Complainant

Respondent

Parties

Wei  Luo

Huawei Technologies Ireland Co., Limited

Representatives

Ming Hui Lin

Aleksandra Tiilikainen IBEC

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-00058625-001

03/09/2023

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

CA-00058625-002

03/09/2023

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

CA-00058625-003

03/09/2023

The Complainant commenced employment with the Respondent on 28th June 202. The Complainant was employed as a Senior Financial Specialist B / Project Financial Controller.

This complaint was received by the Workplace Relations Commission on 3rd September 2023.

Introduction

1. Ms Wei Luo (the Complainant) issued three complaints against Huawei Technologies

Ireland Co., Limited (the Respondent) on 3 September 2023.

a. CA-00058625-001 – Complaint of discrimination on the age ground and/or

the ground of race seeking adjudication under section 77 of the

Employment Equality Act 1998

b. CA-00058625-002 – Complaint of non-payment of wages seeking

adjudication under section 6 of the Payment of Wages Act 1991

c. CA-00058625-003 – Complaint of unfair dismissal seeking adjudication

under section 8 of the Unfair Dismissals Act 1977.

2. The Complainant intends to pursue the first and second complaints before the

Adjudication Officer at hearing.

3. The Complainant was an employee of the Respondent from 28 June 2021 to 3

December 2023.

4. These submissions will first address the Complainant’s complaint of discrimination

(CA-00058625-001). They will then address the Complainant’s complaint of non-payment

of wages (CA-00058625-002).

5. These submissions will conclude with submissions on the remedies which are sought

from the Adjudication Officer in the case that these complaints are well-founded.

Employment Equality Claim

Facts of complaints

6. The Complainant alleges in her complaint form to the Workplace Relations

Commission, dated 3 September 2023, that she was subject to the following incidents

of less-favourable treatment in the course of her employment:

a. In February 2022, the Complainant’s job title was demoted from “senior financial specialist” to “project financial specialist” without her consent, a

job title demotion which continued until the date of termination of her

employment.

b. In mid-2022, after the Complainant’s job title demotion, Tom (Pan Tian

Xiao) was appointed CFO of the Respondent company, becoming the

Complainant’s line manager. This appointment was made without any

internal advertisement of the role and despite the Complainant’s experience and credentials meeting or exceeding those held by “Tom” at the time of appointment;

c. After Tom’s appointment to CFO, the Complainant began to receive less positive performance reviews, going from an “A” rating in 2021 to a “qualified” rating with a work attitude rating of “B” in 2022;

d. The Complainant’s work attitude rating of “B” in 2022 was attributed to the Complainant’s resignation in November 2022. This resignation arose due to bullying comments made by the multi-country carrier network business group (“CNBG”) CFO, Jack, (Zhang Wen Fei) toward the Complainant in a meeting. The Complainant’s resignation was withdrawn after receiving

an apology from Jack regarding the comments, but the event was still used as a basis for a reduced performance review rating;

e. The incident of bullying which occurred in November 2022 itself constituted

an act of less-favourable treatment against the Complainant;

f. The Complainant applied for an internal competency and qualification level 4 in December 2022. This application was rejected by the Respondent in March 2023, with the Complainant’s line manager, Tom, agreeing that her professional qualification and competency should only be at a junior level. The Complainant appealed this decision to the Respondent’s parent company’s headquarters, which agreed with the Respondent that she qualified for level 4 and advised the Complainant that she should apply for level 5.

g. The Complainant’s performance review comments, as conducted by Tom, continued to deteriorate in 2023, as shown by an email from Tom to the Complainant dated 24 July 2023.

h. The Complainant raised a complaint about her H1 performance review to Tom and the Respondent’s HR department by email dated 31 July 2023, highlighting a lack of specificity and awareness of the Complainant’s role and performance. Despite this detailed effort, the Complainant’s concerns were never addressed.

i. The Complainant has reason to believe her deteriorating performance reviews caused the Complainant’s bonus payments to proportionally decrease from 2021 to 2022. Payslips which illustrate this decline in payments were included in the submission.

j. The Complainant attempted on numerous occasions to clarify the exact method by which her bonus payments were being calculated, and how her demotion and/or her less favourable performance reviews were affecting those payments, but those queries were never answered, including through correspondence with HR representatives of the Respondent.

k. On 2 August 2023, two days after the Complainant raised her complaint regarding her performance rating, the Complainant was advised by Tony (Respondent CEO) in reply to that complaint that the company has made a “strategy decision for organization re-structure” which would result in the Complainant’s role expanding to incorporate the role of other former

colleagues.

l. On 18 August 2023, after a lengthy meeting with the Complainant, the Complainant’s line manager, Tom, sent the Complainant a list of job responsibilities for which the Complainant would be responsible because of the Respondent’s “re-structure”. This email acknowledges the merger

of the Complainant’s current role and another colleague’s role. Tom contends that “the company would never force you to take 2 people’s work together”, but the ten pages of work responsibilities which followed indicated a level of work responsibility which far exceeds what would be

possible for a single employee to accomplish within the working hours set out in the Complainant’s contract of employment;

m. On 20 August 2023, the Complainant responded to this email, saying that the combined workload “is simply not viable.” The Complainant also recalled instances where representatives of the Respondent questioned why the Complainant could not “take on this workload if members working

in other countries could.” The Complainant responded that those members may either be under contracts of employment which did not provide the level of protection that the Complainant had, or that those employees were in a position where they did not have the ability refuse such additional

terms;

n. As a result of the above instances, the Complainant was compelled to resign her position on 11 October 2023.

7. The basis upon which the Complainant alleges discrimination is on the basis of race.

8. The Complainant has been a resident of Ireland for over twenty years and is a

naturalised Irish citizen. Her comparators are other employees of the Respondent

who are Chinese nationals hired by the Respondent’s parent company and sent on a

temporary, expatriate basis to work in the Respondent company.

9. The Complainant has reason to believe, based on the actions described above, that

the Respondent prefers the Complainant’s chosen comparators (“Chinese

expatriates”) over the Respondent due to the Respondent’s status as a “local” Irish

employee of the Respondent.

