EDA1317

This dispute involves a claim by Mr. Branislav Gajdos (hereinafter "the Complainant") who is a Slovakian national, that he was discriminated against by Securikey Ltd (hereinafter " the Respondent") in respect of his conditions of employment on grounds of race, in terms of Section 6(2) of the Employment Equality Acts, 1998 - 2011 (hereinafter "the Acts") and contrary to Section 8 of those Acts and dismissed in circumstances amounting to discrimination on grounds of race in terms of Section 6(2) of the Acts. The Complainant has also made a claim of victimisation under Section 74(2) of the Acts.

The Respondent employed the Complainant as a Security Officer from August 2009 until early December 2009. The Complainant states that during his period of employment, he was treated less favourably as regards his conditions of employment compared to Irish Workers. He states that when he complained about the treatment he was victimised and subsequently dismissed by the Respondent in circumstances amounting to discrimination on grounds of race (Slovakian nationality) contrary to the Acts.

The Complainant referred a complaint under the Employment Equality Acts, 1998 - 2011 to the Equality Tribunal on 14th December, 2009. The Equality Officer investigated the complaints and decided that they were not well founded.

The Complainant appealed against that Decision to this Court.

The case came on for hearing on the 9^thJanuary 2013.

The Complainant’s Position

The Complainant commenced employment with the Respondent, as a Security Officer, on 15^thAugust, 2009. He told his Employer that he was available to work between 8 and 25 hours per week. He signed a contract of employment before he commenced work. He understood the general conditions of his employment. However, he states that he was allowed no more than 5 minutes to review the contract before signing it.

He submits that, during his employment, his Employer did not provide him with his payslips in a timely manner. He submits that he requested his Employer to supply him with a copy of his contract of employment. His Employer failed to meet his request.

He submits that he asked his Solicitor to write to the Respondent setting out the details of his complaints regarding his treatment. His Solicitor also sought a copy of his contract of employment.

He submits that he was thereafter subjected to victimisation. He states that his work placements became erratic and he was placed in areas far away from his home and for very short shifts. By way of example he states that he had previously worked in New Ross which was 20 km from his home but he was then moved to Clonmel which was over 50 km from his home.

He submits that his Solicitor wrote again to the Respondent on 28th November 2009. He states that he was dismissed on the 29^thNovember.

He submits that he then received three simultaneous letters from his employer regarding his work performance and suggesting that his dismissal was occasioned by his inability to meet his roster requirements.

Respondent’s Position

The Respondent submits that it employed the Complainant as a Security Guard to work on it's contracts in the Waterford, Clonmel and New Ross areas. He was employed to work between 8 and 25 hours per week.

The Respondent submits that it employs Security Officers from many different national and ethnic backgrounds. It submits that all Employees are treated the same and that no complaints of discrimination on the grounds of race or nationality have been made against the Company since it was founded in 2001.

The Respondent states that it went through the contract of employment with the Complainant shortly after it offered him employment. It submits that this process included a step by step familiarisation with the disciplinary procedure, uniform requirement, appeals process and health section of the contract to ensure that he was familiar with both his and the Company’s obligations to each other. The Respondent states that it also went through the terms of the Security Industry Employment Regulation Order with the Complainant. It submits that it spent half an hour going through the details of the contract with the Complainant and subsequently requested the Complainant to sign the contract. It submits that it sent the Complainant a signed copy of the contract by ordinary post shortly thereafter.

The Respondent submits that the Complainant had two periods of absence from work through illness within the first three months of his probation. On the first occasion the absence from work was for a period of one week. On the second occasion the Respondent did not attend work for another week due to his spouse’s illness. It found this level of absence unacceptable

The Respondent confirmed that the Complainant was advised of his roster by way of sms message. It submits that this is the method by which all staff are notified of their rosters and the Complainant was treated no differently to any other member of staff.

The Respondent submits that the Complainant was treated no differently to other Workers regarding the location of his assignments. It submits that all staff are employed on the basis that they can be assigned work in any of the three locations. The Complainant was assigned to the available work in the same manner as other staff. It rejects the assertion by the Complainant was subjected to erratic work placements following the letter sent by the Complainant's Solicitor to the Company. In support of its position the Respondent has submitted roster sheets for the Complainant and another Employee. The roster sheets purport to show that the Complainant was requested to work in the three areas of Waterford, Clonmel and New Ross which were interchangeable from the commencement of his employment with the Company.

The Respondent states that he contacted the Complainant by telephone around late November and advised him that the situation was not working out as he could not fulfil the requirements of his contract to attend and carry out his duties in any of the locations in which the Company carried out business. He submits that he made reference in that conversation to his level of absence from work and to the nature of the probation period. He submits that taken together these factors led to the decision to terminate the Complainant’s employment. It submits that race was not a factor in the decision to dismiss the Complainant.

