ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00034568(This case is conjoined with ADJ 39845)
Parties:
| Complainant | Respondent |
Parties | Teresa Tyler | Legal Aid Board |
Representatives | Appeared In Person to address postponement request only | Shane Costelloe Holmes O'Malley Sexton Solicitors |
Complaints:
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-00045492-001 | 01/08/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00045492-002 | 01/08/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00045492-003 | 01/08/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00045492-004 | 01/08/2021 |
Date of Adjudication Hearing: 28/11/2022
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 6 of the Payment of Wages Act, 1991, Section 79 of the Employment Equality Acts, 1998 – 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
On August 1, 2021, the Complainant, a Managing Solicitor with the Respondent Public Body, lodged 4 complaints before the WRC. 1 Payment of Wages claim no 1 2 Payment of Wages claim no 2 3 Claim of Discrimination on Family status 15 July 2021 4 Claim of Discrimination on Disability grounds 15 July 2021. The Respondent was placed on notice of the 4 claims on 23 August 2021. The Complainant lodged a further set of complaints and one dispute in April 2022 in the conjoined case of Adj 39845
On September 8, 2022.Both parties were invited to hearing in this case and in the conjoined case of ADJ 39845 on November 28, 2022. On that day, both Parties were invited to make prehearing outline submissions.
On 24 November 2022 I received the Respondent outline submission, which the Complainant confirmed that she had already received and read. In my preparation for hearing on Friday 25 November 2022, I learned that the Complainant had been unsuccessful in seeking to postponement the hearing in these cases. The Complainant came to hearing and introduced herself as a Managing Solicitor at the Respondent Legal Aid Board. She had not filed the requested prehearing submissions. The Respondent came to hearing explaining that the author of the Outline submission was ill, and Mr. Costello would be running the case for the Respondent. An application for postponement of both cases followed by the Complainant. |
Summary of Complainant’s Case:
Application for Postponement of Hearing for 28 November 2022 The complainant presented to hearing with the support of two walking aids. She had made an earlier enquiry whether the WRC could provide her with a wheelchair? She was advised that, while the office was wheelchair accessible, the WRC did not provide wheelchairs for service users. At 10 am, the commencement time notified to the parties, I went to call both parties to hearing, only to find that the complainant had not yet arrived. I met the Complainant alighting from the Lift in the company of the Receptionist and I allowed her some time to compose herself prior to commencing the hearing. At 10.10 am the Complainant presented to the hearing room, introduced herself and signed the hearing attendance sheet for both conjoined cases. She proceeded to outline that she wished to make an application to postpone the case. She outlined that she had made an earlier application to postpone the case on 18 November 2022 and this had been refused on Friday November 25, 2022. The Complainant helpfully clarified that she had some doubt about the notification of the conjoined cases but submitted that her application covered both cases set for hearing on November 28, 2022. She explained that she had just returned from a period of extended sick leave, and she had been unable to gather documentation material to her case from the Respondent. The Complainant proceeded to ventilate the circumstances of the application made for postponement on Friday, November 25.I explained that I was not party to that decision and had noted a declined application on the file alongside a request for a wheelchair. I asked her to clarify what grounds accompanied her Monday, November 28, 2022, application? I explained the test set down for a same day postponement. She listed three documents awaited 1 An NSSO confirmation of precise repayments from 2021 2 A copy of a document outlining 11 reminder documents (separate recoupments total €15,000) 3 Copy of Legislative Policy which outlined the basic calculation of TRR. Given the detail in the Respondent outline submission, which had arrived with a comprehensive set of appendices, I asked Complainant whether these matters had been addressed there. she answered “in part “
