CORRECTION ORDER

ISSUED PURSUANT TO SECTION 88 OF THE EMPLOYMENT EQUALITY ACT 1998

This Order corrects the original Decision ADJ-00044807 issued on the 16th of April 2025 and should be read in conjunction with that Decision.

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00044807

Parties:

	Complainant	Respondent
Parties	Hasan aka Mohammed Arafa	Tiktok Technolgy Limited

Representatives

Self

Ruth Mylotte B.L. instructed by DLA Piper Ireland LLP Solicitors

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00055100-001	14/02/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00055100-002	14/02/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00055100-003	14/02/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00055100-004	14/02/2023

Date of Adjudication Hearing: 25/11/2024

Workplace Relations Commission Adjudication Officer: Michael MacNamee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

The matter was heard before me on the 19th of January 2024 at the offices of the W.R.C., Lansdowne House, Dublin. Directions as to submissions were issued to the Complainant on that date and the matter was then relisted several times. On the 25th of November 2024 the Complainant presented his case and gave evidence on affirmation with the assistance of an interpreter (who also made an affirmation) and following the completion of the Complainant’s evidence the parties were afforded an opportunity to make further submissions following the hearing which they did with the last submission being from the Respondent being received on the 11th of March 2025.

Background:

The Complainant has been employed by the Respondent since July 2020 as a Quality Analyst. He alleged discrimination on the ground of nationality contrary to the Employment Equality Act 1998 (as amended) and breaches of the Payment of Wages Act 1991 (as amended) and the Organisation of Working Time Act 1997 (as amended). All claims were fully contested.

Summary of Complainant’s Case:

The Complainant delivered a written submission dated the 30th of July 2024. With names initialised, some typos corrected, and some punctuation added, the submissions stated as follows:

“Nature of the Case:

The submission case pertains to a series of discriminatory and retaliatory actions taken against me during my employment at TikTok Technology. I have faced bullying, unfair treatment, discrimination, and a toxic work environment orchestrated by my team lead, and supported by HR personnel. My grievances include unfair performance reviews, rejection of sick leave payments, refusal of salary increase requests, and discriminatory behaviour towards my break time and sick leave.

These actions have significantly impacted my well-being, mental health, and overall work experience at the company.

Grounds Relied Upon:

The grounds for this submission case are primarily based on discrimination, retaliation, and unfair treatment in the workplace. My experiences highlight a pattern of mistreatment, bias, and deliberate efforts to create a hostile work environment to push me out of the company.

Evidence Supporting the Claim:

1. Documentation of bullying incidents by Maher, including retaliatory actions and personal attacks. These incidents have created a hostile work environment for me, impacting my ability to perform my job effectively.

2. Email correspondence detailing threats and discriminatory behavior by RK and AL. These communications showcase a lack of professionalism and respect towards me, contributing to a toxic workplace culture.

3. Records of unfair performance reviews, rejection of sick leave payments, and refusal of salary increase requests. These instances highlight the systemic mistreatment and bias I have faced within the company.

4. Statements from colleagues regarding MS’s behaviour and conflicts within the team. These accounts further corroborate my experiences and provide additional context to the toxic work environment at TikTok Technology.

5. Medical records indicating the impact of workplace stress on my health and well-being. My health has been adversely affected by the ongoing mistreatment and discrimination I have faced at the company.

6. Lack of support, follow-up, and communication from HR and management regarding my concerns and grievances. The failure of HR and management to address my issues demonstrates a lack of accountability and responsibility towards employee well-being.

Conclusion:

It is imperative that the company conducts a thorough investigation into these issues, takes appropriate disciplinary actions against those involved in the misconduct, and implements measures to ensure a fair and equitable work environment for all employees.

I have joined Tiktok technology on July 2020 as a Quality Analyst Trust and Safety department / Blind Moderation Team. Then I started to participate in many projects and other programs as below: Oct 2020 – May 2021 (Monitor); Jan 2021- September 2021 (Buddy); April 2021 – September 2021(Monter)

1- Me, RK and MS:

Since we joined the company, for some reasons MS were focusing with me all ways, stuff got heated when we start to do game plan (Monitor the work schedule) he used to make mistakes in the schedule sheets, removing or adding formula, this sheet is very sensitive, making small mistake could ruin the entire sheet.

Kindly I reached out to him many times, but he didn’t show any respect, I had to report him at the end, and when my team lead spoke with his team lead, he got upset, and even he continued to do more.

Bullying (07 Jan 2021: he reported me for revenge and said to his team lead about me (it’s hard to work with someone that is not a team player and disrespectful, who takes everything personal (screenshot available)

2- In May 2021 got threatened to delete my lark status (Free Palestine) by RK (HR Dublin) and CH (London Office) after investigation, RK has apologised and I decided not to take any formal investigation against her. A few days after I accepted her apology, my application for Team lead (May 2021) has been rejected (for me it was clearly because I reported her to HR). Even when I contacted AL, he didn’t seem to show any interest, and he said to me contact London Office myself.

In June 2021 applied for Market point of contact (the only position that they contacted me back for the next step, but I was on sick leave at this time)

In January 2021 applied for Quality team lead (Rejected)

In January 2021 applied for Market point of contact (Rejected)

3- On 15 May (Saturday 2021) I didn’t show up for work by mistake, due to a new roster being introduced, followed by unfairly investigation on 10 August 2021, and issued unfairly written warning on 17 August 2021 which was my birthday, and they started to investigate with me because the weekend day 15/05 that I was off based on the schedule, while there were a new one has been introduced unofficially while I was off due to family issues, even the team lead didn’t contact me this day to ask why I’m not working.

I appealed and they changed to verbal warning. Even they didn’t follow the policy, which they should issue a verbal warning only for the first time. (getting an unfair written warning for the first time ever, and in my birthday, that was the most bad thing that happened to me ever, I think they purposely chose to send me the written warning specifically on that day as a way of punishment). Even RK had a meeting with me and said to me that she don’t believe any of what I said. They were too harsh, biased, and they didn’t take into consideration, that I was off due to family issues, the schedule has been unofficially published, it was published officially on 17/05.

Investigation /appeal by: KO & LY / PM.

4- In September 2021, final rejection of paying my sick leave, after I have asked for it several times. AL. Rejection of paying team building activity amount of €39/month. PM, (the company were paying each of us this amount to buy any food) the reason from PM: As I’m on sick leave they can’t pay me this monthly amount. Despite that I explained them that I have not any source of money, no sick leave payment, no social payment, but they refused everything, it was like (we don’t care about you, even if you die), even though it was during Covid pandemic.

First sick leave June 2021 – November 2021

(Reasons, threatened by RK, application rejected, unfair investigation for absent, unfair outcome (Written warning), refused sick leave payment, no support was offered. Lack of sleep, shortness of breath, loss of appetite, weight loss, chest pain, Stress, and depression) and started my journey with anti-depression meditation for the first time in my life ever.

