Complainant

Respondent

Parties

Ian  Metcalfe

Lidl Ireland Gmbh

Representatives

Self-represented

Roland Rowan, instructed by  Fieldfisher Solicitors

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-00056053-001

13/04/2023

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

CA-00056053-003

07/06/2023

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

CA-00058999-001

25/09/2023

The Complainant commenced employment in 2016 and is currently employed as a warehouse operative. The Complainant submits that he was not paid wages which were properly payable to him on 31 March 2023. He referred a complaint (CA-00056053-001) to the WRC under the Payment of Wages Act 1991 in relation to this matter. The Complainant also submits that he was victimised by the Respondent for raising an internal grievance in relation to the non-payment of his wages on 31 March 2023 and for referring the complaint in relation to same to the WRC (CA-00056053-001). The Complainant further submits that he was discriminated against in conditions of employment and harassed on grounds of religion and race following an incident (unrelated to the payment of wages issue) which occurred on 21 June 2023 at his place of work (CA-00058999-001). The Respondent refutes the three complaints.

Evidence of the Complainant (under Oath)

The Complainant submitted that since the commencement of his employment he had always been paid monthly. In March 2023 the Respondent introduced a new payment system called FlexiWage. On 31 March 2023 the Complainant was due a monthly wage of €2,227.16. He did not receive that payment. On 3 April 2023 the Complainant received a partial payment of €556.79. He raised a written grievance on 5 April 2023 in relation to the failure of the Respondent to pay his monthly wage on 31 March 2023. On 6 April 2023 he received a further partial payment of €556.79. On 13 April 2023 the Complainant referred a complaint to the WRC in which he submitted that the Respondent failed to pay wages of €2,227.16 properly payable on 31 March 2023 and that wages of €1,113.58 were owing to him. The Respondent made two further payments of €556.79 on 13 and 20 April 2023.

The Complainant confirmed to the hearing that the Respondent has paid the full sum of wages owing to him (€2,227.16). Notwithstanding this, the Complainant submits that the Respondent breached the Payment of Wages Act 1991 by not paying the full amount of €2,227.16 due on 31 March 2023. Further, the Respondent delayed in dealing with his grievance and did not phone him on 13 April 2023 as had been promised.

The Complainant did not want to receive weekly wage payments. Rather he wanted to be paid his wages monthly as had been the case since the commencement of his employment. The Complainant submitted a written grievance on 5 April 2023 in relation to the failure to pay his monthly wage on 31 March 2023. The Complainant submitted that he was victimised for raising this grievance when the Respondent failed to provide him with: (i) a loss of earnings certificate in a timely manner, and (ii) an accurate loss of earnings certificate. Further, the Complainant was issued with an informal caution for attending for work early to log into the payroll system to check his payslip.

The Complainant confirmed to the hearing that he initially requested a loss of earnings certificate on 27 October 2022. The Respondent advised the Complainant on the same date that he needed to get this form from his solicitor and forward same to the Respondent for completion. On 11 April 2023 the Complainant submitted the form to the Respondent for completion. The Complainant outlined to the hearing, that when he emailed HR Services he received an automated email acknowledging receipt of his email, and in this email HR Services committed as follows: ‘forms and letters will be actioned within 5 working days’. On 12 April 2023, a member of the HR Services team advised the Complainant that the form had been forwarded to payroll for completion. However, despite several written requests (all of which were opened to the hearing) the Complainant did not receive a completed form until 29 May 2023 and this form contained inaccurate dates and figures. The Complainant wrote to the Respondent stating that they had created and circulated a false document. HR responded on 30 May 2023 to say they would escalate the issue and on 31 May 2023 the Complainant received a competed form with accurate details.

