Complainant

Respondent

Parties

Muhammednurulain  Boda

Oasis Global Management Company (Ireland) Limited

Representatives

  Self

 Did not attend

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00049257-002

21/03/2022

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

CA-00049257-003

21/03/2022

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

CA-00049257-006

21/03/2022

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

CA-00049257-007

21/03/2022

The Complainant was employed by the Respondent as a financial accountant.  He commenced employment on 14/01/2013 and was paid €1,072.91 per week.  There was also a bonus scheme in operation.  The Respondent decided to close their Dublin office in 2021 and move its operations to their UK office.  This move happened in December 2021.  The Complainant had initially agreed to move to the UK but then decided not to go.  He submits that he did not receive any redundancy payment, was discriminated against, and was not paid the accrued bonus payments or any salary for some months.

The Respondent did not attend the hearings or file any submission.  The Complainant submitted his complaints to the WRC on 21/03/2022.  As the initial hearing was postponed pending contact with the Respondent. The Respondent then stated to the WRC that they could consider the matter was dealt with, but the WRC clarified for the Respondent that “a postponement does not close the matter, the only way of closing the matter is by withdrawal of the complaints by the Complainant or a decision issued by an Adjudicator”.    The Respondent’s request for the matter to be heard remotely was granted and a hybrid hearing was arranged for 20/06/2024 but the Respondent did not attend or organise a representative to do so on their behalf.

The Complainant gave evidence on affirmation at the hearing.  He outlined that he commenced employment with the Respondent on 21/03/2013 and was paid €1,072.91 gross per week.  The Complainant stated that in 2021 the Respondent made a decision to close its Dublin office and move its business to their UK offices.  He attended various meetings in relation to this move.  He initially said that he would move to the UK but when he checked his Irish residency status, he discovered that he was “Stamp 4”, and this allowed him to stay in Ireland and he did not require an employment permit.  The Complainant also stated that he discovered that his time spent on this category was reckonable as residence when applying for citizenship and so he wanted to remain in Ireland.

The Complainant gave evidence that he informed the Respondent on 14/01/2022 that he would not move to the UK and requested a redundancy payment.  He did not receive any redundancy payment and his salary was also stopped from that date.  The Complainant believes that he is entitled to a statutory redundancy payment as the Respondent ceased to do business in Ireland.  The Complainant also gave evidence that a colleague was given redundancy payment.

The Complainant is also seeking to have any outstanding wages paid to him.  He submits that he was only paid half pay for the month of January and no pay for the months of February, March and April 2022.  It is the Complainant’s evidence that he is due the sum of €2,178.51 for February and €4,291.76 for the months of February March and April 2022. 

The Complainant refers to  documentation from the Respondent dated 16/01/2022 and in particular where they clarify that the removal of his VPN access and  state “we wish to re-iterate that we are not terminating your employment but simply taking a precautionary approach to protect the company and client’s interests”.   In the letter the Respondent also notifies the Complainant “We wish to note however that your notice period was initially 2 months as signed in your contract and you subsequently amended your notice period to 6 months.  Please refer the extract from your employment contract and your letter dated on the 16 January 2019.  It is our intention to enforce your 6 months’ notice”.   

The Complainant confirmed that he was willing to serve up to 6 months’ notice but subject to receiving a redundancy date from the Respondent.  The Respondent indicated that they would “only be able to fully and properly consider your Notice around the week of 18 April 2022 and will endeavour to furnish you with a reply by 21 April 2022”. 

While there was an exchange of correspondence between the parties the Respondent’s position in relation to pay was that as the Complainant had rendered no services since 14/01/2022 he was not entitled to any remuneration “as the principle of no work no pay will apply”.

The Complainant gave evidence that he had two relationships with the Respondent.  He was an employee (“Manager of TA and IA”), and he was also a Director.  The Complainant submits that he was appointed a director to ensure the Respondent was compliant with various regulations and the requirement to have an Irish based director.  The Complainant did not receive any additional remuneration for this role.  The Complainant submitted that he resigned as a director on 14/01/2022 and that it was completely disingenuous of the Respondent to state to him that his resignation also included his employee status.  The Complainant submitted copies of e mails in which he clarified his position to the Respondent.