10. The Complainant believes this preference is held by the Respondent for the following

reasons:

a. Chinese expatriate employees of the Respondent (or its parent company) may have terms and conditions of employment which do not provide the same level of employment rights and protections as those held by localised Irish employees such as the Respondent;

b. Even if Chinese expatriate employees of the Respondent (or its parent company) enjoy the same terms and conditions of employment as the Respondent, they are less likely to be able to effectively exercise those entitlements, as shown in the further grounds below;

c. Chinese expatriate employees of the Respondent (or its parent company) are provided housing, food and travel subsidies during the course of their assignment to the Respondent organisation, thus placing them more under the control of the Respondent;

d. Chinese expatriate employees of the Respondent (or its parent company) are dependent on the Respondent for their continued permission to remain in Ireland, and are vulnerable to deportation or other immigration consequences if their employment is unilaterally terminated by the

Respondent, thus placing them under more control of the Respondent.

e. Chinese expatriate employees of the Respondent (or its parent company) are, on average, younger than the Complainant.

f. Chinese expatriate employees of the Respondent (or its parent company) have fewer family and social commitments when they are employed by the Respondent than the Complainant;

g. Chinese expatriate employees of the Respondent (or its parent company) are legally able to, or in the alternative, can be more easily pressured to, work longer and more unpredictable hours than the Respondent due to the level of dependence on the Respondent and lack of social connections in

Ireland those Chinese expatriate employees have, on average;

11. Due to this preference, the Complainant believes the above-listed instances of less favourable

treatment constitute direct discrimination, and that they have occurred because of the Complainant’s status as described.

12. Further and in the alternative, the Complainant believes that her age, either alone or

in combination with her race, is a ground upon which she has been directly discriminated.

13. The Respondent identifies itself in its staff handbook as a “Chinese business” and

states its “business culture around the world remains strongly influenced by Chinese

culture.” The staff handbook continues (with errors [sic]):

Huawei has made great strides in adopting English as the

international business language to be used around the world and

this enables Chinese Ex. Patriot employees to communicate with

locally hired employees where ever they are in the global Huawei

business.

Working in Huawei necessitates that employees learn and follow

the business processes and procedures, when compared to other

cultures they may appear time-consuming however this ensures

that correct decisions are made for the longer term benefit of the

business. Huawei maintain a world lead in research and

development and in consequence Huawei has many Chinese

employees that have a very high level of technical expertise. This

provides Huawei with a competitive advantage as highly technically

skilled Chinese employees are available both to providing long term

support when establishing a presence anywhere in the world and

the ability to send a significant number of highly skilled technical

employees to support specific project around the world.

New employees joining Huawei will find that they are working

alongside and in many cases for Chinese managers. The Chinese

culture is work focused, deferential and process orientated, success

can be achieved by understanding the Chinese culture and learning

to work with it.

14. The staff handbook continues to discuss “Chinese Culture at A Glance” and says the

following under the heading “Communication”:

In daily conversation, Chinese are generally less direct than

Western societies. It is unusual that Chinese directly tell their

opinion, especially in front of their superior. Please avoid pointing

out mistakes of Chinese employees in front of other people, as you

will make the person lose face, which is a very uncomfortable

situation. Always take into account that steep hierarchies are

common in China, and employees are not used to express

disagreement in front of their superior.

When dealing with foreigners frequently, the behavior of Chinese

people might become more direct, as they attempt to adapt to the

local culture. While speaking, it is unusual to gesticulate wildly like

in some European countries. The distance between two persons

talking, on the other hand, is much closer than in most Western

societies. Popular issues for conversation are the regional cuisine,

family or health issues.

15. Even if the actions of the Respondent do not constitute direct discrimination on the

basis of race, which is not accepted, it is submitted in the alternative that the actions

of the Respondent constitute acts of indirect discrimination, on the basis that the

Complainant’s behaviour did not exhibit the “Chinese culture” of Huawei.

16. The Complainant’s insistence to be recognised with her proper job title, expectation

that the role of CFO of the Respondent be advertised locally as opposed to appointed

from the parent company’s operation without a local application process, view that her

performance evaluations should be transparent and conducted in English, willingness

to challenge her supervisors if she felt their decisions were incorrect or unsupported,

and unwillingness to accede to demands that could not be met within her normal

working hours are all examples of behaviour which created tension within the

Respondent and caused them to target, harass, bully and ultimately constructively

dismiss the Complainant.

17. These behaviours on the part of the Complainant are entirely appropriate and are

within her legal rights and the norms of working culture in Ireland. They are behaviours

which, on average, are exhibited more often by Irish nationals and long-term

residents, such as the Complainant, and are not as often exhibited by the

Respondent’s Chinese expatriate employees.

18. If the Respondent did not disadvantage the Complainant directly due to her status as

not being a Chinese expatriate employee, the Respondent did disadvantage the

Complainant due to these actions, and such treatment on this basis constitutes

indirect discrimination.

19. The Complainant will substantiate the above factual submissions in oral evidence on

the day of hearing.

Legal submissions

20. The Complainant submitted claim number CA-00058625-001 – Complaint of

discrimination on the age ground and/or the ground of race seeking adjudication under

section 77 of the Employment Equality Act 1998 on 3 September 2023.

21. The Complainant selected “age” as the ground of discrimination pursued of the

multiple choices set out on the WRC complaint form, and indicated that this unlawful

treatment was occasioned in “Getting a job, Promoting me, Victimising me, Conditions

of Employment, and Other.”

22. The Complainant indicated on her WRC Complaint form that the most recent date of

discrimination was 17 February 2022.

23. The text of the Complainant’s WRC initial complaint form includes the following

allegation:

Is that perhaps because Tom is much younger than me and/or that

he is a Chinese expat with Chinese passport compare to me who is

an Irish citizen?

