Complainant

Respondent

Anonymised Parties

An Employee

A Waste Disposal Company

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-00017106-001

27/01/2018

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

CA-00017106-003

27/01/2018

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

CA-00017106-005

27/01/2018

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

CA-00017106-006

27/01/2018

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

CA-00017106-008

27/01/2018

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

CA-00017166-001

30/01/2018

The Complainant commenced employment with the Respondent, a waste disposal company, on 6 February 2016, as a lorry driver.

In February 2017, the Complainant raised an issue with the Respondent in relation to underpayment of wages, arising from the alleged application an incorrect hourly rate of pay. As the matter had not been resolved to the Complainant’s satisfaction by October 2017, he submitted a written request in this regard.

Over the months of November and December 2017, correspondence was exchanged between the Complainant/his solicitor on his behalf and the Respondent. In addition, a number of meetings took place concerning the Complainant’s grievance in relation to his pay and disciplinary matters raised by the Respondent arising from alleged inconsistencies that they had been identified during their investigation of the matter relating to the Complainant’s pay.

The Complainant went on sick leave on 14 December 2017 and remained out of work until the submission of his resignation, by way of letter dated 3 April 2018.

The Complainant submitted six complaints to the Workplace Relations Commission on 27 and 30 January 2018 under the following legislation:

1)      Complaint under the Payment of Wages Act, 1991, alleging he was paid less than the amount due to him. (Complaint reference CA-00017106-001)

2)      Complaint under the Payment of Wages Act, 1991, alleging his employer had made unlawful deductions from his wages. (Complaint reference CA-00017106-003)

3)      Complaint under the Organisation of Working Time Act, 1997, alleging he did not receive his paid holiday/annual leave entitlement. (Complaint reference CA-00017106-005)

4)      Complaint under the Organisation of Working Time Act, 1997, alleging he did not receive his Public Holiday entitlements. (Complaint reference CA-00017106-006)

5)      Complaint under the Employment Equality Act, 1998, alleging that he had been discriminated against by reason of his gender and that his employer had discriminated against him by victimising and harassing him. (Complaint reference CA-00017106-008)

6)      Complaint under the Payment of Wages Act, 1991, alleging he was paid less than the amount due to him (Complaint reference CA-00017166-001)

Background:

The Complainant submitted that when he commenced employment with the Respondent in February 2016, it was agreed with the Respondent’s director (Mr A) that his pay rate would be €13.50 per hour. The Complainant submitted that as the Respondent rarely provided payslips, which in any event did not contain either hours worked or rate of pay and where hours worked varied daily and weekly, he was, without the assistance of payslips or a personal diary, unable to verify/check his pay.

According to the Complainant’s submission, in December 2016, he thought that his pay seemed insufficient and he started to maintain a diary of hours, as a result of which he was able to calculate that he was being underpaid consistently. The Complainant further submitted that he discussed this issue with one of the Respondent’s directors (Ms B), who confirmed to him that he was being paid at €13 per hour accidentally and that she had forgotten that he had agreed a rate of €13.50 with Mr A.

The Complainant submitted that Ms B promised that she would ensure he was paid €13.50 per hour going forward and that she would pay the shortfall immediately, based on the difference of €0.50 per hour for the previous 13 months. The Complainant further submitted that Ms B also committed to having payslips available for him at the office for collection on a weekly basis.

According to the Complainant’s submission, he checked in with Ms B every six weeks approximately, over the following six months and also texted her a couple of times to arrange to meet her about the situation. The Complainant further submitted that each time he raised the issue Ms B would say that it was being done and started to blame the delay on the accountant. According to the Complainant, he began to get impatient when, in August 2017, Ms B told him that it would just take another couple of weeks to sort the matter out. The Complainant submitted that having given Ms B additional time and a fruitless meeting on 20 October 2017, he wrote a formal letter to Ms B requesting that the exercise be completed within two working weeks.