The Complainant also believes that he was discriminated against by the Respondent due to the fact that he was an Indian national.  There were four employees in the Irish office and one of those received a redundancy payment when he did not want to relocate to the UK.  Another employee moved to the UK and another resigned in advance of the move to the UK while another colleague took up a role in Ireland.  The Complainant also believes that he was harassed by the Respondent when he declined to move to the UK.  The Complainant opened in evidence a copy of a WhatsApp group message he received.  The Deputy Chairman of the Company included their Head of Legal and copied it to all others in the group.  The Complainant submits that this message is indicative of the ongoing treatment he received during the planning meetings in relation to the move.  The text message read:

“Dear Nurlain, On Sunday you must provide update on the progress for the clean up of boxes and the Fixed Assets listing.  Have you made contact with …xx. 

Nurlain is a lazy bastard!!!

Press him. 

Every day. 

Every day. 

Send him an email cc CEO and COO.

Make this your project to fuck him up. 

He is not going to join us so he and XXX are not doing !!!”

 The Complainant also opened a text which he received on a Sunday morning at 7.22am showing missed calls from the Respondent’s Deputy Chairman and a follow up text which read: “you need to answer your phone.  You are arrogant and rude!!!.

The Complainant also gave evidence in relation to his bonus and profit share payments.  He was supposed to receive these payments when the Respondent closed its Irish operations but did not so.  The bonus payments were split over a three-year period and the profit share were to be paid over a five-year period.  The Complainant opened a number of payslips at the hearing, and these showed the ongoing accumulated amounts that he was due to receive.  For 2019 the amount was €1,774 and for 2020 the amount was €2,934 and for 2021 the amount was €2,762.  The total amount of bonus and profit share payments amounted to €7,470.

I am satisfied that the Respondent was notified of the date and time of the hybrid hearing.  The Respondent appears to have ceased to reply to e-mails from the Workplace Relations Commission.  However, the hearing on the 20/06/2024 was arranged as a hybrid hearing following a request from the Respondent’s representative, Mr Nazeem Ebrahim and the Respondent’s HR department.

Having checked the Company Register (CRO) on the date of the hearing I note that the Respondent’s status is listed as “Normal”. 

The WRC communication with the Respondent was through their e mail at oasiscrescent.com.    This company, Oasis Crescent (UK) Limited is listed on their website as “the holding company for Oasis Crescent Wealth (UK) Ltd, (OCWUK) and Oasis Global Management Company (Ireland) Ltd., (OGMCI)”.   I also note that the Complainant’s communication with the Respondent was through the offices of Oasis Crescent (UK) Limited.

I note that the Respondent also advised the Complainant on 16/01/2022 that he should only contact them at two e mail addressed which were given with oasiscescent.com addresses which is the Oasis Crescent (UK) Limited company.

The Respondent in its correspondence with the Complainant summarised its position as “What you did not do is to take us in your confidence like every time you needed assistance from the company instead your actions were immature and unbecoming of an executive director.  The mere fact that you are now trying to extort the organisation is a further indictment of your ill and bad character.  This is very disappointing.  As you are well aware, your breach of your employment contract and you misleading the company and your continued defamations caused severe damages to the organisation and will be recovered from yourself once computed”.

CA-00049257-002: This is a complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967.

Section 7(2) of the Redundancy Payments Acts outlines five different scenarios where “an employee who is dismissed shall be taken to be dismissed by reason of redundancy if [for one or more reasons not related to the employee concerned] the dismissal is attributable wholly or mainly to…”

(a)    The fact that his employer has ceased or intends to cease, to carry on for business of which the employee was employed by him, or has ceased to intends to cease, to carry on that business in the place where the employee was so employed or...  

