Complainant

Respondent

Anonymised Parties

A Complainant

A Respondent

Representatives

none 

IBEC

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-00034116-001

31/01/2020

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

CA-00034116-002

31/01/2020

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

CA-00034116-003

31/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00034116-004

31/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00034116-005

31/01/2020

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

CA-00034116-006

31/01/2020

This hearing took place over two days, on the mornings of Monday 5 October 2020 and Tuesday 10 November 2020.

While the complainant made submissions on 28 February 2020, the respondent made their 538-page submissions after close of business on Friday 2 October (the working day before the hearing). The respondent was represented by a national representation body for employers.   The Adjudicator informed the representative and the respondent that this practice is reprehensible and indicates a total lack of respect for the Adjudicator, the WRC and for the complainant.   That the complainant was unrepresented further compounds this approach. That the submissions included two 269-page documents is irrelevant as the documents were submitted under different covers and had to be cross checked to ensure nothing was overlooked. This practice of submitting large volume submissions at short notice will not be tolerated.

The respondent is a large organisation with offices in a number of jurisdictions. The complainant was employed on a number of short-term contracts between April 2018 and October 2019 when his employment came to an end.

CA-00034116-001 Unfair Dismissal

The complainant submitted that he was unfairly dismissed following comments he made on his LinkedIn account. Although he admitted that he had made the comments, he submitted that he was dismissed on 29 October 2019 without any warning and with no proper procedure having been followed. He also submitted that the comments did not detract from the respondent’s good name as it did not have a good reputation. He submitted that he had the requisite 12 months service to qualify under the Unfair Dismissals legislation.

CA-00034116-002 Equal Pay

The complainant submitted that he received only 50% of the salary of three named comparators when they had exactly the same job title and he had more and better qualifications than some of them. He claimed that the reason for the differential was gender and age.

CA-00034116-003 Payment of Wages

The complainant submitted that he was not paid for annual leave and that there was an incorrect calculation of his pay. He also submitted that when he brought this issue up, he was refused an emergency payment. He submitted that due to incompetence on the part of the respondent, he was put on emergency tax and will have to wait months to get it back.

CA-00034116-004 Payment for annual leave

The complainant submitted that when he left the respondents employment for a short period in March 2019, they refused to pay him the annual leave from the previous year which he had carried over.

CA-00034116-005 Hours of Work

The complainant submitted that he was forced to work approximately 20 additional hours per week during the period August 2018 to January 2019.

CA-00034116-006 Discriminatory Treatment

The complainant submitted that two colleagues who held the same position were offered permanent contracts because they were English. He also submitted that he was offered lesser terms and conditions despite the fact that he was a lot more revered than them and that this was due to his race.

CA-00034116-001 Unfair Dismissal

The respondent submitted that the respondent was employed on fixed terms contracts covering two distinct periods, the first contract covering the period from 28 April 2018 until 29 March 2019 was to provide Maternity leave cover and handover upon return for selected duties of a specified employee.

There was a six-week break before the second contract was offered to the complainant, initially from 15 May to 15 July 2019 but this was varied by way of addendum to extend his hours (to full-time), to provide a commensurate salary, and to include an end date of 31 October 2019. This contract was offered to cover general assistance whilst the respondent recruited a Senior EMEA Recruiter.

A third contract was offered covering the period 4 November to 20 December 2019, but this was withdrawn prior to its acceptance by the complainant.

The respondent submitted, as a preliminary matter, that the complainant did not have the 12-month service to avail of the protections of the Unfair Dismissals Act as the first contract covered a specified purpose (i.e. the maternity leave) and the second was a fixed term contract, although amended by way of the addendum.  

The respondent submitted that this contract contained the following wording which excluded the possibility of relying on the concept of continuous service.

3. Commencement of Fixed Term Employment

Your employment with the Company will commence on 15 May 2019 and cease on 15 July

2019. No previous employment counts towards your period of continuous employment with

the Company, and this date of commencement is the date upon which your period of continuous employment with the Company will begin.

The respondent further submitted that during the 6-week break between contracts, from March 2019 until May 2019, the complainant was in employment with another employer.

As an alternative to the foregoing, and if the preliminary matter was ruled against the respondent, it was submitted that the complainant came to the end of his contract of employment and that a further contract of employment, offered to the complainant but not accepted was withdrawn while the respondent investigated matters that had arisen.

The respondent also submitted that the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the conduct of the employee. In this instance the employee made disparaging comments on his LinkedIn profile (which named him as an employee of the respondent) and he was not offered a new contract following an investigation of this matter

The respondent submitted that accordingly no unfair dismissal occurred.

