Complainant

Respondent

Parties

Omar  Hemdan

Meica Consulting Engineers Limited

Representatives

Self-represented

Katherine McVeigh BL instructed by  Hayes McGrath LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00061531-002

13/02/2024

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

CA-00062431-001

27/03/2024

The Complainant contends that he did not receive equal pay because of his gender, civil status, family status, and age (CA-00061531-002). The Complainant also contends that he was discriminated and harassed on grounds of religion and race and victimised contrary to the provisions of the Employment Equality Acts, 1998-2015 (CA-00062431-001). The Respondent denies all claims.

Oral Testimony of the Complainant (under affirmation)

CA-00061531-002 (Equal Pay Complaint)

The Complainant contends that he did not receive equal pay because of his gender, civil status, family status, and age. He named three comparators with different ages, gender, civil status, and years of relevant experience in the industry. The Complainant outlined that all of the named comparators had the same pay as him. The Complainant contends that this was discriminatory as he is a married male with three children and he has in excess of 20 years’ experience in the industry. He believes he should be paid a higher rate of pay than his named comparators because he has dependants and because he is more experienced than his colleagues. The Complainant submitted that when he ticked the ‘age’ box on the complaint form, he meant work experience. He has more than 20 years’ experience in the industry and he cannot understand how he would receive the same pay as someone else who has less experience than him.

The Complainant submitted that by ‘pay’ he meant ‘the total package’. Although he and his comparators had the same rate of pay, they did not have equal remuneration packages. The Complainant outlined that ‘Mr A’ was of the same nationality but was single and had no dependents. While they received the same rate of pay, Mr A was given €2,000 for flights. The Complainant outlined that this was discriminatory as he had dependents abroad and he needed to visit them. The Complainant raised the issue with Mr Kealy who told the Complainant “well its getting worse, he is going to get a pay rise too”. The Complainant asked for the travel allowance and got a partial agreement from Mr Kealy. When he went to visit his family on vacation, his flights were paid for but his written contract was not amended to include a yearly travel allowance. The Complainant stated that he did not know why Mr A got a raise but it may have been because Mr A was moved to a different project.

The Complainant outlined that he selected ‘Ms A’ as a comparator because she was female. He was assigned to work with Ms A for the first 3 or 4 months of his employment. The Complainant outlined that he had more job relevant experience than Ms A, but they received the same rate of pay. The Complainant submitted that in his home country normally males received greater remuneration than females. The Complainant outlined that all of his family were dependent on him, including his mother. In his home country, the more dependents you have, the more you are paid.

Mr Santos was named as the third comparator. He is of a different nationality to the Complainant. The Complainant outlined that his issue with this comparator is that, although they have the same qualifications, they are in receipt of the same pay even though the Complainant has more relevant work experience. The Complainant submitted that he should be on a greater rate of pay because of his work experience and because he is a member of Engineers Ireland. The Complainant contends that this is discriminatory on grounds of age, and by age he means experience, as experience comes from age.

In cross-examination, the Complainant was asked if he accepted that the only complaint he presented to the WRC was that he was on the same rate of pay as his colleagues, to which the Complainant responded: “I meant pay package”. The Complainant accepted that he only corrected his position following sight of the Respondent’s submission. The Complainant accepted that two of his named comparators were also men but added that in his home country women do not have the same obligations as men to support their family and therefore men with children are paid more than women and those without dependents. The Complainant accepted that he was not being paid differently because of his age but added that he objects to receiving the same rate of pay as those with lesser experience. He also objects to being paid the same rate of pay as single persons.

The Complainant accepted that he did not ask for his flights to be paid when negotiating his contract on commencement of employment unlike Mr A, and he accepted that when he did ask his flights were paid for by the Company. Counsel for the Complainant opened page 17 of the Respondent Booklet. In this document (an email dated 18 November 2023 addressed to the Complainant), the Complainant was advised that medical health insurance would be extended to his family on their arrival to Ireland and that the costs of his travel to and from his country of origin would be covered once annually by the company. Counsel for the Respondent opened page 88 of the Respondent Booklet and put it to the Complainant that this email, dated 27 October 2023, evidenced the Complainant’s negotiations with the Respondent in relation to his terms and conditions. It included an agreement to change reporting lines; place of employment; reduce the probationary period from 6 to 3 months; medical insurance to be extended to all family members on arrival to Ireland; a travel budget to cover travel to and from his home country; the company would pay for flights for the Complainant’s family members; and a commitment to provide a family friendly vehicle. It was put to the Complainant that the Respondent had bent over backwards to accommodate his requests and that he was in receipt of benefits, such as extended medical health insurance for all family members and flights paid for his family to join him, which none of his comparators received. It was put to the Complainant that not only did he have the same rate of pay as his comparators but that he in fact had a better remuneration package overall. The Complainant responded that he was not aware that his comparators did not have flights paid for their family members and responded “OK” when it was put to him that because he was married and had dependents, he was in fact in receipt of better benefits than his comparators.

It was put to the Complainant that Mr A was moved to a different pay grade on being relocated to another project. The Complainant accepted that Mr A was now doing different work than him. In relation to Mr Santos the Complainant responded that “he gets more than me even though I’ve more experience”. Counsel asked: “what does he get that you don’t?”, to which the Complainant responded: “I do not know”. The Complainant was reminded that the burden of proof was on him to establish a prima facie case. It was put to the Complainant that flights were not paid for Mr Santos’ family, nor health insurance extended to his family. The Complainant responded: “I dispute that he got more than me even though I am more experienced and nationality”. Counsel reminded the Complainant that he did not select the nationality ground in relation to the equal pay complaint.

