Complainant

Respondent

Parties

Tom Mulhall

Seafield Hotel & Spa

Representatives

Self-represented 

William Wall

Act

Complaint Reference No.

Date of Receipt

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

CA-00046621-001

11/10/2021

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

CA-00046621-002

11/10/2021

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

CA-00046621-003

11/10/2021

The complainant outlines that he was unfair dismissed and discriminated against on grounds of age, including equal pay. The respondent denies the claims.

On affirmation, the complainant said that he commenced the role in August 2010 and was paid €12 per hour. He was assigned tasks by the general manager, the housekeeping manager and the facilities manager. He repaired the heating, pool pumps and boilers. He said that he was paid less than three named comparators, who were younger than him and this was discrimination on grounds of age.

The complainant resigned on the 27th July 2021. This was the day after he received the grievance outcome. On the 8th June 2021, he was speaking with a colleague on the phone when the complainant heard the facilities manager speak with the colleague and say ‘why did you phone that f****** eejit’. The complainant said that the facilities manager was speaking about him.

The complainant said that an unnamed source had told him that there were discussions about the ending of his employment. The complainant said that he could no longer work for the facilities manager and had suggested reporting to someone else. The complainant had not accepted the apology of the facilities manager. In cross-examination, it was put to the complainant that the facilities manager was the only facilities manager in the respondent business.

The facilities manager commenced in 2019 and the complainant received no call out work after this. The complainant had regularly called out under the predecessor. The facilities manager had suggested to the complainant that he retire and return as a contractor. It was also suggested to the complainant that he should be cocooning during the pandemic.

The complainant outlined that his qualifications were second to none. He had asked for pay rises on many occasions and the respondent hired staff on higher rates of pay. The comparators were not better qualified than he was. He had started his career as a maintenance fitter and progressed to being maintenance supervisor and then moving to a managerial role.

The respondent denies the claims of unfair dismissal and discrimination in contravention of the Employment Equality Act. The respondent had investigated and upheld the complainant’s grievance.  There was no repudiation of contract, and it was not reasonable for the complainant to have resigned. It had informed the complainant that it did not want him to resign.

The respondent outlined that the complainant opted for a formal grievance investigation, and it substantiated the grievance. A letter of concern was issued to the facilities manager, who apologised. While the complainant’s pay was mentioned during the grievance process, there was no specific grievance on pay. He was offered this but affirmed that he wished to resign.

The facilities manager gave evidence under affirmation. He said that rates of pay are based on staff member’s experience and what they bring to the table. He acknowledged that the complainant had more plumbing knowledge than one named comparator, but this person had more electrical knowledge. While the comparator was not RECI registered, he did a wider range of roles. The comparator was on €13.50 per hour, then €14.50 per hour.

The second comparator was a very experienced builder and general operative. He had run his own company. He was paid €17.25 per hour. The third comparator had worked for a time. He was a time served plumber with great experience in hotels. He had been paid €17.75 per hour.

CA-00046621-001

Constructive dismissal – burden of proof

The definition of ‘dismissal’ in section 1 of the Unfair Dismissals Act sets out that dismissal includes ‘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 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.’

This definition sets out two circumstances in which an employee might consider themselves to have been dismissed by the ‘conduct’ of the employer, i.e., where they were ‘entitled’ to terminate their contract or where it was ‘reasonable’ for them to do so.

An employee is ‘entitled’ to consider themselves to have been dismissed when the employer has repudiated the contract of employment. It is ‘reasonable’ for the employee to consider that they have been dismissed when they can no longer be expected to put up with the ‘conduct’ in question.

Substantive findings

I appreciate how demeaning and offensive the facilities manager’s comment of the 8th June was. It was not banter. I can see why the complainant would not accept the apology of the facilities manager. I understand why the complainant decided to no longer work for the facilities manager.

The question, however, is whether the circumstances meet either test of constructive dismissal. Having considered the evidence, I find that they do not.  The respondent proactively investigated the grievance and came to a sound conclusion. It abided with the terms of the contract of employment. While I appreciate the complainant’s displeasure, I do not find that the circumstances made it reasonable for him to resign. He could have continued his employment and raised any subsequent issues via the grievance procedure.

I, therefore, dismiss the claim of unfair dismissal.

CA-00046621-002

This is a complaint of discrimination on the age ground pursuant to the Employment Equality Act.

Burden of proof

Section 85A of the Employment Equality Act and Article 10 of the underlying Framework Directive (2000/78/EC) require that a complainant establish facts of such significance that raise the inference or presumption of discrimination.

In line with the well-established Labour Court authorities of Mitchell v Southern Health Board [2001] ELR 201 and Valpeters v Melbury Developments [2010] ELR 64, what constitutes something of such significance to raise an inference of discrimination varies according to the relevant factual matrix in each case. If the relevant facts are within the exclusive knowledge or near-exclusive knowledge of the respondent, then the inference or presumption is quickly raised; it falls on the respondent to show that there was no breach of the principle of equal treatment. A complainant’s ‘mere assertions’ will not raise an inference of discrimination where there are relevant facts which the complainant can be expected to ascertain. It is not an onerous initial burden for a complainant to meet.

Substantive finding

I have addressed the equal pay aspect of the claim below. In respect of the non-pay issues, I find that there is insufficient evidence of any discrimination on grounds of age. While I accept that the complainant’s position eroded with the arrival of the facilities manager, there is no fact of such significance that points to age discrimination (other than equal pay, addressed below).

CA-00046621-003

This is a complaint of discrimination on the grounds of age in respect of a contravention to equal remuneration.

Section 7 defines ‘like work’ in the following terms:

‘(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.’

According to section 29 of the Act, an employee engaged in ‘like work’ with another is entitled to equal remuneration, provided they have the same or reasonably comparable terms and conditions of employment.

The complainant was paid €12 per hour; his comparators paid €13.50, then €14.50 per hour, €17.25 per hour and €17.75 per hour. The complainant is, by far, the eldest of the group.

The complainant and the facilities manager gave an outline of the work histories of the complainant and the three comparators. It is striking that they have so much in common. They are all experienced professionals who have acquired skills on the job in many roles. They all are certainly time served in the specialities they have acquired.

Substantive findings

I find as fact that the complainant and the comparators brought similar sets of skills and experience to the table. They did like work. The Employment Equality Act requires that they receive equal remuneration. The complainant was paid less than each of the comparators.

Applying the burden of proof set out in section 85A, I find that the complainant has pointed to facts of such significance that raises the inference of discrimination. The complainant was older and as skilled and experienced as the comparators yet paid less. The respondent has not rebutted the inference of discrimination. There was, therefore, a contravention of the Employment Equality Act.

I find that the complainant was underpaid on grounds of his age for at least three years. One comparator earned €13.50 and then €14.50 when the complainant’s pay did not change. The other comparators earned €17.25 and €17.75. The complainant was underpaid on grounds of his age for some time, at least as long as the three years permitted by the Employment Equality Act. Given the disparity in pay and the length of time the complainant was underpaid, I make an award of €8,000.

CA-00046621-001

I decide that the complainant was not unfairly dismissed and I, therefore, dismiss the claim of unfair dismissal.

CA-00046621-002

I decide that the complainant has not established a prima facie case of discrimination on grounds of age (other than equal pay) and the within claim is, therefore, dismissed.

CA-00046621-003

I decide that the complainant has established a case of discrimination on grounds of age in respect of equal remuneration and the respondent has not rebutted the inference of discrimination. I decide that the respondent shall pay to the complainant redress of €8,000.

Employment Equality Act / equal pay / age