INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
BORD GAIS EIREANN T/A BROOKFIELD RENEWABLE (IRL) HOLDINGS LTD
REPRESENTED BY MS MÁIRÉAD MC KENNA, B.L., INSTRUCTED BY ARTHUR COX SOLICITORS)
- AND -
Chairman: Ms Jenkinson
Employer Member: Ms Doyle
Worker Member: Ms Tanham
1. An appeal of an Adjudication Officer's Decision No. DEC-E2016-002.
2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court on the 15th February 2016. A Labour Court hearing took place on the 24th June 2016. The following is the Court's Determination:
This is an appeal by Mr Jaroslaw Obuszko against the decision of an Adjudication Officer/Equality Officer under the Employment Equality Acts 1998 – 2011(The Acts). For ease of reference Mr Jaroslaw Obuszko will be referred to in this determination as “the Complainant” and Bord Gáis Eireann t/a/ Brookfield Renewable (Ireland) Holdings Limited as “the Respondent”.
The Complainant, who is of Polish nationality, commenced work as an Accounts Assistant for SWS Natural Resources Limited on 11th September 2006 and became a Financial Analyst in January, 2007. On 25thJune 2010, SWS Natural Resources Limited was taken over by Bord Gáis Energy and the Complainant's employment transferred to the Respondent pursuant to the provisions of the E.C. Protection of Employees on Transfer of Undertakings Regulations) 2003 (the "Regulations"). Bord Gáis Energy was taken over by Brookfield Renewable Ireland Holding Limited in 2014. The Complainant was on paid sick leave from 27thJune 2013. His entitlement to sick pay exhausted on 27thJune 2014. The Complainant’s employment terminated with Brookfield Renewable Ireland Holding Limited on 16th March 2015.
The Complainant referred complaints under the Acts to the Workplace Relations Commission on 16thApril 2014. In completing his complaint form he indicated that he was discriminated on the race ground and submitted the following claims:-
• Equal pay claim
• Discrimination regarding a promotion
• Discrimination regarding getting a job
• Discriminatory harassment
• Discrimination regarding access to training
The Adjudication Officer/Equality Officer held as follows:-
- •the claims in relation to promotion and access to training are out of time;
•the Complainant has failed to establish aprima faciecase of discrimination in relation to pay;
•the Respondent did not discriminate against the him on grounds of race and
•did not harass or victimise the Complainant within the meaning of Sections 14(1) and 74(2) of the Acts.
The Complainant submitted a very large volume of material to the Court outlining details of grievances with the Respondent, dating back to 2008. Included in this was a CD which, the Complainant stated, contained recordings of various meeting with the Respondents representatives. This was returned to him as it was not accepted as a reliable form of evidence to the Court. The Complainant also sought permission to record the Court proceedings. This was denied as the Court is of the view that such recordings were open to editing. He was informed that he could have a stenographer present if he wished but he decided not to avail of that opportunity.
The essence of the Complainant’s case was that for many years he had sought equal pay with a named comparator. He stated that as a result of making this claim he had been discriminated against harassed and bullied. He stated that the inequality in pay continued up to the time he left the Respondents employment. He submitted that what is in issue in this case is continuing discrimination arising from the Respondent’s failure to pay him equal pay with his nominated Comparator on the grounds of his nationality.
The claim was received by the Workplace Relations Commission on 16thApril 2014. Section 77 (5)(a) of the Acts provides that in a case of discrimination or victimisation, a claim for redress must be initiated within six months of the most recent occurrence of the alleged act of discrimination or victimisation. In his complaint form to the Workplace Relations Commission, the Complainant gave 24th June 2013 as the most recent date of discrimination.
Notwithstanding his contention in his application form that the last act of discrimination occurred on the 24th of June 2013 the Complainant submitted that further acts of discrimination and harassment had occurred between then and the time he made his complaint which he contended brought his complaint within the time limit allowed by the Act. In the event that the Court found that these acts did not constitute discrimination bullying or harassment he then wished to apply for an extension of time to bring his complaints within time.