The Complainant added that any progression of the case by the WRC would be prejudicial to her and would amount to a breach of fair procedures in the continued absence of these documents. The Complainant clarified that her sick leave ran from 7 April 2022-25 November 2022. Before taking a break to consider my decision on the application for postponement, I asked the complainant if she had any reason why she had not answered the repeated requests for an outline submission in her case? She confirmed that she had been out of work from April 2022, which proved a difficulty for her in gathering necessary information from a third party. I explained that the State had allocated an entire business day to hear these cases and that exceptional circumstances formed the test for a same day postponement request, that is a higher threshold than the earlier postponement request. I asked if there were any further points for consideration from Friday last? None were put forward. I took 10 mins to consider the application. I informed both parties that I had decided not to grant the requested postponement and would press on with the hearing in the substantive case. I gave the reasons that now follow 1 In making a complaint before the WRC, reasonable preparation of a case is expected. The WRC had made repeated requests for an outline submission from the Complainant to no avail. I just wanted to know the facts of what had occurred now at hearing. 2 I was satisfied that the narrative of the complaint contained submitted dates of deduction of salary 3 The Complainant had not submitted any record of her efforts at securing the referred to documents from the respondent 4 No Medical evidence was tendered in the complainant’s case. She had stated that she had been deemed fit to be at work. 5 The complaints originated in August 2021, when the Complainant was at work. It is reasonable to expect a complainant to compile and particularise their case. 5A the test for an application for postponement on day of hearing is exceptional grounds which is higher than the earlier test. I had not heard circumstances which amounted to exceptional grounds. 6 I informed the Parties that I was applying the Supreme court Case of Zalewski as outlined in their prehearing documentation. I would proceed with the hearing and take evidence under oath /affirmation with any further clarifications from me. I explained the legislative changes that had followed in WRC procedures from July 2021. If I identified a document necessary to my inquiry/investigation, I informed the Parties that I would use my vested powers and request sight of this document. I would also provide the Parties an opportunity to make submissions on the document, if necessary My role here was to administer Justice fairly to both Parties. I asked the Complainant for comments and her response was “I am in your hands “, which for me, at least, suggested an acceptance of the outcome. In response to the Respondent comments, Ms Tyler suddenly communicated that she intended to reserve her position and would now” withdraw”. I asked her if she was withdrawing her case. she clarified that she was not withdrawing her case but her presence at hearing as she believed that a progression of the case would be prejudicial to her. The Complainant accepted that she was invited to give evidence and that she carried the burden of proof in the cases. I explained that I had communicated my decision to progress with the cases with a firm plan to manage the case in the time allotted and that the complainants leaving the room would result in her abandoning her case and a recorded “no show “on the substantive case. The Complainant said she understood that. I spoke to both Parties when I said I would proceed with the case and issue a decision for both parties with right of appeal to the Labour Court. The Complainant left the room at 10.50 am. I am satisfied that the Complainant understood that her application for postponement had not succeeded, and the case was proceeding in her absence. Substantive Issue: I have decided to summarise the narrative submitted by the complainant on her complaint form. CA-00045492-001 Payment of Wages Act, 1991 The Complainant recorded that she had experienced a deduction in pay amounting to €2,360 on 8 April 2021 on two days’ notice The sums of €590 x 4 were mentioned. The complainant wrote that she was unclear on “the basis of overpayment “
CA-00045492-002 Payment of Wages Act, 1991 The Complainant recorded that she had experienced a deduction in pay amounting to €347 .00 on 15 July 2021 on six days’ notice The sums of €347 mentioned. The complainant wrote that the deduction had related to “a purported overpayment”
CA-00045492-003 Employment Equality Act The Complainant wrote that she had been discriminated against on family grounds on her complaint form submitted to the WRC on August 1, 2021. she gave the most recent date of discrimination as 15 July 2021. “… Because I was not in a position to accept the validity of the recoupment exercise due to their failure to provide appropriate reasons and guidance for same, my Employer refused to consider a postponement or a rescheduling of the recoupment exercise. I believe that as (family status) I have been unfairly discriminated against” The Complainant did not particularise the complaint further or make any reference to seeking information in accordance with S 76 of the Act. She did not file an outline submission in her case. CA-00045492-004 