In relation to Ms A the Complainant stated he was treated differently to her because of his gender and that “males are treated differently in my country”. The Complainant was asked: “what is Ms A’s family status?”. The Complainant responded: “I do not know”. Counsel queried how the Complainant could claim different treatment on grounds of family status if he did not actually know Ms A’s family status. The Complainant clarified that he meant gender and experience and that he objects to being paid the same as a woman and because he is more experienced. It was put to the Complainant that Ms A does not perform the same role as him. The Complainant agreed. The Complainant was asked what benefits Ms A received that he did not. The Complainant responded he did not know if she had her flights paid for her family or if she had a family friendly car or medical health insurance for family members but confirmed that he did have these benefits. It was put to the Complainant that it would be given in evidence by the Respondent that Ms A did not have these benefits, unlike the Complainant. Counsel put it to the Complainant that he had not discharged the burden of proof on him to establish a prima facie case of discrimination.

CA-00062431-001 (Discrimination, Harassment & Victimisation Complaint)

The Respondent is a sub-consultant for another company (which I will refer to as “the Client” for ease of reference). The Client are engaged to complete a particular project (which I will refer to as “Project A” for ease of reference) in Dublin for a named end-user.

The Complainant outlined that another employee of the Respondent started working on Project A, on-site. This on-site work was originally destined for the Complainant on his arrival to Ireland. However, the other employee’s work permit was authorised before the Complainant’s permit was authorised, and so the Complainant was not placed on-site for the purposes of working on Project A. The Complainant submitted that he was therefore a financial burden on the Respondent from day one, as if he is not on-site physically working on Project A, the Respondent cannot bill the client for his labour. The Complainant was on-site for several days at the beginning of his employment as he was completing induction training but he was not working on Project A. The Complainant wanted to be on-site indefinitely as Project A was a significant project and it would be beneficial to his career.

The Complainant was resident in Carlow and travelled with a work colleague “Mr E” while waiting for his own work vehicle for the first few weeks of his employment. Mr E was the hiring manager. Mr E was of the same nationality and religion as the Complainant. When the Complainant drove to the Dublin site and Mr E travelled with him, Mr E said to the Complainant “you don’t know how to drive, you will get us into jail”. The Complainant became very nervous driving while Mr E was in the car.  The Complainant submitted that Mr E was over-reacting. The Complainant also resided with Mr E in a house rented privately by Mr E, the Complainant, and others. The Complainant described Mr E as “very bossy, he was trying to give me orders, there was rows over the cooker and I reached the conclusion that I needed to avoid him as much as possible”. The Complainant outlined that he found Mr E’s behaviour towards him as “oppressive in work and in the house, like you needed to ask permission to use the washing machine and that”.

One morning the Complainant was taking his time and Mr E told him he needed to hurry to work. The Complainant told Mr E that he had not finished his breakfast and that he would drive separately to the site. Mr E then sent a message to the Complainant to ask if he intended attending a whiteboard meeting that morning and threatened to remove the Complainant from Project A if he was not at this meeting by 8.30am. The Complainant said he was never at a whiteboard meeting before and did not have the necessary clearance to attend this meeting. When the Complainant arrived on-site, he went into Mr E’s office and told him not to speak to him or approach him anymore. The Complainant then went to an office of a manager employed by the Client, “Mr O’L”. He asked Mr O’L whether his CV had been approved to allow him to work on-site on Project A. Mr O’L advised the Complainant to speak with his own manager, Mr Kealy. At that point Mr E “burst into Mr O’L’s office, I did not like the way he did that, he did not even ask for a meeting. Mr O’L did not mind Mr E coming into the room like that and he said I know Mr E but I do not know you. I was talking to Mr O’L about procedures. It was Mr E who brought Mr O’L into it. It wasn’t me who damaged the reputation of the company”. The Complainant submitted that Mr Kealy then later said in order to “ease everything for everyone you don’t have to go on site, you can work from the Carlow office. I didn’t complain about that. But this project was the largest in Ireland so it was a loss for any engineer not to work on this project”. The Complainant then worked from the Carlow office on technical documents related to Project A while he tried to figure out what his role was going to be. Generally only him and Mr Kealy worked from the Carlow office but 60 per cent of the time he was on his own in the office. Mr Santos then went on leave for three weeks and the Complainant covered Mr Santos’ role on-site for that period. The Complainant felt he did a very good job and brought several compliance issues to the attention of the Respondent and saved revenue for the Respondent and the Client. This led the Complainant to believe that he might get another opportunity to be placed on-site to work on Project A. But Mr Kealy told the Complainant that the Client did not feel comfortable with the Complainant’s presence on-site. The Complainant submitted “these things are normal on projects. For me he was trying to tell me I wasn’t welcome on site and I would be better in the office”.