24. This allegation presents two potential grounds of discrimination – age and race.

25. It may be alleged that the Complainant’s complaint as brought in these submissions

is not within the jurisdiction of the Adjudication Officer due to the way in which the

Complainant’s complaint form is completed. In particular, the Complainant did not

select the box for “race” and stated her most recent date of discrimination was 17

February 2022.

26. However, it is a well-accepted principle, as found in County Louth Vocational

Education Committee v Equality Tribunal and Brannigan [2016] IESC 40

(“Brannigan”), that a complaint form issued to the WRC for the purpose of initiating a

complaint does not entirely bind a Complainant to pursue their claim precisely as set

out in that form. If the complaint form sets out a general dispute which remains the

same, the precise way that complaint is articulated may be refined at the time of

hearing (McKechnie J. at para. 32 of Brannigan)

27. It is also relevant that the Complainant did not have the benefit of legal advice at the

time of submitting her WRC complaint form. This meant the Complainant may not

have been aware that the type of nationality-based discrimination which she alleges

would have been encompassed in the legal definition of “race”.

28. On the basis set out in Brannigan, the Complainant elects to pursue her complaints,

including her complaint that she was unfairly dismissed and the actions which she

contends on her complaint form under that heading constituted constructive dismissal,

under the Employment Equality Acts 1998 – 2015 (the EEAs).

29. In particular, the Complainant alleges under section 77 of the EEAs that she has been:

a. Discriminated against.

b. Subjected to victimisation.

c. Dismissed (constructively) in circumstances amounting to discrimination

and/or victimisation.

30. With regard to the requirement under section 77(5)(a) of the EEAs that:

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.

31. It is submitted that the actions of the Respondent constitute a “chain of discrimination”

and are manifestations of the same disposition to discriminate, as was found in

Department of Health and Children v Gillen [2005] E.L.R. 141 (Appendix C). The

Complainant alleges the series of detrimental acts constitute a series of separate acts

which are sufficiently connected, bringing them all within the definition set out in

section 77(5) of the EEAs.

32. The Complainant alleges that the date of the Complainant’s most recent incident of

discrimination is within six months of the Complainant’s complaint to the Workplace

Relations Commission, as many of the most recent incidents which she alleges are

discrimination, including but not limited to the Respondent’s decision to penalise her

for having raised a concern of bullying at a staff meeting, the Respondent’s most

recent performance review of the Complainant, the Respondent’s decision to

unilaterally impose a restructuring process and unreasonable additional duties on the

Complainant, and the Complainant’s constructive dismissal.

33. Regarding the race ground of discrimination pursued by the Complainant, section 6(1)

of the EEAs defines discrimination as 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,

34. Subsection 6(2)(h) defines the “ground of race” as, “that they are of different race,

colour, nationality or ethnic or national origins”.

35. It is accepted that the Complainant is a Chinese citizen and was born and raised in

China. Her physical characteristics are consistent with what one might consider, in a

layman’s understanding, a “racial” identity as Chinese.

36. However, the legal definition of “race” in the EEAs includes other concepts. The idea

of “ethnic origin”, which is a more appropriate and defined standard than the vexed

topic of “race”, has been defined in Mandala v Dowell Lee [1983] I.R.L.R. 209 at 211

 (cited with approval in numerous occasions in Ireland, including

Fitzgerald v Minister for Community, Equality and Gaeltacht Affairs [2011] IEHC 180

at para.11) as:

…as a distinct community by virtue of certain characteristics. Some

of these characteristics are essential; others are not essential but

one or more of them will commonly be found and will help to

distinguish the group from the surrounding community. The

conditions which appear to me to be essential are these: – (1) a

long shared history, of which the group is conscious as

distinguishing it from other groups, and the memory of which it

keeps alive; (2) a cultural tradition of its own, including family and

social customs and manners, often but not necessarily associated

with religious observance. In addition to those two essential

characteristics the following characteristics are, in my opinion,

relevant; (3) either a common geographical origin, or descent from

a small number of common ancestors; (4) a common language, not

necessarily peculiar to the group; (5) a common literature peculiar

to the group; (6) a common religion different from that of

neighbouring groups or from the general community surrounding it;

(7) being a minority or being an oppressed or a dominant group

within a larger community, for example a conquered people (say,

the inhabitants of England shortly after the Norman conquest) and

their conquerors might both be ethnic groups.

A group defined by reference to enough of these

characteristics would be capable of including

converts, for example, persons who marry into the

group, and of excluding apostates. Provided a

person who joins the group feels himself or herself

to be a member of it, and is accepted by other

members, then he is, for the purposes, of the Act, a

member. That appears to be consistent with the words

at the end of subsection (1) of s.3:'References to a

person's racial group refer to any group into which he

falls.'

In my opinion, it is possible for a person to fall into a particular

racial group either by birth or by adherence, and it makes no

difference, so far as the 1976 Act is concerned, by which route

he finds his way into the group. This view does not involve creating

any inconsistency between direct discrimination under para.(a) and

indirect discrimination under para.(b). A person may treat another

relatively unfavourably 'on racial grounds' because he regards that

other as being of a particular race, or belonging to a particular racial

group, even if his belief is, from a scientific point of view, completely

erroneous.

37. In citing the above statement of law with approval, Hogan J. in the High Court in the

aforementioned Fitzgerald v Minister for Community, Equality and Gaeltacht Affairs

[2011] IEHC 180 (Appendix E) acknowledges, at para.10 of his judgment, that,

There is no statutory definition of the term “ethnic origins”. In these

circumstances, the reference to ethnic group must, of course, be

understood in the context in which the term appears: see, e.g., the

comments of Henchy J. in Dillon v. Minister for Posts and Telegraphs,

Supreme Court, 3rd June, 1981. The fact that the words “ethnic

origins” appears in the same context as race, colour, nationality or

national origins confirms - as if confirmation was needed - that the

reference here is principally to immutable characteristics in respect of

which the individual has no control. It must, of course, be recognized

that there are undoubtedly instances where an individual belonging

to one nationality or ethnic group might elect to adhere to another,

but, for present purposes, at least, it is sufficient to point out that these

are exceptional cases which do not take from the general point.