Employment Equality Act The Complainant wrote that she had been discriminated against on grounds of disability on the complaint form dated August 1, 2021, where she confirmed that the most recent date of discrimination was 15 July 2021. she added that the Respondent was on notice of her disability “Despite my health situation, my Employer has continued to disregard my requests to halt five separate recoupments from my salary since April 2021 for a net sum of €2707 …. I believe my Employer has negligently failed to consider my disability status or have disregarded it in their interactions with me to date, in this regard The Complainant did not particularise the complaint further or make any reference to seeking information in accordance with S 76 of the Act |
Summary of Respondent’s Case:
Application for Postponement of Hearing for 28 November 2022 The Respondent opposed the application for postponement. Mr Costello stated that the letters referred to by the complainant were already in her possession. He outlined that these letters, referred to as exchanges with Human Resources had been posted to the complainant and she would have seen them at “some point “ He asked for the case to proceed. The Respondent asked for clarification of the notification of the second joined case ADJ 39845 and accepted that it had issued on 8 September 2022. I asked the Respondent for comments to my decision on the declined postponement The Respondent accepted the outcome and expressed a view that the matter could proceed. Substantive Case: The Respondent Representative outlined that ADJ 39845, was a duplicate of ADJ 34568, the instant case. By means of written submission, the Respondent Representative outlined that the complainant was employed as a Managing Solicitor at the Respondent Legal aid Board A copy of her contract of employment and Circular 07/2018 Civil Service Circular on “Recovery of Salary, Allowances and Expenses “were both exhibited. He outlined that the complainant had been placed on temporary rehabilitative remuneration (TRR) which was communicated to the complainant at her home by letter dated April 6, 2021, an overpayment had followed. There was also a 10-day delay in the complainant attaining her increment as a result. TRR is not reckonable for increments NSSO sent an instruction to payroll on 3 March 2021 confirming payment of TRR at €17, 901 for 9 named datelines. An overpayment arose following TRR and delayed increment. The Complainant sought a stay on the planned recoupment but was denied due the payment coming under “delayed pay adjustment “and imperatives arising from Section 2.7 Circular 7/2018. Circular 9/1987 governed the detail on the delayed increment. The Respondent set out the extent of the Complainants sick leave record and the changes in the National Sick leave scheme, which the service was bound to follow. The Respondent detailed the inter party correspondence and supportive measures directed at the complainant which followed through April 2021 and submitted that the claims under the Payment of Wages Act were misconceived.
CA-00045492-001 Payment of Wages Act, 1991 The Respondent detailed the chronology surrounding the over payment and the rationale which accompanied the recoupment by Circular. CA-00045492-002 Payment of Wages Act, 1991 The Respondent detailed the chronology surrounding the over payment and the rationale which accompanied the recoupment by Circular.
CA-00045492-003 Employment Equality Act The Respondent denied discrimination on family status grounds. Mr Costello submitted that the complainant had not advanced her case under this Act at hearing. He clarified that the complainant had not advanced a grievance locally prior to referring this case to the WRC and had not expanded on what she meant by Family status. The Respondent was aware of the complainant’s family circumstances but were unaware of how she was linking this status to the claim for discrimination. CA-00045492-004 Employment Equality Act The Respondent denied discrimination on disability grounds. Mr Costello submitted that the complainant had not advanced her case under this Act at hearing. He clarified that the complainant had not advanced a grievance locally prior to referring this case to the WRC and had not expanded on what she meant by disability. The Respondent was not aware of the complainant’s disability.
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Findings and Conclusions:
I have been requested to record four decisions in the claims lodged by the complainant in August 2021.
In arriving at my decisions, I have taken account of the presiding complaint form dated August 1, 2021.
I have had regard for the sequential requests made for outline submissions addressed to both Parties in advance of the hearing date. I have had regard for the respondent outline submission and oral arguments.
I have had to have regard for the Complainants regrettable behaviour in walking out of her own hearing on foot of a refusal to grant a postponement on the day.