When Mr Santos returned from leave, Mr Kealy met with Mr E and Mr O’L. The Complainant stated he was not invited to the meeting. Mr Kealy told the Complainant after the meeting that it would be best if he continued to work from the Carlow office and one of the reasons for this was what had happened in Mr O’L’s office. The Complainant was frustrated because he felt he had done a very good job on-site while Mr Santos was on leave.  “I felt the one [Mr E] who had told me I would not be on Project A was achieving his objective. He was there a year before me and I felt they trusted what he was saying”. During this period [October 2023] Mr Kealy said that it appears that Egyptians were not welcome on the project and that the Complainant was “a typical Arab, describing my mentality”. The Complainant confirmed to the hearing that Mr E was of the same nationality and religion as the Complainant and there was another employee of the Respondent, also of the same nationality and religion as the Complainant and Mr E, who were permitted to work on Project A. The Complainant felt the only reason he was not on Project A was because of Mr E. The Complainant told Mr E that he intended to make a complaint about him and that he was the “aggressor”. Mr E responded: “trust me you will not enter Project “B” either” (I will refer to it as Project B for ease of reference). Project B also involved the Client and Mr E had now become a direct employee of the Client. The Complainant felt Mr E had “all the power and he was using it to block me and he could exclude me from all projects”. This worried the Complainant because if he was not working on-site on either of the two projects, he was a cost to the Respondent. “I felt I was going to be laid off at any time because I was costing the company money”. This prompted the Complainant to email Mr Kealy on 23 October 2023. This email was opened to the hearing. In the email the Complainant complained that Mr E was bullying and harassing him. The Complainant submitted that this was a formal complaint as he had already raised the issue of Mr E’s behaviour with Mr Kealy previously albeit informally. He waited weeks for a meeting and Mr Kealy kept pushing out the date of the meeting. Mr Kealy told the Complainant that the matters he complained of did not constitute bullying or harassment. The Complainant said he felt isolated in the Carlow office. “I was panicking as no one was protecting me and the Client [Mr O’L] told me to speak to my own manager. After Mr Kealy did not respond to my email, I sent another email on 1st December and I included managers from the Client company in the email. I was trying to be heard. I needed protection. All these persons were managers I was accustomed to communicating with regarding technical aspects of the project. I was concerned I had done everything”. Also the Complainant’s October salary was not paid on the date it was due and this further worried the Complainant.

The Complainant received a reply from Mr Kealy that the matter would be investigated. The Complainant wanted an external investigator appointed. The Respondent agreed to this. It took more than a month for the external investigation to start and the Complainant was starting to lose trust. The Complainant asked the investigator to conduct the investigation in line with WRC Code of Practice for Bullying Investigations. The external investigator stated the investigation would be completed in line with the Respondent’s Bullying Policy and fair procedure. This was unacceptable to the Complainant. He refused to participate in the investigation as he did not think the external investigation firm could be impartial and because he now intended to go to the WRC. The Complainant submitted “I tried to come to solutions with Mr Kealy such as I could be made redundant but he said he did not want to lose me”.

The Complainant confirmed to the hearing that he was also engaged in other projects and that he had requested more favourable changes to his terms and conditions some of which were agreed to by the Respondent. On 13 February 2024, the Complainant decided to send another email to a senior manager in the Client company. On 14 February 2024, the Complainant was called to a meeting with Mr Kealy. The HR Manager and Mr Santos were also present. The Complainant was told it was a disciplinary hearing and he was being dismissed for repeated breaches of company confidentiality. The Complainant did not agree with these accusations or the “pop-up” disciplinary hearing. After a stand-off between the parties that lasted some hours and the Gardaí attending the workplace, the Complainant left the premises having been dismissed from his employment. The Complaint referred the matter of his dismissal to the WRC separately to this complaint. In March 2024 Mr Kealy contacted the Complainant asking him to participate in the external investigation. The Complainant agreed to this. The Respondent also attempted to have the Complainant’s work permit re-activated as his family were due to join him in Ireland. The Complainant described to the hearing that this did not come to fruition and the Respondent also recovered the company vehicle.

In cross-examination, the Complainant confirmed he was claiming discrimination on grounds of race (which the Complainant stated he understood to mean nationality) and religion. The Complainant confirmed that Mr E was of the same nationality and religion as himself. The Complainant submitted “I didn’t mean he was harassing me because of my religion or race”. The Complainant agreed that Mr E’s behaviour towards him had nothing to do with his race or religion. The Complainant submitted “my case is because he [Mr Kealy] said a few times its because I am a typical Arab and I understand this is because of my race”. The Complainant stated that this occurred once in October and then stated it was said a few times in October. It was put to the Complainant that the reason he was not permitted back on-site had nothing whatever to do with his race or religion and that Mr E and his other colleague, both of whom were working on the project, were also Egyptian. In reply the Complainant reiterated the statement allegedly made by Mr Kealy. The Complainant agreed that he was facilitated to pray when he wanted to and that he had never said otherwise. He agreed that the Respondent was very accommodating in this regard and that he had never raised that as an issue. His complaint was solely related to Mr Kealy’s comment and that “Mr Kealy did not deal with his complaint against Mr E and that Mr A [who the Complainant confirmed was of the same race and religion] went to another project and got more money than me”. It was put to the Complainant that his issues with Mr E concerned matters outside of work. The Complainant’s formal complaint to Mr Kealy dated October 2023 was opened by counsel. Counsel put it to the Complainant that nowhere in that complaint or anytime subsequently did the Complainant ever complain of unlawful discrimination either by Mr E or by Mr Kealy and that nowhere did the Complainant ever raise the comment which he alleges was said by Mr Kealy (which would be denied by Mr Kealy in evidence). The Complainant responded that he was excluded from Project A because of Mr E. The external investigation report was opened to the hearing. It was put to the Complainant that again nowhere within the interview notes did the Complainant ever complain of unlawful discrimination or mention the comment allegedly made by Mr Kealy. It was put to the Complainant that it was not credible that Mr Kealy made the alleged comment or comments in October. The Complainant responded: “no because my complaints were against Ahmed”. It was put to the Complainant that the only time race and religion were ever mentioned was in the WRC complaint form. The Complainant responded he couldn’t go to Mr Kealy so he had to go to the WRC and that his issue with Mr Kealy was that he did not respond to his complaint about Mr E. The Complainant confirmed that the external investigator did not uphold his complaint of bullying against Mr E and that he had appealed that finding. It was put to the Complainant that the entire case, which was only being made the day of the hearing, was an alleged comment by Mr Kealy, which was never mentioned previously. The Complainant responded that he accepted that he was not removed from Project A because of his race or religion and that he never mentioned to the external investigator that Mr Kealy had made the comment. He submitted that he had done a good job when covering for Mr Santos and he did not expect to be sent back to the Carlow office. Counsel for the Respondent asked: “are you saying that your dismissal had anything to do with your religion or race?”. The Complainant responded: “no I am not saying that”.

