EQUALITY OFFICER DECISION NO: DEC-E/2013/075
PARTIES
KWIECIEN
(REPRESENTED BY MR. BRENDAN ARCHBOLD)
-V-
NATIONWIDE CONTROLLED PARKING SYSTEMS LTD.
T/A SECURIT
File No: EE/2010/423
Date of issue: 23 July,, 2013
Headnotes: Employment Equality Acts 1998- 2008 - sections 6, and 8 -race- - equal treatment -conditions of employment - dismissal
1. DISPUTE
This dispute involves a claim by Mr. Konrad Kwiecien, who is a Polish national (hereafter called "the complainant") that he was (i) discriminated against by Nationwide Controlled Parking Systems Ltd. (hereafter called "the respondent") on grounds of race, in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 8 of those Acts in relation to his conditions of employment and (ii) dismissed by the respondent in circumstances amounting to discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 8 of those Acts. The respondent rejects the complainant's assertions in their entirety.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent as a Security Operative on 2 June, 2008. He contends that during his period of employment he was treated less favourably on grounds of race in respect of his conditions of employment contrary to the Employment Equality Acts, 1998-2008. He further contends that due to the alleged discriminatory treatment of him by the respondent, in particular as regards the reduction of his working hours, he was compelled to resign his employment and submits that this amounts to dismissal of him in circumstances amounting to discrimination on grounds of race contrary to the Acts. The respondent rejects these assertions in their entirety and states that the complainant resigned of his own volition
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on 31 May, 2010. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer - for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 19 July, 2012 - the date the complaint was delegated to me. Submissions were filed and exchanged and a Hearing on the complaint took place on 10 October, 2012. A number of issues arose at the Hearing which required further clarification and gave rise to subsequent correspondence between the Equality Officer and the parties. This process concluded in later January, 2013. The parties had no particular comment to make on the issue of anonymising witnesses in light of the judgement in Sheehan v Director of the Equality Tribunal 1. It has been my practice to anonymise the identities of witnesses in Decisions and I see no reason to depart from that in the instant case.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that he commenced employment with the respondent as a Security Operative on 2 June, 2008. He adds that his employment transferred to the respondent at that time pursuant to the Transfer of Undertaking Regulations. The complainant states that he did not receive a written contract of employment at any time during his period of employment. He emphatically rejects the respondent's assertion that the contract of employment it submitted to the Tribunal, which it purports contains the complainant's signature, was received and signed by him. In this regard the complainant engaged the services of Mr. Sean Lynch, a qualified Forensic Document Examiner who was the Head of the Document and Handwriting section of the Garda Technical Bureau for fifteen years and who has over twenty-five years experience in the area. Mr. Lynch attended at the Hearing and stated that he had compared the signature on the photocopied document to specimen signatures attributed to the complainant on other documentation. He added that in his professional opinion there was a high probability (between 75% and 80%) that the complainant was not the author of the signature on the contract of employment submitted by the respondent to the Tribunal. The witness stated that he was unable to provide any higher rate of assurance on the matter because he had been unable to examine the original document, although he opined that the person who had signed the document had access to the complainant's actual signature. The complainant states that other employees received a written contract of employment. The complainant's representative argues that on perusal of the documentation (copies of contracts of employment in respect of several other employees) submitted by the respondent, there are significant gaps, blank spaces and omissions in this documentation, particularly in respect of non-Irish employees. It is contended that this is indicative of a careless approach by the respondent in respect of non-Irish employees. The complainant's representative submits that the failure of the respondent to furnish the complainant with a written contract of employment amounts to less favourable treatment of him on grounds of race contrary to the Acts.
