Complainant

Respondent

Parties

Nicole Reekie

Llani Ltd.

Representatives

Self-represented

Justin Condon BL instructed by Vincent Toher & Co. 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-00052191-001

10/08/2022

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

CA-00052191-002

10/08/2022

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

CA-00052371-001

23/08/2022

In attendance at the hearing were:

Two Interpreters

-          A Spanish Language Interpreter

-          A Portuguese Language Interpreter

For the Complainant:

Ms. Nicole Reekie – Complainant

For the Respondent:

Mr. Justin Condon BL

Ms. Eilean Duane, Solicitor, of Vincent Togher & Co. Solicitors

Mr. Niall Mahony, Director, Llani Ltd.

The Complainant worked for the Respondent company, in a convenience store in Cork city, as a ‘deli assistant’ for a period of approximately six (6) weeks commencing on 15/6/2022, prior to her resigning from her employment. The Complainant filed three complaints against the Respondent – one under the Payment of Wages Act and two under the Employment Equality Act (one complaint of discrimination on the civil status ground and one complaint of harassment connected to the civil status ground). In advance of the hearing, the Complainant submitted voluminous submissions, not in submission form, largely unrelated to the complaints she had filed. Many of the submissions take the form of stream of consciousness. At the hearing, the Complainant appeared at the hearing and represented herself. She took the oath, at the outset of the hearing.

The Respondent denies the Complainant’s claims. In advance of the hearing, the Respondent submitted a written response which outlined that, in respect of the first complaint (the complaint under the Payment of Wages Act), the Complainant had been paid in full, and, further, seeking clarity in respect of what the nature of the two other complaints actually were.

At the hearing, Mr. Justin Condon BL, on behalf of the Respondent requested that the complaint alleging discrimination under the Employment Equality Act be struck out as misconceived, or alternatively, if the Adjudication Officer, were not so minded, that there be a finding that the Complainant had failed to make out a prima facie case, in relation to same. He set out the definition of civil status, under the legislation. In relation to the third complaint (an allegation of harassment under the Employment Equality Act), he submitted that, similarly, that the complaint as made out could not legally succeed, that the allegation was not linked to a protected ground (“civil status”), and, in any event, the facts alleged did not meet the definition of harassment.

It emerged at the hearing that the Complainant, an English speaker (Australian), had requested both a Spanish language interpreter and a Portuguese language interpreter, both of whom were provided by the WRC, both of whom attended at the hearing. When queried by the Adjudication Officer in relation to this, the Complainant said that where she had worked (a shop owned by the Respondent company) had foreign workers, and the interpreters were for her (the Complainant) to understand what they were saying, at the hearing. The Adjudication Officer impressed upon the Complainant how inappropriate this was, how each side determines for themselves how to present their case (and whether any of their witnesses require a language interpreter), that the interpreters are employed by the WRC, are there for the benefit of the WRC (i.e. they don’t work for either side) and are paid for by the WRC, and, in particular, the Adjudication Officer impressed upon the Complainant the cost to public funds. There was no requirement for any interpreter at the hearing. None of the workers referred to by the Complainant were proffered as witnesses, by the Respondent. 

Mindful that the Complainant was unrepresented, the Adjudication Officer took her through her complaint form, and raised some queries based on what the Complainant had submitted, as the contents of her various submissions did not pertain to the complaints filed.

CA-00052191-001: Payment of Wages claim

The Complainant acknowledged that she had been paid in full. She outlined that she was paid her final pay cheque after resigning from her employment, approximately ten (10) days later than expected. She anticipated receiving a payment on 02/08/2022 and instead she was paid on 12/08/2022.

The Complainant expressed dissatisfaction with the speed of response by her former employer, to communications from her.

The Respondent submitted that the work cycle ran from Friday to Thursday; and submitted that the Complainant had quit her job without notice. The Complainant submitted that she was entitled to do so – that she was not required to give notice, based on the short length of her service.

When the Adjudication Officer then explained to the Complainant, that as the Complainant accepted that she had been paid in full, the Adjudication Officer had no further statutory jurisdiction in relation to the Complainant’s claim under the Payment of Wages Act 1991, the Complainant then sought to row back on her previous acknowledgement that she had been paid in full and said that she now “wasn’t sure.” She advanced no evidence and provided no figure that was due and owing to her.

