Complainant

Respondent

Parties

Katarina  Balintova

Allstate Sales Group Inc

 (In Liquidation)

Representatives

  In person

Did not attend

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00061658-001

20/02/2024

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

CA-00061669-001

20/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00061669-002

20/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

CA-00061669-003

20/02/2024

The complainant was employed by the respondent as a CAD Drafter from 15th July 2019 until 30th October 2023. The within complaints relate to notice of redundancy entitlements, outstanding annual leave and allegations of discriminatory treatment.

This complaint is linked to ADJ-00048348, and this decision should be read in conjunction with that referral.

Note: There is a complaint submitted within this adjudication file relating to the Pensions Act, 1990. It relates to issues that fall to be considered under the Employment Equality Acts, 1998-2015. The respondent was notified of the issues raised by the complainant but did not attend the adjudication hearing as the respondent entity is in liquidation and no longer has a presence in Ireland.  The Liquidator was also notified of the time and date of the adjudication hearing but did not attend. In those circumstances and the clear relevance of the Employment Equality Acts, 1998 to the subject matter of the complaints, I will make my decision in line with the provisions of the correct legislation.

CA-00061658-001 – Minimum Notice and Terms of Employment Act, 1973

The complainant was due to be paid until 30th October 2023 when her employment ended. She states that she did not receive payment for the month of October 2023 which includes two weeks’ notice of her redundancy.

CA-00061669-001 - Payment of Wages Act, 1991

This complaint relates to unpaid annual leave entitlements. The complainant stated she was due 10 days of annual leave when her employment ended which had been used by the employer to offset the days that there was no work available to the complainant or when she was unable to carry out any work due to technical and other issues

CA-00061669-002 – Minimum Notice and Terms of Employment Act, 1973

This complaint also relates to notice requirements in respect of redundancy.

CA-00061669-003 – Pensions Act, 1990 (Employment Equality complaints)

This complaint relates to discrimination while the complainant was employed by the respondent. The complainant contends to have been discriminated against and harassed on the ground of gender and race/nationality.

The respondent did not attend the adjudication hearing and was not represented.

Note: The within referral is linked to ADJ-00048348 against the respondent Allstate Sales Group Inc. The complainant is representing herself at adjudication. At the previous adjudication hearing of ADJ000-48348 on 13th February 2024, the complainant raised issues that the respondent was not on notice of and was given the option of submitting further complaints on these issues. The additional complaints as submitted on 20th February 2024 are listed above.

In respect of the respondent itself, it is in liquidation since 29th January 2024 and no longer has any presence in Ireland. The complainant named the respondent at the address of its previous solicitors in her complaint form and the solicitors in question notified the WRC that the respondent was in liquidation. The Liquidator was informed of the time and date of the remote adjudication hearing but did not attend.

The complainant submitted the above complaints following an adjudication hearing that was part heard on 13th February 2024. The issues relate to the complainant’s redundancy and the notice she received in respect of same. It is clear from the inter party correspondence towards the end of the employment that the complainant was being made redundant. The complainant stated that she has not received her correct notice or redundancy entitlements as well as the payment of annual leave entitlements that were outstanding when her employment ended.

CA-00061658-001 – Minimum Notice and Terms of Employment Act, 1973

The complainant was due to be paid until 30th October 2023 when her employment ended. She states that she did not receive payment for the month of October 2023 which includes two weeks’ notice of her redundancy. Accordingly, I find that the complainant is due to be paid two weeks’ pay in respect of notice entitlements

CA-00061669-001 - Payment of Wages Act, 1991

On this complaint and in the absence of any participation from the respondent at the adjudication hearing, I find on the basis of the complainant’s submissions that she is owed 10 days’ pay in respect of outstanding holiday entitlements upon cessation of her employment. I also find that the complainant is due two additional weeks’ pay in respect of the first two weeks of October 2023 where her salary was not paid to her.