CA-00034116-002 Equal Pay

The respondent submitted that the complainant could only possibly be claiming equal pay during his employment from 28 April until 31 January when he was carrying out some of the duties of the comparator who he was providing maternity leave for.

The respondent submitted details of the skills, experience and responsibilities of each of the three named comparators and the complainant across a range of duties including Audit & Compliance duties, Business Reporting duties, Employee Relations, Learing & Development, HRIS, and External Partnership and Liaison.

CA-00034116-003 Payment of Wages

The respondent submitted that the complainant himself admitted that he did receive payment in relation to this matter and that this complaint should be dismissed.

CA-00034116-004 Payment for annual leave

The respondent submitted that the payment complained of is outside the statutory time limit envisaged by the legislation.

CA-00034116-005 Hours of Work

The respondent did not make any submission on this matter other than to note that it had been informed in writing by the WRC that this complaint was closed.

CA-00034116-006 Discriminatory Treatment

The respondent submitted that the complainant has failed to adduce facts from which it may be inferred that discrimination on the basis of his race has occurred.

CA-00034116-001 Unfair Dismissal

Having considered the submissions of both parties, I am satisfied that the complainant was employed two distinct contracts of employment, the first from 28 April until 29 March 2019 to provide Maternity cover and associated handover. I am satisfied that there was a break in the employment relationship and that the complainant commenced with the respondent on an different contract to provide cover while the business was being reorganised from 15 May until he finished up on 31 October.

Section 2 of the Unfair Dismissals Act, 1977 includes the following wording

This Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him

Section 4 refers to apprenticeships and is not relevant to the instant case. Accordingly, I find that the complainant is excluded from availing of the provisions of the Unfair Dismissals Acts, 1977.

CA-00034116-002 Equal Pay

Section 7 of the Employment Equality Act 1998 states as follows:

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.

(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).

Having regard to the oral and written submissions of both parties, I note that the complainant had little or no HR experience when compared with the comparators, was only undertaking a limited range of duties of the comparators, had little or no responsibility when it came to dealings with external stakeholders and was working a short working week to enable him to pursue a qualification in Human Resources.   I find that the complainant did not work under the same or similar conditions and was not interchangeable with the named comparators. I find that the work performed by the complaint is not of a similar nature to the named comparators as the work carried on by the named comparators is significantly different and the work performed by the comparators is of on the whole far more important than the limited range of duties carried out by the complainant. I find that the work of the named comparators requires a significantly higher level of skill, mental dexterity, responsibility and under significantly different working conditions to that undertaken by the complainant.   Accordingly, I find that the complainant was not discriminated against by receiving a different level of pay to the named comparators.

CA-00034116-003 Pay

The complainant submitted that he was paid for the time period in question, but that he was taxed on an emergency basis. The deduction of tax, even emergency tax, does not constitute an unlawful deduction. I find that this element of the complaint was not well founded.

CA-00034116-004 Pay

As this complaint relates to a events more than six months prior to the date of receipt of the complaint, and no reasonable cause has been adduced such as to extend the time period allowed for in the Act, I find that this complaint is out of time.

CA-00034116-005 Hours of Work

As this complaint relates to a events more than six months prior to the date of receipt of the complaint, and no reasonable cause has been adduced such as to extend the time period allowed for in the Act, I find that this complaint is out of time.

CA-00034116-006 Discriminatory Treatment

Having regard to the oral and written submissions of the complaint, I am not satisfied that he has demonstrated facts from which discrimination may be inferred.   Accordingly, I find that the complainant was not discriminated against.

CA-00034116-001

Arising from my findings above, my decision is that the complainant is excluded from availing of the provisions of the Unfair Dismissals Act, 1977.

CA-00034116-002

Arising from my findings above, my decision is that this complainant was not discriminated against contrary to the Employment Equality Acts, 1998.

CA-00034116-003

Arising from my findings above, my decision is that this element of the complaint is not well founded.

CA-00034116-004

Arising from my findings above, my decision is that this element of the complaint is out of time.

CA-00034116-005

Arising from my findings above, my decision is that this element of the complaint is out of time.

CA-00034116-006

Arising from my findings above, my decision is that this complainant was not discriminated against contrary to the Employment Equality Acts, 1998.

Unfair Dismissals Act, Employment Equality Act, Equal Pay, Payment of Wages Act, Organisation of Working Time Act, Time limits.