The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2014-002
PARTIES
Dariusz Wszotek
(Represented by William Kelly B.L. instructed by O’Hanrahan & Co. Solicitors)
AND
Moduslink
(Represented by IBEC)
&
O’Reilly Recruitment Limited
(Represented by IBEC)
File reference: EE/2011/394, EE/2011/645, EE/2011/647 & EE/2011/648
Date of issue: 29 January 2014
Headnotes: Employment Equality Acts – sections 6 - promotion – training – conditions of employment - harassment –race
1.DISPUTE
1.1 This dispute involves claims by Mr Dariusz Wszotek that he was discriminated against in relation to access to employment, promotion, training, conditions of employment and discriminatory dismissal contrary to section 8 of the Employment Equality Acts by Moduslink and O’Reilly Recruitment Limited on the grounds of race contrary to section 6 of the Employment Equality Acts and that he was harassed in accordance with section 14Aof the Acts.
1.2 The complainant referred claims under the Employment Equality Acts to the Equality Tribunal on 14 April 2011 and 12 September 2011. On 6 September 2013 in accordance with his powers under the Acts the Director delegated the complaint to the undersigned, Hugh Lonsdale, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 18 September 2013.
2. PRELIMINARY ISSUES AT HEARING
At the hearing the complainant withdrew all complaints against O’Reilly Recruitment. He also withdrew his complaint of discriminatory dismissal against Moduslink. Therefore my investigation is into the complainant’s allegations in relation to access to employment, promotion, training, conditions of employment and harassment against Moduslink.
3. SUMMARY OF THE COMPLAINANTS’ CASE
3.1 The complainant submits that he worked at Moduslink from October 2008 to 23 March 2011. He submits he was discriminated against by the respondent in relation to selection for work, also that he was treated differently than Irish workers, he received verbal insults, he was given more difficult work than Irish workers, he was scapegoated and he was denied cigarette breaks.
3.2 He submits that in March 2010 a co-worker said “fucking Polish” to him.
3.3 The complainant submits there was a selection process every Friday for agency workers to be called back the following week. He submits the Irish were called back first. Therefore he had less job security, was assigned less hours and was paid less than Irish workers. At the hearing the complainant stated that this process continued until he left the respondent’s employment.
3.4 In May 2010 he was placing products in boxes when an Irish worker took his pallet instead of finding his own and he submits that this behaviour was tolerated in Moduslink.
3.5 In September 2010 the complainant submits that his machine was not working and Supervisor B shouted at him for sitting down but nothing was said to an Irish worker who was in the same position.
3.6 In December 2010 another Irish worker tried to take products that the complainant had partially prepared. The complainant objected and the Irish worker became hostile. The complainant submits the Irish employee felt he had a right to take credit for his work.
3.7 On 24 March 2011 two new workers, one Irish and one Polish, and the complainant were reprimanded for something that he did not do. He complained about the reprimand to his manager and he was not given any more work. He submits that O’Reilly Recruitment told him they had a report from Moduslink that they should give him no more work.
3.8 In relation to the uneven distribution of work he contends that three Irish workers were placed on a machine but only one Polish worker was place on the same machine. Also, four Irish workers were allocated to a folding machine but only two Polish workers.
3.9 The complainant submits that Irish workers were never denied cigarette breaks but he was never certain whether he would or would not be granted a break. On three occasions he was denied by Supervisor A and on three other occasions by Supervisor B.
4. SUMMARY OF THE RESPONDENT’S CASE (MODUSLINK)
4.1 The respondent submits that, in accordance with the time limits set out in the Employment Equality Acts, the first claim was submitted on 14 April 2011 and that all events related to this claim which took place before 13 October 2010 are out of time and there is no chain of events to bring them in time. They further submit that the complainant has made no submission regarding access to employment, promotion, training.
4.2 The respondent also submits that they are not the correct respondent as the complainant was not employed by the respondent, that he was employed by O’Reilly Recruitment at all times.
4.3 Notwithstanding these submissions the respondent states that they use agency staff as and when required. The level of usage depends on the needs of the business. The complainant was assigned to work for them between October 2008 and March 2011, depending on their operational requirements. During this period he worked a total of 52 weeks. On his initial assignment he would have received their standard induction programme, which includes a reference to their Bullying and Harassment & Grievance Procedures.
