ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00049661

Parties:

Complaints:

Date of Adjudication Hearing:  25/04/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 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.

Background:

The Complainant submitted complaints against the Respondent under Organisation of Working Time Act 1997, Employment Equality Act 1998 and Payment of Wages Act 1991.

Summary of Complainant’s Case:

Claimant was hired for Senior Valuation Associate. Claimant’s manager Mr. E initially offered a salary that did not meet Claimant's expectations. The Human Resources Partner, Ms G, praised Mr. E as an excellent manager and mentioned the company's sponsorship for training in Luxembourg during the first month.   After accepting the offer, Claimant cooperated with the company's requirements, obtained a Schengen visa for training in Luxembourg, and relocated to A small town. However, the promised Luxembourg training was repeatedly postponed by the company, leading to a sense of distrust towards the Complainant and Mr. E.

Starting from the time with Respondent, Manager E made unreasonable work demands, behaved aggressively towards Claimant, and frequently implied overtime, resulting in immense work pressure, anxiety, and insomnia for Claimant, eventually diagnosed as moderate anxiety and moderate depression.

Claimant initially sought to earn recognition from Manager E during the early stages of employment by striving to complete all tasks within her capabilities. However, after some time, Claimant realized that this unpaid overtime trend did not improve despite her growing proficiency in her duties and increased efficiency. Feeling the need to advocate for her rightful interests, Claimant raised concerns with Manager E regarding reduced overtime. Unfortunately, it led to multiple instances of verbal suppression from Manager E in the work. Manager E is a head and director of the department. As a newly hired foreign employee, Claimant was unsure whom to turn to for assistance. 

Workplace discussions and mockery severely affected Claimant's mental and physical health, causing extreme fear of going to the office or crowded places. Seeking help from Manager E, Claimant requested sick leave and a change of seat, with temporary remote work at home until the change. Manager E agreed to the requests.

However, despite agreeing to Claimant's sick leave request, Manager E sent an evaluation form on the same day afternoon (13 October 2023), indicating that Claimant did not meet Senior role. One of the criteria stated that Claimant did not go to the office the expected 3 days in the last weeks, despite not recovering from the illness, and required confirmation from Claimant. 90 days assessment form. This evaluation form may relate to whether the probationary period is passed or extended, potentially affecting Claimant's visa status. Consequently, Claimant felt anxious and panicked, feeling compelled to return to work without recovering from the illness. Although Manager E confirmed her return to work and requested proof of cancel sick note, the fear and distrust instilled by Manager E made it impossible for Claimant to determine the sincerity of his words, remaining deeply concerned that Manager E might make a decision during the probationary period that she couldn't pass.

On October 17th , 2023, during a meeting between Manager E and HR, it was suggested that Claimant could reapply for sick leave if feeling unwell. Upon returning to the office, Claimant found out that according to company regulations, she would have to wait another two weeks for her seat to be changed, resulting in severe insomnia for Claimant during those days, requiring increased medication. On the 18th October, Claimant again requested sick leave, and Manager E proposed consulting with HR, informing her at the end of Friday (the 20th) that she needed to obtain a new sick leave certificate. However, Claimant's condition had deteriorated significantly by then, both physically and mentally, and she could not endure the process of waiting for a new sick leave certificate. Therefore, Claimant was issued a resign mail on the morning of 21st October.

Claimant has requested access to meeting records on Teams, the 30-day evaluation form, and work correspondence with Manager E from the respondent but has not received them yet. This request is documented in emails.

In response to the Respondent’s submission:

CA – 00060970-002, CA - 00061085-002 – Complaint under the Organisation of Working Time Act, 1997(the “Act of 1997”)

The scope and duration of work exceeded the contractual agreement. The employer's proposed normal working hours only represented the time spent officially at the company and did not encompass all working hours. Consequently, Claimant's overtime hours were not recorded, nor were they compensated accordingly.

Firstly, the workload assigned by Manager E was not feasible to complete within the stipulated working hours for a mature employee in that position. During the first month, apart from cultural video training, job task training and meeting training, Claimant was tasked with reviewing documents provided by Manager E during leisure time. Some documents contained thousands of pages, requiring Claimant to dedicate additional personal time beyond regular working hours to fulfil Manager E's expectations.

Secondly, Manager E often assigned new tasks or hinted at additional work around 17:15 - 17:25, frequently inquiring about progress, raising questions, and assigning homework during work hours, clearly indicating his desire for Claimant to invest extra time beyond the contractually specified hours to complete tasks. Lastly, Claimant believes they were assigned non-business-related, non-essential, and non-urgent tasks unrelated to their job position, stemming from hints during communications with Manager E regarding training activities. However, Manager E repeatedly suggested completing these tasks within his requested time frame, far exceeding the workload within the contractual scope Claimant should bear.