Closing Remarks

With respect to the equal pay claim, the Complainant outlined that his complaint was not made in disrespect to his colleagues.

CA-00061531-002 (Equal Pay Complaint)

Preliminary Issue

The Complainant was employed with the Respondent as a Senior Electrical Engineer (not chartered) at Grade D1 from 1 August 2023 to 14 February 2024. He gross annual salary was €40,000 together with a company vehicle and medical insurance. The Complainant received further benefits, which were not given to other employees at Grade D1, including relocation expenses, paid flights from Egypt to Ireland, a refund for the fee for his work permit application in Ireland and any associated costs incurred by him in Egypt for obtaining same. The Respondent was hopeful that the Complainant would be a long-term member of staff, and in that regard, the Respondent exercised its discretion to extend a new flight benefit to the Complainant to maximise the time that he could be with his family in Egypt. Further, company medical cover was extended to the Complainant for his full family. The Respondent further reduced the Complainant’s probation period from 6 to 3 months upon his request: a term more favourable than other employees at Grade D1. In summary, the Complainant received the same rate of pay as his named comparators, but overall a better remuneration package than all of the named comparators in his complaint.

Section 19(1) of the Employment Equality Act, 1998 provides for equal pay. The Respondent submits that the Complainant’s equal pay claim is misconceived, frivolous and vexatious and should be dismissed pursuant to section 77A of the Employment Equality Act, 1998. The Complainant outlined in his complaint form that he is in receipt of the same rate of pay as his named comparators. In fact the Complainant was treated more favourably than his comparators in relation to a number of benefits. The purpose of the Employment Equality Act, 1998 is to ensure employees are not paid a lesser amount due to any of the nine protected grounds. Therefore the claim advanced by the Complainant is bound to fail. The Respondent applies to the Adjudication Officer to dismiss the claim pursuant to section 77A of the Employment Equality Act, 1998. The Respondent directed the hearing to the following cases: Claire Walsh v Allied Irish Bank AIB (ADJ-00035633; 9 December 2022) and Jacinta Doherty v Allied Irish Bank AIB (ADJ-00035634; 9 December 2022); and Fox v McDonald [2018] IESCDET 142.

In addition or in the alternative, the Complainant lacks locus standi for an equal pay claim. As the Complainant received the same (or greater) rate of renumeration as his comparators, he does not have locus standi for an equal pay claim under Employment Equality Act, 1998, the purpose of which is to provide protection to employees who receive lesser pay due to any of the nine protected grounds. The Respondent submits that the WRC does not have jurisdiction to hear the claim where the Complainant does not have locus standi.

Oral testimony of Mr Martin Kealy (under affirmation)

The witness is a director in the Respondent business and has been employed in excess of nine years. At the time of the Complainant’s appointment, there were twelve other employees employed of varying gender, race, age, civil and family status. Two of these employees were of the same nationality as the Complainant. The Complainant was employed as a Senior Electrical Engineer at Grade D1 for pay purposes. The witness outlined to the hearing the differences in the work experience of the Complainant and Mr A, including that Mr A had more international experience. When Mr A was negotiating his employment terms with the Respondent, Mr A asked for his flights to be paid for by the Respondent. The Respondent agreed to this in the hope Mr A would accept a contract of employment with the Respondent. Mr A was promoted some months later and moved from grade D1 to N1. Any differential treatment between him and the Complainant was connected with that promotion and individual performance, and nothing to do with family status or any of the prohibited grounds. Mr A had medical insurance for himself only, whereas the Complainant negotiated health insurance for himself and all of his family members.  For the first three months the Complainant did not have medical insurance but as soon as he raised this issue, it was rectified without delay. Mr A has a two-seater vehicle and not a family friendly vehicle, whereas a family friendly vehicle was given to the Complainant following a request for same. Further, the Respondent did not pay for flights for Mr A’s family, whereas the Complainant did receive such a benefit. Mr Santos is also a Senior Electrical Engineer. He has a two-seater vehicle and not a family friendly vehicle as in the case of the Complainant. Further, he did not have flights for his family paid for by the Respondent whereas the Complainant did receive this additional benefit.

Ms A is a Process Engineer. She does not do the same job as the Complainant. The witness outlined to the hearing, that while Ms A and the Complainant are on the same project, they work on different streams and perform different tasks. Ms A has medical health insurance for herself but this was not extended to her family, unlike the Complainant. Further, she has a two-seater commercial vehicle and not a family friendly vehicle, unlike the Complainant, and her flights were not paid for by the Respondent, unlike the Complainant. Both Ms A and the Complainant are paid the same rate of pay.

