Complainant

Respondent

Parties

Peter  Ogurčak

Mercato Ltd.

Representatives

 Independent Workers Union (IWU)

 Self-represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00056547-002

09/05/2023

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

CA-00056547-003

09/05/2023

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

CA-00056547-004

09/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00056547-005

09/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00056547-006

09/05/2023

In attendance were:

For the Complainant:

Mr. Tomás Ó Siocháin, of the IWU

Mr. Peter Ogurčak - the Complainant

For the Respondent:

Mr. Alan Leahy, MD of Mercato Ltd., the Respondent

CA-00056547-002 was withdrawn at hearing.

CA-00056547-003: The Complainant submitted that he was discriminated against on the basis of race in respect of equal pay. He identified a named comparator, DG, an Irish national. The Complainant earned €5,000 more per year than his comparator but submits that he worked an additional 250 hours per year – the basis for the calculation is that the Complainant submits he worked from 5pm – 6pm, Monday – Friday, but his named comparator was facilitated in getting an earlier bus home, resulting in the Complainant earning less than this comparator, when the hours worked were taken into account. He also submitted that he did a disproportionate amount of over-time (after 6pm) as compared to his named comparator. However, at hearing, the Complainant accepted that he received TOIL (time off in lieu) in respect of any time worked after 6pm. The Complainant’s representative submitted that his case pertained to equal pay only, that they were advancing no allegation of racial discrimination in relation to how the Complainant was treated by his former employer, other than pertaining to equal pay. The Complainant submits that the alleged discrepancy can only be explained by nationality.

CA-00056547-004 – The Complainant submits that as a result of over-time worked after 6pm, he did not receive his daily rest periods, in line with the applicable legislation.

CA-00056547-005 – The Complainant submits that he did not receive a contract from his employer.

CA-00056547-006 – The Complainant submits that he previously received a ‘bonus’ of €3,000 per annum, from 2019 onwards, which ceased after his move to Slovakia in 2021, which he submits is a breach of the implicit terms of his employment. He disputes the Respondent’s submission that this was a subsistence payment, and submits that it was, instead, a bonus payment that did not bear any real connection to site visits; and that it was negotiated between the Complainant and Respondent after the Complainant received a job offer with a higher salary, from a competitor. It is submitted that the payment persisted when there was reduced site work due to Covid.

The Respondent denies the Complainant’s claims. It rejects the assertion that there was any disparity in pay based on race, and points to the fact that the Complainant was in fact better paid than his named comparator.

The Respondent submits that the named comparator started working as an employee for the Respondent in 2021; and it submits that it facilitated the Complainant in moving home to Slovakia in August 2021, initially on a temporary basis – the Complainant requested the move for a few months, based on accommodation difficulties in Cork and his mother having had surgery and, was certain at that point, that he would be back to Cork. The Respondent submits that there was no formal plan at that point.

The Respondent concurs with the Complainant’s submission that it was then agreed that the arrangement would become permanent, and the Complainant would continue to work for the Respondent company, from Slovakia.

The Respondent submits that the ability to visit customers on site is a crucial part of the role, and something the Complainant could no longer do, once he moved back to Slovakia.

The Respondent submitted that hardware sales and supports constituted about 50% of the role, whereas the Complainant submitted that he could do almost all of the role remotely - approximately 95% of the role.

The Respondent submitted that the other employee (the named comparator) was able to fill in for Alan Leahy, MD, with customers, in person and on site, and took on that role.

CA-00056547-004

In relation to the overtime, the Respondent submitted that the Complainant had discretion as to when (after 6pm) he did the over-time work, that there was no evidence to show that the Complainant worked at 10 pm or 11 pm, which is what would be required to establish the breach of the governing legislation alleged; and that the Complainant received TOIL for over-time done after normal working hours (9am-6pm, Monday to Friday). It was explained that the over-time involved running updates, which were not critical or time-sensitive, for clients on their software, outside of the client’s working hours, which is why it could not be done during normal working hours.

