EDA2631

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00048789 (CA-00059933-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 21.02.2025. Labour Court hearings took place on 26.05.2026.

The following is the Determination of the Court:

DETERMINATION:

Background

1. This is an appeal by Maria Puisor of a decision of an Adjudicator under the Employment Equality Acts 1998 – 2021 (“The Act”). The Adjudication Officer held that Maria Puisor had not established a prima facie case that she was subject to discrimination on the gender ground in relation to her pay.
2. Maria Puisor lodged an appeal of that decision to the Labour Court on 21 February 2025, together with two linked appeals (ADE/25/34 and HSC/25/3). The appeal of the decision made under the Safety, Health and Welfare at Work Act 2007 was withdrawn. ADE/25/34 is a complaint relating to discrimination on the gender ground. At the Labour Court hearing on 26 May 2026, the Court heard submissions from both parties and witness testimony from Maria Puisor. No witness testimony was proffered on behalf of Automatic Amusement Ltd.
3. For ease of reference the parties are given the same designation as they had at first instance. Hence Maria Puisor is referred to as “the Complainant” and Automatic Amusement Ltd is referred to as “the Respondent”.

Summary of Complainant’s Position

4. The Complainant was employed as a croupier and worked at the Respondent casino from 29 September 2016 to 26 November 2023. During this time, she was denied a salary increase and subject to gender-based discrimination at work. The Respondent failed to provide equal remuneration to her and allowed patrons to physically and verbally abuse her.
5. During her employment, the Complainant’s pay remained the same. When seeking a review of her salary, she was routinely dismissed and told, inter alia, that her tips were more than enough and that she talked too much. If there were issues with the Complainant talking too much, she should have been afforded the opportunity to correct that issue instead of having it kept as a rod with which to deny her a pay increase.
6. During her employment, like many other female employees, she routinely received less favourable treatment than male employees, was subject to physical and verbal abuse from patrons of the casino and afforded little protection from casino management. It appears part of a pattern that the Respondent treated female employees less favourably than male employees. This was evident in her treatment when compared to a male employee, who received pay increases when the Complainant did not.

Summary of Respondent’s Position

7. The Respondent denies that the Complainant was subject to discriminatory treatment. In her original complaint to the WRC, the complaint identified was on the ground of Race. The claim in relation to Gender was submitted orally on the day of the Hearing at the WRC, when the claim of discrimination on the ground of Race was withdrawn. The complaint was not properly before the WRC and therefore is not properly before the Court. Furthermore, all issues put forward by the Complainant are either without dates or identified as having dates that fall outside of the reference period. Therefore, the complaint is out of time.
8. The Complainant commenced employment with the Respondent on 29 September 2016. She was the subject of several customer complaints and was a difficult and challenging individual to manage. The Complainant was issued with an informal warning about poor customer service on 28 June 2022. She was issued with a Final Written Warning for unsatisfactory customer service on 22 November 2023. The Complainant’s performance was reviewed in June 2022, during which her poor attitude and customer service was noted as areas for improvement.
9. The Complainant has provided no evidence to support her equal pay claim. The Complainant has not adduced any prima facie evidence that she was discriminated against in relation to her Gender.  The Complainant has demonstrably failed to establish a prima facie case that would transmit the burden of proof to the Respondent. The claim should be dismissed as not well founded on that basis.
10. In her submission the Complainant states that the reason she did not receive a salary increase was because “I speak up too much”. This comment is in no way connected to any protected ground under the Act. Any disparity in pay was a result of poor performance on behalf of the Complainant. The underperformance is documented.
11. In correspondence with management dated 2 August 2023, the Complainant makes no reference to discrimination in relation to pay or any other matter; she points only to the rates of pay within the industry. In this communication the Complainant states that her years working with the Respondent was a “privilege” and “immensely rewarding”. In a subsequent email dated 23 August 2022, the Complainant refers to her length of service, workload and experience for her dissatisfaction in relation to pay.
12. The Complainant was advised she would not receive an increase because of her poor attitude and customer service. The Respondent denies that the Complainant was discriminated against for any reason relating to any protected ground.

Evidence of Complainant

13. The Complainant commenced employment as a croupier at the Respondent casino from 29 September 2016. There were 16 or 17 croupiers employed. She was paid the National Minimum Wage and her hours of work varied.
14. On 2 August 2023 she emailed the Respondent seeking a pay review, as she had not received a pay increase is six years and felt that her salary did not reflect her expertise or industry standards. Other colleagues who did the same work were paid more than she was. Her comparators were Donna (female), Blaize (male), Andrez (male) and Tomas (male). Blaize told her that he had received a raise but did not say how much. When the Complainant had a conversation with the General Manager about her request, he replied to say that he could not give her a raise because her mouth was too big and she received tips.
15. Under cross examination, the Complainant accepted that the terms of her contract of employment specifies that salary increases were discretionary. She accepted that she received a Final Written Warning in September 2023. The Complainant acknowledged that she had no evidence to support her assertion that during a seven-month period during her employment ten female left the employment, whereas no males resigned during that time.
16. When invited to comment on her email to management of 2 August 2023, in which she said that it was an “immensely rewarding experience” to work in the employment, the Complainant said that she wanted a pay increase and was trying so hard to be a good employee, even if things were not perfect. She accepted that she had made no reference to male colleagues or unequal pay in the mail. She could not recall if she had accrued 5 years’ service when pay awards were made to other employees.
17. The Complainant said that she did not know how much a female colleague who worked as a croupier was paid. She understood that everyone was paid the National Minium Wage and those with longer service received a pay raise. She was aware that a colleague, Blaise, was paid more than she was as he had told her. She accepted that he had longer service.