3.2 The complainant further states that he did not receive (i) documentation setting out his terms of employment in accordance with the Terms of Employment (Additional Information) Order, 1998 2, (ii) a copy of a written dismissal procedure which the respondent proposed to use in case of dismissal, as required under section 14 of the Unfair Dismissals Act, 1977 and (iii) the respondent's Equality/Dignity at Work Policy, during his employment. Moreover, he rejects the respondent's assertion that he received the documentation setting out a wide range of internal policies (submitted by the respondent to the Tribunal) which purport to contain his signature. The complainant again relies on the opinion of Mr. Lynch in this regard who stated at the Hearing that these documents were (on the same balance of probability as stated in the previous paragraph) not signed by the complainant. In the course of the Hearing the complainant was unable to say whether or not any of the other staff employed by the respondent received any of the aforementioned documentation. It is submitted on his behalf that the respondent's failure in this regard amounts to less favourable treatment of him on grounds of race contrary to the Acts. The complainant seeks to rely on the Determination of the Labour Court in A Company v A Worker3 in this regard (and the issues in the previous paragraph) and submits that the "complete non-implementation of relevant legislation [by the respondent] was due to the fact that it regarded the worker as someone of a different nationality who would not have had the capability to stand on their legal rights and that by its actions it discriminated against her on the grounds of her nationality." is relevant to the instant case.
3.3 The complainant contends that he was a full-time employee (this was accepted by the respondent in the course of the Hearing). He adds that from June, 2008 until October, 2009 his weekly hours of work varied but that in general his average weekly hours during that period always exceeded 40 hours per week. He adds that during his period of employment he worked at the same location (a supermarket in Naas). The complainant states that in early October, 2009 his hours were reduced to thirty and a half per week. He adds that he approached his Supervisor (Mr. B) and asked him why his hours had been reduced. The complainant states that Mr. B told him that (i) he was unable to say how long the reduction in hours would exist (although he hoped the hours would be restored at some future date) and suggested that if the complainant bought a car he (the complainant) could be assigned hours in other locations and (ii) he (the complainant) should show himself as a good Security Operative and write more incident reports, thus demonstrating he was required. The complainant further states that he believed him what Mr. B said to him because he was his Supervisor. He rejects the respondent's assertion that he was offered hours at alternative locations and refused same. In the course of the Hearing that complainant stated that another Polish colleague (Mr. M) had his hours cut at the same time as him. He was not aware if any other employees had their hours cut.
3.4 The complainant states that between January-April, 2010 his hours were cut again - first to twenty hours per week and then to seventeen and a half hours per week. He adds that there was a further reduction to fifteen hours per week in mid April, 2010. Moreover, these 15 hours included a very unfavourable two hour shift (7pm-9pm) on Saturday evening. The complainant states that he had worked until 9pm on a Saturday evening on previous occasions but as part of a longer shift. He adds that he worked this two hour shift on four/five occasions. He adds that he raised the matter with Mr. B on a couple of occasions but received no meaningful reply. He states that Mr. B never informed him the client had reduced the hours it required security services under the contract between the client and the respondent. In the course of the Hearing the complainant was unable to say if any of the other employees were treated differently to him. The complainant further states that the respondent failed to notify him of these reductions in his working hours in accordance with the relevant clause of the contract of employment which it (the respondent) furnished to the Tribunal and asserted was the complainants. It is submitted on his behalf that the manner in which the respondent reduced the complainant's hours of work constitute discrimination of him on grounds of his Polish nationality contrary to the Acts.
3.5 The complainant states that due to his deteriorating financial situation in March, 2010 he found himself struggling to meet his rent for his accommodation and sought assistance from his local Community Welfare Officer ("CWO") as regards a rent allowance. The complainant adds that he asked the respondent to complete a form and furnish him with a letter confirming his part-time working hours and his current (reduced) level of earnings. He states that the respondent failed to furnish the letter sought and he e-mailed Ms. C on 27 March, 2010 asking for twritten confirmation that (a) he was working part-time, (b) what date he commenced working part-time and (c) how much he earned per week. In the course of the Hearing the complainant stated that he meant reduced hours when he used the phrase "part-time" in this e-mail and any subsequent correspondence. The complainant states that Ms. C passed his e-mail on to Ms. E for attention. He adds that "seizing on the golden opportunity presented to them to explain away the drastic reduction in hours imposed" on him, the respondent (Ms. E) e-mailed him on 29 March, 2010 asking him to confirm, in writing, that he "would like to become a part-time employee with NCPS" and advising that on receipt of same she would issue the letter he sought.
3.6 The complainant's original submission states that the next piece of correspondence in the matter was a letter from Ms. E to the complainant dated 6 April, 2010, which made reference to a letter dated 3 April, 2010 from the complainant. The submission furnished to the Tribunal states that the complainant did not issue this letter. However, in the course of the Hearing the complainant confirmed that he had issued the letter in question, that it restated his original request but that he specifically did not confirm that he wished to become a part-time employee (as requested by Ms. E). The complainant states that he received a letter from Ms. E on 6 April, 2010 which provided the information he had requested. He adds that he was not happy with the letter - stating he was now a part-time employee- but he was anxious not to delay his rent allowance application and did not follow the matter up before he resigned on 17 May, 2010.
