ADJ 00004857
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00004857
Parties:
Anonymised Parties
Technician -v- Healthcare Company
Representatives Rostra Solicitors -v- Waters & Associates
Complaints:
ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00006771-001 30/08/2016 Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
CA-00006771-002 30/08/2016 Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00006771-003 30/08/2016
Date of Adjudication Hearing: 10/10/2017 Workplace Relations Commission
Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant is employed as a Technician/Operative since 23rd January 2013. He is paid €27,040 per annum. He has claimed that the Respondent has illegally deducted wages and he was discriminated against on grounds of race and disability.
1) Employment Equality Act CA 6771-002 - Disability Reasonable Accommodation
Summary of Complainant’s Case:
Response to preliminary point There are no other proceedings of any kind in being at present and there is no claim for loss of earnings pending before any other forum or in any other proceedings. The complaints at hand are of two kinds based on the Equality Acts and Payment of Wages Act. The complaints stem from the same two sets of circumstances and allegations but constitute breaches of two different pieces of legislation. This complaint is within the time limit allowed. The lack of increase in pay and the reduction in hours were ongoing infractions and were discriminatory therefore the last breach sets the time. The Complainant has been suffering from back problems since July 2014. His condition has been stable and unchanged for several months since March 2015. He had been waiting a public MRI scan but then decided to undertake it privately at a considerable cost in order to inform fully his medical attendants, the Respondent and the Respondent’s doctor of his condition. The MRI scan does not seem to have been taken into account on 31st March 2016 when the decision was taken to reduce the hours of work. For approximately a year prior to this reduction he was performing lighter duties on a full time basis. During the four months when his hours were reduced he was performing the same duties but only for four hour per day. He then returned to perform the same duties on a full time basis. The reason for the reduced hours seems to be justified by the fact that light duties were only 50 % of the daily workload but he had been paid the full time amount. On the other hand, the reason appears to be medically based. He was returned to full time work in August despite the fact that his underlying condition did not resolve itself. When he was returned to full time duties that were the same as he performed when he was on reduced hours. He was treated differently because of his ethnic background. The Respondent by reducing his hours stopped or limited the accommodation for reasons which do not seem legitimate and appear contradictory thus failing in their duty to provide reasonable accommodation to the Complainant whereby he suffered a financial loss of €3,878.24. The only logical conclusion is that the withdrawal of the reasonable accommodation was an act of discrimination.
Summary of Respondent’s Case:
The Respondent is a pharmaceutical company. The Complainant was employed by a named company in January 2013 as a Production Technician. During the initial 6 months of employment a person engaged as a Production Technician would initially work as a Cleanroom Operator and through working on site and ongoing training develop into taking on the full functions of a Production Technician. The Complainant was one of a number of employees whose employment transferred to the Respondent under the TUPE Regulations on 10 November 2015. Preliminary Point In June 2016, the Complainant lodged a Personal Injuries claim against the Respondent alleging that he suffered a workplace injury. The complaint form discloses the injuries as being “lower back injury at work”. The date when the Complainant first sought medical attention is stated as being 1 July 2014. That claim is seeking loss of wages. The date of when the injury was incurred is in issue. The Complainant is not allowed to recover twice for the same financial loss. As such, we would ask that the Complainant decide at this point whether or not he intends to pursue his claim for loss of earnings before this body or before the Courts. He cannot claim the same losses before both bodies Discrimination/Equality The Complainant has asserted that he was discriminated due to a disability in the form of the Respondent “failing to give me ‘reasonable accommodation’” and “victimising” him. The most recent alleged act of discrimination is alleged to have occurred on 28 March 2016 (per WRC Complaint Form). The nature of the claim is that his hours of work were reduced, corresponding with a reduction in salary, from the month of April 2016 until his disability was fully resolved and he returned to full time working hours on 1 August 2016. It is asserted that the “employer failed and/or refused to offer and/or consider alternative duties suitable to my condition.” It is denied by the Respondent that it engaged in discrimination of any nature. There is a prima facie duty upon the Complainant under the 1998 Act to prove discrimination. At the time when the Complainant transferred to the Respondent in November 2015 he was already working restricted duties due to his “low back pain”. However, the Complainant was only operating in a restricted capacity carrying out some, not all, of the duties of a Cleanroom Operator, even though he had been employed as a Production Technician. It was noted from the file furnished by the Transferor to the Respondent that there was a medical report on file dated 27 March 2015 from the Complainant’s own doctor, that stated the Complainant had “low back pain” and proceeded to state “What I can say is that I have prescribed him analgesics that should help and that we are in the process of organising an MRI of his lumbosacral spine to see if a diagnosis can be obtained for this problem.” As such, as early as March 2015 an MRI scan to progress matters was meant to have been in train. The Complainant missed various periods of work prior to transferring to the Respondent for various reasons to include “back pain. The