ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00033769

Parties:

	Complainant	Respondent
Parties	Jacinta Daly	St John of God Community Mental Health Services Cluain Mhuire

Representatives

Peter Flood Ibec

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00044385-001	28/05/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00044385-002	28/05/2021

Date of Adjudication Hearing: 05/07/2022

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, that testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of witnesses was allowed.

Background:

The Complainant commenced employment with the Respondent in a clerical role on 11 March 2014. She worked for 18.5 hours per week. A complaint was received by the WRC on 28 May 2021 and an in-person hearing took place on 5 July 2022.

Preliminary Issue; Name of Respondent

The Respondent submitted that the Complaint Form bore an incorrect name for the Respondent and therefore no valid claim has been made.

In her Complaint Form the Complainant filled in Cluain Mhuire as the name of the Respondent. It became clear at the hearing that this was incorrect and that the correct name of the Respondent entity is St John of God Community Mental Health Services Cluain Mhuire.

Section 39 of the Organisation of Working Time Act 1997 provides that the name of the Respondent on a complaint referral form can be amended in the following circumstances:

(1) In this section “relevant authority” means a rights commissioner, the Employment Appeals Tribunal or the Labour Court.

(2) A decision (by whatever name called) of a relevant authority under this Act or an enactment or statutory instrument referred to in the Table to this subsection that does not state correctly the name of the employer concerned or any other material particular may, on application being made in that behalf to the authority by any party concerned, be amended by the authority so as to state correctly the name of the employer concerned or the other material particular.

(3) The power of a relevant authority under subsection (2) shall not be exercised if it would result in a person who was not given an opportunity to be heard in the proceedings on foot of which the decision concerned was given becoming the subject of any requirement or direction contained in the decision.

(4) If an employee wishes to pursue against a person a claim for relief in respect of any matter under an enactment or statutory instrument referred to in subsection (2), or the Table thereto, and has already instituted proceedings under that enactment or statutory instrument in respect of that matter, being proceedings in which the said person has not been given an opportunity to be heard and—

( a) the fact of the said person not having been given an opportunity to be heard in those proceedings was due to the respondent’s name in those proceedings or any other particular necessary to identify the respondent having been incorrectly stated in the notice or other process by which the proceedings were instituted, and

( b) the said misstatement was due to inadvertence,

then the employee may apply to whichever relevant authority would hear such proceedings in the first instance for leave to institute proceedings against the said person (“the proposed respondent”) in respect of the matter concerned under the said enactment or statutory instrument and that relevant authority may grant such leave to the employee notwithstanding that the time specified under the said enactment or statutory instrument within which such proceedings may be instituted has expired:

Provided that that relevant authority shall not grant such leave to that employee if it is of opinion that to do so would result in an injustice being done to the proposed respondent.

In making my decision I am guided by the majority determination of the Employment Appeals Tribunal in Jeevanhan Al Tambraga v Orna Morrissey and Killarney Avenue Hotel (UD36/2011) where the Tribunal considered its powers under Section 39 of the Organisation of Working Time Act 1997 and reached the following conclusion:

“The majority acknowledge that s.39 of the Organisation of Working Time Act 1997 gives certain scope to the Tribunal to allow for an application to be made to the Tribunal for amendment of the name of the employer. Such power is qualified quite significantly in s.39(4)(b) of such section noting that there must be inadvertence on the part of the relying party, to justify the making of an amendment. The word inadvertence is the qualifier in these circumstances, meaning an accident or oversight.”

It is therefore clear that in order for an Adjudication Officer to grant leave to the Complainant to change the name of the Respondent, it must be established, firstly, that there has been inadvertence on the part of the Complainant in terms of the failure to identify the correct Respondent when the proceedings were instituted, and secondly, that such leave to amend the name of the Respondent should not result in an injustice being done to the proposed Respondent.

I am satisfied that the complaint referral form submitted by the Complainant contained a variation of the name of the company that employed her. I accept that in seeking to record the legal name of the Respondent employer on this form that the Complainant through inadvertence failed to cite the precise legal name of this entity. I am satisfied that the actual employer was fully aware at all material times of the herein proceedings.

I am also satisfied that the granting of leave to amend the name of the Respondent does not result in an injustice or prejudice to the proposed Respondent. The correct Respondent attended the adjudication hearing, they had prepared a submission for the hearing, they took full part in the proceedings, and they were represented at the hearing by an external HR Consultant.

Having regard to the foregoing, I am satisfied that it would be an injustice not to allow the Complainant to proceed with this claim in all the circumstances. Therefore, I find that the misstatement of the Respondent’s name on the complaint referral form was due to inadvertence on behalf of the Complainant. Accordingly, I am prepared to accede to the Complainant’s application to amend the name of the employer pursuant to the provisions of Section 39(4) of the Organisation of Working Time Act 1997.