3.7 The complainant states that for a number of months after he commenced employment with it his salary was incorrectly calculated, particularly in respect of overtime. The complainant adds that he raised these errors on a number of occasions with Mr. B, who told him that they would be paid on the following payday. He states that this did not occur and he did not receive payment of the outstanding amount until 12 May, 2011. In the course of the Hearing the complainant stated that he was unable to say when he stopped asking Mr. B about this matter and confirmed that he had never raised it in writing. He was unable to say if any of his colleagues were treated differently in similar circumstances. The complainant rejects the respondent's explanation that the underpayment was due to an administrative and submits that he was treated less favourably on grounds of race contrary to the Acts.
3.8 The complainant states that during the two week period ending 22 June, 2008 he work one hundred and seventeen hours - which represents the highest number of hours he worked during any two week period during his employment with the respondent. He adds that during the two week period ending 16 April, 2010 he worked only thirty hours. He states that this represents a 75% reduction in his hours and income. The complainant refers to the judgement of the Supreme Court in Berber v Dunnes Stores Ltd4 as follows "There is implied in a contract of employment a mutual obligation that the employer and employee will not, without reasonable and proper cause, conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them..... The term imposes reciprocal duties on the employer and the employee.". It is submitted on behalf of the complainant that the provision of work by an employer is a fundamental element of a contract of employment. It is further submitted that a failure to provide a reasonable level of work must amount to a fundamental breach of the contract of employment which is "likely to destroy or seriously damage the relationship of confidence and trust" between the parties. The complainant contends that the unilateral reduction of his hours by the respondent from October, 2009 onward amounts to a repudiation of the contract of employment between him and the respondent. It is submitted on his behalf that as a result of this treatment and the failure of the respondent to pay him the overtime he was due, he was left with no other option to resign from his employment. It is further submitted that the complainant's resignation amounts to constructive discriminatory dismissal on grounds of race contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions in their entirety. It states that the complainant's employment commenced with it in early June, 2008 following his transfer from another company, along with around one hundred other personnel. The respondent adds that the transfer was governed by the Transfer of Undertaking Regulations and consequently it honoured the terms and conditions of all transferring employees. It states that notwithstanding this it provided all transferring employees with starter packs within twenty-eight days of commencing employment with it. The respondent adds that the starter pack included a contract of employment, the respondent's Code of Conduct and Discipline and its policies on, inter alia, Bullying and Harassment, Health and Safety and IT Usage. It states that the complainant received his contract of employment and the other documentation comprising the starter pack on 5 June, 2008 and provided the Tribunal with copies of same. The respondent rejects the assertion that the signature on the contract of employment (in respect of the complainant) is forged and submits that such an assertion is vexatious and totally without foundation. In the course of the Hearing it was unable to offer any explanation as to why the contract of employment it submitted contained a printed date of 16 April, 2009 on it. It further stated that the date of 1 January, 2009 contained on the other documentation refers to a date when those policies were updated. The respondent furnished copies of contacts of employment in respect of several other employees who were transferred at the same time as the complainant. It adds that it did not furnish any employees with documentation setting out their terms of employment in accordance with the Terms of Employment (Additional Information) Order, 19985 and therefore it did not treat the complainant differently to any other employees. It further states that the documentation required pursuant to section 14 of the unfair dismissals legislation was provided to all employees as part of the standard contract of employment. It therefore rejects the assertion the assertion that it treated the complainant less favourably on grounds of his nationality.