Transferor arranged for the Complainant to meet with the Respondent’s independent occupational specialists, on 28 April 2015. The advices received were that the Complainant’s role was mostly standing but that “he would be fit to continue subject to tolerance with this if he could sit for 2-3 minutes every 30 minutes”. It was also noted that physiotherapy was recommended and that “He awaits an MRI which will further quantify his condition”. Insofar as reasonable accommodation being concerned, the Complainant attended a meeting with his line manager, on 11 May 2015. At that meeting he was advised that there were chairs available to him and that he should adhere to the medical recommendations, memo of meeting was attached. As such, reasonable accommodations were provided by the Respondent. A further medical assessment was conducted by the Company Doctor on 9 September 2015. She reported to the Transferor that the “Complainant’ssymptoms remain stable and he reports that the work restrictions in place have been beneficial. His symptoms are not exacerbated by his current work pattern…” This demonstrates that reasonable accommodations had been put in place to suit the Complainant. The Doctor states in her report that she has “made recommendations with regards to his treatment” and that the Transferor should “continue with current restrictions”. As such, it is clear that at that time the reasonable accommodations which were in place for the Complainant were appropriate. He was assessed by the Health Insurance company on 15 January 2016, following a referral by the Respondent in light of his continued restricted duties. The information contained therein was provided to the Occupational Health Advisor by the Complainant. It confirms that the Complainant advised that his GP had recommended an MRI scan. It also sets out the light duties, since January 2016, to which the Complainant had been restricted. It should be noted that the MRI scan referred to above was the same MRI scan which had previously been recommended to the Complainant by the same GP in March 2015. However, the Complainant had failed to follow his own GP’s recommendations. He had failed to arrange for an MRI scan and had not undertaken physiotherapy. By that point in time the Complainant had been on restricted duties, yet on full pay, for 10 months, without taking measures himself to address his condition in the form of undertaking an MRI scan, which had been recommended in March 2015 The Respondent referred the Complainant to their Medical Adviser who assessed him on 17 February 2016. Within that report, under the heading “Diagnosis” it provides: “The above is complaining of chronic lower back since mid 2014 and reports 3-4 day ‘flare-ups’ approximately twice monthly. Unfortunately, he has had no investigation to date, with no referral from his General Practitioner to consultant or allied therapy. His GP is providing symptomatic management only, to date.” The letter confirmed that the Complainant was “fit for his current modified duties but feels unfit for normal duties.” We would observe that by this point in time the Complainant was on modified duties, approximately half of the normal work load of a person occupying his role, but that he had by that point in time been on full pay throughout the time that he was performing those modified duties. As an aside, this report also states that “the Complainantdoes not identify any specific trigger for original development of his symptoms.” The Company Doctor made more or less the same recommendations under the title of “Treatment” (i.e. MRI and physiotherapy) which had been made nearly a year prior to that but not undertaken by the Complainant. The Doctor goes on to provide under the title of “Recommendations/Employment Implications” that “Complainant has continuous limitations in his work and non-work life due to his lower back symptoms. Until there is clarification of the best treatment modality with his treating doctor, it is unlikely that his condition will improve.” The Respondent’s Occupational Healthcare Advisor, confirmed restrictions on the work which the Complainant could undertake due to his condition by letter dated 22 February 2016. The Respondent met with the Complainant, as it had done on prior occasions, on 30 March 2016. That meeting is referred to in correspondence with the Complainant from the Respondent dated 31 March 2016. That letter summarises the Respondent’s decision to reduce the Complainant’s hours to approximately 50% of the hours that his full duties would require with the appropriate pro rata salary. It was clear that despite being provided with reasonable accommodation by the Respondent for a period of 18 months that he had failed and/or neglected to take appropriate measures to ensure that he could return to his full duties, despite carrying out approximately half his normal role but being paid his full salary during that period of time. In the circumstances, after 18 months of full pay for reduced duties the Complainant’s hours of work were reduced from full time hours to those hours which fitted the work which he could undertake in light of his disability. Thereafter, it is noted that the Complainant undertook measures in compliance with the advice of his GP and the advices which had previously been furnished by the doctors who had assessed him on behalf of the Respondent. The Complainant was referred to the Company Doctor and was assessed by him on 14 July 2016. That report confirms that “Following appropriate investigations by his treating doctor, through MRI scan, he had medication management…His symptoms completely resolved some months ago, he reports. He has no current symptoms attributed to his work.” The report confirms that the Complainant was then fully fit for work, albeit that it states “I have advised that he would benefit from engaging in a programme to increase the flexibility and strength in his back. This would reduce the risk of recurrence of symptoms.” Following receipt of this medical report the Respondent returned the Complainant to full working hours on normal duties, albeit those of a Cleanroom Operator and not those of a Production Technician, being the role for which he was employed. A letter dated 4 August 2016 confirmed the Complainant’s return to work with effect from Tuesday, 2 August 2016, without restrictions. The Law The relevant section in relation to this matter is section 16 of the 1998 Act. The relevant parts of section 16 for these purposes are as follows: “16.