Complainant

Respondent

Parties

Michael  Bohan

Barna Recycling Ltd

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

  Self

Shane MacSweeney MacSweeney & Company Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00062309-001

20/03/2024

The Complainant is a driver with a recycling company in County Galway. He commenced employment on the 21st of May 2021 and remains in the employment. Concerns that he was being paid at a lower hourly rate of pay than other drivers in the company led him to query the comparative rates of pay and, in the absence of any clarity, to refer the matter to the WRC under the Employment Equality Act 1998, as amended.

The following is from the complaint form submitted by the Complainant and supported in his sworn evidence at the hearing:

“Currently the company that I work for barnawasterecycling.com does not have any workplace representatives on our site. There is no formal notification process in place that informs employees of any changes to their rates of pay or bank holiday payments, changes have been made with no communication given from the employer. We received a pay rise with changes to our bank holiday payment with no explanation given as to amounts paid or how it is being calculated. Everyone I spoke to had a different understanding. I emailed my transport manager (Mr John Doran) and asked him “Am I being paid the same rate of pay as other drivers doing the same or similar work.” I received no reply. I then called him. He said “I will be on site next week.” He didn’t come to our site and I haven’t heard anything. I then completed a form the Equal Status Acts 2000-2015 Notification asking my employer: 1) Have I or am I being paid a lower hourly rate of pay than the other RCV Drivers, Compost Collection and Commercial Collection drivers. 2) Do the other drivers at Drumshanbo recycling depot (5 named drivers) get the same rate of pay as I do for doing the same or similar work. 3) As we have no elective representatives who can we ask what are the rates of pay being paid at Drumshanbo Depot to drivers doing the same or similar work. I received a reply from the HR Manager Ms Aileen Boyle 1) I am not permitted to discuss the pay rates of any other employees. 2) I am not permitted to discuss the pay rates of the employees named. 3) No other manager is permitted to discuss the remuneration package of any employee with another party. This falls far short of an explanation to the questions because of the lack of transparency in the way the company operates. The lack of any form of communication about the terms and conditions and changes made. I believe I am being treated less favourably than other work colleagues doing the same or similar work. The protected ground under the Employment Equality Act was discrimination in not receiving equal pay because of age.”

At the hearing, the Complainant stated that Driver No. 4 named on his complaint form is no longer with the employment and therefore was no longer a comparator for the purposes of the complaint. At the hearing, the Complainant stated that he had a belief that others among those named were paid more than him and there was no explanation from the Respondent. There was an assumption on his part that he was being paid less than others. In cross-examination he confirmed that this was an assumption on his part, that he was not aware of the differences before he made the complaint and that the reason he was being treated differently was age. He submitted that it should be the same rate of pay for the same job. He referred to the named manager not coming back to him at all in response to his query and if he had received the correct information they might not be here. In response to the Respondent’s position and submissions the Complainant said that there was still no detailed explanation as to how the different rates of pay were arrived at. One of the comparators had left the company and then returned and was paid more or that the Complainant paid less than that employee who was a named comparator.

The Complainant is employed as an RCV driver since the 19th of May 2021 and is currently on a rate of pay of €15.75 per hour. He typically works a 45-hour working week Monday to Friday 5.00am to 3.00pm. The Respondent employs some 380 staff at four main depots and has a fleet of over 150 vehicles broken into bin lorries, skip trucks and articulated trucks, which are manned by RCV drivers. The company currently employs some 58 RCV drivers including the Complainant. The Respondent’s policy on pay was set out in the submission to the hearing to the effect that there is no collective bargaining arrangement and there is no standardised formal grading or pay scales, nor does it pay automatic service-related increments. Generally, /invariably the Respondent awards a uniform annual service-related pay increase to ensure that its workers’ earnings are kept in line with or exceed inflation. The service-related pay increase awarded to all its staff over the past two years was 5% to staff earning below €35,000 per annum and 3% to staff earning above €35,000 per annum. The position of the Respondent is that the main differentiating factor in the rates of pay is their length of service. With those having longer service tending to earn more than their colleagues with, in relative terms, shorter service. Market forces also play a part in determining the rate of pay with each individual. Age is not a relevant factor in determining workers’ rates of pay. In a tiny minority of cases special awards in excess of the standard percentages are (or were) awarded, generally to recognise exceptional performance/effort and to reflect the taking on of additional duties or responsibilities and/or to retain key or uniquely valued employees.