CA-00052191-002: Discrimination complaint under the Employment Equality Act, on the civil status ground. The Complainant alleged that she was discriminated against (although provided no evidence in support of that claim) on the basis of her “civil status as homeless.” The Adjudication Officer, at the hearing, clarified for the Complainant that civil status meant “single, married, widowed, divorced” and that homelessness is not a protected status under the Employment Equality Act.

The Adjudication Officer enquired of the Complainant whether her complaint pertained to her civil status. The Complainant then engaged in conjecture and said that she did not think that she would have had the same experiences if she were male. She emphasised the fact that she is single and that she is a woman. The Adjudication Officer clarified for the Complainant that she had filed no complaint in relation to gender.

The Adjudication Officer also outlined the necessity for a comparator as per the legislation, for the Complainant, and explained that discrimination is “less favourable treatment” on the basis of a membership of a protected class, as compared against someone who is not a member of that protected class.

The Complainant then sought to suggest that her complaint related to her being ‘a single woman’ who was foreign (she’s Australian) and ‘older’, i.e. that her complaint related to civil status, gender, race and age. The Adjudication Officer clarified for the Complainant that as a matter of fair procedure, a Respondent cannot meet a case that it has not seen; and further clarified that as a matter of fair procedure, the Complainant’s case cannot keep changing as the Respondent is attempting to respond to it.

The Complainant then suggested that as part of her submissions, she had made allegations in relation to racial discrimination (Email 15/10/2022 at 19.01), which she had submitted to the WRC on 18/10/2022), although she acknowledged that she had not filed a new complaint in relation to discrimination on the race ground, at that time. She said that she had “not gone back to amend the form”, that she “did know you could do it, but didn’t look into it, did not go back and amend.” The Adjudication Officer said to the Complainant that the email in question did not contain an allegation of her being the subject of racial discrimination, but rather an allegation that someone else had been the subject of racial discrimination. The Complainant then sought to reformulate her case, at the hearing, to advance the argument, that the incident she alleges she witnessed was in fact ‘aimed’ at her, on the basis that she was Australian. This suggestion was nowhere in her submissions, nor contained in the email. The Adjudication Officer asked the Complainant to clarify, and the Complainant clarified that she was indeed seeking to make this complaint (pertaining to herself) in relation to race for the first time, some eighteen (18) months later, at the hearing. The Adjudication Officer clarified the time-limits for making a complaint, under the legislation for the Complainant, i.e. “within six months.”

Mr. Justin Condon BL, on behalf of the Respondent stated in relation to the new claim on the race ground, that “it doesn’t make out the facts to ground a prima facie case” and he also relied on the Supreme Court case of  County Louth VEC V. Equality Tribunal (Notice Party Mr. Pearse Brannigan) [2016] IESC 40] (quoting from ‘Employment Equality Law’ by ‘Bolger, Bruton & Kimber’ in relation to same), which sets out the limits of jurisdictional flexibility, in relation to complaints filed. In particular, he submitted that (as per McGovern J. in the High Court that) “it is permissible to amend a claim….where the general nature of the complaint remains the same…” but not where it pertained to an entirely different complaint, the allegation being made after the filing of the initial complaint, but relating to an incident alleged to have occurred prior to the filing of the initial complaint. In the instant case, he submitted that what was now being advanced was a manifestly different case, and in any event, he submitted, the facts as set out [in the email] could not ground a prima case for discrimination on the basis of race.

For completeness, in terms of the timeline, all the ‘new’ allegations pertain to a timeline prior to the filing of the original complaint.

When the Complainant was given an opportunity, by the Adjudication Officer, to address the legal points raised by Counsel for the Respondent, she said that the events took place in “the same space, same time, same context”, that it “took time for me to open up and tell all the details of what happened.” She re-iterated the fact that she was homeless, and that she felt that, consequently, she was in a vulnerable position.

In response to a question from the Adjudication Officer, the Complainant accepted that she did not have a case on the basis of civil status. The Complainant then went on to say that she thought she did not have a case on the basis of “civil status alone” and re-iterated a conglomeration of grounds under the Equality legislation (gender, civil status (‘single’), race, age) as well as being homeless (which is not one of the protected grounds under the legislation). The Adjudication Officer clarified for the Complainant that the grounds are standalone grounds, i.e. that there is no accumulative or intersectional aspect to the grounds under the legislation, and that if a Complainant advances a case under two (or more) grounds, he/she is required to meet the minimum threshold (‘make out a prima facie’) case, in relation to each ground separately.

