ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003607
Complaints for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00005279-001 | 17/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00005279-002 | 17/06/2016 |
Venue: WRC, Tom Johnson House, Haddington Rd, Dublin 4.
Date of Adjudication Hearing: 22/09/2016
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015, under section 27 of the Organisation of Working Time Act, 1997 and Section 79 of the Employment Equality Act, 1998, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background
The Complainant is employed as a Security Guard since 2002. She is paid €10.75 per hour and is a fulltime employee. She has claimed that she is owed holiday pay and was discriminated against on grounds of gender. She has sought compensation and restoration of holiday pay and to full time rosters.
1) Organisation of Working Time Act CA-00005279-002
Complainant’s Submission and Presentation:
The Complainant stated that she requested holidays in August 2015. There were 40 hours outstanding. She raised this with management but got no reply. She is claiming 40 hours X €10.75 = €430.00.
Respondent’s Submission and Presentation:
The Respondent accepts that 40 hours holidays are owing from the 2015 holiday year.
Findings
I note that the Complainant requested holidays but got no response from management.
I note that the Respondent accepts that 40 hours holidays are owed from the 2015 holiday year.
I find that the Respondent has breached Sec 19 of the Organisation of Working Time Act.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act and under section 27 of the Organisation of Working Time Act, 1997
As per Sec 27(3) (a) of the Organisation of Working Time Act I have decided that the complaint is well founded
As per Sec 27(3) (c) I require the Respondent to pay the Complainant €430.00 for the economic loss incurred.
In addition I require the Respondent to pay the Complainant €250.00 compensation for breach of her rights under the Organisation of Working Time Act.
This is to be paid within six weeks of the date below.
2) Employment Equality Act CA-00005279-001 |
|
Complainant’s Submission and Presentation:
The Complainant stated that her contract of employment provides for 40 hours per week. There were no problems with her employment until July 2015. She was suspended with pay for two weeks following an incident it, was alleged that she left a door unlocked. She had been nine years at this site. She was subsequently moved to different sites. From August 2015 there was a problem with her hours of work. She did not receive full time hours. She raised this with her Supervisor on many occasions, both verbally and through e-mails. She got no response. Her hours were reduced by 50 %. She was only paid for the hours worked. She was offered a post that required a 4.30am start. She had no car or public transport available so she had to decline it. A male employee (named) transferred into her site and he was given full time hours. He had less service that she had. She continued to be placed on a lower pecking order than males. She was an experienced worker with no problems with her customer service skills or job skills. She was not getting her contractual hours but the male counterparts were. There is an inescapable conclusion that gender has played a significant role in the decision. She is seeking compensation and to be rostered in a full time capacity. |
|
Respondent’s Submission and Presentation:
The Complainant’s contract of employment provides that she may be placed in any site as decided by management. There are no permanent sites. It is accepted that she is an experienced worker with good customer relations skills. It is accepted that she has not been getting full time rosters. It is accepted that she raised this with her Supervisor and that it was passed on to her manager. There is an agreement for make-up time (MUT) whereby when contracted hours are not met hours are made up and paid. She did not apply for this MUT to HR as is required. All employees know about this, all staff were advised in 2014 when this collective agreement was concluded with SIPTU. She is a member of SIPTU so they should have advised her also.
The claim for discrimination is rejected. The comparator (named) was an experienced worker sought by management for that particular site because of his superior skills set. There was no attempt to treat her differently because she was female.
This complaint is rejected.
Findings
I note that the Complainant had a contract of employment for 40 hours per week.
I note the flexibility and transferability in that contract of employment.
I note that since August 2015 she was rostered to different sites and this led to a reduction in hours rostered.
I note that the Respondent accepted that she was good at her job and good with customers.
I note that the Respondent selected a male employee from another site and he was given full time hours. They stated that he had superior skill sets.
I find that the Respondent did a subjective selection.
I note that the Complainant did not make a request for the makeup time (MUT).
She alleged that she didn’t know about it despite being a union member and having sought their advice.
I also note that the Respondent did not advise her to apply when she raised her concerns about a reduction in hours rostered.
I find that the reduction in hours was a consequence of the alleged discrimination.
I find that she was female. She had a contract of employment for 40 hours per week. She didn’t get her contracted hours but male colleagues including the named comparator got full time hours.
I find that the Respondent has failed provide objective, non-discriminatory reasons for her treatment.
Therefore I must conclude that the Complainant has established a prima facie case of discrimination on grounds of gender.
There is an onus on the Respondent to provide cogent reasons why they took these actions but they did not do so in this case.
I find that the Respondent has breached the Employment Equality Act.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I have decided that the Respondent has breached the Employment Equality Act.
I order the Respondent to place the Complainant on a roster as per her contract of employment, where if the discrimination had not taken place.
I order the Respondent to pay the Complainant €6,000 in compensation for the effect of discrimination and so it is not subject to statutory deductions.
Eugene Hanly
Adjudication Officer
Dated: 7th December 2016