4.4 The respondent submits that the complainant worked without issue at a satisfactory or good level of performance. During his employment no matter that has been submitted as part of this claim was brought to the attention of the respondent, either directly or through the agency. The respondent submits that in March 2011 the complainant was responsible for a serious quality failure. He had been spoken to on numerous occasions that he had to follow normal operating procedure. As a result of this quality failure direction was given to the agency not to place the complainant back on site. The direction was “Do not hire due to Quality Issues”. Two other workers were also deemed unsuitable arising from the same incident; one was Irish and the other Polish.
4.5 The respondent submits that from 23 October 2010 to 23 March 2011 twenty three agency workers were deemed not suitable for future assignments. Of these 12 were Irish and 11 other Nationalities.
5. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The respondent claims they are not the correct respondent as the complainant was supplied to them through an employment agency. Section 8 of the Employment Equality Acts states:
(1) In relation to—
(a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.
(2) For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker is, has been or would be treated. (emphasis added)
5.2 The complainant put forward no evidence in relation to promotion and training. However, his claims in relation to access to employment and conditions of employment refer to the actions of the respondent and I therefore conclude that they are the correct respondent in accordance with section 8 of the Acts. Furthermore, in relation to the claim of harassment section 14A refers to harassment “at a place where the employee is employed .. by a person who is employed at that place by the same employer” The allegations by the complainant refer to the actions of staff of the respondent and, again, I conclude that they are the correct respondent.
5.3 Therefore, I have to decide if the complainant suffered discriminatory treatment on the grounds of his race in relation to access to employment, conditions of employment and if he was harassed. 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.
5.4 The claim in relation to access to employment relates to the respondent’s selection criteria for agency staff. The complainant contends that Irish workers were given preference over non-Irish staff, regardless of capability. The respondent contends that the complainant’s allegations are out of time and very general with no specific allegations that they can or should respond to. They contend that the complainant attended an initial induction course and provided evidence that the induction day included a presentation on the ‘Review Process – Temp Staff’ which set out that ‘Where temporary employees are required to be laid off due to decrease in capacity/business requirements: Selection will be based on:
- Time & Attendance
- Flexibility with regard to hours/duties/overtime/shift etc
- Attitude to team leaders/supervisors/other team members
- Performance
- Quality & attention
- Ability to follow instruction’
The respondent contends they are an equal opportunities employer and the Friday selection was based on the criteria set out in the induction day.
5.5 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. Further, in Determination EDA0917 [2010] 21 E.L.R, Arturs Valpeters v Melbury Developments Ltd the Labour Court, whilst examining the circumstances in which the probative burden of proof operates held as follows:-
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was 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."
5.6 In this claim regarding the Friday selection of agency workers the complainant has made no specific allegations and in these circumstances I conclude that he cannot establish facts from which discrimination could be inferred. I find that the complainant has not established a prima facie claim of discrimination in relation to access to employment.
5.7 In relation to his claim regarding conditions of employment the complainant gave examples of different treatment between Irish and non-Irish workers in relation to the speed and staffing of machines, that he was not always allowed cigarette breaks, that fans and chairs were taken by Irish workers. The respondent contends that the speed and staffing of machines were set for specific products and they were unaware of any difficulties regarding the other allegations. Again the complainant had made assertions rather than provide ‘more concrete evidence’ of the alleged discrimination and I find that he has not established a prima facie claim of discrimination in relation to conditions of employment.
5.8 The complainant referred to a number of incidents which he claims amount to harassment. Section 14A(2) gives an employer a defence against harassment if it can prove that it took such reasonable steps as are practicable to prevent the harassment. From the direct evidence given at the hearing I am satisfied that the complainant was aware of the respondent’s Anti-Harassment/Bullying Policy and how he could raise a complaint, informally or formally. The complainant confirmed that he did not raise any of the issues with a member of management and said he did not do this because he was afraid he would lose his job. However, there is no evidence that the respondent would not have investigated the allegations in accordance with their procedures, but they were unable to do so as they were unaware of them. I am therefore satisfied that the respondent can rely on the defence in section 14A (2) of the Acts and find that the complainant has failed to establish a prima facie case of harassment.
6. DECISION OF THE EQUALITY OFFICER.
I have concluded my investigation of this complaint and hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts:
- that the complainant has failed to establish a prima facie case of discrimination in relation to access to employment,
- that the complainant has failed to establish a prima facie case of discrimination in relation to conditions of employment, and
- that the complainant has failed to establish a prima facie case of harassment.
_____________________
Hugh Lonsdale
Equality Officer
29 January 2014