Regarding the maximum average working hours not exceeding 48 hours per week as stated in   Respondent’s submission, Claimant exceeded 48 hours per week during the first month, and Manager E also repeatedly requested Claimant to work over the weekend. In summary, Claimant felt pressured by Manager E throughout their employment, worked excessively during certain periods, and did not receive fair compensation for overtime or compensatory time off. In light of these circumstances, considering the salary levels of colleagues in similar positions, Claimant requested overtime compensation and reduced overtime from Manager E, but received no satisfactory responses. Moreover, their performance evaluation shifted from exceeding expectations at 30 days to not meeting job standards by 90 days.

As Manager E holds the position of Head and Director, and Claimant is a new employee, they are not on equal footing in terms of authority. It is not surprising that the company and Manager E imposed reasonable work requirements to avoid compensatory liabilities. However, this also contributes to Claimant's distrust of the company and fear of Manager E. This is one of the reasons why Claimant felt helpless, with no one to communicate.

CA-00060970-004, CA-00061085-004 Employment Equality Act 1998

The Claimant alleges that her salary was much lower than other senior positions within the Respondent organisation. In her complaint form submitted on 12 January 2024, the Claimant names 2 comparators; C (“Comparator 1”); and Q(“Comparator 2”). In her second complaint form the Claimant names an additional comparator: A (“Comparator 3”).

CA – 00061085-005 – Complaint under the Payment of Wages Act, 1991

The salary range for this position in the market around 50000 Euro. Initially, Claimant advocated for 45000 Euro. However, she later accepted the offer of 40000 Euro because the Respondent sponsored training in Luxembourg and all the cost will covered by Respondent after negotiation. As a result, Claimant applied Schengen visa by herself and Ms. P continually delayed the Luxembourg training program citing work arrangements.

Summary of Respondent’s Case:

CA – 00060970-002, CA - 00061085-002 – Complaint under the Organisation of Working Time Act, 1997 (the “Act of 1997”)

The Respondent provided the Claimant with a copy of her contract of employment containing her terms and conditions of employment, as well as a copy of the Employee Handbook, which both detail her rights and entitlements under the Act of 1997. The contract between the parties is clear in its intent and purpose.

The Claimant was provided with a statement of employment clearly setting out that “Normal office hours are 9am to 5.30pm, Monday to Friday. The Company reserves the right to alter these working hours from time to time. Employees are entitled to a one-hour break for lunch in line with the Organisation of Working Time Act 1997.“. The contract goes on to state that “The Employee understands that they will be expected to work such hours as are necessary in order to fulfil their role and meet the needs of the business. The requirement to work overtime will depend on the requirements of the business and shall be at the discretion of management. The Employee will be given as much notice as is reasonably practicable, however no overtime will be paid for any hours worked in excess of or outside of regular office hours, or for travel time.”

The Respondent can produce records of the working time of the Claimant for the duration of her employment, which did not lead to any contravention of Section 15 of the Act of 1997, which provides for a maximum average working week of 48 hours. The Respondent has reviewed calculations for the average hours worked for the duration of employment and has a calculation that the average of all hours worked was 676 hrs and 46 minutes over a 5-month period (June to October) (timesheets submitted).

It is the Respondent’s position that where any deviation from the Claimant’s standard hours occurred, it was required due to business demands and operational requirements. It is the Respondent’s argument that any such deviations never resulted in contravention of the Act of 1997.

CA – 00060970, CA – 00061085-004 – Complaint under the Employment Equality Act, 1998

The Claimant alleges that her salary was much lower than other senior positions within the Respondent organisation. In her complaint form submitted on 12 January 2024, the Claimant names 2 comparators; C (“Comparator 1”); and Q(“Comparator 2”). In her second complaint form the Claimant names an additional comparator: A (“Comparator 3”).

With respect to Comparator 1, the Claimant states that this person works for Company K. This is clearly a different company to the Respondent and consequently is not a suitable comparator for the purposes of the Claimant’s claim.

With respect to Comparator 2, the Claimant states that this person works for Company P. This is clearly a different company to the Respondent and consequently is not a suitable comparator for the purposes of the Claimant’s claim.

With regard to Comparator 3, please note this person is employed by a Luxembourg incorporated sister company of the Respondent and is based in Luxembourg. We submit that Comparator 3 is not a suitable comparator on the basis that: (i) they are employed in a role which is at higher level and more senior to the role that Claimant was employed in; and (ii) they work in Luxembourg for a Luxembourg incorporated entity, which is in a different jurisdiction with different terms and conditions of employment.

The Claimant, in relation to her claim for equal pay states that she “was treated less favourably than another is, has been or would be treated in a comparable situation on grounds of her Race”.

The Claimant has named 3 comparators, 2 of which are employed by different companies and are therefore not comparable and a third comparator who is employed in a different jurisdiction in a higher-level role than the Claimant so likewise not comparable. All the Respondent can do in this instance is state its contention that the Claimant was not less favourably treated and that no difference in treatment existed between her and her other colleagues in respect of pay rates. As such, no discrimination on the basis of race (or any other grounds) took place.