The Respondent requested the Court to hold a case management conference to provide directions for dealing with this case. Furthermore, it sought to have the time issue
addressed asa preliminaryissue in circumstances where it contendedthis issue wascapable of being addressed asa separate module ofhearing without anyprejudice to the Complainant. It sought to rely on the decision of this Court inHurleyv.County of Cork VECEDA1124in support of its application.
By letters dated 20thApril 2016 to the parties, the Court outlined how it intended to proceed with the case. At the hearing itself on 24thJune 2016, as the Complainant was unrepresented, the Court explained the process to the Complainant and the requirements on him to submit facts to establish prima facie evidence of discrimination. The Respondent’s legal Counsel had no objection to this method of investigating the case. The Complainant was assisted with an Interpreter to present his case and to give evidence to the Court. The Court indicated that it would divide the case into three distinct parts.
1. Did any of the actions of the Respondent within the six month period prior to the filing of the complaint ( the continuing actions) constitute prima facie evidence of discrimination/ harassment and if so was there sufficient continuum between them and the other alleged acts of discrimination to allow the Complainant give evidence of all prior acts of discrimination.
2. If the Court found that none of the Respondent's action (the continuing actions) within the six month period prior to bringing the claim constituted discrimination should the Complainant be granted an extension of time back to 24th of June 2013 within which to bring his claim.
3. As the claim for equal pay was not statute barred this claim will be dealt with by the Court in its entirety.
The parties agreed with this course of action.
The continuing actions
It is not disputed that the Complainant first brought an alleged discrimination complaint to the attention of the Respondent on 16thFebruary 2012.
The complaints of discrimination, harassment and victimisation complained of which he alleged occurred within the six months’ time prior to his making the complaint were:-
- •22ndJanuary 2014 & 29thJanuary 2014, 25thFebruary 2014 – Request for details of the outcome of whistleblowing complaint
On the above dates the Complainant sought details of the outcome of a whistleblowing complaint he made on 20thFebruary 2013 concerning allegedly commercially sensitive issues. He stated that the report into his complaint was not furnished to him. He alleged that the Respondent’s attitude to him over the whistleblowing complaint was directly linked to the alleged discrimination, bullying, harassment and victimisation which he experienced in the workplace. The whistleblowing complaint did not concern any alleged discriminatory or unfair work treatment issue.
The Respondent stated that in the twelve month period prior to the Complainant’s claim being submitted under the Acts he met with the investigators appointed by the Respondent to investigate into the whistleblowing complaint. During this period when the Complainant aligned the whistleblowing complaint to the complaints of discrimination and unacceptabletreatment at work, the Respondent said that the Complainant’s whistleblowing complaint did not concern any alleged discriminatory or unfair work treatment issues and he was advised to use the internal procedures available to him if he wished to make a complaint.
Ms Máiréad Mc Kenna, B.L., instructed by Arthur Cox Solicitors, on behalf of the Respondent, stated that the Respondent appointed Ernst & Young as investigators to investigate the whistleblowing complaint and the Complainant met with the investigators to discuss the matter on 29thMay 2013.The Complainant emailed numerous employees of the Respondent during this period complaining of discrimination and unacceptabletreatment at work. The Respondent's Human Resources Manager responded by email advising him of the internal procedures available to him if he wished to make a complaint. The whistleblowing process concluded in October 2013 and.the Complainant was informed that the complaint was not upheld. On 17thOctober 2013 he was informed that his complaint although made in good faith was not well founded.
The Complainant submitted that the Respondent’s reaction to the whistleblowing complaint and its failure to provide him with answers to that complaint constituted discrimination on the grounds of his nationality.
The Court cannot see how the Complainant has discharged the burden of proof in this regard. The facts relied upon do not establish any inference or presumption of discrimination on the grounds of his nationality.
