allocated to Complainant in the middle of the year.

The MD did not accept he was hostile to the Complainant. He was firm in rejecting the Complainant’s claims that she was being discriminated against. He reiterated that the Complainant’s contract had not changed, nor her terms, conditions and hours.

It was the Respondent’s evidence that the Complainant did press for preferential treatment on the basis of savings for the Company she claimed to be personally responsible for. In response the MD stated that many employees are involved in cost saving activities and ultimately these savings come back to all through the Respondent’s gain share programme.

11 March 2019 – The Quality Manager gave evidence that the Complainant did not cry in her office.

The Quality Manager stated that it was the Complainant who raised her voice / shouted “I can’t understand why everyone is being so difficult about this”. The Quality control manager will give evidence that she engaged with the Complainant re the new performance evaluation form.

29 March 2019 – The Respondent stated the Performance Review could not be scheduled until the Respondent returned the Performance Evaluation form which she completed on 29 March 2019. The Quality Manager gave evidence that she was on annual leave the following week, the Complainant had two weeks leave and the following week the Respondent had audits and the Corporate Management Review Meeting. The review was scheduled for the first available week thereafter being the week commencing 6 May 2019.

2 April 2019 - The Respondent submitted that references to awards of pay increases for manufacturing staff are completely irrelevant and taken completely out of context.

In 2017 the Respondent undertook a benchmark of similar positions for manufacturing rates of pay with data provided by IBEC. In 2017 (Oct/Nov) the Respondent put in place new rates of pay across the pay grades in production. Part of the adjustment was to cover the fact that the next review would be in January 2019 (i.e. an extended period of time). In the context of pay benchmarking, the Respondent also undertook a review of QC Technician pay. In addition to the general increases applied, QC Technicians (including the Complainant) were awarded a €2000 increase in salary.

In 2018, the Respondent did not apply the merit increases of 0%, 1% or 2% to manufacturing because agreed pay rates to cover the period to January 2019 were in place. So while they went through the performance evaluation process, manufacturing pay increases were not linked to performance. In April 2019, the Respondent reviewed manufacturing rates and applied an increase which will take the company to September 2020 before next pay review. The annualised rate of increase was 2.25% which corresponds to average rate of increase used in Sept 2019 for all other staff.

8 May 2019- It was the Respondent’s evidence that at no time was there ever mention of complaint of bullying and harassment by the Complainant prior to invocation of Workplace Relations Commission procedures, despite being trained multiple times on the bullying and harassment procedure.

The Complainant did not follow the process and procedures in place. If the Complainant had mentioned a bullying or harassment related grievance, the matter would have been escalated to headquarters in the USA to permit independent investigation. The MD gave evidence that all of MD’s written exchanges with the Complainant were to facilitate a return to work.

Decision:

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

-and-

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

CA-00029101-001

Promotion

The Complainant claim is statute barred and consequently, I do not have jurisdiction to investigate the claim.

Harassment

The Complainant has failed to discharge the burden of proof set out in the Employment Equality Acts 1998 - 2015 and consequently, the claim is not well founded.

CA-00029101-002

The Complainant has failed to discharge the burden of proof set out in the Employment Equality Acts 1998 - 2015 and consequently, the claim is not well founded.

CA-00029101-003

It is recommended that an agreed external third party investigator is appointed to investigate the Complainant’s grievance.

Having carefully considered the submissions of the parties, I recommend that the Respondent commences an immediate investigation of the Complainant’s grievance of 8 May 2019 and that this process is conducted on a de novo basis by an agreed third-party investigator. I further recommend that, in the interest of all parties, the process be brought to a speedy conclusion.

Industrial Relations – Grievance – Well Founded

Employment Equality – Family Status- Gender – Time Limits