In cross-examination, the Complainant asked the witness to describe the difference in work experience between him and Mr A and the difference between their respective qualifications. The witness confirmed that Mr A was not a member of Engineers Ireland, unlike the Complainant. The witness confirmed that Mr Santos was hired in Ireland and that his family were in Ireland.

Oral testimony of Mr Daniel Santos (under affirmation)

The witness is an employee and one of the named comparators in this complaint. The witness confirmed that he is in the employment of the Respondent for three years, at grade D1. He confirmed that he did not receive a travel allowance from the Respondent. The witness outlined that he did the same work as the Complainant but that his remuneration package is not as favourable as the Complainant’s remuneration package. He described being satisfied with the remuneration package he was offered which he negotiated on his commencement of employment with the Respondent. The witness outlined his work experience. In cross-examination, the Complainant put to the witness that he was more experienced than the witness and was a member of Engineers Ireland.

CA-00062431-001 (Discrimination, Harassment & Victimisation Complaint

Preliminary Issue

It was submitted on behalf of the Respondent that this complaint was presented to the WRC over one month following the termination of the Complainant’s employment. The cognisable period for the complaint is the 6-month period prior to the date of dismissal and the WRC have no jurisdiction in relation to any events occurring after the date of dismissal. Counsel cited Aherne v NCSE (ADJ-00029820) (upheld on appeal to the Labour Court and on appeal to the High Court).

Oral testimony of Mr Martin Kealy (under affirmation)

Mr Kealy outlined that the Respondent employed approximately ten employees of different nationalities. Three of these employees (one of whom is the Complainant) were Egyptian and were all of the Islamic faith. Mr Kealy submitted that the complaint of discrimination was without foundation and that he had done everything possible to try to make the Complainant’s employment work. He responded to the Complainant’s requests to renegotiate his benefits and agreed to reduce his probationary period, extend medical health insurance to his family, pay for his flights home and pay for his family’s flights so they could join the Complainant in Ireland. Mr Kealy stated that when the Complainant complained of Mr E’s behaviour, he tried to resolve the issue informally and in line with company procedure. Mr Kealy submitted that he could not give the Complainant the level of remuneration that he felt he was worth as that was not within his remit.

The Complainant was required to go on-site at the beginning of his employment to allow him to complete induction and learn the Irish electrical regulations. The Complainant identified some compliance issues on-site while he was covering Mr Santos’ absence and these suggestions were acted upon by the Respondent. The Complainant was technically a very good engineer. The Respondent sought to have the Complainant’s CV approved by the Client but they did not have a need for him on-site. Mr Kealy stated that he really needed the Complainant in the office working on technical documents. At no time did he say to the Complainant that he was a typical Arab. At no time did the Complainant ever complain of discrimination to Mr Kealy or to anyone else within the Respondent company.

In cross-examination, the Complainant asked Mr Kealy why he did not involve HR when he sent his email of 23 October 2023 to Mr Kealy. Mr Kealy responded that he was dealing with the complaint informally and at no time did the Complainant request the matter to be dealt with formally. The Complainant asked why was he the last one to be paid in October 2023. Mr Kealy responded that there was cash flow issues at that time and added “you were not the last person to be paid, I was”. The Complainant asked Mr Kealy was it a coincidence that he was taken off-site at the same time as he made a complaint. Mr Kealy responded: “you were an extension of myself. I needed someone with me. You were finished on-site once Mr Santos returned from leave. You were familiar with the project and I needed your skills in the office”.

Closing Remarks

The equal pay complaint is about quantity of work experience and nothing to do with a contravention of the Employment Equality Acts, 1988 – 2015. The nationality ground was introduced for the first time in the hearing and not selected on the complaint form presented to the WRC. No prima facie case has been made out. As soon as the Complainant sought additional benefits, the Company went out of their way to facilitate the Complainant. The Complainant not only received the same pay as his named comparators, but a better remuneration package overall. Mr A was not married nor did he have dependents, and the payment for his flight had nothing to do with his civil or family status. Mr A’s flight was paid for as part of the negotiations of the terms of his employment. He had vast experience and the Respondent wanted him to join the company. Mr A was subsequently promoted and moved to a higher grade. His performance and experience was not in dispute. It is accepted that the Complainant and Mr Santos performed like work. It is disputed that Mr Santos was in receipt of a better remuneration package than the Complainant. The Complainant confirmed that he is in fact in receipt of better benefits than Mr Santos. It was accepted by the Complainant that him and Ms A do not perform like work. Further, the Complainant accepted that he is in receipt of better benefits than Ms A. None of the three named comparators had remuneration packages better than the Complainant. None of the comparators have medical insurance extended to family members. None have family friendly cars. None of the comparators had flights paid for their family to come to Ireland. Therefore, the Complainant has failed to discharge the burden on him to establish a prima facie case, and accordingly the burden of proof has not shifted to the Respondent.

With respect to the complaint of discrimination on grounds of race and religion, the Complainant confirmed that his complaint against Mr E did not in any way concern race or religion. His complaint at the hearing was isolated to an alleged comment by Mr Kealy, which the Complainant initially claimed was said several times in October and then he claims was said once only in October. This comment is denied in its entirety by Mr Kealy and the Complainant’s changing position with regard to the number of times it was allegedly said goes to the credibility of the Complainant. Further, he never once mentioned this comment previously: not in his informal complaints or at any time during the external investigation. The Complainant has failed to establish a prima facie case of discrimination and accordingly the burden of proof has not shifted to the Respondent. This whole complaint is about Mr E and how powerful the Complainant perceived him to be. The external investigator found that Mr E had nothing to do with the Complainant coming off-site and further it was confirmed by the Complainant that his issue with Mr E had nothing whatever to do with the Complainant’s race or religion. The Respondent bent backwards to assist the Complainant at all times and never once treated the Complainant less favourably because of his race or religion,  and at no time did the Complainant ever claim during the course of his employment that he was discriminated against on grounds of race or religion.

