Complainant

Respondent

Parties

Joao Guilberto  Guimaraes Brito

Right Move Recruitment

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00070557-001

04/04/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00071940-001

27/05/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00071940-002

27/05/2025

The Complainant was employed by the Respondent from 14 April 2023 until 21 February 2025. 

In relation to CA-00070557-001, the Complainant alleged that he was out sick on 8 November 2024 and that he sought payment of statutory sick leave from his employer.  He stated that the Employer did not pay him correctly for his entitlement to statutory sick leave in 2024 and 2025.

In relation to his complaint CA-00071940-001, the Complainant alleged that he was not paid for public holidays.

In relation to complaint CA-00071940-002, the Complainant alleged that he did not receive equal pay for public holidays in line with workers working in the main business where he was employed.

The Respondent is a recruitment agency.  There was no appearance by or on behalf of the Respondent at hearing. 

CA-00070557-001: Non-payment of statutory Sick leave

The Complainant submitted that he was out sick from 9 November 2024 and that he asked his employer to pay him statutory sick leave.  He stated that initially his employer refused, saying that he had no entitlement to that, however, he stated that after a number of conversations and calls to the WRC to get clarification on the matter, the Employer agreed to pay five days statutory sick leave in 2024.

The Complainant submitted that his illness continued into 2025 but that he was not in receipt of any social welfare payment as he was not entitled to such a payment.  He stated that he reached out to his employer to request five days statutory sick pay for 2025 and was again refused.  He stated that he believed he was entitled to this payment in law and so he asked the Adjudication Officer to find in his favour on this matter. 

Evidence given at hearing:

The Complainant confirmed that he was out sick in total from 9 November 2024 until 30 January 2025 but that he never went back to work.  He stated that he took no annual leave during that period.  He stated that he was initially refused statutory sick leave payment in 2024 and that he had to convince the Employer of his entitlement.  He stated that the Respondent believed he had no entitlement because he was on an “ad hoc contract”.  He confirmed that the ad hoc contract meant he was on a zero hours contract.  The Complainant confirmed that in the 13 weeks prior to submission of his complaint, he was on average working 24.4 hours per week.  He confirmed that he was eventually paid and that that entitlement was processed through payroll.  He stated that when he continued to be out sick in 2025, he again had to argue his case and because he had no income, he had to go without medical treatment, which worsened his condition.  The Complainant again confirmed that he was not in receipt of social welfare payments and that he was finding it difficult as he was not in receipt of any payment.  He confirmed that his sick leave was unbroken from 2024 to the end of 2025 and he believed this to have been caused by the delay in the 2024 payment when he was financially unable to access medical treatment. 

CA-00071940-001- Public Holiday entitlement:

The Complainant submitted that upon reviewing his payslip he questioned his employer about missing public holiday pay and he stated that after he did so, his employer admitted that it was an omission and paid him for the missing payment.  He stated that he explicitly asked him not to inform his colleagues, stating that if they found out, they would all come asking for it. 

He stated that he also questioned his employer about missing holiday pay.  He stated that holidays commenced on 11 November 2023 and were to be paid on 24 November, but that no pay was received.  Again, he stated that after raising the omission with the employer, the missing pay was eventually paid on 8 December 2023. 

He further submitted that upon reviewing his payslip he questioned his employer about further omissions, and the employer acknowledged the omissions one month later and issued the payment at the end of November.  He stated that the payment for January 2024 had still not been received at the time of submission of his complaint and he stated that he was also delayed receiving his weekly pay by 3-5 days on eleven occasions throughout his employment.

The complainant submitted that on 12 January 2024 he was not paid for public holidays accrued from 1 January despite meeting the statutory requirement for having worked 40 hours in the preceding five weeks.  He stated that he received payment for that bank holiday after he had asked and late in the day.  He confirmed that on 29 March he was again not paid for the public holiday which was accrued from 17 March, again despite meeting statutory requirements of having more than 40 hours in the preceding five weeks.  He confirmed that he received the payment for that bank holiday, again after he raised the issue, and a week late. 