According to the Complainant submission, in the meantime, when he and his daughter checked the records he was keeping against the payslips he had, he realised that, even at a rate of €13.50 per hour and, assuming consistent time rounding to his detriment, his pay was still consistently insufficient. The Complainant further submitted that, at the meeting on 20 October 2017, Ms B advised that the accountant had completed the calculation using bin lift records rather than clocking records and that she would like him (the Complainant) to sit with the accountant on the following Tuesday (24 October 2017), to review the figures.

The Complainant submitted that this development alarmed him as Ms B would be very much aware that the bin lift records would not reflect hours worked, as they do not account for the time the lorry was moving, breakdowns, exchanging lorries with other drivers, which happens regularly throughout the day and all work done around the yard.   The Complainant further submitted that he advised Ms B at the meeting on 20 October 2017 that, as he did not believe that an accountant needed his assistance doing the calculations, he was declining to make the accountant, as he considered this to be another delaying tactic.

According to the Complainant’s submission, on 23 October 2017, he hand-delivered a letter dated 22 October 2017 to the Respondent, in which he requested payment of the shortfall, payslips which he had not received and a detailed explanation of the shortfall calculation.

The Complainant further submitted that, despite declining to meet the accountant on 24 October 17, the Respondent’s directors (Mr AN Ms B), without notice and without the accountant, sprang a meeting on him after he had clocked out on that day. The Complainant submitted that, instead of sorting out his pay, the directors spoke simultaneously and started putting pieces of paper in front of him, which apparently were ad hoc bin lift records. According to the Complainant’s evidence, he was asked to explain what he was doing at specific times, on specific dates a number of months previously. The Complainant stated that he was bombarded, surprised, confused and disorientated to the extent that he could not think of exactly what had happened at 11am on a particular day in August.

According to the Complainant’s submission, he felt he was being accused of dossing on the job despite the fact that everyone, from the directors to the members of the staff, knows that he is an extremely hard worker.

The Complainant submitted that in a letter, received a couple of weeks later, the directors advised that he had attended an investigatory meeting, as part of the disciplinary procedure on 24 October 2017 and that he was now required to attend a disciplinary meeting. According to the Complainant, the issue with his pay was completely ignored while the directors proceeded with their disciplinary process.

According to the Complainant’s submission, having sought legal advice, he realised that the Respondent was not entitled to do what they had done in the manner in which they had done it. The Complainant also submitted that he was told in no uncertain terms that his employer’s letter signified clearly that they were attempting to sack him. The Complainant further submitted that he was advised he was entitled to have a colleague at meetings with him, should be afforded an opportunity to attend a meeting to answer them and that he should raise the pay issue as a formal grievance, which he did.

The Complainant submitted that, with persistence, he managed to get the directors to delay the disciplinary proceedings and to provide documentation of the allegations against him. According to the Complainant, he was provided with details of five days, over the previous couple of months, on which his work was being queried. The Complainant submitted that, due to his own record keeping, he was able to explain the times in relation to the days being queried. In this regard, the Complainant submitted that the detail could have easily been backed up by simply asking fellow colleagues or, in one case, a third-party service provider, to verify them.

According to the Complainant’s submission, his employer tricked him by telling him that when they had the disciplinary meeting for the particular issue they had raised, they would immediately afterwards discussed the pay issue.   The Complainant submitted that, on that basis, he attended the disciplinary meeting. According to the Complainant’s evidence, at the conclusion of the disciplinary meeting, he was told to wait outside for 10 minutes while the accountant wrote up the meeting notes.

However, according to the Complainant’s evidence, his employer commenced a surprise second meeting, which was not about his pay but about a completely new disciplinary issue. According to the Complainant this new disciplinary meeting was based on fabricated accusations where he was accused of crashing lorries, wrecking equipment and damaging property. The Complainant further submitted that all of the alleged incidents took place on the company premises, where there was no video evidence available which would assist him in defending the allegations being made against him.

In addition, the Complainant submitted that the colleague, who was attending the meeting with him, was denied the right to take notes. The Complainant further contends that the colleague in question is still in shock at what he witnessed during that meeting. According to the Complainant, when Ms B fabricated accusations of personal insults, including expletives, he walked out of the meeting.

