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FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES: EXCEL RECRUITMENT LTD
(REPRESENTED BY EMPLOYMENT LAW SERVICE) - AND - MR PAUL DUSA (REPRESENTED BY MR PATRICK BARRETT INSTRUCTED BY FT CONSULTANTS LIMITED) DIVISION:
SUBJECT: 1. Appeal Of Adjudication Officer Decision No(S) ADJ-00036033, CA-00047251-003 DETERMINATION: This is an appeal by Mr Paul Dusa (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00036033/CA-00047251-003, dated 3 February 2023) under the Employment Equality 1998 (‘the Act’). Notice of Appeal was received in the Court on 27 February 2023. The Court heard the appeal in a hybrid sitting in Dublin on 25 July 2023 to facilitate the Complainant’s attendance via video link from a remote location. At the commencement of the hearing of the within appeal, Counsel for the Complainant informed the Court that the following three associated appeals referred to the Court on the Complainant's behalf were withdrawn: TE/23/21 (appeal of ADJ-00036033/CA-00047251-002 – under the Terms of Employment (Information) Act 1994: PL/23/1 (appeal of ADJ-00036033/CA-00047251-004 – under the Parental Leave Act 1998) and WTC/23/17 (appeal of ADJ-00036033/CA-00047251-005 – under the Organisation of Working Time Act 1997). The Factual Matrix Excel Recruitment Ltd (‘the Respondent’) is an employment agency. The Complainant was employed by the Respondent for a period of approximately eight weeks from 16 March 2021. For the entirety of that period, he was placed by the Respondent on a site operated by its client, Masterlink, as a picker, along with approximately twenty-five other agency workers supplied by the Respondent on that site. The Complainant was provided with a written contract that described his employment as ‘casual’ with no minimum number of hours guaranteed. He was also provided with an employee handbook that included the Respondent’s human resources policies and procedures, including a grievance policy and an anti-bullying and harassment policy. Shortly after the commencement of the Complainant’s employment at the Masterlink site, demand for the latter’s services increased and employees on the site – including the complainant - were routinely offered the opportunity to work overtime both at the end of their daily shifts and at weekends. The Complainant worked overtime on one Saturday only and never on a Sunday because he had childcare responsibilities normally at weekends. The invitation to work overtime was circulated by text message each week to all of the Respondent’s employees on the Masterlink site by Mr Laurence Rogers (a recruitment executive with the Respondent). It is common case that overtime work was optional and no employee was compelled to take up the invitation. The Complainant let it be known that he was unavailable for overtime work. For example, on 22 April 2021, he replied to a message from Mr Rogers stating, inter alia:
“That’s OK Paul, I have to send out the message every week. Just reply ‘not available’.” The Complainant reverted saying: “I would appreciate it if you don’t send it to me please. Thank you.” Mr Rogers texted the Complainant again on 21 May 2021 as follows:
The Complainant told the Court that he had applied through the Respondent to work on the Masterlink site because the advertisement for the job expressly stated that it would be for Mondays to Fridays only “ensuring your weekends are free”. He said that this was important to him because he had childminding responsibilities at weekends. The Complainant said he attended an interview with Mr Rogers at the Masterlink site and signed a contract of employment. He was allocated to the warehouse there and worked approximately forty hours per week, Monday to Friday, performing picking tasks. According to the Complainant, there was a constant churn of staff on the site with new staff continuously undergoing training there. He told the Court that he was constantly ‘pestered’ and ‘harassed’ about working overtime. Although he explained that his family situation did not permit him to work weekends, those who were pestering him replied “We have children and we work overtime” and “We don’t sleep at weekends; everybody works overtime”. He said that his supervisor had shouted at him on several occasions in the presence of other colleagues. The Complainant expressed the view that all this was being done to him deliberately because those who were pestering him knew he would decline to work at weekends. He also told the Court that he had informed Mr Rogers on several occasions that he couldn’t and wouldn’t work weekends. The Complainant referred to his text message to Mr Rogers on Friday 21 May 2021 (reproduced above) which he characterised as a grievance concerning his treatment by management at Masterlink. He told the Court that no action had been taken on foot of that grievance and it had not been investigated. Finally, in his direct evidence, the Complainant gave his version of the events of 26 May 2021. He told the Court that he had been called into his manager’s office and “sacked on the spot”. His recollection was that the manager simply stated that, “This is not working out Paul