Complainant

Respondent

Parties

Damien  O'Doherty

Fm Salon Supplies Limited Jules Hair And Beauty Supplies

Complainant

Respondent

Anonymised Parties

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Representatives

Siobhan McCormack North Connacht and Ulster Citizens Information Centre

PA Dorrian & Co Solicitors

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-00063801-001

29/05/2024

The complaint, Mr Damien Doherty, worked for the respondent FM Salon Supplies Ltd.  Mr Doherty alleges that the respondent agreed a different pay system with a younger worker and alleges discrimination on the grounds of age.  The respondent failed to pay a previous award made by the WRC and the complainant alleges that this is further discrimination on the grounds of victimisation.

Evidence was given under oath/affirmation by the complainant.  Evidence was subject to cross examination.  All documentation received was considered by me in reaching my decision.

Preliminary Issue.  Time limits

There is ongoing discrimination and therefore the issue of time limits does not arise by virtue of fact that WRC Order dated 26th January 2024 remains unpaid and this constitutes discrimination and penalisation.  It is our submission that the Complainant is subjected to ongoing discrimination and victimisation by the Respondent under s8(1 and  s74(2)(a) and (b) of the Acts.

We refer to ADJ-00045535 WRC Adjudication Officer's decision dated 26th January 2024 awarding the Complainant €6,560.78 in respect to unpaid wages. The Respondent failed to lodge an appeal. It is the complainant’s contention that the Respondent's failure to pay the award constitutes an act of victimisation as the Complainant was penalised by the Respondent for issuing his claim under the Employment Equality Acts 1998 — 2015.  The Respondent has not provided any alternative reasonable explanation to date in respect to such a flagrant breach of an Adjudication Officer's Decision, which specifically required compensation to be paid to the Complainant.

The WRC Enforcement Section has confirmed that the nonpayment of Order ADJ-00045535 has been referred to the court for enforcement proceedings. The decision in Robert Farrell v Modus Link Kildare  Unlimited (ADJ-00032100) supports the case that the non-payment of an award to the Complainant should be treated as an act of victimisation.

The non-payment of the award also constitutes discrimination as the Order pertains to his terms and conditions of employment. The Complainant has been treated less favourably than his Comparator (Mr A), the younger salesman employed by the company, who does not have a disability. The Respondent reached a settlement agreement with Mr A prior to a scheduled WRC Hearing. The Complainant and Mr A both issued mirror claims to the WRC under the Payment of Wages Act 1991. The Respondent reached a settlement with Mr A who withdrew his claim on the foot of this settled agreement.

When the Complainant approached the Respondent on 8th August 2023 to request whether he intended to attempt to resolve the claim under the Payment of Wages Act 1991, with him as he had with Mr A, he was met with hostility in response. The Complainant was therefore treated less favourably than Mr A, the comparator, who is of younger age and does not have a disability.

It is submitted that the issue of statutory time limits is therefore not relevant as the most recent act of discrimination and victimisation occurred on 16th December 2024, and is indeed ongoing by virtue of the fact that the Respondent has refused to pay the award to the Complainant in accordance with Order ADJ-00045535.

We refer to Section 74(2) of the Acts that "victimisation" is defined as constituting adverse treatment of an employee as a reaction to:

(a)         a complaint of discrimination by the employee to the employer; or

(b)         any proceedings by a complainant

It is our case that the Respondent's actions in failing to pay the award to the Complainant constitute victimisation, as the latter was penalised for issuing a claim of discrimination under the Acts.

In accordance with Section 8(1)(b) of the Acts an employer shall not discriminate against an employee in relation to terms of employment. The Respondent discriminated against the Complainant by failing to pay award under the Payment of Wages Act 1991.

The issue of time limits is therefore not relevant as the Complainant has been subjected to ongoing victimisation and discrimination through the Respondent's actions in failing to pay award under the Payment of Wages Act 1991.

