Complainant

Respondent

Parties

Gigel Cristinel Stefan

Harvey Norman Trading (Ireland) Limited

Representatives

  Self-represented

Alastair Purdy, Alastair Purdy & Co. Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00055712-001

15/03/2023

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

CA-00055712-002

15/03/2023

The complainant commenced employment with the respondent on 06 June 2018.  On the complaint form the complainant’s position was described as Computing Customer Service Support technician.  He worked 31.3 hours per week and was paid €428.14 gross per week.  The complainant’s employment was terminated on 25 February 2023.  The complainant submitted complaints to the Workplace Relations Commission on 15 March 2023 claiming he was unfairly dismissed and that he had not received equal pay during his employment.

The respondent rejects the complainant’s assertions in their entirety.  It submits that the complainant was dismissed on the grounds of gross misconduct in failing to follow company policies and procedures regarding the removal of Waste from Electrical and Electronic Equipment (WEEE) items without permission.  The respondent asserts that when effecting the dismissal, it applied fair procedures and that the decision reached was both proportionate and reasonable.

CA-00055712-001

Complaint pursuant to Section 8 of the Unfair Dismissals Act, 1977.

The complainant commenced employment as a part-time Love Tech Operative on 06 June 2018.  His initial contract was for a fixed term, but he subsequently became a permanent employee. 

On 10 January 2023 the complainant received a laptop from a customer which was meant to be placed in the Waste from Electrical and Electronic Equipment (WEEE) cage.  The complainant claims that the customer gave the laptop to him.  He placed the laptop into a bag and left the store with the laptop.  The transaction was captured on CCTV.

On 20 January 2023 the complainant when on a day off came into the store and took a toaster, which a colleague had retrieved from the WEEE cage.  The complainant was seen on CCTV leaving the store with the toaster.

No permission was sought from the respondent to take either of these items.

The respondent informed the complainant, by letter dated 14 February 2023, that it would investigate an alleged breach of company policies and procedures regarding the removal of WEEE products from the store without permission. 

The investigation meeting was held on 16 February 2023.  The complainant had been informed that he could be accompanied by a member of staff as a support person, but he decided to attend the meeting unaccompanied.  The investigation was conducted by a store manager.  Notes of the meeting were taken by another store manager and a copy of the notes was subsequently provided to the complainant.  During the meeting the complainant admitted removing company property without permission. 

By letter dated 22 February 2023 the complainant was invited to attend a disciplinary meeting on 24 February 2023.  The purpose of the meeting was for the complainant to provide an explanation as to why he had not followed company policy and procedure regarding WEEE products.  The complainant was informed that he could be accompanied to the meeting by a member of staff as a support person, but he decided to attend the meeting unaccompanied.

The disciplinary meeting was held in Head Office by the General Manager – Computers, Mr Colin Curtis.  Also attending the meeting was a member of staff from the HR Department who was the note taker.  In the meeting the complainant admitted taking the products without permission.  Considering this admission, the respondent made the decision to dismiss him.  Mr Curtis wrote to the complainant on 25 February 2023 informing him that careful consideration had been given to the matter and given the serious breach of Company policies and procedures the Company had no alternative but to terminate his employment with immediate effect.  The complainant was informed of his right to appeal this decision and he was provided with a copy of the notes of the meeting.

The complainant appealed the decision to dismiss him.  The respondent received the written appeal on 07 March 2023.  The appeal hearing took place on 23 March 2023 and was conducted by the Chief Financial Officer, Mr Aidan Brady.  A member of the staff of the HR Department attended the meeting to take notes.  The complainant was informed that he could have a member of staff attend the meeting with him as a support person, but he decided to attend the meeting unaccompanied.    By letter dated 29 March 2023 the complainant was informed that the decision to dismiss was upheld.  The ground of appeal presented by the complainant at the meeting was that the respondent did not follow the procedures regarding the disciplinary stages as contained in the disciplinary policy.  In the complainant’s view the policy was not followed because he never received any sanction prior to dismissal. 

The complainant submitted a complaint to the WRC on 14 March 2023.

Legal Submission

The respondent submits that it correctly categorised the complainant’s behaviour as gross misconduct in line with the terms of its Disciplinary Policy.  The complainant had admitted taking WEEE items from the store without permission on two separate occasions.

