Complainant

Respondent

Parties

Kieron  Redmond

Sulzer Pump Solutions Ireland Ltd

Representatives

 Self-represented

Robin McKenna, IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00060837-001

01/01/2024

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

CA-00060837-002

01/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00060837-003

01/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00060837-004

01/01/2024

The Complainant commenced employment with the Respondent on 16th March 2011.  The Complainant contends he was constructively unfairly dismissed on 12th July 2023.  He submits he was penalised in terms of his career advancement and in relation to his pay over the course of his employment and that his complaints were ignored, and he suffered retaliation.  The Complainant contends he was discriminated against on the age ground in relation to equal pay.  The Complainant submitted that his final pay did not include payment of a bonus and that he did not receive increments paid to a comparable employee.  The Respondent refutes all claims, except for part of the payment of wages complaint.  The Respondent concedes that the Complainant was due a payment equal to 1.5% of his pay for the period 1st January 2023 to 17th July 2023.  A sum of €443.45 has since been paid to the Complainant.  It is the Respondent’s case that the Complainant initially chose not to accept an increment which was paid to his colleague and therefore he was not entitled to the increment for the period he objected to same.  

The Complainant presented a large volume of documentation and gave extremely detailed evidence to the Hearing outlining his interactions with various members of HR and senior management from 2011 up to and including the termination of his employment.  What follows is a summary of the Complainant’s evidence.

Oral Testimony of the Complainant (under oath)

The Complainant commenced employment with the Respondent on 16th March 2011.  The Complainant was third level qualified and had worked as a project quantity surveyor in several tier one companies before joining the Respondent.  The Complainant outlined to the hearing that due to the economic crash he had to take a step back in his career by taking an entry level position of product builder with the Respondent, but he was hopeful that he would quickly advance his career with the Respondent.

The Complainant gave evidence that in 2011 he queried an occasion of non-payment for overtime and in 2012 he initially refused to authorise any deductions other than statutory deductions from his pay.  He outlined that he was subjected to a ‘verbal assault’ by the then HR Manager (herein after referred to as “HRM”) and the Operations Manager (herein after referred to as “OM”).  He was referred to as an “arsehole” and told that while his work was good, nobody could work with him.  The Complainant was also told by HRM and OM that the Respondent would not “enhance his progress within the company”.  He believes that thereafter HRM and OM deliberately blocked his career progression. 

In March 2017 the Complainant wrote on his Performance Appraisal Review Form that his greatest achievement and challenge during 2016 was his decision to confront the episode of verbal abuse dating back to 2012 and the contravention of his rights by HRM and OM in 2012.  The Complainant submitted that he told the Product Development Manager (“BB”) that he would complain to the WRC.  BB responded that doing that would make it difficult to maintain a relationship with the company.  The Complainant continued to raise his concerns regarding the 2012 verbal assault in subsequent appraisal reviews, but his concerns were not acted on.  In 2018, during an interview for a vacancy within the company, HRM and OM asked the Complainant how he thought he was regarded by his colleagues.  He was again told that no one could work with him despite there never being an issue with the standard of his work.  The Complainant outlined to the hearing that over the course of 11 years he applied for eight or nine positions in the company but was not successful on any occasion.  The Complainant outlined that his life was made to feel worthless for years by HRM and OM, both of whom were senior managers in the company.   