The Complainant confirmed that on 12 April and 17 May, he did not receive payment for the public holidays worked and that he is still due payment for those public holidays.  He pointed out that again he received payment late for 16 August 2024. 

Witness evidence – the Complainant:

At hearing, the Complainant confirmed that he had not been paid for his public holiday in relation to 1 January 2024 and that he had to raise the matter with his employer and was then eventually paid a week later.  He stated that this occurred again on 18 March and that he was not paid until he raised the matter and that he was eventually paid a week later. 

He confirmed that he was not paid at all for public holidays on 1 April and 6 May 2024 and that he was again paid late on 5 October and 24 October.  He confirmed that when he asked for the payments, he was advised not to tell his colleagues.

CA-00071940-002 - Discrimination on the grounds of race:

In his Complaint form the Complainant alleged that he did not receive equal pay contrary to Section 77 of the Employment Equality Act.  He did not provide any further details at that time.

Complainant submission

The Complainant submitted that upon reviewing his payslip, he questioned the Respondent about the missing public holiday pay. He submitted that as a result the Respondent admitted the omission, issued the missing payment, explicitly asked him not to inform his colleagues, and stated that if they found out, "they would all come asking for it."

The Complainant submitted that he also questioned the Respondent about missing holiday pay ( holiday commenced on the 11th of Nov 2023 and was to be paid on the 24th of November,  no pay received). He submitted that as a result the Respondent admitted the omission and issued the missing payment on the 8th of December 2023. He submitted that similarly he question the Respondent about the missing Statutory Sick Pay and that as a result the Respondent admitted the omission almost one month later, and issued the missing payment at the end of November 2024. He confirmed that the Statutory Sick Pay for 2025 was never received.

The Complainant submitted that this suggests a broader practice of selectively applying entitlements, which may disproportionately affect non-EU or migrant workers who may be less familiar with their rights. He submitted that he believed this treatment amounts to discrimination based on nationality and unequal access to legal entitlements, in breach of the Employment Equality Acts.

The Complainant requested the WRC to:

·         Investigate whether there had been unlawful discrimination against him and potentially others based on nationality

·         Direct the Respondent to cease any such discriminatory practices

·         Award him compensation for the effects of the discrimination and penalisation including the stress and hardship caused

·         Require any outstanding entitlements to be paid

·         Ensure the Respondent applies entitlements fairly to all staff going forward

Complainant evidence at hearing:

The Complainant confirmed that he was working with the Respondent who was an agency providing staff to Dublin Port.  He confirmed that the majority of the agency workers were foreign employees and that the majority of the Dublin Port workers were all Irish nationals.  He stated that all the foreign workers were receiving a lower rate of pay and that this had an impact into the overtime rates applicable for working weekdays and at weekends.  He stated that the difference in basic pay was €2.03 and that at all times the lower rate was what was paid to the foreign workers.  He stated that the Irish nationals in the port received their public holiday payment in the correct time and received the higher rate of pay and he believed that this was basis of the discrimination.

There was no appearance by or on behalf of the Respondent nor did the Respondent provide any written submission for consideration.

In conducting my investigation, I have taken into account all relevant submissions presented to me, as well as evidence given under oath at hearing. 

CA-00070557-001: - Non-payment of Statutory Sick leave

The Complainant was out sick from 9 November 2024 to the date on which he resigned his employment i.e. 21 February 2025.  He alleged that he was not paid his statutory sick leave entitlement.  At hearing the Complainant clarified that he was eventually paid for 5 days statutory sick leave days in 2024 but that he was not paid any statutory sick leave in 2025.

The Respondent did not attend the hearing and did not provide any written submission on this matter.

Section 5.(1) of the act states that …”an employee shall, in respect of a day on which he or she would ordinarily work but is incapable of doing so due to illness or injury (in this Act referred to as a “statutory sick leave day”), be entitled to Statutory sick leave.

Section 5 (2) of the act states that “An employee shall be entitled to up to and including 3 statutory sick leave days in a year”.  Since 1 January 2024, the number of statutory sick leave days in a year increased to 5 days (Ref Sick leave Act 2022 (Increase of Statutory Sick Leave Days Order 2024, SI No. 10/2024).