Notwithstanding the above, the Complainant had reasonable cause for filing outside 6 months and within 12 months due to registered legal title of company.

Sect 77(5) (a) of the Acts stipulates that:

"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 the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.”

The complainant issued his original complaint under the Respondent's legal title of Jules Hair & Beauty on the 19th of December 2023, based on a Company's Registration Office search that recorded this company as registered on 24th January 2019. A WRC Hearing was listed on 29th April 2024 (ADJ-00049326). The Respondent's Legal Representative applied for an adjournment, which was duly granted.  At no stage prior to or at the WRC Hearing on 29th April 2024 did the Respondent's Legal Representative raise any issue with regards to the Company's correct legal title.

It was only subsequent to the Complainant's previous claim against the Respondent under the Payment of Wages Act, 1991, in which he represented himself that the complainant discovered that the Order had been granted against FM Salon Supplies Limited. Upon conducting a Company's Registration Office search he discovered that this company had indeed been registered prior to Jules Hair & Beauty, on 29th June 2018. Indeed, it is unclear why the Companies Registration Office did not strike out the registered business title of Jules Hair & Beauty, in view of the fact that annual returns have not been filed and we can only surmise that this is an oversight. In respect to pay slips enclosed by the Respondent's representatives, it is noteworthy that the correct legal title is FM Salon Supplies Limited not FM Salon Supplies as recorded on same. In any event it is our submission that had the Respondent complied with basic statutory employment legislation by issuing written terms and conditions and office policies we would have had the opportunity to ascertain the correct legal title at a sooner date. It is also noteworthy that the Respondent's letterhead did not contain the correct legal title of FM Salon Supplies Limited, as attached correspondence to the Complainant dated 30th August 2023.

It is therefore our contention that this is not a case whereupon there was a delay in issuing a claim, nor has the Respondent been prejudiced in any way from the reissuing of the claim.

Substantive case

It is submitted that the Complainant was discriminated against on the grounds of his age and disability, under Section 6(1 )(2)(f) and (g) respectively.

In accordance with Section 1, for the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2), one person is treated less favourably than another is, has been or would be treated.

The comparator that relied on to demonstrate less favourable treatment is Mr A, a younger salesman for the Respondent Company, who did not have a disability.

The Complainant satisfies the criteria for disability, in accordance with Section ) (e) which defines a disability as including:

(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour

Medical evidence presented shows the complainant has a significant deterioration in his mental health, due to work-related stress. On 28th August 2023 his medication was increased when he expressed suicidal intentions, following an incident at work as described when the Respondent was extremely hostile to him during a meeting and called him a "big nose prick" and shouted "fuck off, you are really a tosspot aren't you". “You say you have a nervous problem, you have a mental problem"

It is of note that the Complainant disclosed his mental health disability to the Respondent for the first time at a meeting with him on 21st August 2023 when he questioned why he had granted Mr A more favourable terms and conditions to him. He had questioned why his employer was not offering him the same package on sales commission, and the Respondent attempted to rationalise the differential treatment on the basis that Mr A’s sales figures were higher. When the Complainant pointed out that this was because he covered a much larger sales area, including areas that were originally designated to him such as Derry and Donegal, the Respondent dismissed him and categorically stated that he would not be offered the same deal. The Complainant felt extremely vulnerable at this meeting because the Respondent was treating him less favourably than a younger salesman, that had far less experience and years of service to him, and this was the reason why he disclosed his long-standing mental health disability at this meeting, in the hope that the discriminatory treatment would end. It is noteworthy that at the time that this meeting took place the Complainant had 22 years' loyal and committed service with the Respondent company and had an exemplary work record with no issue ever being raised by the latter about his work performance during the entire period of his employment. It is also important to note that the Respondent Company never provided the Complainant with written terms and conditions of employment nor had any employment policies in place. It is contended that the Respondent is therefore not in a position to now attempt to defend the Complainant's complaint of unfavourable treatment on the basis of his sales record, when he cannot produce any evidence in terms of documented minutes of any meetings that occurred with the latter to raise any issues concerning his sales' records. It is submitted that this is a clear case of the Respondent trying to push the Complainant out, and replace him with a younger salesman, with no disability, to be the face of the company.