In 2014 the Complainant was asked if he would move to the PDM Department for a short period.  He ended up remaining in this department as a PDM Technician.  Over time the role evolved and became much more technical.  The Respondent regarded the role as a level 2 position requiring a FETAC Level 6 qualification.  It was placed at grade 3 of the Respondent pay scale.  From 2017, the Complainant was of the view that the role was more aligned with that of an engineer at level 4 and grade 2 of the pay scale.  The Complaint raised this issue on several occasions over many years with various members of management and HR.  However, from 2017 until July 2021 there was no recognition that the role the Complainant was performing was aligned at the correct level.  The Complainant never received a credible or satisfactory response to his request to align the role at level 4 despite raising the issue repeatedly.  In his appraisal review in January 2020 the Complainant outlined that he believed the role was more akin to that of an engineer and not that of a technician; that the evolution of his role was not being recognised or rewarded; and that he felt “ignored, taken for granted and undervalued”.  The Complainant outlined to the Hearing that he holds 5 third level qualifications (FETAC Level 8 and above) and that this was not recognised by the Respondent.  The Respondent was exploiting him as they had the benefit of a FETAC Level 8 qualified person performing a role that they regarded as level 2 but really should have been regarded as a level 4.  The Complainant was at a loss as to why management refused to regard the role he was doing as a level 4 requiring FETAC Level 8 or higher as this was the case in other industries and at another subsidiary of the Respondent.  The Complainant was not asking the Respondent to accommodate his multiple qualifications but to acknowledge that the job he was doing was not categorised at the correct level as was done in a subsidiary of the Respondent.  For this reason, he felt discriminated against, bullied and intimidated for raising his grievance with respect to the grading of his role.  In 2021 the Respondent proposed a new role of “Senior PDM Technician” and a move to a higher point on the grade 3 pay scale.  The Complainant questioned the need to create a new role when others in a subsidiary company were doing the same work as him but were Product Development Engineers.  He did not receive a credible answer to this question.  There was only one other PDM Technician working with the Complainant at this time and this person accepted the title of Senior PDM Technician, and so he received a pay increment accordingly.  The Complainant refused the title and the increment as this would not recognise the role at its correct level.  He outlined that he was then penalised as he was now one point below his colleague on the pay scale.  Management’s refusal to regrade the PDM Technician role to an engineering role was without foundation and for no credible reason.  The Complainant submitted that this constituted penalisation.

Ms O’Rourke, HR Business Partner, requested a meeting with the Complainant on 16th July 2021.  During this meeting Ms O’Rourke and Mr Kehoe recognised that the work being performed by the Complainant was at a higher skill level than had previously been appreciated and the Complainant left the meeting believing that his role would be regraded to level 4 and his salary would be backdated to a date to be agreed.  However, the Complainant heard nothing further for several months.  In November 2021 an additional PMD Technician role was advertised at the lower FETAC level 6 grade.  In an email to management, the Complainant expressed his disagreement at the role being regarded as a FETAC Level 6 role.  In December 2021 the Complainant was invited to the HR office to collect his personnel file which he had requested.  Ms O’Rourke suggested to him that he should leave the company if he was not happy.  The Complainant responded that he had not asked for HRM or OM to call him names back in 2012.  Ms O’Rourke asked the Complainant if he could not let this matter go as the two managers in question had both since left the company and because the alleged incident had happened years previously.  The Complainant proceeded to tell Ms O’Rourke the impact of the comment on him.  On 11th January 2022 the Complainant was informed by BB that no matter what rational argument the Complainant put forward, management did not accept that the role of PDM technician should be aligned with level 4.  The Complainant was informed that he was just shooting himself in the foot by not accepting the title of Senior PDM Technician and the salary increase that went with that.  The Complainant then agreed to the title and salary change.  The Complainant outlined that this was a financial penalty and still no recognition of the correct level or pay despite this having been agreed in July 2021.  His colleague and him were on the same pay scale but his colleague now had the benefit of being one point further on the scale.  The Complainant continued to express his dissatisfaction at subsequent performance reviews.  Three further meetings were arranged by management in 2023.  The Complainant was reluctant to elaborate on his comments at the first meeting for fear of further retaliation.  Management stated at the meetings that the company could do nothing about the comments made back in 2012 by HRM and OM as they had left the company.  Counselling was offered to the Complainant, and he availed of this offer. 

The Complainant resigned his employment on 12 July 2023 having worked his notice period. The Complainant added that he felt he was verbally abused, targeted, bullied, ignored, and mistreated by management from March 2012 to July 2023; that management deliberately impeded his career progression within the company; and that he was exploited (doing the job of an engineer but paid as a technician): all of which took a substantial toil on his health.  The Complainant felt he had no option but to resign.  The Complainant confirmed that his preferred remedy was compensation as he was happily employed with another company. 

