ADJ-00034163

Complainant

Respondent

Parties

Marek  Adamiuk

Tesco Ireland Limited

Representatives

Niamh Ní Cheallaigh, IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00045258-002

19/07/2021

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

CA-00045363-001

26/07/2021

The complainant commenced employment with the respondent on 1 February 2008 as a Warehouse Operative. He states that he was injured in work on the night of 13 May 2021 while lifting a crate of wine. He states that in trying to save the stock, he hurt his back. He asserts that his contract provides for sick leave payment during absence due to illness but the respondent failed to honour said payment. The complainant states that the respondent is in breach of the Payment of Wages Act by not paying him his entitlement to sick leave payment which is set out in his contract of employment and in the employee handbook.

The complainant further submits that the respondent discriminated against him on grounds of disability. The complainant states that the respondent assumed the complainant’s contribution to the accident and suspended him from the company’s sick pay scheme. The complainant states that the failure of the respondent to pay him deprived him of the opportunity to obtain adequate medical care including physiotherapy causing delay in his recovery.

The respondent states that the complainant commenced employment with the company on 1 February 2008 as a Warehouse Operative. The complainant was employed on a 37.5 hr per week. The respondent submits that as a warehouse operative, compliance with health and safety regulation is of paramount importance and the complainant has received continuous updated manual handling training refresher modules.

The respondent states that on 12 May 2021, the complainant alleged that he had been involved in a work-related accident. The complainant claimed that a case of wine slipped out of his hand and injured his back after his efforts to catch the case of wine before it hit the ground. The centre’s first aider attended to the complainant before the complainant went home. On 19 May 2021, the shift manager, reviewed CCTV footage of the alleged workplace accident and had concerns relating to the incident and instructed for a full investigation to be carried out. In turn, the complainant was contacted via telephone call to confirm that his sick pay benefit would be suspended for his absence pending a full investigation into the circumstances surrounding the workplace accident incident.

A full investigation was carried out into the incident and on 1 June 2021, the HR manager sent the complainant a letter confirming the investigation into his alleged accident at work had been completed and found that his actions leading up to the incident contributed to his own injury and based on these findings, the complainant would be suspended from the company sick pay scheme. The HR manager noted that this line of action would be reviewed in twelve months’ time. The respondent states that on 15 June 2021, the complainant returned to work and a welcome back meeting was held by the respondent.

During the meeting, the complainant cited his reason for absence as being due to back pain and he declared that he was fit to return to work.  On 21 July 2021, the respondent received a WRC letter regarding a complaint made by the Complainant under section 77 of the Employment Equality Acts. On 29 July 2021, on receiving the WRC letter, the HR manager arranged to meet with the complainant. At the meeting, the nature of the WRC complaint was discussed which related to the complainant’s alleged disability. The HR manager advised the complainant that the respondent was not aware of the complainant’s disability, as he had not notified her of this and also provided a fully fit to work certificate on 19 June 2021.

The respondent contends that the complainant could not provide clarification relating to this query and could not confirm what his disability was and advised of his need to seek legal advice from his solicitor. On 3 September 2021, the respondent received a second WRC letter regarding a complaint filed by the complainant under the Payment of Wages Act 1991. On receipt of the second WRC letter, a follow up meeting was arranged with the complainant on 9 September 2021. The purpose of this meeting was to put forward a proposal to the complainant regarding his second WRC complaint. At this meeting, the HR manager advised that she had reviewed the case and proposed to pay the complainant sick pay for the period of his absence 12 May 2021 until 15 June 2021 (value of €1,780.64.) She further proposed to reinstate the complainant back into the company sick pay scheme (pending an investigation into his absence) once his WRC complaints had been withdrawn. The complainant advised of his need to consult with his solicitor.

The respondent states that it is important to set out at this juncture that this is not an admission of liability and the respondent is fully satisfied that it is in compliance with the Payment of Wages Act and that no unlawful deduction was made; this was merely a gesture of goodwill in an attempt to resolve the matter for the complainant. The respondent states that following this meeting, the complainant requested that the HR manager meet with his solicitor.