—(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual— … or (b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed. …[(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as “appropriate measures”) being provided by the person's employer.(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—(i) to have access to employment,(ii) to participate or advance in employment, or(iii) to undergo training,unless the measures would impose a disproportionate burden on the employer.(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—(i) the financial and other costs entailed,(ii) the scale and financial resources of the employer's business, and(iii) the possibility of obtaining public funding or other assistance.]… [“appropriate measures” , in relation to a person with a disability—(a) means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;]...” The definition of “appropriate measures” as referenced within clause 16 (4)(c) of the 1998 Act does state that it “does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself”. In this instance the Respondent made adjustments to the Complainant’s work requirements for an extended period of time. However, the Complainant failed and/or neglected to undertake measures which would have reasonably returned himself to being fully capable of undertaking his role. It is clear from the medical reports that the employer had sought to provide appropriate measures for an extended period of time in the form of the assignment of reduced tasks to the Complainant over an extended period of time. However, despite only doing approximately half of the work associated with the role the Complainant received full salary during that period. Due to the physical restrictions upon the Complainant the physical demands placed upon the Complainant were reduced and he was accommodated. There were no alternative less demanding duties available for the Complainant at the Respondent site. The alternative roles available on site were in the warehouse and dispatching of goods, which functions would have been physically demanding and for which the Complainant would not have been fit. It is evident that once the Complainant complied with his own medical advice and that of the Company’s medical advisors that he was then fit to resume his role on a full time basis. However, he did not take such measures until his working time was reduced to reflect the role which he was then capable of conducting, with a pro rata adjustment in salary. Section 16 of the Employment Equality Act provides that the Complainant must undertake such measures as a person should ordinarily or reasonably provide for himself. The Complainant failed to do so at the time. Once such measures were undertaken by the Complainant then he was returned to full time work. It is respectfully asserted that the Company provided all reasonable accommodation that could be required of it to facilitate the Complainant. At no time was he victimised by the Respondent. Section 35(1) of the Employment Equality Act provides as follows: “Nothing in this Part or in Part II shall make it unlawful for an employee to provide, for an employee with a disability, a particular rate of remuneration for work of a particular description if, by reason of the disability, the amount of that work done by the employee during a particular period is less than the amount of similar work done, or which would reasonably be expected to be done, during the period by an employee without the disability.” Where the Complainant was only able to do half of the normal work involved, accounting for a half day’s work, he was paid accordingly.
Findings and Conclusions:
I note the conflicting positions of both parties. I note that for approximately a year prior to the reduction in hours the Complainant was performing lighter duties on a full time basis. I note that for the four months the Complainant was on reduced hours he performed the same duties but for a shorter time. I note that it is the Complainant’s position that he returned to full time duties despite the fact that the underlying conditions were not resolved. I note that the Respondent had provided seating facilities as required by medical advice. I note the medical evidence that the work restrictions were having a beneficial effect. I note another medical comment that he should continue with the medical restrictions. Therefore, he had been given accommodation because of his disability. I note that the Complainant had been advised to have a MRI scan but despite being given months he failed to arrange that scan, which should have assisted him in achieving a full recovery. I note that the Respondent, after 18 months of full pay for reduced duties, the Complainant’s hours of work were reduced from full time hours to those hours which fitted the work which he could undertake in light of his disability. I note that it was the Respondent’s position that these reduced hours were only those that were available. I note that Section 16 of the 1998 Act states, 1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual— … or (b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed. … Therefore, I find that this provision allows for the Respondent to reduce the hours due to the Complainant’s inability to perform normal duties. Section 35(1) of the Employment Equality Act provides as follows: “Nothing in this Part or in Part II shall make it unlawful for an employee to provide, for an employee with a disability, a particular rate of remuneration for work of a particular description if, by reason of the disability, the amount of that work done by the employee during a particular period is less than the amount of similar work done, or which would reasonably be expected to be done, during the period by an employee without the disability.” Therefore, I find that the Respondent acted appropriately and lawfully in reducing the hours of work and applying a pro rata rate of pay for the reduced hours due to the Complainant’s inability to perform normal duties. I find that the Complainant has not established a prima facie case of discrimination. I find that this part of the complaint fails.
