ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008807
A Security Guard
A Facilities Management Company
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 09/01/2018
Workplace Relations Commission Adjudication Officer: Roger McGrath
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant commenced employment with the Respondent as a Security Officer on 21st October 2015 until the time of his resignation on 20th March 2017. The Respondent is a licensed provider of security and related services to customers nationwide and is involved in the provision of static guarding, mobile patrol, electronic security, monitoring and cleaning services around the country. The Complainant was paid a gross fortnightly salary of €731.00. The Complainant lodged a Complaint Form with the WRC on the 23rd of May 2017 claiming that he had been discriminated against because of his race.
Summary of Complainant’s Case:
The Complainant attached a copy of his ES 1 Form to his WRC Complainant Form by way of submission. On his ES 1 Form the Complainant submitted that he had been discriminated against but did not select a ground on which he was discriminated. In his WRC Complaint Form he had selected the race ground.
The Complainant submitted that he was told that as the company had lost the contract for the place where he worked in Dublin 1 he would have to move to another site in Swords. The Complainant submits that he was treated less favourably than others in that he was the only employee who was moved from the site in Dublin 1.
The Complainant submitted that when he told his manager he did not wish to move to the Swords job he was told he could take it or leave it.
The Complainant says that he went to the Swords location, where he was to undergo two weeks training. However, he was told by his supervisor in Swords that he would only be working as cover and that they had no work for him for two week after his week of training.
Following his move to the Swords site, the Complainant returned on a visit to the Dublin 1 location to collect his uniform. When he was there he found that no other employees had left the location and that his original job was being done by a person employed by the Respondent.
The Complainant submitted in his ES 1 Form, that he was disgusted by the way he had been treated and "had to leave Company Name because they had no work for me for at least the next two weeks and 1 shift the third week."
In direct evidence at the hearing the Complainant stated that when he returned to his original work location to collect his uniform there were other company employees still in situ. He also stated that because there was no steady work for him in Swords he had to go out and get another job.
When asked to provide a comparator, the Complainant put forward the person who had been put in after him in the Dublin 1 location. The Complainant also stated that it was "irrelevant about my race."
During the hearing, when questioning his manager, the Complainant stated that, "if I had been told I was getting six weeks training this case would not have arisen".
In concluding, the Complainant stated that, he was sorry to have had to bring the case but that the way he was treated at the end was not good, not professional.
Summary of Respondent’s Case:
The Respondent provided a detailed written submission.
The Respondent submitted that the Complainant worked on a contract of employment that gave a guarantee of 16 hour per fortnight with all terms and conditions of employment linked to the Employment Regulation Order pertaining to the security industry. The Complainant was contracted to the Dublin area and spent most his time on a particular site in Dublin 1.
In early March 2017, the Respondent's site manager was made aware that the client had decided to discontinue the contract the Respondent had with them in relation to the specific block reception where the Complainant was employed and hire their own receptionist. The Complainant was informed by the manager that as there were no other positions available on site, alternative employment would be sought for him.
The Respondent submits that it was agreed between the manager and the Complainant that the Complainant would work on another site in Swords. The Complainant confirmed by way of a telephone call on 8th March 2017 that he was agreeable to the site change, with one of the reasons being cited by him that the location was more suitable to him.
The Complainant commenced work on his new employment site, in Swords, on 13th March 2017. However, without giving notice, the Complainant resigned from his role on 20th March 2017.
The Respondent submits that it is an equal opportunities employer and employs staff in Ireland from all corners of the globe. The Company prides itself on being a fair and equal employer. The Company has a very clear Equality Policy which is reviewed and updated at regular intervals. The Respondent submits that the Policy is very clear that if an employee has an issue relating to discrimination of any sort, the Company’s Grievance Procedure should be utilised. The Respondent submits that the Complainant did not utilise the Grievance Procedure. He resigned two days after working his last shift on 18th March.
It is the Respondent's contention that at no point in his Form ES.1 has the Complainant indicated any specific incident or action to support his claim for discrimination. This has left the Respondent in a very difficult position. It would be reasonable, according to the Respondent, to suggest that had discrimination taken place, the Complainant would have been in a positon to point out how that discrimination had taken place, thus enabling the Respondent to defend the claim made.
The Respondent submits that in his ES 1 Form to the company the Complainant asked three questions. The Complainant’s questions with the Respondent’s responses are as follows:
Firstly, “Why was I the only employee moved from the Job if Company Name were losing the contract in" (the Dublin 1 location)? The Respondent's response to this is that the Complainant was the only member of staff carrying out the specific role he was doing in that specific Reception. This position was taken in-house by the client and therefore, the work that the Complainant was doing ceased to exist. There were no other positions available on site and the Respondent agreed with his manager to move to the site in Swords.
Secondly, the Complainant asked, “Why was I put into a company where I would only be working as cover?” The Respondent's response to this is that the site that he was assigned to had work for him. Working as a cover worker was not what the Company proposed for him.
Thirdly, “Why did you lie to me in our conversation on 8th March at 15.53 and force me to seek employment elsewhere as I had no shifts to work in the company you relocated to for the next two weeks”. The Respondent is adamant that no lies were told to the Complainant and that there was full agreement in the conversation on 8th March that he would relocate to the Swords site. He was informed of the loss of the contract, the reasons for the loss and how he could continue to be employed by the Company. As far as the Company is concerned, the Complainant agreed to the change of site to Swords.
The Respondent submits that the Complainant was contracted to work a minimum of 8 per week in the Dublin area and there is no guarantee of hours beyond 8 per week or indeed a location. That the Complainant resigned from his position on 30th March 2017.
In direct evidence, the manager explained that the reason the Complainant's job ended was due to the loss of a contract, that there was plenty of work for the Complainant in Swords and that the reason there was a company employee at the reception area when the Complainant went to collect his uniform was that there was still two days to run on the contract and the reception area had to be manned until the contract expired. The witness pointed out that the man on the desk that day was from the same country as the Complainant. He also stated that the company has a multi-ethnic workforce in Swords.
In concluding, the Respondent denied any breach of the Act, pointing out that the company employs people from many racial backgrounds and that it takes any claims of discrimination very seriously. The Respondent also stated that it was difficult to understand where the claim of discrimination on race was coming from and that if the Complainant had had a grievance he should have utilised the grievance procedures.
Findings and Conclusions:
Through the course of the hearing it became apparent that the Complainant was annoyed at the way he had been treated by his employer. Whether his treatment was fair or not is a moot point but it is not pertinent to my considerations unless the Complainant can show that he was treated less favourably than a comparator because of his race. In my view, the Complainant adduced no evidence to show that his treatment was in any way related to his race.
From the Complainant’s own evidence, it would seem the reason he ended his employment with the Respondent was due to a perceived lack of work coming his way rather than anything to do with him being treated less fairly because of his race.
From the evidence adduced the reason the Complainant was moved from his Dublin 1 role was due to the loss of a contract for his specific role. The Complainant himself acknowledged that the loss of such a contract would necessitate a change to his place of work. He moved to a new location in Swords, without raising any grievance whatsoever.
I believe the explanation of the manager regarding the manning of the reception area when the Complainant returned to collect his uniform and saw a colleague doing the job.
I also believe the Respondent when it says it has a multi-ethnic workforce, has a comprehensive Equality Policy and takes any allegations of discrimination very seriously.
Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
In this instance, I do not believe the Complainant has adduced any evidence to support his claim that he was discriminated on the race ground.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
For the reasons set out above I do not uphold complaint CA-00011529 and it fails.
Dated: 27th April 2018
Workplace Relations Commission Adjudication Officer: Roger McGrath
Race, discrimination, evidence