The Complainant gave details of an incident on 21 June 2023 during which he was threatened and assaulted by a work colleague. The Complainant submitted that this was a planned attack where the work colleague hit him from behind with a pallet and then shoved his fingers in the Complainant’s face. Members of the management team, who were present in the warehouse at the time, intervened and deescalated the confrontation. The Complainant made a verbal complaint to management about the incident and management informed the Complainant that the matter would be fully investigated. The Complainant confirmed to the hearing that his complaint of discrimination on grounds of race and religion related only to that incident. The Complainant stated that his work colleague discriminated against him and harassed him on that date because of the Complainant’s religion and race. The Complainant submitted that he had a tattoo on his arm of a Celtic cross and that his colleague would have seen this tattoo. The Complainant confirmed to the hearing that he had an issue in relation to this work colleague back in 2022, but that had been resolved and had nothing to do with the Complainant’s race or religion.

The Complainant submitted that he had an ongoing concern for his safety because he had to share toilets and the canteen area with this work colleague. He wrote to the Respondent on several occasions articulating his concerns and advising that he did not wish to work in the same area of the warehouse as the work colleague. Management informed the Complainant that the work colleague would be moved to the chilling area pending the outcome of the investigation. However, on several occasions the work colleague came into and worked near the Complainant. On querying this, the Respondent told the Complainant that the work colleague had to work for a period in the same location because he had been certified as unfit to work in the chilling area.

The Complainant submitted that his work colleague made a counter complaint about him in which the work colleague alleged that the Complainant was ‘a racist’. The Complainant was interviewed on 5 July 2023 as part of the investigation into that complaint. He was told he would receive a copy of the minutes of the meeting but this did not happen, and therefore he was denied an opportunity to comment on or amend these minutes before they were sent to his work colleague. The Complainant had to request a copy of the minutes, which he then received on 28 August 2023. The Complainant clarified for the hearing that his issue with this counter complaint is that HR advised him that there is no longer a live grievance in respect of this matter. The Complainant submitted to the hearing: “but there is one”.

The investigation into the incident of 21 June 2023 is still on-going and the Complainant has not received any update on the outcome of that investigation. The Complainant confirmed for the hearing that he did not raise a formal complaint regarding the investigation into the incident of 21 June 2023. The Complainant clarified for the hearing that his issue with the incident of 21 June 2023 is that the work colleague was put back working with him despite the Complainant being told that the work colleague would be placed elsewhere in the warehouse pending the outcome of the investigation and that the adjustments he had been promised had not been fulfilled by management. The Complainant submitted that he should be kept updated on the progress of the disciplinary investigation into the conduct of his work colleague given that the incident on 21 June 2023 was perpetrated against him. The Complainant added that he did not see any point in mediation as this had been done before with respect to this colleague and that the mediation did not work.

The Complainant opened to the hearing the emails he sent to the Respondent which detailed his concerns as articulated to the hearing. Mr Byrne responded to these emails but in his response, Mr Byrne got details and times incorrect. Further, the Respondent stated they had made adjustments to accommodate the Complainant’s safety concerns, but according to the Complainant, the Respondent did not make any such adjustments as his work colleague was back working in the same general area as him. The Complainant wrote to management again on 12 September 2023 to ask how long the investigation would take as he did not feel safe given his work colleague was working in the same area as him. The Complainant submitted to the hearing: “if he could attack me in front of management, what could he do in the toilets – we were sharing facilities”. Management responded to the Complainant’s email on 14 September 2023 again saying they had made adjustments and that they did not believe the Complainant’s safety to be at risk. The Complainant submitted to the hearing “but they never told me what  they <the adjustments> were”. The Complainant clarified for the hearing that he and his colleague were within 20 or 30 feet of each other and that the work colleague would drive into his work area.  

The Complainant submitted that he is currently on sick leave and that management contacted him stating that he had not complied with absence procedures. The communication was sent to him even though he was on certified leave and it was misleading and inaccurate information, and this type of conduct by the Respondent was exacerbating his illness.