and we are letting you go” but declined to give any reasons for the decision. He was then escorted off the premises, he said. The Complainant’s evidence was that he no longer had trust and confidence in the Respondent from that point in time onwards. Under cross-examination, the Complainant initially accepted that the job advertisement he had referred to in his direct evidence had made reference to the availability of overtime work. He subsequently changed his evidence and stated that he didn’t recall if it did or not. It was put to the Complainant that he had written in a text message that “I would rarely work a Saturday”. He replied that what he meant by that was that he would be available “on the rare occasion”. The Complainant confirmed that he worked twelve hours of overtime on one weekend when his daughter was away. It was also put to the Complainant that Mr Rogers had given him a legitimate instruction which was to reply ‘not available’ to his offers of overtime but he chose not to do so. He was asked by the Respondent’s representative why he hadn’t done so. He replied that his response was to raise a grievance by text on 21 May 2021. In response to a question from the Court, the Complainant confirmed that he was relying on the text messages and emails exhibited in his papers as evidence of the harassment and discrimination on the family status ground he alleges he experienced while in the Respondent’s employment. He accepted that he had never been forced to work overtime and he acknowledged that Mr Rogers had stated in writing to him that “family is more important than work” and had routinely replied to the Complainant that it was OK when he had declined offers of overtime. He also accepted that on one occasion when Mr Rogers contacted him about his availability work a Saturday or Sunday on a particular weekend that he had offered him a day off the following week and this could not be construed as amounting to discrimination or harassment. Evidence of Mr Laurence Rogers Mr Rogers told the Court that he is employed by the Respondent as a recruitment executive and has worked in that capacity for approximately eight years. He said that he had issued the Complainant with a temporary employment contract with the Respondent that did not guarantee him work in any specific location. He said the Complainant was also provided with a copy of the of the Respondent’s employee handbook which included its harassment policy and the Complainant had signed an acknowledgment that he had received it. The witness told the Court that he had been requested by Masterlink, following a ramping up of production, to ask his agency staff based in Masterlink if they were available to do overtime. He did this by circulating a text message to all twenty-five or so workers on the site on a weekly basis. According to the witness, having read the Complainant’s text of 21 May 2021 that he was apprised that the Complainant had a work-related issue but was unsure of the details of the issue. He said it had been his intention to follow up in relation to it on the following Thursday in the course of his weekly attendance at the Masterlink site. However, this was overtaken by the events of Wednesday 25 May 2021. The witness said he had enquired of the management the following day about what had occurred with the Complainant on the Wednesday and was informed that a manager from elsewhere in the Masterlink business, with no prior history with the Complainant, had been on site that day covering for the local managers who had been attending a training course. The visiting manager had raised an issue with the Complainant about his pick rate on the day. The witness told the Court that he was told that the Complainant had become aggressive with the visiting manager and was therefore told to go home for the rest of the day. The witness’s evidence was that he had tried many times to contact the Complainant by telephone following receipt of his grievance email on Wednesday 26 May 2021 but the Complainant had not answered his calls and had then subsequently requested the witness to confine all future communications to email. At that point, the witness says he escalated the Complainant’s case to the human resources department. Finally, in his direct evidence, he told the Court that the Complainant could, if he wished, have been placed by the Respondent on other client sites. Under cross-examination, the witness was emphatic that it had been the Complainant who had shut down his relationship with the Respondent. In reply to questions from the Court, the witness confirmed that he had texted the full cohort of his staff on the Masterlink site on each occasion that overtime was available and that the Complainant had been treated in all respects in the same manner as each of his colleagues. He also said that the majority of his staff on the site were in the twenty-one to thirty-eight age group and many of them had families. The Claims before the Court It was agreed at the outset of the hearing that the appeal before the Court comprised of two complainants under the Act: one of discrimination on the family status ground and one of harassment on the same