38. In this present case, the Complainant’s cultural identification, which arises from her

twenty years living and working in Ireland, a cultural connection strong and durable

enough to entitle her to obtain Irish citizenship by naturalisation, constitutes one of

the “exceptional cases” referred to by Hogan J. where a person, having come initially

from one national origin, becomes part of another “ethnic group”.

39. The Complainants adherence to Irish cultural norms as opposed to Chinese cultural

norms in her employment, and the consequences of the Complainant’s Irish

citizenship meaning that she was subject to “localised” terms and conditions of

employment and a greater degree of independence from the Respondent, is the

nexus of the detrimental treatment experienced by the Complainant.

40. The Complainant reserves her right to make further legal submissions on the day of

the hearing.

41. The Complainant will provide further evidence on the day of the hearing in furtherance

of this complaint.

Payment of Wages

Facts of claim

42. The Complainant was formally offered employment by the Respondent on 27 April

2021. A copy of the Respondent’s offer letter was available at the hearing and was provided a

contract of employment signed by a representative of the Respondent with a signed

date of 26 April 2021.

43. The Complainant was entitled to receive bonus payments as part of her terms and

conditions of employment. This included an entitlement to “MIA” payments, which

amounted to bonuses related to the Complainant’s personal performance as

evaluated by the Respondent and the Respondent’s overall performance.

44. In 2023, the Complainant was entitled to payment of 15,000 RMB (Chinese Yuan) for

her “MIA” bonus. Despite being entitled to such payment, the Complainant was not

paid this full amount as expected.

45. In July 2023, the Complainant requested to receive these outstanding payments by

email and by internal instant messages to representatives of the Respondent. In one

such message, the Complainant was told she would receive back payment of these

incentive payments in July.

46. Despite this fresh commitment to payment on the part of the Respondent in July 2023,

the Complainant did not receive these payments as warranted.

47. The Complainant’s payslip dated 25 July 2023 shows an “MIA” payment of €1,269.17,

which is equivalent to approximately 10,000 RMB (Chinese Yuan). This was an

underpayment of 5,000 RMB (Chinese Yuan), which the Complainant estimates to be

a shortfall of approximately €667.

Legal submissions

48. Section 5(1) of the Payment of Wages Act 1991 provides:

(1) An employer shall not make a deduction from the wages of an

employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be

made by virtue of any statute or any instrument made under

statute,

(b) the deduction (or payment) is required or authorised to be

made by virtue of a term of the employee's contract of

employment included in the contract before, and in force at

the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his

prior consent in writing to it.

49. Section 5(6) of the Payment of Wages Act 1991 provides:

(6) Where—

(a) the total amount of any wages that are paid on any

occasion by an employer to an employee is less than the total

amount of wages that is properly payable by him to the

employee on that occasion (after making any deductions

therefrom that fall to be made and are in accordance with this

Act), or

(b) none of the wages that are properly payable to an

employee by an employer on any occasion (after making any

such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is

attributable to an error of computation, the amount of the deficiency

or non-payment shall be treated as a deduction made by the

employer from the wages of the employee on the occasion.

50. Section 1 of the Payment of Wages Act 1991 defines “wages” as:

“wages”, in relation to an employee, means any sums payable to the

employee by the employer in connection with his employment,

including—

(a) any fee, bonus or commission, or any holiday, sick or

maternity pay, or any other emolument, referable to his

employment, whether payable under his contract of

employment or otherwise, and

(b) any sum payable to the employee upon the termination by

the employer of his contract of employment without his having

given to the employee the appropriate prior notice of the

termination, being a sum paid in lieu of the giving of such

notice: Provided however that the following payments shall

not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the

employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or

gratuity in connection with the death, or the retirement

or resignation from his employment, of the employee

or as compensation for loss of office,

(iii) any payment referable to the employee's

redundancy,

(iv) any payment to the employee otherwise than in

his capacity as an employee,

(v) any payment in kind or benefit in kind[,

(vi) any payment by way of tips and gratuities.]

51. It is submitted that the non-payment of the “MIA” was a failure by the Respondent to

pay the Complainant wages (as defined by part (a) of the definition in section 1) which,

being properly payable to the Complainant (as per section 5(6)(a)) constituted an

unlawful deduction (as per section 5(1)).

52. Payments such as bonuses have been found to be “wages” as defined by the

Payment of Wages Act 1991, even if that payment was explicitly designated as

“discretionary” in a contract of employment (Cleary & Ors v B&Q Ireland Ltd. [2016]

IEHC 119, [2016] E.L.R. 121) (Appendix H).

53. It may be argued by the Respondent that the non-payment of these wages is statute barred

by operation of section 41(6) of the Workplace Relations Act 2015, which

provides, inter alia, that an adjudication officer shall not entertain a dispute referred to

them under that section unless it has been presented to the Director General of the

WRC within six (6) months beginning on the date of the contravention to which the

complaint relates.

54. It is acknowledged that the Complainant originally constituted her WRC complaint

form to state that the date of non-payment was 28 June 2021, and it is conceded that

if this is found to be the date of deduction, such a claim would be out of time.

55. In response, the Complainant argues the non-payment claimed was “refreshed” by

the representation of the Respondent’s representative in July 2023, in which the

Complainant was advised that she would receive payment of all owing payments to

her in that month. The date of contravention, therefore, is argued to be in July 2023,

a time which is less than six months from the date of the Complainant’s date of

submitting her claim on 3 September 2023.

56. The Complainant completed her initial complaint form to the Workplace Relations

Commission without the benefit of legal advice. In County Louth Vocational Education

Committee v Equality Tribunal and Brannigan [2016] IESC 40 (“Brannigan”) the

Supreme Court supported the view that a complaint form issued to the WRC for the

purpose of initiating a complaint does not entirely bind a Complainant to pursue their

claim precisely as set out in that form. As long as the complaint form sets out a general

dispute which remains the same, the precise way that complaint is articulated may be

refined at the time of hearing (McKechnie J. at para. 32 of Brannigan) (Appendix B).

