EQUALITY OFFICER'S DECISION NO: DEC-E/2015/031
PARTIES
Mr. Slawomir Sinikowski
Vs
Supermacs Ireland Ltd
(Represented by IBEC)
FILE NO: EE/2012/314
Date of issue: 11th of June 2015
1. Dispute
1.1 This dispute involves a claim by Mr. Slawomir Sinikowski
that he was discriminated against by Supermacs Ireland Ltd, on grounds of race, in terms of section 6 (2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2011 in relation to his conditions of employment, as well as a claim of equal pay. There is also a claim of discriminatory dismissal.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on the 7th of June, 2012 alleging that the respondent had discriminated against him on grounds of race when his request for holidays was not granted and when he was not paid correctly for bank holidays worked. There is also a claim for Equal pay and discriminatory dismissal.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 27th of March, 2015 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 7th of April, 2015.
3. Summary of complainant’s case
3.1 The complainant states that he is a Polish National and that he was employed as a Security Guard by the respondent at its branch in O’Connell Street, Limerick from 26th of October, 2009.
3.2 It is submitted that the complainant was initially paid at a lower rate than his Irish colleague.
3.3 It is submitted that the complainant was not paid for a number of bank holidays worked. It is submitted that the complainant eventually received back pay for bank holidays worked but that he received his back pay 3 months later than his Irish colleague who was in the same situation.
3.4 It is submitted that the complainant’s holiday request in relation to time off for his honeymoon was ignored by managers and that he didn’t know whether or not he was permitted to take the time off until a day before his wedding.
3.5 It is submitted that the complainant was dismissed following a disciplinary procedure.
3.6 It is submitted that the complainant was treated differently to his Irish colleague in respect of the disciplinary procedure applied to both and its outcome.
3.7 It is submitted that the complainant’s nationality was indicated on his payslip.
3.8 It is submitted that the complainant was subjected to a discriminatory dismissal.
4. Summary of Respondent’s case
4.1 It is submitted that the complainant was employed by the respondent from October, 2009 to 21st of July, 2012.
4.2 It is submitted that the complainant was dismissed for gross misconduct.
4.3 It is submitted that the incidents complained of are not date specific and therefore may be out of time.
4.4 It is submitted that the respondent incorrectly underpaid bank holidays in respect of the complainant and his Irish colleague Mr. C. It is submitted that this was due to a payroll error but that these were refunded with back pay to both the complainant and Mr. C once notified to the respondent.
4.5 It is submitted that the complainant submitted his holiday request form while his supervisor was on holidays and so procedure was not followed. The complainant was however still granted the holidays.
4.6 It is submitted that the complainant’s nationality was indicated on his pay slip up to the end of 2011 due to a requirement by the Department of Enterprise Trade and Employment to track the number of work permits in respect of Non EEA Nationals.
4.7 It is submitted that the complainant and his Irish colleague Mr. C were both dismissed for gross misconduct following the outcome of a disciplinary process.
5. Preliminary issues
5.1 Dismissal
5.1.1 The complainant had submitted prior to the hearing that he had been discriminated against in relation to his dismissal. The respondent advised the hearing that the complainant had already sought redress for his dismissal under the Unfair Dismissals Act, 1977-2001 a decision on which issued from a Rights Commissioner on 13th of May 2013 (copy decision submitted). The complainant at the hearing agreed that the matter of his dismissal had been the subject of a Rights Commissioner decision.
5.1.2 S. 101(4) of the Employment Equality Acts 1998 to 2011 provides that
An employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if –
(a) […]
(b) in exercise of powers under the Unfair Dismissals Acts 1977 to 1993, a rights commissioner has issued a recommendation in respect of the dismissal, or
(c) the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal.
5.1.3 I am satisfied that the Rights Commissioner recommendation was a recommendation in respect of the dismissal. I therefore find that I lack jurisdiction to investigate the dismissal aspect of the complaint pursuant to the provisions of S. 101(4) of the Acts.
5.2 Preliminary issue – Time Limits
5.2.1 The respondent has submitted that the incidents complained of are not date specific and therefore may be out of time.