CA-00052371-001 – In relation to the harassment complaint (under the Employment Equality Act), the Complainant alleged that she was subject to “body language” she did not like, by her two colleagues [names redacted]. When asked by the Adjudication Officer whether she had raised a grievance in respect of that, she said that she had not. She said that she had “mentioned it once or twice” to Mr. O’Mahony that she was having problems with her two colleagues and that he had said that he would remedy the issue, by the way in which he assigned the tasks and shifts to be undertaken, within the business, to the different employees. The Complainant outlined that, in the end, this did not happen prior to her leaving the role.

The Respondent submitted that the only issues the Complainant had raised with Mr. O’Mahony were in relation to the quality of other people’s work, which the Complainant then confirmed, on oath.

She then advanced the argument that someone else doing poor work can constitute harassment. She said that “harassment was multi-folded, that quality of work, knowing that there is a bad quality of work, deteriorated quality of work is a harassment.”

1.       Mr. Condon BL, on behalf of the Respondent submitted that no monies were due and owing to the Complainant, that she had been paid in full, the last payment was made to her on 12/08/2022.

2.       He submitted that the complaints under the Employment Equality Act were misconceived – that the Complainant had misconceived the meaning of “civil status”, and further submitted that the facts, as set out, could not ground a prima facie case for discrimination, that no allegations of ‘unfavourable treatment’ had been made.

3.       He submitted that the Complainant has misinterpreted the meaning of “civil status” (as per her communication dated 06/08/2023) wherein she refers to her civil status as pertaining to homelessness. He further submitted that homelessness is not a discriminatory ground, under the legislation.

4.       Finally, he submitted that no facts, pertaining to anything which came within the definition of harassment in the legislation, and/or tied to any of the protected grounds, had been advanced.

The Respondent cited and relied upon the Supreme Court case of County Louth VEC V. Equality Tribunal (Notice Party Mr. Pearse Brannigan) [2016] IESC 40 with respect to the limits of an Adjudication Officer’s jurisdiction to amend a complaint.

The burden of proof is on the Complainant, in relation to her claim under the Payment of Wages Act 1991. The Complainant acknowledged that she had been paid in full and advanced no evidence to the contrary. She outlined that she was unhappy with the fact that she had been paid her final pay cheque ten (10) days later than she anticipated a payment, and unhappy that she did not receive the level of responsiveness from her former employer which she would have liked, in relation to her queries and communications.

The burden of proof is initially on the Complainant to make out a prima facie case, in relation to her complaint for discrimination under the Employment Equality Act 1998. It was common case that the Complainant did not have a case for discrimination pertaining to civil status. I find that the Complainant did not make out a prima facie case in relation to discrimination pertaining to civil status.

I find that the attempt, at the hearing, by the Complainant to re-formulate her case as a race-based case goes beyond the scope of the latitude afforded to me by the Supreme Court in County Louth VEC V. Equality Tribunal (Notice Party Mr. Pearse Brannigan) [2016] IESC 40 in terms of the bounds of my jurisdiction as an Adjudication Officer.

I further find that the new allegations which the Complainant attempted to advance (but which pertained to alleged events which occurred prior to the filing of the action herein) some eighteen months earlier, were never filed and are “out of time.” I have no jurisdiction to hear them.

I find that the Complainant has not made out any case in relation to harassment on the basis of civil status. For completeness, the quality of someone else’s work does not constitute harassment within the meaning of the Employment Equality Act.

The Adjudication Officer clarified for the Complainant that the word “discrimination”, the word “harassment” and the words “civil status” have a specific legal meaning, as per the applicable legislation.

CA-00052191-001 – It was common case at the hearing that the Complainant had been paid in full. In the absence of evidence to the contrary advanced by the Complainant, I find on the balance of probabilities that this complaint is not well founded.

CA-00052191-002 – I find that the Complainant has not made out a prima facie case of discrimination on the basis of civil status. I find that this complaint is not well founded.

CA-00052371-001 – I find that the Complainant has not made out a case of harassment, on the basis of civil status. I find that this complaint is not well founded.

Payment of Wages Act; Employment Equality Act; Discrimination; Civil status; Harassment; Limits of Jurisdiction to Amend; Time limits;