The Complainant accepted in cross-examination that HRM and OM had left the Company over 3 years prior to the Complainant’s resignation.  It was put to the Complainant that there were no other interactions between him and management where he sought a resolution of his issues other than the meeting conducted in 2021 and the three meetings in 2023.  It was put to the Complainant that new members of management met with him on 3 occasions in 2023 to try and resolve his concerns.  The Complainant disagreed that the purpose of the meetings was to resolve his concerns.  It was put to the Complainant that the performance appraisals containing the Complainant’s concerns dated back 4 years prior to his resignation.  The Complainant responded “yes”.  It was put to the Complainant that he never raised a formal grievance at any time.  The Complainant responded that management were aware of his grievance and as far as he was concerned, he had escalated his complaints correctly.  It was put to the Complainant that provision is made in the Grievance Procedure for referral of a grievance to a third party as the final stage of the procedure, and that the Complainant did not exhaust this stage before resigning.  The Complainant responded that he did refer the matter to the WRC after his resignation.   It was put to the Complainant that he was stuck in the past and could not move on from comments he alleges were made in 2012.  The Complainant submitted that it is all part of the story of his mistreatment by the Respondent and that the baton had been handed from HRM to Ms O’Rourke.  It was put to the Complainant that management were making efforts to move on, but he could not do so, and the real issue was his qualifications and his feeling that his qualifications were not being recognised by the company and that he had a sense of entitlement because of his numerous qualifications.  It was put to the Complainant that Ms O’Rourke gave him details of the WRC in 2023 and encouraged him to exhaust the final stage of the grievance procedure, but he did not do this.  The Complainant accepted that Ms O’Rourke gave him details of the WRC and submitted that his intention was to refer the matter to the WRC.  It was put to the Complainant that he had told management his was building a file and intended to go to the WRC as far back as 2021 but did not do so.   It was put to the Complainant that he was offered the EAP and did attend counselling up to and including the day prior to his resignation.  The Complainant responded: “her [the counsellor’s] professional response was I needed to get away from here”.  It was put to the Complainant that the only reason he was one point behind his colleague on the pay scale was because of his initial refusal to accept the Senior PDM Technician title.  It was also put to the Complainant that the only reason for the one-point difference between the Complainant and his comparator [for the purposes of his age-related discrimination complaint under the Employment Equality Act] was because that person had transferred within the company, and this person was being maintained at his current point on the pay scale.  It was put to the Complainant that at the meeting in July 2021 management were discussing the Senior PDM Technician role and not the engineer role.  The Complainant responded: “no I believe they were discussing the engineer role”.  The Complainant did not accept that the meeting ended without final agreement.

In response to questions from the Adjudication Officer, the Complainant confirmed he made notes to present to the WRC from 2021 but did not present his complaint to the WRC until after he resigned and secured employment elsewhere.  The Complainant confirmed he started looking for another job when he concluded he was not going to get anywhere with the company which was within weeks of the April 2023 meeting.  The Complainant was asked what difficulties he had with other members of management including Ms O’Rourke and Mr Kehoe.  The Complainant responded: “I suppose I had an irrational fear of them”.  The Complainant confirmed his comparator for his equality complaint to be his colleague “MO’S”.  He was younger than the Complainant and was two points ahead of him on the pay scale.  The Complainant also confirmed that there was no expressed agreement to align his role with that of an engineer but that is what he thought was agreed.

Oral Testimony of Ms Rebecca O’Rourke (under oath)

The witness outlined that she works as a HR Business Partner for the Respondent for the past 5 years, having held other positions with the company for several years prior to this.

In 2019 Group HR decided to grade roles.  This was conducted by HR staff from headquarters.  They visited each entity and graded each role.  HRM had gone on leave at this time.  The witness gave evidence of the transfer of the Complainant’s colleague (MO’S) into a PDM Technician role and why he moved to the point of the pay scale he did.  It was the normal practice of the company to maintain the level of pay on a lateral move to another department.  This meant he was on the same point of the scale as the Complainant when he transferred but as agreed with MO’S, pending successful completion of his probation, he would progress to the next point on the scale.  For this reason only, MO’S was one point ahead of the Complainant on the same pay scale.

The witness outlined that the purpose of the July 2021 meeting was to get the Complainant to accept the Senior PDM Technician role.  Backdating the increment increase for this role was also discussed. The Complainant was looking for it to be back dated to 2017.  There was no resolution reached at this meeting. 

On 9th December 2021 the witness met with the Complainant to give him his HR file which he had requested.  She also expressed her dissatisfaction to him that he had copied several persons on an email regarding his disagreement with the new PDM Technician role requiring a FETAC Level 6 qualification.  The witness queried with the Complainant if he was happy working for the Respondent and, if he was not and wanted to leave, they could look at this as part of an ‘early leave programme’.  It was an informal conversation and initiated by the witness as she knew how unhappy the Complainant was.  The Complainant did not want to leave the company, and nothing further came of that conversation.