57. In Health Service Executive v McDermott [2014] IEHC 331 (Appendix I) Hogan J.

stated that the limitation period for the purposes of the Payment of Wages Act 1991

depends on how a complaint under that act is formulated, and that a claim may be

either in time or out of time depending on how it is presented.

58. It is therefore submitted that the Complainant was not paid wages which were properly

payable in July 2023. The failure to pay those wages at that time constitutes a

deduction which is in contravention of section 5 of the Payment of Wages Act 1991

and is within the time limit set out by section 41(6) of the Workplace Relations Act

2015.

59. The Complainant will provide further evidence on the day of the hearing in furtherance

of this claim.

60. The Complainant reserves her right to make further legal submissions on the day of

hearing.

Compensation

Legal submissions on remedies for Employment Equality complaints

61. Section 82 of the EEAs provides for the following types of redress which may be

directed by the Adjudication Officer:

(1) Subject to this section, the types of redress for which a decision

of the [Director General] under section 79 may provide are such one

or more of the following as may be appropriate in the circumstances

of the particular case:

(a) an order for compensation in the form of arrears of

remuneration (attributable to a failure to provide equal

remuneration) in respect of so much of the period of

employment as begins not more than 3 years before the date

of the referral under section 77(1) which led to the decision;

(b) an order for equal remuneration from the date referred to

in paragraph (a);

(c) an order for compensation for the effects of acts of

discrimination or victimisation which occurred not earlier than

6 years before the date of the referral of the case under

section 77;

(d) an order for equal treatment in whatever respect is

relevant to the case;

(e) an order that a person or persons specified in the order

take a course of action which is so specified;

[(f) an order for re-instatement or re-engagement, with or

without an order for compensation.]

62. The Complainant seeks an order for compensation as defined by section 82(1)(c) as

stated above.

63. Section 83(4) of the EEAs provides the following compensation limit for compensation

by way of section 82(1)(c) of the EEAs:

(4) The maximum amount which may be ordered by the [Director General] by

way of compensation under subsection (1)(c) or (1)(f) shall be—

(a) in any case where the complainant was in receipt of remuneration

at the date of the reference of the case, or if it was earlier, the date of

dismissal, an amount equal to the greatest of—

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

weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which

the complainant would have received at that date but for the

act of discrimination or victimisation concerned, or

(iii) €40,000.

or

(b) in any other case, €13,000.]

It is submitted that the Complainant’s annual salary at the time of her dismissal,

exclusive of any bonus or other payments, was €75,600.

65. Regulation 11 of the Unfair Dismissals (Calculation of Weekly Remuneration)

Regulations 1977 (S.I. No. 287 of 1977) provides that where weekly working hours

are not provided in a contract of employment, the weekly wage is the average of the

wage earned by the worker in the previous 52 weeks of their employment.

66. In the present case, in ease of simplicity for all parties involved, it is proposed to agree

a weekly wage for the purpose of compensation under this Act to be €1,453.85.

67. This wage, multiplied by 104 weeks as required by section 83(4) of the EEAs, is

€151,200. This is the maximum level of compensation which is within the Adjudication

Officer’s jurisdiction to order as compensation for the Complainant’s complaints of

discrimination as presented by the Complainant.

68. All the facts adduced before the Adjudication Officer should be taken into

consideration by the Adjudication Officer when they determine the relevant

compensation.

69. The Adjudication Officer must also have consideration to the need for any award of

compensation to be “effective, proportionate and dissuasive” in the circumstances of

the case, as the EEAs are an implementation of European Union law and such law

must be enforced in this way (Case C-14/83, von Colson v Land Nordrhein-Westfalen

[1984] E.C.R. 1891) (APPENDIX J).

70. In considering what compensation is “effective, proportionate and dissuasive” in a

circumstance, consideration should be given not only to the nature of the

discrimination in the individual case but also to the effect such an order would have

on an organisation, having regard to that organisation’s financial standing.

71. The Complainant reserves their right to make further legal argument on compensation

at the day of hearing.

Legal submissions on remedies for Payment of Wages complaints

72. Section 6(1) of the Payment of Wages Act 1991 (as amended) provides:

(1) A decision of an adjudication officer under section 41 of the

Workplace Relations Act 2015, in relation to a complaint of a

contravention of [section 4C or 5] as respects a deduction made by

an employer from the wages [or tips or gratuities] of an employee

or the receipt from an employee by an employer of a payment, that

the complaint is, in whole or in part, well founded as respects the

deduction or payment shall include a direction to the employer to

pay to the employee compensation of such amount (if any) as he

considers reasonable in the circumstances not exceeding—

(a) [the net amount of the wages, or tips or gratuities as the

case may be] (after the making of any lawful deductions

therefrom) that—

(i) in case the complaint related to a deduction, would

have been paid to the employee in respect of the week

immediately preceding the date of the deduction if the

deduction had not been made, or

(ii) in case the complaint related to a payment, were

paid to the employee in respect of the week

immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than

the amount presented to paragraph (a), twice the former

amount.

73. It has been acknowledged in the above submissions for the Complainant’s

Employment Equality complaint that the weekly wage for the Complainant can, for the

purpose of calculating compensation for those complaints, can be estimated to be

€1,453.85.

74. Notwithstanding that the Complainant’s average weekly wage would normally fall to

be calculated to include bonus payments and other such provisions, and that the

interpretation of section 6(1) above is calculated, it is respectfully submitted that the

Adjudication Officer consider the alleged deduction raised (approximately €667) to be

less than the amounts set out in either section 6(1)(a)(i) or (ii).

75. As a result, the Adjudication Officer’s jurisdiction has a maximum of the Complainant’s

weekly wage, which she concedes to be €1,453.85 for the ease of the Adjudication

Officer in their calculations in this complaint.

76. In determining the quantum of payment the Adjudication Officer will direct the

Respondent to pay the Complainant in respect of this complaint, the Adjudication

Officer must consider what they “consider reasonable in the circumstances.”

