FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : OCS ONE COMPLETE SOLUTION LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - BOGUMIL PUKA DIVISION : Chairman: Mr Geraghty Employer Member: Mr Marie Worker Member: Ms Tanham |
1. An appeal of an Adjudication Officer's Decision No. ADJ-00000124.
BACKGROUND:
2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2015. A Labour Court hearing took place on 7 November 2019. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Mr. Puka, ‘the Complainant’ of a decision by an Adjudication Officer, (AO) in respect of two complaints under the Employment Equality Acts 1977-2015, ‘the Acts’. The Complainant had alleged that OCS One Complete Solution Ltd., ‘the Respondent’, had discriminated against him, contrary to the terms of the Acts, because of his race, he is Polish, and had victimised him contrary to the terms of the Acts. The AO had decided that both claims were not well founded.
At the outset of the Court hearing, the complaint of victimisation was withdrawn.
The Complainant worked for Viking Security Ltd. from June 2011. This company had the security contract for Tesco stores and, when it went out of business, the Respondent and another company won the contracts for stores throughout the country. The Complainant originally worked in a Drogheda store but when his then employer lost the contract in September 2013, he was moved to Glasnevin in Dublin where he worked until he went on sick leave in May 2014. The Respondent won the contract for that store in October 2014 and the Complainant was transferred to that new employment under a transfer of undertaking.
The Complainant was on sick leave at this point. In December 2014, he was certified to be fit to return and he reported to the Respondent’s office on 8 December 2014 to go through his return process. The Respondent was not in a position to facilitate an immediate meeting and a subsequent meeting was arranged for 10 December 2014.
At this meeting, the Respondent outlined terms and conditions based on information received from the previous employer. This included a rate of pay of €10.01 per hour based on information received. The Complainant disputed this rate and claimed an entitlement to a rate of €10.75 per hour. He also disputed the amount of hours offered. The Complainant refused to sign any documents.
The Complainant took a case to a Rights Commissioner. This was heard in June 2015 and the Complainant returned to work in August 2015.
A case under the Acts was lodged by the Complainant on 5 October 2015 alleging two breaches. The AO decided that these were not well founded and the Complainant appealed to the Court.
Summary of the Complainant’s arguments
It is the Complainant’s case that, apart from one email contact in January 2015 requesting that he attend a meeting, the Respondent made no attempt to facilitate his return to work until a case taken by him to a Rights Commissioner in June 2015, after which his return was not facilitated until 11 August 2015.
The Complainant suffered from this lack of provision of work by the Respondent for nine months.
Furthermore, the Complainant states that when he returned he was not paid for a week’s work, his hours were less than those with his previous employer, he was not paid a night allowance to which he was entitled and he was rostered with only 24 hours’ notice. In addition,he was not paid when turning up for work, as required, 10 minutes early each day, he was not paid breaks, he was the only one of his colleagues not be taken on right away and he was paid less than all colleagues.
The Complainant was required to undertake a round trip to work of 110 kms every day.
A comparator, Mr. Radek Valicka, of Czech ethnicity who is an Irish passport holder, had received a different and better contract than him.
Summary of the Respondent’s arguments
The delay in returning the Complainant to work was due to his non engagement with them after the meeting on 10 December 2014 and his reaction to a salary issue was excessive. When the Respondent had sought to meet him in January 2015, the Complainant had referred them to his Solicitor and had undertaken formal proceedings in a case to a Rights Commissioner. By contrast, other employees with issues regarding their contracts, including the named comparator, had engaged and issues had been resolved. The period out of work was self-imposed by the Complainant.
The Rights Commissioner recommended in June 2015 that the Complainant return to work and the Respondent had facilitated this when a suitable vacancy was available in August 2015.
As the Respondent had not full information regarding the Complainant’s contract when he became their employee, he had been offered the incorrect rate of pay but this had been rectified and monies owed had been paid.
Likewise, the Respondent had remunerated the Complainant for public holiday payments not paid by the previous employer, back pay in respect of a night allowance to which he was entitled was paid to the Complainant, the Respondent had also paid sick pay that the Complainant claimed to be owed by his previous employer and a small underpayment in respect of holiday pay had been given to him.
The Respondent had offered to accommodate the Complainant with work in Cavan nearer his home but he had declined.
The issues presented are typical issues that arise in the course of employment and in circumstances where the previous employer had gone out of business it was difficult to get complete information.
The issue regarding non payment for a week was due to the two-week payroll cycle and the fact that the Complainant had commenced work in the middle of a cycle. This week’s pay had been paid to him when he left the employment subsequently.
Summary of Evidence
The Complainant gave evidence under oath in which he expanded on his submission. At the Court’s direction, he confined his evidence to the cognisable period of 6 months prior to lodging his claim under the Acts ie the period from 6 April 2015 to 5 October 2015.