Relevant Law

The Employment Equality Act 1998 - 2015 (“the Acts”) promotes equality in the workplace and provides protection against discrimination, harassment, and victimisation. The Acts prohibit discrimination on nine grounds, including gender, civil status, family status, race, religion and age. Discrimination occurs when one person is treated less favourably than another is, has been or would be treated, on any of the nine grounds. The employee must demonstrate that they have been treated less favourably than a comparator. The Acts define harassment as unwanted conduct which is related to the prohibited grounds. Penalisation, in circumstances amounting to victimisation for making a complaint, is also prohibited under the Acts.

Definitions

Section 2 of the Acts define the following:

““family status” means responsibility—(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years . . .

“religious belief” includes religious background or outlook . . .

“remuneration”, in relation to an employee, does not include pension rights but, subject to that, includes any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment . . . .”

Discrimination

Section 6 of the Acts provides:

“(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.  

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

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

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

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

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”) . . .

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

Section 18 of the Acts relates to the application of equality principles to both men and women and provides inter alia at “(1) (a) Subject to paragraph (b), for the purposes of this Part "A" and "B" represent 2 persons of opposite sex so that, where A is a woman, B is a man, and vice versa . . . .”

Harassment

Section 14A(1) provides that harassment occurs where:

“(a) an employee (in this section referred to as "the victim") is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as "the workplace") or otherwise in the course of his or her employment by a person who is—

(i) employed at that place or by the same employer,

(ii) the victim’s employer, or

(iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,

or

(b) without prejudice to the generality of paragraph (a)—

(i) such harassment has occurred, and

(ii) either—

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment . . . (7) (a) In this section— (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds . . . . ”

Equal Remuneration

A complainant must show that the difference in pay is due to discrimination on one of the prohibited grounds. Section 19 of the Acts provides:

“(1) It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer . . . . (5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees.”

Section 29 of the Acts provides:

“(1) It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer . . . . (5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.”

Comparators

Section 28 of the Acts provides for comparators:

“(1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:

(a) in relation to the civil status ground, C and D have different civil status;

(b) in relation to the family status ground, C has family status and D does not, or vice versa . . .

(d) in relation to the religion ground, C and D have different religious beliefs or C has a religious belief and D does not, or vice versa;

(e) in relation to the age ground, C and D are of different ages . . . .

(g) in relation to the ground of race, C and D differ as to race, colour, nationality or ethnic or national origins or any combination of those factors . . . .”

Victimisation

Section 74(2) of the Acts defines victimisation as follows:

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

Burden of Proof

Section 85A of the Acts provides:

“(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 . . . (4) In this section "discrimination" includes . . . (b) victimisation, (c) harassment or sexual harassment . . . .”

The Labour Court in Southern Health Board v Mitchell [2001] ELR 201 considered the extent of this evidential burden on a complainant and held:

“The first requirement is that the claimant 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 is no infringement of the principle of equal treatment.”

Therefore a complainant must establish both the primary facts upon which they rely and that those facts are of sufficient significance to raise an inference of discrimination. In Valpeters v Melbury Developments [2010] ELR 64, the Labour Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Separate decisions

Section 79 of the Acts provides:

“(1) Where a case which has been referred to the Director General of the Workplace Relations Commission under section 77 . . . (1A) (a) Claims to have been discriminated against on more than one of the discriminatory grounds shall be investigated as a single case, and (b) claims both to have been discriminated against on one or more than one of such grounds and to have been penalised in circumstances amounting to victimisation may, in an appropriate case, be so investigated, but a decision shall be made on each of the claims”.

Findings

CA-00061531-002 (Equal Pay Complaint)

The Complainant contends that he did not receive equal pay because of his gender, civil status, family status, and age. The Respondent denies this claim and submits that the Complainant received the same rate of pay as his named comparators and overall a better remuneration package than all of the named comparators.

I find the Complainant has failed to establish facts from which it may be presumed that there has been discrimination in relation to him, and accordingly the burden of proof has not shifted to the Respondent to rebut the presumption of discrimination. It was the Complainant’s case that he received the same rate of pay as his named comparators. The Complainant had a difficulty with this as he believed he should in fact have been paid more because he had dependents and because he believed his work experience was superior to that of his colleagues. The Respondent took the hearing through the overall remuneration package of the Complainant. It was accepted by the Complainant that he received these benefits. Evidence was given by Respondent that each of the three named comparators were not in receipt of such favourable benefits. I accept the evidence of the Respondent that the Complainant was in receipt of a remuneration package more favourable than that of the three named comparators, and therefore I find the Complainant has failed to establish facts from which it may be presumed that there has been discrimination in relation to him. I find this complaint is not well-founded.

CA-00062431-001 (Discrimination, Harassment & Victimisation Complaint)

Complaint of Discrimination on grounds of race and religion

The Complainant felt the only reason he was excluded from Project A was because of Mr E. The Complainant accepted in cross-examination that his complaint in relation to Mr E’s behaviour had nothing to do with race or religion. Therefore I am satisfied the Complainant’s claim of discrimination on grounds of race and religion solely relates to a comment alleged to have been said by Mr Kealy in October 2023.