The respondent acknowledges that section 6(7) of the Unfair Dismissals Act requires an adjudicator to consider the reasonableness of the employer’s conduct when deciding to terminate employment.  The decisions of the Labour Court in Noritake (Irl) Ltd v Kenna UD88/1983 and Permanent TSB PLC v Callan UD/18/227 were cited as establishing the following test of reasonable conduct:

1.       Did the company believe that the employee misconducted himself as alleged?

2.       If so, did the company have reasonable grounds to sustain that belief?

3.       If so, was the penalty of dismissal proportionate to the alleged misconduct?

It is the respondent’s position that the complainant had no authority to remove either of the items from the store.  The complainant admitted taking the items from the store.  Therefore, the respondent has sufficient grounds to conclude the complainant was guilty of gross misconduct and reasonable grounds to sustain that belief. 

Further, the respondent submits that the decision to dismiss was proportionate and in accordance with its disciplinary procedure as the complainant occupied a position of trust and had removed items from the store without authorisation.  The value of the items was not the issue but rather the breach of trust by the complainant was the issue.  It is submitted that the decision to dismiss is consistent with what a reasonable employer would do in the circumstances.  The decision of Noonan J in Bank of Ireland v Reilly [2015] IEHC 241 was cited referring to section 6(7) of the Act: “That is not to say that the court or other relevant body may substitute its own judgement as to whether the dismissal was reasonable for that employer.  The question is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned.”

The respondent also cited the decisions in O’Riordan v Great Southern Hotels UD1469/2003 and Geoghegan v Fannin Limited t/a Fannin DCC Vital ADJ-00036058.

The respondent submitted that the decision to dismiss was proportionate having regard to the fact that it operates in a highly competitive market and that all employers operating in the same retail industry would have dismissed for a similar offence.

It is the respondent’s position that the complainant was afforded his right to fair procedures and natural justice throughout the disciplinary process in line with the principles set down in S.I.146/2000. 

The respondent submitted that there is a legal duty on employees to mitigate their financial loss by taking steps to secure comparable alternative employment.  The decisions in Burke v Superior Express Limited UD1227.2014 and Sheehan v Continental Administration Co Limited UD858/1999 were cited.

It is submitted that the decision to dismiss was within the band of reasonableness and proportionate having regards to the facts before the respondent at the time of the decision.

CA-00055712-002

Complaint pursuant to section 77 of the Employment Equality Act, 1998.

It is the respondent’s position that the complainant did not raise any issue with his pay whilst employed.  The issue was first mentioned post termination.  The complainant claims discriminatory treatment on the ground of age but never raised this internally or sought any information from the respondent.  The respondent’s position is that there is no foundation to this complaint.

CA-00055712-001

Complainant pursuant to section 8 of the Unfair Dismissals Act, 1977.

It is the complainant’s position that he was unfairly dismissed from his employment having worked for five years throughout which he was praised for his work by his managers.  On 25th February 2023 the complainant states that he was emailed a dismissal letter for “removing WEEE products for the WEEE bins/cages without permission”. 

The complainant states that two bread toasters were taken from the WEEE bins/cages by one of his colleagues.  That colleague called him and asked if he wanted one of the toasters and he said yes.  When he went into the store his colleague handed the toaster to him and he placed it in a bag.  This he did in front of the CCTV camera which he knew was there.

On another day the complainant was working on a data transfer and PC set-up for a customer who had purchased a new laptop.  The complainant states that the customer offered him the old faulty laptop as he might use some parts out of the laptop.  The customer when asked about the hard drive indicated that it was to be disposed of, which the complainant did.  The complainant put the laptop in a bag, in front of the CCTV camera, so that he could carry it home.

The complainant admitted that he had taken the two items from the store and confirmed that he was provided with photographs from the CCTV.  The complainant states that he was not concealing the items, the toaster was given to him by a colleague and the laptop was from a customer.

By letter dated 15 February 2023 the complainant was invited to attend an investigation meeting the following day.  The investigation concerned an alleged breach of company policies and procedures regarding the removal of WEEE products without permission.  A disciplinary hearing was held on 24th February 2023 and the complainant was dismissed on 25th February 2023. 