CA-00061669-002 – Minimum Notice and Terms of Employment Act, 1973

This is a duplicate complaint of CA- 00061658-001.

CA-00061669-003 – Pensions Act, 1990 (Employment Equality complaints)

This complaint relates to discrimination on the grounds of gender, religion and race while the complainant was employed by the respondent. The complaint was inadvertently referred under the provisions of the Pensions Act, 1990. In respect of the complaint as submitted, the cognisable period is 21/09/2023 – 20/02/2024.

The complainant alleges that between 21st September 2023 and 30th October 2023 when her employment ended, she was subject to less favourable treatment by the employer. The complainant contends to have been discriminated against, harassed and indirectly discriminated against in respect of training.  The basis of the indirect discrimination complaint is that she was required to undergo training which was inadequate and when she asked any questions she was ignored and made to feel as if she was unable to do her job.

In respect of the discrimination complaint on the grounds of gender, race and nationality, the complainant states that she was not provided work where others were, she was not called by her name where others were, she was excluded from team calls/ meetings, her mistakes were highlighted to her colleagues, her test drafting work was not accepted and her ideas that were accepted were not acknowledged and changes to work practices which came about as a result of these idea were claimed by management as their own.

The Applicable Law.

Discrimination

Section 6(1) and (2) of the Employment Equality Acts, 1998-2015 provide 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,

(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) to (g) not relevant

(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) not relevant

Harassment

Section 14A(7)(a) of the Employment Equality Acts, 1998 – 2015 defines harassment as follows:

(7) (a) In this section—

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

Time Limits

Section 77(5)(a) and (b) of the Employment Equality Act, 1998 provides as follows:

77(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

Extension of Time

The complainant sought that the time be extended in relation to her complaints so that matters that occurred in the six months prior to 21st Augst 2023 could be considered in her complaints of discrimination on the gender, race/nationality grounds.

The test for establishing if reasonable cause is shown for the purpose of granting an extension of time is that formulated in Labour Court Determination No: DWT0338 –Cementation Skanska and Carroll which states as follows: -

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case”.

In considering this point, I note that the complainant has lodged complaints to the WRC on 26th September 2023 relating to discriminatory treatment on the gender ground only. The additional complaints concerning alleged discrimination contained herein could also have been lodged at that time but were not. On that basis, I do not grant the extension of time and will address only matters that occurred within the cognisable period of the within complaint.

Burden of Proof

Section 85A of the Employment Equality Act 1998 provides as follows:

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 F156[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.

Conclusions

I accept that the complainant was working in a very difficult situation, where the respondent offices had closed and where it was difficult for her to contact the relevant members of management in relation to issues of dissatisfaction to her. However, the complainant bears the burden of proof in the complaint that she was so treated based on her gender, nationality and race. Having listened at length to the complainant and considered her written and oral submissions in relation to her employment, I find that the complainant has not established facts that her gender, race/ nationality were the reasons for the way she was treated within the employment. Accordingly, I find that the complainant has not established a prima facie case of discrimination.

CA-00061658-001 - Minimum Notice and Terms of Employment Act, 1973

The complainant is to be paid two weeks’ pay in respect of notice entitlements.

CA-00061669-001 - Payment of Wages Act, 1991

The complainant is to be paid two weeks’ pay in respect of outstanding holiday entitlements upon cessation of her employment and a further two weeks’ pay in respect of unpaid wages for the first two weeks of October 2023.

CA-00061669-002 – Minimum Notice and Terms of Employment Act, 1973

This is a duplicate complaint of CA- 00061658-001 and is therefore not well founded.

CA-00061669-003 – Pensions Act, 1990 (Employment Equality complaints)

Having considered the matter I find that the complainant has failed to establish that she was treated less favourably by the employer within the cognisable period of the complaint based on the discriminatory grounds claimed. As the complainant has not established a prima facie case of discrimination, I find that the complaint is not well founded.

Notice entitlements, unpaid wages, outstanding annual leave entitlements, discrimination, harassment, indirect discrimination