In cross-examination the Complainant confirmed that he was saying he was discriminated against when the Respondent failed to pay his wages on 31 March 2023. The Complainant accepted that several of his colleagues who had been due to receive wages on 31 March 2023, did not receive same until the day after or 3 April 2023. The Complainant was questioned as to how he was discriminated against then if several others had also been impacted, to which the Complainant responded: “well we were all discriminated against then”. Counsel for the Respondent opened a form which the Complainant had been required to complete prior to the switch over to FlexiWage.  The Complainant confirmed that he had been requested to fill out this form prior to 31 March 2023. It was put to the Complainant that the system log (which was opened at the hearing) showed that he had selected weekly pay on this form and not monthly pay. The Complainant responded: “I don’t recall”. Counsel put to the Complainant that the log showed that he attempted to change the payment frequency to monthly on 31 March 2023, but did not submit the change, but in any event, the amendment was too late. It was put to the Complainant that on 1 May 2023 he logged into the system and changed the payment frequency from weekly to monthly. It was put to the Complainant that the reason he received four separate payments of €556.79 was because he had opted for weekly payment intervals on the FlexiWage form and that he received his full wages due in accordance with his instruction to pay weekly as opposed to monthly. It was put to the Complainant that he may not have meant to select weekly payment intervals but that this is what he did. The Complainant accepted that the Respondent had communicated with staff to remind them to elect their preferred payment interval prior to 31 March 2023.

The Complainant confirmed that he and his work colleagues had received a voucher for €50 by way of an apology from the Company for the delay in processing the first weekly amount. The Complainant further accepted that payroll mistakes can happen.

It was put to the Complainant that the Respondent did provide him with an accurate loss of earning certificate and that the 6-week delay in doing so was due to the volume of requests received by the department. The Complainant accepted that it was not an unreasonable delay given the volume of requests received by the department but that “maybe they should get more staff”.

The Complainant was asked if it was the Respondent or the work colleague that he was alleging discriminated against him on 21 June 2023, to which the Complainant responded “both”. The Complainant accepted that he had never engaged in a mediation process previously with this work colleague. Counsel for the Respondent showed the CCTV footage of the incident on 21 June 2023 to the hearing. The Complainant accepted that his work colleague had not hit him with a pallet. The Complainant accepted that his issue with the investigation was limited to the time it was taking to complete same, rather than the investigation itself. It was put to the Complainant that there was no mention of race or religion in any of his correspondence to the Respondent with respect to the incident of 21 June 2023, and that the hearing was the first time his tattoo had been mentioned. It was put to the Complainant that a Celtic cross had nothing to do with Catholicism and was not a religious symbol and at no time had his work colleague ever mentioned the Complainant’s tattoo.  In response the Complainant stated that his colleague would have seen his tattoo and the Irish flag beside the tattoo, but he accepted that his colleague never mentioned the tattoo on 21 June 2023 or any other time.  The Complainant did not accept that his complaint of discrimination had nothing whatever to do with his race and religion.

The Complainant accepted that he did not raise a formal grievance in relation to the investigation process concerning the incident of 21 June 2023. The Complainant was questioned on the adjustments he expected the Respondent to make, and the feasibility for the Respondent in removing the work colleague from the warehouse pending the outcome of the investigation, and that the Respondent had done all that was reasonable in that regard.

The Complainant confirmed that he made several complaints against his work colleague in more recent months including reporting him for hitting a bollard and opening a container of water, and he accepted that these matters had nothing to do with him.

Counsel for the Respondent put it to the Complainant that the Respondent would say in evidence that a reason for the delay in the investigation was due mainly to the absence of the work colleague on parental, annual and sick leave. The Complainant accepted that it would be inappropriate for the Respondent to progress the investigation while the work colleague was on leave. The Complainant accepted that management had informed him that they had no option but to remove the work colleague from the chilling area due to a medical issue. It was put to the Complainant that he had no difficulty working with the work colleague so long as the Respondent was investigating the incident of 21 June 2023. The Complainant disagreed and submitted that he had to take annual leave to avoid working with this colleague.

It was put to the Complainant that all his issues could have been dealt with through mediation, to which the Complainant responded “OK”.