In response to the Complainant’s case the Respondent submits that the claim is speculative as the Complainant does not in fact know if he is paid more or less than his five named comparators. Responding to the detail of the complaint the Complainant appears to be inferring that he is paid less than other drivers because he is older than his named comparators who are younger. Other issues referenced on the complaint form are of an industrial relations nature and do not fall to be considered within the EEA complaint.

The Respondent went on to give the comparative details for the five named comparators in the form of their age, their length of service and their band of pay insofar as comparing the others’ rate of pay in terms of higher or the same as the Complainant. The information breaks down as follows:

1.      The Complainant aged 69; length of service 3 years; pay €15.75.

Comparators numbered 2 to 6:

2.      Age 53; length of service 16 years; pay higher.

3.      Age 43; length of service 8 years; pay higher.

4.      Age 58; length of service 9 years; pay higher.

5.      Age 53; length of service 1 year; pay same.

6.      Age 45; length of service 1 year; pay same.

It was stated that No. 2 has since left the employment. No. 4 had a break in service described as for a few weeks but was rehired on the same rate and the company recognised his service as unbroken for pay purposes. The facts do not support a complaint that the Complainant is paid less than his comparators either because he is older than them or because they are younger than him. There is no dispute that the work of all named is work of equal value.

In relation to the comparators the Respondent noted that the group is quite old with the youngest being 43 and the oldest excluding the Complainant being 58 years of age. The average age is 53.5 years or 11.5 years off what is generally considered the typical retirement age in Ireland. Two of the comparators are on the same rate of pay as the Complainant and the Complainant is paid at the same rate as the second youngest member of the comparator group. The three lowest paid employees including the Complainant have the shortest service in the overall grouping. The highest earning members of the comparator group are those with the longest service namely 16, 9 and 8 years respectively (all in excess of the service of the Complainant). The highest earning members of the comparator group include the second and third oldest employees. From the facts provided it is submitted that given the disparate ages of (a) those on the lowest rate of pay, and (b) those on the highest rate of pay, age simply cannot be the determining factor in setting their respective rates of pay. It is plain that the key point of difference in relative terms between the employees and their rates of pay is that those on higher pay have longer service.

I have summarised the relevant evidence in the case allowing that there was further debate about some of the issues at the hearing. What emerged in industrial relations terms is that the manner in which pay is determined particularly on commencement of employment is the direct opposite of a transparent arrangement for determining the terms of employment in respect of pay in the company. It is not unreasonable to assume from the discussion at the hearing that the company will determine on a case-by-case basis what rate of pay is likely to be attractive to the applicant and taking into account their ability or willingness to pay at a certain level in each case. Nonetheless, and the point was made about other issues being referenced in the complaint form but not directly related to the claim for equal pay is that those other issues are industrial relations issues and to a large extent so in my view is the complaint under the Employment Equality Act. The Complainant is a person who has long experience in the workplace, possibly in a unionised environment and is well aware of his rights in a general sense and has the capacity and takes the time to learn of his general rights in the Irish context as distinct from the UK context where he worked for many years. The difficulty with the Complainant’s case is that whereas the Respondent representative described it as speculative I would add the term suspicion to speculative and agree that the Complainant has no facts and had no facts at the time of making the complaint to support his claim that he is paid less than others or they are paid more than him purely on grounds of age. There are insufficient facts to support the complaint, and I find that it is not well founded.

CA-00062309-001 The complaint by Michael Bohan against Barna Recycling Ltd is not well founded.

Pay/Age Discrimination