EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2013-002
PARTIES
Halina Adamczyk
(Represented by Richard Grogan & Associates)
AND
Gary Rice and Jodie Rice
(Represented by Michael MacNamee B.L. instructed by DAS Group)
File reference: EE/2010/884
Date of issue: 29 January 2013
HEADNOTES: Employment Equality Acts - Gender & Race - Conditions of employment
1. DISPUTE
1.1. This dispute concerns a claim by Ms Halina Adamczyk that she was discriminated against by Gary Rice and Jodie Rice on the grounds of gender and race contrary to section 6 of the Employment Equality Acts in relation to conditions of employment in terms of section 8 of those Acts and she was harassed contrary to section 14A of the Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 29 November 2010 under the Employment Equality Acts. On 20 November 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 12 December 2012.
2. COMPLAINANT'S SUBMISSION
2.1 The complainant started working for the respondent in August 2008 and submits she received no contract of employment and no proper health and safety documentation or training.
2.2 She further submits that she did not receive same conditions as an Irish worker (Ms A). Ms A worked the morning shift from Monday to Friday. Whereas, the complainant worked weekends and she had to work the 3pm to11 pm shift which Ms A did not.
3. RESPONDENT
3.1 The respondents confirm that the complainant started work for them on 19 August 2008. They submit that she was given a contract of employment. All her conditions of employment were explained to her and a Polish national was available for any interpretation needed.
3.2 A Staff Handbook was given to the complainant when she started work and this contained all their policies; including Health & Safety, Grievance and Disciplinary procedures.
3.3 Ms A was employed to work on a part-time basis and was specifically recruited to work morning shift from Monday to Friday. This was agreed when she started and she worked 12-15 hours per week. The complainant was recruited to work 33 hours per week and did not request part time hours. The complainant and Ms A were paid the same hourly rate.
4. FINDINGS & CONCLUSIONS
4.1 At the hearing the complainant withdrew her claim of harassment; therefore I have to decide if the complainant suffered discriminatory treatment on the grounds of gender and race in relation to conditions of employment. In relation to her conditions of employment the complainant withdrew her claims in relation to her contract of employment and health and safety documentation and training. I am therefore only considering her claim that she received different conditions of employment to Ms A who was Irish. In reaching my 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.
4.2 The complainant contends that she worked either the morning shift, from 11am to 7pm, or the night shift, 3pm to 11pm, and she worked five days out of seven, including weekends, with two days off. She says that there were security issues for her when she worked the night shift, such as when people drove off without paying for petrol. She says Ms A started after her and only worked the morning shift. Also she did not have to do deliveries and she did not work in the deli.
4.3 The complainant also contends she had a problem when her hours were cut and she worked less time in the deli than previously. She conceded that everyone worked less hours.
4.4 The respondent contends they were not aware that the complainant was not happy with her conditions of employment until they received a letter from her representative. The only time she came to the respondent was when she wanted to work more hours. Ms A was employed specifically to work on the till during the weekday lunchtime trade from 10am to 2pm and they could not have fitted the complainant into this role without her losing hours. The respondent contended that any difference in conditions of employment did not amount to discrimination.
4.5 The complainant may have been unhappy that Ms A had what she considered to be an easier job. However, Ms A was employed to do a particular job for the respondent; deal with the Monday to Friday lunchtime trade. The complainant was employed to work on a full-time basis and was rostered with a number of others to cover longer shifts over the whole of the week. This changed when her hours were reduced but, by her own evidence, all full-time workers had their hours equally reduced.
4.6 Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. . Furthermore, the Labour Court in Arturs Valpeters v Melbury Developments Ltd, Determination No. EDA0917 [2010] 21 E.L.R said there has to be "evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence." In this claim the complainant has failed to provide any evidence that any difference in her conditions of employment compared to Ms A amounts to discrimination. I therefore find that the complainant has failed to establish a prima facie claim.
5. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the complainant has failed to establish a prima facie case of discrimination in relation to conditions of employment on the basis of the race ground and the complaint fails.
____________________
Hugh Lonsdale
Equality Officer
29 January 2013