The complainant was provided with a copy of the respondent’s Disciplinary Policy, and he was informed that he could have a support person with him at both the investigation and the disciplinary meetings.  It is the complainant’s position that the respondent’s Disciplinary Policy contains five stages of disciplinary action – Counselling, Verbal Warning, First Written Warning, Final Written Warning and Dismissal but none of the first four were given to him, the respondent went straight to dismissal.  The decision to go straight to dismissal the complainant considers to be wrong and unfair.

The complainant appealed the decision to dismiss him, but the dismissal was upheld. 

It is the complainant’s position that the items were not stock items of the respondent.  The toaster was a WEEE item given to him by a colleague and the laptop was given to him by a customer.  He did not try to conceal taking these items from the store.  Further, the respondent failed to follow its own procedures by not giving him a warning, verbal or written but rather went straight to dismissal, which was not fair or proportionate in the circumstances.

CA-00055712-002

Complaint pursuant to section 77 of the Employment Equality Act, 1998.

The complainant stated on the complaint form that he was paid the same hourly rate from the time he commenced employment in 2018 until three and a half years later.  The hourly rate was then increased by one euro.  In 2023 the rate was increased in line with the national minimum wage rate.  It is the complainant’s position that colleagues who were employed after him received the same or higher rate at the time of hiring.  The complainant named six colleagues in the complaint form and claimed they were paid a higher rate at the time of hiring than he was being paid.

The complainant considered he was not being fairly and equally treated.  The complainant stated that he assumed he was not treated equally because of age.

The complainant referred to the respondent’s policy wherein it is stated that it “values the diversity of its personnel and endeavours to be fair by hiring, training and rewarding its personnel based on merit, experience and other related criteria”.  The complainant asserted that throughout his employment he never had any problems whatsoever with any of his managers, colleagues, or customers.

CA-00055712-001

Complaint pursuant to section 8 of the Unfair Dismissals Act, 1977.

The complainant was employed as a customer service technician in computing in the ‘Love Tech’ section of the respondent company.  He commenced employment on 06 June 2018 and worked mainly with customers setting up computers, transferring data and resolving issues for customers.

The complainant claims that he was unfairly dismissed.  He stated he had received positive feedback from managers and customers over the years of his employment.  The allegation against the complainant that resulted in dismissal was that he had removed WEEE products from the store without permission, in contravention of the respondent’s policy.

The respondent asserts that the complainant admitted removing WEEE items without permission.  This was a breach of company policy.  The complainant had confirmed he knew the correct procedure for dealing with WEEE items.  The respondent’s position is that it applied fair procedures and the decision to dismiss the complainant was both proportionate and reasonable.

Legislation

Section 6 of the Act provides the following concerning unfair dismissal:

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for dismissal. the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

 …

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

 …

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.

The Act therefore places the onus on the respondent to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in section 6(4).  In this case the relevant section is 6 (4) (b), the conduct of the complainant.

Timeline of Events

10 January – The complainant was recorded on CCTV receiving a laptop from a customer.  He later placed the laptop in a bag and removed it from the store.  The respondent asserts that this item should have been place in the WEEE cage for disposal.  The complainant’s position is that having transferred the customer’s data to a new laptop the customer gave him the laptop as it might be useful for spare parts.

20 January – The complainant was on a day off work.  He was recorded on CCTV coming into the store and leaving with a toaster that a colleague had taken from the WEEE cage.

16 February - The complainant attended an investigation meeting.  Prior to the meeting he was informed in writing that the investigation concerned an alleged breach of company policies and procedures regarding the removal of WEEE products from the store, without permission. 

The complainant acknowledged that he was also informed that he could have a staff member with him as a support person.  The complainant attended the meeting unaccompanied.  The complainant acknowledged that he was provided with a copy of the Code of Conduct, the Disciplinary Policy, and Snapshots of the relevant CCTV footage. 

24 February - Following the investigation, the complainant was invited to attend a disciplinary meeting.  The purpose of the meeting was stated to be for the complainant to provide an explanation as to why he had not followed company policies and procedures regarding the taking WEEE products without permission. 

The complainant acknowledged that he was again informed that he could have a staff member with him at the meeting, as a support person.  The complainant attended the meeting unaccompanied. 

25 February - The complainant was dismissed.  The complainant was informed of the decision to dismiss him by email letter.  The respondent in the letter of dismissal stated that the complainant had admitted to removing WEEE products without permission, on 10 and 20 January 2023.  The complainant was informed that he had a right to appeal the decision to dismiss him.