5- During my sick leave, I heard that MS will be my team lead, I contacted the HR which they already were aware about the conflict between me and him, and for this reason I asked for not putting me in his team, AL said I will be reporting to Y, but it wasn’t, ended up to be in MS’s team, which they managed to put me in his team for a reason, despite that they transferred another colleagues to another team, and the reason for me as Rachelle said, they can’t do this, as if they did, everyone will ask for transferring (More stress to push me to leave the company) they completely didn’t care about my mental health, instead of providing healthy work environment, they insisted to create toxic work environment.

6- I back to work in November 2021 reporting to MS’s team.

As expected he started to abuse his role and reached me all the time and checked the system (micromanagement). He was focused only on creating stressful, toxic, and complicated work environment. All the reimbursement, claims, and requests that usually takes a few minutes to approve by team lead, he used to reject them or just ignore them for many days.

7- Discrimination, about break time

2&3/01/2022 (2) days sick leave because of MS.

27/01/2022 another 1 day sick leave because of MS.

8- 14/02/2022 another sick leave because of MS (an email was sent to AL, RK, MS (I’m not feeling well to continue working today, as my TL always creates stressful work environment, I think he is abusing his role and mixing it to revenge previous conflicts while we used to work as a QAs. (They completely ignored my email and they didn’t respond at all, which it was clearly a punishment way from AL and RK, and I think that’s all happened because once I reported RK to the HR, I believe everything can be related to this point.

Until I had to report to GL Head of HR, which he assigned AS to deal with the case.

15&16/02/2022 remained off sick leave until now.

Discrimination/ authorisation leadership/ misuse of authority/ unfair performance review feedback review made by MS: already I was in sick leave, and even when I went back to work in November 2021 I started training, so his final feedback was due to absolute personal stuff, abusing his management role, and as a way to revenge unfortunately.

2021 annual performance: Grades like this: -I, I, -M, M, M+

(-I) is the lowest, (+M) is highest.

9 – Discrimination/ unfair feedback/ authorisation leadership/ misuse of authority.

Performance (M) meet expectations

Rating on bytestyle (I) improvement needed

Engagement (I) improvement needed

Final feedback : Hasan meets requirements of quality but struggling with productivity consistently.

Hasan doesn’t show strong interest or initiative areas of improvement.

Improve communication skills.

9- Discrimination/ unfair feedback/ authorisation leadership/ misuse of authority.

2021 Performance mid year by MS, he made the review while I was already in sick leave, means, we didn’t work together at all after he became a team lead.

MMFinal feedback: Hasan was reaching quality and requirements, was sometimes struggling

for productivity. Improvement needed when communicating with his colleagues (he meant himself, referring to personal conflicts before he became a team lead). Hasan shouldn’t be afraid in admitting mistakes. (pure personal statement, revenge, and previous personal conflict)

10-I appealed both performance reviews to HR and P , but ended up nothing change, At this point I understood that AL, RK, MS, and P are very close to each other, and there is something happening only to create stressful work environment to push me to leave the company ( as well as RK, P, MS, are sending me copy paste messages) when I appealed the performance review, the same message that MS sent me, is the same that P sent me as a final outcome, which the final performance feedback remained the same as MS did . (They turned out the company to such a mafia)

Even many colleagues has a serious issues which has been reported against MS, but the HR and management didn’t do anything, our lives is destroyed because of someone that has a suspicious relationship between him and the HR, something suspicious that personally I can’t understand.

The HR even proposed to some colleagues to resign and take some money and sign that they will not go the court against the company (Real mafia, nothing else).

11-On 31/02/2022 I asked for a salary increase equal to most of the team, but they refused by AL, RK, and Team lead. And RK sent me an email to discuss the salary increase with my TL MS, same team lead that I have already asked for immediate transfer from his team, it was so clear for me that HR RK and AL are clearly mocking me, and pushing me to leave the company.

12-In February 2022 I took my second sick leave until now! (Stress, ups and downs, mood, hair loss, teeth issues, general fatigue, weight loss, anxiety, and depression etc..) last check up with my GP was on 13/12/2023 and I’ve been prescribed for 6-month anti depression medication.

13-When the company decided to pay me my sick leave back dated, Anna said that it’s going to be split over a few months to avoid paying high tax, but unfortunately they paid it at once, which the tax deduction was €3340, I almost died when I saw the payslip with this huge deduction, I contacted Anna again asked why they did this, and why they didn’t let me know in advance( as If they said that the company will pay all at once, It was possible to contribute some in pension or company shares).

Please note: The company didn’t follow up, reach out, or offer any type of support since January 2023. They didn’t pay my annual holiday (2022 & 2023). I’m not getting any payments at all. When they decided to pay my 2021 sick leave back dated, they stated that they paid as gesture of goodwill, not because I deserve it per policy, and even I didn’t get the payment, they paid to the revenue as I mentioned €3340 tax deduction.

Important note: I’ve never suffered from depression before. I live and work in Ireland since 2010. From 2010 to 2020 I only took 10 days sick leave. With TikTok, since 2020 sadly I took +28 months as sick leave, and still Ongoing.

All what I can say...The HR of this company has destroyed my work life and my personal life.”

Summary of Respondent’s Case:

The Respondent delivered a written submission prior to the initial hearing in January 2024 stating as follows:

1. INTRODUCTION

1.1 The Respondent is a video social networking service owned by TikTok Information Technologies UK Limited, with its registered offices situate at 10 Earlsfort Terrace, Dublin 2.

1.2 The Respondent established its Irish base in or around January 2020. The Respondent currently employs over 3,000 employees in Ireland. The Respondent is one of the most diverse employers in Ireland, employing over 60 different nationalities in its Irish operations alone.

1.3 The Complainant is employed by the Respondent as a Quality Analyst in the Respondent’s Trust and Safety Live Team in the Trust & Safety EMEA Division (the “Live Team”). The Live Team was previously part of the Blind Moderation Team which Team deprecated in October 2022. The Complainant has been employed as a Quality Analyst since 27 July 2020, at Grade 3 (G3) level.

1.4 There are several hundred employees in the Live Team, with over one hundred Quality Analysts (QAs) at G3 level. The Complainant is Egyptian and there are over 30 different nationalities employed in the Live Team. The Complainant is one of 21 QAs on the Respondent’s Arabic speaking team.

1.5 The Complainant has been on continuous long term sick leave since February 2022. The Complainant has availed of sick pay benefits. The Complainant also has applied to the Personal Injuries Assessment Board and has been the issued with an authorisation.