According to the Complainant’s submission, his employer has not paid him correctly and has made no attempt whatsoever to do so. In addition, the Complainant submitted that he has been humiliated, insulted, abused, attacked, lied to, cheated, suffered physical health issues, diagnosed as caused by stress, and severe financial strain since October 2017.

The Complainant further stated that, once he started putting pressure, in October 2017, to resolve the pay issue, management started to give him fewer hours, leave him at home from work some days. In this regard, the Complainant submitted that, approaching the end, he was left at home on three of the four days on which he was hired to work.

According to the Complainant’s evidence, after getting a solicitor involved, he obtained the clocking in records for his employment until November 2017, with which definitive calculation of pay due could be calculated. However, the Complainant submitted that he had not been given payslips for the rest of November and December 2017, despite having requested them. According to the Complainant, the period from 18 November 2017 to the end of December 2017 also needs to be factored into the calculation.

With regard to the specific elements of his complaint, the Complainant submitted as follows:

1)      CA-00017106-001 - Payment of Wages claim

The basis of the Complainant’s claim under this reference relates to the issue of underpayment of wages, as detailed in the background set out above.

2)      CA-00017106-003 - Payment of Wages claim

Under this reference, the Complainant alleged that the Respondent made unlawful deductions from his wages. In support of this the Complainant submitted that his wages were short every week. He stated that, on a number of weeks there were deductions including pay weeks 33 and 38 of 2016 and 39 of 2017.

According to the Complainant’s submission, when he queried all the deductions cumulatively, and week 10 of 2017 specifically, he was never provided with any explanation by the Respondent. The Complainant submitted that, at a meeting in October 2017, which he was later informed was a disciplinary meeting, Ms B implied that she had been making deductions for minutes and hours when the lorry was not moving. The Complainant submitted that these implied deductions were being made on a daily basis without any notice to him.

3)      CA-00017106-005 - Organisation of Working Time claim

Under this heading, the Complainant alleged that he did not receive his holiday pay entitlement. He submitted that the Respondent underpaid him for holidays frequently and, sometimes, failed to pay anything at all for holidays taken. According to the Complainant he is owed 47 hours of holiday entitlement, which he calculated at €693.00.

4)      CA-00017106-006 - Organisation of Working Time claim

According to the Complainant’s submission, in relation to this element of his complaint, he did not receive his public holiday entitlement. According to the Complainant the Respondent regularly underpaid for bank holidays. The Complainant submitted that he was underpaid by 17 hours over the past two years, which are calculated at €267.00.

5)      CA-00017106-008 - Employment Equality claim

The Complainant submitted that the Respondent discriminated against him, by reason of his gender, arising from acts of victimisation and harassment.

According to the Complainant’s submission, once he submitted a written request for resolution of the pay issue in October 2017, the Respondent commenced a vigorous programme of discrimination against him. The Complainant stated that between the commencement of his employment in February 2016 and October 2017, he received a total of two text messages from the Respondent’s director. However, the Complainant stated that in the two months from October to December 2017 he received 10 such messages.

In support of his allegation in this regard, the Complainant submitted the following list of discriminatory actions which he contends were taken against him:

·         Unfair and unlawful execution of disciplinary procedures which, when the Respondent was required to carry out the remainder of the process in a lawful manner, as a result of legal advice obtained by the Complainant, there proved to be no justification for the case against him and he was able to verify the work he was doing at the times in question.

·         Accused of lying about a lorry that had broken down.

·         Refusal to pay him fairly.

·         Following him in a car without notice.

·         Verbally abused when he informed the Respondent that there was a fault with a lorry.

·         The Respondent ignored and refused to respond to his grievance.

·         Without explanation reason or cause, removed, from a lorry in mid-run, replaced with another driver and told to drive directly to the yard in a van, all of which happened in front of colleagues.

·         Letters, which were dated numerous days previously, hand delivered to his house.

·         Tricked into a series of meetings, under false pretence of resolving the pay issue, was required to attend a second disciplinary proceeding at which he was confronted with a series of fabricated accusations for which there was neither proof nor basis.

