Complainant

Respondent

Parties

Maria  Puisor

Automatic Amusements Ltd

Representatives

Killian Mc Govern BL instructed by RNL Solicitors

James McEvoy, Work Matters Ireland

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-00059933-001

11/11/2023

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

CA-00060128-001

20/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 28 of the Safety, Health and Welfare at Work Act 2005

CA-00059933-002

11/11/2023

The Complainant commenced employment with the Respondent on 29 September 2016. She was employed as a Dealer. She stated that she was discriminated against in the first instance because she did not receive pay increases because of her gender and also because of how she was treated by the Respondent, following verbal abuse she received from a customer. She also claimed that she was penalised following a Health and Safety complaint that she made.

CA-00059933-001:

The Complainant stated that in March 2021 the Casino Manager called her into his office and told her that he would not be giving her a pay increase because her mouth was too big. She stated that he also told her that the only staff who were going to receive pay increases were those who had worked with the Respondent for at least 5 years. She stated however that other male staff who were there less than 5 years had received pay increases in 2021. She also alleged that she asked for a pay increase in the summer of 2023 but was refused on this occasion on the basis that she got tips.

CA-00060128-001:

The Complainant stated that she was discriminated against by the Respondent on the gender ground in relation to the way in which she was treated by the Respondent in respect of abuse from a customer that she was subjected to on 14 October 2023. She said that there were 7 other female colleagues who had been forced to resign because of the verbal abuse that they had also been subjected to in the workplace.

CA-00059933-02:

The Complainant stated that on 14 October 2023, she was frightened by a customer who made a hand gesture towards her. She stated that she then called the Assistant Manager and he replaced her with another dealer. The customer subsequently lightly slapped her on the head and she made a further complaint to the Assistant Manager, who told her that he would check the cameras. Having done so, he informed the Complainant that her head didn’t move when she was slapped by the customer and that she must have said something to him.

She stated that following a full investigation of the matter, she was issued with a final written warning on 23 November 2023. She asserted that the issuing of the warning constituted penalisation under the Act because it only arose from the complaint she had made against the customer.

The Respondent stated that the Complainant was the subject of several customer complaints and was a difficult and challenging individual to manage. The Complainant’s performance was reviewed in June 2022, during which her poor attitude and customer service were noted as areas for improvement. She was subsequently issued with an informal warning for poor customer service on 28 June 2022.

She was issued with a final written warning for unsatisfactory customer service on 23 November 2023 in relation to an incident on 14 October 2023 when she had engaged in very rude behaviour in her interactions with a customer.  

CA-00059933-001:

The Law

Discrimination for the purposes of this Act.

6.—(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 insubsection (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 ofparagraph (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”),

Like work.

7.—(1) Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if—

(a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,

(b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or

(c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

(2) In relation to the work which an agency worker is employed to do, no person except another agency worker may be regarded under subsection (1)as employed to do like work (and, accordingly, in relation to the work which a non-agency worker is employed to do, an agency worker may not be regarded as employed to do like work).

Entitlement to equal remuneration.

19.—(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.

(2) In this section ‘relevant time’, in relation to a particular time, is any time (including a time before the commencement of this section) during the 3 years which precede, or the 3 years which follow, the particular time.

(3) For the purposes of this Part, where B’s employer is an associated employer of A’s employer, A and B shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment.

(4) (a) Indirect discrimination occurs where an apparently neutral provision would put persons of a particular gender (being As or Bs) at a particular disadvantage in respect of remuneration compared with other employees of their employer.

(b) Where paragraph (a)applies, the persons referred to in that paragraph shall each be treated for the purposes of subsection (1)as complying or, as the case may be, not complying with the provision concerned, whichever results in the higher remuneration, unless the provision is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary.

(c) In any proceedings statistics are admissible for the purpose of determining whether this subsection applies in relation to A or B.

(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.

Burden of proof.

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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission undersection 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

Findings:

The Complainant stated that she asked for a pay increase in the summer of 2023 but that this request was refused. She stated that male staff had received pay increases.