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. For the above stated reasons, I have decided that this complaint fails.
Employment Equality Act CA 6771-003- Equal Pay
Summary of Complainant’s Case:
The Complainant who is of African descent was treated differently than a number of his colleagues from other corners of the world who started employment with the Respondent around the same time. It is submitted that the onus of proof to demonstrate that he failed to complete the probation period satisfactorily rests with the Respondent. Summary of Respondent’s Case: The Complainant has brought a claim seeking equal pay asserting the differential in pay on the ground of race. By way of a comparator the Complainant has referred to three named parties: There is a prima facie obligation upon the Complainant to demonstrate that the difference arises due to race. It was utterly denied by the Respondent that race has anything to do with the difference in pay between the Complainant and the comparators. Comparator A commenced with the Transferor in or about January 2013. She is Polish. Comparator B commenced with the Transferor in or about January 2013. She is Irish. Comparator C commenced with the Transferor in or about January 2013. He is Indian. The Complainant commenced with the Transferor in or about January 2013. He has Irish nationality and we understand was born in Rwanda. After 6 months of employment the three comparators, having successfully completed their probation, moved on from being Cleanroom Technicians to being Production Technicians and accordingly obtained a pay rise to €31,200. As previously outlined, the Complainant did not successfully complete his probation and has, to this day, remained operating as a Cleanroom Technician, not carrying out the role for which he was engaged, that of a Production Technician. It is absurd to suggest that the Company operates a basis of pay discrimination against an Irish citizen of Rwandan origin, while then treating other different races equally. The differentiating factor is the work undertaken by the parties. The job descriptions set out the difference between a Cleanroom Technician and a Production Technician. The comparators worked as Production Technicians. The Complainant has only worked as a Cleanroom Technician, not having progressed to the functions of a Production Technician. This clearly accounts for the pay differential. It has nothing whatsoever to do with race. The Adjudication Officer is respectfully requested to dismiss each of the complaints as set forth by the Complainant where they are clearly without merit.
Findings and Conclusions:
I note the three comparators and their circumstances. I note that all four employees including the Complainant commenced employment around the same time. I note that the three named comparators passed their probation and were confirmed as Production Technicians. I note that the Complainant failed his probation and did not progress to the position of Production Technician. I note that he continued to carry out the duties of Cleanroom Technician. I note the job descriptions of both positions and find that the job of Cleanroom Technician is of a lesser grade than that of Production Technician. I note the evidence of the Manager who carried out the assessment of all four candidates and his confirmation that the Complainant did not pass his probation. I note that he was advised that he could still pass and progress to the position of Production Technician however illness and absence intervened so he has not achieved that level yet. I find that the comparators achieved the higher rate of pay because they had passed their probation, not because they were Polish, Irish or Indian. I find that the Complainant has not established a prima facie case of discrimination.
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. For the above stated reasons, I have decided that this complaint fails.
2) Payment of Wages Act CA 6771-001
Summary of Complainant’s Case:
The Complainant has been suffering from back problems since July 2014. His condition has been stable and unchanged for several months since March 2015. He had been waiting a public MRI scan but then decided to undertake it privately at a considerable cost in order to inform fully his medical attendants, the Respondent and the Respondent’s doctor of his condition. The MRI scan does not seem to have been taken into account on 31st March 2016 when the decision was taken reduce the hours of work. For approximately a year prior to this reduction he was performing lighter duties on a full time basis. During the four months when his hours were reduced he was performing the same duties but only for four hour per day. He then returned to perform the same duties on a full time basis. The reason for the reduced hours seems to be justified by the fact that light duties were only50 % of the daily workload but he had been paid the full time amount. On the other hand the reason appears to be medically based. He was returned to full time work in August despite the fact that his underlying condition did not resolve itself. When he was returned to full time duties that were the sane as he performed when he was on reduced hours. He was treated differently because of his ethnic background. The Respondent by reducing his hours stopped or limited the accommodation for reasons which do not seem legitimate and appear contradictory thus failing in their duty to provide reasonable accommodation to the Complainant whereby he suffered a financial loss of €3,878.24.