1.6 On 14 February 2023 the Complainant lodged the following claims with the Workplace Relations Commission (WRC):

(a) claims of discrimination and unequal pay under section 77 of the Employment Equality Acts 1998-2011 (the EE Acts) (CA-00055100-001 and CA-00055100-002);

(b) a claim under section 6 of the Payment of Wages Act 1991 (the PW Act) (CA- 00055100-003);

1.7 The WRC notified the Respondent of the claims in correspondence from the WRC dated 22 March 2023.

1.8 The Respondent strenuously denies the claims and is, in particular, aggrieved at the allegation it has discriminated against the Complainant on grounds of race (which is denied) as diversity and inclusivity are a core pillar of its operations as is clearly evidenced by its multinational workforce. The Respondent is an equal opportunities employer comprising a diverse workforce and is committed to ensuring that all employees receive equal treatment irrespective of any protected characteristics.

1.9 To date, the particulars of each of the Complainant’s claims remain very unclear and the Respondent’s ability to defend the claims has been compromised. The Respondent is entitled to be furnished with particulars of the claims it has to meet in advance of the hearing of the claims and reserves its rights in this regard, including its rights to furnish further written submissions and to call further witnesses.

2. RACIAL DISCRIMINATION (CA-00055100-001)

2.1 The Complainant’s case appears to be that he was treated less favourably on the grounds of his race when

- He was given the lowest performance review by the Team Lead on 29 April 2022;

- He was not promoted in or around August/September 2022; and

- He asked for a salary increase equal to his colleagues but was refused same without reason on 30 August 2022.

2.2 It appears that much of the Complainants complaints are out of time by virtue of Section 77(5)(a) of the EE Acts and insofar as the Respondent as to the date of purported dates of contravention of this Act, it will seek by way of preliminary application under section 79(3)(A) to have these claims dismissed.

2.3 The narrative attaching to the Complaint Form (section G) manifestly fails to detail the basis of the Complainant’s claims of racial discrimination. The narrative, in fact, sets out complaints that the Complainant has in respect of his employment with the Respondent which have nothing whatsoever to do with racial discrimination (claims which the Respondent rejects in the strongest terms and which were largely the subject of an internal investigation). The Complainant states:-

“I feel discriminated, they excluded me from the salary increases because of whats happened. I’m facing too much uncomfortable situations and the management and the HR keep creating stressful work environment to me, and this is effecting my mental health.”

2.4 “What’s happened” is as set out in the narrative which amounts to allegations relating to dissatisfaction with HR representatives and interpersonal issues with his Team Lead. These issues are all entirely unrelated to the Complainant’s claim of less favourable treatment on the basis of his race. The Complainant’s claims relate to industrial relations matters and not to racial discrimination.

2.5 Based on the Complaint Form and a perusal of the documentation submitted to the WRC by the Complainant, it is respectfully submitted that the Complainant’s claim is misconceived, frivolous, vexatious and bound to fail.

2.6 In Farley v Ireland [1997] 5 JIC 0104, Barron J stated:

“So far as the legality of a matter is concerned frivolous and vexatious are legal terms, they are not pejorative in any sense…it is merely a question of saying that so far as the plaintiff is concerned if he or she has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls that vexatious.”

2.7 Birmingham J in Nowak v Data Protection Commissioner [2012] IEHC 449 (in the context of a claim under the Data Protection Acts) stated that:

“[f]rivolous, in this context does not mean only foolish or silly, but rather a complaint that was futile, or misconceived or hopeless in the sense that it was incapable of achieving the desired outcome.”

2.8 Section 77A of the EE Acts empowers the Adjudication Officer to strike out a claim on the foregoing basis and the Respondent is seeking by way of preliminary application, that the Complainant’s claim be struck out on under section 77A.

2.9 Strictly without prejudice to the above, in order to succeed in either of his equality claims, the Complainant initially bears the burden of establishing a prima facie case of discrimination, and only then does the burden shift to the Respondent to prove, on the balance of probabilities, that there was no discrimination in breach of the EE Acts. Section 85A(i) of the EE Acts deals with the burden of proof and states that: -

"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 to the contrary."

2.10 In Southern Health Board v. Teresa Mitchell [2001] E.L.R. 201, the Labour Court set out the evidential burden which a complainant must discharge before it can accept that a prima facie case of discrimination has been established:

"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 the presumption of unlawful discrimination."

2.11 In Minaguchi v. Wineport Lakeshore Restaurant DEC-E/2002/20, the primary facts which a complainant must prove on the balance of probabilities were identified by the Equality Officer as follows:

- "That s/he is covered by the relevant discriminatory ground(s);

- That s/he has been subjected to specific treatments; and

- That this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would betreated."

2.12 In Southern Health Board v. Mitchell, the Labour Court went on to say that: -

"It is only if those primary facts are regarded…as being of sufficient significance to raise a presumption of discrimination that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."

2.13 In Melbury Developments v. Arturs Valpeters [2010] 27 ELR 64, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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 speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn (…) the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule."

(emphasis added)

2.14 As per the Labour Court decision in HSE North Eastern Area v. Sheridan EDA0820, whether a complainant has shifted the burden of proof necessitates the following three-step evaluation:

(i) "First, the complainant must prove the primary facts upon which he or sherelies in alleging discrimination.

(ii) Second, the Court must evaluate those facts and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.

(iii) Third, if the complainant fails at stage 1 or 2, he or she cannot succeed.

However, if the complainant succeeds at stages 1 and 2, the presumption of discrimination comes into play and the on us shifts to the respondent to prove, on the balance of probabilities, that there is no discrimination."

2.15 It is respectfully submitted that the Complainant has failed to establish a prima facie case of discrimination and that the Complainant's equality claims should therefore be dismissed. At its very height the Complainant’s claim amounts to “mere speculation or assertions unsupported by evidence” and respectfully, the Respondent contends that the Complainant’s claim of less favourable treatment does not even meet this standard as the conduct of complained of (which is denied) is wholly unrelated and not linked to the Complainant’s race. The Respondent relies upon the Court of Appeal decision in Olumide Smith v the Office of the Ombudsman & Others [2022] IECA 99 wherein the Court of Appeal found that the appellant in that case failed to adduce any evidence at all, never mind evidence sufficient to meet even the low threshold of a prima facie case. The Court of Appeal foundthat the appellant’s claims amounted to no more than mere assertion.

2.16 Strictly and entirely without prejudice to the foregoing, the Respondent contends that it has not treated the Complainant less favourably as alleged. In so far as the Respondent understands the case being made by the Complainant, it responds as follows:-

2.16.1 Lowest Performance Rating

(a) The Complainant’s allegation relating to receiving a lowest performance review by a

Team Lead in March 2022, is out of time by virtue of section 77(5)(a) of the EE Acts as the claim was not lodged with the WRC until 14 February 2023.

(b) Without prejudice to the foregoing, the Complainant received an M- score in the Annual

Review in 2021 (score communicated in March 2022). The reasons for his score were down to low productivity and time management issues. At that time, the Complainant was one of 10 employees in the then Blind Moderation Team who received an M-. Three of the Complainant’s colleagues (in the same team) also received an M- score and they were each of different nationalities.

(c) The Complainant challenged this rating by appeal letter of 30th April 2022 under the Respondent’s reconsideration process (see Appendix 4). Note there is no reference to race in this appeal letter.

