Complainant

Respondent

Anonymised Parties

A Helper

A Refuse Collection Company

Representatives

The Complainant was not represented and attended the Hearing in person

Insight HR

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00011521-001

22/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00011521-002

22/05/2017

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

CA-00011521-003

22/05/2017

The Complainant commenced employment with the Respondent’s refuse collection company as a Helper in 2013 and he is still in this employment. The Complainant works approx. 36 hours per week at a rate of pay of €422.76 per week. The Complainant claims that the Respondent made an unlawful deduction from his wages contrary to Section 5 of the Payment of Wages Act 1991. The Complainant also claims that he has been subjected to bullying and harassment in the workplace and has sought to have this matter investigated in accordance with the provisions of Section 13 of the Industrial Relations Act 1969. The Complainant also claims that he has been subjected to harassment by his employer contrary to Section 14A of the Employment Equality Acts.

CA-00011521-001 – Complaint under the Payment of Wages Act 1991

The Complainant submits that every Monday his normal duties involve a refuse collection in another large provincial town and that his shift would normally finish after completing these duties. However, on occasion when the Complainant has returned to base after completing this run he has been asked by the Respondent to help with the completion of a refuse collection in his own locality. The Complainant contends that this work is additional to his normal duties and had been on the specific request of the Respondent on any occasion that it had previously occurred.

The Complainant claims that he returned to base on Monday, 8th May, 2017 after completing his duties and went home as his shift was completed. However, when the Complainant received his wages for that week he was left €24 short in respect of hours worked for the Monday. The Complainant refutes the Respondent’s contention that he left his place of work early on this date without the knowledge and consent of his employer. The Complainant claims that the Respondent unlawfully deducted the amount of €24 from his wages arising from an incident which occurred on 8th May, 2017.

CA-00011521-002 - Dispute under the Industrial Relations Act 1969

The Complainant claims that he has been subjected to bullying and harassment in the workplace and has sought to have this matter investigated in accordance with the provisions of Section 13 of the Industrial Relations Act 1969.

CA-000011521-003 – Complaint under the Employment Equality Act

The Complainant claims that he was subjected to harassment by the Respondent contrary to Section 14A of the Employment Equality Acts. The Complainant claims that the alleged harassment occurred on 18th April, 2017 when his supervisor spoke to him in a derogatory manner.

CA-00011521-001 – Complaint under the Payment of Wages Act 1991

The Respondent disputes the claim that it has made an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991 and submits that he has been paid for all hours of work to date. The Respondent’s submits that a situation arose in respect of the Complainant leaving his place of work as a Helper on the waste collection vehicle at 11:00 am on 8th May, 2017 without the consent, knowledge or agreement of the Transport Manager or Managing Director. This resulted in the Company being short staffed and having to bring in a relief worker on a paid basis to cover for the Complainant’s absence. The Respondent only paid the Complainant in respect of the actual hours he worked on the particular day in question. The Respondent submits that the Complainant has simply not been paid in respect of hours not worked and therefore, there was no breach of the Payment of Wages Act 1991 in relation to this matter.

CA-00011521-002 – Dispute under the Industrial Relations Act 1969

The Respondent totally denies any suggestion of harassment or bullying against the Complainant in the workplace. The Respondent submits that it has a comprehensive Dignity at Work Policy which the Complainant has failed to invoke in relation to this matter. The Respondent further submits that the company is fully prepared to offer the Complainant mediation in respect of any aspect of his employment and any working relationships which he feels the need for support.

CA-00011521-003 – Complaint under the Employment Equality Acts

The Respondent denies that the Complainant has been subjected to harassment contrary to Section 14A of the Employment Equality Acts in relation to any aspect of his employment. The Respondent submits that the Complainant has failed to state under which of the nine discriminatory grounds that this claim of harassment is being made.

CA-00011521-001 – Complaint under the Payment of Wages Act 1991

Section 1 of the Payment of Wages Act provides for the following definition of “wages”:

               “wages”, in relation to an employee, means any sums payable to the employee by the         employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.”

Section 5(1) of the Act provides: -

“(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.”

Section 5(6) of the Act provides: —

(a) 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), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

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.

The issue for decision in relation to this element of the Complainant’s claim is whether the Respondent made an unlawful deduction from his wages contrary to Section 5 of the Payment of Wages Act 1991 in relation to the non-payment of three hours pay amounting to the net sum of €24 arising from hours worked on 8th May, 2017. In considering this issue, I must first decide whether the claimed unlawful deduction was in fact “properly payable” to the Complainant within the meaning of Section 5 of the Act.