Summary of Respondent’s Case:
A total of €16,358.24 is claimed. That sum arises from the following sums claimed: Claim A - A period of 4 months from 1 April 2016 to 31 July 2016 when the Complainant was working half of his normal hours and getting paid on a pro-rata basis. The alleged non-payment is €969.56 per month each month for four months. The total sum claimed is €3,878.24. This arose in circumstances relating to the non-existence of work for him to carry out in circumstances where he had been on restricted duties arising from his then disability. There was sufficient work for him to do for a half-day each working day, but not a full day. As such, his working hours were reduced to half normal working hours. His contract of employment, at clause 15, under the heading of “Lay Off/Short Time”, provides that: “The organisation reserves the right to lay you off from work or reduce your working hours where, through circumstances beyond its control, it is unable to maintain you in employment or maintain you in full-time employment. You will receive as much notice as is reasonably possible prior to such lay off or short-time. No payment will be made for any period of layoff. Payment will only be made for hours actually worked during any period of short time.” The Complainant’s hours of work were reduced as there was insufficient work for him to carry out on a full time basis in light of the restrictions which applied to him. More detailed particulars which gave rise to this situation are set out in addressing the claims of alleged discrimination. Furthermore, it is provided within the Employment Equality Acts at section 35(1) as follows: “Nothing in this Part or in Part II shall make it unlawful for an employee to provide, for an employee with a disability, a particular rate of remuneration for work of a particular description if, by reason of the disability, the amount of that work done by the employee during a particular period is less than the amount of similar work done, or which would reasonably be expected to be done, during the period by an employee without the disability.” In any event, it was clear that due to the disability as claimed by the Complainant that even with the provision of accommodation he was unable to carry out the normal duties associated with his role and as such there was not a full-time role for him to carry out. The work which he was able to undertake could be undertaken in a half day. Accordingly, he was paid on a pro rata basis. In the context of this particular claim it should be noted that the Respondent had continued to pay the Complainant a full salary for an extended period of time while awaiting the Complainant to follow the advice of his medical advisors, which he failed and/or neglected to do, during which time he only carried out a half day’s work while being paid for a full day’s work. Claim B - An alleged entitlement to an increase in pay which it is alleged should have occurred in July 2013. It is asserted that the Complainant was entitled to an automatic pay increase from July 2013 which was not given to him. The claim is based on clause 9 of the Complainant’s original contract of employment with Fannin. The asserted loss is the difference between his starting salary of €27,093 and the possible increase to €31,200 for a period of 4 years i.e. €4,160 x 4 years = €12,480. The alleged non-payment of a pay increase to which the Complainant alleges he was entitled it is noted that it is asserted that this payment should have been received by the Complainant on 15/06/2016 (WRC Complaint Form). This is incorrect. If the Complainant was to receive a salary increase at the end of his period of probation that probation period was to have ended 6 months following the commencement of his employment. Employment commenced in January 2013. Therefore any “automatic” pay increase would have been effective in July 2013. In the first instance, there was no such automatic right to a pay increase, as claimed by the Complainant. Secondly, if there had been it would have been effective in July 2013 and therefore any such claim is utterly out of date. The Complainant’s Statement of Main Terms and Conditions of Employment/Contract of Employment, as issued by the Transferor provides the following at clause 9 thereof: “You are paid on a monthly basis on the 23rd of each month by way of bank transfer. Your rate of pay is €27,040 gross per annum. Your salary will be reviewed after 6 months employment, with the potential to increase to €31,200 per annum, conditional upon successful completion of initial training and probation period.” The payment of an increased amount was conditional, not automatic. The clause provides for a review after 6 months of employment, at which point the issue would be considered. His employment commenced in January 2013. The review would have taken place in July 2013. It is at that point that an entitlement to any pay increase would have arisen. The Complainant did not receive the possible increase in salary as his then employers were not satisfied with his performance. The Complainant did not satisfactorily pass his probation. Rather than progressing on to his role as a full Production Technician, the role for which he was engaged, he remained carrying out the lesser duties of a Cleanroom Operator. As such, he did not carry out the significant function of “Compounding”, a function which other colleagues who commenced the role in or about the same time as him moved on to do. Indeed, this is evident by the salary increases of those relied upon by the Complainant within these proceedings as his comparators. Had the Complainant an issue not receiving a pay increase, insofar as he felt that it was unfair or unwarranted, he should have raised that at