When the Complainant disclosed the nature of his mental health disability at the meeting with the Respondent at the meeting on 21st  August 2023 he clearly stated that the workplace was having a detrimental impact on his mental health, that his prescribed medication had been increased due to work-related stress symptoms and that he was losing his confidence, as he felt he was being pushed out by a younger salesman. The Complainant disclosed the nature of his mental health disability to his employer at this meeting in the hope that he would no longer be treated less favourably by the Respondent.

The Complainant was suspended from his employment prior to the WRC Hearing. This was following an incident when the Complainant approached the Respondent to request whether he intended to resolve the WRC complaint in relation to unpaid wages. In response the Respondent yelled at him and sent email correspondence suspending him from employment with immediate effect. Following the cancelled WRC Hearing on 15th August 2023 the Complainant contacted the Respondent and a meeting was arranged for 21st August 2023. This suspension until the meeting with the Respondent is evidence of unfavourable treatment as the comparator was not subjected to such suspension.

The Adjudication Officer has authority to admit an extract of the Complainant's covert recording of the meeting between himself and the Respondent on 28th August 2023, whereupon the latter swore at him, was abusive and referred to his mental health disability in a derogatory manner.

The Complainant had a legitimate reason for covertly recording the meeting he had with the Respondent on 28th August 2023. The complainant was never provided with a written statement of terms and conditions of his employment nor did his employer have in place any workplace policies, in relation to grievance and disciplinary procedures in breach of statutory obligations. Furthermore, the Complainant had already been subjected to abusive and hostile behaviour by the Respondent at previous meetings including on 8th August 2023 when the latter swore at him, was extremely hostile and accused him of not doing his job properly.

The events leading up to the meeting between the Respondent and Complainant on 28th August 2023 include email correspondence to the Respondent where he specifically refers to wanting to "avoid verbal conflict" as the   reason why he set out his grievances in writing.

In response the Respondent in his email of 25th August 2023, rather than taking on board the Complainant's concerns of differential treatment, the impact that the workplace situation was having on his  mental health, and the need to avoid verbal conflict, refused to address the issues he raised in writing but instead accused him of "creating conflict" and stated categorically "l am not doing this by email".

The Complainant therefore had a legitimate reason for covertly recording his meeting with the Respondent on 28th August 2023. All trust had broken down between employer and employee, particularly when the Complainant discovered on 24th August 2023 the extent of the unfavourable treatment he was subjected to when he came across the rates of pay his comparator, Mr A, was being paid in comparison to what he had been offered by the Respondent during their meeting on 21st August 2023. The Complainant had already disclosed to the Respondent that he was suffering from mental health issues during their meeting on 21st August 2023 and referred to the impact that the unfavourable treatment was having on his condition. The Complainant clearly was extremely reticent about meeting the Respondent, after his discovery about Mr A’s rate of pay, as he had already been subjected to hostile behaviour when the latter approached him on 8th August 2023 prior to the WRC Hearing in an attempt to resolve the  issue that was the subject of his claim under the Payment of Wages Act, 1991.

The Respondent had no procedures for redress in place and it is therefore reasonable that the Complainant covertly recorded their meeting on 28th August 2023, as he felt under threat, intimidated and he had already disclosed to the Respondent that the verbal confrontation and abuse he had been subjected to was having a detrimental impact on his mental health disability.

The covert mobile phone recording is relevant to the Complainant's claim of discrimination under the Employment Equality Acts as it demonstrates that the Respondent acted in a derogatory and hostile manner towards him, by swearing at him, being abuse and referring to his mental health disability in a humiliating manner.