ground. Counsel for the Complainant advised the Court that his client’s principal complainant was one of harassment contrary to section 14A of the Act. The Claim of discrimination The substance of this aspect of the Complainant’s appeal was articulated by Counsel as follows. He submitted that the Complainant had taken the job with the Respondent because it had been advertised as a Monday to Friday job and that he had done so because of his family responsibilities i.e. the requirement that he be available to care for his daughter at weekends. That being the case, he further submitted, the Respondent’s continuous requests of the Complainant to make himself available for overtime work on weekends constituted discrimination on the basis of the Complainant's family status. Burden of Proof Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:
Decision on the first complaint Having regard to the submissions of the Parties in this case, and the oral evidence adduced, the Court is of the view that the Complainant does not meet the burden of proof required by section 85A(1) of the Act. It is clear to the Court that the Complainant was never compelled by the Respondent to work overtime for its client Masterlink on any occasion including at weekends. He confirmed as much in his own evidence. Furthermore, it is clear that Mr Rogers’ communications to his staff were made on the instructions of Masterlink for the purpose of putting Mr Roger’s staff on notice that overtime was available for those who were interested in availing themselves of it. Mr Roger’s sent those communications to all of his staff regardless of their family status. They were all treated equally. There is not a scintilla of evidence before the Court that the Complainant was treated less favourably because of his family status. The Complainant has not met the threshold required under section 85A to transfer the burden of proof to the Respondent. The Court, therefore, determines that this aspect of the appeal is not well-founded. The Complaint of Harassment Counsel submits that the Complainant’s supervisor and manager at Masterlink come within scope of section 14A(1) of the Act. He further submits that they constantly pestered the Complainant to undertake weekend work although they had been fully aware of his childcare commitments at weekends. When the Complainant did not comply, his managers – it is Counsel’s submission – became hostile in their dealings with him and picked on him in the workplace. This, according to Counsel, culminated in a complaint by the Complainant – set out in his text to Mr Rogers on 21 May 2021 – which the Respondent failed or neglected to investigate, contrary to its obligations to the Complainant under section 14A of the Act. Section 14A Section 14A of the Act provides both a definition of what constitutes harassment on the nine protected grounds – including family status – and provides a defence for an employer in certain circumstances in section 14A(2). Section 14A(7) defines ‘harassment’ for the purposes of that section:
Section 14A(2) provides:
Discussion and Decision re the Complaint of Harassment The Complainant’s case that he was the subject of harassment in the workplace consisted almost entirely of bald and generalised assertions to the effect that he was continuously picked on by his supervisor and manager on the Masterlink site because he was unwilling to make himself available to work at weekends. He seeks to advance the case that the treatment he alleges he experienced occurred in circumstances where his colleagues and managers were fully aware of his childminding obligations at weekends and that, therefore, the impugned behaviour had the purpose or effect of violating his dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him within the meaning of section 14A(7). The Court cannot gainsay the Complainant’s evidence that he regarded the manner in which he was treated as amounting to harassment and that he initiated a complaint in those terms by sending the text message he sent to Mr Rogers on Friday 21 May 2021. That part of the definition of harassment that relates to effect of the alleged discriminatory treatment is undoubtedly subjective in nature in so far as only the target of the behaviour complained of can articulate the effect of the behaviour in question on them. However, the question of whether or not the behaviour complained of was “related to any of the discriminatory grounds” is one to be decided objectively, in this case by this Court, having regard to the evidence before it. Having considered the Complainant’s evidence in some detail and the course of communications between him and Mr Rogers in particular, the Court finds that there is nothing before it that establishes – even on a prima facie basis - that the treatment the Complainant alleges occurred – even if his evidence is accepted at its height - was related to his family status. This aspect of the Complainant’s appeal, therefore, fails. Conclusion The decision of the Adjudication Officer in respect of both aspect of the Complainant’s complaint under the Act is upheld. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Sinead O'Connor, Court Secretary. |