•13thDecember 2013 – request to attend a medical appointment
Due to the Complainant’s continuing absence due to illness and to the nature of that illness, he was requested by the Respondent to attend a medical appointment on 17thJanuary 2014 for the purposes of conducting a Psychiatric Assessment. This act in the Complainant’s view, constituted an act of harassment and victimisation by the Respondent. The Complainant did attend the appointment; however, as he refused to accept the conditions attached to the assessment, it did not proceed. On the expiry of the Respondent’s full sick pay benefit the Complainant was furnished with a claim form under its Income Protection Scheme, operated by Irish Life. The Respondent’s sick pay scheme provided that following six months on full benefit, an employee may be eligible for six months half benefit. However, the Respondent’s Income Protection Scheme offered superior benefits and provided for 75% of salary less Social Welfare Benefit until normal retirement age for those who met the eligible criteria. Such service was treated as pensionable, as if the employee were on full salary. However, benefit under the scheme depended on an employee completing claim forms. In the Complainant’s case, these forms were to be completed by no later than 19thMarch 2014; this deadline was later extended to 18thApril 2014. The Complainant refused to comply with the conditions required on the application form, he did not sign the forms, therefore his application was refused. This refusal in the Complainant’s view, constituted an act of harassment and victimisation by the Respondent.
The Respondent stated that the Complainant was offered access to the Respondent's generous income protection benefit however he placed unreasonable obstacles in the way of any application being considered by the Respondent's insurer.
The issue arising in the case is whether the Respondent’s actions in requiring the Complainant who is out on sick leave suffering from a stress related condition to attend a medical appointment constituted harassment within the meaning of the Acts. From its own experience over many cases the Court is satisfied that it is not uncommon for employers to require employees suffering from an illness which involves protracted absences to attend an independent assessment at some point during the absence. And in situations where the employer’s income continuance scheme is being invoked, it is commonplace to have such an assessment completed. The Respondent stated to the Court that where an employee is medically certified as suffering from a stress related condition, its duty of care obligates it to take such action and to seek independent assessment. The Court accepts that the Respondent was concerned to obtain an assessment of the cause of that condition and it was not unreasonable in these circumstances for it to seek the advice of a Psychiatrist. In these circumstances it is difficult to see how such actions by the Respondent constitute harassment within the meaning of the Acts.
In these circumstances the Court cannot find anything in the manner in which this matter was approached by the Respondent to indicatemala fideson the part of the Respondent or to display hostility towards the Complainant. The Court is equally satisfied that the stance taken by the Respondent in requiring this assessment before the Complainant could qualify under its Income Continuance Scheme was not in any sense in retaliation for his earlier complaints of discrimination.
• 13thDecember 2013 – Solicitors’ Letter
The final paragraph of a letter dated 9thDecember 2013 from the Complainant’s Solicitors to the Respondent warned that if a meeting was not arranged within seven days to bring the dispute between the parties to a quick resolution that proceedings for bullying and harassment through the Personal Injuries Assessment Board would be immediately initiated and in parallel to those proceedings an application would be made to the Equality Tribunal in respect of discrimination on the basis of his nationality. The Complainant stated that when he hand delivered this letter to the Commercial Manager, the Manager refused to take it as he needed legal assistance which was not available to him as that time. The letter was later posted from his Solicitor’s office. The Complainant contended that this refusal to accept the letter was further evidence of harassment and victimisation by the Respondent.
In response to his correspondence, the Complainant received a letter from the Respondent’s legal advisers (Arthur Cox) to the Complainant’s Solicitor. He claimed that the letter constituted a further example of harassment by the Respondent as its final sentence read“we are instructed to vigorously defend any claim and will rely on the contents of this letter to affix your costs of same”.
The Respondent denied any impropriety and stated that the Complainant had Solicitors corresponding on his behalf and in turn Arthur Cox communicated with his Solicitors in an entirely appropriate manner. In a letter to the Court dated 24thJune 2016, Arthur Cox stated that it is standard practice in the legal profession, when acting for potential defendant/employer and when dealing with what the potential defendant/employer considers to be a unmeritorious threat of High Court proceedings, to respond in the terms in which it did. This it said was in no way influenced or conditioned by the Complainant’s nationality or indeed any assertion on his part of any entitlement under the Acts.
The Court accepts that when threatened with legal proceedings by a complainant’s Solicitor it is not uncommon for a Respondent’s Solicitors to respond in the terms outlined by Arthur Cox above. In these circumstances it is difficult to see how such actions by the Respondent constitute harassment within the meaning of the Acts and was not in any sense in retaliation for the Complainant’s earlier complaints of discrimination.
