FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : ASHBROOK FACILITY MANAGEMENT LIMITED T/A AFM IRELAND (REPRESENTED BY COSGRAVE SOLICITORS) - AND - VALDAS UOSIS & AUSRA UOSIENE (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal Under Section 83 of The Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. This is an appeal under Section 83 of the Employment Equality Acts 1998-2011. A Labour Court hearing took place on 10th February 2012. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Ms Ausra Uosiene and Mr Valdas Uosis of an Equality Officer’s Decision dated 13thSeptember 2011, in a claim which they brought against Ashbrook Facilities Management Limited t/a AFM Ireland.
In this Determination for ease of reference the parties are now given the same designation as they had at first instance i.e. Ms Ausra Uosiene will be referred to as “Complainant A” and Mr Valdas Uosis as “Complainant B” and Ashbrook Facilities Management Limited t/a AFM Ireland as “the Respondent”.
The Respondent operates a contract cleaning business and both Complainants were employed as cleaners.
Complainant A referred claims to the Equality Tribunal on 18thMay 2009 claiming that she was discriminated against on the race ground contrary to Sections 6(2)(h) of the Employment Equality Acts 1998-2011 (the Acts) in terms of her conditions of employment, access to employment, training, and discriminatory dismissal. The Equality Officer found that the Respondent did not discriminate against her on the race ground pursuant to Section 6(2)(h) of the Acts in terms of her conditions of employment and training contrary to Section 8(1) of the Acts. He found that the claim of victimisation and victimisatory dismissal contrary to Section 74(2) was out of time.
Complainant B referred claims to the Equality Tribunal on 13thMay 2009 claiming that he was discriminated against on the race ground contrary to Sections 6(2) (h) of the Employment Equality Acts 1998-2011 (the Acts) in terms of his conditions of employment, access to employment, training, and discriminatory dismissal. The Equality Officer found that the Respondent did not discriminate against him on the race ground pursuant to Section 6(2) (h) of the Acts in terms of his conditions of employment and training contrary to Section 8(1) of the Acts. He found that the claim of victimisation and victimisatory dismissal contrary to Section 74(2) was out of time.
Complainant A
Mr Richard Grogan, Richard Grogan & Associates, Solicitors, on behalf of both Complainants submitted to the Court that Complainant A was effectively dismissed when she was not offered work at the leisure club where she worked alongside her husband on her return from annual leave in April 2009.
Mr Grogan contended that Complainant A’s job was stillavailable for her on her return from holidays in the leisure club where she was working as others of African origin were placed in club by the Respondent to do the work in her absence. Mr Grogan contended that failing to give her her job back in the location where she worked prior to her annual leave amounted toadiscriminatorydismissal.
Mr Neil Cosgrave, Cosgrave Solicitors, on behalf of the Respondent disputed the claims before the Court. In particular he disputed the contention that Complainant A had been dismissed. He told the Court that while she was away on holidays from 18thMarch to 3rdApril 2009,the Respondent received notification from its Client that they no longer required cleaning to be carried out at night on a seven-hour shift. Therefore, upon return from annual leave the Respondent informed Complainant A that her hours were reduced to a four-hour shift. However, the Respondent offered to increase the number of nights so as to ensure that Complainant A's total hours would not be reduced. As an alternative, the Respondent offered her full-time employment working on a day-shift in another area of the leisure club.Complainant A expressed her desire to continue to work alongside her husband, which the Respondent could not guarantee, therefore, Complainant A refused this offer. The Respondent subsequently offered her two further positions which she also refused.
Mr Cosgrave produced details to the Court of written notification supplied by Complainant A to the Respondent early in July 2009 outlining details of her maternity leave which was due to commence on 10thJuly 2009 until 10thJanuary 2010.
Bearing in mind all of the above Mr Cosgrave submitted that Complainant A was not dismissed and could not have considered herself to have been dismissed when she made her claim of discriminatorily dismissal. In fact he said there was no doubt about her continual employment by the Respondent after the date of referral of her claim to the Equality Tribunal.
Complainant B
In respect of Complainant B Mr Grogan stated that on his return from annual leave his job was not available in the place where he had previously worked and he was subsequently offered alternative work in Dublin Airport.However this job only lasted until October 2009. Mr Grogan stated that the Respondent was aware thatthis move was notsuitable alternative employment for Complainant B and contended that it was effectively to avoid a dismissalat that stage.
Mr Cosgrave told the Court that Complainant B was similarly affected by the notification from its Client regarding working hours in the leisure club and accordingly his hours were to be reduced to a four-hour shift.However, the Respondent offered to increase the number of nights so as to ensure that Complainant B's total hours would not be reduced. Complainant B expressed his desire to continue to work with his wife although the Respondent made it clear that it could not guarantee this. Complainant B refused this offer and did not make any contact with the Respondent for a number of weeks. The Respondent subsequently arranged a position for Complainant B at the Airport in Dublin where the Complainant continues to be employed to this day. This offer was made prior to any notification being received by the Respondent of possible proceedings under the Acts.
Outcome of the Hearing of the Appeal
At the hearing of the appeal before the Labour Court Mr Grogan accepted that the complaints of discriminatory dismissal by both Complainants on the race ground could not proceed. He accepted that at the date the claims were referred to the Equality Tribunal in May 2009 both Complainants were employed by the Respondent. Mr Grogan confirmed for the Court that he was not pursuing any other claims of discrimination and consequently accepted that the appeals before the Court in respect of both Complainants in their entirety could not proceed.
Determination
The Court determines that the within appeals are disallowed and the Decision of the Equality Tribunal is affirmed.
Signed on behalf of the Labour Court
Caroline Jenkinson
5th March 2012______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.