5.2.2 Section 77(5)(a) of the Act provides that a complaint has to be referred within six months of the most recent occurrence of the alleged act of discrimination. Section 77(5) of the Acts provides as follows:
“(a) Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
5.2.3 I note that the complainant in the present case referred his complaint to the Tribunal on the 7th of June, 2012 therefore the claim is within time in circumstances where the most recent alleged act of discrimination occurred within the 6 months period preceding the date of the complaint form i.e. from 8th of December, 2011. The Act also provides for ongoing discrimination. However, as regards the equal pay aspect of the claim, section 77(5)(c) provides that the time limits in sections 77(5)(a) and 77(5)(b) do not apply to equal pay claims, therefore my investigation into the equal pay element of the claim is not limited to the 6 months prior to the date of complaint.
6. Conclusions of the Equality Officer
6.1 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) and contrary to section 8 of the Employment Equality Acts, 1998 and 2004 in relation to his conditions of employment, as well as a claim of equal pay. 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.
6.2 Section 6(1) of the Employment Equality Acts, 1998 to 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)…..”
6.3 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… “
6.4 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 Polish. 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]
6.5 Less favourable treatment – Conditions of Employment
6.5.1 The complainant advised the hearing that, he had been treated less favourably by the respondent in respect of his pay for Bank Holidays. The complainant advised the hearing that both he and his Irish colleague Mr. C had been underpaid by the respondent in respect of Bank Holidays worked. The respondent advised the hearing that this was correct and that both employees had been underpaid due to an error in the way their payroll system had been calculating Bank Holiday pay.
6.5.2 The complainant advised the hearing that Mr. C had received his back pay in March 2012 but that the complainant had not received his for a further three months. The respondent advised the hearing that Mr. C had contacted them in relation to a problem with his pay for bank holidays. Mr. C had detailed the instances where he had been underpaid and raised the error in payment with the respondent in a number of emails (submitted to the Tribunal). The respondent advised the hearing that the matter of Mr. C’s underpayment had been investigated and that the outcome was that he had been underpaid for a number of Bank Holidays. The respondent advised the hearing that it had, following the discovery of this error, paid Mr. C the relevant back pay. The respondent advised the hearing that the complainant did not raise the issue of his pay with them and stated that as soon as it was discovered that the complainant had also been underpaid in respect of Bank Holidays the matter was rectified and the complainant received the back pay due to him.
6.5.3 Witness for the complainant Mr. C advised the hearing that he had raised the issue of his underpayment with the respondent by email in January, 2012, Mr. C stated that in follow up email he had then indicated to the respondent the dates he had worked and had stated that to his recollection the complainant had worked the same dates. Mr. C advised the hearing that the fact that he had mentioned that the complainant may also have worked these dates should have been taken to be a request on the complainant’s behalf.
6.5.4 The respondent advised the hearing that it had not received any inquiry or request re underpayment from the complainant until after he raised a complaint with the Tribunal. The respondent stated that this was the first contact from the complainant in respect of an issue with an underpayment. The complainant at the hearing did not dispute that this was the first time he himself had raised the underpayment issue with the respondent. The respondent advised the hearing that following Mr. C ‘s written complaint in January, 2012 which indicated that he had been underpaid and outlining the dates in question the respondent paid Mr. C the money owed to him in March 2012. The respondent advised the hearing that the complainant did not at that time raise any issue with them in respect of his own pay or complain about any underpayment. The respondent did not deny the fact that Mr. C‘s email alluded to the fact that the complainant may have worked the same dates as him but never stated that the complainant had been underpaid or wished to raise any complaint in respect of any such underpayment. The respondent advised the hearing that as soon as it became aware that the complainant had also been underpaid it immediately took action and paid the complainant the back pay owed to him.
6.5.5 I accept that the complainant did receive the back pay owed to him at a later date than his colleague Mr. C however, I also accept that the complainant did not raise an issue in respect of his underpayment for bank holidays until a number of months after Mr. C. I am satisfied that the complainant did raise the issue of his underpayment for bank holidays in his complaint to the Tribunal in June 2012 and that following this the respondent did pay the complainant the money owed to him. Thus I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant was not discriminated against by the respondent on the grounds of race in respect of this matter.