Evidence of Ms Sarah Lloyd (under Affirmation)

Ms Lloyd explained that the Respondent had introduced FlexiWage on a trial basis in the warehouse. This system allows staff to elect weekly, fortnightly or monthly payment intervals interchangeably. Staff can change the payment interval from month to month provided no less than 7 days’ notice is given prior to the date wages are due to be paid. Counsel for the Respondent opened the instruction to the bank concerning the March 2023 payroll payment. Ms Llyod submitted that there was an error in the instruction to the bank which resulted in several staff not receiving their wages on 31 March 2023. Ninety percent of staff got paid on 1 April 2023 and the Complainant and others received payment on 3 April 2023. This was regrettable and senior management from Dublin came to the Newbridge warehouse to apologise in person; made petty cash available; and gave all affected staff a €50 voucher.

Counsel opened a document which showed a recording of the interaction the Complainant had with the FlexiWage system. Ms Lloyd directed the hearing to the ‘parameters’ option and highlighted that the Complainant had selected ‘weekly’ payment intervals prior to 31 March 2023.

The Complainant was given the opportunity to cross-examine Ms Lloyd but declined.

Evidence of Ms Shauna Maguire (under Oath)

Ms Maguire submitted that HR Service served four different ‘regions’ with one Administrator looking after each region. When emails are received by HR Services, the email is categorised into folders and sent to the relevant region for further processing. Ms Maguire was the administrator for the region within which the Complainant was located. In the month the Complainant’s email requesting completion of the earnings certificate was received, Ms Maguire received 1500 queries. Ms Maguire submitted that it was not unusual for a form to take 6 weeks to be completed due to the volume of queries received and that only one person may have been assigned to deal with completion of forms at the relevant time.

In cross-examination the Complainant asked why it took so long to get his form completed, to which Ms Maguire responded that there was only one employee dealing with these requests, and the delay was due to the volume of requests received that month.

Evidence of Mr Philip Byrne (under Oath)

Mr Byrne explained that part of his role was to complete investigations into disciplinary matters, but that as he had witnessed the incident on 21 June 2023, he did not lead that investigation. Mr Byrne submitted that the work colleague involved in the incident on 21 June 2023 took parent or parental leave in August 2023, and annual leave and sick leave in July and September which resulted in a delay in concluding the disciplinary investigation into the incident. Further, the deciding manager took two weeks annual leave. Mr Byrne told the hearing that he expects the investigation to be concluded before the end of November 2023. 

Evidence of Mr Aaron Kearney (under Oath)

Mr Kearney submitted that he was in the warehouse on 21 June 2023 when the incident occurred and that he heard what was said by the Complainant and the other work colleague involved in the incident. The Complainant told the hearing the words he heard and he confirmed that there was no mention of race or religion or anything connected thereto. Mr Kearney detailed how the issue was deescalated; that the work colleague was sent home with pay; and that he requested CCTV footage of the incident. Mr Kearney outlined that the Complainant and the work colleague continued to work within the same area in June and July as there was sufficient space in the warehouse to ensure that they were not near one another and no concerns arose during this time. Mr Kearney submitted that he was the person the Complainant would report any issues or concerns to and that at no time did the Complainant report any issues concerning race or religion. Mr Kearney explained that the work colleague had been directed to work in the chilling area initially but that he had to be moved to the ambient area as he had a medical certificate which stated he could not work in that area due to a medical issue. Mr Kearney submitted that it was not the policy of the Respondent nor was it appropriate to keep the Complainant updated on a disciplinary matter concerning another employee. Mr Kearney submitted that he had offered the Complainant the option of mediation but that he refused this offer.

In cross-examination it was put to Mr Kearney that while the warehouse was a very big building, the Complainant was still required to work in the same area as the other colleague.

Concluding Remarks

Counsel submitted that the Respondent acknowledges that due to a computation error, the Complainant did not receive his first weekly wage due on 31 March 2023 until 3 April 2023. However, the Respondent fully apologised for this at the time; made petty cash available; and gave the Complainant and all other employees affected a €50 voucher. The Respondent made every effort to resolve the mistake and minimise its impact. It is the Respondent’s case that this was a computation error and not an unlawful deduction for the purposes of the Payment of Wages Act 1991.