·         Hours/days of work reduced significantly from October 2017, making it financially difficult to persist with obtaining monies outstanding.

In conclusion, on this element of his complaint, the Complainant submitted that he felt he suffered slander, harassment, embarrassment and both financial and physical discrimination.

6)      CA-00017166-001 - Payment of Wages claim

Under a separate complaint, submitted to the WRC on 30 January 2018, under the Payment of Wages Act, 1991, the Complainant contended that the Respondent had not paid him or had paid him less than the amounts due to him. In support of his claim in this regard, the Complainant set out the following shortfalls in our overdue payments:

Ø  Pay Shortfall relating to the difference of €0.50ph from commencement of employment to 18 November 2017, which totalled €2,010.17.

Ø  Bank Holiday pay shortfall from 7 February 2016 to 18 November 2017, which totalled €693.10.

Ø  Holiday pay shortfall from 7 February 2016 to 18 November 2017, which totalled €693.10.

Ø  Overdue holidays amounting to 10 days, which totalled €279.79.

The Complainant submitted the total of the above outstanding payments amounted to €3,300.28

Background:

According to the Respondent’s submission, the Complainant was employed as a driver from 6 February 2016. It was further submitted that, in February 2017, the Complainant raised an issue regarding monies owed to him by the Respondent. In the light of same, the Respondent investigated the queries and arranged a meeting on 24 October 2017, with the Complainant and their accountant.

The Respondent further submitted that, on 22 October 2017, the Complainant submitted a written request for wages, he claimed to have been owed. It was submitted that the Complainant, who claimed that he had been underpaid, for over a year, by €0.50 per hour, requested a payslip for each pay period and a printout of the clock-in system, showing his hours worked from the commencement of his employment.   It was stated that the Complainant also sought for his account to be credited with the money owed and that he be provided with a clear and detailed reconciliation.

According to the Respondent’s evidence, in his letter of 22 October 2017, the Complainant stated that he did not wish to attend the meeting arranged for 24 October 2017, as he did not believe a professional accountant would need his assistance in calculating the payment.

The Respondent submitted that, on 24 October 2017, they held a meeting with the Complainant to discuss the contents of his request and a number of inconsistencies which their investigation had identified on the back of same. According to the Respondent’s submission, the inconsistencies in question included extensively long breaks between bin pickups. The Respondent submitted that during the meeting the Complainant admitted to taking extensively long breaks. In support of the submissions in this regard, the Respondent submitted minutes of the Investigation Meeting held on 24 October 2017.

According to the Respondent submission, on 6 November 2017, the Complainant was invited to attend a disciplinary meeting on 8 November 2017. The Respondent submitted that the purpose of this hearing was to discuss the “alleged failure to follow internal policies and procedures, namely clocking in and out of work which resulted in overpayment, namely during August, September and October 2017 and alleged unauthorised absence, when you took excessive breaks, which resulted in overpayment”.

The Respondent further submitted that the Complainant was issued with a copy of the disciplinary rules and procedures and was advised that failure to attend the disciplinary hearing may be treated as failing to obey a reasonable management instruction, which in itself may be deemed gross misconduct. According to the Respondent’s submission, while the Complainant attended this meeting, he responded “no comment” to all the questions put to him.

According to the Respondent’s evidence, they received two letters from the Complainant on 13 November 2017. The Respondent submitted that the first letter was written further to the disciplinary hearing and related to issues which the Complainant wished to raise regarding not having received documents that the Respondent was intending to rely upon and requesting that he be allowed to bring a family member rather than a trade union official to the meeting.

The Respondent submitted that the second letter, received from the Complainant on 13 November 2017, related to the non-payment of wages and, in it, he stated that he was now raising a formal grievance in accordance with the grievance procedures.

The Respondent stated that, on 20 November 2017, they wrote to the Complainant advising that, as he had outlined he had not been given enough time to prepare for the meeting held on 8 November 2017, they would reconvene the disciplinary hearing on 24 November 2017. According to the Respondent, on 23 November 2017, the Complainant’s solicitors sent a letter requesting the additional documentation and informing that the Complainant would not be able to meet with the Respondent until such time as the requested information was provided to him.