The witness gave evidence that she was prompted to arrange a meeting in 2023 with the Complainant following comments he had inserted on his performance review form.  Mr Kehoe was concerned about the comments and asked Ms O’Rourke to arrange a meeting so that the Complainant’s comments could be explored further.  A total of 3 meetings were held as the Complainant did not feel ready to elaborate on his comments initially.  The Complainant repeatedly reverted to 2012 and historical issues concerning HRM and OM.  During one of the meetings the witness invited the Complainant to refer his grievance to the WRC in line with the final stage of the grievance procedure.  The witness stated that no formal grievance was raised and there was also an option for the Complainant to utilise the compliance hotline. 

The Product Manager role advertised in 2023 was a globally advertised role.  Wexford was not involved in screening candidates for this role.  Rather personnel in Italy screened all applications.  The witness was unaware of the Complainant’s application for the role, and as far as she knew no one in Ireland was aware of his application for his role.

In cross-examination, the witness accepted that the Complainant had a grievance with HRM and OM.  It was put to the witness that the Complainant could not by-pass HRM and OM and complain to anyone else in the company.  The witness disagreed and named the Plant Manager as an option and the new senior managers appointed subsequent to 2012.   It was put to the witness that the Complainant saw her take notes of the meeting on 16th July 2021.  The Complainant responded, “I honestly do not have notes”.   The witness submitted that there was a recognition of a higher skill requirement than previously appreciated for the technician role.  That was discovered through the role review process conducted by global HR, and it was agreed that the PDM Technician role being performed by the Complainant should be regraded to Senior PDM Technician.

Oral Testimony of Mr Mark Kehoe (under oath)

The witness was appointed to replace BB.  He is the Tech Centre Head.  He manages a team of 33 and PDM is a function that reports into him. In July 2023 there were three persons in the PDM department including the Complainant.  The witness outlined to the hearing the difference between the role of Senior PDM Technician as a level 2 role and that of a level 4 engineer.  The witness submitted that the grading of the roles by global HR was correct and accurate.  He only joined the company after that process had been completed.  The witness stated that there are no engineers employed in the PDM department in Wexford.   

The witness outlined that he went to HR in 2023 when he read comments inserted by the Complainant on his annual appraisal form.  The Complainant had written that he felt demeaned, degraded, exploited, intimidated and retaliated against.  The witness wanted HR assistance to investigate the comments further.  It took three meetings to get a full account of the Complainant’s concerns.  The Complainant was particularly aggrieved that his role was not regarded to be at level 4.  The witness submitted that he tried to explain to the Complainant the difference between the roles in terms of the responsibility of an engineer across multiple disciplines and globally and how that contrasted to the level of responsibility which a Senior PMD Technician has. 

In cross-examination, the witness confirmed that he did not have an issue with HRM and OM and that he was surprised the Complainant did.  The witness confirmed that the Technician role did require a higher skill set but that the creation of the Senior PDM Technician role dealt with that.  The witness gave in evidence the name of the manager he reached out to in Finland to check that the Complainant’s role was correctly graded.  The Complainant put to the witness that he was only meeting him in 2023 to be seen to be doing something, and that he was not serious about resolving his grievance.     

Legal Submission

With respect to the complaint under the Unfair Dismissals Act, 1997, the Respondent set out the Contract and Reasonableness test and highlighted the cases of Conway v. Ulster Bank, UD474/1981, McCormack v. Dunnes Stores, UD 1421/2008, Western Excavating (ECC) Ltd v. Sharp (1978) IRL 332, and Travers v. MBNA Ireland Limited, UD720/2006.  With respect to the complaint under the Employment Equality Act, 1998 and the burden on the Complainant to establish a prima facie case, the Respondent highlighted the cases of Margetts v. Graham Anothony & Company Limited, EDA038, Mitchell v. Southern Health Board, DEE011, Cork City Council v. Kieron McCarthy, EDA0821, and Melbury Developments v. Arturs Valpeters, EDA0917.

