Complainant

Respondent

Parties

Kumar Swapneel  Shreyansh

9Th Impact Limited

Complainant

Respondent

Anonymised Parties

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Representatives

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-00062085-001

07/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00062085-002

07/03/2024

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

CA-00062085-003

07/03/2024

The complainant submits that he is owed monies properly payable, that he was unfairly dismissed, and that the complainant was discriminated against by the respondent on the ground of race.  The respondent did not attend the hearing.

The complainant submitted that he commenced employment on 01/10/2020 and his employment ended on 22/12/2023 and his salary was €33,756.  He submitted that the company appeared to be in financial difficulties, people were leaving and he took on additional responsibilities.  He said in evidence that he did not receive salary for October 2023 and November 2023 and that these complaints have been dealt with through the WRC at a previous hearing (Adj49149).  He said he received a pay slip but no pay and that he phoned the head of the company Mr A and it appeared that the other employees received payment but that he did not.  He said that Mr A has blocked him on the phone.  He received a letter dated 03/01/2024 which advised that

“As communicated previously your employment at 9th Impact terminated on 22 December 2023”.

The complainant said his current complaint is he is owed €1,996.32 for the work he did in December until his employment ended on 22/12/2023 and that he is further owed monies for outstanding annual leave when his employment ended on 22/12/2023 and that he is owed for 12 days annual leave at a rate of €90.74 daily.

The respondent did not attend the hearing.

The complainant gave evidence that he is owed €1,996.32 for work completed 01/12/2023 until his employment ended on 22/12/2023.  His evidence is also that he is owed 12 days outstanding annual leave on termination of his employment on 22/12/2023 at a rate of €90.74 daily totalling 1,088.88.  The total amount submitted owing is €3,085.20.  The respondent did not attend the hearing and I am satisfied that the respondent is on proper notice of the hearing.

Section (6) provides that where—

(a) 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.

For there to be a breach of the Act the wages must be properly payable within the cognisable period and the complaints were submitted on 07/03/2024.  In Sullivan v Department of Education PW 2/1997 (reported at [1998] E.L.R. 217) it is set out ,

“if an employee does not receive what is properly payable to him or her from the outset then this can amount to a deduction within the meaning of the 1991 Act”.

The evidence of the complainant is that €3,085.20 gross are monies properly payable and I note the bank statements and pay slips provided I find in favour of the complainant and find that his complaint is well founded and I direct that the respondent pays the monies properly payable to the complainant during the cognisable period of €3,085.20.

The complainant submitted that he commenced employment on 01/10/2020 and his employment ended on 22/12/2023 and his salary was €33,756.  He submitted that the company appeared to be in financial difficulties, people were leaving and he took on additional responsibilities.  He said in evidence that he did not receive salary for October 2023 and November 2023 and that these complaints have been dealt with through the WRC at a previous hearing (Adj49149).  He said he received a pay slip but no pay and that he phoned the head of the company Mr A and it appeared that the other employees received payment but that he did not.  He said that Mr A has blocked him on the phone.  He received a letter dated 03/01/2024 which advised that

“As communicated previously your employment at 9th Impact terminated on 22 December 2023”.

He said that no procedures were followed with regards to terminating his employment and he was asked to stay on when others were leaving to complete work.  The complainant submitted that he made significant efforts to mitigate his loss and had secured 20 interviews as well as completing many learning programs and made over 500 job applications and has secured a position since May  on a higher salary of €50,000 compared to his previous salary, but that he incurred losses for the five months that he was unable to secure work . 

The respondent did not attend the hearing.

The complainant submits that he was unfairly dismissed without any procedures.  The respondent did not attend the hearing and I am satisfied that the respondent was on notice of the hearing.

Section 1 of the Unfair Dismissals Act provides that .

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

The dismissal of an employee, pursuant to Section 6 of the Unfair Dismissals Act 1997 as amended, shall be deemed for the purposes of this Act to be an unfair dismissal unless, having regard to all the circumstances, there are substantial grounds justifying the dismissal and the burden of proof is firmly on the Respondent.

Under Section 7 Redress for unfair dismissal.

7(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances,

The complainant’s undisputed evidence was that when he was dismissed there were three months when he did not receive pay and that the respondent made promises to resolve matters but they were never resolved and he was advised of his dismissal officially in January 2024 effective 22/12/2024.  No procedures were followed in relation to this dismissal and the respondent failed to engage with the complainant when he raised many queries regarding his employment.