77. The circumstances which the Complainant submits are relevant in determining what

is “reasonable in the circumstances” include, but are not limited to, the following:

a. The failure of the Respondent to process the payment in a timely manner;

b. The amount of time the Complainant has been without use of such funds

which have been owed to her;

c. The obligation placed on the Complainant to study her payslips to detect

such an underpayment, in circumstances where she should have been

able to trust such payments were accurate;

d. The time the Complainant has had to take to pursue payment of this

amount;

e. The legal costs incurred by the Complainant in pursuing this non-payment,

which should have been paid as of right;

78. The Complainant reserves their right to make further legal argument on compensation

at the day of hearing.

Conclusion

79. In summary, the complainant pursues two complaints before the Adjudication Officer:

a. CA-00058625-001 – Complaint of discrimination on the age ground and/or

the ground of race seeking adjudication under section 77 of the

Employment Equality Act 1998

b. CA-00058625-002 – Complaint of non-payment of wages seeking

adjudication under section 6 of the Payment of Wages Act 1991

80. It is respectfully submitted that the Adjudication Officer find both of these complaints

well-founded.

81. If the Adjudication Officer finds these complaints well-founded, the Complainant

requests the following determinations, directions or orders from the Adjudication

Officer:

a. In respect of CA-00058625-001 (Employment Equality), an order of

compensation from the Respondent to the Complainant pursuant to

section 82(1)(c) of the EEAs not exceeding €151,200

b. In respect of CA-00058625-002 (Payment of Wages), a direction to the

Respondent to pay the Complainant compensation of such amount (if any)

as they consider reasonable in the circumstances not exceeding

€1,453.85.

Background to the Respondent.

 Huawei is a leading global provider of information and communications technology (ICT) infrastructure and smart devices. Huawei has been in Ireland since 2004, with its business now serving over 3 million people and supporting over 860 direct and indirect jobs.

Background to the Complainant

The Complainant commenced employment with the Respondent on 28 June 2021 as a Senior Financial Specialist. The Complainant was employed on a full- time basis and earned a gross yearly salary of €70,000 and received a salary increase of €5,600 in January 2023.

Preliminary Matters: Time Limits

Claim under the Employment Equality Act 1998:

CA-00058625-001.

The Respondent submits that this claim is manifestly out of time. The claim under the Employment Equality Act 1998 was lodged by the Complainant on 3 September 2023. The Complainant alleges the most recent date of discrimination 17 February 2022. This is one year and seven months 3 following the date of the alleged contravention of the Employment Equality Act, 1998 and well in excess of the six – month time limit to refer a claim, as set out in the Act.

Claim under the Payment of Wages Act 1991:

CA-00058625-002

The Respondent submits that this claim is manifestly out of time. The claim under the Payment of Wages Act, 1991, was lodged by the Complainant on 3 September 2023. The Complainant alleges she did not receive bonus due on the 28th of June 2021. This is two years and 2 months following the date of alleged contravention of the Payment of Wages Act 1991, and well in excess of the six – month time limit to refer a claim, as set out in the Act.

The Respondent respectively requests that the Adjudicator deal with the preliminary matter first and foremost and reach a conclusion on same before deciding whether the substantive complaint should be heard. Consequently, there is jurisprudence which suggests that the Adjudicator is precluded by law from holding a substantive hearing until a decision on the preliminary matter is reached.

 In Sheehy v Most Reverend James Moriarty  the Tribunal held that “the Tribunal was set up under statute by the Oireachtas and did not have the authority based on constitutional or natural law and justice principles to conduct a hearing”’ where “the claims were not instituted within the time periods set out in the legislation”. 6

In the case of Employee v Employer UD969/2009 the Employment Appeals Tribunal was asked to make a decision on a preliminary matter first before moving to hearing the substantive case. Given the significant preliminary points raised, the Tribunal moved to hear the preliminary matter first and reach a decision on same.

In the case of Bus Eireann v SIPTU PTD8/2004  the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case ‘where it could lead to considerable savings in both time and expense’ and where the point was ‘a question of pure law where no evidence was needed and where no further information was required’.

The Respondent in this instant case would suggest that a similar situation arises here and respectfully requests that the Adjudicator reach a determination first and foremost on this time deadline issue before deciding if the substantive case can be heard. The Standard of ‘’Reasonable Cause’’

In Cementation Skanska Ltd v Tom Carroll DWT0338 the Labour Court provided its view of the standard that should be applied in applications for time extensions under the grounds of “reasonable cause”.

“It is noted that the standard required by this subsection is that of ‘reasonable cause’. This may be contrasted with the much higher standard of ‘exceptional circumstances preventing the making of the claim’ which is provided for in other employment related statutes. The Act gives no guidance as to the type of circumstances that can constitute reasonable cause and it would appear to be a matter of fact to be decided by the Rights Commissioner (and by extension the Court on appeal) in each individual case. It is the Court’s view that in considering if reasonable cause exists, it is for the Complainant 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 Complainant at the material time. The Complainant’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 Complainant 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 Complainant has a good arguable case.’’

The Labour Court and Employment Appeals Tribunal have set out clear standards for Complainants seeking an application for an extension in the prescribed time limits. The burden of proof rests solely with the Complainant to demonstrate that their explanation is “reasonable” and that “it must make sense” and “be agreeable to reason and not be irrational or absurd”. The Complainant’s failure to present her claims within the six-month time limit must be causally linked to the circumstances causing the delay. Suffice to say, the Complainant must satisfy the Adjudicator “that had those circumstances not been present he would have initiated the claim in time’’.

The length of the delay must be taken into account. The Respondent submits that the responsibility fell to the Complainant to submit the complaints on time or at the very least within a reasonably speedy timeframe. While the Adjudication Officer may, where a Complainant has “a reasonable case”, extend the timescales by an additional six months, these complaints were lodged to the WRC more than twelve months late. It is submitted that the Adjudication Officer does not have the requisite jurisdiction to hear this claim, nor can they proceed to hear the substantive case until this matter is determined.