23 March – The complainant attended an appeal meeting.  The complainant acknowledged that he was informed that he could have a staff member with him at the meeting, as a support person.  The complainant attended the meeting unaccompanied.  The complainant was informed in writing on 29 March 2023 that the decision to dismiss him was upheld.

The complainant was provided with minutes of each meeting.  The complainant submitted a complaint to the WRC on 15 March 2023, prior to the appeal hearing.

Respondent’s Evidence

Mr Colin Curtis, General Manager – Computers of the respondent gave evidence.  He outlined his career history of over 19 years with the respondent.  Mr Curtis conducted the disciplinary hearing on 24 February 2023.  He had been accompanied by another employee who acted as note taker.  The complainant was provided with a copy of the notes.

Mr Curtis stated that following the investigation concerning the removal of WEEE items he wanted to hear the complainant’s side of the events and to ask questions.  He explained that WEEE items are collected for recycling.  There is an agreement in place with WEEE Ireland whereby the respondent collects items for recycling, and it is paid for same by the tonnage. 

Mr Curtis stated that he concluded that the complainant had admitted to taking the items.  These items were for recycling and were the property of the respondent.  He stated the complainant would not have been in possession of the items if he was not working for the respondent.  Mr Curtis stated that the items were not of high value, but they were the property of the respondent and had a value.  He referred to the policy which states that WEEE items are the property of the respondent and under no circumstances are such items to be taken by employees/members of the public.

Mr Curtis stated that the complainant, having admitted taking the items, had not shown any remorse for his actions.  He regarded the complainant’s actions as dishonest. He stated that he had no preconceived idea about the matter and he had considered if a lesser sanction was appropriate. He considered the complainant’s action a breach of trust.  As this was dishonest action by the complainant, in breach of policy and trust, the appropriate sanction was dismissal. 

Cross Examination

In reply to questions from the complainant Mr Curtis stated that the complainant had admitted taking WEEE items without permission, that was a breach of company policy and breach of trust.  The taking of company property was not permitted and is regarded as gross misconduct.  The decision to dismiss was appropriate, not to dismiss would set a precedent that it was okay take company property.

Responding to a question from the complainant as why one of the lesser sanctions, as set out in the policy, was not applied Mr Curtis stated that this was theft of company items and dishonest, so a lesser sanction was not suitable.

Complainant’s Evidence

The complainant stated he was unfairly dismissed.  He admitted that he had removed a toaster and a laptop from the store and provided the following explanation of his actions.

The toaster had been removed from the WEEE cage by a colleague who had called him.  The colleague had removed two toasters from the WEEE cage and offered one to the complainant.  The complainant stated that he went into the store on his day off and his colleague showed him the toaster, it looked okay, so he took it.  He stated he was not hiding anything as he took it in front of the CCTV.  He stated he believed he was given a free toaster by a colleague.

A customer paid the respondent €110 to transfer data from an old laptop to one that he had purchased from the respondent. The complainant stated that the customer, whom he had dealt with previously, then offered him the old laptop.  He could not take the hard drive as that has to be disposed of, but he accepted the laptop.  He stated that he accepted the laptop in sight of the CCTV and did not consider he did wrong. 

The complainant’s evidence was that he was not accused of theft or gross misconduct.  The allegation was that he breached the company policy by removing WEEE items without permission.  He stated that he had five years’ experience and performed his work well and, in his view, he should have been given a lesser sanction than dismissal.  He stated that he assumed the respondent would follow their own policy, which was intended to be corrective, and not go straight to dismissal.

Cross Examination

In reply to questions about the WEEE policy the complainant stated that he had previously taken in WEEE items from customers, and he knew the handling process.  He stated that he had not previously taken WEEE items unless he had permission from his manager and then he was permitted to take some leads/plugs.  He stated that removing products from WEEE and theft are different things, he did not consider it theft.  The complainant stated that he did not see this in the same way the respondent saw the issue.  He now saw it was wrong, but he did not consider it was theft.

Findings

The respondent dismissed the complainant because he had taken two WEEE items without permission in breach of the company policy.  The relevant policy explains that retailers of Electrical and Electronic Equipment have a legal obligation to offer a service where such items can be disposed of when they become waste.  The policy states that once such products are handed into the respondent, they are then deemed property of the respondent.  Such products are to be placed in the WEEE cage.  The policy states “Under no circumstances are these WEEE products to be taken by employees/members of the public … All employees are expected to comply to this policy.  Breaches of this policy will lead to disciplinary action up to and including dismissal.”