the time with his then employers. He did not do so as he was aware that he had failed to progress. His claim is now very much out of time. Section 6 of the Payment of Wages Act, 1991, provides for the timelines within which such a claim can be lodged at sub-section 4 thereof, where it states: “A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning in the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable.” Where the increase, if applicable, should have arisen in July 2013 and the claim was not presented until August 2016 this claim must fail. It is noted that the Complainant references an issue in relation to training within this part of his claim, under the Payment of Wages Act, and alleges victimisation, being blamed for an error. However, same is not relevant to a claim under the Payment of Wages Act. However, for the sake of clarity the Respondent will briefly address the issue of training provided to the Complainant. Following his engagement by the Transferor the Complainant was given the same training as other colleagues who commenced employment at the time. Prior to the end of the initial probation period the Complainant was reviewed, in a similar manner to his colleagues. A Production Technician who observed his work, was not satisfied with his performance and advised that they could not pass the Complainant to become a Production Technician. A then manager provided the Complainant with a second chance and reviewed his technique to ascertain his competence following the previous observations. It was determined that his technique was not at the required standard. While others progressed to the role of Production Technician the Complainant did not. Thereafter the Respondent started with the Complainant from “scratch” from a training perspective with a view to building his skills so as to progress to the full role of Production Technician. However, the key function of a Production Technician in the Respondent’s Compounding Unit is to engage in compounding. The Complainant has advised the Respondent that he does not wish to carry out compounding duties as he has advised that he is “nervous around needles”. Insofar as an error which occurred an event transpired on 18 January 2016 wherein a microbial contamination was discovered. It was mistakenly understood that two parties including the Complainant was involved. It subsequently came to light that the Complainant had not been involved in the process. An apology was issued to him. With respect, this cannot be seen as victimisation in the context of race or disability and related solely to investigating a breach of standards within a production process.
Findings and Conclusions:
a) Reduction in pay when hours were reduced. I have decided in case CA 6771-002 that the Respondent had provided reasonable accommodation and that they acted reasonably in reducing the hours of work where the Complainant was unable to carryout normal duties. I find that the reduction in hours was due to the lack of work for restricted duties and in accordance with the equality legislation the Respondent acted lawfully in reducing the hours of work and applying the rate of pay on a pro rata basis. Sec 1(1) of this act defines wages as “any sum payable to the employee”. I note that in the case Sullivan v Department of Education [1998] E.L.R. 217 the Tribunal took the word payable to mean ‘properly’ payable, i.e. all sums to which an employee is properly entitled. Therefore, in order to have an entitlement to wages under this Act it is necessary to have the entitlement grounded in the contract of employment. I find that the wages now being claimed under this Act are wages not properly payable. I find that the Respondent was entitled to reduce the hours as work was not available. I note that the contract of employment provides as follows: “The organisation reserves the right to lay you off from work or reduce your working hours where, through circumstances beyond its control, it is unable to maintain you in employment or maintain you in full-time employment. You will receive as much notice as is reasonably possible prior to such lay off or short-time. No payment will be made for any period of layoff. Payment will only be made for hours actually worked during any period of short time.” Therefore, the Respondent may rely upon Section 5 (1) of this Act, “an employer shall not make a deduction from the wages on an employee (or receive any payment from an employee) unless – (a) The deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) The deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) In the case of a deduction, the employee has given his prior consent in writing to it. I find that this deduction in wages was provided for in Sec 5(1))(b) above. I find that this part of the claim fails. Claim B - An alleged entitlement to an increase in pay which it is alleged should have occurred in July 2013. I note the potential time limit issue with regard to this part of the claim. I note the Complainant’s argument that this is a continuous infraction therefore he may claim for the last six-month period prior to presentation of claim, as per the Moran judgement. I have decided to address the substantive part of this complaint. I have addressed this complaint in CA 6771-003 above. I have found that the reason why he did not get an increase in pay was because he did not pass his probation. I find that he has not established a contractual entitlement to the monies claimed. I find that this complaint fails. -
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have decided that this complaint fails.
Dated: 1 December 2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words: Wages and discrimination on grounds of race and disability, reasonable accommodation