(d) A meeting was held with Ms. PMD on 10 May 2022. Thereafter, on 18th May 2022 Ms. PMD issued a written decision to the Complainant confirming the M- rating and dismissing his appeal

(e) The Complainant’s performance rating has nothing whatsoever to do with his race. The Complainant has at all material times attributed this rating to his poor relations with his Team Lead and not to his race.

2.16.2 Failure to Promote

(a) It appears the Complainant is alleging that he was not promoted in or around August 2022/September 2022. The Respondent has no record of any application for promotion from or in respect of the Complainant at any time in 2022.

(b) The Respondent operates two types of promotions for employees:-

(i) Level Adjustment / In Line promotion

A ‘level adjustment’ or ‘In-line promotion’ occurs when an employee’s line manager recommends the employee for promotion based on his or her consistent performance over a 12-month period. An employee must receive two M+ scores over the last 12 months or one E score before they are eligible for a level adjustment/in-line promotion.

(ii). Internal Jobs Recruitment Process

Internal recruitment is carried out by a separate recruitment department within the Respondent’s organisation. The recruitment department is unconnected with an employee’s line manager. An employee with at least six months’ tenure may submit an internal job application for a specific role which is then considered by the appointed hiring manager for that particular role. Appointment for internal job recruitment is based upon candidate experience and skill. A shortlist of candidates is then compiled by the recruiter and hiring manager, after which interviews are held and the most

suitable candidate is selected.

rating.

(d) In so far as the Complainant makes an allegation under this heading to the effect that he failed to gain an alternative role internally within the Respondent, the Respondent confirms that the Complainant applied for 4 different roles in 2021 being R1 Team Leader, Market Point of Contact, Quality Analyst-Live and Market Point of Contact. The Complainant was unsuccessful in his applications. Any issue in respect of these applications is quite clearly out of time by virtue of section 77(5)(a) of the EEA.

(e) Without prejudice to the foregoing, the Complainant was unsuccessful as the other candidates for the said positions were better qualified. The Complainant’s failure to attain these positions had nothing whatsoever to do with his race. The hiring manager is not informed of any applicant’s nationality at any stage during the process.

2.16.3 Failure to Grant a Salary Increase

(a) The Complainant’s allegation that he asked for a salary increase on 30 August 2022 but was denied same without reason, is not understood.

(b) There is no process by which an employee of the Respondent can request a salary increase. The Global Performance & Incentives Team devise criteria for salary increases. In addition, an assessment of employee's performance against their peers and their position within Total Package range is assessed and forms part of the approval process. These criteria applied to the Trust & Safety EMEA Division.

(c) Each department’s leadership then has the discretion to recommend increases in line with the guidelines. However, the guidelines in the performance system provide that no employee that received an M- score or below in the previous review period would be eligible for an increase in the current one.

(d) In line with the Respondent’s performance system, the Complainant was not recommended for, and therefore did not receive, an increase in salary for the year 2021 (communicated in March 2022) based on his annual review scoring of M-. At the time 173 employees in the Blind Moderation team did not receive a pay increase (including 15 employees within the Complainant’s team).

(e) In the 2022 Mid-Year review (processed in November 2022), only 86 of 229 employees

received a salary increase. 143 Blind Moderation employees (including the Complainant) did not receive a pay increase in 2022 mid-year review cycle.

(f) At the time of the Annual Review 2022 (processed in March 2023) the Complainant has been absent from work since February 2022. The Complainant was awarded an “M” rating. The Claimant received a salary increase of €2,000 (5.4%).

(g) Table 2: Below is an overview of the 2022 End of Year increases within the Live

Team.

[TABLE INSERTED IN ORIGINAL SUBMISSION]

(h) The Respondent denies the allegation it has discriminated against the Complainant in

relation to salary increases.

2.16.4 Grievance

(a) For completeness, the Complainant has set out a detailed narrative in his Complaint Form regarding concerns and complaints relating to his workplace. The narrative is not linked to the Complainant’s complaint of discrimination of race, or indeed any other discriminatory ground.

(b) It is respectfully submitted that the issues raised by the Complainant in his Complaint Form are industrial relations issues and to a large extent replicate a grievance raised by the Complainant in February 2022.

(c) In this regard, the Complainant emailed Mr. GL, HR Leader, on 17 February 2022 setting out his concerns. On foot of receipt of this email, a grievance investigation was initiated by the Respondent in accordance with the Respondent’s Grievance Policy.

(d) Ms AS, HR Business Partner, Trust & Safety EMEA, met with the Complainant on 16 March 2022. She thereafter issued her outcome letter on 13 April2022.

(e) In accordance with the Respondent’s Grievance Policy, the Complainant was notified of his right of appeal. He availed of this right and Ms. NJ, HR Business Partner, Trust & Safety met with the Complainant on 25 April 2022 and issued an outcome letter of 6 May 2022.

(f) At no stage during the investigation of his complaints did the Complainant raise any issue that he had been treated less favourably due to his race. These issues have been responded to by the Respondent and investigated where appropriate. The Respondent’s HR representatives have engaged fully with the Complainant and attempted to resolve his issues and concerns

3. EQUAL PAY CLAIM (CA-00055100-002)

3.1 In addition the Complainant is maintaining a claim that he was discriminated on the basis of his race in terms of his pay contrary to the EE Acts. He cites as comparators:- two named individuals “and

all my colleagues that we joined on the same date, and even colleagues who started after!”.

(emphasis added)

3.2 The Respondent reiterates that this claim is frivolous and vexatious, misconceived and bound to fail and seeks that it be struck out as such.

3.3 Without prejudice to the foregoing, not only does the Complainant have to establish that he has a prima facie case of discrimination in terms of his pay on the basis of his race, he must also demonstrate an appropriate comparator. An actual comparator is required Brides v. Minister forAgriculture [1998] E.L.R. 125. Section 6 of the EE Acts requires that the comparator must be in a “comparable situation” and therefore a level of similarity is required in order for the circumstances of the two persons to be comparable.

3.4 In Toker Developments Limited v. Grods EDA105, the Labour Court rejected that a hypothetical

comparator could be utilised in an equal pay claim. Additionally, the Labour Court affirmed the decision of the Court of Appeal in Madarassy v Nomura International Plc [2007] IRLR 246 to the effect that the mere fact of a difference in status (i.e. race) and a difference in treatment was insufficient to shift the probative burden of proof.

3.5 The Complainant must establish a prima facie case that he is performing like work with a chosen

comparator and that he is receiving less pay than the comparator and that the reason for the pay

differential is his race.

3.6 It is respectfully submitted that the Complainant has failed to highlight an appropriate comparator and has failed to establish a prima facie case of discrimination in terms of pay on the basis of his race and his claim should accordingly be dismissed.