4.2 The respondent states that it provides security services to a range of clients throughout the country. It accepts that the complainant was employed as a full-time employee to provide such services and did so at a client's premises (supermarket) in Naas. It further accepts that the complainant worked the hours he states he did at the early part of his employment with it. The respondent states that whilst it recommends what it considers the optimum number of hours' security to deliver the required service levels, the final decision in that regard rests with the client. It accepts that the complainant's weekly hours were reduced as contended but states that this reduction arose due to decrease in the service levels the client required and it applied to a number of stores and employees, not just the complainant. It submits therefore that the nationality of the complainant had no bearing on the treatment of him. The respondent adds that the complainant was offered hours at other locations (by Mr. T) and he refused same because of the location of the stores in question and the difficulty he had travelling because he had no personal mode of transport. In the course of the Hearing the respondent was unable to say whether or not the complainant (or the other employees affected by the reduction in hours) were advised of same in writing as provided for in the contracts of employment furnished to the Tribunal. It added that employees were fully aware of same as Mr. B and Mr. T kept employees at the various stores informed of the situation. In summary, the respondent submits that there were factors unconnected with the nationality of the complainant (or the other employees affected) which explain the reduction in hours and the treatment of them and rejects the assertion it discriminated against the complainant contrary to the Acts.
4.3 The respondent (Ms. E) accepts that she received the complainant's e-mail of 27 March, 2010 from Ms. C and that she had replied to same on 29 March, 2010 along the lines stated by the complainant. She adds that she sought clarification that the complainant wished to be classified as a part-time employee because (i) he specifically made reference to part-time in his e-mail, (ii) he had previously worked in excess of twenty hours per week (and was a full-time employee) and it was her understanding that staff on twenty hours a week or less were part-time employees and (iii) she was aware (from Mr. T) that the complainant had previously been offered hours at other locations and had refused same. She stresses that any omission or error on her part in seeking this clarification was in no way connected with his nationality and states that she viewed the complainant's letter of 3 April, 2010 to satisfy her request and provided him with the letter he sought on 6 April, 2010.
4.4 The respondent accepts that there were errors made with the calculation of the complainant's salary in respect of overtime. It states that these were due to human administrative error. It states that if the timesheets (from which an employee's salary is calculated) are not completed correctly then errors arise. It adds that such errors are a common occurrence and emphatically rejects the complainant's assertion that any error in respect of his salary constitutes discrimination of him on grounds of race. The respondent further states that it not aware of any formal or informal contact from the respondent on this matter until early 2011 when his representative raised the matter. It states that on receipt of same it immediately investigated the matter and made payment of the outstanding amount shortly thereafter.
4.5 The respondent rejects the complainant's assertions that its actions amounts to constructive discriminatory dismissal of him contrary to the Acts. It states that the complainant resigned of his own volition (in writing) on 17 May, 2010. It adds that the reasons he stated for his decision in this regard were "my hours were reduced and I did not receive some overtimes I worked before". The respondent states the complainant did not make any formal complaint to the company about either of these issues until his letter of resignation. It states that the first phase of reducing his hours commenced in October, 2009 and he appeared to accept the explanation given to him by Mr. B at that time on that matter. The respondent states that it received no formal complaint from him that this was an issue for him although it accepts there were general rumblings of discontent from all employees affected by the reduction in hours. The respondent submits that in all of the circumstances the complainant has failed to sustain a complaint of constructive discriminatory dismissal contrary to the Acts.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me 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 1998-2008 and contrary to section 8 of those Acts in relation to 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 1998-2008 and contrary to section 8 of those Acts. In reaching my decision I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal as well as evidence advanced at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998- 2008 sets out the probative burden which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove 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 Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required his case cannot succeed.
5.3 The first issue I will examine is the complainant's assertion that he received no written contract of employment during his period of employment. In the first instance it should be noted that there is no general obligation on an employer to provide an employee with a written contract of employment. There is however, a statutory requirement on employers to provide employees with a written statement of certain terms of their employment under the Terms of Employment (Additional Information) Order, 19986 - a matter I shall return to later. If an employer provides its employees with written contracts of employment and omits to do so for a particular employee, that employee may have a remedy under employment equality legislation on one (or more) of the nine discriminatory grounds covered by that legislation.