Relevant Law

18. Section 6 of the Acts provides, in relevant part, as follows:

“(1) For the purposes of this Act and without prejudice to its provisions regarding 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”) …

“(2)(a) As between any 2 persons, the discriminatory ground (and the description of those grounds for the purposes of the Act) are – that one is a woman and the other is a man (in this Act referred to as “the gender ground”.

A definition of Like Work is provided at Section 7 and provides that:

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

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

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

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

Valid Comparator

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

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

Burden of Proof

85A.— (1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

Deliberations of the Court

Preliminary matters – Jurisdiction

19. The Respondent raises a preliminary matter relating to the Labour Court’s jurisdiction to hear the complaint, as it submits that the appeal is not properly before the Court. The Respondent contends that (i) the original complaint lodged to the WRC was made on the Race ground and was not the Gender ground, (ii) the original Complaint did not include allegations of Harassment and/or Sexual Harassment and (iii) a complaint in relation to Gender was submitted orally on the day of the WRC Hearing, when the claim of discrimination on the ground of Race was withdrawn.
20. The Court makes no comment on what did or did not happen at the WRC hearing. The Labour Court derives its jurisdiction on appeal from an Adjudication Officer decision and hears the matter on appeal on a de novo basis. The Labour Court has no remit to examine any findings or decisions made by the Adjudication Officer. In this case, the Adjudication Officer made a finding that the Complainant had not established a prima facie case of discrimination on the gender ground and, therefore, found that she was not discriminated against by the Respondent. The Complainant has appealed against that decision to the Labour Court. The Court’s jurisdiction is confined to considering an appeal of that decision.
21. At the outset of the hearing, the Complainant’s representative confirmed that the matter on appeal before the Court was a complaint of discriminatory treatment on the gender ground relating to pay.
22. In any case involving an allegation of discrimination the Court must first consider the allocation of the burden of proof as between the Complainant and the Respondent. The established test for ascertaining if the burden of proof shifts to the Respondent was set out by this Court in its determination in Mitchell v Southern Health Board [2001] E.L.R. 201. That three-tier test provides: -

1) It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so. he or she cannot succeed.

2) If the primary facts relied upon are proved, it is for the Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

3) If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent, (Mitchell v Southern Health Board [2001] ELR 201)

23. In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that: -

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

24. The Court must consider in the first instance whether primary facts can be established from which discrimination can be inferred.
25. To ground her complaint under the Act, the Complainant must in the first instance establish that she engaged in “like work”, as defined by the Act, with a valid comparator and that she received less pay then that comparator for undertaking the same work. The Act defines ‘like work as work that is the “same”, “similar” or of “equal value”.
26. It is for the person bringing a claim to select his or her comparator. The Complainant worked as a croupier at the Respondent casino. In her evidence, the Complainant cited several other croupiers (both male and female) as “comparators”. The Respondent did not dispute that the Complainant was engaged in “like work”, as defined by the Act, with other croupiers.
27. The Complainant made specific reference to one male colleague, whom she understood was paid more than she was. She provided no details of his pay. She accepted that the male colleague had longer service than she did. The Complainant accepted that employees with longer service in the employment were awarded pay increases. She could not recall if she had accrued 5 years’ service when such pay awards were made to other employees.
28. While the Complainant made assertions, she failed to present sufficient relevant facts to support her assertion that she was paid less than a male comparator on the grounds of her gender. Having regard to the submissions and evidence proffered at the hearing, the Court is satisfied that the Complainant has not established sufficient primary facts that demonstrate that she and a Comparator were engaged in like work and that there was a differential in pay between the two which, on the basis of evidence available to her, is not due to gender.
29. Having regard to the facts presented in this case, Court finds that the Complainant has not established a prima facie case of discrimination on the gender ground, with respect to her pay, such that the burden of proof shifts to the Respondent.

Finding

30. For the reasons set out above, the Court finds the complaint under the Act is not well founded. The Adjudication Officer’s decision is affirmed. The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
AL	______________________
17/07/2026	Deputy Chairman

NOTE

Enquiries concerning this Determination should be in writing and addressed to Ms Amy Leonard, Court Secretary.