Background to the Claim

The Complainant began employment with the Respondent on 28 June 2021 as a Senior Financial Specialist. The Complainant retained this title for the duration of her employment. It should be noted that the Complainant’s job title was adjusted on the back systems to align to the Specialist roles. This is similar to other roles such as HR, Legal and Compliance. This was not a demotion as external and contracted job title remained the same.

A New chief Financial Officer (CFO) Mr Pantianxiao (Tom) was appointed on 11 August 2022. At the time of the appointment the Complainant had less than one years’ experience with the company, making her ineligible for the role. The Respondent’s custom and practice if there is not anyone in the region suitable for the position is to bring in an expat to cover the role while local employees are gaining the necessary experience to move into the role in the future.

 In October 2022, Mr Pantianxiao had a conversation with the Complainant to see if the CFO position was something she would like to work towards moving into, she asserted that she did not want to.

The Complainant met with Mr Pantianxiao on 22 June 2023 to discuss her workload and set out a detailed plan of her responsibilities and the hours required to complete each task. The detailed list showed all the tasks the Complainant was expected to complete, the hours of work expected to complete them and the time she would have spare for urgent matters.

Mr Pantianxiao as the Complainant’s line manager completed her annual performance review for H1 2023 where it was noted that her performance was not up to her normal standard. The Complainant received a rating of ‘Qualified’ and her work attitude rating was ‘B.’ The reason for the ‘B’ rating in relation to work attitude was as a result of there being a conflict between the Complainant and a colleague. The Complainant raised a complaint to her line manager who dealt with it informally. The colleague provided an apology for the misunderstanding as he had no intention of offending or upsetting the Complainant. The Complainant had submitted her resignation but then retracted and accepted the apology

The Respondent has had a ‘return to working from the office’ policy in place since May 2023. The Complainant requested to work from home on a number of occasions (14th and 21st July 2023 and on 14th August 2023) including the 25 August 2023. All prior requests had been approved but the request on 25 August 2023 was denied by her line manager as the reason for her request was for personal circumstances that did not meet the criteria set out in the policy.

The Complainant was absent from work on certified sick leave from 29 August 2023 and never returned to work. Medical Certs submitted from the Complainant cited various reasons for her absence; Unwell, Illness and work-related stress. While on certified sick leave the Complainant via email to HR raised serval allegations of bullying, harassment, and demotion. The Respondent advised of the internal complaint procedure that the Complainant had not availed of.

The Complainant submitted her claim to the WRC on 3 September 2023.

Concerned for the Complainant’s ability to engage with them due to being unwell, the Respondent referred the Complainant to Occupational Health. They arranged an appointment for 10 October 2023 which the Complainant couldn’t attended. It was rescheduled to 13 October, but the Complainant failed to attend.

The Complainant resigned by letter sent to the Respondent on 11 October 2023. She remained on certified sick leave for the duration of her employment, which ended on 3 December 2023.

Throughout her employment the Complainant received regular bonuses for both yearly performance and incentive awards. The Respondent submits that an error led the Complainant to believe she was due a 2% on salary bonus. This 2% scheme was not in line with company policy, so to rectify this the Respondent contributed a lump sum payment into her bonuses received. The Respondent that the Complainant was not at any detriment because of this, in fact she received much more than what she would have received on the 2% scheme, which would have amounted to €1,400 (2% of €70,000 salary at time of hire). As demonstrated by the table below the Complainant received €32,000 in bonus payments during her employment.

The Respondent included in their submission a table showing all bonus payments made to the complainant during her employment. Total of all bonus payments was €32,007.63.

Respondent’s Arguments

Claim under the Employment Equality Act, 1998: CA-00058625-001

Prima Facie Case of Discrimination & the Burden of Proof

It is the well-established practice of the Equality Tribunal (Workplace Relations Commission) and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person is, has been, or would be treated, based on the discriminatory ground cited.

The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Teresa Mitchell, DEE011, [2001] ELR 201, where the Court stated:

“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 a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

Direct discrimination consists of two elements. The first is the less favourable treatment of the Complainant and the second is the existence of age and racial grounds for such treatment. Both elements must be satisfied for a claim of discrimination on the grounds of age and race to succeed. It is respectfully submitted by the Respondent that the Complainant has provided no evidence of less favourable treatment. The Complainant’s allegations are grounded on incorrect facts and are unfounded. The Complainant has not identified any other employee of a different race who she was or has been treated less favourably. Thus, the Complainant has provided no evidence of discrimination. The Respondent submits that it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised. It is the Respondent’s position that the Complainant has singly failed to establish a prima facie case of discrimination and as such the burden does not shift to the Respondent in this instance.

In Melbury Developments v Arturs Valpetters EDA/0917, the Labour Court, while 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.” It added that “…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.”

Notwithstanding that the particular circumstances of each case are different; the Respondent submits that it is only when the Complainant has discharged this burden to the satisfaction of an Adjudicating Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised.

Section 6 (1) of the Employment Equality Acts 1998 to 2015 states:

“(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,”

Council Directive 2000/78/EC established a general framework for equal treatment in employment and occupation. The Directive recognises that differences in treatment in connection with age maybe justified by member states under certain circumstances. Accordingly, Article 6(1) of the Directive provides that discriminatory treatment directly based on age is permissible subject to objective and reasonable justification and where the means of achieving these aims are appropriate and necessary.

Section 37 (2) of the Employment Equality Acts 1998 – 2016, states

“(2) For the purposes of this Part a difference of treatment which is based on a characteristic related to any of the discriminatory grounds (except the gender ground) shall not constitute discrimination where, by reason of the particular occupational activities concerned or of the context in which they are carried out—

(a)    the characteristic constitutes a genuine and determining occupational requirement, and

(b)   (b) the objective is legitimate, and the requirement proportionate.”

Section 34(4) of the Act has been amended by the Employment Equality Act 2015 S.10 and in effect put on a statutory basis what had become the interpreted case law in practice and what was considered to be in line with the European Directive. This section is based on Article 6 of the Equal Treatment Framework Directive which allows Member States to provide that differences of treatment on grounds of age are not discriminatory if, under national law, they are objectively justified by a legitimate aim, which may include employment policy and labour market and vocational training objectives, provided that the means of achieving that aim are appropriate and necessary.