3.7 Without prejudice to the above, the Complainant is a G3 employee. The first comparator cited by the Complainant is not comparable as he is level G4 employee and not a level G3 employee. The second comparator cited by the Complainant is a level G3 employee and the Respondent will give evidence as to his respective salary at the hearing of the matter, if deemed necessary. He is of a different nationality to the Complainant.

3.8 Without prejudice to the above, the table below sets out the range of salary and bonus of the Quality Analysts in the Complainant’s team within the Live Team in 2021, 2022 and 2023.

[TABLE INSERTED IN ORIGINAL SUBMISSION]

3.9 The Respondent does not pay the Complainant less pay than other employees on grounds of race.

4. PAYMENT OF WAGES (CA- 00055100-3)

4.1 The Complainant’s complaint under section 6 of the PW Act (CA-00057854-003) appears to relate to any alleged failure on the part of the Respondent to ensure that the Complainant receive his holiday pay in the amount of “about €2889”.

4.2 As mentioned above, the Complainant has been on continuous sick leave since February 2022. He has received full benefits under the Sick Pay Policy.

4.3 In accordance with the OW Act, where an employee is certified sick that day cannot be considered a day of annual leave (S.19). Furthermore (S.23) the OW Act only allows for accrued annual leave to be paid out on the termination of employment (which does not arise here). That being the case, it is the Respondent’s submission that no annual leave can be paid to the Complainant and it continues to accrue in accordance with the OW Act.

4.4 The Respondent has not breached any provision of the PW Act.

5. ORGANISATION OF WORKING TIME ACT (CA00055100-4)

5.1 The Complainant’s complaint under S.27 of the OW Act (CA-00057854-004) appears to relate to any alleged failure on the part of the Respondent to ensure that the Complainant received his annual

leave entitlements.

5.2 As above, the Complainant has been on continuous sick leave since February 2022. The Complainant accrued 24 days from 2022 and accrued 24 days for 2023. Taking into account section 20(1)(c) of the OW Act, the Complainant’s accrued days for 2022 will be forfeited at the end of March 2024.

5.3 The Respondent has not breached the provisions under the OW Act.

6. CONCLUSION

6.1 The Respondent seeks that in so far as appropriate (which will only be apparent once the Complainant is pressed on the detail of his claims) that the Complainant’s claims be dismissed as being out of time.

6.2 Without prejudice to the above, the Respondent seeks for the Complainant’s claims under the EE Act to be dismissed on the basis that they are frivolous, vexatious, bound to fail and misconceived.

6.3 Without prejudice to the above, the Respondent seeks that the EE Act claims are dismissed on the basis that the Complainant has failed to demonstrate a prima facie case of discrimination i.e. a failure to promote the Complainant on the grounds of his race and a failure to pay the Complainant equally to an identified comparator for like work on the grounds of his race.

6.4 Without prejudice to the above, if the Adjudication Officer determines that the Complainant has

established a prima facie case as required (which is strenuously denied) the Respondent has rebutted the inference of discrimination.

6.5 The Respondent has not breached the OW or the PW Acts for the reasons set out above.

6.6 The Respondent expressly reserves the right to furnish additional submissions and to adduce such evidence as appropriate.

Findings and Conclusions:

The manner in which the Complainant has presented and conducted his case has presented significant delays and other challenges.

The matter first came before me on the 19th of January 2024. On that date the Complainant was represented by a solicitor. The Respondent was represented by Ms. Mylotte B.L. instructed by DLA Piper Ireland LLP Solicitors.

The following reference numbers and descriptions had been allocated by the WRC to the claims by reference to the Complaint Form which had initiated them:

CA-00055100-001 and -002 - two claims pursuant to the Employment Equality Act 1998 (as amended),

CA-00055100-003 - A claim pursuant to the Payment of Wages Act 1991

CA-00055100-004 - A claim pursuant to the Organisation of Working Tie Act 1997

The Complainant’s original WRC Complaint form was completed in manuscript, and it was impossible from reading this document to ascertain what claims were being advanced and why. The Respondent’s solicitor delivered a very detailed and comprehensive submission (quoted above) whereby an attempt was made to address and provide responses to the claims made insofar as those claims were understood. The Complainant was directed in the presence of his solicitor and the Respondent’s legal team and witnesses, to deliver a detailed submission setting out the full basis of each claim and to specify the provisions relied upon. It was indicated to the Complainant and his solicitor that insofar as any claim or discrimination in pay or terms or conditions of employment was concerned, a comparator had to be identified as this is a very express requirement of Section 6 of the Employment Equality Act 1998 (as amended).

The Complainant agreed to deliver submissions on or before 16 February 2024. He sought further extensions of time for a variety of reasons. A case management hearing was convened for the 8th of July 2024. However, this was postponed at the Complainant’s request as he was unable to attend. The Complainant’s further submission was eventually delivered on the 30th of July 2024.

The submission provided by the Complainant did not specify the ground relied upon for any of the claims. Insofar as any claims for discrimination in terms and conditions of employment were being advanced no comparator was identified. The Respondent by letter from its solicitors dated the 21st of August 2024 had the following response to the submission:

“Having reviewed the Complainant’s Submissions and without prejudice to the above, respectfully, the Respondent remains convinced that the Complainant’s claims are wholly misconceived and/or frivolous and vexatious. The Respondent's view is that the Complainant's claims are industrial relations matters and in no way whatsoever support a claim of discrimination on the ground contended.

Additionally, the Respondent submits that in the Complainant’s Submissions, the Complainant has failed to detail any comparator in relation to any of his claims for discrimination and/or unequal pay; the Complainant has failed to particularise any claim of discrimination; the Complainant has failed to set out a prima facie case of discrimination on the ground contended; and he has failed to particularise the specific dates of alleged discrimination etc.

Additionally and without prejudice to what is set out above, the Respondent respectfully submits that the Complainant's claims are statute barred as the events which are detailed in the Complainant's Submissions occurred more than 6 months' prior to the date upon which the Complainant filed his WRC complaint form on 14 February 2023.

In relation to the remaining claims (i.e. claims under the Organisation of Working Time Act and the Payment of Wages Act), respectfully, the Complainant’s Submissions fall well short of setting out the specific details in relation to these alleged breaches such that the Respondent is still not aware of the claims that it is being asked to meet. This represents a fundamental breach of the Respondent’s entitlement to fair procedures.

The Respondent cannot be expected to defend claims where it does not understand the basis of the claims being made. Again, this point was made on 19 January 2024 and in its submission furnished in advance of that date.”

This case was listed for hearing on the 23rd of September 2024 in Lansdowne House. Prior to this date, on the 13th of September 2024, the Complainant applied for a postponement. This request was considered by an Adjudication Officer who refused the application by letter dated the 19th of September 2024. Subsequently a further application for a postponement was made by the Complainant based on medical unfitness and this application was granted by the WRC on the morning of the hearing, on the 23rd of September 2024.

The matter was again relisted for the 25th of November 2024 and proceeded on that date.