The very fact that the Respondent shouted after the Complainant when he left the room and referred to his mental health in a derogatory manner demonstrates a serious prejudice against him, following his confidential disclosure of his disability at the meeting on 21st August 2023. It is contended that the Complainant disclosed his long-standing mental health disability to the Respondent in the hope that he would no longer be subjected to such humiliating and differential treatment, only for this to be used against him a week later, in the most humiliating manner. The Complainant will give evidence at the hearing of how this impacted on him to such a degree that he required emergency medical intervention due to his suicidal intentions.

It is submitted that the Complainant has satisfied the test for discrimination under the Acts as he has proven on the balance of probabilities that he was treated less favourably than his comparator as a result of his age and disability. The Respondent has failed to adduce any evidence to rebut the presumption of unfavourable treatment. The very fact that the Respondent came to a settlement with the identified comparator employee prior to the Workplace Relations Commission hearing on outstanding wages under the Payment of Wages Act 1991, but did not attempt to reach the same agreement with the Complainant is indicative of unfavourable treatment.  That the Respondent granted the comparator employee more beneficial terms and conditions of rates of commission is further evidence of unfavourable treatment. The Respondent has failed to produce any evidence to rebut the presumption that he treated the Complainant less favourably because of his older age and mental disability, particularly in view of the fact that he had substantially more years' experience. The fact that the Respondent may now attempt to justify his actions on the basis that Mr A had higher sales is not a plausible defence as the Complainant's former areas of sales were reduced without his consent. The demeaning and humiliating manner in which the Respondent referred to the Complainant's mental health disability on 28th August 2023, following confidential disclosure of his condition, should be taken into account by the Adjudicator, and the maximum of two years compensation awarded.

Preliminary Issue

At a hearing on the 1st April 2025  it was submitted on behalf of the Complainant that on the  27th May 2024 an application in relation to this complaint was withdrawn and was thereafter reissued.

This is a clear acknowledgement that the first Complaint has been effectively dismissed and disposed of and by letter dated 21st  July 2024 the Commission stated that it had no further jurisdiction regarding the above matters. No application was made to amend the title of the original proceedings. The proceedings were withdrawn and it was acknowledged by the complainant’s representative that they had issued a fresh complaint. It is submitted that this complaint regardless of the title of the Respondent is Statute Barred having regard to the provisions governing the taking of a complaint in these or any circumstances.

The first Complaint was made on the 19th December 2023. In that complaint the most recent element of discrimination complained of is July 2023. This being the case the Complaint made on the 19th December 2023 would appear to be just within time of the Statute of Limitations. The withdrawal of that and the notification from the WRC that it has no jurisdiction to deal with that matter further it having been withdrawn on the 21st July 2024 thereby terminates that process permanently. The institution of a new Complaint thereafter is by definition Statute Barred and incapable of being adjudicated upon by the WRC and to consider this matter the WRC would be acting ultra vires.

On behalf of the Respondent it is submitted as follows;

FM Salon Supplies Limited was incorporated on the 29 June 2018. We also enclose payslips of Damien O’Doherty, the complainant. It is therefore not accepted that this was an administrative oversight or that there is a reasonable basis for extending the six month time limit to the twelve month limit.

In August of 2023 Mr O’Doherty is corresponding with the WRC in relation to FM Salon Supplies Limited.  That being the case Mr Doherty was on notice and in fact was litigating against FM Salon Supplies Limited over a year ago. This again is incompatible with the suggestion that there was some sort of misunderstanding and consequently the six month rule ought not apply.

The WRC makes the case that the Respondent is obliged to engage in the process and seek an adjudication on this preliminary point after the entire evidence has been heard. It is submitted that this gives rise to a basic unfairness and in particular under circumstances where there is no facility to grant costs, the Respondent is unnecessarily being put to the expense of defending the matter under circumstances where there is a potential for a finding at the end of the process that the WRC has no jurisdiction. The respondent will have been disadvantaged to the costs of defending proceedings which have at the outset been stated to be Statute Barred and consequently any hearing to be ultra vires.