CA-00060837-001 (complaint under the Unfair Dismissals Act, 1977)

Relevant Law

In a complaint of constructive dismissal, the burden of proof is on the employee to establish that their resignation was not voluntary.  Section 1 of the Unfair Dismissals Act, 1977 (as amended) defines dismissal, which includes at (b):

“. . . the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer . . . . ”

Where the contract is terminated by the employee, there is only a dismissal within the meaning of (b) if, “because of the conduct of the employer”, the employee was “entitled” to, or it was “reasonable” for the employee to terminate the contract of employment.  Accordingly, the question of the dismissal must be considered under two ‘tests’: “entitlement” and or “reasonableness”.  Either or both tests may be invoked by an employee.  Either test may be applied by the WRC.

The ‘contract’ test is used to assess entitlement to terminate the contract and was summarised in a UK Court of Appeal decision by Lord Denning M.R. in Western Excavating (ECC) Ltd v. Sharp [1978] I.C.R. 121 as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; then the employee is entitled to treat himself as discharged from any further performance.”

Thus, an employee may be entitled to terminate the contract where the employer engages in conduct which results in a fundamental breach of the contract, or which indicates that the employer no longer intends to be bound by the terms of the contract.

In Berber v. Dunnes Stores [2009] IESC 10, Finnegan J for the Supreme Court, in drawing on several UK and Irish authorities, noted:

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them . . .The term imposes reciprocal duties on the employer and the employee . . . The test is an objective one”.

The threshold is high: it must “destroy or seriously damage” the trust between the parties.  However, it is not essential that the employer be aware of the effect of the conduct.  Nor that they intended such an effect.  Further, in determining if there has been a breach in the implied contractual term of mutual trust and confidence, the conduct of both the employer and employee must be examined as a whole, and the cumulative effect of the conduct must be looked at.  The conduct of the employer must be unreasonable and without proper cause and its effect on the employee must be viewed objectively, reasonably, and sensibly to determine if it is such that the employee can no longer be expected to tolerate the behaviour.

The reasonableness test “. . . asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer and, if so, she is justified in leaving . . . .” (Cedarglade Limited v. Tina Hilban, UDD 1843).  Thus, it may be reasonable for an employee to terminate the contract because of the conduct of the employer even if the employer had adhered to the contractual terms.

Regardless of whichever test is applied, the threshold for constructive dismissal is very high (Nicola Coffey v. Connect Family Resource Centre Ltd, UD 1126/2014 and Calderon & Others v. Lootah & Others, UD1219/2013).

It is well established that an employee must make reasonable efforts to bring the grievance to the attention of the employer before resigning.  In O’Gorman v. Glen Tyre Company Ltd (UD2314/2010), the Employment Appeals Tribunal noted: “it is crucial in a constructive dismissal case that the claimant informs the employer fully of the complaints being made against him and the employer be given an opportunity to resolve the issues”.  At a minimum the employee will be expected to exhaust the company grievance procedure.  In Conway v. Ulster Bank Ltd (UD 474/1981), the Employment Appeals Tribunal noted: “it is not for the Tribunal to say whether this procedure would have produced a decision more favourable . . . but it is possible”.

Findings

The Complainant joined the company as a general operative.  He holds several third level qualifications, and he worked as a quantity surveyor for tier one companies before joining the Respondent.  The Complainant was hopeful he would progress his career with the Respondent.  The Complainant submitted that he was “preoccupied for years” with the hostile treatment he felt he was subjected to by the then HR Manager (“HRM”) and the Operations Manager (“OM”) and that he has no idea why they treated him this way.  The only things he can think of are his querying of an over-time payment in 2011, and his initial reasonable refusal in 2012 to sign a broad deduction clause on his payslip.  The Complainant was particularly upset and aggrieved at being subjected to what he described as a ‘verbal assault’ in 2012 by these managers when they referred to him as an “arsehole” and told him that they would not “enhance his progress with the company”.  The Complainant contends that HRM, OM and other members of management intimidated him and retaliated against him from this time until his resignation.  He says that this retaliation took two forms: first, management deliberately blocked his career progression in the company, and second, without justification or reasonable cause, management refused to recognise the role he was performing was that of an engineer rather than a technician.  The Complainant contends that he had no option but to resign because of this intimidation and retaliation.

It was common case the Complainant did not raise a grievance in relation to the alleged verbal assault by HRM and OM in 2012.  I find it was unreasonable of the Complainant not to raise his concern at this time.  I accept the evidence of the Respondent that the Complainant could have bypassed HRM and OM and complained to the Plant Manager or to the ethics office. 