Preliminary Issue:
While the Complainant appeared to accept the outcome of my deliberations surrounding her postponement request at first. She promptly decided to withdraw from the hearing.
I am satisfied that the complainant fully understood the implications for her decision as she confirmed that she understood that she was abandoning her hearing.
The Complainant is a Practicing Managing Solicitor and not a Lay Litigant. She had confirmed that she did not intend to have representation in the case or seek any special facilities when attending a hearing on her initial complaint form before the WRC.
It is clear to me that the Complainant presented at hearing for the sole purpose of obtaining a postponement and did not have a case prepared. She did not arrive to hearing with either her complaint forms or a copy of the Respondent submission to aid her presentation.
I engaged in a look back on the Friday application for postponement and noted that the complainant received confirmation of refusal and recorded that she was presenting to hearing on Monday to apply once more for a Postponement.
I have addressed the reasons given for my decision to refuse to grant the application for postponement on the cusp of a full day hearing.
I am satisfied that the Complainant abandoned her own hearing in the full knowledge of the implications for that departure. I did not find merit to her application for postponement on the hearing day as it did not meet the test for exceptional circumstances.
I move now to the substantive case:
Substantive Case
CA-00045492-001 Payment of Wages Act, 1991
The Complainant has submitted that she had sustained wage deduction of €2,360 on 8 April 2021.
The Respondent has categorised this a reconciliation of an overpayment and has argued that the complaint is misconceived.
The Complainant has abandoned her case at hearing and has been recorded as a “no show in her case “
I am bound to progress this case to decision in accordance with my powers under section 41 of the Workplace Relations Act, 2015
The Law on Payment of Wages is set out in Section 5 of the Act.
Regulation of certain deductions made, and payments received by employers.
5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—
(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,
(b) the deduction (or payment) is required or authorised to be made by virtue of a 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
(c) in the case of a deduction, the employee has given his prior consent in writing to it.
Section 5(5) Nothing in this section applies to—
(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—
(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—
(I) any overpayment of wages, or
(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment,
made (for any reason) by the employer to the employee, and
(ii) the amount of the deduction or payment does not exceed the amount of the overpayment,
or
(b) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision, or
(c) a deduction made by an employer from the wages of an employee in pursuance of a requirement imposed on the employer by virtue of any statutory provision to deduct and pay to a public authority, being a Minister of the Government, the Revenue Commissioners or a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014)], amounts determined by that authority as being due to it from the employee, if the deduction is made in accordance with the relevant determination of that authority, or
(d) a deduction made by an employer from the wages of an employee in pursuance of any arrangements—
(i) which are in accordance with a term of a contract made between the employer and the employee to whose inclusion in the contract the employee has given his prior consent in writing, or
(ii) to which the employee has otherwise given his prior consent in writing,
and under which the employer deducts and pays to a third person amounts, being amounts in relation to which he has received a notice in writing from that person stating that they are amounts due to him from the employee, if the deduction is made in accordance with the notice and the amount thereof is paid to the third person not later than the date on which it is required by the notice to be so paid, or
(e) a deduction made by an employer from the wages of an employee, or any payment received from an employee by his employer, where the employee has taken part in a strike or other industrial action and the deduction is made or the payment has been required by the employer on account of the employee’s having taken part in that strike or other industrial action, or
(f) a deduction made by an employer from the wages of an employee with his prior consent in writing, or any payment received from an employee by an employer, where the purpose of the deduction or payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employee to the employer, or
(g) a deduction made by an employer from the wages of an employee where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employer to the court or tribunal or a third party out of the wages of the employee.
The complainant has introduced her complaint as an overpayment in the narrative on the complaint form.
The Respondent has outlined that the matter of overpayment was addressed through the provisions of an exhibited Government Circular on the application of TRR. The Respondent clarified at hearing that the complainant had not addressed this matter through a grievance procedure locally prior to referral to the WRC
The Respondent set out the context and background to the overpayment and exhibited the chronology of documentation associated.