5.4 In the instant case the respondent furnished the Tribunal with a contract of employment dated 5 June, 2008 which it purports was signed by the complainant at that time - shortly after he commenced employment with it. The complainant emphatically rejects that he signed this document and engaged Mr. Sean Lynch, a qualified Forensic Document Examiner, to provide expert witness evidence in this regard. Mr. Lynch's evidence was that in his professional opinion there was a high probability (between 75% and 80%) that the complainant was not the author of the signature on the impugned contract of employment. I accept Mr. Lynch's evidence in this regard. Moreover, I note the respondent's evidence at the Hearing that all employees who transferred to it at the same time as the complainant received their starter packs (including a written contact of employment) within twenty-eight days of commencing employment with it. The respondent furnished the Tribunal with contracts of employment for six such employees. On examination of that documentation not one of the contacts was signed within that timeframe. Indeed, one of them is dated 24 October, 2008. Finally, the respondent was unable to offer any credible explanation as to why the documentation it furnished to the Tribunal on this (and other matters) contained dates which post-date by some considerable period the date it contends the complainant was issued with the documentation. In light of the foregoing I am satisfied, on balance, that the complaint did not receive the contract of employment dated 5 June, 2008 (purported to be signed by him) and as the respondent offered no alternative documentation on this matter I am further satisfied, on balance, that the complaint did not receive any written contact of employment at all during his period of employment with the respondent.
5.5 Section 6(1) of the Employment Equality Acts, 1998 - 2008 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 i.e. because he is Polish. The respondent states that following the transfer of the complainant and approximately one hundred colleagues in June, 2008 the total number of employees it had on its books was four hundred and fifty-six - two hundred and eighty of whom were non-Irish employees. In the course of the Hearing the respondent stated that a significant number of those employees who transferred at that time were Polish. The complainant did not take issue with the respondent's comments in either case. I have examined the six contracts submitted by the respondent in respect of other employees transferred at the same time as the complainant. Three of these employees are Polish, two are Indian and one is Irish. It is true to say that there are significant gaps in areas of this documentation for all employees - some more than others. However, this of itself does not establish a prima facie case of discrimination. Rather, it demonstrates the respondent's slip-shod approach to ensuring accuracy on the documentation at that time. It is clear from the documentation that employees of different nationalities, including Polish nationals, received written contracts of employment at that time. Whilst I am satisfied that the complainant did not receive such a contract and was therefore treated differently to other employees, I am not satisfied, in light of the foregoing, that the reason for this failure on the part of the respondent (and difference in treatment) was because of his Polish nationality. I find therefore that the complainant has failed to establish has failed to establish a prima facie case of discrimination on this aspect of his complaint and it cannot therefore succeed.
5.6 The complainant also asserts that he did not receive any documentation setting out his terms of employment in accordance with the Terms of Employment (Additional Information) Order, 19987 . It should be noted, in the first instance that enforcement of rights under that Regulation rests with the Rights Commissioner (at first instance) in accordance with the appropriate primary legislation and not this Tribunal. In addition, the respondent states that it did not furnish this documentation to any of its employees and the complainant was unable to offer any evidence which contradicted this statement and more particularly, he could not identify an employee of a different nationality who had been treated differently to him in the same circumstances. Consequently, I am not satisfied that he has established facts from which an inference of less favourable treatment on grounds of race can be presumed and this element of her complaint cannot succeed.
5.7 The complainant also submits that the failure of the respondent to provide him with (i) a copy of a written dismissal procedure which the respondent proposed to use in case of dismissal, as required under section 14 of the Unfair Dismissals Act, 1977 and (ii) the respondent's Equality/Dignity at Work Policy, during his employment amount to less favourable treatment of him on grounds of race contrary to the Acts. I am satisfied that the former document was incorporated in the written contract of employment issued by the respondent and as I have already found that the complainant did not receive such a contract, it follows I find that he did not receive this documentation either. As regards the latter documentation, it should be noted that there is no statutory obligation on an employer to have an Equality/Dignity at Work Policy in existence. However, the importance of operating such a policy is evident in circumstances where an employer is required to produce a defence against claims under employment equality legislation. The respondent contends that this policy was furnished to the complainant on 5 June, 2008 (along with other policies) and produced an acknowledgement for same, which it purports was signed by the complainant. In the course of the Hearing Mr. Lynch opined that there was a high probability (between 75% and 80%) that the complainant was not the author of the signature on this acknowledgement and I accept his evidence in this regard. However, for the same reasons as outlined at paragraph 5.5 above (as regards a written contract of employment) I am satisfied, on balance, that the complainant has failed to discharge the initial probative burden required of him to show that the respondent's failure to provide him with either of these documents amounts to less favourable treatment of him because of his Polish nationality and this element of his complaint fails.