The grounds of discrimination which are the subject matter of this claim were not specified in the Complainant’s application form nor in his submission dated the 30th of July 2024. The issue was not in fact clarified until the Complainant gave oral evidence at the adjudication hearing. In that evidence the Complainant stated that the ground relied upon was that of nationality. This issue was developed further and centred on two separate issues.

The first issue identified by the Complainant concerned a dispute which the Complainant had with a Team Leader, MS in March of 2020. In his evidence the Complainant advised that this individual is Jordanian whereas he, the Complainant, is Egyptian and he suggested that this difference in nationality was a relevant factor in the issues that developed between them. This issue will be referred to as “the Team Leader Nationality Issue”.

The second issue dated back to the 27th of May 2021. On that date the Complainant posted what was described as a “Status” on an internal network to which a large number of employees had access. This network is known as “LARK”. The Complainant’s status contained the words “Free Palestine” after the Complainant’s name. One of the Complainant’s colleagues, who was working with him at the time, took exception to the status. This individual is an Israeli national who made a complaint to the Respondent’s H.R. Department. By reference to his submission of the 30th of July 2024, the Complainant alleged that he was subjected to a lack of professionalism and respect towards him which created a toxic workplace culture. He said that he was threatened by RK and CH in the H.R. Department and he was given a direct instruction to remove the status on the Lark system as it was in breach of policy. He made his own enquiries with the Respondent’s Policy Team and with his own Team Leader and he ascertained that what he had done was not in breach of policy. Nonetheless the Complainant did in fact remove the status, as he put it, “in the interests of good relations”. However, he was unhappy at the way in which H.R. had told him that he was in breach of policy and directed him to remove the status. He made a complaint which was handled by AL the Respondent’s H.R. Business Partner Leader who arranged a video call with him to discuss his complaint. The Complainant said that he was unhappy with the way in which RK had handled the situation. The Complainant recalled AL saying that RK should not have communicated in the way she did. He apologised on her behalf and said that in the future the communications would be improved. AL asked the Complainant if he wanted to file a formal complaint, and the Complainant said that he did not. He explained later in his evidence that he did not file a formal complainant because his applications for internal jobs were still pending. The Complainant said that shortly thereafter an application which he had made for an internal job was rejected. He was also subjected to disciplinary proceedings. When the Respondent’s counsel pointed out that the disciplinary proceedings were already initiated before the posting of the status, albeit that they were concluded after it, the Complainant insisted that the disciplinary process came after the Lark posting issue had arisen. The Complainant in his evidence offered the opinion that he was punished for the posting and for complaining about how it was handled by H.R., but he did not say this this when he was engaging with the disciplinary process. He further expressed the opinion in his evidence, that the Respondent “took the side of his Israeli colleague” who had reported him, in the sense that the Respondent favoured her over him against the background of ongoing conflict between his native country and hers.

I shall refer to this situation, as it was described by the parties, as “The Lark Issue”.

On the 17th of February 2022, the Complainant invoked the Respondent’s formal grievance procedures. In so doing the Complainant set out in writing the precise basis of the grievances which he then wished to pursue. These were set out in an email which I shall refer to as the Grievance Statement. With some spelling/typographical corrections and using initials of named individuals, the text of the statement is as follows:

Last year on May or June, I have been threatened by HR(Rachelle) and another one from UK, but I dont remember her name, to remove my lark status, which at the end after a couple of meetings with A, she apologised and admitted that she was supposed to deal with the situation in a different professional way, and this was the beginning of suffering from high stress level and short breathe because of my TL M, and R

Then after I attended a consultation I had to take sick leave, the HR decided not pay it due to disciplinary hearing was on hold (Confusion about working weekend day, was supposed to work) , then I reached them out later that l'm ready to attend the hearing as I need my salary to cover my expenses etc...

After i attended the hearing they issued me (Written warning) which I appealed it as this was my flrst time and per policy they should issue (just verbal warning) which they accept it.

After everything is done, I reached out to understand why the company still not paying me, as the reason for not paying is not exist anymore, they sent me email that the company has the right to do so, with no explanation!

ln the middle of the situation, Aaron said to me that M, my TL will move to another team, and every thing should be fine!

I had to follow my GP prescription medication due to high level of stress and depression for the first time in my life,

I didn't get any support from the HR at all!

Afler a couple of months, I started to improve, and as I have no source of income, I start planning to back to work, especially that the previous TLs promoted to another roles, but the issue was about the new TL, MS which we had many conflicts while we worked together as a QAs, at the same time A and R were aware about it, I expressed my concern to them, A said that MS will not be my TL, which was good news.

I contacted the HR, which they start preparing the return, but I found myself in MS’s team, I was surprised, I expressed my concern again to R, she said that they can't transfer me (later on after I back to work, I realized that a few QAs from my BM team transferred to another BM team) as by doing so, everybody will ask for transferring, but the said to me that she will talk to MS and make sure to avoid any conflicts in the future, and she sent the company policy to make any complaints in the future!

I started, finished the training... but MS started to slightly asking as nonsense question... For example... I forgot on Friday .... to switch working hour to offline, on Monday the first thing was in his schedule is to ruin my day and ask me why I was on idle mode over the weekend, which for me was clearly the beginning of abusing his TL power role, I reached out to R, and without understanding the issue, or even knowing the details, she just agreed with his behaviour and didn't care about the issue, all what she did, she asked me talk to him, -

later on same day, he asked me in a strange way to answer his question and explain why I was on idle mode over the weekend, despite I corrected it already, I start to feel stressed and I took next day sick leave.

And it became like that, at least every week, he approach me and asking about anything that makes only stress and make me feel bad.

On (1710112022 ) he was off for a couple of days, while the QA in charge of game plan was posting new version of game plan (every 2 hour more or less, he post a batch of queues instead of the official game plan) and while we were in ramp up, I wanted to confirm with him if we required to reach a specific target or no, he said yes, I tried to explain him that how the QAs in ramp up requested to reach specific target, while the rest of QAs are not required to do so, how they do so while they cover same queues, ramp up QAs are not familiar with queues, the rest of QAs are familiar and work and finish the batches faster, I recommended to him to post a specific batch only for ramp up QAs, we started this conversation at 1Oam until about 14:45, all this time and he doesn't show interest in my recommendation while we talk in private, but I was so surprised after less an hour, he started to post a specific batch for ramp up and another batch for the rest of the QAs, which I was like what's going on, I already suggested this plan, why he refused in private and start to post it in our BM public group??

On Friday 11102 I was working on Rock appeals, and I couldn't submit 3 cases, I escalated to him at the end of the day, but he finished early that day!

And as I know the deadline for the cases will end soon, I managed to try submitting them over the weekend, but I couldn't!

On Monday (1410212022) he reached me out about the cases, I explained him but for some reason he insisted that it's my mistake, I tried to explain more, even I asked him a technical question about the system, he disappeared for a while and when he back, his answer wasn't correct about the RCAs tags, he said the appeals came with blank RCAs, which the fact is it always came with RCAs applied by system, but he didn't like that I corrected him, and he insisted that it was my mistakes, while I'm 100% sure that it was a bug in the system.