There was a dispute between the parties in relation to the circumstances that transpired on 8th May, 2017 which gave rise to the present complaint. The Respondent contends that the Complainant left work early without consent on the date in question and, in effect, did not accrue any entitlement to be paid for the three hours that he didn’t work. The Complainant disputes the Respondent’s contention that he left work early or without consent on the date in question and contends that he worked a full day (i.e. 9 hours) and therefore, was entitled to be paid for these three hours.

The Respondent’s Transport Manager gave evidence at the hearing and confirmed that the Complainant had left work three hours early without consent on the date in question. The Respondent also submitted time sheets for the Complainant for the week beginning 8th May, 2017 which corroborate its account in relation to the number of hours worked by him on the date in question. I have found THE Respondent’s Transport Manager to be a very credible witness and on balance, I find his account of the events that transpired on 8th May, 2017 to be more compelling. I accept that the Complainant left work three hours early on the date in question without the consent of his employer. In the circumstances, I find that the payment in relation to the disputed three hours in question does not qualify as wages “properly payable” within the meaning of Section 5(6) of the Act. Therefore, I find that the Respondent did not make an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Act. Accordingly, I find that the complaint is not well founded.

CA-00011521-002 – Dispute under the Industrial Relations Act 1969

The Complainant has claimed that he has been subjected to bullying and harassment in the workplace and has referred this matter for investigation in accordance with the provisions of Section 13 of the Industrial Relations Act 1969.

It was not in dispute between the parties that the Respondent has established internal dispute resolution mechanisms for addressing grievances and disputes of an industrial relations nature. The Complainant did not dispute the fact that he has not exhausted these internal grievance procedures prior to the referral of the present dispute to the Workplace Relations Commission.

It is well established by the Workplace Relations Commission and the Labour Court that they do not intervene in a dispute under Section 13 of the Industrial Relations Act 1969 until all internal grievance procedures have been fully exhausted. This has clearly not happened in the circumstances of the present dispute.

Accordingly, I recommend that the Complainant exhausts all internal dispute resolution mechanisms for addressing his grievances before considering the further referral of this matter to the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969.

CA-00011521-003 – Complaint under the Employment Equality Acts

The final element of the complaint that I must consider relates to the Complainant’s claim that he was subjected to harassment contrary to Section 14A of the Employment Equality Acts.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination and/or harassment.   It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

“Harassment” is defined in Section 14A(7)(a) of the Acts as “any form of conductrelated to any of the discriminatory groundsbeing conduct which … has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”. Section 14A(7)(b) further states that “such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material”.

In the present case, the Complainant claims that the alleged harassment occurred on 18th April, 2017 when his supervisor spoke to him in a derogatory manner. The Complainant did not indicate on the Complainant Referral Form which of the nine discriminatory grounds that the alleged harassment was being grounded. This matter was put to the Complainant at the oral hearing and he was afforded the opportunity to clarify which of the nine discriminatory grounds was relevant to his claim. However, the Complainant was unable to identify any link between the alleged harassment and any of the nine discriminatory grounds.

For a complaint of harassment under the Employment Equality Acts to be made out, the Complainant must demonstrate a nexus between the alleged treatment and the discriminatory ground. In the circumstances, I am satisfied the Complainant has failed to establish that the alleged harassment was in any way linked to any of the nine discriminatory grounds. Accordingly, I find that the Complainant has failed to establish a prima facie case of harassment within the meaning of Section 14A of the Acts.

CA-00011521-001 – Complaint under the Payment of Wages Act 1991

I find that the Respondent did not make an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Act. Accordingly, I find that the complaint is not well founded.

CA-00011521-002 – Dispute under the Industrial Relations Act 1969

I recommend that the Complainant exhausts all internal dispute resolution mechanisms for addressing his grievances before considering the further referral of this matter to the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969.

CA-00011521-003 – Complaint under the Employment Equality Acts

Having investigated the above complaint, I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts. I find that the Complainant has failed to establish a prima facie case of harassment contrary to Section 14A of the Acts.

Payment of Wages Act 1991 – Section 5 – Unlawful Deduction – Complaint not well founded – Industrial Relations Act 1969 – Section 13 – Bullying and Harassment – Failure to invoke internal disciplinary procedures – Employment Equality Acts – Section 14A – Harassment – No prima facie case.