It was common case that commencing in 2017 and on several occasions thereafter, the Complainant raised the issue of the alleged 2012 verbal assault.  It is the Complainant’s case that his grievance was not dealt with, and he contends he was told that escalating his grievance would make it difficult to maintain a relationship with the company.  It is the Respondent’s case that the Complainant never raised a ‘formal’ grievance.  While that may be the case, it cannot be said that management were not aware the Complainant had a grievance albeit of some vintage.  The Complainant’s grievance should have been conclusively dealt with in 2017.  Instead, it was permitted to simmer along. 

Commencing also around 2017, the Complainant began to canvass management in relation to realigning his technician role with that of an engineer.  The Complainant told the hearing that without justification or reasonable cause management refused to recognise that the role he was performing was that of an engineer rather than a technician.  The Complainant continued to raise the alleged ‘verbal assault’ in 2012 in subsequent annual reviews.  That issue, together with the refusal of management to accept the Complainant’s view that his job should be aligned with that of an engineer, further compounded the Complainant’s belief that there was a concerted effort being made my management to stifle his career. 

I am satisfied on the totality of the evidence before me that there was not a concerted effort on the part of HRM and OM or indeed management generally to block the Complainant’s career progression.  The Complainant submitted that he was unsuccessful on 8 occasions in securing a promotion/job change over the 12 years of his employment.  The Complainant gave evidence in relation to 3 of these opportunities only, two of which arose while HRM and OM were employed with the Respondent.  One opportunity concerned temporary maternity cover in logistics and the another was an internal request from IT to allow the Complainant to work in that department again which was refused, on reasonable grounds in my view, because the Complainant was needed in his existing role (see email dated 21st March 2012: “. . . we can’t afford to release anyone from production at the moment due to the order intake and an unusually high level of absenteeism in assembly in particular”).  It was common case that in 2011 the Complainant was afforded the opportunity to work in IT for some time and in August 2014 he was offered the role of PDM Technician which he accepted.  The Complainant also gave evidence of applying for the role of Product Manager in 2023.  Both HRM and OM were no longer employed by the Respondent at this time.  The uncontested evidence of Ms O’Rourke was that the Product Manager vacancy was a global role and no one in Ireland knew the Complainant had applied for it before his application for same was rejected. 

The Complainant contends that no one was taking his 2012 grievance seriously.  It was common case that the Complainant told management in 2021 he was building a file and intended to refer his grievance to the WRC in line with the final stage of the grievance procedure.  Unfortunately, the Complainant chose not to present his grievance to the WRC at this time.

It was common case that there was no expressed agreement in July 2021 to realign the Complainant’s role with that of an engineer.  There was an acknowledgement from management in July 2021 that the role the Complainant was doing was at a higher technical level than had previously been recognised.  I accept the evidence of the Respondent that efforts were made to recognise this and in that regard the Respondent created the role of Senior PDM Technician.  It was common case that the Complainant was told categorically in January 2022 that the Respondent would not align the role of technician with that of an engineer.  I am satisfied on the evidence presented to the hearing that Management was entitled to make that decision in the circumstances.  If the Complainant did not agree with it (which he did not) he had the option of referring the matter to the WRC in line with the grievance procedure.  Again, regrettably, he chose not to do so at this time.  I do not find that it was unreasonable of Ms O’Rourke to ask the Complainant in December 2021 if he was unhappy in his job and that if he was not, they could explore the option of him availing of the early leaver programme. 

In 2022 the Complainant continued to raise his grievances with respect to the 2012 verbal assault and the non-aligning of his role with that of an engineer despite management having made its position clear with respect to the latter.  The Complainant was asked to move on from the alleged 2012 verbal assault.  The Complainant was also offered counselling, and he availed of same.  In 2023 the Complainant was expressly invited by Ms O’Rourke to make a complaint to the WRC.  I surmise that Ms O’Rourke would have welcomed the intervention of the WRC to assist in the resolution of the Complainant’s concerns given her renewed attempts at resolution had failed to progress the matter.  It is clear from the minutes of the meetings in 2023 that the Complainant was not making it easy for Ms O’Rourke and Mr Kehoe to bring matters to a close.  I agree with the Complainant that he had developed an “irrational fear” of Ms O’Rourke and Mr Kehoe. 