It should be noted that in accordance with section 5(4) of the act, “the first day in a year that an employee is incapable of working due to illness or injury is considered to be the employee’s first statutory sick leave day”.  In that context, I find that the Complainant’s first day of statutory sick leave in 2024 was 9 November 2024. In circumstances where the Complainant remained out sick it is clear that he was paid for statutory sick leave up to 14 November 2024 and thereafter he was on unpaid sick leave for the remainder of that calendar year.  His evidence was that he was not in receipt of injury or illness benefit.  The Complainant provided copies of statements from the Department of Social Protection and copies of his medical certificates in support of his claim.

The first working day in 2025 was 2 January 2025 and it was the Complainant evidence that he remained out sick in 2025 up to when he resigned his employment on 21 February 2025.  As outlined above Section 5(4) of the act states that “the first day in a year that an employee is incapable of working due to illness or injury is considered to be the employee’s first statutory sick leave day”.  In that context, I find that the Complainant’s first day of statutory sick leave in 2024 was 2 January 2025.

Section 21 of the Social Welfare (Miscellaneous Provisions) Act 2023 amended Section 5(4) of the 2022 Act by the insertion of the following clause:

5 (4A) “An employee shall not be entitled to statutory sick leave where, on the immediately preceding normal working day, the employee was on sick leave –

(a)     constituting statutory sick leave in the immediately previous calendar year or

(b)    for which the employee was entitled to illness benefit or injury benefit.”

In simple terms this provision is understood to mean that an employee cannot claim statutory sick leave on the first normal working day of the calendar year if they were on statutory sick leave on the immediately preceding normal working day of the previous calendar year.

The Complainant was on statutory sick leave from 9 November to 14 November 2025 and thereafter he was on unpaid sick leave.  It was the Respondent evidence that he was not in receipt of illness benefit or injury benefit.  As he was on sick leave on the 2 January 2025 until 21 February 2025 and as he was not on statutory sick leave on 31 December 2024, the Complainant was within his rights to claim statutory sick leave for 5 days, commencing on 2 January 2025.  It was his evidence that he was not paid that entitlement, despite submitting appropriate medical certification.

There was no appearance by or on behalf of the Respondent at hearing, nor did the Respondent provide any written submission to the WRC for consideration.  On the day of the hearing, I awaited the attendance of the Respondent for 20 minutes before opening the hearing.  I reviewed the WRC correspondence and I am satisfied that the Respondent was on notice of the arrangements for the hearing.  I am also satisfied that there was no contact post-hearing to explain/excuse the non-attendance of the Respondent.

Based on all of the above, I find that the Complainant was paid for his full entitlement to statutory sick leave in 2024 but was not paid for his statutory entitlement of 5 days in 2025. Consequently, I find that his complaint is well founded. 

CA-00071940-001 - Public Holiday entitlement:

In his complaint form the Complainant alleged that he did not receive his public holiday entitlement.  He further clarified this, both in his submission and in his sworn evidence at hearing, indicating that he received several later payments for public holiday entitlements but that in particular he never received payment for 1 April 2024 and 6 May 2024.

There was no appearance by or on behalf of the Respondent at hearing, nor did the Respondent provide any written submission to the WRC for consideration.  On the day of the hearing, I awaited the attendance of the Respondent for 20 minutes.  I reviewed the WRC correspondence nd I am satisfied that the Respondent was on notice of the arrangements for the hearing.  I am also satisfied that there was no contact post-hearing to explain/excuse the non-attendance of the Respondent.

Section 21 of the Organisation of Working Time Act provides:

“21.—(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day's pay in respect to the public holiday”

Section 41 (6) of the Workplace Relations Act 2015 provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

on 23 September 2024.  This complaint was received by the WRC on 27 May 2025.

In accordance with Section 41 of the Workplace Relations Act, the cognisable time period is 27 November 2024 to 27 May 2025.

However, the Complainant did not identify any dates within that cognisable period for which he was not compensated.

