EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-096
PARTIES
Radek Velicka
AND
OCS One Complete Solution Ltd
(Represented by IBEC)
File reference: et-154316-ee-15 & et-159812-ee-15
Date of issue: 7th July 2016
HEADNOTES: Employment Equality Acts, Equal Pay on grounds of Gender, Civil Status, Age. Discrimination on grounds of Civil Status, Race, Family Status, Discriminatory Dismissal, Victimisation, Conditions of Employment, Harassment.
1 DISPUTE
i. The complainant referred his claims to the Workplace Relations Commissions on the 6th March, 2015 and the 24th September, 2015 under the Employment Equality Acts. On 5th April, 2016, in accordance with his powers under section 16 of the Workplace relations Act 2015, the Director General of the workplace Relations Commission delegated the case to me, Niamh O’ Carroll Kelly, an Adjudication Officer for investigation, hearing and deciding the within claims. I proceeded to a hearing on 29th April, 2016.
ii. This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.
2 COMPLAINANTS' SUBMISSION
i. The complainant transferred from his old company (hereinafter referred to as VK) to the respondent company on 27th March, 2014 via transfer of undertakings.
ii. On the 31st October, 2014 he had his first meeting with the respondent. He was asked to bring documentation, passport, VK contract, pay slips etc. with him to the meeting as the respondent had not received each employees personnel file from the previous employer. The complainant met with B.K who is a manager with the respondent. He was asked to sign a direct debit mandate form so that his wages could be paid directly into his bank account. BK took the document and started to fill out the details, e.g. wages, hours of work etc. The complainant was unhappy with the details inserted into the form. He stated it did not reflect the fact that he was to be paid JLC rates.
iii. The complainant stated that he also had to do a series of maths related tests. He did not know why he should have to do a test. He didn’t invoke the grievance procedure in relation to that.
iv. It became apparent that he was not being paid his JLC rates. He started to write e-mails to the respondent about his wages and specifically the fact that he was not receiving JLC rates.
v. He stated that he felt harassed by the respondent because they held his ‘one weeks wages’. He stated that the respondent’s employee handbook differs from that of his previous employer VK, but that they didn’t even pay him in accordance with their own handbook.
vi. The claimant stated that he was told by the respondent that they would pay him what he had been paid by VK but they failed to do so.
vii. The claimant was called to a meeting on 17th Nov. 2013 with LON and BK. At the meeting the respondent said they would rectify the situation and they asked him to sign another contract stating he would be paid €10.75p/h however it was silent on the issue of JLC rates.
viii. The claimant brought a claim against VK pursuant to the Payment of Wages Act. His claim succeeded. However, he was unhappy with the quantum awarded and has appealed that decision. The respondent has entered an appeal also.
ix. The claimant stated that there were issues with holidays also. He wanted to take them at a particular time but the respondent denied him permission. He was told he would have to take his holidays in March.
x. There were also issues with his holiday pay. He alleges he was paid for 125 hours and not 140 hours.
xi. The complainant submitted into evidence an advertisement dated, 2014, for a position in the respondent company whish position had JLC rates.
xii. The complainant stated that he did not know who was or was not paid JLC rates. All he could say is that he was not paid them.
xiii. The complainant had a meeting 10.03.2015 with management. He was not allowed to bring his wife with him. He alleges that the respondent’s refusal to allow his wife accompany him amounted to discrimination. The respondent handbook states that he could bring in a fellow employee or union representative. He accepted that his wife is neither but he felt he should have been allowed to bring her in. He alleges that by not allowing his wife into the meeting was discrimination.
xiv. In May, 2015 he had a meeting with SG. He finished his shift at 12 midnight. The meeting was scheduled for 9am. He came with my wife. SG arrived and stated she had to do something and would be back shortly. The meeting was cancelled. It transpired that SB wrote an e-mail at 5pm the evening before to say the meeting was cancelled. The claimant didn’t get it because he was at work. He alleges that SB discriminated against him in her dealings with him specifically in relation to the cancelling of the meeting.
xv. The complainant states that he didn’t get paid for the bank holidays. He had to wait one month for the payment. He was not happy about that.
xvi. He alleges he was also owed holiday money. He called for a meeting. The meeting was on the 14th August, to discuss the issue. He showed them what they owe him. After 70 minutes T told him that he was only due €18.00 euro. He alleges he was owed for 15 hours.
xvii. The complainant stated that the respondent dismissed him because they said he wrote some negative comments about the company on their facebook page. He denies that allegation. There was an investigation. He stated that there shouldn’t have had an investigation as it is not set out in his previous employer’s employee handbook.