The complainant in his evidence admitted that he took two items, a toaster, and a laptop, from the store without permission.  The complainant did not regard his actions as a breach of policy.  He stated in evidence that the toaster was given to him by a colleague and the laptop was given to him by a customer.  I am satisfied that these items were the property of the respondent.  The complainant did not accept that he was responsible for depriving the respondent of its property as he maintained he was given these items.  I am satisfied that the complainant removed items that were the property of the respondent from the store, without permission.  That was a breach of the company policy.  The complainant in his evidence confirmed that he was aware of the policy.

The complainant asserts that the respondent did not follow its own procedures.  He acknowledged that at each stage, investigation, disciplinary and appeal he was informed that he could be accompanied to the meetings by a colleague, as a support person.  The complainant chose not to be accompanied at any of the meetings. 

At each meeting a note taker was present, and copies of the minutes were provided to the complainant.  The complainant did not raise any issue with the accuracy of the minutes. 

The complainant was also provided with copies of the Company’s Code of Conduct, the Disciplinary Policy, and relevant snapshots from the CCTV. 

Based on the evidence presented I am satisfied that the respondent made the complainant aware of the allegation being made against him, provided him with the opportunity to present his explanation of his actions, provided him the opportunity to be accompanied at all meetings, provided him with copies of CCTV evidence, provided copies of relevant policies, provided minutes of all meetings, and provided him an opportunity to appeal the disciplinary sanction.   I find that the respondent acted fairly in the way it conducted the investigation and disciplinary procedure.

The real issue the complainant raises is the reasonableness of the sanction imposed upon him.  In his complaint form the complainant detailed the “stages of disciplinary action” from the respondent’s Disciplinary Policy.  The stages are, Counselling, Verbal Warning, First Written Warning, Final Written Warning and Dismissal.  The complainant states that none of the first four stages were given to him and he considered it unfair that the respondent skipped straight to dismissal.  The policy states that in the case of gross misconduct employees may be subject to disciplinary action up to and including dismissal.  The policy lists examples of what it regards as gross misconduct and includes dishonesty and theft, among others.

The issue to be decided is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned in this case.

Noonan J in The Governor and Company of the Bank of Ireland v Reilly [2015] IEHC 241 held –

“38. It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned – see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.

39. I respectfully agree with the views expressed by Judge Linnane in Allied Irish Banks v. Purcell [2012] 23 ELR 189, where she commented (at p. 4):

“Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981]     IRLR 91 and the following statement of Lord Denning MR at page 93:

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’

It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

Therefore, I must assess whether in all the circumstances of this case the sanction of dismissal was proportionate and appropriate.  The complainant’s position is that he should have received one of the other sanction’s set out in the Disciplinary Policy, such as a warning.  The respondent’s position is that the complainant occupies a position of trust, and that trust was broken when items of the respondent’s property was removed from the store without permission and in breach of the company policy.  Mr Curtis in his evidence indicated the items were of no significant value but the value was not the issue rather the trust between employer and employee.  Mr Curtis stated that there was no joy in making this decision to dismiss but a lesser sanction was not suitable given the trust that is placed in employees dealing with the employer’s property.

Considering all the circumstances I am satisfied that the complainant was dismissed following a fair disciplinary and appeal process.  I find that it was not unreasonable for the respondent to decide that the complainant’s behaviour constituted a serious breach of the company policy. 

The complainant admitted, at investigation and disciplinary meetings and in his evidence that he removed the two items from the store.  However, he claimed he had received one item from a colleague and another from a customer.  He stated that the knew that the company policy was that WEEE items were not to be removed without permission.  The complainant did not accept responsibility for his action and did not show any remorse at taking items of his employer’s property.  In such circumstances I find that it was reasonable for the respondent to conclude that the bond of trust between the employer and the employee was broken.

Having carefully considered all the circumstances, the evidence presented and the final submissions I find that the respondent has established that it had substantial grounds to justify its decision to terminate the complainant’s employment and that the decision to dismiss was not disproportionate.

