Complainant

Respondent

Parties

Carmelo  Bompiedi

Accenture Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

  Self Represented

Catherine Hayes Lewis Silkin Ireland

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint for adjudication by the Workplace Relations Commission under section 85C of the Employment Equality Act

CA-00060379-001

05/12/2023

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

CA-00060379-002

05/12/2023

The complainant and a witness for the respondent gave evidence under oath.  Cross examination was offered but not availed of.

As a preliminary matter, the respondent noted that as regards the discrimination case, no ground was outlined in the complainant submission and not ground was outlined in oral evidence.

In the narrative of the complaint form, the complainant noted that although he should have been given a permanent contract once his fixed term contract expired. He submitted that his fixed term contract was extended but then it lapsed. He submitted that his contract should have been made permanent but that it wasn't in that this was not fair. The complainant submitted that wages were unfairly deducted from him and that he worked overtime and should have been paid overtime.

In his evidence the complainants admitted that nothing was written on paper but that he trusted the company when he was told that he was a full-time employee and that his employment was permanent. He questioned why others were made permanent and he was not as he didn't make any problems for the company.

He submitted that he was due to be paid €1000 but this was not paid to him.

There was no cross examination.

The respondents admitted that it was not clear on what legislation the complainant was taking his complaint under, noting that the complaint indicated that the company had failed to comply with the gender pay gap regulations pursuant to section 28 of the employment Equality Act.

The respondent indicated that the complaint form was not particularised in any way safer indicating that the complainant had not received €1000 to which he was entitled. The complainant was paid in accordance with the respondent’s sick benefit scheme, but he was overpaid. It was noted that the complainant was not entitled to social welfare benefit and his full payment of wages.

CA-00060379-001 Employment Equality complaint

Section 85A of the Employment Equality Act deals with the Burden of Proof and states as follows:

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 complainant did not identify any ground upon which to base his complaint.  The complainant did not particularise any complaint under the Act other than to note that he should have been given permanent employment.  His fixed term contract of employment came to an end. 

The respondent cited Section 85A of the Act in relation to the burden of proof and noted that the complainant has not established a prima facie case of discrimination.  The respondent submitted that the onus is on the complainant to establish a prima facie case of discrimination and submitted a number of authorities in respect of this contention. It suggested that this complaint may fall within the scope of Melbury Developments Ltd v Valpeters [2010] ELR 64 wherein 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.”

Having regard to the written and oral evidence presented by the complainant, I find that the position put forward by the complaint amounts to mere speculation and cannot be elevated to a factual basis from which an inference of discrimination may be drawn.  I am not satisfied that discrimination exists in this case.  Accordingly I find that the complainant was not discriminated against.

CA-00060379-002 Payment of Wages Act

The complainant submitted that there was an unlawful deduction from his wages.  The respondent indicated that it deducted an overpayment from his wages.

Section 5(5)(i)(I) of the payment of Wages Act states as follows:

(5) Nothing in this section applies to—

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

(I) any overpayment of wages, 

Having heard the evidence and viewed the wage slips provided by both parties, I accept that the deduction was in relation to an overpayment of wages.  Having regard to the foregoing Section, I find that the Act was not contravened.

CA-00060379-001 Employment Equality complaint

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.

CA-00060379-002 Payment of Wages Act

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

Employment Equality – Burden of Proof – no discrimination established – Payment of Wages – no contravention established