While the Complainant listed a number of dates earlier in 2024 for which he was eventually paid, he did highlight that he was not paid for 1 April 2024 and 6 May 2024.  In accordance with Section 41 of the Workplace Relations Act these complaints do not fall within the cognisable period outlined above and the complaint relating to those dates is out of time.

In these circumstances, I find that this complaint is out of time and that I do not have jurisdiction in the matter.

CA-00071940-002 - Discrimination on the grounds of race:

The Complainant alleged that he was discriminated against on the grounds of race and in his complaint form he related this to a matter of equal pay.  In his submission to the WRC and at hearing it became clear that his concerns were twofold:

(i)                  that he was paid less that workers at Dublin Port doing the same job

(ii)                that the pattern of the Respondent in not paying entitlements correctly on an on-going basis and seeking to hide that information from its’ employees pointed to discriminatory treatment.

The Complainant gave evidence that the majority of staff working for the Respondent at Dublin Port were not Irish nationals, while the majority of the staff directly employed by Dublin Port Authority were Irish nationals.

Preliminary Issue – Initial Burden of Proof Under the Employment Equality Act:

It is settled law that the onus is on the Complainant to initially establish an arguable case of discrimination before the Respondent is required to disprove that discrimination has taken place.  To this end it is for the Complainant to identify and establish facts of sufficient significance to raise a presumption of discrimination to discharge the initial burden of proof under section 85 A of the Employment Equality Act. 

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

“85A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary..”

In evaluating the evidence before me, I must therefore consider if the Complainant has established a prima facie case pursuant to Section 85A of the Acts. 

This requires the Complainant to set out in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him.  It is only when such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

In that regard there are three specific criteria which need to be met in order to show that a prima facie case has been established, namely:

1.       Membership of a discriminatory ground (e.g. race, family status).

2.      Evidence of specific treatment by the Respondent.

3.      Evidence that the treatment received by the Complainant was less favourable than the treatment someone, not covered by the same ground(s), would have received in similar circumstances.

A prima facie case is established only when all three criteria are satisfied and only then the burden of proof shifts to the Respondent to rebut the claim of discrimination. 

The law in relation to discrimination is well established in this jurisdiction:

In Melbury Developments Limited v Arturs Valpeters IEDA09171 it was stated:

"...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. Section 85 places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. "

In Southern Health Board v Mitchell, the Labour Court considered the extent of the evidential burden which the Complainant, under the Acts, must discharge before a prima facie case can be made out.  It provided inter alia as follows:

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

It is noteworthy the Complainant did not provide a named comparator in his complaint form or in his submission but did clarify at hearing that he was making a comparison between the employees of the Respondent, whom he stated were largely not Irish nationals vs employees at the Port Authority who were largely Irish.  The Complainant confirmed his own nationality to be Brazilian and that he was employed by the Respondent as an agency worker to work at Dublin Port.

Section 8 (2) of the Act states that

“For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker is, has been or would be treated.”

Based on the Complainant’s sworn evidence it is clear that he complained of less favourable treatment than an employee of Dublin Port Authority and not to less favourable treatment than another agency worker.  In this circumstance, I must find that the Complainant has not provided a valid comparator under the act and therefore does not meet the specific criteria required to demonstrate a prima facie case of discrimination.

I therefore find that this complaint is not well founded.

CA-00070557-001: Non-payment of statutory Sick leave

As outlined above I found that the Complainant was paid his full entitlement to statutory sick leave in 2024 but was not paid his entitlement to 5 days statutory sick days in 2025 and I found that therefore his complaint was well founded.

In the circumstances I direct the Respondent to pay the Complainant for 5 days statutory sick leave for 2025.

CA-00071940-001 - Public Holiday entitlement:

I found that this complaint is out of time and that I do not have jurisdiction in the matter and so I decide accordingly.

CA-00071940-002 - Discrimination on the grounds of race:

I found that the Complainant had not met the burden of proof required to sustain a prima facie case of discrimination and accordingly I decide that this complaint is not well founded.

Statutory sick leave, payment for public holidays, discrimination on the ground of race