By Submission made on the 31st March 2025 the Applicant seeks to include the proposition that failure by the Respondent to discharge a previous finding of the WRC (which was conducted in his absence) represents a further example of discrimination. This case was brought and remains to be under the heading of discrimination based on disability. The failure of the Respondent to discharge an amount awarded by the WRC cannot be fairly said to be a contributing factor to a disability which was stated to have been in existence prior to the making of that award.

The Applicant has his remedy in relation to the enforcement of that award. The title of the Respondent was changed in those proceedings upon application by the Applicant, without reference to the Respondent and without his knowledge particularly under circumstances where he was not present when the award was made in the first place. The complainant advised the WRC on the 1st  April 2025 that this matter was now being enforced by the District Court.

Its progress through the District Court is as yet incomplete but will however be hampered by the fact that the Title is not that which was present when the award was made and that the change of Title was backdated by the WRC to the date of the making of the award without the knowledge of the Respondent. This argument is to be made in the District Court and may be greeted with approval or disapproval.

It is however unrealistic to suggest that the inclusion of the failure to pay the original award under any, but in particular under these particular circumstances, can create a situation to rescue the Statute of Limitations in respect of the matters complained of in the Complaint made on the 19th December 2023. To do so would be irregular and unfair having regard to the fact that the disability complained of is one of a mental health nature. The Respondent is perfectly entitled to resist the implementation of a finding by the WRC to its absolute limit.

The complainant is making the case that he is possessed of a mental health problem which was within the knowledge of the Respondent and which was contributed to by the Respondents behaviour towards him, It is also an unusual feature of this case that the complainant makes the case that his mental health condition was to a large extent caused by the behaviour of the Respondent. The end result of this is that the complainant complains that he was discriminated against on the grounds of a disability generated by the person who was discriminating against him. If one examines the complaint being made the complainant seems to be saying that in the face of his mental health disability he discovered that his earnings were less than those of Mr A despite performing the same roles and duties. The disparity in pay has already been dealt with in the previous case in respect of which there was a finding.

Mr O’Doherty appears to be seeking punitive redress in relation to an alleged discrimination matter under circumstances where he says that he was discriminated against in relation to a disability caused by the employer. It is submitted that were this the case then the complainant’s redress lies elsewhere

Substantive case

The Respondent makes the case that the disparity in earnings was as the result of a difference in performance between the parties who were effectively earning by commission. The complainant is thereby making the case that he is being discriminated against by not receiving equal pay for equal work. The disparity arises as a result of commission which by itself reveals a different level of industry by both parties.

The complainant goes on to complain that the disparity arises as a result of discrimination against him by reason of his mental health condition (which is alleged to have been caused by the Respondent) and that he is thereby in some way making the case that he was disabled from performing to the same level as Mr A and thereby obtaining the same level of commission.

There is an unacceptable level of cross over between these arguments and in particular what appears to be emerging from this entire picture is an allegation of unfair dismissal.

This case has never been brought and the methodology now being employed is to seek recompense for an underpayment which has been the subject of an award and thereafter outside the Statute of Limitations to try to make an equality case which has previously been abandoned. The correct method of progress here ought to have been a Complaint under the Unfair Dismissals legislation and/or the Equality Act of 1998 under circumstances where the complainant would have been compelled to withdraw one in order to proceed with the other. It is submitted that the evidence complained of under the Equality case in this instance is more appropriately evidence to be brought in an Unfair Dismissal case or a constructive dismissal case but it is not of itself evidence of a discrimination on the grounds of a disability.