xviii. He appealed the decision to dismiss. He was not successful. He stated that the respondent ‘only wanted to get rid of me’
xix. He took issue with the Appeal hearing. The appeal meeting was held by TOB on the 30th September, 2015. He states that he should have been notified of the decision within 5 days. He was not. He wrote saying that because the respondent didn’t follow their own procedures the original decision should be declared null and void.
xx. He alleges that at a meeting on the 14th September, 2014 he was there with one witness. JC and DL were in attendance on behalf of the respondent. JC and DL did not allow his witness to participate in the meeting. His witness was only allowed to take notes. His witness had no first- hand knowledge of the issues being discussed at the meeting. The claimant felt that the refusal to allow his witness to participate was discrimination in light of the fact that JC and DL participated in the meeting.
xxi. The claimant alleges he was not paid Sunday Premiums.
3. Respondent’s Submission
i. All of the pay related issues are being dealt with in the Labour Court. The company accepts that they do owe the claimant some money and that mistakes were made. The parties differ on the figures.
ii. The respondent denies that the pay related issues were discriminatory on any of the grounds alleged by the complainant in the Workplace Relations complaint form.
iii. The complainant commenced his employment on a rate at €10.01 per hour in March, 2011 (with JLC rates). In July 2011 The JLC’s were struck down. The Respondent accepts that the complainant should have stayed on those rates because his contract predates the abolition.
iv. After three years of employment an employee’s pay moves up to € 10.75 per hour. The complainant should have gone from €10.01 to €10.75. That was prior to the transfer. Prior to the transfer the previous employer’s insurance ran out and as a result employees didn’t get their 30 days notice. The complainant was told his rate of pay was € 10.01 but it is accepted that it should have been €10.75. Once the error was identified the respondent rectified the situation immediately.
v. In June, 2015 and August 2015 there were Rights Commissioners hearings in relation to Payment of Wages matter. The claimant succeeded but both sides appealed the decisions. Those appeals are due for hearing in the coming weeks.
vi. The complainant was dismissed from the company. There was a negative post on a company facebook page. The marketing department came across the post. The company invoked the disciplinary procedure and he was ultimately dismissed following a thorough disciplinary process.
4. Discrimination on the grounds of Family Status.
Section 6 (1) states:
“1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.
(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—
(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),
(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),
(f)that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),
h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),
Section 7 Like Work
7.—(1) Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if—
(a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,
(b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or
(c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.
(3) In any case where—
(a) the remuneration received by one person (“the primary worker”) is less than the remuneration received by another (“the comparator”), and
b) the work performed by the primary worker is greater in value than the work performed by the comparator, having regard to the matters mentioned in subsection (1)(c),
Section 8 Conditions of Employment.
8 (6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—
a)The same terms of employment (other than remuneration and pension rights)
b) The same working conditions, and
c) The same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,
as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.
Victimisation.
Section 74 (2) of the Employment Equality Acts states: “For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”
Harassment
harassment is defined bysection 14A (7) of the Acts which states:
“references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds ….
being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.
The complainant failed to call any evidence which could be construed in light of the requirements set down by the sections set out above. Whilst the complainant had grievances about his pay, those grievances are being dealt with by the Labour Court and do not fall under the jurisdiction of this Tribunal. The complainant did not call any evidence in relation to his claim of victimisation or harassment. His complaints in relation to the disciplinary process and the respondent non adherence with its own policy, is not a matter for this Tribunal. The complainant did not, in relation to any of the claims, identify a comparator. None of the claimant’s evidence brought his many claims within the scope of the Act. I am satisfied that the error made by the respondent in relation to the non payment of JLC rates was just that, an error. The respondent has now addressed the error.
5. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
5.1 I have to decide if the complainant was the subject of discrimination pursuant to Section 6 (2) (a) (c) (f) and (h), Section 77 and Section 32 of the Act. In reaching a decision, I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
5.2 I am satisfied that the claims lodged by the complainant do not come within the scope of the act and that there was no evidence to support the complainant’s complaint that he was discriminated against, harassed or victimised by the respondent on the grounds listed above.
5.3 The complainant has failed to establish a prima facia case of Discrimination, pursuant to Section 6 (2)(a)(c)(f)and (h) Section 77 and Section 14A.
5 DECISION
6.1. I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
· The complainant failed to establish a prima facia case of discrimination.
· The complainant has failed to established a prima facia case of victimisation
· The complainant has failed to establish a prima facia case of harassment.
· The complaint fails.
_____________________________
Niamh O’ Carroll Kelly BL
Adjudication Officer/Equality Officer