Complainant

Respondent

Parties

Przemyslaw  Ciesielski

Rentokil Initial

Representatives

  Self- represented

Mr. Thomas Wallace- O’Donnell, B.L., instructed by Dundon Callanan Solicitors

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-00053594-001

07/11/2022

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

CA-00053594-002

07/11/2022

The complainant contends that the respondent discriminated against him on family status grounds, contrary to the provisions of the Employment Equality Acts,1998-2015 when the respondent failed to apply salary increases to him in July 2022.

He was employed as a relief service driver with the respondent pest control business from 26/8/2019 to 11/1/2023.

His gross monthly salary was €1950.

He submitted his complaint to the WRC on 7/11/2022.

Evidence of the complainant given under affirmation.

The complainant initially stated that the respondent discriminated against him on family status grounds when they failed to provide him with the same or similar pay increases as those afforded to other employees.

When the undersigned explained what family status meant, the complainant expanded his complaint to include discrimination on the grounds of age, explaining that the newer employees were offered a salary of 3 % above his own. He was not able to name a comparator amongst the newer set of employees.

The respondent made a salary increase conditional upon completing a number of courses. The complainant completed all courses bar one. Upon questioning he stated he does not know if others who failed to complete this same course got a salary increase. He does know that some people got an increase, others, not. He does not know if this requirement to pass this name course was imposed on all staff.

To pass this online course, he had to use his phone. Other staff had access to computers and the office. It was difficult to complete this online course on a telephone. He was later provided with a bigger device for online courses, but it was too late at that stage.

Cross examination of witness.

The complainant confirmed that he put forward the MD as a comparator.

The complainant stated that it was most unfair that because he failed to push the send button on completing the course that he was denied the 3% pay increase.

He could not confirm if other long-standing employees who failed to get the 3% increase.

The respondent denies that they discriminated against the complainant on any of the proscribed grounds contained in the Acts.

The respondent contends that the complainant has failed to raise a prima facie case of discrimination and the complaint, therefore, can proceed no further.

The respondent states that the comparator identified by the complainant, the Managing Director, does not do like or similar work to the complainant.

The respondent advised that they introduced a salary review/ upgrading of scale in 2022. One of the prerequisites was the completion of what was termed the Mandatory U Plus courses. The complainant did not complete one of these mandatory courses, the GDPR and Data Privacy course. This was the sole reason that the complainant did not receive a salary increase in July 2022. It is correct that he started it but did not complete it and did not send the completed response to the Operations Manager.

Many staff failed to get the 3% pay increase. It is correct that employees who commenced work after the complainant got the pay increase but that is because they had completed the required courses.

Evidence of Operations Manager given under affirmation.

The complainant reported to the witness. The witness recalls that the complainant came to his office to do the GDPR and Sales Privilege course. He does not recall the complainant stating that he had any difficulty completing the course on the phone and the complainant did not ask to use a laptop.

Cross examination of the witness.

The witness does not remember giving the complainant a high five on completion of the exam

Evidence of HR Advisor given under affirmation

 The witness advised that 45 of the 350 staff did not get a pay review. Of these 45, 33 did not complete the course. These thirty-three staff were not new but were existing employees. The witness referred to a list of employees who did not secure the salary increase because they did not complete one of the specified courses necessary for salary  progression.

The witness sent a reminder to the list of employees who had not completed the mandatory courses and the Operations Manager followed up with these employees.

He confirmed that this reminder offered the complainant another opportunity for the complainant to have gotten a pay rise had he completed the course.

The respondent asks that I dismiss the complaint.

I am required to establish if the complainant was discriminated against on grounds of family status contrary to section 6 (2)(b) and (h) of the Acts.

Relevant law.

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where

“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)”.

Section (2) provides

“As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for purposes of this Act) are

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”,

Burden of Proof.

Section 85A of the Employment Equality Acts 1998-2015 lays the onus of proof with the complainant to establish a prima facie case of discriminatory treatment contrary to the Acts. Section 85A of the Acts provides that facts must

“established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him/her”

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201 the Labour Court concluded that

 “a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. 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. Applied to the present case, this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed.”

In order to show that a prima facie case exists, the complainant is obliged to satisfy three elements of a test laid out in In Minaguchi v Mr. Ray Byrne, T/A Wineport Lakeshore Restaurant DEC-E/2002/20 and in other decisions. They are:

- That s/he is covered by the relevant discriminatory ground(s);

- That s/he has been subjected to specific treatments; and

- That this treatment is less favourable than the way someone who is not covered by the relevant    discriminatory ground is, has been or would be treated.”

Application of the laws to the circumstances of the instant complaint.

Is the complainant covered by the relevant discriminatory ground?

The complainant was unable to identify a comparator, possessing a different family status to his own and doing the same or similar work, who was treated more favourably than him and had been awarded the 3% pay increase despite not having completed the course. He did not contest the respondent’s evidence that the 33 colleagues who had not completed the course failed to secure the 3% increase. He was unaware of the family status of those who had not completed the course. His knowledge of the application of the pay increase was confined to the fact that sone employees and received the increase.

The complainant accepted that he while he had completed the course, he had failed to push the send button. He did not contest the respondent’s evidence that he was given a further opportunity to complete the course and earn the 3 % salary increase, as a result, in January 2023. It may have been a harsh outcome for failing to push the send button, but the issue here is whether this resulted in less favourable treatment than a person of a different family status as opposed to speculating on the difference in treatment.

 The same is true for his late expansion of this complaint to include age discrimination as it was the newer employees who got the increase. He was unable to point to a comparator doing the same or similar work who was of a different age to the complainant had not completed the course yet had received the 3% pay increase.

The complainant has been unable to demonstrate that he comes within any of the protected grounds cited, which is a sine qua non for the establishment of a prima facie case and the consequential obligation moving to the respondent to rebut the inference of discrimination.

The evidence indicates that it was the fact of his not having done the GDPR and Data Privacy course and not the family status or age profile of the employees which dictated who was to receive the pay increase.

I do not find that that the complainant has established facts from which discrimination based on family status grounds or age can be inferred. Therefore, his complaint cannot succeed.

I decide that the complainant has failed to raise an inference of discrimination and his complaint, therefore, cannot succeed.

No prima facie case of discrimination.