The Complainant was not victimised for raising a grievance or referring a complaint to the WRC. The Complainant’s issue is that the form was not filled out as quickly as he would have liked. It took 6 weeks to provide the completed form which was not unreasonable given the volume of work and number of staff within that department. The Complainant has not selected any of the nine grounds in relation to the victimisation complaint. The Complainant did not make an application to amend his complaint so that the complaint of victimisation could be heard under an alternate statute. Rather he is satisfied that he brought his complaint under the correct statute.

The burden of proof rests on the Complainant to establish that he was treated less favourably on one of nine grounds. The evidence shows at its height that the Complainant and his work colleague bumped into each other. There is nothing to suggest that the incident had anything to do with the Complainant’s race or religion.  The Complainant suggests that the Respondent should have dealt with the matter differently and more expeditiously – again there is nothing to suggest that the way the Respondent dealt with the matter had anything to do with race or religion.  Finally, there was no evidence to suggest the Complainant’s safety was at risk with respect to his work colleague.

CA-00056053-001

Law

Section 5(1) of the Payment of Wages Act 1991 (“the 1991 Act”) provides that an employer shall not make a deduction from the wages of an employee unless the deduction is required or authorised to be made by virtue of any statute or term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or the employee has given his prior consent in writing to it. 

The 1991 Act envisages two situations with respect to a deduction. The first is where the employee receives less wages than they are due, the second is where they receive no wages at all. Section 5(6) of the 1991 Act provides:

“(a) Where 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 (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

Section 6(1) of the 1991 Act provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of as respects a deduction made by an employer from the wages or tips or gratuities 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— the net amount of the wages, or tip or gratuity as the case may be (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, or (ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.”

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. 

Findings

I accept the evidence of the Respondent that the Complainant selected the weekly payment option on the FlexiPay system. Therefore the sum of wages properly payable on 31 March 2023 was €556.79 (the equivalent of one weeks’ pay), and not €2,227.16 (the equivalent of one months’ pay) as submitted by the Complainant. It is common case that the Complainant did not receive the weekly wage of €556.79 due on 31 March 2023 until 3 April 2023. The Respondent told the hearing that this error arose due to a mistake on the instruction sent to the bank which resulted in a delay of  3 days in lodging wages into the Complainant’s bank account, and a delay of 1 to 3 days for other employees similarly affected. The Respondent submitted that the mistake on the instruction to the bank was a ‘computational error’ within the meaning of s 5(6) of the 1991 Act. I do not accept that the error on the instruction to the bank falls within the meaning of a ‘computational error’ as it was an error in relation to the date the wages fell due to be paid, rather than the sum of wages that were properly payable. I am satisfied that a deduction was made from the Complainant’s wages on 31 March 2023 within the meaning of the s 5(6)(b) of the 1991 Act, in so far as the weekly wage of €556.79 properly payable on 31 March 2023 was not paid until 3 April 2023, and that this deduction was not authorised or consented to by the Complainant and the deduction was not due to a computational error. Therefore, I find this complaint under the 1991 Act is well-founded in part. I accept that the Respondent apologised to all staff affected by the delay in paying wages due on 31 March 2023; it went to considerable efforts to mitigate against the error; and it gave all affected employees a voucher by way of an apology. It is common case that the Complainant received the full sum of wages (€556.79) properly owing to him by 3 April 2023 and has received all wages on the date they fell due thereafter. Therefore, I find no compensation within the meaning of s 6(1) is payable to the Complainant.

CA-00056053-003 & CA-00058999-001

Law

The Employment Equality Act 1998-2015 (“the Acts”) promotes equality in the workplace and provides 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 race 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.

The Acts defines harassment (a form of discrimination) as unwanted conduct which is related to any of the nine discriminatory grounds.

