EQUALITY OFFICER'S DECISION NO: DEC-E/2014/068
PARTIES
Mr. Fahad Nisar
(Represented by SIPTU)
Vs
Supermacs Ireland Ltd
(Represented by IBEC)
FILE NO: EE/2012/239
Date of issue: 2nd of October, 2014
1. Dispute
1.1 This dispute involves a claim by Mr. Fahad Nisar
that he was discriminated against by Supermacs Ireland Ltd, on grounds of race, in relation to his conditions of employment, as well as claims of harassment and victimisation.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on the 23rd of April, 2012 alleging that the respondent had discriminated against him on grounds of race when his hours were reduced following his absence from work due to illness.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 2nd of July, 2014 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to a Hearing on the 8th of July, 2014.
3. Summary of complainant’s case
3.1 The complainant states that he is a Pakistani National and that he has been living and working in Ireland since March 2007. He submits that he came to Ireland on a student visa which allowed him to work up to 20 hours per week during the school term.
3.2 The complainant submits that he commenced employment with the respondent in September 2010 in its O’Connell Street branch in Limerick.
3.3 It is submitted that on the night of the 30th of December, 2011 the complainant was rostered to work 12 midnight to 4 am. It is submitted that he advised his shift manager during that shift that he was unwell. His shift manager told him that he should have told her this at the start of the shift. The complainant had also been scheduled to work 12 to 4 am on the following the following day 31st of December. It is submitted that while at work on the 30th of December, the complainant noticed that his shift for the next day had been changed and he was now rostered to work 6pm to 4am. This change was implemented without any discussion or agreement.
3.4 During the period 30th/31st of December, the complainant had several missed calls from his area manager Mr. M. At midday on the 31st of December the complainant phoned work to say that he would not be attending that day as he was sick. He returned Mr. M’s calls at around 7pm on the 31st of December, and advised him that he was unable to work due to illness. Mr. M told him that if he did not come to work he would make a future decision which the complainant took to be a threat. Following this the complainant’s hours were dramatically reduced.
3.5 This treatment is discriminatory as it was not applied to any of the respondent’s Irish staff one of whom was also out sick during the same period. Mr. D was treated much more favourably in relation to the allocation of hours subsequent to the 31st of December, 2011.
4. Summary of Respondent’s case
4.1 It is submitted that the complainant was employed by the respondent from September 2010 to October 2012, under a contract which provides for short time as and when required.
4.2 The complainant was employed under normal work permit rules and is on a stamp 2 visa which means that he can only legally work 20 hours per week during the school or college term. During the college holidays he is entitled to work up to 40 hours per week. Thus the fact that the complainant cannot work more than 20 hours a week during the college term is unrelated to his race but is governed by his work permit.
4.3 These rules in relation to work permits do not apply to Irish workers and so they are not restricted to working 20 hours per week during term time.
5. Conclusions of the Equality Officer
5.1 The issues for decision by me now are, whether or not Supermacs Ireland Limited discriminated against the complainant on grounds of race, in terms of section 6(2) (h) and contrary to section 8 of the Employment Equality Acts, 1998 and 2004 in relation to conditions of employment, harassment and victimisation. 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 at the Hearing.
5.2 Section 6(1) of the Employment Equality Acts, 1998 and 2004 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) (h) 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… “
5.3 Thus the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because his is Pakistani. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:
Section 85A of the Act provided 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. While those facts will vary from case to 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 establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.[1]
5.4 Less favourable treatment – Conditions of Employment
5.4.1 The complainant advised the hearing that, on the night of 30th of December 2011 he attended for work but, told the manager, Ms. L, that he was feeling sick and that he would stay while it was busy but that he would not be able to stay on until his rostered finishing time of 4 am. At 12 midday, the next morning on 31st of December, 2011 the complainant phoned work to say, that he would not be in that day as he was not well. He spoke to Mr. J who told him, that he was not dealing with the roster but, who stated that he should speak to Mr. M who was dealing with it. The complainant advised the hearing that he told Mr. J at this point that he was informing him that he would not be in, as he was his store manager.
5.4.2 The complainant advised the hearing, that he had a number of missed calls and texts from Mr. M on the day in question. The complainant, at the hearing, read out the texts from Mr. M which he received on 31st of December, 2011 the first of which stated that the respondent needed the complainant to work from 6pm in the O’Connell street branch. The later texts indicated that the respondent had been trying to contact the complainant and had phoned him twice and requested that he ring back as soon as possible. The complainant phoned the respondent a 7pm that evening and informed Mr. M that he would not be in as, he was not feeling well. The complainant advised the hearing that, Mr. M had asked if there was any way he could come in, as he really needed him and then stated that he would make a ‘future decision’ which the complainant took to be a threat. Mr. M advised the hearing that he had asked the complainant if there was any way he could come in as he was really stuck and with it being New Year’s Eve it was one of the busiest nights of the year. Mr. M denies that he said anything about a ‘future decision’.
