EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-109
PARTIES
Bogumil Puka
AND
Viking Security Limited (in voluntary liquidation)
File reference: EE/2013/655 Date of issue: October 2015
1. Dispute:
1.1 This dispute concerns a claim by Mr Bogumil Puka that he was discriminated against by Viking Security Limited on the grounds of race contrary to section 6 of the Employment Equality Acts in relation to conditions of employment and equal pay in terms of those Acts.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on the 29th November 2013 under the Employment Equality Acts. On 29th September 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Kevin Baneham, 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. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on the 5th October 2015. 1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2. Summary of the complainant’s case:
2.1 The complainant attended the hearing and was accompanied by a witness. He outlined that he commenced employment with the respondent on the 7th June 2011. He worked as a security operative and worked exclusively in the stores of a large retailer. He was assigned his place of work and hours of work by the respondent, and generally worked in north Dublin and Louth. The complainant said that he had an entitlement to work 40 hours per week.
2.2 In respect of his complaint of discrimination, the complainant said that he was discriminated against on an ongoing basis by not being allocated the hours he was entitled to. He said that he was entitled to work 40 hours per week by operation of the Security Industry JLC Employment Regulation Order then in place. He also said that he was a full-time employee and referred to the statement of his terms of employment, which provides that he was a full-time security officer “subject to attached terms and conditions”. The document does not specify a number of hours of work per week. He said that while the store would rota him for 40 hours per week, the respondent would change this allocation to give a named Irish colleague more hours and to reduce his hours. The complainant said that this discrimination occurred between January 2013 and May 2014 where he worked an average of 16 hours per week and this Irish colleague worked 44 hours. They started work with the respondent at the same time and lived in the same town. He stated that he never refused work offered to him. In respect of his place of work, the complainant said that he had been initially deployed at one store but was quickly moved to a different store of the same retailer. Problems later developed where he was deployed to work in stores at a great distance from his home. Because of the distance and parking expenses, he could be left out of pocket. The complainant said that on the 12th August 2013, he complained about these issues to a manager of the respondent. While he received an acknowledgement to his grievance, there was never a substantive response from the respondent.
2.3 Addressing the written submissions of the respondent, the complainant said that he had never been told of any complaints made about him by the retailer and he denied that such issues existed. He had not been invited to attend a meeting with the respondent or the retailer regarding any such complaints. The complainant outlined that there had been an incident where he had complained of harassment he had received from a staff member of the retailer and he was offered a transfer to a different store. He said that he was never offered the increase to the composite rate of pay as stated by the respondent and was continuingly underpaid by the respondent. The complainant acknowledged that he had pursued complaints under the Organisation of Working Time Act and under the TUPE Regulations. The complainant also outlined that he was discriminated against in not being supplied copies of his contract of employment and terms and conditions of employment in the Polish language.
3. Summary of the respondent’s case:
3.1 The respondent made written submissions to the Equality Tribunal on the 21st October 2014. By the date of the hearing, the respondent had entered voluntary liquidation. The liquidator did not attend the hearing and did not make additional submissions to the Tribunal.
3.2 In its written submissions, the respondent denies that the complainant was subjected to discriminatory or adverse treatment. It states that 90% of its workforce are not Irish. They outline that the issues related to pay arose out of the striking down by the High Court of the constitutionality of Employment Regulation Order made pursuant to the Industrial Relations Acts (John Grace Fried Chicken v. The Catering Joint Labour Committee and others [2011] IEHC 277). They state that the complainant refused to accept a composite rate of pay offered after this judgment was handed down. They outlined the complainant received all his holiday and bank holiday pay, save where, on one occasion, the payment for a particular bank holiday was delayed to all employees. In respect of shift hours, the respondent states that it deploys employees to reflect trading patterns and business needs arising in retail stores. The submissions state that the complainant refused inconvenient locations of work, had been out sick for some weeks and a particular store had asked that he not be assigned to them. The complainant was deployed to stores in accordance with changing business needs, in particular following the cessation of 24 hour trading at one store.
4. Findings and reasoning:
4.1 The first issue to determine in this case is whether the complaint can be heard given that the respondent company is in voluntary liquidation. This process is advanced and a search of company records in the Companies Registration Office indicates that the company will be dissolved on the 4th November 2015. It has not been dissolved as of the date of this report and had not been dissolved as of the date of hearing. The situation in the instant case is different to the situations pertaining in World of Concrete Limited v. Rimkus (EDA117) and First Bathroom Solutions Limited (in liquidation) v. Tarvydas (EDA1110), where both companies had been dissolved.
4.2 The complainant argues that he was entitled as a matter of contract and/or law to work 40 hours a week. I cannot see where such an entitlement arises as there is no such stipulation in the documentation relating to his employment or contained in the Employment Regulation Order then in place. On the basis of the evidence provided by the complainant, I find that he was discriminated against in being allocated fewer hours than a named Irish colleague during the course of 2013. This fact was not denied in the submissions of the respondent and this raises a prima facie case of discrimination. I find that the explanations provided by the respondent do not adequately rebut the presumption of discrimination and were not adequately supported by evidence. The respondent did not provide evidence relating to one store declining to have the complainant on site or that the complainant refused to work in other locations. The respondent did not respond adequately to the grievance lodged by the complainant in August 2013. I find that the complainant was subject to discriminatory treatment in relation to being deployed for fewer hours than an Irish colleague. I make an award of €5,000 for this breach and this is based on the length of time the discriminatory treatment occurred and the failure of the respondent to address the complainant’s subsequent grievance.
4.3 I do not find that the complainant was subject to discriminatory treatment regarding his location of work or rate of pay; I accept the explanations provided in the respondent submissions. I find that this is not an appropriate case to make an award for not providing documentation to the complainant in his native language; I do so because in all his grievances, the complainant did not request translated documents from the respondent. Other matters raised by the complainant are subject to complaints made under other employment rights statutes and not before this hearing. Other issues raised by the complainant post date this complaint and are, therefore, not part of it.
5. Decision:
5.1 I have investigated the above complaint and make the following decision in accordance with section 79 of the Employment Equality Acts and section 41(5) (a) (iii) of the Workplace Relations Act 2015 that: * The complainant was subject to discriminatory treatment in relation to the hours of work he was allocated by the respondent; * I make an order that the respondent pay the complainant €5,000. The entire award of €5,000 is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act, 1997 (as amended by Section 7 of the Finance Act, 2004).
____________________
Kevin Baneham
Adjudication Officer/Equality Officer
October 2015