6.6 Complainant’s holiday request
6.6.1 The complainant advised the hearing that he had submitted a holiday request form in advance of his wedding and honeymoon and that this was not replied to or approved by the respondent until the day before his wedding. The complainant submits that the delay in replying to his request amounts to less favourable treatment on grounds of race. The complainant when questioned at the hearing stated that his holiday request was ultimately granted but at a very late stage. The respondent advised the hearing that the maximum amount of holidays allowed to employees in one continuous period is 3 weeks. The complainant in this case was seeking to take 1 month’s holidays. The respondent advised the hearing that holiday request forms must be submitted 1 month in advance in order that they can be signed by a supervisor and co signed by a manager. The respondent stated that this is outlined in the Company Handbook. The respondent also advised the hearing that the complainant was seeking to take 21 days holidays and that he was at that time only entitled to 19 hours holidays given the amount of holidays he had accrued. The respondent stated that these were issues which needed to be approved by his supervisor.
6.6.2 The complainant stated that he was aware of the holiday procedure and the notice requirements. The respondent advised the hearing that the complainant submitted his holiday request form on the 11th of May seeking holidays from 1st of June to 2nd of July thus 19 days in advance. The respondent stated that the 19 days notice would not have been a problem on its own if it had related to a time period of 3 weeks or less or if, given the longer time period, it had been submitted to the complainant’s supervisor but, the respondent stated that the complainant had submitted his form late and at a time when the complainant’s supervisor Mr. J was on annual leave and so was not available to sign off on the request. The respondent stated that even though Mr. J was away, if the form had related to a request for 3 weeks or less it could have been signed off by someone else but given that it related to a period of 1 month this period had to be approved by his supervisor. The respondent stated that this was due to the fact that confirmation was needed that Mr. J was aware that the complainant would be gone for a month and that he could arrange cover for the period of the complainant’s absence. The respondent advised the hearing that Mr. J signed the form immediately following his return from holidays and stated that the complainant’s request was granted. The complainant did not dispute this but stated that Mr. J had been back a couple of days before he approved the holiday request.
6.6.3 I accept that there was a delay in approving the complainant’s holiday request form however, I also accept that the form was submitted at a time when the complainant’s supervisor was on annual leave and given that the request related to a time period outside of the normal 3 weeks limit I accept that the request had to be signed off by the supervisor in order to ensure that cover was arranged. I am thus satisfied that the delay in approving the complainant’s holiday request was not due to his race. I am thus satisfied from the totality of the evidence adduced that the complainant was not discriminated against on grounds of race in relation to this matter.
6.7 Disciplinary Procedures
6.7.1 The complainant had submitted prior to the hearing that he had been dismissed following a disciplinary procedure and that his dismissal amounted to discrimination on grounds of race. However I have made a finding above that I am precluded under Section 104 from examining the complainant’s discriminatory dismissal claim as his dismissal has already been the subject of a Rights Commissioner decision. The complainant accepts this but submits that he was subjected to less favourable treatment due to the way in which the disciplinary procedures were applied to him and having regard to the way in which they were applied to his Irish colleague Mr. C.
6.7.2 The complainant advised the hearing that he arrived at work on 29th of May 2012 and was told to go home as he had not been rostered to work that night. He stated that his Irish colleague Mr. C was also told to go home that night for the same reason. The complainant advised the hearing that both he and Mr. C had refused to go home due to the fact that they had not been told in advance that they were not to come in that night. The complainant when questioned stated that he had not received his roster for the night in question and stated that the roster was usually sent to him via a text but had not been sent to him on this occasion and so he had assumed that he was to come in to work. The complainant and Mr. C advised the hearing that they had both shown up for work as they had not been sent the roster in respect of that night and so did not know that they were not rostered to work that night.
6.7.3 The complainant advised the hearing that following this incident both he and Mr. C were subjected to the respondent’s disciplinary procedure. Mr. C advised the hearing that he was invited to attend a disciplinary hearing on 6th of June, 2012. Mr. C stated that he attended the disciplinary hearing and was advised of the outcome of same on 13th of June, 2012. Mr. C stated that the outcome was that he received a warning due to his behaviour on the night of 29th of May.
6.7.4 The complainant advised the hearing that he was also called to a disciplinary hearing in relation to this matter and that his hearing took place on 13th of July. The complainant submits that this was different to the treatment received by Mr. C whose first hearing was on the 6th of June. The respondent advised the hearing that the complainant was away on holidays for all of June and so his hearing could not take place on 6th of June like Mr. C and so it was set to take place a week after his return to work. The complainant at the hearing agreed that this was the case.