On balance, I prefer the evidence of Mr Kealy that he did not make this comment for the following reasons. The Complainant complained informally and formally that he was being bullied by Mr E. These complaints were made to various persons both in and outside of the Respondent company over the course of his employment. These complaints related solely to Mr E and there was no mention at any time of the comment alleged to have been made by Mr Kealy. Further, not once during the course of the formal investigation which was conducted by an external independent party, did the Complainant mention the comment allegedly made by Mr Kealy. During the hearing, the Complainant varied his evidence with regard to the number of times Mr Kealy allegedly made the comment. I therefore find this complaint of discrimination on grounds of race and religion is not well-founded.

Complaint of Harassment on grounds of race and religion

The Complainant felt the only reason he was excluded from Project A was because of Mr E. The Complainant accepted in cross-examination that his complaint in relation to Mr E’s behaviour had nothing to do with race or religion. Therefore I am satisfied the Complainant’s claim of harassment on grounds of race and religion solely relates to a comment alleged to have been said by Mr Kealy in October 2023.

On balance, I prefer the evidence of Mr Kealy that he did not make this comment for the following reasons. The Complainant complained informally and formally that he was being bullied by Mr E. These complaints were made to various persons both in and outside of the Respondent company over the course of his employment. These complaints related solely to Mr E and there was no mention at any time of the comment alleged to have been made by Mr Kealy. Further, not once during the course of the formal investigation which was conducted by an external independent party, did the Complainant mention the comment allegedly made by Mr Kealy. During the hearing, the Complainant varied his evidence with regard to the number of times Mr Kealy allegedly made the comment. I therefore find this complaint of harassment on grounds of race and religion is not well-founded.

Complaint of Victimisation

A claim of victimisation must be assessed independently of the allegation of discriminatory treatment. An employee alleging victimisation is required to establish the primary facts from which it can be inferred that the employer has victimised the employee and that these facts are of a sufficient weight to raise a presumption of discrimination in order for them to meet the burden of proof required of them and for the burden of proof to shift to the employer.

The act or acts which result in victimisation must be connected to a reliance on rights under the Employment Equality Acts, 1998-2015. In Moriarty v. Dúchas (DEC-E2003-013) the Equality Officer outlined that it “is necessary that a complainant demonstrate the connection between his or her actions in relation to defending entitlements under the Act and the treatment complained of”.

In Department of Defence v. Barrett (EDA1017), the Labour Court held that the definition of victimisation at s 74(2) contains three ingredients. It requires that:

“1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

As noted above what constitutes a protected act is defined at s 74(2) paragraphs (a) to (g) inclusive, as follows:

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

It was not clear from the Complainant’s evidence which provision or provisions of s 74(2) of the Acts he is relying on. I am satisfied the Complainant did not make a complaint of discrimination to the Respondent at any time prior to his dismissal. I am satisfied the Complainant initiated proceedings under the Acts against the Respondent on 13 February 2024 (the equal pay complaint). The Complainant was dismissed from his employment on 14 February 2024; however, the Complainant did not contend that his dismissal on 14 February 2024 was a discriminatory dismissal or that his dismissal had occurred as a reaction to having issuing proceedings to the WRC on 13 February 2024. I further note that the Respondent was not on notice of that equality complaint at the date of the Complainant’s dismissal as the WRC did not notify the Respondent of the equality complaint until 28 February 2024.

The Complainant then submitted a second complaint under the Acts on 27 March 2024 alleging discrimination and harassment on grounds of race and religion and victimisation. The WRC notified the Respondent of this complaint on 8 April 2024. The Complainant submitted that he was subjected to adverse treatment after his dismissal in the form of veiled threats in March and April 2024 in response to his WRC complaints. Counsel for the Respondent submitted that the cognisable period with respect to the complaint is the 6-month period prior to the date of the Complainant’s termination of employment and that the WRC has no jurisdiction to hear or determine events that occurred after the Complainant was dismissed (i.e., 14 February 2024). Counsel cited Aherne v NCSE ADJ-00029820 (upheld on appeal to the High Court [2023] IEHC 143) in support of this proposition. I note the latter case concerned a claim by the complainant that she was penalised for complying with or making a complaint under the Safety, Health and Welfare at Work Act, 2005. The Adjudication Officer found that any steps taken by either party after the date the complaint was presented to the WRC were outside the jurisdiction of the WRC. On appeal to the Labour Court, the Court noted that it’s role was to determine if, in the 6 months’ prior to 1 October 2020 (the date the complaint was presented to the WRC), the Respondent acted in a manner contrary to the terms of s 27 of the Safety, Health and Welfare at Work Act, 2005, and therefore, matters of concern to the Complainant that arose subsequent to that date were outside of the scope of the Court’s jurisdiction. On appeal to the High Court Heslin J stated at paras 81 and 82:

“In the manner explained by the Labour Court, its function was confined to the cognisable period, which began on 25 August 2020 and ended on 01 October 2020 (when she filed her complaint), during which period the Applicant was issued with a final written warning, on 17 September 2020. It will be recalled that in its decision, the Labour Court specifically stated that “matters of concern to the complainant that arose subsequent to that date are outside of the scope of the Court’s jurisdiction.” Regardless of how genuinely the Applicant may wish to ventilate such matters in an appeal to this Court, this is simply not possible in light of the terms of the 2005 Act. In short, the Labour Court had no jurisdiction to deal with them, nor does this Court.”