The HR manager explained to the complainant that she would only deal with him directly as he is the respondent’s employee.  On 5 November 2021, the HR manager met with the complainant on an informal basis. The respondent submits that the complainant advised that he would accept the respondent’s offer to backdate his sick pay and reinstatement into respondent’s sick pay scheme but would only withdraw his WRC complaints if the respondent paid him Є2,000 in compensation. The HR manager advised that she could not authorise this request and the complainant advised of his intention to pursue his WRC claims.

Claim under the Employment Equality Acts: CA-00045258-002 -  Preliminary argument

The respondent submits that the Act defines a disability as follows: “disability” means—

 a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body

 b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness

 c) the malfunction, malformation or disfigurement of a part of a person's body

 d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.

The respondent asserts that the complainant has yet to set out what his alleged disability is or to provide evidence of same. When questioned on this, he stated he thought it was a mistake in the claim form and rather than seek advice from his doctor, he sought advice from his solicitor. The respondent states that contrary to his allegation that he has a disability, he submitted a medical certificate confirming he was fit to attend work. The respondent asserts that should the complainant now try to claim that the alleged disability he is referring to under the Acts is “back injury” the respondent will highlight that they have never received any information in relation to this alleged condition. The medical certificates submitted by the complainant for his period of absence from 12 May 2021 until 15 June 2021 did not indicate that is/was suffering from a disability or that he requires any adjustments to facilitate him at work. The respondent contends that at the complainant’s return to work meeting on 15 June 2021, he confirmed his fitness to return to work and did not give any indication that any reasonable accommodation was required to facilitate his return to work. The respondent contends that the complainant has not proven that he suffers from a disability for the purpose of the Act and on that basis, his complaint fails.

Prima Facie Case of Discrimination

Without prejudice to the preliminary argument above, the respondent contends that the complainant has failed to establish a prima facie case of discrimination as required by the Act and has merely speculated upon the possibility of its occurrence which is vastly removed from the onus the legislation places on the complainant. The respondent states that Section 85A (1) of the Act provides “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”. It states that a considerable amount of case law exists to elaborate on the onus Section 85A places upon a complainant who is alleging discrimination. In Melbury v. Valpeters EDA/0917, it was stated that section 85A "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….…. 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 respondent also cites the case of Southern Health Board v. Dr. Teresa Mitchell DEE 011 where the extent of this evidential burden was also considered when it concluded that “it is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment.”

The respondent asserts that it is well-established practice that there is a requirement on a complainant to present, in the first instance, facts from which it can be inferred that s/he was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. The respondent submits that it is only when the complainant has discharged this burden to the satisfaction of the Adjudication Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. The complainant has failed to even identify a comparator to whom he alleges he was treated less favourably than on the grounds cited by him as required under section 6 (1)(a) of the Acts which defines discrimination as – 6 (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where - (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’). Section 6(2) of the Acts clearly set out that discrimination is defined as occurring where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified”.  The respondent maintains that the complainant has failed to cite any comparators within the respondent company against whom it could be established that he was treated less favourably in comparison.

The respondent cites the caselaw in Toker Developments Limited and Edgars Grods (Determination No EDA105) on the issue of hypothetical comparator, the Labour Court stated: It is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances of the particular case. No such evidence was adduced, and it would clearly be impermissible for the Court to reach conclusions of fact based upon merely supposition or speculation.  No evidence exists to support a complaint of discrimination vis-à-vis a hypothetical or actual comparator. Therefore, the complainant has failed to establish any discrimination as defined by the Act.  It is appropriate that the respondent be obliged to specify suitable comparator(s). In the case of Melbury Developments Limited v Valpeters EDA 0917 (previously mentioned), the Court further determined: “...Solicitor for the Complainant has pointed to the difficulty for the Complainant in obtaining evidence concerning how others were treated. He submitted that in these circumstances the Respondent should be required to prove that others were treated similarly to the Complainant. In the Court’s view such an approach would amount to placing the entire probative burden on the Respondent. That would involve an impermissible departure from the plain language and clear import of Section 85A of the Act and the Community law provision upon which it is based. […] the Court cannot accept that the peculiar knowledge principle can avail the Complainant so as to relieve him of the obligation to prove the primary facts upon which he relies in accordance with Section 85A of the Act.”