The importance of fair procedures is outlined in Cassidy v Shannon Castle Banquets and Heritage Ltd [2000] ELR 248 and Mooney v An Post 4 IR 288.  No procedures were followed in this instant case and the burden of proof rests with the respondent and the respondent did not attend, and therefore I find that the dismissal was unfair.  The complainant exceeded standards expected in seeking an alternative position and secured a position very recently. Having considered the circumstances I have decided that reinstatement or re-engagementof the Complainant is not a practical option in this case and that compensation is the appropriate redress.  I note his salary in this new position exceeds his previous salary but taking note of the Labour Court in UDD2412 Waterford Health Park Pharmacy Ltd T/A Stratus Healthcare v Aoife Foley that

“… financial loss is framed as ‘including’ actual loss, estimated prospective loss etc. In short, the statute does not purport to set out an exhaustive definition of “financial loss”.

and noting that the complainant has incurred financial loss attributable to the dismissal, I award the complainant compensation of €6,500 which is approximately 10 weeks.

The complainant submitted that he commenced employment on 01/10/2020 and his employment ended on 22/12/2023 and his salary was €33,756.  .  He submitted that the company appeared to be in financial difficulties, people were leaving and he took on additional responsibilities.  He said in evidence that he did not receive salary for October 2023 and November 2023 and that these complaints have been dealt with through the WRC at a previous hearing (Adj49149).  He said he received a pay slip but no pay and that he phoned the head of the company Mr A and it appeared that the other employees received payment but that he did not.  He said that Mr A has blocked him on the phone.  He received a letter dated 03/01/2024 which advised that

“As communicated previously your employment at 9th Impact terminated on 22 December 2023”.

He said that other employees received their salary in October 2023, November 2023 and December 2023 and that the failure of the respondent to pay him was based on his race and that those paid were Irish and that he is Indian. He said this difference in treatment leads him to believe that he was discriminated against based on his race as the respondent decided who to pay and to not pay him. The complainant provided copies of correspondence including dated 06/11/2023, 11/12/2023 and 15/01/2024 where he raised this anomaly with the respondent and asked whether it was based on his race but no response was received. 

The respondent did not attend the hearing.

The complainant submits that he did not get paid from October until 22/12/2023 and that others who were Irish were paid their salaries and that he did not get paid because he was discriminated against on the ground of race and he is of Indian race.  The respondent did not attend and I am satisfied that the respondent was on notice of the hearing.

.

The Employment Equality Acts 1998-2015 sets out that

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—…

…(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

Section 85A of the Acts provides for the allocation of the probative burden as between parties.

(1) 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.

(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.

The established test for deciding if the probative burden shifts by application of this subsection is that formulated in Southern Health Board v Mitchell [2001] E.L.R. 201 where the Court considered the extent of the evidential burden that a Complainant must discharge before the respondent is fixed with the burden of proof. The Court 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.

Only if these primary facts are established and regarded 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. The Court elaborated on the application of that test in EDA0821, Cork City Council v McCarthy as follows:

 “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination.

Such language indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts.  At the initial stage the complainant is merely seeking to establish a prima facie case.

“Hence it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the 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”.

The complainant’s evidence was that others who were Irish were paid their salaries but he was not and he provided copies of correspondence including dated 06/11/2023, 11/12/2023 and 15/01/2024 where he raised this anomaly with the respondent and questioned whether it was based on his race.  He submitted he got no response to this and having assessed the written and oral evidence and submissions before me, I find that the Complainant has made out a prima facie case that the Respondent did discriminate against the complainant on grounds of race and taking note of all the circumstances of the complaint and the respondent has not attended on whom the burden of proof shifts to, I find the respondent has not met that burden.  I find, therefore, that the complainant has been discriminated against on the grounds of race.  Taking into consideration the failures of the respondent and impact on the complainant I make an award of €5,000 to the complainant.

CA-00062085-001

I find in favour of the complainant and find that his complaint is well founded and I direct that the respondent pays the monies properly payable to the complainant during the cognisable period of €3,085.20.

CA-00062085-002

I find that the dismissal was unfair and I award the complainant compensation of €6,500 which is approximately 10 weeks.

CA-00062085-003

I find that the complainant has been discriminated against on the grounds of race.  Taking into consideration the failures of the respondent and impact on the complainant I make an award of €5,000 to the complainant.

Unfair dismissal, payment of wages, discrimination and race