Issues for the Court to Determine

The issues for determination by the Court are whether or not the Respondent (i) discriminated against the Complainant on grounds of race, in terms of Section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to Section 8 of those Acts as regards his conditions of employment and (ii) dismissed the Complainant in circumstances amounting to discrimination on grounds of race in terms of Section 6(2) of the Employment Equality Acts, 1998 - 2011 and (iii) victimised the Complainant in respect of Section 74(2) of the Acts. In reaching it's Determination the Court has taken account of all of the submissions, oral and written, made by the parties in the course of the hearing into these complaints.

The Law

Section 6(1) of the Employment Equality Acts, 1998 - 2011 provides that discrimination shall be taken to occur where "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 in Subsection (2)....."

Section 6(2) of the Acts defines the discriminatory ground of race as follows -"as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins..".

It follows therefore that the Complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality.

Section 85A sets out the burden of proof that applies to claims of discrimination under the Act. It provides that where a Complainant establishes facts from which an inference of discrimination arises, the burden of proving compliance with the Act shifts to the Respondent.

This Court has interpreted this to mean that the Complainant must establish the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Court is satisfied that the facts established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there the principle of equal treatment was not infringed passes to the Respondent. If the Complainant does not discharge the initial probative burden required of him, his case cannot succeed.

The first issue raised by the Complainant relates to the Respondent's alleged failure to furnish him with a copy of his written contract of employment. The Complainant states that the Employer went through the contract with him but that he only had five minutes to look at it. However the Complainant acknowledged that he understood the general terms of the contract. The Respondent also points out that in his application form and C.V., the Complainant describes his level of English as fluent. The Complainant states that whilst his level of oral communication was fluent his capacity to read English was much more limited.

The Respondent states however that during his short period with the Company, the Complainant completed a certificate in Guarding skills at basic level which required a high level of competency in reading and writing English. The Complainant achieved the standard required and was awarded the relevant certificate through the Irish Security Institute credited by FETAC.

The Court finds, on the balance of probabilities, that the Complainant understood the terms of the contract of employment into which he entered. The Court also finds that, on the balance of probabilities, the Complainant was not provided with a copy of the Contract of Employment. The Respondent states that it sent him a copy of the Contract by ordinary post shortly after both parties had signed it. However the Court prefers the Complainant’s submission as it would have been a simple matter for the Respondent to bring two copies of the Contract with it on the relevant day and for each party to leave with a copy of the contract. However no evidence was presented to the Court to suggest that the Complainant was treated any differently to any other Worker in this regard. Section 6(1) of the Employment Equality Acts,a person is treated less1998 - 2011 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation onany of the grounds specified in Subsection (2)....."In this case the Respondent employed a number of Workers of different nationalities. The Complainant has presented no evidence to suggest that he was treated any less favourably than any other of those Workers in this regard. The Complainant had the option, under Section 76 of the Act, of seeking information from the Respondent regarding the manner in which it had dealt with any or all of those Workers. He did not do so. Instead he relies on the assertion that he was treated less favourably than other Workers “would be” treated. The Court does not accept this argument as it amounts to “mere speculation” that this Court has held (Arturs Valpeters v Melbury Developments Ltd EDA0917[2010] 21 E.L.R).cannot be elevated to the level of fact sufficient to meet the burden of proof set out in the Acts.

Determination

Accordingly the Court determines that the Complaint that the Respondent infringed the provisions of Section 6(1) of the Act is not well founded.

Victimisation

Section 74 (2) defines victimisation:

".....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, ......."

The Complainant submits that following a letter dated 18th. November, 2009 which issued by his Solicitor to the Respondent outlining the Complainant's concerns regarding his payslips and requesting a copy of his contract of employment, the Respondent retaliated by giving the Complainant more erratic work placements and the Complainant submits that this constitutes victimisation of him under the Acts. The letter also contained the following sentence:-

“Is it that our Client is being treated differently due to his foreign nationality?”

The Complainant maintains that this amounts to a “complaint” within the meaning of Section 74(2) of the Acts. He further submits that after this letter was issued the Employer assigned him duties that maximised the distance he had to travel and thereby amounted to adverse treatment under the Acts.

The Respondent submitted to the Court a copy of the job advertisement for the position of Security Officer and details of rosters worked by the Complainant. The job advertisement stated "security officers required (Waterford/Clonmel/New Ross area - Part Time). The rosters show that the Complainant worked in each of the three areas during his time with the Company. They show that he worked on the 13^thOctober in New Ross on the 15^thOctober, in Clonmel and for week commencing the 17^thOctober in Waterford.

The Complainant did not dispute this evidence.

However an examination of roster for the entire duration of his employment shows that the Complainant worked in Clonmel on 5 occasions between 20^thAugust and the 18^thNovember 2009, the date on which the Solicitor first wrote to the Respondent. However between that date and the termination of his employment on the 11^thDecember he was assigned to work all of his shifts in Clonmel.