Preliminary Issue – Time limits

Section 7 of The Employment Equality Act 1998 states;

(5) Subject to subsection (6), 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 the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

(6) If on an application made by the complainant the Director, the Labour Court or, as the case may be, the Circuit Court is satisfied that exceptional circumstances prevented the complainant's case (other than a claim not to be receiving remuneration in accordance with an equal remuneration term) being referred within the time limit in subsection (5)—

(a) the Director, the Labour Court or the Circuit Court, as the case may be, may direct that, in relation to that case, subsection (5) 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…

The Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows;

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

The complainant’s position is that he issued his original complaint under the Respondent's legal title of Jules Hair & Beauty on the 19th of December 2023, based on a Company's Registration Office search that recorded this company as registered on 24th January 2019. A WRC Hearing was listed on 29th April 2024 (ADJ-00049326). The Respondent's Legal Representative applied for an adjournment, which was duly granted.  At no stage prior to or at the WRC Hearing on 29th April 2024 did the Respondent's Legal Representative raise any issue with regards to the Company's correct legal title.

It was only subsequent to the Complainant's previous claim against the Respondent under the Payment of Wages Act, 1991, in which he represented himself that the complainant discovered that the Order had been granted against FM Salon Supplies Limited. Upon conducting a Company's Registration Office search he discovered that this company had indeed been registered prior to Jules Hair & Beauty, on 29th June 2018. It is unclear why the Companies Registration Office did not strike out the registered business title of Jules Hair & Beauty, in view of the fact that annual returns have not been filed and the complainant can only surmise that this is an oversight. In respect to pay slips enclosed by the Respondent's representatives, it is noteworthy that the correct legal title is FM Salon Supplies Limited not FM Salon Supplies as recorded on same. Had the Respondent complied with basic statutory employment legislation by issuing written terms and conditions and office policies the complainant would have had the opportunity to ascertain the correct legal title at a sooner date.

The proceedings before me relate to a complaint made under Section 77 of the Employment Equality Act 1998 and only that Act.  Therefore, I believe I should consider the preliminary issue in the context of section 88 of that Act.

Section 88 of the Employment Equality Act 1998 provides that:

“(2) By notice in writing to the parties, the Director or, as the case may be, the Chairman of the Labour Court may correct any mistake (including an omission) of a verbal or formal nature in a decision or determination under this Part.

(4) If any person who participated in an investigation under section 79 or 86 is not correctly identified in the resulting decision or determination, the correction of that error shall be regarded as falling within subsection (2).”

The provision has commonly been invoked by Adjudication Officers (and previously Equality Officers) and the Labour Court to amend or correct a decision where an error or a formal nature appears on a written decision. This provision was not intended to be invoked by a complainant to amend that name of a respondent in proceedings under the Employment Equality Acts.  Therefore, the complainant did not have the option of seeking to amend the title of the respondent and the only available avenue was to issue fresh proceedings.  He did so for good reason and in a reasonable timeframe.  In these circumstances I conclude that the complainant met the test as detailed above in Cementation Skanska v Carroll, DWT 38/2003 and I have jurisdiction to hear the complaint.

The complainant has also argued that as there is continuing discrimination (due to the non payment of an award from the WRC) there is jurisdiction to hear this part of the claim. I propose to deal with this issue in my decision on the substantive case.

Substantive Case.

The complainant has argued that he was discriminated against on the grounds of his disability and age and was subject to penalisation insofar as the respondent did not pay him the award determined in an earlier case by the WRC.

In direct evidence the complainant said that the respondent had, on numerous time occasions, said that the complainant should start taking things easy.  In January 2023 at a meeting the respondent had asked him was he going to continue working and when the complainant queried as to why he was being asked this, the respondent mentioned his age. The respondent did not himself give evidence to refute this claim.

The complainant stated that Mr A (the younger comparator) informed him that he had come to an agreement with the respondent about his pay but was not at liberty to discuss this.  Both the complainant and Mr A had submitted a complaint to the WRC regarding pay.  When the complainant approached the respondent about this in advance of the WRC hearing he was suspended by the respondent.  There was no disciplinary process involved. The respondent did not give any evidence to refute this allegation.  Mr A was treated differently in so far as the respondent made an agreement with him in advance of the WRC hearing.

