Complainant

Respondent

Parties

Alan  Walsh

Johnston Mooney and O'Brien Bakery

Representatives

 Josephine Walsh

IBEC

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-00051197-001

16/06/2022

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

CA-00051197-002

16/06/2022

The complainant has been employed by the respondent for approximately 33 years. There were two complaints submitted to adjudication. The first complaint relates to the non-payment of a 3% pay rise in January 2022. The second complaint relates to alleged discrimination on the age ground in relation to an assertion by the complainant that he is not receiving equal pay in respect of a named comparator doing like work. The complainant asserts that his age is the reason he is not in receipt of equal pay.

This complaint relates to the non-payment of a pay increase to the complainant with effect from 1st January 2022. The complainant contends that other colleagues in the same role as him received a 3% pay rise and that he did not.

The respondent outlined its position by way of written and verbal submissions. The respondent stated that the complainant was initially employed as a baker and became a General Operative (G.O) in 2005 and has continued in that role to date. The respondent outlined that the complainant, although employed as a G.O. has retained the higher rate of pay applicable to a baker. The respondent stated that the complainant’s hourly rate of pay is €19.52 per hour. The G.O. rate is currently €13.03 per hour. The respondent stated that the 3% increase in pay was not applied to the complainant because his hourly rate of pay is well in excess of the G.O. rate of pay and the respondent stated that further pay increases will not be applied to the complainant until his rate of pay aligns to the rate of pay of the other GO’s. The respondent contends that the complainant was informed of this in 2019.

The respondent further stated that there is no contractual entitlement to pay increases and there are no collective agreements within the organisation. The respondent stated that pay increases are awarded periodically on a discretionary basis across all areas of the business.

The respondent concluded by stating that the complaint is without merit and should not succeed

In the within complaint, the complainant feels aggrieved due to the non-payment of a pay increase to him which was paid to all other G.O.’s within the organisation on 1st January 2022. The complainant was represented by his wife at the adjudication hearing and did not give direct evidence.

I note that aside from this issue, there is a very positive relationship between the complainant and his employer and the respondent confirmed at the adjudication hearing that the complainant is a well regarded and valued staff member.

In relation to the complaint under the Payment of Wages Act, 1991, there was no contractual entitlement for the complainant to receive a pay rise with effect from 1st January 2022 and the complainant is already in receipt of a differential in pay amounting to approximately €6.49 per hour compared to his colleagues in the same grade. In 2019, it was clarified to the complainant that there would be no additional pay rises paid to him until his rate of pay aligned to the pay rates of the other G’O’s. Having considered the matter I am satisfied that the respondent has not breached the legislation as claimed.

Having considered the matter, I find that the complaint is not well founded.

The complainant asserts that he is not in receipt of equal pay on the basis of his age. The complainant cited a named comparator. The inequality in terms of pay as claimed relates to the payment of a 3% pay increase which the complainant did not receive on 1st January 2022.

The respondent contends that the complainant has not satisfied the burden of proof as required in accordance with Section 85A of the Employment Equality Act, 1998 that he discriminated against by virtue of his age. The respondent’s position is that the complainant is paid approximately €6.49 more per hour than the named comparator and therefore cannot show any less favourable treatment on the grounds of age or at all. The respondent contends that the complainant is misguided in respect of the complaint submitted and that the complaint should fail.

The complainantasserts that he was discriminated against on the age ground with regard to not receiving equal pay in contravention of Section 29 of the Employment Equality Act, 1998 when he did not receive a 3% pay rise when a named comparator did receive the pay rise. The complainant’s representative stated that the complainant felt that his age was the reason that he did not receive the pay rise. The respondent’s position was that the non-payment of the pay rise was unrelated to the complainant’s age and was instead because he was in receipt of an hourly rate of pay that was well in excess of the other employees within the same grade, including the named comparator. The respondent stated that the complainant was informed in 2019 that he would not receive further pay rises until his rate of pay was aligned to the rates of pay received by the other G.O’s.

The Applicable Law

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

6.(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,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

Burden of Proof

Section 85A of the Employment Equality Act, 1998 provides as follows:

85A (1) 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.

Conclusions

I have considered the submissions of both parties to the within complaint and am satisfied that the complainant was not discriminated against on the age ground in respect of the non-payment of the 3% pay increase. Accordingly, I find that the complaint is misconceived.

Having considered the written and verbal submissions of both parties, I find that the complaint is misconceived and is therefore not well founded.

Equal Pay, discrimination