Conclusion

I am satisfied that the investigation, disciplinary process and appeal complied with the requirements of fair procedures and natural justice.  The complainant was dismissed following a fair process.  I am satisfied that the respondent established that it had substantial grounds to justify its decision to terminate the complainant’s employment.  I am satisfied that the sanction of dismissal was within the band of reasonable responses open to a reasonable employer in similar circumstances.  I decide that the complainant was not unfairly dismissed.

CA-00055712-002

Complaint pursuant to section 77 of the Employment Equality Act, 1998.

It is the complainant’s position that he did not receive equal pay to colleagues.  In the complaint form he stated that six colleagues were paid a higher hourly rate at the time of hiring than he was being paid.  The complainant commenced employment in June 2018 at the rate of €10 per hour.  Some three years later the complainant’s hourly rate was increased to €11 and then in January 2023 to €11.30. 

The complainant in his letter of appeal about his dismissal included a statement that colleagues hired after him were paid a higher hourly rate than he was.  That letter did not contain any reference to being discriminated against because of his age.  The complainant stated that he assumed he did not get equal pay because of his age.

The respondent asserts that the rate of pay was never raised by the complainant during his employment.  The issue was first mentioned in the letter of appeal following his dismissal. 

Pay in the respondent is based on a range or band depending on qualifications, experience, and performance.  It is the respondent’s position that there is no foundation to this claim.

Legislation

Section 6 of the Act provides as follows:

(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,

 …

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

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

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

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

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

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

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

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

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

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).

Section 85A of the Act concerning the burden of proof provides:

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.

The burden of proof in the first-place rests with the complainant and requires that the facts relied upon must be proved to the level of balance of probabilities and must be of sufficient significance as to raise an inference of discrimination.  Only when such facts are established by the complainant will the burden of proof shift to the respondent.  The Labour Court in Hallinan v Moy Valley Resources DEC-S2008-025 held that the following must be established by the complainant:

a)      The complainant must establish that he or she is covered by the protected ground.

b)      Establish the specific treatment has allegedly taken place

c)       The treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground

Complainant’s Evidence

The complainant stated that he was on the same hourly rate for over three years.  One manager from another store who was temporarily assigned to the store where the complainant worked recommended an increase.  The complainant stated that the manager told him he should be on a higher rate and his hourly rate was increased.  Apart from that the only other increase was when the National Minimum Wage was increased in January 2023. 

The complainant stated that there were six other employees who had less experience than him and had been paid a higher rate when first employed.  He said he assumed he did not get equal pay because of his age.

Respondent’s Evidence

Mr Curtis in his evidence stated that there were salary bands for different roles and each employee’s rate is based on qualifications, experience, and performance.  The Love Tech employees could also earn commission.  The salary band policy applied to all employees at all ages.  The respondent employs people of all ages from college students up to retirement age and all have their salary calculated in compliance with the same policy.

Findings

The complainant did not request any information from the respondent about rates of pay of colleagues.  He did not make any complainant about his rate of pay during his employment.  The complainant did not present any information about his own age or the age of the colleagues he named in his complaint form.

The complainant did not provide evidence about qualifications, experience, or performance reviews of any employees, including himself.  He simply stated his belief that colleagues with less experience where paid a higher rate.  I am satisfied that the complainant has not established any facts from which I can infer that he has been discriminated against on the ground of age.  In those circumstances the burden of proof does not shift to the respondent. 

Conclusion

I have carefully considered the complainant’s submission and evidence. I am satisfied that the complainant has not established any facts from which I can infer that he has been discriminated against on the ground of age.  I find the complainant was not discriminated against by the respondent on the ground of age.

CA-00055712-001

Complaint pursuant to section 8 of the Unfair Dismissals Act, 1977.

Having carefully considered the evidence, written and oral submissions and I am satisfied that the investigation, disciplinary process, and appeal complied with the requirements of fair procedures and natural justice.  The complainant was dismissed following a fair process.  I am satisfied that the respondent established that it had substantial grounds to justify its decision to terminate the complainant’s employment.  I am satisfied that the sanction of dismissal was within the band of reasonable responses open to a reasonable employer in similar circumstances.  I decide that the complainant was not unfairly dismissed.

CA-00055712-002

Complaint pursuant to section 77 of the Employment Equality Act, 1998.

I am satisfied that the complainant has not established any facts from which I can infer that he has been discriminated against on the ground of age.  I decide the complainant was not discriminated against by the respondent.

Unfair Dismissal

Taking items without permission

Pay

Age Discrimination