5.8. It is submitted on behalf of the complainant that the complete non- implementation of the various employment rights statutes by the respondent is a fact from which an inference of less favourable treatment arises and he relies on the Labour Court Determination in A Company v A Worker8 in this regard. I do not accept this proposition as the circumstances in that case can be distinguished from those in the instant case. In A Company v A Worker9 the complainant had arrived in Ireland on a work permit on the understanding she was to work in a nursing home owned by the respondent and when she arrived she was instead offered employment as an assembly line worker in a factory owned by that respondent. The complainant believed she was working contrary to the terms of her work permit and was therefore working illegally in this country. In addition, the Labour Court found that that the respondent did nothing to ease her concerns in this regard and had no intention of employing her in the nursing home, as originally planned. It also found that the respondent was involved in continuing to circulate rumours that the complainant was under investigation by the Gardaí for alleged involvement in prostitution when it knew this was clearly not the case. The Court held that the treatment of the complainant by the respondent, along with the almost complete non-implementation of relevant legislation, gave rise to an inference of discrimination on grounds of race. In the instant case the complainant had no such threats. He was an EU citizen and therefore legally entitled to work in Ireland without a work permit. Moreover he had previously been employed for almost two years as a Security Operative before transferring to the respondent in 2008. I therefore find that the Determination in A Company v A Worker10 cannot avail the complainant.
5.9 It is common case that the complainant was a full-time employee and whilst his weekly hours of work varied they did not fall below 40 hours per week between June, 2008 and October, 2009. It is also common case that his weekly hours reduced after October, 2009, initially to thirty and a half hours per week, then twenty hours per week, seventeen hours per week and finally fifteen hours per week in mid-April, 2010. I fully accept the complainant's evidence that when the first reduction in his hours took place he raised the matter with his Supervisor (Mr. B) and was told by him that (i) he (Mr. B) was unable to say how long the reduction in hours would exist (although he hoped the hours would be restored at some future date) and suggested that if the complainant bought a car he (the complainant) could be assigned hours in other locations and (ii) he (the complainant) should show himself as a good Security Operative and write more incident reports, thus demonstrating he was required. The respondent states that the complainant was offered hours at other locations and refused same. The complainant rejects this. I prefer on balance the complainant's version of events. I am of the view that it was quite unlikely the respondent would have offered him hours at other locations because of the restrictions encountered by the complainant by having no personal mode of transport, a point averted to by the respondent. Moreover, it is difficult to see where extra hours might arise given the overall reduction in the need for security services in general (see subsequent paragraph)
5.10 It is common case that the complainant provided security services at a supermarket in Naas which was part of a chain of such stores operated by the respondent's client. The respondent states that the reduction in hours experienced by the complainant was as a direct result of a decision by that client to reduce the number of hours it needed security services at that store. It further states that this reduction was not restricted to the Naas store - it applied to a number of stores belonging to that client at other locations. The respondent furnished the Tribunal with a wide range of documentation in support of this situation. From examination of same it is clear that on the first occasion the complainant's were reduced (from forty plus per week to thirty and a half hours) the client had reduced its demand for security services by that amount at the Naas store. It is also clear that at that time the hours were reduced at eight of the remaining fourteen store covered by the contract. I am satisfied that these reduced hours continued to apply, with some minor fluctuations (other than over the Christmas and New Year period) until 10 January, 2010 when further reductions were implemented. At that time the hours at the Naas store were reduced to twenty hours per week. On the same day the weekly hours were reduced at all other fourteen stores covered by the contract. Again I am satisfied that these reduced hours continued to apply, with some minor fluctuations until 4 April, 2010. On this occasion the hours at the Naas store were reduced to 16 hours per week and the hours at thirteen of the other fourteen stores were reduced. On 17 May the hours at the Naas store were reduced to fifteen hours per week. The hours at three other stores were reduced and there were slight increases in the hour at the eleven other stores covered by the contract. The complainant tendered his written resignation to the respondent that day citing the reduction in his weekly hours as one factor for same.