As per section 85(a) of the Act above, the burden of proof lies with the Complainant in the first instance to establish primary facts, or ‘prima facie’ from which an inference of discrimination may be made. This means that the onus is on the Complainant to establish fundamental facts that on first inspection may indicate that an act of discrimination has taken place. Only after this prima facie case has been made does the burden of proof switch to the Respondent. This has been set out by the Labour Court in Arturs Valpeters v Melbury Developments [2010] 21, ELR 64. 

“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.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

In the context of this complaint, no evidence was presented by the Complainant of a male comparator who received more pay than her for doing the same work. While she did state that male staff received pay increases that she did not receive, no evidence was presented to suggest that these increases meant that any male staff member was now earning more than her for doing the same work during the relevant time.

Considering all of the foregoing, I find that the Complainant has not established a prima facie case of discrimination in respect of this complaint.

CA-00060128-001:

The Law:

6.— (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—

 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”),

Findings:

The Complainant stated that she was discriminated against by the Respondent on the gender ground in relation to the way in which she was treated by the Respondent in respect of verbal abuse that she was subjected to in the workplace on 14 October 2023.

As per section 85(a) of the Act, above, the burden of proof in these cases lies with the complainant in the first instance to establish primary facts, or ‘prima facie’ from which an inference of discrimination may be made. This means that the onus is on the Complainant to establish fundamental facts that on first inspection may indicate that an act of discrimination has taken place. Only after this prima facie case has been made does the burden of proof switch to the Respondent. This has been set out by the Labour Court in Arturs Valpeters v Melbury Developments [2010] 21, ELR 64. 

“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.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Complainant offered no evidence to demonstrate how she was discriminated against in comparison to a male employee of the Respondent. Specifically, she did not name any male employee who had been treated differently by the Respondent in relation to the verbal abuse she was subjected to by patrons in the workplace. The fact that she believes the Respondent unfairly or inadequately dealt with the abuse she was subjected to does not of itself mean that she was discriminated against for the purposes of the Act.

Considering all of the foregoing, I find that the Complainant has not established a prima facie case of discrimination in respect of this complaint.

CA-00059933-02:

Section 27(1) of the Safety, Health & Welfare at Work Act 2005 Act (as amended) (“the 2005 Act”) defines “penalisation” as including any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

Section 27(2) of the 2005 Act provides:

“Without prejudice to the generality of subsection (1), penalisation includes— (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal, (b) demotion or loss of opportunity for promotion, (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, (d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and (e) coercion or intimidation.”

Section 27(3) provides that an employer:

“. . . shall not penalise or threaten penalisation against an employee for— (a) acting in compliance with the relevant statutory provisions, (b) performing any duty or exercising any right under the relevant statutory provisions, (c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work, (d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions, (e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or (f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.”

Section 28 of the 2005 provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 27 shall do one or more of the following, namely— (a) declare that the complaint was or, as the case may be, was not well founded, (b) require the employer to take a specified course of action, or (c) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances.”

Findings

The 2005 Act prohibits employers from penalising employees for making complaints in respect of health and safety matters in the workplace. To succeed in a claim under the 2005 Act, the Complainant must demonstrate that he has (a) committed a protected act, (b) suffered a detriment within the meaning of section 27, and (c) can show a causal connection between (a) and (b).

I note that the Complainant in this case stated in her evidence that the detriment she suffered following the protected act she committed was the final written warning that was issued to her on 23 November 2023.

As this complaint was referred to the WRC on 11 November 2023, in advance of the final written warning having been issued to her however, and there was no evidence presented of any other detriment she suffered following the protected act she committed, I find that this complaint is not well founded.

CA-00059933-001:

As the Complainant has not established a prima facie case of discrimination in respect of this complaint, I find that she was not discriminated against.

 CA-00060128-001:

As the Complainant has not established a prima facie case of discrimination in respect of this complaint, I find that she was not discriminated against.

CA-00059933-02:

I find that this complaint is not well founded for the reasons set out above.