CA-00056547-005

The Respondent submits that the Complainant received a contract in December 2014, which it submits was printed out and signed by the employer; and queried“Where did the hours of work of 9-6 come from?”, which the Complainant had relied upon, and submitted that the normal working hours were set out in the contract that the Complainant received.

CA-00056547-006

The Respondent submitted that the ‘bonus’ referred to was not a bonus, but instead a daily subsistence rate of approximately €15 euro per day. It was submitted that Mr. Alan Leahy, MD also takes subsistence payments when he is out of the office. It was submitted that the payments were linked to days the Complainant spent out of the office, and were therefore variable and ad hoc.

It was submitted that in 2022, the rate was far less than previous years; that by contrast 2020 and 2021 were even busier than usual due to supporting clients who were setting up Work From Home (WFH) arrangements for their employees, in the context of Covid-19. 

Both sides submitted comprehensive written submissions, in advance of the hearing.

The Complainant gave evidence on his own behalf, under oath, and was subject to cross-examination.

CA-00056547-003

The Complainant submits that he was discriminated against on the basis of nationality, as he submits that he received less renumeration than his former co-worker, DG. He submits that he worked greater hours than him, and had been employed by the company in his position for a considerably longer amount of time. He submits that he regularly worked an hour longer each day (between 5pm and 6pm) than his colleague, despite holding the same position, and he submits that he was obliged to carry out the majority of overtime, which often occurred at night. For these reasons, he believes that the only reason for the discrepancy in their renumeration was on the basis of nationality.

CA-00056547-004

The Complainant submits that he regularly had to log on to work during the night, and then begin work again the next morning at 09.00. He submits that this resulted in him often not being able to get the benefit of the daily rest period, to which he is entitled.

CA-00056547-005

The Complainant submits that he never received or signed a written statement of his terms of employment.

CA-00056547-006

The Complainant submits that while he never received written terms of employment, it was an implicit term of his employment that he received a €3,000 bonus every year. This stopped in 2021 and he submits that he was never given notice of this or informed why it stopped.

SUMMARY

The Complainant was employed by Mercato Ltd. (T/A Wave IT) from December 4th 2014 to January 1st (2nd) 2023. He worked in client IT support – he submits that his role involved client IT support, the majority of which was completed through phone or email, with the occasional in-person visit to client premises. In 2021, with the consent of his employer, the Complainant who is Slovakian relocated to Slovakia, and worked remotely for the Respondent.

On December 21st 2022, the Complainant wrote to Mr. Leahy, MD of the Respondent company, raising a grievance relating to what he perceived to be his extra working hours, overtime, and a lack of salary increase. Following some correspondence back and forth between the parties, the Complainant submitted his resignation.

CA-00056547-002 – Hours of Work

The complaint was withdrawn at hearing.

CA-00056547-003 – Equality claim – Equal Pay – Employment Equality Act

The Complainant submits that he was discriminated against on the basis of nationality/race by his employer, in relation to “equal pay.” He submits that he received proportionately less remuneration than any of his colleagues, and had a greater degree of responsibility in the workplace, and had worked for the Respondent for a longer length of time than his co-workers. Mr. Ogurčák is a Slovakian national. The named comparator for this complaint is his Irish colleague DG, who the Complainant submits completed like-work to Mr. Ogurčák. The Complainant was earning approximately €5,000 per year more than his named comparator, but it is the Complainant’s submission that he worked between 5 pm and 6pm every day, and his comparator did not, which it is the Complainant’s submission translates into 250 hours more work per year, and therefore it is his submission, that he was comparatively more poorly paid than his named comparator when his additional hours are taken into account, and his remuneration is worked out proportionately.

The Complainant submits that following his move to Slovakia, he did not receive the annual bonus payment of approximately €3,000, which he submits was agreed between him and Mr. Leahy, MD of the Respondent company. The Complainant submits that this constitutes a unilateral change to his terms and conditions, made by the Respondent, without his consent. He submits that his comparator received a comparable bonus, and he submits that this further contributed to the disparity in proportional remuneration between the two employees.