According to the Respondent, they wrote to the Complainant on 28 November 2017 and reorganised the disciplinary meeting for 1 December 2017. The Respondent also informed the Complainant that the documents he had requested were sent to his solicitor, as he had refused to sign to say he had received them, when issued with them the previous week.

With regard to the Complainant’s grievance, the Respondent submitted that they wrote to him on 5 December 2017 advising that the matter would be dealt with separately to the disciplinary matter and a meeting would be arranged for the day after the disciplinary hearing.

According to the Respondent’s submission, on 7 December 2017 the Complainant wrote to them confirming that, while he would be available to attend a hearing, he was not in a position to attend the following day. In addition, the Complainant sought to adjourn the meeting, stating that it was not reasonable to ask him to attend outside of working hours and that the colleague he wished to accompany him at the meeting was unavailable.

The Respondent submitted that, the following day, they advised the Complainant that, given that the matter had already been rescheduled on three separate occasions, the hearing would proceed on that day and would be brought forward to accommodate the Complainant. The Respondent further submitted that the Complainant was also advised that he could submit a written submission for consideration. In addition, the Respondent submitted that the Complainant was given the remainder of the day off, paid to prepare for the meeting and was offered the opportunity to take another work colleague to accompany him at the meeting.

According to the Respondent’s submission, they received a letter dated, 11 December 2017, from the Complainant’s solicitor seeking a meeting, which would be attended by the Complainant and his financial adviser, to discuss their calculations. This letter also requested that the Complainant’s grievance be dealt with in a timely fashion. The Respondent stated that the letter also raised the issue that the Complainant had not been given as many hours since his grievance had been raised, an allegation which the Respondent denies.

The Respondent submitted that, on 12 December 2017, they held two meetings with the Complainant. This included the disciplinary meeting with regard to the alleged failure to follow internal policies/procedures, namely clocking in and out of work, which resulted in overpayment, during August, September and October 2017 and an alleged unauthorised absence, in relation to excessive breaks, which resulted in overpayment. The Respondent further submitted that the Complainant also attended a separate investigation meeting in relation to alleged damage caused to company property.

According to the Respondent’s submission, they wrote to the Complainant’s Solicitor on 22 December 2017, seeking to resolve the matters outlined in the Complainant’s grievance. The Respondent further submitted that the Complainant went on sick leave on 13 December 2017 and remained on sick leave until 3 April 2018 when he submitted a letter of resignation to the Respondent.

Responses to substantive claims:

Against the background set out in the previous section, the Respondent made the following submissions in response to the individual elements of the Complainant’s complaint:

Payment of Wages claims –(CA-00017106-001/003 and CA-00017166-001)

At the commencement of the submissions on behalf of the Respondent, the representative submitted that, as the Complainant lodged his claim on 27 January 2018, the respective reference period for which claims can be considered falls between 27 January 2018 and 28 July 2017.

The Respondent submitted that, in the first instance, the Complainant has alleged that he was due to be paid both wages and holiday pay in the sum of € 3300.28 on 3 November 2017. According to the Respondent’s submission, when the Complainant brought a payment discrepancy to the Respondent they requested time to conduct a review of the Complainant’s payments and advised him that he would be paid for all underpayments, if that had been the case.

According to the Respondent’s submission, having conducted a review and also having and independent person also conduct a review, it was found that there had been a discrepancy in the Complainant’s pay. It was further submitted that the discrepancy also brought some issues to the fore in relation to the Complainant’s actual working times, which required further review before a payment could be made.

The Respondent submitted that the Complainant was issued with a cheque in the sum of € 3150.51 in April 2018, in accordance with his (the Complainant’s) breakdown of the figures, going back over a significantly longer period than the act provides for. Consequently, the Respondent submitted that the Complainant had received all entitlements due to him under the Act and is therefore not entitled to claim further relief under the Act in respect of these particular claims.

