EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-122
PARTIES
RAFAL GRUSZCYNSKI
-v-
OCS ONE COMPLETE SOLUTIONS LTD
(Represented by IBEC)
File Reference: EE/2014/226
Date of issue : November 2015
HEADNOTES: Employment Equality Acts, Section 6, Discrimination on grounds of race.
1 DISPUTE
i. The complainant referred his claim to the Director of the Equality Tribunal on 15 April 2014 under the Employment Equality Acts. On 2nd September, 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Niamh O’ Carroll Kelly, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 9th September, 2015
ii. This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2 COMPLAINANTS' SUBMISSION
2.1 The Complainant alleges he was discriminated against by the respondent on the grounds of race pursuant to section 2 (2) (h) of the Act.
2.2 The complainant stated that on the 30th July, 2012 when he came into work he was told to go home and shave. He stated that he was clean shaven and produced a photograph taken on the 9th February, 2014, showing him to be clean shaven. This happened on approximately 10 occasions.
2.3 The complainant stated that he was discriminated against on grounds of race in relation to his annual leave requests. Documentation was produced for applications made by other employees or different nationalities to the complainant where applications for leave were granted and the complainant’s refused. No specific detail in relation to the various applications was given.
2.4 The Complainant alleges that he was not given a locker and that there was no area designated to facilitate staff breaks.
2.5 The complainant alleges that he was bullied by another employee. He was unhappy with the respondent’s handling of the situation. He requested CCTV of the incident but it was not forthcoming. Following this incident he felt that his work was more closely monitored by the respondent and he felt that this was unwarranted. Following the incident he began to suffer from depression and anxiety. He stated that the respondent invited him to resign shortly after the incident.
2.6 The complainant states that he was discriminated against in relation to his hours of work. He was required to start his shift at 7am and to finish his shift at 3pm. The area where the staff sign-in is situated in Terminal 1. It is a fifteen minute walk from Terminal 1 to Terminal 2. The complainant stated that he was singled out and was the only employee who had to sign in at 6.45am and sign out at 3.15pm due to the time it takes to get to and from the sign in/out area All other staff were allowed to sign in at 7am and out at 3pm. That meant that they worked 30 minutes less per shift than the complainant. He stated that his remuneration was reduced to reflect the fact that started is shift at 7.15am and finished at 2.45pm. That deduction was unique to him.
2.7 The complainant stated that there were times when his work load increased dramatically due to the numbers of passengers moving through the airport. He stated that despite the fact that he worked harder during busy times he was not compensated for that.
3 RESPONDENT'S SUBMISSION.
3.1 The respondent has a very strict policy on personal grooming. It applies to all of their staff regardless of race or gender. The complainant was given the respondent’s policy called ‘OCS uniform standard’ and it clearly sets out the requirements in relation to facial hair. The policy states that ‘beards and moustaches are to be neat and well groomed. Stubble is not permitted.’
3.2 The Respondent has an annual leave policy. It states that authorisation for holidays will be at management discretion. The complainant requested time off for the period 25th June – 16th July. That period is an extremely busy time at the airport and the respondent stated that it simply didn’t have cover for the complainant and on that basis refused his application.
3.3 The respondent stated that there are no locker facilities or staff canteen in Terminal 2. The conditions are the same for all of the staff who work in Terminal 2.
3.4 The complainant received a verbal warning in relation to the allegation of bullying made by a third party employee. The complainant was unhappy with the respondent’s findings and he did appeal the decision. On appeal, the decision was upheld. The complainant requested a copy of the CCTV footage .The respondent was unable to provide a copy of it to the complainant as it was recorded on CCTV cameras in the US immigration area and the footage belonged to the US government.
3.5 The complainant’s hours of work were 7am to 3pm. He was required to be at his post in Terminal 2 at 7am. That did mean he had to sign in for work approximately 15 minutes before his start time as it took 15 minutes to walk from Terminal 1 to Terminal 2. He was required to stay at this post until 3pm which did mean he won’t be able to sign out until approximately 15 minutes after his finish time. It was the same for all staff who worked in Terminal 2.
4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
3.1 I have to decide if the complainant was the subject of discrimination on the grounds of race. In reaching a 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.
3.2 Less favourable treatment ( race )Section 6(1)
“ For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…”
Section 6 (2)(h)
As between any 2 persons, the discriminatory grounds (and the descriptions
of those grounds for the purposes of this Act) are—That they are of different, race, colour,
nationality or ethnic or national origins.
3.3In Southern Health Board v Mitchell ( 2001) ELR 201
“ The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them . This indicated that a claimant must prove, on the balance of probabilities , the primary facts on which they reply in seeking to raise a presumption of unlawful discrimination.”
In Margetts v Graham Anthony & Company limited EDA038
“the mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.
In relation to the following complaints:
- Work Load
- Lockers and Staff Canteen
- Start and Finish times with corresponding remuneration issues.
These complaints are all issues in relation to his conditions of employment. Whilst the complainant may have been unsatisfied with the conditions within which he had to work, they do not meet the criteria as set out in the Act. I am satisfied that all of the respondent’s staff were subjected to the same conditions and criteria.
In relation to the following complaints:
- Annual leave requests
The complainant did have documentation to show that other employees were granted permission to take annual leave when his application was refused. The respondent stated that a request for annual leave can only be granted if they have cover available for the requested time. Furthermore, they stated that leave was granted on a first come basis. Whilst the complainant did produce a list of comparators, he was unable to say whether his application for leave was made before theirs and did not show that the respondent did have individuals to cover is workload while he was on leave.
In relation to the following complaints:
- Assault/Bullying
Evidence was introduced by both parties in relation to what could be described as interpersonal difficulties between the complainant and a third party employee. The respondent, pursuant to its grievance procedure, did deal with the issue albeit not to the satisfaction of the complainant. The complainant failed to identify a comparator and as a result failed to prove that the respondent treated him less favourably than another in relation to its handling of the complaint.
In relation to the following complaint:
- Personal appearance:
The complainant produced evidence to show that on a particular date he was clean shaven. However, the evidence produced did not correspond with the dates the respondent took issue with the complainant’s appearance. The complainant was unable to show that he was treated less favourably than other employees who’s appearance was at issue.
3.4 The claimant has failed to establish a prima facia case of discrimination on race grounds in relation to all of his complaints.
4. DECISION
4.1. I have investigated the above complaints and make the following decisions in accordance
with section 79 of the Acts that:
· The complainant failed to establish a prima facia case of discrimination on race grounds.
· The complaint fails.
_____________________________
Niamh O’ Carroll Kelly BL
Adjudication Officer/Equality Officer
November, 2015.