(b)    The fact that the requirements of that business for employees to carry out work of a particular kind in a place where he was so employed have ceased or diminished or are expected to cease of diminish, or… 

(c)     The fact that his employer has decided to carry on the business with fewer or no employees whether by requiring the work for which the employee has been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or … 

(d)   The fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or… 

(e)   The fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

The Redundancy Payment Act 1967 Section 7(1) given a general right to redundancy:  “An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided –

(a)    He has been employed for the requisite period, and

(b)    He was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966 immediately before the date of the termination of his employment which was so insurable in the period of two years ending on that date.”

I have carefully considered and reviewed the documents, submissions and the uncontested evidence of the Complainant provided at the hearing.  I find that the date the employment ended is 29/04/2022.

The Complainant’s is entitled to a redundancy lump sum payment is to be calculated according to the following criteria:

Employment start date:  21/03/2013

Employment end date:  29/04/2022

Gross weekly remuneration:  €1,072.91

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00049257-003: This is a complaint seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1998. The Complainant submits that he was discriminated against on the grounds of race, family status and victimisation.  The Respondent did not provide any submission to refute that the Complainant was subjected to any discrimination or victimisation.

Section 6 of the Employment Equality Act, 1998, states:

“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) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(g) 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”),

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

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”)”.

This complaint is made pursuant to the Employment Equality Acts on the basis that the Complainant was discriminated by the Respondent because he was an Indian national, the race ground. 

Harassment

This relevant legislation for adjudication of this complaint is section 14A of the Employment Equality Act 1998 (“the 1998 Act”), a new section inserted by the Equality Act 2004, specifically addressing the issue of harassment and sexual harassment at work.  Harassment is defined at subsection

“(7)(a)(i) and sexual harassment is defined at subsection (7)(a)(ii):

(a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(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”.

At section 14A(1) of the 1998 Act, harassment and sexual harassment are categorised as discriminatory conduct.  While harassment may discriminate against a person on one of the nine discriminatory grounds, sexual harassment is discrimination on the single ground of gender.    

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (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.”

The effect of s.85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility was on the Complainant to show that, based on the primary facts, he has been discriminated against because he was an Indian national and that he was victimised.

The explanation provided by the Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, which addresses the onerous nature of the burden of proof is also helpful:

“This requires that the Complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

In deciding whether the Complainant has discharged the burden of proof as set out in section 85A of the Act above, I must consider the totality of his uncontested evidence given at the hearing. In the first instance, I note that it was that the Complainant was not paid redundancy and the contact from the Respondent through WhatsApp and e mail is a cause for concern.  The content of those clearly confirm the Complainant’s view that the Deputy Chairman of the company issued an instruction to “press him” and “make this your project to fuck him up”.  The circulation of this within the group amounts to indisputable evidence that a heinous regime of harassment was in place. 

I accept the Complainant’s clear, but uncontested, evidence that there were other examples of where this occurred at various meetings.  This instruction was also issued to the Respondent’s Legal Department and there is no evidence that they advised the Respondent to desist from  that  instruction.  The unwanted conduct involved the display and circulation of written words  which were vicious and inappropriate at any time but particularly so when a very circulated by a very senior member of the management team.

Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 at para 2-207 commenting on Mitchell:

“This test requires that facts relied upon by a Complainant must be proved by them to the satisfaction of the Tribunal or Court at the level of balance of probabilities and if proven, must be of sufficient significance as to raise an inference of discrimination. In the case before it, the Labour Court found, on the facts of the case, that the Complainant could not demonstrate superior qualifications and experience than the successful appointee and that she therefore failed to discharge the burden of proof that rested on her”.

In conclusion, the  Complainant has presented clear and uncontested  evidence in relation to the egregious conduct of the Respondent. Consequently, I find the Complainant, on the balance of probabilities, has established a prima facie case of discrimination (for the purposes of this Act) on the grounds of race and that he was victimised or discriminated against. On the basis of the foregoing, I find that this complaint is well founded.

Redress:

The Employment Equality Act 1998 provides for the following redress:

4) The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation under subsection (1)(c) or (1)(f) shall be—

(a) in any case where the Complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of—

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the Complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) €40,000,

The Complainant was in receipt of €1,072.91 gross pay per week.  The Complainant gave plausible evidence of the effects of the discrimination. He had four financial dependants, and his parents were also dependant on him, and this resulted in a significant amount of stress and anxiety.  The Complainant also submitted e-mails which showed that the Respondent failed to engage with him until he lodged his complaints with the WRC. He has since taken on a new role with another company.  I find that  the appropriate redress is an award of compensation. I direct the Respondent to pay the Complainant compensation in the amount of €18,000 for the effects of the discrimination and harassment that he has suffered.