5.11 The respondent was unable to offer the Tribunal any evidence as to how hours are allocated, although it did suggest that where two employees are assigned to the same location, the one with the longest service might get the less onerous shifts. It would therefore appear that an employee's hours are dictated primarily on the basis of the location(s) of the store(s) in which s/he works and the number of hours required by the client at those locations. I note that the impugned contract of employment contains the following clause -
"HOURS OF WORK - Generally your normal working week will consist of 5 days out of 7, Monday to Sunday. Your normal working hours are 9hour shifts within a 24 hour period, as per your roster. The Company reserves the right to change these working hours. You will receive as much notice as possible of these changes.......". Notwithstanding that the complainant did not receive a written contract of employment, I am satisfied that the terms and conditions contained in the impugned contract (which is identical to that issued to other employees) apply to him. I set out the reductions imposed by the respondent's client in terms of hours of security service it required at the various locations during the period October, 2009-May, 2010. I am satisfied that the reductions the complainant suffered were as a direct consequence of the falling needs of the client. I am equally satisfied that employees at the other locations suffered a reduction in hours, although not perhaps to the same extent as the complainant. I am further satisfied that the process was applied to employees (i) of the same nationality and (ii) of different nationalities, to the complainant. The respondent was entitled to change any employees working hours in accordance with the language of the contractual clause outlined above. In terms of employment equality legislation it must do so without its actions amounting to less favourable treatment of an individual on one of the discriminatory grounds. Having carefully considered the evidence adduced by the parties and in light of my comments in this and the preceding two paragraphs, I am not satisfied that the complainant has established facts from which an inference of discrimination on grounds of race in respect of this aspect of his complaint can be inferred.
5.12 It is common case that there was correspondence between the complainant and the respondent in late March/early April, 2010 in respect of documentation/clarification which the complainant required in order to progress an application he had made to the Community Welfare Officer for rent allowance. This correspondence was opened to the Tribunal. I note from the e-mail of 27 March, 2007 - which was subsequent to his initial request for this information - that the complainant sought the following written confirmation (a) that he was working part-time, (b) what date he commenced working part-time and (c) how much he earned per week. In the course of the Hearing the complainant stated that he meant reduced hours when he used the phrase "part-time" in this e-mail and any subsequent correspondence. The respondent (Ms. E) states that on receipt of this e-mail she misunderstood its contents and believed the complainant was seeking to become a part-time employee. She added that she was aware the complainant had been on full-time hours, that these hours had been reduced to less than twenty hours per week at that time, that her understanding of a part-time employee was someone who worked less than twenty hours a week and she therefore sought clarification that he wished, in essence, to change his status from full-time to part-time. She added that on receipt of the complainant's letter of 3 April, 2010 she was satisfied he wished to change his status and issued her letter of 6 April, 2010.
5.13 The complainant's representative describes the actions of the respondent on this matter as it "seizing on the golden opportunity presented to them to explain away the drastic reduction in hours imposed" on him, by asking him to confirm, in writing, that he "would like to become a part-time employee with NCPS". I cannot accept this proposition. Firstly, in both his e-mail of 27 March, 2010 and his letter of 3 April, 2010,the complainant asks the respondent to confirm that he is "working part-time". I accept his evidence furnished in the course of the Hearing that what he meant here was "reduced hours" in comparison with the number of hours he had worked each week earlier in his employment. I also accept Ms. E's evidence that she understood the complainant's request to be one which would confirm a change in his employment status and she sought clarification of this. I also accept that she viewed his letter of 3 April, 2010 as clarification of her query and she acted accordingly. I am satisfied that in those circumstances the information contained in her letter of 6 April, 2010 is correct - indeed she states he commenced part-time employment on 4 January, 2010 - which is the first week his hours were reduced to twenty hours. The entire process appears to be shrouded in confusion (by both parties) and having carefully considered the evidence adduced I am not satisfied, on balance, that the complainant has established a prima facie case of discrimination on grounds of race in respect of this element of his complaint and it cannot therefore succeed.
