Complainant

Respondent

Parties

Emamoke  Idowu

Praxis Care

Representatives

Self-represented

Dominic Wilkinson B.L., instructed by ARAG Legal Protection

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00057849-001

23/07/2023

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

CA-00057849-003

23/07/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and three witnesses for the respondent undertook to give their evidence under affirmation.

CA-00057849-001 Payment of Wages

The complainant submitted that she was owed €93.61 in unpaid wages and holiday pay but did not know the exact amount due to her.

CA-00057849-003 Discrimination

The complainant submitted that she had been discriminated against in general terms.  She stated in evidence that this discrimination was based on the age ground or the race ground.  She also confirmed that there was no reference in her complaint for to any discriminatory ground but that she was referring to discrimination in general.

CA-00057849-001 Payment of Wages

The respondent conceded that the complainant was owed €93.61 in unpaid wages and also conceded that she was owed 8.9 hours in respect of annual leave, amounting to €128.16.

CA-00057849-003 Discrimination

As a preliminary matter, the respondent noted that the complainants grounding submissions did not refer to any specific discriminatory ground and that it could not be expected to defend a case where it was not informed of the case that it had to defend.  It was noted that nowhere in the complaint form were any discriminatory grounds disclosed and although there was a basis provided for in the case of Louth V.E.C. v the Equality Tribunal to consider matters that appear in the narrative of the complaint form, where matters were adduced at the hearing that were not mentioned in the complaint form, they cannot be considered as part of the original complaint.  The respondent submitted that in the circumstances, the complaint cannot succeed with this complaint.

CA-00057849-001 Payment of Wages

The respondent conceded that the complainant was owed €93.61 in unpaid wages and also conceded that she was owed 8.9 hours in respect of annual leave, amounting to €128.16.  The complainant agreed with eh figures put forward by the respondent.

In the circumstances I am satisfied that the complainant has established that she was left short in respect of her wages, and I find that she has established well founded complaint regarding unpaid wages under the Act.  I find that the complainant is entitled to compensation of €221.77

CA-00057849-003 Discrimination

As a preliminary matter, the respondent noted that nowhere in the complaint form were any discriminatory grounds disclosed.  The complainant confirmed that neither the ground of age nor race discrimination were specifically mentioned in her complaint form. 

The respondent cited the Supreme Court case of Louth V.E.C and The Equality Tribunal and Brannigan [2016] IESC 40 specifically referring to paragraph 35 and 36 wherein McKechnie, J noted as follows:

35.  It is both a trite and historical principle of law that a creature of statute must live by the statute. Its jurisdiction is found solely within the provisions of the enabling Act. It has no inherent capacity, unlike, say, that of a constitutional court. It is therefore bound by what has been conferred on it. It has no further competence and it cannot create, add to or enlarge the jurisdiction so vested in it. Kileen v Director of Public Prosecutions [1997] 3 I.R. 218. It is bound by what jurisdiction it has and must act accordingly.

36. Therefore, when considering the substantive issue, it must be remembered that the tribunal enquires into referred incidents of discrimination: it looks at prohibited conduct of which it is notified. It has no function in a situation such as this to embark upon a wide-ranging inquiry into discrimination generally, or to generally investigate such discrimination; it does not conduct investigations proprio motu into discrimination which has not been the subject of a statutory referral to the Tribunal. Rather, it determines what lawfully has been referred to it with a view to providing redress to that applicant for any discrimination as found. The Tribunal cannot as such freelance its inquiry.

The respondent submitted that any complaint made to the Workplace Relations Commission can only be considered in relation to the contents of the grounding submissions. In this regard it raised reference to the Louth VEC case and suggested that the complainant had not established the basis for her complaint in her complaint form or initial submissions. Having regard to paragraph 36 of McKechnie J’s consideration in that case I note that his remarks outline that the function of the Tribunal, and by extension the WRC, is not to embark upon a wide-ranging inquiry into discrimination generally. It cannot investigate matters that are not before it on its own initiative but may only look at what has been referred to it in terms of discrimination.

In the case before me the complainant has not indicated any discriminatory grounds upon which to rest her complaint. Section 6(1)(a) of the Act states as follows:

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,

At the very outset the complainant has failed to establish facts from which discrimination may be inferred as no discriminatory grounds have been stated or averred to. In the circumstances I must have regard to Section 85A(1) of the Act relating to the burden of proof. That section states as follows:

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.

Arising from the foregoing I find that the complainant has not, at the outset established facts from which discrimination may be inferred. Accordingly, I find that the complainant has not been discriminated against.

CA-00057849-001 Payment of Wages

Having regard to all the written and oral evidence submitted in respect of this complaint, my decision is that the Act has been contravened and I direct the respondent pay compensation of €221.77 (less any lawful deductions) to the complainant.

CA-00057849-003 Discrimination

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was not discriminated against.

Payment of Wages – Act contravened – compensation awarded – Employment Equality – discriminatory grounds not cited – not well founded – no discrimination.