• 17thOctober 2013 – 16thApril 2014 – Training Opportunities
The Complainant submitted that he was discriminated against in not being provided with training opportunities, and that this was an ongoing occurrence which included the six month period covered by Section 77(5) of the Acts. He said that he was not made aware of any training opportunities during the period when he was on sick leave. He stated that during his career in SWS, BGE/ Brookfield he did not avail of any professional training sponsored by his employer except one day - training regarding SEM (Single Electricity Market). He contended that his colleagues from commercial and accounting departments benefited from some external training courses paid for by the Respondent, but none were offered to him.
The Respondent submitted that the Complainant was not denied any training he wished to avail of.His managerroutinely brought up the issue of training with him but he never reverted to her expressing any interest in any form of training. He was out sick from 27thJune 2013 and did not return to work.
The Complainant did not identify any training courses that he was either denied an opportunity to attend during the cognisable period or at any time or give details of any training that he was not informed of. He was out sick during the cognisable period and therefore not available for work or to attend a training course. In these circumstances the Court is satisfied that the Complainant has not established any facts from which an inference of discrimination, harassment or victimisation could be established.
The Complainant therefore has not establishedprima facieevidence of any acts of discrimination within the six month period prior to the making of the compliant and the Court will move to the issue as to whether the Complainant should be granted an extension of time within which to make his complaint.
Extension of Time
The Complainant sought an extension of time at the Adjudication Officer’s hearing to extend the time for consideration of his claim back to 17thJune 2013. He said that his complaints of discrimination are all linked to each other directly or indirectly. The reasons he cited for the application, related to his illness, lack of professional legal assistance; lack of assistance from the Equality Authority, who after 18 month denied him representation, as did the Irish Human Rights and Equality Commission. He also stated that he could not make a complaint to an external body such as the Equality Tribunal until he had exhausted the Respondent’s internal grievance procedures, which he maintained were consciously prolonged by the Respondent.
Ms Mc Kenna submitted that the Complainant had based his application on his incapacity due to illness, yet in the six months prior to the date he submitted his claim he was in communication with (i) the Respondent concerning his grievances; (ii) with Irish Life; (iii) with Dr Mohan, and (iv) with a significant body of legal advisers, including the advice of Counsel who advised him to raise a formal complaint under the Acts, yet he failed to lodge his claim in a timely manner.
In making its decision on this aspect of the case the Court has considered the actions of the Complainant during the period for which an extension of time would be granted.
The Complainant did not highlight any specific occurrence of alleged discrimination during this period. He complained of the Respondent’s unacceptable, unprofessional, unethical and illegal attitudes and behaviours during the period of his illness. He contended that all his complaints should be treated jointly as a wider discriminatory regime and the time limit for his complaint should be extended to twelve months starting from the end of June 2013 and for the same reasons he submitted that the Respondent should be responsible for all wrong doings from the start of his employment.
The main issue he referred to during this period concerned his whistleblowing complaint. The Complainant refers to 24thJune 2013 as the most recent date of discrimination in his complaint form. On that date he had a meeting with the Head of Commercial Finance concerning his whistleblowing complaint and contended that as management were not in a position to give answers to his questions that he intended to make further complaints to NewEra representatives responsible for Bord Gáis supervision and to the Garda Síochána. At this meeting he informed management that as soon as he got answers to his questions that he would seek legal advice on his discrimination claims. On that same date the Complainant sent an email to a number of managers outlining his position as described at the meeting on that day and stating that from his perspective both the whistleblowing complaint and his alleged discrimination by the Respondent were strongly linked. This was the first occasion that the Complainant mentioned a discrimination claim to the Respondent. The Complainant went out on sick leave from 27thJune 2013.
As the Court has found above, the Complainant has not discharged the burden of proof to show a causal connection between his whistleblowing complaint and his allegation of discrimination. The facts relied upon do not establish any inference or presumption of discrimination on the grounds of his nationality.