5.14 The next element of the complainant's claim relates to the failure of the respondent to address an underpayment of overtime which he did in the early months of his employment. The respondent accepts that an underpayment occurred as alleged but states that it arose because of an administrative error. The complainant states that he raised this issue with Mr. B (at an early date) who promised to have the matter rectified. Clearly this correction did not happen as it is common case that the complainant did not receive payment of the amount outstanding until May, 2011. The respondent states that it only became aware of this issue in the months prior to May, 2011,when the matter was raised by the complainant's representative, and it submits that it acted promptly in rectifying the matter. The complainant was unable to say when he stopped asking Mr. B about this matter and confirmed that he had never raised it in writing. He was unable to say if any of his colleagues were treated differently in similar circumstances. The actions of Mr. B (as the complainant's Supervisor) fall well short of what one might expect when an employee raises a work related issue with a Supervisor. However, I am not satisfied, on balance, that his actions were connected to the complainant's nationality. Rather they appear to be premised on an indifference which Mr. B displayed towards his role within the organisation. The respondent acted promptly when the matter was formally brought to its attention. In all the circumstances I am not satisfied that the complainant has raised an inference of less favourable treatment on the basis of his Polish nationality and this element of his complaint fails.
5.15 The final element of the complainant's claim concerns an allegation that he was constructively dismissed in circumstances amounting to discrimination on grounds of race contrary to the Acts. The complainant's letter of resignation "my hours were reduced and I did not receive some overtimes I worked before". It is submitted on his behalf that as a result of this treatment he had no option but to resign. Section 2(1) of the Acts defines dismissal as including:
"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract, without giving such notice, or it was or would have been reasonable for the employee to do so ...."
In An Employer v A Worker (Mr. O No.2)11 the Labour Court comprehensively addressed the issue of constructive dismissal under employment equality legislation. It noted that the above definition was practically the same as the definition of "dismissal" contained in the unfair dismissals legislation and held that the tests for constructive dismissal developed under that legislation - the "contract" test and the "reasonableness" test - were applicable tests under the Employment Equality Acts.
5.16 I shall look at the circumstances of the instant case under each of the aforementioned tests. Taking the "contract" test first - this test is generally refers to circumstances where the employee argues "entitlement" to terminate the contract. It was described by Lord Denning MR in Western Excavating (ECC) Ltd v Sharp[12 as follows:
"If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance"
This passage describes a situation in which an employer commits a repudiatory breach of contract. In such circumstances, the employee is entitled to accept the repudiation and consider him or herself dismissed. In the instant case the employer reduced the complainant's hours of work in accordance with a term of the (disputed) contract of employment. Whilst such action clearly posed difficulties for the complainant (and the other employees affected by similar reductions) there were genuine commercial reasons for this. In the circumstances I cannot accept that the actions of the respondent were such as to amount to a repudiatory breach of the contract, even less so on the basis of the complainant's nationality.
5.17 I shall now look at the "reasonableness" test is terms of the instant case. This test applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice and has been described by the Labour Court as follows:"that what is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case"13 It requires the complainant to satisfy the Tribunal that the behaviour of the respondent was so unreasonable that he could not fairly be expected to put up with it any longer and he was therefore entitled to resign from its employment. The corpus of caselaw developed on this point requires the complainant, before taking the unilateral step of terminating his employment, to give the respondent the opportunity to address her grievance or complaint. Having carefully assessed the evidence adduced by the parties I am not satisfied that the complainant made any credible effort to do - and he had an ideal opportunity to raise the matter in his e-mail of 27 March, 2010 and letter of 3 April, 2010. This omission of itself might be fatal to his complaint. However, I have found that the treatment he seeks to ground his claim of constructive dismissal upon, is not well founded in terms of employment equality legislation. Consequently, the behaviour of the respondent could not be considered to be unreasonable in terms of grounding a complaint of constructive discriminatory dismissal. In light of my comments in this and the preceding paragraph I find that the complainant has failed to establish a prima facie case of discriminatory dismissal in terms of the Employment Equality Acts, 1998 -2008 and this element of his complaint cannot succeed.
6. DECISION OF THE EQUALITY OFFICER.
I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2011. I find that -
(i) the complainant has failed to establish a prima facie case of discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 8 of those Acts, as regards his conditions of employment.
(ii) the complainant has failed to establish a prima facie case of discriminatory dismissal on grounds of race, in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 8 of those Acts.
and his complaint fails in its entirety
_______________________________
Vivian Jackson
Equality Officer
23 July, 2013
Footnotes:
1 Unreported Kearns J 11 June, 2012
2 SI 49/1998
3 EED 024
4 [2009] IEHC 10
5 SI 49/1998
6 Ibid
7 SI 49/1998
8 EED 024
9 Ibid
10 Ibid
11 EED0410
12 1978] IRLR 332
13 An Employer v A Worker (Mr. O No.2)