It is submitted that in light of the Complainant’s longer length of service with the company and greater degree of responsibility, that the only reason for the disparity in remuneration between the Complainant and his nominated comparator is discrimination by the Respondent on the basis of nationality.

CA-00056547-004 – Daily Rest Period

The Complainant submits that he was regularly required to work beyond his rostered 09.00 to 18.00 working hours in order to complete necessary functions, relating to server maintenance among other matters. This overtime ranged from five minutes in length to an hour or more, sometimes occurring as late as midnight.

Despite these instances of having to work late in the evening or night, the Complainant was still required to report for work the following day at 09.00. This meant he was regularly unable to avail of his entitlement to 11 hours daily rest period between shifts.

CA-00056547-005 – Terms & Conditions of Employment

Despite having been employed by Mercato Ltd. since 2014, the Complainant submits that he never received any written terms and conditions of employment.

The Complainant submits that he never received a copy of the unsigned contract, which the Respondent has submitted, in these proceedings.

CA-00056547-006 – Change to Terms & Conditions of Employment

In 2019, the Complainant submits that having received a competitive job offer from another company, he negotiated with Mr. Leahy to receive a yearly bonus of approximately €3,000, the payment of which was to spread throughout the year. This was a verbal agreement.

It is submitted that this bonus was not a subsistence payment and bore no tangible relation to expenses from out of office visits. The payments continued during periods of Covid lockdowns and restrictions, where client location visits were minimal. Mr. Leahy refers to the payments as a “bonus” in correspondence with the Complainant. It is submitted, on behalf of the Complainant, that the retroactive accounting of these payments as “subsistence payments” appears to have been for taxation purposes, rather than a reflection of the actual nature of the payments.

In 2021, it is submitted that the bonus payments to the Complainant were ceased without explanation. The Complainant submits that this change to the Complainant’s implicit terms and conditions of employment without notice, amounts to a breach of the Terms of Employment (Information) Act, 1994.

The Adjudication Officer, at the hearing, requested that the Complainant’s representative address her in relation to the “cognisable period”:

-        He submitted that the race-based discrimination ran to the end of the Complainant’s employment.

-        He submitted that the complaints raised in respect of the Complainant’s terms and conditions of employment were ongoing, that in respect of the ‘bonus’ payments, the claim pertained to regular payments within a period.

-        He submitted that he had no comment on cognisable period with regard to daily rest break.

Mr. Alan Leahy, MD of the Respondent, gave evidence on behalf of the Respondent, on affirmation, and was subject to cross-examination. He had prepared a comprehensive submission in advance of the hearing, and relied upon it.

He went through addressing the following points:-

The Respondent submits that the Complainant requested to move to Slovakia, initially on a temporary basis for a few months due to a number of reasons, in particular, difficulty finding accommodation due to the housing crisis in Cork, and the health/care of a family member who was recovering from a surgery, in Slovakia. It is common case that that arrangement became permanent, by agreement of both parties.

The Respondent disputes the Complainant’s assertion that all (or almost all) of his previous duties could be done remotely. It submits that in-person visits to client premises are a critically important part of its service to clients. It particularly highlights the maintenance of central offices systems like servers and also assisting employees working from home. It submits that visits to client premises are necessary to resolve issues which cannot be solved remotely, and gives examples, such as:

- systems being offline               

- hardware installation and upgrades

- equipment delivery and collection

- desk setups for new employees

- cabled networking and Wifi network deployment

- printing problems which are not possible to troubleshoot without being hands-on

- diagnosing network and Wifi problems – examining hardware, wiring etc for faults

It submits that during Covid-19, the need for onsite visits increased as although its clients’ staff were mainly working from home, the Respondent continued to work on the central system

and servers located at client offices and to meet company management on site. It highlights that these systems were the enabling infrastructure to allow employees to work from home and dial in

remotely to central servers and therefore our work constituted a valid reason to allow us to make

essential journeys. It also highlights that its employees were designated as essential workers during the Covid-19 lockdown and allowed to travel in order to complete their work beyond the generally restricted radius of travel.

