Complainant

Respondent

Parties

Tomasz  Andruszkiewicz

Aer Lingus

Representatives

Rachel Barry Arthur Cox

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-00042820-001

03/03/2021

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

CA-00042820-002

03/03/2021

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

CA-00042820-003

03/03/2021

The complainant was employed by the respondent as a cargo agent.

The complainant and three witnesses for the respondent gave their evidence under oath.

CA-00042820-001 Pay unlawful deduction

The complainant submitted that the respondent (a) unlawfully retained a sum of €1,809.56 from his wages and (b) that he never consented to the unlawful deduction of €15,056.04

CA-00042820-002 Holiday Pay

The complainant submitted that he did not receive any annual leave or payment for same from the respondent.

CA-00042820-003 – Discriminatory treatment

The complainant submitted that he was treated differently from a colleague, whom he named as a comparator, by the respondent in how it dealt with him while he was on sick leave.  He submitted that this colleague was treated more favourably and submitted that his colleagues age and nationality may have been a factor.

CA-00042820-001 Pay unlawful deduction

The respondent submitted that there were no unlawful deductions.  In respect of aspect (a) it submitted that it had retained the sum of €1809.56 from the complainant in respect of property due to be returned to it in the complainants second last payslip, as allowed for in the employment contract.  The respondent submitted that this amount was repaid to the complainant in his last payslip.  In relation to the second amount, this related to payment that were made automatically by the accounting system but were not made by the respondent as the complainant was absent from work and was not entitled to such payments.

CA-00042820-002 Holiday Pay

The respondent submitted that the complainant, while not entitled to annual leave as he was absent without reason from work, was paid the holiday entitlement that would have accrued to him during this period of absence.  The respondent submitted that this payment in respect of annual leave was paid to the complainant in his second last payslip.

CA-00042820-003 – Discriminatory treatment

The respondent denied that the complainant was discriminated against on the ground of age or race.  The respondent outlined that the complainant was dealt with in a similar manner to the named comparator.  The respondent submitted that the difference in treatment arose from the fact that all the medical practitioners in the colleague’s case agreed that he was unfit to work and that this was not the case in relation to the complainant.  The respondent submitted that the complainant was examined by three medical specialists, two occupational health specialists and, at the complainant’s request, a consultant psychiatrist.  None of these health specialists found the complainant unfit to work.

The respondent submitted that the complainants case amounted to mere assertions and that the assertions are not correct.

CA-00042820-001 Pay unlawful deduction

The respondent provided a comprehensive explanation of the payslips and deductions taken from the complainant.  The complainant accepted that in circumstances where the respondent deemed him fit to work and where he had not returned to work, no unlawful deductions were taken from his wages.

Having regard to the written and oral evidence presented in relation to this complaint, I find that the deductions have been explained and accordingly the complaint is not well founded.

CA-00042820-002 Holiday Pay

The respondent provided an explanation of the payslip outlining where it had paid the complainant the annual leave allowance covering the period complaint of.  The complainant accepted that he had been paid for the annual leave for the period complained of. 

Having regard to the written and oral evidence presented in relation to this complaint, I find that the annual leave that may have accrued was paid to the complainant. Accordingly, I find that this complaint is not well founded.

CA-00042820-003 – Discriminatory treatment

The complainant submitted that he was treated differently to a named comparator but offered no evidence in support of his contention other than stating that he was treated differently to a named comparator in the same circumstances and that nationality may have been a factor.

This contention was opposed by the respondent who submitted that the difference in treatment of the two individuals was down to the medical condition of the named comparator which was different to that of the complainant and to the fact that all the medical specialists in that case were in agreement that the individual was not fit for work.  The respondent noted that this was not the case in relation to the complainant.

The respondent submitted that the complainant has failed to establish a prima facie case of discrimination and noted the case of Mitchell v The Southern Health Board [2001] ELR 201 wherein it was held that the claimant must “establish facts from which it may be presumed that the principal of equal treatment has not been applied to them …and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination”.  The respondent also noted that in Melbury Developments Ltd v Valpeters EDA0917 the Labour Court held that “Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The respondent submitted that the complaint is based upon mere speculation and that no facts from which an inference of discrimination may be raised have been place before the Commission.

The complainant did not submit any evidence of victimisation.

In relation to the Burden of Proof, Section 85A (1) of the Employment Equality Acts, 1998 states that

“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.”

Having regard to all the written and oral evidence presented in relation to this complaint, I am satisfied that the complainant has not established facts from which it may be presumed that there was discrimination in relation to him.  The burden of proof does not shift upon the respondent.  Accordingly, I find that the complainant was not discriminated against nor victimised.

CA-00042820-001 Pay unlawful deduction

Having considered all the written and oral evidence presented in relation to this complaint, my decision is that the complaint is not well founded.

CA-00042820-002 Holiday Pay

Having considered all the written and oral evidence presented in relation to this complaint, my decision is that the complaint is not well founded.

CA-00042820-003 – Discriminatory treatment

Having regard to all the written and oral evidence submitted in relation to this complaint, my decision is that the complainant was not discriminated against nor was he victimised.

Payment of Wages – no proof – Employment Equality – mere speculation – burden of proof -no discrimination.