Then he asked again after all of that, what's happened exactly, and why I tried to work the appeal cases over the weekend, l felt like he's mocking me, I already explained everything in details, provided with screen shots??

At this point, I felt uncomfortable, stressed, and depressed, I contacted Rachelle and Aaron explained them that it's too much and impossible to work together and I needed transferring to another team as I tried hardly to work professionally with him, but he is abusing the management role and use it to revenge for our previous conflicts while we used to work as a QAs!

They never provide me with any support while I was off for about 4 months, even when I back, I didn't find any support from all the management, they only caused stress and uncomfortable work environment!

I got some news, that most of QAs have got salary increase (2000 - 4000 euros) except me, some QAs got 2000 euro while they were not active at all, and they only worked in one project, while since l joined the company, from my side I believe that I deserve it, as since I started in July 2020,I was working hard and I participated in most of the projects as it's shown in my OKR, as well as I got M+ in the last annual performance cycle, and until June 2021, I was working on many projects, my QA main responsibilities, as well as I was doing (Monitor, Buddy, and Monter)

Now I feel so bad, and I even feel that R ignored my issues and didn't care about my situation, because I reported her to you and A in the past, which she apologised for what's happened?

I feel discriminated, they excluded me from the salary increases because of what's happened,

I'm facing too much uncomfortable situations and the management and the HR keep creating stressful work environment to me, and this is effecting my mental health!

I feel like HR are punishing me and treating me as if I'm just number or robot! I have been working in many giant social media companies, for many years, but I have never had this type of issues!l

After my mental health improved since last June, unfortunately, I started again to feel too much stress and depression, I'm writing this email now, and its 06:52 in the Morning, but I can't sleep!

Today is Thursday 17102,1 sent this email to HR on Monday 1410212022 and until now nobody replied, they completely ignored the situation, as there is nothing happened at all, even I requested Monday half day sick leave, and Tuesday, but they didn't approve it int the system!!

They made me feel so down with more and more stress, since May last year and they keep making me feel so much stress and unwelcome in the company, for all this time and I'm trying to ignore this idea, but its clearly visible now that its the truth, I feel unwelcome in the company, I feel discriminate, excluded, and they trying hatdly to push me to resign!”

The “Team Leader Nationality Issue”

In his evidence at the Adjudication hearing the Complainant alleged that the fact that he and MS, although both native Arabic speakers, were of different nationalities, this was the reason why tension arose between them which, he alleged, was the cause of his mistreatment at the hands of MS. He said that he did mention this issue on a videocall with another supervisor, MK on or about the 15th of March 2020. The Complainant said in evidence that during this videocall with MK, the Complainant discussed the problems he was then having with the working relationship between himself and MS and that maybe the reason for this was because he (the Complainant) and MS were of different nationalities. He said that MK played down the issue and advised the Complainant not to escalate the situation and that it was going to be sorted out. The Complainant said that nothing further was done but that MS continued to “mess with the game plan” by which he meant that MS was continuing to abuse his position.

There can be little doubt that when the Complainant took the opportunity to formalise his grievances by way of the above statement on the 17th February 2022, he had the subjective view that this individual was guilty of harassing and/or bullying him. However, the fact that he made no mention whatsoever of tensions arising from differing nationalities as between the Complainant and his supervisor in the course of the grievance process is inexplicable and fundamentally undermines the credibility of this allegation, which was only articulated at the adjudication hearing in November 2024, more than four years after he allegedly raised the issue internally.

The Lark Issue “The Lark Issue”.

Following the initiation of the Complainant’s internal grievance on the 17th of February 2022, a formal grievance meeting was held on the 16th of March 2022. The notes of that meeting reflect that the Complainant was asked whether this issue had been resolved, and he replied: “The Lark issue was already resolved”. I find that the Complainant withdrew this issue in the course of that meeting.

A formal grievance process such as that invoked by the Complainant presented the Complainant with an opportunity to raise all and any issues which were troubling him at that time. This being so one would have expected that any issue whatsoever which was of concern to the Complainant would have been ventilated through the grievance process. In the Grievance Statement the word discrimination is used twice but, in neither case, does it specify discrimination on grounds of nationality or for that matter any other ground. It is also the case that the Complainant did not in fact clarify the ground referred to until the adjudication hearing when he was requested to clarify the issue having not done so up to that point, including in his written submissions.

The term “discrimination” has a very specific meaning when used in the context of a claim under the Employment Equality Act 1998 (as amended) in that the term does not stand alone and must be associated with one of the grounds set out in the Act. This is the case when a claim is presented but it is also the case when an internal grievance is made since, without the issue being specified as discrimination on a particular ground and without specifics of that discrimination being provided, an employer is deprived of the opportunity of investigating or properly investigating it. It also follows that an employer cannot fairly or reasonably, subsequently, be criticised or held to account for acts of alleged discrimination not brought to its attention.

In Melbury Developments v. Arturs Valpeters [2010] 27 ELR 64, the Labour Court, confirmed 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 burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule."

I find that of the two instances advanced by the Complainant of alleged discrimination on the grounds of nationality, the first ground was never included or alluded to in a formal grievance and the second ground was withdrawn. In the absence of any connection with nationality the complaints, as advanced in the grievance and again in evidence at the adjudication hearing, fall outside the scope of a discrimination claim in the absence of any credible or reasonable connection to the nationality ground.

Section 85A of the Acts makes specific provision in relation to the burden of proof in Discrimination Claims

Section 85A (1) of the Acts states that:

“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.”

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12E.L.R. 201, the Labour Court concluded that:

“a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”

The Labour Court has held in Hallinan v. Moy Valley Resources DEC-S2008-025 that to establish the relevant facts the Complainant must:

(a) establish that he or she is covered by the protected ground;

(b) Establish the specific treatment has allegedly taken place;

(c) The treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground.

Applying the above to the facts of the present claims for discrimination, I find that the Complainant has failed to establish facts - as distinct from mere speculation or assertions, unsupported by evidence - from which an inference of discrimination can be drawn. I conclude that the evidential burden (which admits of no exceptions) as provided for by Section 85A has not been discharged and that accordingly I must find that the Respondent did not discriminate against the Complainant as alleged and this finding relates to all of the claims of discrimination made by the Complainant howsoever formulated whether as discrimination in terms or conditions of employment or pay, victimisation or harassment.

The Time Limit Issue - Sections 77 (5)

The foregoing primary finding is the basis on which I have made my decision on the discrimination claims raised. However, the issue of delay in the initiation of the proceedings beyond the six-month time limit and whether an extension should be granted did arise at the conclusion of the adjudication hearing on the 25th of November 2024 and was the subject matter of further submissions and for this reason I would wish to clarify the status of the issue.