CA-00056547-003 – Discrimination based on Equal Pay – Race Ground

The Respondent submits that, in 2022, the Complainant was paid a salary of €2,950 gross per month, (€35,400 per annum), which the Respondent submits is €430 gross more per month than his named comparator.

In terms of the allegation of doing an additional 250 hours per year by the Complainant as compared to his comparator, this is disputed by the Respondent. While it acknowledges that it facilitated the comparator to take an earlier bus, in the evenings, it rejects the conclusions the Complainant has drawn as a result. It further submits that the named comparator often did extra work prior to the working day, from 8 am onwards. (The Complainant denies this). It further submits that sometimes the comparator did some work - answering emails etc. - while travelling. (The Complainant denies this too).

The Respondent also submits that the Complainant received time-off-in-lieu (TOIL) for any work completed after 6pm, always equal to or greater than the time worked. It was calculated in fifteen (15) minute increments, rounded up, i.e. if the Complainant worked 10 minutes overtime after 6pm, he would receive 15 minutes TOIL, if he worked 25 minutes, he would receive 30 minutes TOIL.

The company further submits that it is not obliged to offer every employee identical working terms,  - that relevant considerations include different levels of certification, experience, and aptitude, but it emphasises that the Complainant was paid a substantially higher salary than his named comparator.

The Respondent rejects the Complainant’s allegation of racial discrimination.

The Respondent submitted that the Complainant did not have a greater degree of responsibility for clients and systems from 2021 onwards; and that the Complainant’s named comparator became much more central once the Complainant was working from Slovakia, but nevertheless the Complainant’s salary exceeded that of his named comparator by a significant amount annually (c. €5,000).

CA-00056547-004 – Daily Rest Period

The Respondent denies the Complainant’s claims in respect of daily rest periods. It submits that on the occasions when the Complainant carried out some overtime work, he first went home at 6pm, then later in the evening worked remotely on customer servers or networks, usually (90% of the time) for less than an hour. It submits that a brief period worked as overtime on a weekday in the evenings, up to 10 pm, does not contravene the requirement for 11 hours consecutive rest, for an employee who starts work at 9 am the following day. It further submits that time worked as overtime on Friday evenings, or on a Saturday or a Sunday during the day does not contravene the requirement for 11 hours consecutive rest for an employee normally working Monday to

Friday.

It submits that on only five (5) occasions in 2022, the Complainant logged an hour or more on any weekday evening. It submits that it does not accept that there was any significant amount of “instances of having to work late in the evening or night.” It furthers submits that the Complainant was at liberty to carry out this work remotely on customers’ systems at any time after normal business hours and was not directed to work late in the evening or at night, and that he received time off in lieu (rounded up in fifteen (15) minute increments) for any overtime which he carried out, after 6pm.

CA-00056547-005 – Terms & Conditions of Employment

The Respondent denies the Complainant’s claim that he never received a copy of his contract. It submitted a copy of a contract, which it also provided to the Complainant and his representative when the Complainant raised this complaint. The Respondent submits that this is the electronic version of the original contract which was printed out and signed by the employer (Alan Leahy on behalf of Mercato Ltd) before being handed to Peter in early December 2014.

It submits that a WRC inspection (Ref INS-Z4SYHV) was undertaken at the premises of Mercato Ltd. on 18th July 2023 and all employment records, employee contracts, timesheets etc were found to be maintained in keeping with legislation.

CA-00056547-006 – Change to Terms & Conditions of Employment

€3,000 ‘Bonus’

The Respondent rejects the Complainant’s assertion that he was ever in receipt of a €3,000 bonus. It submits that the only bonus both the Complainant and his named comparator received was €500 each.

It submits that the figure of approximately €3,000 is not a bonus, but in fact a subsistence payment, paid at civil service rates. That it equated to approximately €15 per day, when the Complainant did site visits, and that it was treated as a subsistence payment, for tax purposes, i.e. it was not subject to tax. It further submits that when the Complainant moved back to Slovakia, he was no longer able to conduct site visits to clients, and therefore was not in receipt of subsistence payments.

The Respondent also submits that the Complainant did not raise this matter in 2021 and 2022 when still employed by the company and no longer receiving the subsistence payments.

