Complainant

Respondent

Parties

Valtemir  de Oliveira

Dawn Meats Ireland UC

Representatives

  Self-represented

Robin McKenna IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00044369-001

25/05/2021

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

CA-00044369-002

25/05/2021

The Complainant contends that he was discriminated against by the Respondent and that wages ceased while he was on sick leave from his position.

This case was originally scheduled for 24th May 2022.  The Complainant along with two companions and his legal representative arrived 45 minutes after the allotted time, by which time the Respondent had left the building.  It was decided in the interest of fair process, that the hearing would be reconvened.  When the hearing was reconvened, the Complainant appeared alone and represented himself.  Interpretation facilities were provided at the hearing with the agreement of the Complainant.

The Complainant stated in sworn evidence that he worked for the Respondent from 31st October 2018.  He is a Brazilian who came to Ireland to obtain work.  He was employed in the Respondent’s boning hall even though he expressed a preference for not working in that part of the plant.  He experienced harassment from a supervisor, a fellow member of the Brazilian community which he said escalated from around June 2019.   He alleges that this man and his relatives harassed the Complainant when he stopped providing out of hours barber service to him.  He stated that he had suffered depression and anxiety from the issues he experienced.  He stated that his refusal to provide the out of hours barber service resulted in conflict from there on with the supervisor, who he stated put him on heavier tasks.  After some days on heavier tasks he experienced pain in his shoulder but when he complained, the supervisor told him he would have to go back to Brazil.  He was particularly upset that a fellow countryman would treat him like that.                                                     In cross examination, the Complainant agreed that the supervisor he had cited as treating him badly, treated all Brazilians the same, not based on race, religion or any other ground.  He also stated that his solicitor told him his complaint was out of time.

In relation to the Payment of Wages complaint, the Complainant stated that his wages ceased when he was on sick leave in October 2020.  He applied to the Department of Social Protection for payment but as he did not qualify he did not receive payment.

The Respondent submits that this claim is manifestly out of time. The claim under the Employment Equality Acts was lodged by the Complainant on 18 June 2021. The date of the alleged discrimination was first week in October, as per the Workplace Relations Complaint form. This is well over six months following the most recent date of discrimination.

The Employment Equality Acts clearly stipulate that the time limit runs from the most recent date of discrimination, and not from any other date.

The Company submits that there is no discretion under the Act for an Adjudication Officer to further extend the time limit past the six month period, unless reasonable cause is proved.

The tests applied by the Labour Court for extensions of time under the Organisation of Working Time Act (and other legislation with the same wording) have been well established. The Company refers to the case of Cementation Skanska v Carroll, DWT0338, where the Court articulated the test by stating:

“It is the Court’s view that in considering if reasonable cause exists, it is for the Complainant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the Complainant at the material time. The Complainant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. In the context in which the expression reasonable appears in the statute it imports an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the complainant has a good arguable case”.

The complaint in this case is quite clearly out of time and thus it is submitted that the Adjudication Officer does not have the requisite jurisdiction to hear this.

An extension of time is not warranted particularly in light of the fact that the Complainant was legally represented for some months before the time limit for submitting his complaint expired.

By email dated 9 November 2020, HR Officer of the Respondent received an email from Ms LL, Legal Investigator. She was submitting a complaint on behalf of Mr de Oliveira regarding treatment he was receiving by several supervisors, including Mr S Production Area Supervisor.

Correspondence from the WRC was received dated 5 October 2021 from the Complainant’s legal representative at the time of submission of his complaints. In it she wrote

“I would like to inform the WRC that I will no longer represent Mr Oliveira in this matter please due to abusive behaviour on his behalf and other aspects which I do not tolerate nor can accept in order to continue in this case”.

The complaint in regard to Payment of Wages is not sustainable on the following grounds:

The Complainant went on sick leave on 13th October 2020.  The Complainant’s contract of employment includes the following clause:

  “The Company does not operate an occupational sick pay scheme”.

In summary

The Respondent submits that the responsibility fell to Mr de Oliveira to submit the complaint on time, particularly in light that he was being legally represented. The alleged discrimination occurred in the first week in October 2020, the investigation concluded on 17 February 2021 and the complaint was not submitted to the WRC until 18 June 2021. This was four months after the conclusion of the investigation and two months outside the permitted six month period. The Company respectfully submits that Mr de Oliveira has not discharged the burden of proof that reasonable cause exits for an extension to the six month deadline and accordingly, this complaint must fail. The Company refutes all allegations that it in any way discriminated against Mr de Oliveira by way of race, family status, conditions of employment, harassment, or training. On receipt of the complaint from the Complainant’s solicitor, a full investigation was undertaken with no evidence being presented that would substantiate any of the allegations being made by Mr de Oliveira.

The Respondent has no sick pay scheme in place. As Mr de Oliveira was on medically certified sick leave and unable to attend work, no wages were properly payable, and no unlawful deduction was made.

CA-00044369-001  Employment Equality Act 1998

This complaint was received by the WRC on 25th May 2021 and when referred back to the Complainant for completion of details, was then received on 18th June 2021.  The complaints refer to matters which occurred on 14th October 2020. 

Section 41 (6) of the Workplace Relations Act 2015 provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Section 41 (8) provides:

“an adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”.

This earliest date for receipt of the complaints is 25th May 2021.  When referred back to the Complainant for completion of details, the completed complaint was then received on 18th June 2021.  The complaints refer to matters which occurred on 14th October 2020.  The Complainant contacted a solicitor in or around that date when his wages ceased due to having been on extended sick leave from his employment.  The solicitor wrote to the Respondent on 9th November 2020 alleging that the Complainant was being bullied and harassed by another employee, a fellow Brazilian.   This complaint was fully investigated by the Respondent.  A report containing the outcome that the complaints were not well founded issued and was given to the Complainant on 17th February 2021.   The complaint of discrimination on grounds of race, harassment, conditions of employment and training was submitted some four months later and some seven months after the alleged latest date of discrimination.   I note that the Respondent’s report into allegations of bullying and harassment which the Complainant made was produced and given to the Complainant on 17th February 2021.  No reasonable cause or explanation has been given for the delay of a further three months in submitting the complaint.  I find where the Complainant was legally represented that the complaint is out of time.

CA-00044369-002   Payment of Wages Act 1991

Section 5 (6) of the Act provides:

Employment Equality Act 1998, out of time.  Payment of Wages Act 1991, not well founded