At the Adjudication Hearing the Complainant did not allege that any further discrimination occurred between May 2022 (when the grievance process was completed) and February 2023 when his Complainant Form was received by the WRC. The Respondent submitted that this meant that more than six months (at least) had elapsed by the time the Complaint Form initiating the claims was received by the WRC and that the claims were out of time.

No application was made by the Complainant for an extension of time when the Complaint form was submitted, at the initial hearing when the Complainant was legally represented, at the start of or during the adjudication hearing. It was only when the Respondent made submissions at the end of the Complainant’s evidence at Adjudication Hearing to the effect that (as previously contended) the claim was out of time, that the Complainant sought liberty to make an application for an extension of time. Without ruling on the belated nature of the application or on the application itself, I permitted the Complainant to make a further submission as to why he should be allowed to make an application for an extension of time and as to the substantive grounds for that application. I also permitted the Respondent to reply to that application and to make any further submissions deemed appropriate based on the evidence which had been given by the Complainant.

The Complainant delivered a submission to which the Respondent delivered a detailed reply challenging the entirety of content of the Complainant’s submission and offering further submissions on the evidence given by the Complainant at the adjudication hearing. The Complainant was afforded an opportunity to respond to this submission but did not do so.

In the light of the finding which I have made above on the substantive merits of the claims, to the effect that facts have not been established from which an inference of discrimination can be drawn, the issue of the timeliness or otherwise of the claims is moot and no finding on it is necessary.

CA-00055100-003 - The claim pursuant to the Payment of Wages Act 1991

In his evidence at the adjudication hearing the Complainant asserted that he had a contractual right to sick pay and that he had not been paid sick pay. The Respondent submitted, by reference to its sick pay policy, that the Complainant had no contractual right to sick pay but that he was paid sick pay as a gesture of goodwill. The Complainant accepted that this was the case albeit that he contended that the payment should have been made sooner than it was. The sole issue therefore raised by the Complainant, is one of delay rather than non-payment of what he accepted to have been a sum to which he had no contractual entitlement.

Insofar as relevant to the present case the Payment of Wages Act 1991 provides a remedy where an employer makes an “unlawful deduction” from “wages”.

The terms “Wages” is defined in Section 1 (insofar as is relevant to the present case) as follows:

‘ “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…”

The payment made and accepted in this case may arguably have been made “in connection with” the Complainant’s employment but because the Complainant had no contractual entitlement to the payment, which he accepted was paid as a gesture of goodwill, it cannot be said that the payment was “payable” in the sense that it was earned or that the Complainant was in any way entitled to it. Accordingly, I find that the payment the subject matter of this claim cannot be considered as “wages” as defined and thus the Act is not engaged. The issue of the alleged delay in making the payment in this case is thus outside the scope of the Act and the claim is not well-founded. I would add that a delay in making a payment of “wages” at a time that was agreed could be capable of constituting a deduction by way of non-payment if that payment were not made at that particular time but this issue does not arise in the present case as I have found that the payment involved was not in the nature of “wages” as defined in the Act.

CA-00055100-004 The Claim pursuant to the Organisation of Working Time Act 1997 as amended

It became clear from the Complainant’s evidence that he was seeking holiday pay accrued whilst he has been out on sick leave in accordance with Section 20 subsection (1) (c) (iii) and Section 23 of the Act as amended.

Section 20 subsection (1) (c) (iii) provides for an entitlement to compensation for holiday pay not taken due to illness where the criteria in that provision are satisfied. However, it is clear from the wording of Section 23 that this compensation entitlement only arises “on cesser of employment” and then only in respect of the “relevant period” as defined in Section 23 subsection (1) (b).

In the present case the Complainant has not ceased to be employed by the Respondent but remains on sick leave. In such circumstances the entitlement to compensation provided for in Section 20 has not crystallised and will not do so unless and until the Complainant ceases to be employed by the Respondent and even then, his entitlement at that stage will be limited to the “relevant period”. At present therefore the Respondent is not in breach of the Act and the claim is not well-founded.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00055100-001 – Claim Pursuant to Section 77 of the Employment Equality Act, 1998 - The Respondent did not discriminate against the Complainant

CA-00055100-002 - Claim Pursuant to Section 77 of the Employment Equality Act, 1998 - The Respondent did not discriminate against the Complainant

CA-00055100-003 - Claim pursuant to the Payment of Wages Act 1991 – Claim not well-founded

CA-00055100-004 - Claim pursuant to the Organisation of Working Time Act 1997- Claim not well-founded

Dated: 16-04-2025

Workplace Relations Commission Adjudication Officer: Michael MacNamee

Key Words:

Employment Equality Act 1998 – Section 85A – Payment of Wages – Definition of “Wages” – Goodwill gesture – Holiday Pay while on sick leave – Organisation of Working Time Act 1997 – Section 20 (1) (c) (iii) - Section 23

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00044807

Parties:

	Complainant	Respondent
Parties	Hasan aka Mohammed Arafa	Bytedance Tiktok Technolgy Limited

Representatives

Self

Ruth Mylotte B.L. instructed by DLA Piper Ireland LLP Solicitors

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00055100-001	14/02/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00055100-002	14/02/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00055100-003	14/02/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00055100-004	14/02/2023

Date of Adjudication Hearing: 25/11/2024

Workplace Relations Commission Adjudication Officer: Michael MacNamee

Procedure:

Background:

Summary of Complainant’s Case:

The Complainant delivered a written submission dated the 30th of July 2024. With names initialised, some typos corrected, and some punctuation added, the submissions stated as follows:

“Nature of the Case:

These actions have significantly impacted my well-being, mental health, and overall work experience at the company.

Grounds Relied Upon:

Evidence Supporting the Claim:

Conclusion:

1- Me, RK and MS:

In June 2021 applied for Market point of contact (the only position that they contacted me back for the next step, but I was on sick leave at this time)

In January 2021 applied for Quality team lead (Rejected)

In January 2021 applied for Market point of contact (Rejected)

Investigation /appeal by: KO & LY / PM.

First sick leave June 2021 – November 2021

6- I back to work in November 2021 reporting to MS’s team.

7- Discrimination, about break time

2&3/01/2022 (2) days sick leave because of MS.

27/01/2022 another 1 day sick leave because of MS.

Until I had to report to GL Head of HR, which he assigned AS to deal with the case.

15&16/02/2022 remained off sick leave until now.

Discrimination/ authorisation leadership/ misuse of authority/ unfair performance review feedback review made by MS: already I was in sick leave, and even when I went back to work in November 2021 I started training , so his final feedback was due to absolute personal stuff, abusing his management role, and as a way to revenge unfortunately.

2021 annual performance: Grades like this: -I, I, -M, M, M+

(-I) is the lowest, (+M) is highest.

9 – Discrimination/ unfair feedback/ authorisation leadership/ misuse of authority.

Performance (M) meet expectations

Rating on bytestyle (I) improvement needed

Engagement (I) improvement needed

Final feedback : Hasan meets requirements of quality, but struggling with productivity consistently.