It denies the Complainant’s assertion that it resulted from a job offer from a competitor. It submits that the payments which are referred to were clearly explained to the Complainant to be subsistence payments for time spent outside of the office and were dealt with as such in the company’s accounts and in the Complainant’s income tax arrangements with Revenue. It submits that no evidence is provided by the Complainant to show otherwise; nor did the Complainant raise this matter in 2021 and 2022 when still employed by the company and no longer receiving the subsistence payments. It is submitted that the email (at Appendix 3) referred to in the Complainant’s complaint confirms that the payments were intended as subsistence expenses payable in relation to visits to client offices. It is submitted that the word “bonus” is used loosely in that email, as the payments do not have to correspond to vouched expenses.

It submits that the Complainant undertaking site visits by himself was of value to the company as it allowed the Directors to spend more time on administration and management tasks, and it was therefore appropriate to pay subsistence at the allowed tax-free rates.

The Respondent points to the fact that no objection to these payments ceasing in 2021 was raised by the Complainant when he relocated to Slovakia. It submits that no explanation was not sought nor required, as these payments were always clearly linked to visits to clients’ premises.

The Respondent submits that no breach of the Terms of Employment (Information) Act occurred.

It submits that:

1) These payments were linked to making visits to clients

2) These payments did not form part of the Complainant’s terms & conditions of employment

3) These payments were no longer made when the Complainant moved to Slovakia, as he was then unable to visit clients.

Calculation of Subsistence payments

A copy of a spreadsheet used for calculation of the subsistence payments to the Complainant in the years from 2019 to 2020 was submitted. It is submitted that each payment was calculated from timesheet records for the relevant period, that visits to clients’ premises and to their employees’ places of work continued during lockdown periods in 2020.

It is submitted that the frequency of on-site visits can be seen to have reduced in 2021, as most employees were settled into the working from home environment and the proportion of remote support was increasing, e.g. in the period January to June 2021, a subsistence payment was made on only fifty-four (54) of the one hundred and twenty (120) working days for the six (6) month period. Reflecting this, the subsistence payment made in 2021 was substantially lower compared to previous payments. (120 days is based on the average number of working days in a month being 20, which takes account of bank holidays and 20 days Annual Leave).

It is submitted that an analysis of the amounts paid in 2019 and 2020 analysed on a monthly basis, the average is as follows:-

€260 per month in 2019

€240 in 2020

It is submitted that in 2021 the average amount paid per month was €160.

It is submitted that the calculations show that these payments were variable, not a fixed annual amount, and had reduced in 2021 by over 40% on a monthly basis compared to 2019.

He made additional remarks, as follows:-

In relation to the allegation of racial discrimination, he said that he could not see how any evidence had been put forward for that, that the Complainant was compensated “fairly generously”, that he “got a salary increase in 2022, not as much of an increase as DG [the named comparator] but that DG was coming from a much lower base.” He also said that DG had the ability to do certain things (complete certain tasks) that the Complainant did not, as DG was based in Ireland and the Complainant was based in Slovakia.

He said that the Complainant was a salaried employee who was allowed to claim TOIL (time-off-in-lieu) of any overtime logged after 6pm.

Mr. Leahy submitted that all employees were treated fairly, that the Complainant’s roles and responsibilities in the company were not the same from the time he moved home, that DG became a central figure in the office (along with Mr. Leahy, MD).

In relation to the contract of employment, he said that a signed copy was given to the Complainant in December 2014, that there was no obligation to sign it or return it to the employer [by the employee] but that it was signed by the employer.

He said that he had fully addressed the issue of the daily rest period already.

He gave some examples of the work the Respondent company was doing and the necessity to be on site for big clients, saying that in one instance DG had been on site for a client for a full week working on a project involving migrating from one system to another. He said that the Respondent company did have to replace the Complainant with another employee in 2023, that while part of its work was remote, it was not fully remote, and that the Complainant’s assertion that 95% of the work could be done remotely was unfounded and inaccurate.