5.4.3 Mr. M advised the hearing that it was New Year’s Eve and one of the busiest nights of the year and stated that he was annoyed, that the complainant had said he was unable to come in to work. Mr. M advised the hearing, that he had asked the complainant if, there was any way he could come in, but the complainant refused. Mr. M advised the hearing that the complainant then mentioned the fact that his roster had been changed and that he had originally been scheduled to work 12pm to 4am but that it had been changed to 6pm to 4am without the complainant’s agreement. Mr. M then referred to the fact that the complainant had asked for extra hours whenever possible so his roster would often be changed as he would be given hours to cover for others when necessary. The complainant had asked for this arrangement from the start as the respondent had only been able to give him the night shift and so the complainant had asked to be given extra hours whenever they arose. The respondent advised the hearing that he had during the phone call of 31st of December reminded the complainant that it was he who had requested extra hours whenever possible he advised the hearing that the complainant had replied that he did not want the extra hours anymore and that he only wanted to work the hours he was rostered. The respondent stated that following this conversation the complainant was only given his rostered hours as requested. He was no longer given the extra hours to cover absences or leave as he had previously been given. The respondent advised the hearing that this did result in a reduction in the complainant’s hours as he was now confined to the 4 hour night shift.
5.4.4 The complainant has submitted that he was subjected to less favourable treatment following his calling in sick on 31st of December, 2011 in that his hours were cut following this incident. The complainant has submitted that Mr. D, an Irish staff member was also out sick at that time but that his hours remained the same on his return to work.
5.4.5 The respondent advised the hearing that the complainant had originally been taken on to cover night shift hours only, the respondent stated that the complainant had come to him looking for a job as he had friends working there. The respondent had no position available at the time but said he would keep him in mind. A position came up a few months later when the respondent needed someone to cover mainly night shifts. This suited the complainant as he was in college at the time but he also asked that he be given extra hours whenever they were available such as on occasions where cover was required for absences or leave or during busy periods. The complainant had requested that he been given extra hours whenever possible and so his roster often changed at short notice due to his being given extra hours when required to cover for absences or leave.
5.4.6 The complainant on the night of 31st of December, called in sick and also advised his manager that he no longer wanted his roster to change and that he no longer wanted the extra hours. The complainant at the hearing conceded that he did tell the respondent on this night that he only wanted to work his rostered hours from now on and didn’t want to be rostered for extra hours. The respondent advised the hearing that every ones hours reduced by a certain amount in January anyway due to the decrease in business following the busy Christmas period but stated that the complainant hours reduced more due to his request that he no longer be given the extra hours to cover absences and leave. The respondent then went on to provide details of staff in the various branches and outlined how the hours given to each of them had been reduced from December to January. I am thus satisfied that the reduction in the complainant’s hours following the night of 31st of December, 2011 was due to the complainants own request that he not be given any additional hours in the future.
5.4.7 The complainant has submitted that Mr. M actions in phoning and texting him regarding his hours of work amounts to harassment on grounds of race. The respondent advised the hearing that it has a clear policy on bullying and harassment and that the complainant has never raised any grievance under this policy. The respondent stated that the complainant received a copy of this policy and the Company Handbook which he signed after completing his initial training. The complainant at the hearing did not dispute this. The respondent stated that the complainant never raised any allegation of bullying or harassment and was well aware of the grievance procedure.
5.4.8 Accordingly I am satisfied from the totality of the evidence adduced here that the complainant was not discriminated against or harassed on grounds of race in relation to this matter.
5.5 Recording on camera
5.5.1 The complainant advised the hearing of an incident where Mr. D the owner of the respondent chain came into the store where he was working and began to film him working on the counter using his camera phone. The respondent advised the hearing that it was not unusual for Mr. D while on a visit to a branch to take pictures at the counter if certain promotions were running or were not displayed when they should be or if incorrect promotions were running or being advertised in particular branches. Mr. D would often take pictures and then revert back to the individual store managers for example, if a children’s competition was being run in a particular store and he wished to promote it in another branch. The respondent stated that these would then be used to show what was being done in one of the other 12 branches.