He outlined how, during the cognisable period covered by his complaint, he was left without work until August 2015 and the impact that this had on his health. He reiterated the various forms of discrimination that he stated he had suffered, as set out in his submission.
The witness stated that he had sought to return to work but had been given a contract that was less than his entitlements as a transferred employee, he stated that all of his colleagues were paid more than him and noted that others working in the Shopping Centre were given paid breaks but he was not.
The witness outlined how payments due to him were made only after he had taken a case to a Rights Commissioner. He stated that he was the only person in the company who was not given a job immediately.
The witness referred to the comparator, Mr. Valicka, who had been paid the correct rate and had been given a better contract.
Under questioning, it emerged that the comparator had originally been designated to be paid at €10.01 per hour also but following discussion and clarification with the company, his pay had been adjusted to the appropriate rate of €10.75 per hour. Other anomalies and difficulties involving colleagues were also said by the Respondent to have occurred but they stated that these had been resolved through engagement. It was put to the witness that the Respondent sought to deal with his issues but he had refused to meet to attempt to do so and had, instead, forced them to deal with the issues through a more formal, legalistic route, which had caused inevitable delay. The witness did not accept this and noted that no contact had been made with him to facilitate his return after January 2015 until he had brought a case to a Rights Commissioner in June 2015 and, even then, his return was not facilitated until August 2015.
The applicable law
Discrimination for the purposes of this Act.
Employment Equality Acts
6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —
(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified insubsection (2)(in this Act referred to as the ‘ discriminatory grounds ’ ) which —
(i) exists,
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
(b) a person who is associated with another person —
(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and
(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue ofparagraph (a), constitute discrimination.
(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—
h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),
Deliberation and Determination
This complaint is based on a number of arguments, which the Court has considered.
The Complainant states that he was treated less favourably than the comparator, Mr. Valicka, who is of different nationality. The Court, having heard all details, notes that the Complainant and the comparator began their employment with the Respondent in very similar circumstances. The comparator’s details supplied to the new employer, the Respondent, with the transfer of undertaking contained a similar mistaken rate of pay. However, the comparator provided useable information to the Respondent to enable this mistake to be corrected. The Complainant, on the other hand, declined to attend a requested meeting that was being arranged by the Respondent in January 2015 with a view to resolving the issue between the parties. Upon being informed by the Complainant that this matter would be dealt with by his Solicitor and upon receipt of a complaint to a Rights Commissioner, it is, in the view of the Court, perfectly reasonable for the Respondent to await the outcome of the processing of complaints before seeking to re-engage with the Complainant. It might be argued that it is in the interests of all parties, in such situations, to maintain informal contact but it is not for this Court to prescribe such a course and , just as the Complainant had every right to seek to pursue the matter in a formal way, the Respondent had the right to await the outcome of the formal process. Therefore, the Court does not accept that the Respondent bears the responsibility for the difference in treatment between the Complainant and the comparator.
It follows, therefore, that a second argument made by the Complainant to support his complaint, namely that he was unique among his colleagues in having to wait nine months before being afforded the chance to work, is equally invalid in suggesting a breach of the Complainant’s rights under the Acts.
A third argument made is that the Complainant was paid less than all colleagues who transferred. The information provided to the Respondent by the previous employer does not support this assertion. This information shows variations in pay rates as between different workers, with the lowest rate shown as €10 per hour. The rate shown for the Complainant is €10.01 per hour. It is common case that this rate, and the identical rate shown for the comparator, is incorrect and, when the Complainant returned to work in August 2015, this was corrected and increased to €10.75 per hour. No evidence was given to the Court to support any assertion that all other employees were paid more than this. Indeed, the Respondent advised that the information provided to them proved to be incorrect in some instances but, through engagement with the individuals concerned, any issues were resolved.
The argument was made by the Complainant that he was required to undertake a round trip of 110 kms per day. It is unclear why this relates to the complaint under the Acts. The Complainant’s original place of work for his previous employer was in Drogheda. However, prior to the Respondent accepting the transfer of undertakings, because his then employer lost the contract for that particular store, the Complainant had been moved to a store in Glasnevin in Dublin. Ultimately, the Respondent provided him with work in Clarehall also in North Dublin. It seems, therefore, to the Court that there is no argument regarding location that is relevant to the instant case.
This Court set out inSouthern Health Board v. Mitchell, DEE011, (2001) ELR 201that in cases under the Acts ‘The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them’.
For the reasons set out above, the Court is of the view that this basic requirement has not been met by the Complainant and that the Court must, therefore, concur with the decision of the AO that the case is not well founded
Determination
The Decision of the AO is upheld.
Signed on behalf of the Labour Court
Tom Geraghty
CR______________________
06 December, 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.