CA – 00061085-005 – Complaint under the Payment of Wages Act, 1991

The Respondent refutes the claim under the Payment of Wages Act in its entirety as no unlawful deduction of wages has occurred in line with the renumeration stated in the Claimant’s contract. At no point has the Claimant received a salary below her contractual salary (payslips in Appendix 15). In making this statement, the Respondent is taking into account not only the Claimant’s clear written contract of employment, but also the operation of this contract in reality and the established norms of the Respondent more generally. Moreover, the Claimant has explicitly stated in her claim form that she accepted the salary offer.

The Claimant’s contract clearly states that no overtime was payable to the Claimant. No bonus was due to the Claimant as per her contract. The Respondent does operate a non-contractual discretionary bonus which is related to performance but this is only paid if an employee meets performance requirements and is employed (and not under notice) when the bonus is paid (3 months after the relevant yearend). The Claimant was not entitled to receive this bonus.

The Claimant is arguing that there was a deficiency in payment of her wages in the period in question. The Payment of Wages Act, 1991, under section 5(6) states:

“Where (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, […] then […] the amount of the deficiency […] shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

Thus, the important element to establish is what were the wages “properly payable” to the employee on “that occasion”. The Respondent contends that the wages “properly payable” to the employee were the wages as advised to the employee in the contract of employment. No deduction as defined in Section 5 of the Act has been made. Accordingly, no jurisdiction exists under the Payment of Wages Act 1991 for this claim to be heard.

Findings and Conclusions:

CA-00060970-002 and CA-00061085002                             Organisation of Working Time Act 1997

The Respondent produced the records of the Complainant’s working hours for the period

These records show the Complainant did not work more than 48 hours per week.   I do not find the complaint to be well founded.

CA-00060970-004 and CA-00061085-004             Employment Equality Act

The Complainant claims that she has been discriminated against on gender and race grounds in relation to equal pay.  The comparators cited are a number of other workers.

One works in the sister company of Respondent but is on a higher grade.  The other two are employed in different companies  and are not suitable comparators.

Prohibition on Discrimination

Section 6(1)(a) of the Acts provides 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 discriminatory grounds set out in s 6(2) including at

(a)that one is a woman and the other is a man (in this Act referred to as “the gender ground”), and

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”).

Burden of proof

The Employment Equality Act 1998 (as amended) addresses the issue of the burden of proof 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.”

 In the case of the Southern Health Board v Teresa Mitchell, DEE011, the Labour Court considered the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination can be made out. It stated that the complainant must:

“…establish facts from which it may be presumed that the principle of equal treatment

has not been applied to them. This indicates that a 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 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 Melbury Developments v Arturs Valpeters, EDA0917, the Labour Court stated:

“Section 85A of the Act provides for the allocation of the probative burden in cases

within its ambit. This requires that the Complainant must first establish facts from which

discrimination may be inferred. What those facts are will vary from case to case and

there is no closed category of facts which can be relied upon. All that is required is that

they be of sufficient significance to raise a presumption of discrimination.

” Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” 

In this instant case, I find the Complainant has made speculations and assertions unsupported by evidence that she should have been receiving the same pay as 3 individuals.

I find she has not established a prima facie case which would discharge the burden of proof which falls on her in the first instance.  I find her complaint to be not well founded.

CA-00061085-005           Payment of Wages Act 1991

The Complainant claims she was not paid the proper contracted rate and was not paid bonus or overtime pay.  She stated that the original salary for the job was €45,000 and she agreed to a reduction to €40,000 as she was told she would be sent to Luxembourg for training.  This did not happen.   She worked long hours with no compensation for overtime and she never received a bonus which was due to her.

I note the Respondent’s submission that the Complainant’s contract clearly states that no overtime was payable to her.  I note the Respondent’s evidence that it operates a non-contractual discretionary bonus which is related to performance, but this is only paid if an employee meets performance requirements and is employed (and not under notice) when the bonus is paid (3 months after the relevant yearend). The Claimant was not entitled to receive this bonus.

Section 5 of the Act provides:

In this case no deductions were made from the Complainant’s wages.

Section 5 (6) provides:

In this case, the wages the Complainant requires to be deemed ‘wages properly payable’ bear no grounding in fact or reality.  She was offered and accepted the annual salary in her employment contract.  There is no provision for overtime payment in her contract.  She was not entitled to receive a bonus which was discretionary and payable 3 months after year end.

I find her complaint to be not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

 CA-00060970-002/CA-00061085-002     Organisation of Working Time Act 1997

I have decided that the complaint is not well founded

 CA-00060970-004/CA-00061085-004     Employment Equality Act

I have decided that the complaint is not well founded.

 CA-00061085-005          Payment of Wages Act 1991

I have decided that the complaint is not well founded.

Dated:   30th May 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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