Complainant

Respondent

Parties

Juris  Akmentins

Queen Of Clean Services LTD

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-00053995-001

30/11/2022

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

CA-00053995-002

30/11/2022

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

CA-00053995-003

30/11/2022

The complainant commenced employment with the respondent on 15 September 2022 until his dismissal on 3 November 2022. The complainant referred two complaints under the Payment of Wages Act 1991 alleging: (i) the respondent made an unlawful deduction from his pay and (ii) he did not receive appropriate pay in lieu of notice of termination of employment.  The complainant also referred a complaint under the Employment Equality Acts 1998-2015 alleging discrimination on grounds of gender and religion in relation to access to employment; training; and conditions of employment. The respondent denies all claims.

Evidence of the Complainant (under oath)

The complainant outlined that he previously worked for the respondent and that the respondent contacted him asking if he would work for the company again. He agreed to this. The company were happy to see him re-commence employment with them. They said to him ‘you know what to do’ and he agreed because he had previously performed the work. There were no issues with his performance, and no concerns were brought to his attention. On 3 November 2022 the Operations Manager met with the complainant. She informed the complainant that she was not happy with his work. The complainant said, ‘fair enough’ and asked if they could discuss the concerns. The Operations Manager said no and that they did not require the complainant anymore. The complainant stated he was shocked as he had received no feedback since commencing employment two months earlier, and that normally issues of concern would be highlighted. The complainant stated that it was unfair to end the employment relationship in that manner. The Operations Manager told the complainant that he would be paid until 11 November 2022 and that he could work this period or not, but either way he would be paid until the 11 November 2022. The complainant stated that he was paid up to the 11 November but that he should have received a further weeks’ pay in lieu of notice. The complainant submitted that the failure to pay one weeks pay in lieu notice was an unlawful deduction under the Payment of Wages Act 1991. The complainant contended that he is due €517.98 pay in lieu of notice.

The complainant confirmed that he contacted a supervisor on 5 November 2022 and handed back his keys. He told the supervisor about his conversation with Ms Ní Ghionnaín on 3 November 2022 and described feeling as if he was losing it as it was the first time he had ever been dismissed from employment. The complainant stated that he handed back the keys in a hurry because he was stressed.

In relation to the complaint under the Employment Equality Acts 1998-2015, the complainant submitted that ‘maybe I got it a little bit wrong, I didn’t understand, maybe I got this stage of the complaint wrong’. As the complainant was unrepresented, I explained the burden of proof under the Employment Equality Acts 1998-2015, to which the complainant responded: ‘I don’t have any examples of being treated differently on the grounds of gender or religion’. The complainant added that the ‘main thing for me is the pay, I’m not interested in the equality complaint’. The complainant added that he wished for the Adjudication Officer to issue a decision under the Employment Equality Acts 1998-2015, but that he did not have any examples of being discriminated against.

Evidence of Máire Bríd Ní Ghionnaín (under oath)

Ms Ní Ghionnaín is the Operations Manager for the respondent. Ms Ní Ghionnaín outlined that the complainant had been spoken to about his performance on a few occasions. She met with the complainant on 3 November 2022 and gave him one weeks’ notice of the termination of his employment. The complainant was advised that he could work out the notice period if he wished, but that he was free not to and that he would be paid up to and including the 11 November 2022 regardless of whether he worked the week or not. The complainant confirmed that he would work out his notice and on that basis he was placed on the roster for the following week. The complainant was not rostered to work on 4 & 5 November 2022 but was rostered to work on 6 November 2022. Prior to 6 November 2022 the complainant returned keys and told a supervisor that he would not be working for the respondent any further. The complainant did not attend for work on 6 November 2022 as rostered. On 7 November 2022 the complainant asked Ms Ní Ghionnaín if he could work. This request was declined as Ms Ní Ghionnaín was satisfied that, as permitted by her, the complainant had decided not to work out his notice by handing the keys back and advising a supervisor of same. The complainant was paid regardless until the 11 November 2022 as payment in lieu of notice.

