DEC-E2016-014

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-014

PARTIES

Monika Porebna

(Represented by Lars Asmussen B.L. instructed by Sean Ormonde, Solicitors)

AND

IPL Marketing

(Represented by Peninsula Business Services)

File reference: EE/2014/026

Date of issue: 2nd February 2016

HEADNOTES: Employment Equality Acts – Gender – Race-Conditions of Employment-Discrimination-Victimisation

1. DISPUTE

1.1. This dispute concerns a claim by Ms Monika Porebna that she was discriminated against by the Respondent on the grounds of Gender and race contrary to section 6 of the Employment Equality Acts in relation to conditions of employment in terms of section 8 of those Acts and that she was victimised contrary to section 74 (2).

1.2. The complainant referred a claim to the Director of the Equality Tribunal on 24th January 2013 under the Employment Equality Acts. On 13th October 2015 in accordance with his powersunder section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission referred the case to me, Pat Brady an Adjudication Officer/Equality Officer for investigation, hearing and decision and for the exercise of other relevant functions of the Director General 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 October 20th 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. BACKGROUND

2.1. The respondent operates a petrol station where the complainant has been employed since April 6th 2012. Her initial contract of employment was for fifteen hours per week but this was variable. She left her employment on September 10th 2013 citing failures on the part of her employer to respond to various complaints she had made. She had a clear disciplinary record.

3. COMPLAINANT’S CASE

3.1. The complainant says that when she complained about her conditions of employment and changes in her roster they were reduced to fifteen hours a week. She says she was given little or inadequate notice of these changes, sometimes at the close of one late shift (23.00) she would be told that her next shift might be at 11.00 the next morning.. She also says she was constantly discriminated against vis a vis other colleagues. Also she was often given unfavourable shifts such as between 19.00 and 21.00 hours.

3.2. She gave examples of two colleagues P and G who worked evenings but were always given six to eight hour shifts.

3.3. She says that she was denied the correct rest periods under the Organisation of Working Time Act and sometimes would be given only twenty minutes on her 07.00 to 14.00 shift, and cited other problems in relation to the payment of her wages and holiday entitlements. She says that two colleagues P and G always got their wages on the due day.

3.4. A complaint regarding her leave entitlements was eventually resolved in her favour.

3.5. AS gave evidence. He is not based on site but provides financial services to the business and challenged in his direct evidence that the complainant was not paid on time. He conceded that this might have happened on occasion but if so it was a purely administrative fault and was not aimed in any way at the complainant. He accepted that he did not have direct knowledge of local level operations but stated that all due payments were made, breaks were given and records kept of these breaks.

3.6. AS was the investigator of the complaints made by the complainant. He says he fully investigated them and talked to all the relevant people on site before issuing his findings.

3.7. On July 21st 2013 while she was at work her place of work was the victim of an armed robbery which resulted in her becoming extremely distressed. She asked her manager to be permitted to go home and while this was initially refused after some delay in this she was permitted to do so about half an hour later.

3.8. On August 7th 2013 she made a formal complaint in writing outlining twelve grounds of complaint (including those referred to above). These detailed her dissatisfaction in relation to rosters, holiday pay, her treatment compared to her co-workers and her dissatisfaction with the handling of outfall of the robbery. She says that these were not properly investigated.

3.9. She did not appeal the findings as she had no confidence in the process and felt that her relationship with the business had broken down.

3.10.She alleges that these were discriminatory acts on the basis of her race and gender as prohibited by the Acts.

3.11.In respect of the alleged victimisation she said she reported the discrimination she was victim to in relation to her working hours, holiday pay and weekly pay. She outlined adverse treatment of her by managers following the making of the complaint and also following a consultation with SIPTU. Also, following an internal investigation (that conducted by AS referred to above) only two of her complaints were upheld.