Claim under the Payment of Wages Act 1991: CA-00045363-001

The complainant alleges that the respondent has not paid him or has paid him less than the amount due to him in relation to sick pay which he states is €2,319. Notwithstanding the fact that it is the respondent’s position that the complainant has been paid correctly and in full in line with the remuneration stated in the complainant’s contract and at no point did the complainant receive a salary below his contractual salary.  It states that the complainant is arguing that there is a deficiency in payment of wages on the period in question which is 13 May 2021 – 13 June 2021 as per the complainant’s WRC complaint form. The Payment of Wages Act 1991, under section 5(6) states: “Where (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, […] then […] the amount of the deficiency […] shall be treated as a deduction made by the employer from the wages of the employee on the occasion”. Thus, the important element to establish is what were the wages “properly payable” to the employee on “that occasion”. The respondent contends that the wages “properly payable” to the employee were the wages as advised to the employee in the contract of employment. No deduction as defined in Section 5 of the Act has been made. The respondent states that it operates a sick pay scheme which is a benefit to colleagues that runs from 1 January to 31 December and entitles eligible employees to a maximum of 8 weeks sick pay at management discretion. The respondent maintains that there is no legal entitlement to sick pay. It is a benefit to colleagues provided they abide by the rules of the scheme and their record of absence is satisfactory. The complainant was advised on 1 June 2021, that as a result of the accident investigation, the respondent decided to remove him from the sick pay scheme. The complainant had received prior notification from the respondent that the outcome of the investigation may lead to his removal from the sick pay scheme. Therefore, the decision not to pay the complainant sick pay was reasonable and expected in the circumstances and is in line with the Labour Court’s stance on such matters. In this regard, the respondent cites the case PWD211 where the Labour Court found that “the respondent did not inform the complainant at any stage that it had taken a decision to exclude him from its Sick Pay Scheme” and therefore determined that he was entitled to benefit from the scheme. In the instant case the complainant was advised of his potential ineligibility for the sick pay scheme and therefore was not entitled to benefit from the scheme.

The respondent submits however, upon receipt of the WRC complaint under the Payment of Wages Act and in an attempt to resolve the matter, the respondent offered to pay the complainant for his absence (which equates to €1,780.64 under the rules of the scheme) and reinstate him into the sick pay scheme. The complainant refused the offer as he was seeking an additional payment of €2,000.00.

I have carefully considered all the evidence both written and oral presented to me.

Claim under Payment of Wages Act

Section 5(6) of the Payment of Wages Act 1991 states: “Where (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, […] then […] the amount of the deficiency […] shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

Having carefully examined the evidence heard in relation to this claim, I note that the respondent operates a sick pay scheme which is a benefit to colleagues that runs from 1 January to 31 December and entitles eligible employees to a maximum of 8 weeks sick pay at management discretion. The respondent’s sick policy states “For colleagues who have completed their probationary period, sick pay will be paid up to a maximum of 8 weeks in any sick leave year. This is conditional on the provision of medical certificates and compliance with procedures for notification.”

Having examined the totality of the evidence adduced on the matter, I am satisfied that the complainant was entitled to benefit from the scheme and receive payment in respect of his sick leave absence. Accordingly, I find that his claim under the Payment of Wages Act is well-founded and I direct the respondent to pay the complainant the sum of €1,780.64.

Claim under Employment Equality Acts

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. 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. Therefore, I must first consider whether the existence of a prima facie case has been established by the complainant

Disability is defined in Section 2 of the Acts:

‘‘disability’’ means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

Based on the evidence heard, I find that the complainant has not established that he has a disability within the meaning of the definition as outlined above. In this regard, there was no medical evidence to substantiate this assertion.  I also note that the complainant submitted a medical certificate to the respondent confirming that he was fit to attend work. In the circumstances I am satisfied that the complainant has not demonstrated that he has a disability within the meaning of the definition as outlined in the Acts and therefore he has not demonstrated a prima facie case of discriminatory treatment on grounds of disability. Accordingly, this complaint fails.

CA-00045363-001 Claim under Payment of Wages Act

I consider that the complainant’s claim under the Payment of Wages Act is well-founded. Accordingly, I direct the respondent to pay the complainant the sum of €1,780.64.

CA-00045258-002 Claim under Employment Equality Acts

I find that the complainant was not discriminated against on the grounds of disability contrary to the Employment Equality Acts and therefore this complaint fails.

Disability, payment of wages, sick pay scheme