Section 14A(2) of the Acts provides:

“If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable—(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing . . . the victim or any class of persons which includes the victim, and (b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.”

Section 14A(7) of the Acts provides:

“(a) In this section— (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds . . . (b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

An employee cannot be victimised (a form of discrimination) for having made a complaint of discrimination to the employer.

Section 74(2) of the Acts provides:

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to— (a) a complaint of discrimination made by the employee to the employer . . . .”

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”.

Findings

CA-00056053-003

The Complainant contended that the failure to pay his wages on 31 March 2023 was an act of discrimination contrary to the Acts.

The burden of proof rests on the Complainant to establish that he was treated less favourably in relation to the non-payment of wages on 31 March 2023 on one of nine grounds. I find that the Complainant has not discharged that burden. The Complainant was unable to identify which of the nine grounds his claim of discrimination was predicated on. Therefore I find this element of his complaint of discrimination is not well-founded.

The Complainant submitted that he was victimised for raising a grievance in relation to the non-payment of wages on 31 March 2023, and for referring a complaint in relation to same to the WRC. The Complainant submitted that the adverse treatment included the failure of the Respondent to provide him with a loss of earnings certificate in a timely manner, and an accurate loss of earnings certificate. Further, the Complainant was issued with an informal caution for attending for work early to log into the payroll system to check his payslip.

For the purposes of the Employment Equality Acts 1998-2015 under which this complaint is brought, an employee cannot be victimised for having made a complaint of discrimination to the employer. The Complainant made a complaint in relation to the non-payment of his wages both to the Respondent and the WRC, but at no time did he say or infer in his payment of wages complaint, either to the Respondent or the WRC, that the failure to pay wages on 31 March 2023 was an act of discrimination. It was only during cross-examination did the Complainant submit that the deduction from his wages on 31 March 2023 was an act of discrimination. Notwithstanding the latter, no evidence whatever was proffered during the hearing by the Complainant which would give rise to a presumption that the failure of the Respondent to pay wages due on 31 March 2023, or any of the alleged adverse treatment said by the Complainant to have occurred because he made a complaint in relation to the failure to pay wages on 31 March 2023, was predicated on the Complainant falling within any of the nine grounds under the Acts. Therefore I find this element of the complaint is also not well-founded.

CA-00058999-001

The Complainant confirmed to the hearing that this complaint of discrimination (harassment) related to an incident which occurred on 21 June 2023. The Complainant stated that his work colleague discriminated against him and harassed him on that date because of the Complainant’s religion and race. The Complainant submitted that he had a tattoo on his arm of a Celtic cross and that his colleague would have seen this tattoo. The Complainant confirmed to the hearing that he had an issue in relation to this work colleague back in 2022, but that had been resolved and that incident in 2022 had nothing to do with the Complainant’s race or religion. The Complainant was asked in cross-examination if it was the Respondent or the work colleague that he was alleging discriminated against him on 21 June 2023, to which the Complainant responded “both”.

As noted above, a Complainant must establish both (a) the primary facts upon which they rely and (b) that those facts are of sufficient significance to raise an inference of discrimination. I have carefully considered all the evidence submitted by the Complainant in this case, and I find that the Complainant has not proffered any evidence whatever to support his contention that the incident itself on 21 June 2023 or the way the Respondent dealt with the incident had anything whatever to do with the Complainant’s race or religion. As noted by the Labour Court in Valpeters, mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Complainant’s assertion that his work colleague saw a tattoo of a Celtic cross and the Irish flag on the Complainant’s arm falls significantly short of what is required to raise a presumption of discrimination.

I find the Complainant has not discharged the burden of establishing an inference of discrimination and therefore the burden of proof has not shifted to the Respondent to prove that no unlawful discrimination took place.

CA-00056053-001

I decide this complaint under the Payment of Wages Act 1991 is well-founded in part. I award no compensation.

CA-00056053-003

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

CA-00058999-001

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

Unlawful deduction. Discrimination. Victimisation. Harassment.