In conclusion, as outlined in Berber, in determining if there has been a breach in the implied contractual term of mutual trust and confidence, an examination of the conduct of both the Respondent and the Complainant must be examined as a whole, and the cumulative effect of the conduct must be looked at.  The conduct of the Respondent must be unreasonable and without proper cause and its effect on the Complainant must be viewed objectively, reasonably, and sensibly to determine if it was such that the Complainant could no longer be expected to tolerate the behaviour.  I find the Complainant has not discharged the burden of proof on him to establish that his resignation was not voluntary.  I cannot find on the evidence before me, that the Respondent engaged in conduct which resulted in a fundamental breach of the contract, or which indicated that the Respondent no longer intended to be bound by the terms of the contract.  Nor do I find that the Respondent conducted its affairs in relation to the Complainant so unreasonably that the Complainant was justified in resigning.  I am satisfied that it was unreasonable conduct on the part of the Complainant not to exhaust the final stage of the grievance procedure by referring his grievance to the WRC for investigation when explicitly invited to do so by Ms O’Rourke before deciding to resign. 

I find therefore the Complainant’s complaint under the Unfair Dismissals Acts, 1977-2015 is not well-founded.

CA-00060837-002 (complaint under the Employment Equality Act, 1998)

Relevant Law

The Employment Equality Acts, 1998 - 2015 (“the Acts”) promote equality in the workplace and provides protection against discrimination, harassment, and victimisation. The Acts prohibit discrimination on nine grounds, including age.  Discrimination occurs when one person is treated less favourably than another is, has been or would be treated, on any of the nine grounds.  The employee must demonstrate that they have been treated less favourably than a comparator. 

Discrimination:

Section 6(1) of the Acts defines discrimination for the purposes of the Acts as follows:

“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are . . . (f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”) . . . . ”

Equal Remuneration:

Where a Complainant alleges that they did not receive equal pay, they must show that the difference in pay is due to discrimination on one of the prohibited grounds.

Comparators:

Section 28 of the Acts provides:

“(1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows: . . . (e) in relation to the age ground, C and D are of different ages . . . .”

Section 29 of the Acts provides:

“(1) It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer.

(2) For the purposes of subsection (1), in relation to a particular time, a relevant time is any time (on or after the commencement of this section) which falls during the 3 years which precede, or the 3 years which follow, the particular time.

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

(4) Section 19(4) applies in relation to C and D as it applies in relation to A and B, with the modification that the reference in it to persons of a particular gender (being As or Bs) is a reference to persons (being Cs or Ds) who differ in a respect mentioned in any paragraph of section 28(1) and with any other necessary modifications.

(5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.

Burden of Proof:

Section 85A(1) of the Acts provides:

“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 Labour Court in Southern Health Board v. Mitchell [2001] ELR 201 considered the extent of this evidential burden on a complainant and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

Therefore, a complainant must establish both the primary facts upon which they rely and that those facts are of sufficient significance to raise an inference of discrimination. In Valpeters v. Melbury Developments [2010] ELR 64, the Labour Court held “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Findings

The Complainant presented a complaint to the WRC that he had not received equal pay because of his age.  He named the Senior PDM Technician (“comparator 1”) and the PDM Technician (MO’S - “comparator 2”) as his comparators.  The Complainant’s evidence was that comparator 1 was the same age as him.  They were at the same point on the scale, however, comparator 1 moved one increment ahead because he accepted the title of Senior PDM Technician.  It was common case the Complainant did not accept this title and that this is what gave rise to the differential in pay.  It was nothing whatever to do with the Complainant’s age. 

I accept the evidence of the Respondent that comparator 2, who was younger than the Complainant, had transferred across from another department.  At the time of transfer he was on the same point of the pay scale as the Complainant and as part of the move it was agreed that he would progress to the next point of the scale if he passed his probation period.  He did progress to the next point having successfully completed probation.  The Complainant did not move up a point on the pay scale as he did not accept the title of Senior PDM Technician when it was initially offered.  The differential in pay arose due to that decision of the Complainant.  It was nothing whatever to do with the Complainant’s age. 

As noted above, a Complainant must establish both the primary facts upon which they rely and that those facts are of sufficient significance to raise an inference of discrimination. I have carefully considered all the evidence submitted by the Complainant in this case, and I find the Complainant has not discharged the burden of establishing an inference of discrimination and therefore the burden of proof has not shifted to the Respondent to prove that no unlawful discrimination took place.