With regard to the Complainant’s allegation that an unlawful deduction of €63 was made from his wages on 6 October 2017, for which no reason had been provided, the Respondent submitted that the Complainant had received all payments due and owing to him and is not entitled to any further relief on the Act.

Organisation of Working Time claims – (CA-00017106-005/006)

The Respondent first addressed the Complainant’s contention that he was not paid for annual leave entitlements, contrary to Section 19 of the Act. The Respondent submitted that, as the Complainant had already lodged a claim in respect of these outstanding leave entitlements under the Payment of Wages Act, as above, he cannot seek redress under both Acts.

According to the Respondent’s submission, the Complainant was paid an amount of €959.97, on 13 April 2018, in respect of all outstanding annual leave. It is further submitted by the Respondent, that the total amount paid included the amount (€693.00) claimed by the Complainant based on his own calculations and a further payment of €266.97.

In conclusion on the issue of the Complainant’s annual leave entitlements, the Respondent submitted that all payments due and owing to him in this regard had been paid and, as a result, the Complainant is not entitled to any further release under the Act.

With regard to the Complainant’s claim in relation to his public holiday entitlement, the Respondent noted that the amount being claimed was €267.00, in respect of 27 hours over two years. In this regard, the Respondent submitted that the relevant reference period to be considered for such claims falls between 27 January 2018 and 28 July 2017.

According to the Respondent’s submission, the Complainant was issued with payment for all public holidays to the sum of €279.79 on 13 April 2018. The Respondent further stated that the amount paid in this regard was in excess of the calculation set out by the Complainant in his claim papers.

In conclusion, in response to the Complainant’s claims under the Organisation of Working Time Act, the Respondent submitted the Complainant had been paid all public holidays due and owing to him and that he is not entitled to any further relief under the Act.

Employment Equality claim – (CA-00017106-008)

In response to the Complainant’s allegation that he was discriminated against on the basis of his gender and that he was victimised and harassed during his employment, the Respondent denied all allegations.

According to the Respondent’s submission, the law requires that the Complainant establish a prima facie case of discrimination before the burden of proof shifts to the Respondent. In this regard, the Respondent reference Section 85A (1) of the 2004 Act and the Labour Court decision in Melbury Developments v   Arthur Valpeters [EDA0917]. The Respondent further submitted in this regard that the Complainant had failed to demonstrate how it was that he was treated less favourably than any other employee in the course of his employment.

The Respondent also noted that the Complainant has failed to identify a comparator, whether that be actual or hypothetical, as required by the legislation, which regards discrimination on the grounds of gender, in order to demonstrate “the difference in treatment”, as stated by the Equality Officer in the case of Darguzis v Lough Corrib Engineering Ltd. [DEC-E2009-038].

According to the Respondent’s submission, the Complainant merely alleged that upon lodging a grievance with the Respondent, regarding his wages, he was then the subject of “discriminatory acts” which included “unfair and unlawfully executed disciplinary proceedings” and being “accused of lying”.

In support of their submission in this regard, the Respondent referred to the decision of the Equality Officer in the case of Adejumo v Noonan Services Group Ltd [DEC-E2015-0023]. Based on this case, the Respondent submitted that the Complainant had merely asserted that he had been subjected to less favourable treatment and has not stated why or how these claims are parallel to any of the grounds of discrimination raised.

With regard to the Complainant’s claim in relation to victimisation, the Respondent referred to Section 74 (2), wherein the grounds for establishing “victimisation” are set out. Based on this, the Respondent denies that the Complainant was victimised. In addition, the Respondent submitted that no evidence was presented to suggest a link between the actions, as set out in Section 74 of the Act, and any steps taken by the Respondent. The Respondent further submitted that the Complainant made no reference to gender or the Employment Equality Act in any of his communications with the Respondent, either verbal or non-verbal.

In support of their submission in this regard, the Respondent cited the case of A Prison Officer v the Irish Prison Service [ADJ 8974], where it was held that “the protected act must be the operative reason for the adverse treatment”.