The WRC hearing did not go ahead on the day and the complainant and respondent met to discuss the issue the following week.  The complainant alleges that the respondent told him that he was not going to give the complainant the same deal as he had given Mr A.  This was not refuted at the hearing by the respondent.  The complainant suffered stress requiring medication as a result of the meeting.

The complainant saw a document which detailed the disparity in pay between himself and Mr A and he prepared a document for the respondent based on this information.  He met with the respondent on 28th August 2024 and recorded the meeting.  He gave evidence about the respondent shouting at him about his mental health.  The respondent did not give any evidence to refute this allegation.

The pay proposal at the centre of the dispute may never have been implemented.   No justification for any different system of payment was given in evidence at the hearing.  However, Mr A had told the complainant that he had come to an agreement with the respondent.  Based on this, and his subsequent sight of a document which in the complainant’s view confirmed what Mr A had said, the complainant was justified in believing that there was a different system of pay in place for his younger colleague.  This combined with the various comments made to him about taking things easier and how long was he going to continue is prima facie evidence of discrimination on the grounds of age.  The burden of proof therefore moves to the respondent, who did not provide and direct evidence to refute the allegation.  I conclude that this is discrimination on the age grounds.

The decision to apply a different payment system to the complainant took place before the respondent was made aware of the complainant’s mental health issues.  Clearly, therefore, it cannot be reasonably argued that this decision was related to a disability. 

Penalisation issue -non payment of WRD award

Section 43 of the Workplace Relations Act 2015 states;

43. (1) If an employer in proceedings in relation to a complaint or dispute referred to an adjudication officer under section 41 fails to carry out the decision of the adjudication officer under that section in relation to the complaint or dispute in accordance with its terms before the expiration of 56 days from the date on which the notice in writing of the decision was given to the parties, the District Court shall—

(a) on application to it in that behalf by the employee concerned or the Commission, or

(b) on application to it in that behalf, with the consent of the employee, by any trade union or excepted body of which the employee is a member,

without hearing the employer or any evidence (other than in relation to the matters aforesaid) make an order directing the employer to carry out the decision in accordance with its terms.

The respondent has argued that the referral to the District Court for enforcement of the award is a stage in the process which he is entitled to exhaust. However, it is clear from the Workplace Relations Act that the role of the District Court is not as a further appeal stage of an award but rather to enforce a reward.  At the hearing the respondent made reference to potential issues that could be raised at the District Court, such as liquidation of the company, and Title of the company. However, the respondent did not appeal the decision of the WRC to the Labour Court which was the appropriate forum to raise any issues pertinent to the WRC finding.

At the time of the award the respondent had been advised of the complainant’s disability in relation to mental health.  The unrefuted evidence of the complainant in relation to the remarks made by the respondent to him concerning is mental health is prima facie evidence of discrimination on the disability grounds.  The respondent gave no evidence to refute this allegation.  I therefore consider this behaviour to be discriminatory.  

 It is clear that the decision of the respondent not to pay the award and to protract the issue could have a further detrimental effect on the complainant due to his disability and therefore I conclude that this was discriminatory.

I am awarding 52 weeks pay as compensation for this discrimination.

No evidence was given by the respondent as to why he was insisting on a different payment system to the complainant to that which he had agreed with the younger co-worker Mr A.  In light of the evidence given by the complainant to various references made to him relating to his age it is reasonable to infer that this may have been the reason, or part of the reason, for the difference in treatment and meets the threshold of prima facie evidence of discrimination.  The burden of proof therefore switches to the respondent.  The respondent gave no evidence at the hearing to refute this allegation.  I therefore conclude that the complainant was discriminated against on the grounds of his age. I am also awarding 52 week’s pay for this discrimination.

 I find that the refusal by the respondent to pay the WRC reward does not meet the threshold for prima facie evidence of penalisation related to the grounds of age. 

The complainant was discriminated against and I order the respondent to pay him €106,000 in compensation

Penalisation due to non-payment of WRC award.  Mental health, age related discrimination