Case Number: ADJ-00024962. Workplace Relations Commission

• Docket Number: ADJ-00024962
• Hearing Date: 03 March 2020
• Date: 08 July 2020
• Court: Workplace Relations Commission

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 77 of the Employment Equality Act, 1998 and Section 7 of the Terms of Employment (Information) Act, 1994following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The claimant asserts that she was discriminated against by the respondent on the basis of race in that she was treated less favourably than another employee who carried out her role on a fixed term contract while the claimant was out of work on maternity leave. She submits that when she brought the issue of her salary to the attention of management she was informed that the respondent accepted her assertion and was told this was because “she was not Irish, and they didn’t think she would notice the discrepancy”. The claimant further submits that the respondent breached the Terms of Employment (Information) Act 1994 by issuing a statement of her core terms which deliberately contained false and / or misleading information. The respondent denies race-based discrimination and asserts that no discrimination whatsoever has occurred against the claimant and that the apparent disparity in pay is explained by objective factors. The respondent further rejects the assertion by the claimant that they breached the Terms of Employment legislation by including false and misleading information in the complainant’s statement of the main terms and conditions of employment.

Summary of Complainant’s Case:

The claimant submits that she commenced employment with the respondent company in 2007 on a salary of €26,000 per annum. Two years later she was promoted to the position of H.R Manager on a salary of €28,000 per annum. The claimant submits that the going rate for a H.R Manager ranged between €35,000 – €45,000 per annum. On acquiring a second hotel the claimant’s workload increased and her salary was increased to €30,000 per annum, a sum still out of line with industry norm. The claimant took Maternity Leave in 2016 and her replacement was paid a salary of €45,000 per annum. The claimant submits that the difference in pay was on the basis of her nationality. She further submits that when this issue was raised with the respondent manager it was accepted that she was underpaid and on seeking an explanation for same was told ““she was not Irish, and they didn’t think she would notice the discrepancy”. The claimant submits that an increase of €10,000 in her salary was an attempt to appease her because of the manner she had been treated. She further submits that she received a commitment to look at a retrospective payment. The claimant submits that under the Employment Equality Act 1998 discrimination occurs “When one person is treated less favourably that another on any of the nine grounds, Gender, Marital Status, Family Status, Age, Disability, Sexual Orientation, Race, membership of the Travelling Community and Religion”. The claimant further asserts that when two workers are doing the same job and one is being paid €30,000 per annum whilst the other is paid €45,000 per annum there is no doubt that an act of discrimination is taking place. The claimant’s replacement during Maternity Leave, the comparator in the instant case, was paid a salary of €45,000 per annum while the claimant was paid €30,000 per annum. The claimant is of Russian nationally and the comparator is Irish, and the claimant submits that this is a clear case of discrimination on the basis of race. ►Terms of Employment (Information) Act 1994: The claimant submits that she received a statement of her core terms of employment which deliberately contained false and misleading information as she was given to understand that her starting salary and subsequent salaries were the going rate for the job. This, she submits, was incorrect and, on taking Maternity Leave in 2016/2017, she discovered that her replacement was paid a salary of €15,000 in excess of her salary. In addition, the claimant maintains that on investigation she discovered that her salary was substantially out of line with the norm since commencing employment in 2007 until her realignment on her return to work from Maternity Leave when she was paid a salary of €40,000. It is contended by the claimant that the Terms of Employment (Information) Act 1994, Section 3 (1) (g) obliges an employer to inform an employee in writing regarding the method of calculation of wages as follows: “The rate or method of calculation of the employees remuneration”. The claimant submits that she was not given information regarding the method of calculation of her salary which is a breach of the terms of said Act.

Summary of Respondent’s Case:

The respondent submits that the claimant commenced employment in November 2007 as a HR Administrator at a salary of €24,000 supporting one hotel, an appropriate salary they submit, commensurate with the position. They also submit that the claimant had no background or qualification in HR. In June 2008 the complainant received a promotion to the position of HR Manager on a salary of €28,000 per annum. In September 2009 all staff in the respondent company had a 10% salary cut due to the recession. In 2015 the respondent acquired a second hotel and the claimant’s salary was increased to €30,000 per annum. In 2016 the claimant commenced Maternity Leave and the respondent arranged for temporary cover, by way of a fixed term contract, for the period of the claimants Maternity Leave. The claimant’s replacement was put on a fixed term contract and was paid a higher salary than the claimant as she was an experienced and qualified HR Professional which attracted a higher salary, in addition to being hired on a temporary contract pending the return to work of the claimant and the nature of this contract also attracted a premium in terms of salary. Following the claimant’s Maternity Leave the claimant was due to return to work in March 2017. Immediately preceding her planned return to work, the claimant contacted the Group General Manager by email on 2nd February 2017 requesting a pay increase. The Group General Manager responded on 3rd February 2017 acknowledging the claimant’s correspondence and the contents of same and with a commitment to review her salary. The respondent submits in advance of the claimants return to work they requested a meeting to discuss her request for a pay increase, her request for Parental Leave and any support she would require within the HR Department to ensure it would be fully operational. The meeting did not take place as requested. The claimant, they submit, emailed the Group General Manager advising that illness would prevent her from returning to work on 7th March 2017 and this was supported by a medical certificate. The fixed term employee who replaced the claimant for the duration of her Maternity Leave secured alternative employment at the end of the claimants Maternity Leave. The respondent submits that they needed a replacement to cover the claimant whilst she remained absent due to illness and they engaged an employee on a fixed term contract on the same salary as the claimant as she had less experience and fewer qualifications than the previous fixed term employee that she was now replacing. The respondent’s position is that the claimant remained out of work due to sick leave until October 2018. Prior to her return to work they arranged a meeting to discuss changes that had occurred during the claimant’s absence including the appointment of a new HR Director, a position the claimant was invited to apply for. The issue of pay was raised and the Group General Manager advised that the issue of the claimants salary would be an area for discussion in line with performance management on her return to work from sick leave. On 12th July 2018 the claimant expressed her...