• 28thJune 2013 – referral for medical appointment
On 27thJune 2013, the Complainant emailed management with a medical certificate stating that he was unwell and suffering from a stress related condition. On 28thJune 2013 management emailed him and asked him to attend a medical appointment with an Occupational Physician to verify his condition. In the letter from the Respondent to the Doctor the Respondent queries if the Complainant is “fit for work” or “fit with reservations”. He contended that being referred for a medical examination coupled with the restricted options in the Doctor’s report was harassment of him on the nationality grounds.
The Court has examined above the Respondent’s actions in requiring the Complainant while on sick leave suffering from a stress related condition to attend a medical appointment and whether or not this action constituted harassment within the meaning of the Acts. As the Court has found that such actions are not uncommon, the Court cannot find anything in the manner in which this matter was approached by the Respondent to indicatemala fideson the part of the Respondent or to display hostility towards the Complainant and it was not in any sense in retaliation for his earlier complaints of discrimination.
Outcome of Complainant’s Application for an Extension of Time
The Court accepts that the Complainant suffered from a stress related illness during the period in respect of which he seeks an extension of time. However he was able during this period to indulge in voluminous correspondence with the Respondent and his legal advisors who strongly advised him of the necessity to bring a complaint of discrimination/ harassment under the Acts. For whatever reason the Complainant chose not to do so therefore the Court can find no reasonable cause for granting an extension of time for bringing the complaint.
In view of the above finding there is no necessity for the Court to make any findings as to whether the actions of the Respondent constituted continuing discrimination on its part.
Equal Pay Claim
- •Position of the parties
It is noted that this claim is fully contested by the parties, including the existence of like work as between the Complainant and his comparators. Without prejudice to its contention that the Complainant and the Comparator are not engaged in like work, the Respondent claims that there are grounds other than nationality for the impugned difference in pay.
The Complainant submitted that he was paid less than an Irish person doing like work. He first nominated Mr O'S as his comparator. (He also nominated an additional three Comparators all on lower rates of pay than Mr O’S, but on pay which was higher than his pay). The Complainant submitted that, on transfer from SWS Natural Resources Limited to Bord Gáis Energy in June 2010, his role was a Commercial Analyst, graded as Band 5, on the commencement point of €49,700 per annum plus a discretionary 10% bonus.
He held the view that the level of complexity of the tasks performed by him and his Comparator and their value to the company was similar, yet his salary was significantly lower than his colleague's who was on a salary of €80,000. He said that while they did not do exactly the same job, the difference in salary applicable to him in comparison to his comparator was disproportionate.
He submitted that a job advertised on the Respondent’s website had exactly the same job description as his own, yet his salary was below that advertised - €53,000 to €77,000. The Complainant alleged that the Respondent did not use the HAY evaluation to determine his salary. The Respondent stated that the Complainant’s employment transferred to it in June 2010.The Complainant did not lodge any formal grievance at that time. His role, grade and salary had been independently evaluated by HAY and confirmed as appropriate and his salary was increased by 30% at the time. The Respondent submitted that the Complainant had failed to meet the constituent elements of an equal pay claim as his comparator was not engaged in like work. Ms McKenna stated that the Complainant was engaged as a Commercial Analyst, while Mr. O’S was a Commercial Lead and therefore his role was not in the same pay band as the Complainant. She accepted that Mr. O'S was paid more than the Complainant but stated that he was doing an entirely different role to the Complainant.
The Complainant in his submission also nominated three other persons whom he contended were paid more than him. In his evidence he accepted that that they were not engaged in like work with him but stated that the difference in salary levels was disproportionate and could only be explained by the fact he was of a different nationality.
The Court accepts the evidence of the Respondent that the Complainant and his comparators were not engaged in like work. It is clear that a claim for equal pay must be grounded by reference to the pay of a comparator who is engaged in like work. Therefore the Court cannot find that the claim for equal pay is well-founded under the Acts.
For the reasons set out herein the Court is satisfied that the Complainant’s complaint of discrimination and harassment/bullying is statute barred. His claim for equal pay must also fail as he and his comparators are not engaged on like work. Accordingly, the Decision of the Equality Tribunal is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
3rd August, 2016.Deputy Chairman
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.