5.5.2 The complainant advised the hearing that about 5 months later he had requested the security footage relating to the four week period within which the incident with Mr. M and the camera phone took place. The complainant stated that he received no reply initially so he requested it again by registered post. The complainant stated that he then received a reply stating that security footage was only kept for 6 months and at this stage the 6 months had elapsed. The complainant disputed that security footage was only kept for 6 months as he had heard from a security guard that it was kept for 400 to 500 days. The respondent advised the hearing that security footage for the O’Connell Street branch is kept for 400 or 500 days as it is a very advanced system but that the Castletroy branch is a much smaller system and can only store footage for 6 months. The complainant has failed to establish a prima facie case of less favourable treatment or harassment on the grounds of race in relation to this matter. Accordingly I am satisfied from the totality of the evidence adduced here that the complainant was not discriminated against or harassed by the respondent in relation to this matter.
5.6 Transfer to another store
5.6.1 The complainant advised the hearing that he was working in the O’Connell Street branch on 17th of May 2012 when he was told by Ms. L that Mr. M wanted to meet with him at 4 pm the next day at another store. The complainant refused to go to the other store so Mr. M came to the store where he was working. Mr. M asked the complainant if he would transfer to the other branch in Castletroy due to business needs as he was short staffed in the Castletroy branch. The complainant agreed and went to work in the Castletroy branch. Mr. M stated that the complainant approached him about a week later and asked if he could go back to the O’Connell Street branch, but the respondent told him that needed him to stay in the Castletroy branch as a number of staff had left and gone to the States for the summer and others had returned home for the summer holidays. The complainant remained at the Castletroy branch until October when he moved to Cork. The complainant has failed to establish a prima facie case of less favourable treatment or harassment on the grounds of race in relation to this matter. Accordingly I am satisfied from the totality of the evidence adduced here that the complainant was not discriminated against or harassed by the respondent in relation to this matter.
5.7 Victimisation
5.7.1 The complainant has submitted that he was victimised by the respondent. The complainant at the hearing stated that he was victimised by having his hours reduced after he called in sick. I outlined to the complainant at the hearing that victimisation has a specific meaning under the Act and explained what victimisation entails in accordance with section 74(2) of the Employment Equality Acts, 1998-2011 and that a claim for victimisation must be grounded on a protected act.
Section 74(2) of the Employment Equality Acts, 1998-2011 defines victimisation as follows:
“For the purposes of this Part 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………….
(f) an employee having opposed by lawful means and act which is unlawful under this Act…….
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs”
5.7.2 In Tom Barrett v Department of Defence[2] the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.
5.7.3 The complainant’s representative referred to a letter dated 30th of July, 2012, from the complainant to the respondent, requesting that complainant be allowed to avail of trade union representation in an internal disciplinary process. The complainant, in identifying the protected act, referred to this letter of complaint to the respondent about its failure to permit him union representation in an internal disciplinary process. This letter does not raise or mention any allegations of discriminatory treatment in the respondents failure to permit the complainant union representation. The respondent at the hearing stated that it is its policy and that it is clearly stated that employees are not permitted union representation in internal disciplinary proceedings. Employees are entitled to be accompanied by a colleague in any disciplinary proceedings. A copy of the policy was submitted to the hearing. The respondent stated that this policy applies to all employees irrespective of their nationality. The respondent stated that it operates a direct policy and it has no union in house irrespective of the nationality of the employee. The complainant has not advanced a claim that he was treated less favourably on grounds of race in relation to this matter and has adduced no evidence in this respect. I am thus not satisfied that that this letter of complaint amounts to a protected Act for the purpose of this Section. In addition, the complainant has submitted that the adverse treatment which resulted from this act was that his hours were reduced. I am satisfied from the totality of the evidence adduced at pgh 5.4 above that the reduction in the complainant’s hours, was due to, his request that he not be given any additional hours. Accordingly, I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant has failed to establish a prima facie case of victimisation by the respondent in relation to these matters.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -
(i) the that the respondent did not discriminate against the complainant on the ground of race pursuant to section 6(2) and contrary to section 8 of the Acts in relation to
– his treatment when he called in sick on 31st of December, 2011
–the reduction in his hours in January 2012
–his request for security footage
–his transfer to another branch
– the failure to allow him union representation in an internal disciplinary procedure
(ii) the respondent did not harass the complainant on the ground of race in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to Section 14A (7) of those Acts in respect of the following matters
– his treatment when he called in sick on 31st of December, 2011
–the reduction in his hours in January 2012
–his request for security footage
–his transfer to another branch
– the failure to allow him union representation in an internal disciplinary procedure
(iii) the respondent did not victimise the complainant following a complaint of discrimination contrary to section 74(2) of the Acts
____________________
Orla Jones
Equality Officer
2nd of October, 2014
'Footnotes'
[1] Labour Court Determination No. EDA0917
[2] EDA1017