Claim under the Payment of Wages Act, 1991: CA-00058625-002

The Respondent refutes the claim under the Payment of Wages Act in its entirety as no unlawful deduction of wages has occurred in line with the renumeration stated in the Complainant’s contract. At no point has the Complainant received a salary below her contractual salary. In making this statement the Respondent is taking into account not only the Complainant’s clear written contract of employment, but also the operation of this contract in reality and the established norms of the Respondent more generally.

The Complainant’s contract of employment states that “Huawei may in its absolute discretion pay you a bonus of such amount, at such intervals and subject to such conditions as we may in our absolute discretion determine from time to time.”

The Complainant is arguing that there was a deficiency in payment of her bonus upon her commencement of employment. The Payment of Wages Act, 1991, under section 5(6) states: “Where (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion, […] then […] the amount of the deficiency […] shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

Thus, the important element to establish is what were the wages “properly payable” to the employee on “that occasion”. The Respondent contends that the wages “properly payable” to the employee were the wages as advised to the employee in the contract of employment. No deduction as defined in Section 5 of the Act has been made. Accordingly, no jurisdiction exists under the Payment of Wages Act 1991 for this claim to be heard. Furthermore, the Complainant received over €30,000 in bonus payments whilst in employment with the Respondent.

Conclusion

The burden of proof rests with the Complainant to show that she was discriminated against on the grounds of age and race. Should the Complainant shift this burden, it is the position of the Respondent that the Complainant had less than one years’ experience with the company at the time of the CFO appointment making her ineligible for the role. It is on this basis the Respondent respectively submits that as the Complainant has not provided facts from which a prima facie case of discrimination can be established, that there is no case to answer by the Respondent and accordingly the matter should be dismissed. In addition, the Complainant received bonus payments above and beyond the wages properly payable to her as set out in her contract of employment and therefore the claim under the Payment of Wages Act must fail. The Respondent reserves the right to submit further arguments and evidence at any stage during the course of the hearing.

The Complainant has made three complaints as per complaint form submitted to the Workplace Relations Commission on 3rd September 2023. In the first of these complaints, CA - 00058625-001, the complainant alleges that she was the victim of discrimination on the grounds of Age. The first allegation of discrimination on the grounds of Race was in the written submission of the then complainant representative received by the Workplace Relations Commission on 23rd February 2024.

Time Limits.

The Respondent has quite clearly stated the following in relation to time limits:

CA-00058625-001.

The Respondent submits that this claim is manifestly out of time. The claim under the Employment Equality Act 1998 was lodged by the Complainant on 3 September 2023. The Complainant alleges the most recent date of discrimination 17 February 2022. This is one year and seven months following the date of the alleged contravention of the Employment Equality Act, 1998 and well in excess of the six – month time limit to refer a claim, as set out in the Act.

The Complainant at para 32 of the written submission states:

32. The Complainant alleges that the date of the Complainant’s most recent incident of discrimination is within six months of the Complainant’s complaint to the Workplace Relations Commission, as many of the most recent incidents which she alleges are discrimination, including but not limited to the Respondent’s decision to penalise her for having raised a concern of bullying at a staff meeting, the Respondent’s most recent performance review of the Complainant, the Respondent’s decision to unilaterally impose a restructuring process and unreasonable additional duties on the Complainant, and the Complainant’s constructive dismissal.

The most recent allegation made by the complainant (as per complaint form) was made on 17th February 2022 and as clearly pointed out by the Respondent this is one year and seven months prior to the complaint being received by the Workplace Relations Commission.

Section 77 (5)(a) of the Employment Equality Act reads:

(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.

(5)(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.

Initially the complainant was represented by both a solicitor and a barrister. I see no reasonable cause to extend the period outlined in s.(5)(a).

I have no jurisdiction to hear any complaint under the Employment Equality Act, 1998.

CA-00058625-002 – Complaint of non-payment of wages seeking adjudication under section 6 of the Payment of Wages Act 1991

This complaint was withdrawn at the hearing on 14th May 2025.

CA-00058625-003 – Complaint of unfair dismissal seeking adjudication under section 8 of the Unfair Dismissals Act 1977.

The initial submission on behalf of the complainant suggested that the complainant would not pursue this complaint submitted under section 8 of the Unfair Dismissals Act 1977.

By email dated 30th December 2024 the Complainant requested that complaint CA-00058625-003 be included for hearing and clearly stated that the complaint had not been withdrawn.

This complaint alleges that the complainant was constructively dismissed.

I note that the complaint was received by the Workplace Relations Commission on 3rd September 2023, the complainant tendered her resignation on 11th October 2023, the resignation took effect on 3rd December 2023. The complaint to the Workplace Relations Commission was received while the Complainant was still in employment.

Paragraph 18 of the Respondent’s submission reads:

The Complainant was absent from work on certified sick leave from 29 August 2023 and never returned to work. Medical Certs submitted from the Complainant cited various reasons for her absence; Unwell, Illness and work-related stress. While on certified sick leave the Complainant via email to HR raised serval allegations of bullying, harassment, and demotion. The Respondent advised of the internal complaint procedure that the Complainant had not availed of.

There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employee for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so to an employee should invoke the employer’s grievance procedures in an effort to resolve his / her grievance. The duty is an imperative almost always in employee resignations. Where grievance procedures exist, they should be followed.

In Conway v Ulster Bank Ltd (UD 474/1981)  the EAT considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’. Where there are no formal procedures, advice should be taken to the most appropriate way of presenting a complaint within the employment. At the very least an employee should communicate his or her grievance before resigning.

In the instant case it appears that the complainant submitted her complaint to the Workplace Relations Commission prior to making any attempt to utilise the internal procedures.

I have considered this complaint very carefully and must now conclude that the complaint is not well founded.

As outlined above.