The Court finds that the Respondent’s explanation for the nature of this work allocation is not persuasive. He argued that the Complainant had a liability to work wherever he was assigned. However the Contract of employment on which it relies is quite vague on this point. It states ”Depending on your work roster and if you are a retail or industrial security officer the Companywill assign your duties and place of work to you and you will be required to be flexible in this position". It makes no reference to distance from home or to a willingness to travel irrespective of distance. Moreover the Complainant argues that he was assured at interview that he would be assigned to work in either Waterford or New Ross. A review of the work actually assigned to him in the first few weeks of his employment is consistent with this version of events. He was not assigned to work in Clonmel until 15^thAugust at which point he began to seek a copy of his contract of employment and raise issues with the Company.He was again assigned to work in Clonmel on October 31^st2009. Shortly afterwards he visited a Solicitor who wrote to the Company on his behalf on November 18^th2009 seeking a copy of the Contract of employment, details of his payslips and querying whether he was being discriminated against on the grounds of his nationality. From November 21^stthe Complainant was assigned to Clonmel on a continuous basis until the termination of his employment.

The Court finds that the Complainant has established facts from which an inference of discrimination may arise. Those facts are that he made a complaint regarding his treatment by the Respondent on the race ground. The Respondent thereafter assigned him to work shifts at the furthest possible distance from his home. The Respondent has failed to provide a reasonable explanation for this development. Accordingly it has failed to discharge the burden of proving compliance with the Acts.

The Court determines that the complaint of victimisation within the meaning of Section 74(2)(a) of the Acts is well founded.

Dismissal

The Complainant submits that his dismissal by the Respondent amounted to victimisation within the meaning of Section 74(2) of the Acts.

Facts

The Complainant’s Solicitor wrote to the Respondent in the terms set out above on the 18^thNovember 2009. The Solicitor wrote again to the Respondent on the 28^thNovember 2009. That letter included the following

• "Our client is suffering from stress as a result of this treatment. He is unable to comprehend the treatment that he is being subjected to and it would appear to us that he is being treated in a manner which is unfair, unreasonable and which is discriminatory due to his foreign nationality.

  Unless this matter is addressed we have instructions to proceed against your company by way of application to the Equality Tribunal under the Employment Equality Acts and to the Rights and to the Rights Commissioner under the above Acts".

• "This is to inform you that we are terminating your employment as and from Friday the 11^thDecember as you are still within your probationary period under the terms and conditions of your employment given to you on the 12^thAugust 2009.

  Attached is a copy of notification of your time in the Security industry under the terms of the current JLC agreement".

The Court finds that the Complainant has established two facts. Firstly he complained, through his Solicitor, that his treatment by his Employer was related to his nationality. Secondly he has established that he was dismissed the following day.

The Court is satisfied that these two facts, taken together, raise an inference of discrimination that shifts the burden of proving compliance with the Acts onto the Employer.

The Respondent argued that it dismissed the Complainant because of his unwillingness to work in any of the locations in which the Company operated allied to the number of days he lost through sickness during his probation.

The Court was provided with no evidence that the Complainant refused to carry out the work to which he was assigned. The evidence before the Court suggests that the Complainant was challenging the details of his work assignment and sought a copy of his contract of employment in order to establish his rights and obligations thereunder. The Court has found above that that the Respondent had not provided the Complainant with a copy of the Contract of employment and accordingly considers his efforts to secure a copy of it as reasonable in all the circumstances. The Respondent eventually provided him with a copy of the Contract sometime between the 18^thand 29^thNovember. The Court must conclude that the Respondent did so in response to the Complainant’s Solicitor’s letter of the 18^thNovember.However, when the Complainant, by way of the letter dated 28^thNovember 2009, acknowledged receipt of the contract four months after the commencement of his employment, disputed the Respondent’s assertion that the nature and content of the contract had been explained to him on appointmentand raised a number of issues regarding the manner in which he was being treated, including a complaint regarding his treatment as a foreign national, he was dismissed without discussion or other engagement. The Respondent sought to justify this decision by reference to two periods of absence from work for which the Complainant submitted medical certificates. However both of those absences occurred after the decision to dismiss him had been taken and communicated to him. Accordingly they could not have influenced the decision in any respect.

The Respondent finally argued that as the Complainant was on probation it had no obligation to maintain him in employment. The Court does not accept this argument in the context of this case.

The Court finds that the Respondent has failed to provide a reasonable explanation for the decision to dismiss the Complainant in the manner and at the time at which it chose to do so. Indeed, the Court finds that some of the reasons advanced by the Respondent seeking to justify it's decision could not have been a factor in the decision making process and accordingly call into question the other reasons it advanced. Accordingly, the Court finds that the Respondent has not discharged the statutory or evidential burden of proving compliance with the Acts.

Determination

The Determination of the Court is that the complaint of victimisation through dismissal contrary to the provisions of Section 74(2) of the Acts is well founded.

Remedy

The Court orders the Respondent to pay the Complainant compensation in the sum of €7,500.00.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
4th December, 2013______________________
JFDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.