In the absence of a ventilation of the claim at hearing by its author. I must conclude that the overpayment of €2,360 is comprehended by section 5(5) (a) of the Act and is an overpayment.
I would have preferred if this matter had been progressed internally through the grievance procedure in the first instance.
I find the complaint Is not well founded.
CA-00045492-002 Payment of Wages Act, 1991
The Complainant has submitted that she had a wage deduction of €347 on 15 July 2021
The Respondent has categorised this a reconciliation of an overpayment and has argued that the complaint is misconceived.
The Law on Payment of Wages is set out in Section 5 of the Act.
Regulation of certain deductions made, and payments received by employers.
5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—
(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,
(b) the deduction (or payment) is required or authorised to be made by virtue of a 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
(c) in the case of a deduction, the employee has given his prior consent in writing to it.
Section 5(5) Nothing in this section applies to—
(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—
(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—
(I) any overpayment of wages, or
(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment,
made (for any reason) by the employer to the employee, and
(ii) the amount of the deduction or payment does not exceed the amount of the overpayment,
or
(b) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision, or
(c) a deduction made by an employer from the wages of an employee in pursuance of a requirement imposed on the employer by virtue of any statutory provision to deduct and pay to a public authority, being a Minister of the Government, the Revenue Commissioners or a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014)], amounts determined by that authority as being due to it from the employee, if the deduction is made in accordance with the relevant determination of that authority, or
(d) a deduction made by an employer from the wages of an employee in pursuance of any arrangements—
(i) which are in accordance with a term of a contract made between the employer and the employee to whose inclusion in the contract the employee has given his prior consent in writing, or
(ii) to which the employee has otherwise given his prior consent in writing,
and under which the employer deducts and pays to a third person amounts, being amounts in relation to which he has received a notice in writing from that person stating that they are amounts due to him from the employee, if the deduction is made in accordance with the notice and the amount thereof is paid to the third person not later than the date on which it is required by the notice to be so paid, or
(e) a deduction made by an employer from the wages of an employee, or any payment received from an employee by his employer, where the employee has taken part in a strike or other industrial action and the deduction is made or the payment has been required by the employer on account of the employee’s having taken part in that strike or other industrial action, or
(f) a deduction made by an employer from the wages of an employee with his prior consent in writing, or any payment received from an employee by an employer, where the purpose of the deduction or payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employee to the employer, or
(g) a deduction made by an employer from the wages of an employee where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employer to the court or tribunal or a third party out of the wages of the employee.
The complainant has introduced her complaint as an overpayment in the narrative on the complaint form.
The Respondent has outlined that the matter of overpayment was addressed through the provisions of an exhibited Government Circular on the application of TRR. The Respondent clarified at hearing that the complainant had not addressed this matter through a grievance procedure locally prior to referral to the WRC
The Respondent set out the context and background to the overpayment and exhibited the chronology of documentation associated.
In the absence of a ventilation of the claim at hearing by its author. I must conclude that the overpayment of €347 is comprehended by section 5(5) (a) of the Act and is an overpayment.
I would have preferred if this matter had been progressed internally through the grievance procedure in the first instance. I say this as the Complainant states on her complaint form that she did not understand the process of recoupment of salary.
I find the complaint Is not well founded.
CA-00045492-003 Employment Equality Act
I have been requested to reach a decision on whether the Complainant was discriminated against on family status grounds as provided in Section 6 and in contravention of Section 8 of the Employment Equality Acts 1998 –2015 .
Family status is outlined in section 2 and section 6(2) (c) of the Act as:
“Family status” means responsibility—
(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or
(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,
and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability.
Discrimination for the purposes of this Act.
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") which—
(i) exists,
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
(b) a person who is associated with another person—
(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and
(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]
(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—
(a) ……….
(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),
As a first step, a complainant must satisfy the provisions of the burden of proof in the case which is supportively structured for aggrieved workers in Section 85 A of the Act as:
Burden of proof.