Ms Ní Ghionnaín stated that she was shocked to learn of a complaint of discrimination under the Employment Equality Acts. The company has a gender balanced workforce and at no time does the company ask or know the religious beliefs of staff. Ms Ní Ghionnaín denied that the complainant was discriminated against.

CA-00053995-001

Law

The Employment Equality Acts 1998 to 2015 (“the Acts”) promote equality in the workplace and provide protection against discrimination, harassment, and victimisation. An employer cannot discriminate against an employee in relation to several areas including conditions of employment. The Acts prohibit discrimination on nine grounds, including gender and religion. Discrimination occurs when one person is treated less favourably than another is, has been or would be treated, on one of the nine grounds. The employee must demonstrate that they have been treated less favourably than a comparator.

Section 85A(1) of the Acts 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.”

The complainant is required to establish facts from which discrimination can be inferred. It is only when this burden is discharged does the burden shift to the respondent to show that no unlawful discrimination took place. The Labour Court in Southern Health Board v Mitchell [2001] ELR 201 considered the extent of this evidential burden on a complainant and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. 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 is no infringement of the principle of equal treatment.”

Therefore a complainant must establish both the primary facts upon which they rely and that those facts are of sufficient significance to raise an inference of discrimination.  In Valpeters v Melbury Developments [2010] ELR 64, the Labour Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

To determine whether the complainant has established a prima facie case a three-tier test is employed: (1) the complainant must establish that he is covered by the relevant discriminatory ground; (2) he must establish that the specific treatment alleged has actually occurred; and (3) it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

Findings

The complainant confirmed to the hearing that he had no examples of being treated in a discriminatory manner by the respondent and that he had gotten this part of his complaint ‘wrong’. Accordingly, I find that the complainant has not established a prima facie case of discrimination.

CA-00053995-002

Law

Section 1 of the Payment of Wages Act 1991 (“the 1991 Act”) defines wages as:

“. . . any sums payable to the employee by the employer in connection with his employment, including . . . (b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice . . . .”

Section 5(1) of the 1991 Act provides that an employer shall not make a deduction from the wages of an employee unless such a deduction is authorised or consented to.

Findings

The complainant contends that he did not receive appropriate pay in lieu of notice of termination of employment. The complainant submitted he is owed one week’s wages in lieu of notice.

The High Court in Marek Balans v Tesco Ireland Limited [2020] IEHC 55,outlined that when considering a complaint under the 1991 Act, it must first be established the wages which were properly payable before considering whether a deduction had been made. 

The complainant commenced employment with the respondent on 15 September 2022 until his dismissal on 3 November 2022 (7 weeks). Section 4(1) of the Minimum Notice and Terms of Employment Act 1973 provides “ . . . 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” (emphasis added). The complainant was in the employment of the respondent for less than 13 weeks. Accordingly the complainant is not entitled to statutory minimum notice as provided for under s 4 of the Minimum Notice and Terms of Employment Act 1973. No evidence was provided to the hearing of a contractual notice entitlement. It was common case that the respondent offered the complainant one week’s notice from 3 November to 11 November 2022. It is common case that the complainant was invited to work out that weeks’ notice or that he could choose not to do so, but that he would be paid regardless. The complainant confirmed he was paid up to and including the 11 November 2022. I find that the complainant was paid in lieu of notice, notwithstanding the absence of a statutory or contractual entitlement to same.

CA-00053995-003

The complainant confirmed to the hearing that this is a duplicate of complaint CA-00053995-002.

CA-00053995-001

I decide that this complaint under the Employment Equality Acts 1998-2015 is not well-founded.

CA-00053995-002

I decide that this complaint under the Payment of Wages Act 1991 is not well-founded.

CA-00053995-003

I decide that this complaint under the Payment of Wages Act 1991 is not well-founded.

Payment in lieu of notice. Failure to establish a prima facie case of unlawful discrimination.