6.7.5 Mr. C went on to state that there had been another incident on 7th of July 2012 in which both he and the complainant had been told by the respondent that one of them was to position themselves on the door and the other one was to stand inside the premises. The complainant agreed that this was the case and stated that both he and Mr. C had refused to follow this instruction as they felt it was better for the two of them to stay at the door at all times. Mr. C added that it was better for the two of them to stay on the door despite managements request that one of them remain inside the premises. Both the complainant and Mr. C advised the hearing that they had disregarded the instruction from management and both remained outside at the door of the premises. The complainant and Mr. C were again subjected to the respondent’s disciplinary process and both were invited to disciplinary hearings in relation to this matter which took place on 13th of July, 2012.
6.7.6 The complainant advised the hearing that following this disciplinary hearing both he and Mr. C were suspended and later dismissed for gross misconduct. The complainant submits that the fact that his two disciplinary hearings took place on the same day amounts to discriminatory treatment on grounds of race. I am satisfied that the complainant could not be called to a disciplinary hearing in June in relation to the first incident due to the fact that he was away on holidays. I am also satisfied that both he and his Irish colleague Mr. C received the same treatment in relation to the disciplinary procedure applied and its outcome. While I accept that it was not ideal for the complainant to have to attend his 2 disciplinary hearings on the same day I am satisfied that this was due to circumstances in relation to the complainants holidays and due to the fact that another incident occurred before the first disciplinary hearing took place. I am satisfied that the outcome of the process was the same for both the complainant and Mr. C and that their actions in respect of the second incident were deemed by the respondent to have amounted to gross misconduct. I am thus satisfied that the complainant was not treated differently on grounds of his race in relation to this matter. I am thus satisfied from the totality of the evidence adduced that the complainant was not discriminated against on grounds of race in relation to this matter.
6.8 Refusal of Reference
6.8.1 The complainant submitted at the hearing that the respondent had refused to provide him with a reference when requested by his new employer company A. Witness for the complainant, Mr. C advised the hearing that he had heard from a colleague that the respondent had told a prospective employer, company A, over the phone, that it would not provide a reference for the complainant due to the fact that the complainant had made a complaint against the respondent for unfair dismissal. The respondent when questioned at the hearing rejected this allegation in its entirety. Witness for the respondent Ms. G advised the hearing that she as HR manager would be the relevant person to deal with any and all requests for references for employees. Ms. G advised the hearing that any and all requests for references are requested in writing and that no details are ever provided over the phone. Ms G advised the hearing that she had not received any request for a reference from the named company in respect of the complainant.
6.8.2 Witness for the respondent, Ms. G advised the hearing that the respondent does not provide personal recommendations for any of its employees but that they do, in response to requests for references, provide a generic reference form as confirmation that the named individual was employed by them for a specific period stating whatever role or capacity they were employed. Ms. G stated that she had received a request for a reference in relation to the complainant from another named company, Ms. G stated that she had received this request from company B and that she had in response directed them to put the reference request in writing in accordance with the respondent’s procedures. Ms. G stated that she had later received the reference request in writing and that she had in response to this provided the usual confirmation of employment details in response to this request, the respondent provided written evidence of this exchange of correspondence to the Tribunal.
6.8.3 Ms. G went on to state that she had many years experience working in HR and stated that she would never disclose personal details about a past employee and that she would certainly not disclose any information in relation to a complaint or claim being taken by an employee against the respondent. The complainant provided no direct evidence in relation to this matter and the allegation centered on an alleged statement made by a third party to Mr. C, the third party in question was not present at the hearing. Ms. G was clear and consistent in her evidence on this matter and I am satisfied that her version of events in this regard is to be preferred. I am thus satisfied from the totality of the evidence adduced that the complainant was not discriminated against on grounds of race in relation to this matter.
6.9 Equal Pay
6.6.1 The complainant has submitted that his Irish colleague Mr. C was initially paid at a higher rate than he and that this was due to race. The complainant advised the hearing that both he and Mr. C were hired at the same time but that Mr. C was paid at a higher rate for the first year of their employment. The complainant stated that his rate of pay was raised to equal that of Mr. C after a year.