85A.— (1) Where in any proceeding’s 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.
(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.
(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.
(4) In this section "discrimination" includes—
(a) indirect discrimination,
(b) victimisation,
(c) harassment or sexual harassment,
(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.
In the recently updated Employment Equality Law, 2nd edition, 2022 Bruton, Kimber and Bolger, the authors expand on the genesis of the burden of proof and reflect the leading decision on the shifting burden of proof identified by the Labour Court in the seminal case of Southern Health Board and Dr Teresa Mitchell in [2001] ELR 201
“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.”
In the instant case, the Complainant departed the hearing room, almost immediately on being informed that her second request for a postponement within 4 days had been refused.
I am satisfied that she departed in the full knowledge that she held the burden of proof in the case and has not identified a comparator or submitted an invited outline submission.
The Respondent has denied the claim.
For my part, I am satisfied that the complainant was notified that her hearing was progressing and afforded reasons for this progression.
I cannot find that the complainant has satisfied the required statutory burden of proof in the case. Mitchell applied.
I am strengthened in my view of this point when I consider an earlier case raised at the Equality Tribunal with Mr Stephen Bonnlader, then Equality Officer found that the Complainants in the case, Mr Bozs and Mr Marius Sabaliauskas did not appear at hearing
“ .. Accordingly, I find that they have not established a prima facie case in relation to any of the above complaints and their cases therefore fall “
Ritvars Bozs et al v Damoli Construction Solutions ltd (in liquidation) and Damien Brennan [2011]
I find that the Complainant has not established a prima facie case in relation to her complaint and her case is not well founded. She has not proved discrimination in accordance with Section 6(2) (c) of the Act.
CA-00045492-004 Employment Equality Act
I have been requested to reach a decision on whether the Complainant was discriminated against on disability grounds as provided in Section 6 and in contravention of Section 8 of the Employment Equality Acts 1998 –2015 .
Discrimination on grounds of disability is outlined in section 2 and section 6(2) g of the Act as:
that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),
In the instant case, the Complainant departed the hearing room, almost immediately on being informed that her second request for a postponement within 4 days had been refused.
I am satisfied that she departed in the full knowledge that she held the burden of proof in the case and has not identified a comparator or submitted an invited outline submission.
The Respondent has denied the claim.
For my part, I am satisfied that the complainant was notified that her hearing was progressing and afforded reasons for this progression.
I cannot find that the complainant has satisfied the required statutory burden of proof in the case. Mitchell applied.
I am strengthened in my view of this point when I consider an earlier case raised at the Equality Tribunal with Mr Stephen Bonnlader, then Equality Officer found that the Complainants in the case, Mr Bozs and Mr Marius Sabaliauskas did not appear at hearing
“ .. Accordingly, I find that they have not established a prima facie case in relation to any of the above complaints and their cases therefore fall “
Ritvars Bozs et al v Damoli Construction Solutions ltd (in liquidation) and Damien Brennan [2011]
I find that the Complainant has not established a prima facie case in relation to her complaint of discrimination on grounds of disability and her case is not well founded. She has not proved discrimination in accordance with Section 6(2) (g) of the Act.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaints in accordance with the relevance redress provisions under Section 5 of the Act. CA-00045492-001 Payment of Wages Act, 1991 The complaint is not well founded CA-00045492-002 Payment of Wages Act, 1991 The complaint is not well founded CA-00045492-003 Employment Equality Act Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I find that the Complainant has not established a prima facie case in relation to her complaint and her case is not well founded. She has not proved discrimination in accordance with Section 6(2) (c) of the Act.
CA-00045492-004 Employment Equality Act I find that the Complainant has not established a prima facie case in relation to her complaint and her case is not well founded. She has not proved discrimination in accordance with Section 6(2) (g) of the Act.
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Dated: 18th January 2023.
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Failure to obtain a postponement on day of hearing followed by a withdrawal from hearing. |