CA-00049257-004:  This is a complaint by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977.  In view of my findings in CA-00049257-002, above I find that this complaint is not well founded.

CA-00049257-005: This is a complaint seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act, 1991.

The Payment of Wages Act, 1991 defines wages:

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including –

(a)    Any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b)    […}

It is not disputed that any commission and/or bonus payable to the Complainant falls within the concept of wages in accordance with the Act.  The Complainant was paid 33% of the bonus payment due and he was due to receive the remainder when the Respondent closed its Irish operations.  Despite a lot of engagement from the Complainant the Respondent seems to have tried to lead the Complainant along but without making any effort to resolve matters.  The Complainant, for his part, submitted that he worked a significant number of additional hours to assist the Respondent in its preparation for the move to the UK and these were unpaid and not acknowledged. The Complainant submits that this could have amounted to an additional 50-60 hours in some weeks and none of this was paid or made any contribution to his bonus payments.

Having reviewed the extensive documentation and the uncontested evidence adduced at the hearing I find that the Complainant has established that he was entitled to commission and bonus payments outlined on his pay slips. These payments were listed as having an “Ascending Balance” which established that they accumulated until the due date or on the cessation of the employment.

Deductions made by an employer from the wages of an employee are set out in Section 5 of the Act as follows:

“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.”

Having carefully considered the uncontested evidence adduced in the within case I am satisfied that the Complainant’s commission and bonus payments were not paid in full and that there was an unlawful deduction from his wages due to non-payment of commission and bonuses.  The total amount due to the Complainant is €7,470.

In relation to the Complainant’s complaint in relation to unpaid wages from 14/01/2022 to the end of April 2022 it is clear from the Respondent’s communication of 19/01/2022 that “we are not terminating your employment”.  The Complainant was also informed that the Respondent would be enforcing a six month notice period.  I do not accept the Respondents over simplified  construction that “as the principle of no work no pay will apply”.  They confirmed that they removed his VPN access, confirmed that he was not dismissed and then clearly ignored the Complainant and failed to provide him with any work.  It was the Respondent’s function to provide the Complainant with work.  In these circumstances I find that the Complainant is entitled to be paid for the remainder of January 2022 and also to be paid for the following three months.  I find that the Complainant is due the sum of €2,178.51 for January 2022 and the sum of €4,291.67 for each of the months of  February, March and April 2022.  The total amount of outstanding pay due to the Complainant is €14,837.31            

CA-00049257-002:  I have decided that the Complainant’s is entitlement to a redundancy lump sum payment is to be calculated according to the following criteria:

Employment start date:  21/03/2013

Employment end date:  29/04/2022

Gross weekly remuneration:  €1,072.91

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00049257-003:  I have decided that the Complainant was discriminated against and harassed by the Respondent. I direct the Respondent to pay the Complainant compensation in the amount of €18,000 for the effects of the discrimination and harassment that he has suffered.

CA-00049257-006: Unfair Dismissal.  In view of my findings in CA-00049257-002, I find that this complaint is not well founded.

CA-00049257-007: Having carefully considered the uncontested evidence adduced in the within case I have decided that this complaint is well founded and that:

(a)    the Complainant’s commission and bonus payments for the periods was not paid and that there was an unlawful deduction from his wages due to non-payment of commission.  The total amount due to the Complainant is €7,470.

(b)    The Complainant is entitled to be paid for the remainder of January 2022 and also to be paid for the following three months.  I find that the Complainant is due the sum of €2,178.51 for January 2022 and the sum of €4,291.67 for each of the months of  February, March and April 2022.  The total amount of outstanding pay due to the Complainant is €14,837.31            

Redundancy payment.  Payment of bonus.  Payment of Wages.  Discrimination.