6.9.2 Section 29 (1) of the Act provides that where A and B represent two people of the different nationalities it shall be a term of the contract under which A is employed that A shall at any time be entitled to the same rate of remuneration for the work A is employed to as B who, at that or any other relevant time, is employed to do like work by the same or associated employer. The existence of like work between a complainant and comparator is a necessary condition to any entitlement to equal pay under the Act. Therefore I will first examine whether like work exists between the complainant and his named comparator – Mr. C.
6.9.3 Like work is defined in Section 7 of the Act:
…in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if-
(a) both perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work
(b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or
(c) the work performed by one is equal in value to the work performed by the other having regards to such matters as skill, physical or mental requirements responsibility and working conditions
6.9.4 The complainant advised the hearing that he was employed by the respondent as a Security Guard at their premises in O’Connell Street, Limerick. Witness for the complainant Mr. C advised the hearing that both he and the complainant were employed as Security Guards. Mr. C stated that their job was to remove people from the premises and that both were required to do the same job and to use force when necessary to keep people out or to remove them from the premises. The respondent at the hearing did not deny this. I am thus satisfied from the evidence adduced that the complainant did perform ‘like work’ with the named comparator Mr. C in terms of Section 7 (1) (b) of the Acts.
6.9.5 Section 29(5) of the Act provides that an employer can, on grounds other than the discriminatory grounds, pay different rates of remuneration to different employees. The respondent at the hearing did not deny that the complainant and Mr. C were employed to do the same job but the respondent advised the hearing that there were grounds other than race for the difference in the rate of pay. The respondent advised the hearing that Mr. C held a PSA Security licence at the time of his being hired but the complainant did not. The respondent advised the hearing that Mr. C had more experience than the complainant and had worked as a Security Guard in Limerick for a considerable time. The respondent went on to state that Mr. C knew who could and should be admitted and who should be kept out of a premises and what problems various events could pose for security. The respondent also stated that Mr. C knew a lot of people due to his experience as Security in various pubs around Limerick and that such information was very beneficial in rostering security at various times. The respondent advised the hearing that the complainant’s experience in security was minimal and as he did not hold a PSA licence he was paid less that Mr. C.
6.9.6 The complainant at the hearing conceded that he did have less experience in Security than his colleague Mr. C and it was agreed that Mr. C had experience in the Security Industry and knew many people which was an advantage in his role. The complainant advised the hearing that he had experience in the Polish Military Police which should have been considered to be equivalent to Mr. C’s experience in the Security Industry.
6.9.7 The complainant advised the hearing that he had started work on a rate below that of Mr. C but that within a year his wage increased to equal that of Mr. C. Mr. M witness for the respondent advised the hearing that he had interviewed both the complainant and Mr. C. He stated that Mr. C had a PSA Security licence and extensive experience in the Security Industry and so was started on €15 per hour. Mr. M advised the hearing that the complainant had minimal experience in Security and did not hold a PSA licence at the time of interview but stated that the respondent had helped him to obtain such a licence within a year of commencing employment with them. Mr. M stated that it was agreed with the complainant at interview that due to these factors he would start off on €12 per hour increasing to €13.50 after 6 months and then to €15 after 12 months, provided he got his PSA licence within that time period. Mr. M advised the hearing that the complainant achieved his PSA licence before the end of the year and so progressed to the €15 per hour rate after 11 months. The complainant at the hearing did not dispute this.
6.9.8 I accept that the complainant was on a different rate of pay to his colleague Mr. C for the first 11 months of his employment. I also accept the respondent’s evidence that there were grounds other than race for the difference in the rate of pay and that the fact that the complainant had less experience than Mr. C and also did not hold a PSA licence both justifies and explains the difference in their starting rate of pay. I am thus satisfied from the totality of the evidence adduced that the complainant was not discriminated against on grounds of race in relation to this matter.
7. DECISION OF THE EQUALITY OFFICER.
7.1 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 conditions of employment regarding
– his underpayment for bank holidays and the delay in providing him with back pay for same
– his treatment in respect of his holiday request
– the disciplinary procedures applied to him
– the alleged refusal of a reference
(ii) there are grounds other than race for the difference in the starting rate of pay between the complainant and his named comparator in accordance with section 29(5) of the Acts. Accordingly, I find that the respondent did not discriminate against the complainant on the race ground contrary to section 29(1) of the Employment Equality Acts in relation to his pay.
____________________
Orla Jones
Equality Officer
11th of June 2015
Footnotes
[1] Labour Court Determination No. EDA0917