In conclusion, I find the complaint under the Employment Equality Acts, 1998-2015 is not well-founded.   

CA-00060837-003 (complaint under the Organisation of Working Time Act, 1997)

Relevant Law

Section 26 of the Organisation of Working Time Act, 1997 (as amended), provides:

“(1) An employer shall not penalise or threaten penalisation of an employee for—

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) giving evidence in any proceedings under this Act, or

(d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.”

Findings

On the complaint form presented to the WRC, the Complainant selected “I was penalised or threatened with penalisation for invoking my rights and giving notice of my intention of doing so under the Organisation of Working Time act, 1997”.  In the narrative of the complaint form, the Complainant added he “was penalised and threatened with penalisation for invoking or stating that I would invoke my rights to make a complaint to the head office in Switzerland or the likes of the WRC.”  The Complainant outlined to the hearing that he was not claiming that the Respondent breached the Organisation of Working Time Act, 1997 or that he was penalised for invoking or intending to invoke his rights under the Organisation of Working Time Act, 1997.  The Complainant submitted that he may have selected this option on the complaint form in error.  The Complainant did not present any evidence to the hearing with respect to this claim.

For the foregoing reasons I find the complaint under the Organisation of Working Time Act, 1997 (as amended) is not well-founded. 

CA-00060837-004 (complaint under the Payment of Wages Act, 1991)

Relevant Law

Section 5(1) of the Payment of Wages Act 1991 (“the 1991 Act”) provides that an employer shall not make a deduction from the wages of an employee unless the deduction is required or authorised to be made by virtue of any statute or 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 the employee has given his prior consent in writing to it. 

Section 5(6) of the 1991 Act provides:

“(a) Where the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act) ,  . . . then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

Section 6(1) of the 1991 Act provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding— the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that— (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.”

The High Court in Marek Balans v. Tesco Ireland Limited [2020] IEHC 55, outlined that when considering a complaint under the 1991 Act, it must first be established the wages which were properly payable before considering whether a deduction had been made. 

Findings

There are two components to the Complainant’s complaint under the Payment of Wages Act, 1991.  Firstly, the Complainant submitted that the Respondent paid him less than the amount that was due to him.  His final pay did not include a payment of 1.5% of pay which fell due for payment in 2023.  The Respondent told the hearing that this amount was properly payable to the Complainant and that the non-payment of same was an oversight which only came to the attention of the Respondent when preparing for the adjudication hearing.  The amount owing has now been paid to the Complainant.  The Complainant accepted at the hearing that the amount owed to him had been received by him since the referral of his complaint to the WRC. 

Based on the foregoing, I find the payment of 1.5% was properly payable to the Complainant, and the failure to pay the 1.5% payment when it fell due constitutes an unlawful deduction within the meaning of the 1991 Act.  Accordingly, I find this element of the complaint to be well-founded.  It was common case that the 1.5% payment was paid to the Complainant.  Therefore, I do not direct the payment of compensation to the Complainant. 

Second, the Complainant complained that he was one point below his colleague on the pay scale.  This discrepancy arose because the Complainant initially refused the title of Senior PDM Technician, but his colleague accepted the title and received the increment.  It was common case that when the Complainant did eventually accept the title change, he was given the increment. 

I am satisfied the increment was not properly payable prior to the Complainant’s acceptance of the title change.  When the Complainant accepted the title change, he received the increment.  Therefore, I find the Respondent did not make a deduction from the Complainant’s wages contrary to s 5 of the 1991 Act for the period that he refused the title, and accordingly this part of the Complainant’s complaint is not well-founded.

CA-00060837-001

I decide the Complainant was not unfairly dismissed and therefore the complaint under the Unfair Dismissals Acts, 1977 - 2025 is not well-founded.

CA-00060837-002

I decide the complaint under the Employment Equality Acts, 1998-2015 is not well-founded.

CA-00060837-003

I decide the complaint under the Organisation of Working Time Act, 1997 is not well-founded.

CA-00060837-004

I decide the complaint under the Payment of Wages Act, 1991 is well-founded in part and I award no compensation.

Constructive dismissal. Age discrimination. Unlawful deduction from wages.