The witness said that once the Complainant moved to Slovakia, the Complainant’s range of tasks was reduced, that his responsibility reduced because of the importance of going to meetings with clients which he said was ‘very important.’ He said that the Complainant was no longer able to do that. He emphasised the importance of a physical presence in the office, and the importance of an employee to be able to represent the MD (Mr. Leahy), to take his place on the road, travelling to meet clients.

In relation to the €3,000 and whether or not it was set out in payslips, he said it was set out in the form of Excel sheets, that the Respondent company does not run a payroll system. He said that the breakdown was:- The gross salary figure was €2,950, the nett salary figure was €2,450 and the subsistence payments were in addition to salary and were not taxable.

On Cross-examination

The witness was asked what spurred the beginning of the subsistence payments, as the Complainant had first received the subsistence payments in 2019, but had been visiting sites prior to that. The witness confirmed that the Complainant had been visiting sites since 2014 onwards. He said that previously, he and the Complainant went together, that he (the MD) may have bought him lunch etc. but that from 2019 onwards, the Complainant was replacing the MD on site visits – he was taking the MD’s place, visiting multiple clients for a greater part of the day, using the MD’s car. He said that it was decided that the Complainant’s contribution in being able to take the MD’s place deserved to be acknowledged, and that was being done through subsistence payments.

The witness was asked how the employee claimed for subsistence? He explained that he (the MD) went through the record of the site visits – the employee did not submit a claim – and then the subsistence payments were allotted based on the visits that had taken place.

The witness was asked about a document (Appendix 19), in which it is stated: “I want to get as close to €3,000 as possible.” He was asked what the basis of that was. The witness said that it was based on the Civil Service rates at the time. He was asked why he was trying to get as close to €3,000 as possible, and whether there was a prior agreement to reach €3,000. He explained that the figure came from looking at 2019, and the site visits which took place. He said that the figure was less than last year because of lockdown, which had an impact on site visits. He elaborated that in 2020, a lot of the groundwork was done visiting companies’ premises and that there was a reduction in the number of site visits in 2021, as a lot of Work-from-Home (WFH) people were up and running.

The witness explained that the Civil Service subsistence rate (the allowable rate) at the time was approximately €15 per day, for between 5 and 10 hours. He said that equated to €961 during the relevant six-month period (January – June). He said that it averaged approximately €160 per month that year, whereas in prior years it had been in the region of approximately €240 per month. He outlined that payment was made at the end of June.

In relation to TOIL (time-off-in-lieu) for the over-time worked, the witness clarified that it was awarded in fifteen (15) minute increments (rounded up), and expressed the view that the system worked in favour of the Complainant.

CA-00056547-002 – This complaint was withdrawn at hearing.

CA-00056547-003 – I find for the Respondent. I find that this complaint is not well-founded. The Complainant was a salaried employee who earned significantly more than his named comparator (of Irish nationality). He has identified no discrimination based on race, with respect to equal pay.

CA-00056547-004 – I find for the Respondent. I find that this complaint is not well founded. It was common case that the Complainant received time-off-in-lieu (TOIL) in respect of the overtime he worked after 6pm. No examples were advanced within the cognisable period, which breached the requirement for overnight rest breaks, within the requirements of the applicable legislation.

CA-00056547-005 – I find for the Respondent. I accept the Respondent’s evidence that the Complainant received a contract in December 2014. The Complainant initially said that he did not receive a contract, and then clarified that he could not remember receiving a contract.

CA-00056547-006 – I find for the Respondent. I find, on the balance of probabilities, that these payments pertained to subsistence in relation to site visits. I find that the fact that the Complainant raised no grievance in respect of non-payment in 2021 (when he says he received one payment of three) or throughout 2022 (when he received no payments) is compelling in this regard.

CA-00056547-002 – This was withdrawn at hearing.

CA-00056547-003 – I find that this complaint is not well founded.

CA-00056547-004 – I find that this complaint is not well founded.

CA-00056547-005 - I find that this complaint is not well founded.

CA-00056547-006 - I find that this complaint is not well founded.

Equal Pay; Race; Rest periods; Terms & Conditions of Employment;