The Respondent also cited the case of Department of Defence v Barrett [EDA1017], wherein the Labour Court set out the three components which must be present for a successful claim of victimisation under Section 74 (2) of the Acts, as follows:

1)      “The Complainant had taken an action of a type referred to at Section 74 (2) of the Acts;

2)      The Complainant was subjected to adverse treatment by the Respondent, and;

3)      The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

According to the Respondent’s submission, the Complainant did not engage in any protected act under the Equality Act, 1998, as a result of gender-based discrimination. The Respondent further submitted that the Complainant simply raised an issue regarding the underpayment of wages, which then led to the discovery of misconduct on the Complainant’s part.

The Respondent submitted that the matter of the underpayment and the Complainant’s misconduct are two very separate issues. It was further submitted by the Respondent that, while it took some time to complete the investigation into the misconduct, the Complainant contributed to the delay by failing and/or refusing to turn up to meetings.

With regard to the Complainant’s contention in relation to harassment, the Respondent referred to Section 14A 7(a) of the Employment Equality Act, which defines harassment. In addition, in support of their argument in this regard, the Respondent also referred to the case of Nail Zone Ltd v A Worker [EDA1023], where the Labour Court defined the law in relation to harassment.

According to the Respondent’s submission, the Complainant, in his claim, does not specifically set out he was allegedly harassed as a result of the said gender-based discrimination. According to the Respondent, the claimant merely sets out grievances that he had regarding the events that had taken place, together with his own interpretation of these events.

The Respondent submitted that they acted reasonably in investigating the underpayment and took appropriate action upon learning of the alleged discrepancies, as a result of the Complainant’s own conduct. In addition, the Respondent submitted that it has detailed harassment and bullying procedures to deal with such matters.

According to the Respondent, these policies also provide for both formal and informal procedures that can be utilised in maintaining the employee’s dignity at work. In addition, the Respondent submitted that they take allegations very seriously and take preventative measures to ensure that such incidents do not arise. It is further submitted that the policies apply to all employees and any such behaviour will not be tolerated from any individual either inside or outside the company.

In conclusion, the Respondent called on the Adjudication Officer to find that the Complainant’s claims of gender discrimination, victimisation and harassment are not well founded and therefore should fail.

Payment of Wages claims – (CA-00017106-001/003 and CA-00017166-001)

The Respondent submitted three separate claims under the Payment of Wages Act, 1990. The first two these claims, which were lodged on 27 January 2018, consisted of (1) a claim that the Respondent had paid him less than he was due, primarily based on an alleged shortfall of €0.50 per hour in his hourly rate and (2) a claim that the Respondent had made unlawful deductions from his wages.

The Complainant did not specify the amounts relating to either of the above two claims in his complaint form. However, in a further claim, lodged on 30 January 2018, the Complainant submitted specific claims in relation to shortfalls in (a) wages and holiday pay, (b) bank holiday pay, (c) holiday pay and (d) overdue holidays. According to the Complainant’s complaint the total outstanding amount due amounted to €3,300.28.

Having carefully reviewed the evidence submitted, I am of the view that this outstanding amount of €3,300.28 represents the Complainant’s aggregated claim of monies due to him pursuant to his claims under the Payment of Wages Act, 1991, and the Organisation of Working Time Act, 1997, as submitted under the previously referenced claims. Consequently, the finding set out hereunder is made in relation to all referenced claims under both the 1991 and 1997 Acts.

At the Oral Hearing, the Respondent provided evidence of a payment, in the amount of €3,300.00, which was made to the Complainant, in April 2018, representing payment of all outstanding monies due. I am satisfied that this amount is consistent with that set out in the letter, dated 11 December 2017, from the Complainant’s solicitor to the Respondent and with the amounts specified in the Complainant’s complaint reference CA-00017166-001, which was submitted to the WRC on 30 January 2018.

In addition to the claims contained in the Complainant’s complaints to the WRC, his representative raised additional matters regarding further alleged underpayments at the Oral Hearing. These related to the Complainant taking shorter than the standard lunch breaks and his arrival at work in the morning earlier than the stipulated start time.