CA-00044385-001 Complaint under section 6 of the Payment of Wages Act, 1991.

Summary of Complainant’s Case:

The Complainant provided a written submission.

The Complainant submits that when she commenced employment with the Respondent in March 2014, she was placed on Point 1 of the salary scale which was incorrect, she should have been placed on point 11. When her role changed to a “permanent Part-time Contract” in March 2016, she was place on point 6 of the scale when she should have been placed on point 11 of the scale.

The Complainant submits that the Respondent has failed in its “Duty of Care”, in not placing her on the correct point of the scale from March 2014 when she commenced employment. A colleague who joined in 2016/17 with similar medical secretarial experience to her own, was put on the correct scale – top of Grade IV.

In her written submission, the Complainant concludes that the Respondent did not take into consideration the 23 years’ experience and the 13 years medical experience when she joined the organisation. The Respondent did not take into account the HSE Clerical & Administration related grades guidelines.

The Complainant submits that she has attempted to have this matter resolved at local level but to no avail. The situation is not fair or equitable and she is extremely upset and distressed over it and the way it has been handled.

Having made an Affirmation, the Complainant gave oral evidence at the Hearing. In her evidence the Complainant stated that when she commenced employment with the Respondent, she came with 23 years’ experience. Originally, when she was working on a temporary contract, she was placed on Point 1 of the scale which was fine. In late spring 2016 an opportunity arose for her to be taken on in a permanent, job-share role. She got this role and for the next few years all was well. However, a colleague discovered that two new employees had joined and had been put at the top of their grade. Both these employees had less experience than the Complainant.

The Complainant stated that she should have been placed on a higher scale in 2014. She believes she was not given fair pay as more recent recruits have been given.

The Complainant stated that she is a happy employee, she is flexible and does her job well.

Summary of Respondent’s Case:

The Respondent provided a detailed written submission.

By way of background the Respondent submitted that in 2014 the Complainant commenced employment in a fixed-term contract role with the Respondent. She was later employed on a relief contract and then in June 2016 she was appointed to her current role, a permanent part-time role. Her role is graded at the level of Administrative Officer Grade IV.

The Respondent submits that the Complainant’s contract of employment states the following in relation to her pay:

“Salary on Commencement: Point 6 of the salary scale, 1/19MER, i.e. €33,891 per annum pro-rata.”

The Complainant signed this contract of employment in June 2016, when she was appointed to the role of Administrative Officer Grade IV.

Since 2016, her pay has progressed annually up to the pay scale for this grade of worker in line with the terms of that contract. The Complainant is now on point 10 of the scale. She is not due to move to point 11 on the scale, which is a Long Service Increment, until June 2023.

Therefore, according to the Respondent, no unlawful deduction of the Complainant’s pay has been made in this case.

Findings and Conclusions:

I have considered this matter carefully.

Section 5(1) of the Act provides:

“(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.”

Section 5(6) of the Act provides: —

(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.

The issue for decision in relation to the Complainant’s complaint is whether or not the respondent has made unlawful deductions from her wages contrary to Section 5 of the Payment of Wages Act 1991.

Although I accept the bona fides of the Complainant, from the evidence adduced it is clear that no unlawful deduction (s) has been made.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

The complaint is not well founded.

CA-00044385-002 Complaint under section 77 of the Employment Equality Act, 1998.

Summary of Complainant’s Case:

The Complainant gave oral evidence at the hearing in relation to this complaint (Affirmation). She stated that having received advice from a WRC representative she understood that she should file a complaint, on the matter of her salary, under the Employment Equality Act. When completing the WRC Complainant Form a Pop-Up box appeared and she could not move forward in the process until she ticked a box and that is why she chose the age ground.

The Complainant stated that her complaint is not related to age, and it was to do with not receiving equal pay. The Complainant stated that she unaware of the connotations of using this act.

Summary of Respondent’s Case:

The Respondent submits that the Complainant has failed to establish a presumption of discrimination on grounds of age in relation to pay.

Findings and Conclusions:

The general rule in the context of the burden of proof is that the burden lies on the party asserting a particular claim.

I have examined whether the Complainant has established a prima facie case of discrimination. The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”. It continued:

“It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

In this instant case, the Complainant has stated that her complaint has nothing to do with age. I find therefore that the Complainant was not discriminated against.

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.

The Complainant was not discriminated against.

Dated: 20th October 2022

Workplace Relations Commission Adjudication Officer: Roger McGrath

Key Words:

Age, discrimination, pay