As noted by Bolger, Bruton and Kimber, Employment Equality Law, (2nd ed., Round Hall Press, 2022 [at 10.16]) because of the prohibition on victimisation under the Acts, any action, taken after the employment relationship has ended as a reaction to the taking of a protected act within the meaning of s 74 (2) by a former employee during their employment, is unlawful. In Watters Garden World Limited v. Lurie Panuta (EDA098) the Court concluded that “victimisation should be construed as widely and liberally as can fairly be done and should be given a sufficiently wide ambit so as to encompass all forms of detriment inflicted on a worker by his or her employer for having committed a protected act”.

The Respondent was on notice since 28 February 2024 that the Complainant had made a complaint of discrimination (the equal pay complaint). As that complaint was presented to the WRC on 13 February 2024 it was made during the Complainant’s employment. The second equality complaint was presented to the WRC on 27 March 2024. Therefore my jurisdiction in relation to that complaint is confined to 28 September 2023 until the 27 March 2024 (the date the Complainant presented his second complaint under the Acts to the WRC). I do not accept counsel’s submission that the cognisable period ends on the date the Complainant was dismissed (i.e., 14 February 2024).

The Complainant outlined that after his dismissal on 14 February 2024 he was subjected to adverse treatment in the form of veiled threats, communicated to him by WhatsApp and email between 4 March and 15 April 2024 and, on 22 March 2024, without giving notice to the Complainant, the Respondent recovered the company vehicle from the Complainant’s possession leaving the Complainant to believe that the vehicle had been stolen. I am satisfied that the facts relied upon by the Complainant are of sufficient significance to support the inference contended for by the Complainant, and therefore the burden of proof shifts to the Respondent to show that no victimisation took place. I can only examine the alleged adverse treatment until 27 March 2024.

It was common case that Mr Kealy contacted the Complainant on 4 March 2024. The Complainant submitted that Mr Kealy said that there had been a misunderstanding and that the Respondent would make an application to reactivate the employment permit. The Complainant, who was still in possession of the company vehicle, was to return the company vehicle for an NCT and the Complainant would be provided with a replacement vehicle. Various WhatsApp messages were submitted to the WRC showing the correspondence between Mr Kealy and the Complainant at this time. In response to a question from the Adjudication Officer, Mr Kealy submitted that he applied for a reactivation of the employment permit because the Complainant’s family were coming to Ireland on 8 March 2024 and he was concerned that they would be refused entry. He submitted that as a family person he was concerned for the welfare of the family given the Complainant no longer had a valid work permit. Further, the Respondent had hoped the matter would be resolved via mediation and he wished to create an environment conducive to resolving the complaints. The matter did not proceed to mediation. It also transpired that the wrong permit had been inadvertently applied for.

I reviewed the correspondence between the parties within the cognisable period. It appears from the WhatsApp messages that the replacement vehicle offered to the Complainant was not to his satisfaction. I note in one of the WhatsApp messages Mr Kealy states: “As I said before I am doing this because of your family and my hope that they will find a better life in Ireland. I am prioritising your needs over mine . . .  If you are not happy with that vehicle, as this is the best vehicle I have available well sorry that is the est I can done [sic]. I drive these vehicles myself if that means anything. I give you the actual vehicle which I was driving myself. I accepted an older vehicle because that is the way I am. In terms of a vehicle you get the best I have to offer . . .  If this is not to your satisfaction, please change jobs and I will support paperwork as necessary. I do not wish to had [sic] you back. You are a very good Engineer and I do not wish to hold you back. Bring me the necessary paperwork for other roles and [sic] will get my absolute support in trying to get the necessary employment to your expected criteria. I will not hold you back if you have better offers. I do this because as you said you are a father and family person”. On 21 March 2024, the Complainant states “Ok, I am fine as long as its gonna be a temp. car . . . ” The Complainant then tried to contact Mr Kealy a number of times and Mr Kealy did not answer. It was common case that on 22 March 2024, without notice to the Complainant, the Respondent took back the company vehicle from the Complainant.

I am satisfied the Complainant had taken an action of a type referred to at s 74(2)(b) of the Acts (a protected act). However, I am not satisfied the Complainant was subjected to adverse treatment by the Respondent. Following the Complainant’s dismissal the Respondent was entitled to terminate the work permit. I accept the Respondent’s submission that the offer to reactive the permit was because Mr Kealy was concerned about the Complainant’s family coming to Ireland on 8 March 2024. It was common case that the Respondent inadvertently applied for the wrong work permit. It was most apparent from the evidence presented to the hearing that Mr Kealy went out of his way to try to meet the demands of the Complainant. His offers in relation to a replacement car in March 2024 was no different. When what was on offer in terms of a replacement vehicle was below the expectations of the Complainant, it was reasonable for Mr Kealy to conclude that, once again, he could not meet the expectations of the Complainant. I do not accept the Complainant’s submission that Mr Kealy’s communications to the Complainant constituted veiled threats for having made complaints to the WRC. I find the Respondent was entitled to recover the company vehicle any time after 14 February 2024 as the employment relationship had ended. I do not find that any of the acts of the Respondent within the cognisable period for this complaint constitute adverse treatment. I therefore find the Complainant was not victimised contrary to the Employment Equality Acts, 1998-2015.

CA-00061531-002

I decide this complaint under the Employment Equality Acts, 1998-2015 is not well-founded.

CA-00062431-001

I decide this complaint of discrimination and harassment under the Employment Equality Acts, 1998-2015 is not well-founded.

I decide this complaint of victimisation under the Employment Equality Acts, 1998-2015 is not well-founded.

Equal pay. Discrimination. Harassment. Victimisation.