Notwithstanding the fact that these claims were not part of the Complainant’s formal complaints to the WRC for adjudication, I found the submission made on behalf of the Complainant in relation to these additional claims to be lacking in evidence and speculative in nature. On that basis and in light of the payment made by the Respondent, in April 2018, in settlement of all monies due to the Complainant, I did not give consideration to these additional claims.

Therefore, taking all of the above into consideration, I find that the Complainant’s claims against the Respondent have been addressed in full and no further findings in this regard are required.

Organisation of Working Time claims – (CA-00017106-005/006)

The considerations and findings in relation to the Complainant’s claims under the Organisation of Working Time Act, 1997, are as set out above in the findings relating to claims under the Payment of Wages Act, 1991.

Employment Equality claim – (CA-00017106-008)

Section 85 A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a claimant 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.”

This means that the Complainant is required to establish, in the first instance, facts from which it may be presumed that there has been discrimination. In other words, the Complainant must establish primary facts upon which the claim of discrimination is grounded. In the event that he succeeds in doing so, then, and only then, the burden of proof passes to the Respondent to prove the contrary.

Based on the above, when evaluating the evidence in this case, I must first consider whether the Complainant has established a prima facie case pursuant to Section 85 A (1) of the Employment Equality Acts 1998 to 2008.

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. The inference of discrimination must have a factual/credible basis and cannot be based on mere speculation or assertions which are unsupported by evidence.

The Labour Court elaborated on the interpretation of Section 85 A (1) in Melbury v. Valpeters (EDA/ 0917) where it stated that this section: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".

In support of his complaint, the Complainant, in the within case, is claiming that he was discriminated against by reason of his gender when he was subjected to discriminatory acts of victimisation and harassment.

Section 6 (1) and (2) (a) combine to define discrimination on the gender ground as follows:

6.— (1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

(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”),

Having carefully considered the Complainant’s submissions, I find no evidence which would support his contention that he was treated less favourably than a woman would be treated in similar circumstances.     In this regard, I note that, notwithstanding the Complainant’s failure to identify a female comparator, there is nothing in the evidence presented which might lead one to conclude that a female, in similar circumstances, would have been treated any differently than the Complainant alleges he was treated.

The Complainant alleges that the Respondent’s discriminatory actions consisted of victimisation and harassment. Section 74 (2) of the Employment Equality Act defines victimisation as follows:

“(2) For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith—

(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),

(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,

(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or

(d) given notice of an intention to do anything within paragraphs (a) to (c).”

Arising from the above provisions in relation to victimisation, it is necessary for the Complainant to demonstrate a connection between his actions in relation to defending his entitlements under the Act and the treatment complained of. I find no evidence to suggest that the Complainant’s raising of a workplace grievance in relation to his rate of pay is consistent with him having engaged in any of the protected actions as set out in paragraphs (a) to (d) of Section 74 of the Act.

Consequently, taking all of the above into consideration and having carefully reviewed all of the evidence adduced, I find that the Complainant has failed to establish a prima facie case that an act of discrimination on the gender ground pursuant to the provisions of the Employment Equality Acts took place.

On that basis, the burden of proof does not pass to the Respondent and the Complainant’s claim of discrimination fails.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out below my findings in relation to the specific elements of the Complainant’s complaints:

Payment of Wages claims – (CA-00017106-001/003 and CA-00017166-001)

I find that the Complainant’s claims under the Payment of Wages Act, 1991, have been settled in full by the Respondent and, therefore, no further payment/compensation is necessary or required.

Organisation of Working Time claims – (CA-00017106-005/006)

In line with the provisions, set out in Section 27 (3) of the Organisation of Working Time Act, 1997, I find that the Complainant’s claims under this Act have been settled in full by the Respondent and, therefore, no further payment/compensation is necessary or required.

Employment Equality claim – (CA-00017106-008)

I find that the Complainant failed to establish a prima facie case of discrimination on the gender ground and, therefore, his claim under the Employment Equality Act, 1998, fails.

Payment of Wages Act

Organisation of Working Time Act

Employment Equality Act