Complainant

Respondent

Anonymised Parties

Christian Porter

Radam Construction Limited

Representatives

  Self

 Colm Coates Manager and the MD

Act

Complaint Reference No.

Date of Receipt

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

CA-00048356-001

27/01/2022

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

CA-00048356-002

27/01/2022

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

CA-00048356-003

27/01/2022

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

CA-00048356-005

27/01/2022

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

CA-00048356-007

27/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00048356-008

27/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00048356-009

27/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00048356-010

27/01/2022

The Complainant brings this complaint believing that circumstances including his requirement to absent himself from the workplace relating to Covid public health obligations gave rise to his employment being terminated. The employer has stated that his employment was ended arising from cash flow challenges and a requirement to restructure the management of the Company.

The Complainant ticked many boxes on the WRC form. However, based on the practice that a Complainant cannot obtain double recovery based on the same facts against the same Respondent; he decided to withdraw many of the complaints brought against his Employer. However, he maintained that his Employer still owed him outstanding wages and that the circumstances of his dismissal amounted to discriminatory dismissal on the ground of race.

The Respondent stated that all monies owed had in fact been paid. There was no discrimination on the ground of race. The Complainant was let go to save costs.

CA-00048356-001

This complaint was withdrawn at the hearing concerning the unlawful deduction of wages.

CA-00048356-003

This complaint was withdrawn at the hearing concerning the payment received in lieu of notice.

CA-00048356-005

This complaint was withdrawn at the hearing concerning proper compensation for annual leave.

CA-0004835-006

This complaint was withdrawn at the hearing concerning a claim for Unfair Dismissal under the 1969 Industrial Relation Act as the Complainant has less than 12 months service.

CA-00048356-007

The Complainant initially stated that he was discriminated against by reason of his Gender; Civil Status; Family Status; Race and that he was victimised.

The Complainant withdrew all selected grounds other than Race. He stated that the Director of the business terminated his employment so that he could recruit a non-Irish national who the Director knew.

Both parties under oath gave sworn evidence concerning the allegation that the Complainant was let go so that a friend of the owner of the business could be hired.

I am satisfied on the evidence that the reason why the Complainant was let go because of the cash flow challenges faced by the business and the need to reduce management costs. The Director of the Company and the Complainant’s manager Mr Coates stated that the comparator who it is alleged was recruited was a working supervisor who used his tools on site. I am satisfied based on the sworn evidence given at the hearing that no discrimination on the ground of race has taken place. The Complainant has not made out a prima facie case that he was discriminated against on the ground of race.

While the Employer is not required to rebut the allegation in these circumstances it is clear from the evidence that the factual matrix does not support the Complainant’s belief that the comparator was hired based on his race and that he was let go because he was Irish.

The Complainant stated that he was let go so that a friend of the owner of the business who was not Irish could be hired to do his job as a project manager.

Jurisprudence has clarified that the significance of the facts is important to determine if the complainant has met the test as detailed at section 85A. The Labour Court in Valpeters v Melpury Developments Limited [2010] 21 ELR 64 stated:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A 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.”

The Complainant has not met the required evidential threshold to shift the burden onto the employer to show that he was not discriminated against. I find that the Complainant was not discriminated against by the Respondent employer.

CA-00048356-002

The Complainant stated that he was left short of monies that are owed to him relating to notice and holidays.

He commenced his employment on the 22nd of March 2021 and his employment ended on 22nd of December 2021.

The Respondent was requested to submit records of payroll;  holidays paid and leave approved so that they could be shared with the Complainant.

The Complainant in an email dated the 24th of November 2022 stated that the records submitted, and the contract provided are fabrications and as an example a day marked down as holidays was a day where he was summoned to the office and informed that he would be let go.

The Employer has calculated annual leave entitlement based on a monthly accrual rate.

The Organisation of Working Time Act 1977 as amended details the following when calculating holidays:

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Based on the records produced by the Company the Complainant has worked 1479 hours and is entitled to 4 weeks pay. That is also consistent with the terms in his contract of employment. As the employee has worked more than 1365 hours, he is entitled to 4 weeks annual leave. Therefore, a shortfall of 6.66 days arises. The records show that he was paid for 13.33 days.

Notice is prescribed by the Minimum Notice and Terms of Employment Act 1973 as amended. The Act states that:

Minimum period of notice

4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

Based on the payroll data provided and when compared against the employment contract he was paid from week 13 when he commenced his employment until it ended in week 52. As notice was given on the 22nd of December, the notice period ran from the 22nd until the 31st December 2021 which complied with the Act.

In total the Complainant is entitled to 6.66 days holiday pay. His weekly pay is €1400, his daily rate was €280 x 6.66= €1864.80.

The Payment of Wages Act 1991 as amended defines wages as:

“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

The Act states that:

6.(1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages 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—

(a) the net amount of the wages (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,

The complaint is well founded, and I award the Complainant €1864.80 less any statutory deductions.

CA-00048356-002

The Complainant stated that he was left short of monies that are owed to him; however, he could not quantify the amount.

The Respondent was requested to submit payroll records and holidays paid and leave approved; on the face of the records, it does appear that a shortfall exists.

I am satisfied based on the records and detail produced by the employer that a shortfall arises.  I find that the complaint is well founded and award the Complainant €1864.80 less any statutory deductions.

CA-00048356-007

Both parties under oath gave evidence concerning the allegation that the Complainant was let go so that a friend of the owner of the business could be hired.

This claim is brought under the Employment Equality Act 1998 as amended. As explained at the hearing the legislation details a requirement for the complainant to make out a prima facie case that raises the presumption of discrimination:

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.

 The Complainant stated that he was let go so that a friend of the owner of the business who was not Irish could be hired to do his job as a project manager.

No evidence to support the claim other than the Complainant’s account has been given at the hearing, no witnesses have been requested to attend at the hearing to corroborate that claim

On the facts as presented I determine that they are not of sufficient significance to establish a prima facie case that gives rise to a presumption of discrimination on the ground of race. Therefore, I determine that the Complainant was not discriminated against on the ground of race.

I am satisfied on the evidence that the reason why the Complainant was let go concerned the cash flow challenges faced by the business and the need to reduce management costs. The comparator who it is alleged was recruited was a working supervisor who used his tools on site. He did not replace the vacancy created by the departure of the Complainant. The Complainant has not made out a prima facie case that he was discriminated against on the ground of race.

 While the Employer is not required to rebut the allegation in these circumstances, it is clear from the evidence that the factual matrix does not support the Complainant’s belief that the comparator was hired based on his race and that the Complainant was let go because he was Irish.

I find that the Complainant was not discriminated against by the Respondent employer.

Discrimination-Payment of wages