4. RESPONDENT’S CASE

4.1. The respondent raised, by way of a preliminary issue the absence of a comparator, against whom the complainant was alleging less favourable treatment. It says that where comparators are available they must be identified.

4.2. The respondent challenged assertions that the complainant was treated less favourably than P and G in respect of being called in as relief. It says that P and G did different jobs. (They worked on the main checkout, the complainant worked in the delicatessen.) This also explained the variation in the complainant’s shifts as there were peaks and troughs in demand at the Delicatessen whereas the requirements at the general check out were more consistent.

4.3. The respondent challenged the assertions that the complainant’s hours were cut as a response to her consulting her trade union. That consultation happened in June 2013 and evidence was given by AS of hours in the weeks following as being (from June 14th on; 10,5 (this included annual leave), but thereafter, 46, 25.5, 28, 25, 29.5 and 29 hours.

4.4. The respondent says all of the issues raised in the reference to the Tribunal had been the subject of processing at local level through the grievance procedures except that at no stage did she associate her treatment with discriminatory grounds.

4.5. In relation to the burglary it says that the complainant was not treated any different to anyone else.

4.6. Whereas she now says that she had no alternative but to resign the respondent points out that she declined to appeal the outcome of the investigation of her grievance as provided for in those procedures.

5. FINDINGS AND CONCLUSIONS OF THE ADJUDICATION OFFICER

5.1. I have to decide if the complainant was treated in a discriminatory manner on the grounds of her gender or nationality. 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 presented at the hearing.

5.2. To succeed under the Employment Equality Acts a complainant must establish less favourable treatment on one of the proscribed grounds. It is not sufficient to identify poor management practises (for example in the matter of notice of shift changes) unless it can be demonstrated that this is attributable to a discriminatory cause. In this case she failed to do so. Even the factual basis of some of her assertions was rebutted in evidence (the reduction in hours).

5.3. There was no attempt to show any less favourable treatment in relation to a number of the claims submitted or these were effectively rebutted by the respondent. The robbery incident (upsetting as that must have been) raised no issue of less favourable treatment.

5.4. In relation to the investigation, by letter of August 29th the employer upheld four of her complaints and did not uphold four others. The complaint related to holidays it was said had been corrected, (two complaints), regarding the encroachment of her shifts a commitment was given that, in general there would be an eleven hour gap. In respect of another where she felt ‘she was being treated ‘different’ by telling her that she was thought highly of by her manager because she was hard working and he (the manager) respected her. The final matter not upheld related to the robbery. By any view of it this was not an unsatisfactory outcome from her point of view.

5.5. However by September 10th she instructed solicitors to write confirming her decision to resign. The respondent wrote on September 12th asking ‘if that is what you really want to do’ and on September 30th asking her again to reconsider her decision. Her solicitor wrote again on October 10th confirming her decision.

5.6. The complainant submission in her evidence included a claim under section 74 of the Act where victimisation is defined as ‘adverse treatment [by an] employer where ‘a complaint of discrimination [is] made by the employee to the employer’. No evidence was offered that the complainant at any stage made a complaint to her employer of a complaint of discrimination having taken place. Her complaint of August 13th 2013 refers to treatment ‘in comparison to other staff members’ but there is no hint here that she is alleging that this is on grounds of either nationality or gender. Therefore no case was made out in respect of the victimisation complaint.

4 DECISION

I have investigated the above complainant 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.

I determine that the complainant has not established a prima facie case of discrimination in relation to conditions of employment on the gender or race ground, or victimisation and I do not uphold the complaint.

____________________

Pat Brady

Adjudication Officer/Equality Officer

2nd February 2016

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-014

PARTIES

Monika Porebna

(Represented by Lars Asmussen B.L. instructed by Sean Ormonde, Solicitors)

AND

IPL Marketing

(Represented by Peninsula Business Services)

File reference: EE/2014/026

Date of issue:    February 2016

HEADNOTES: Employment Equality Acts – Gender – Race-Conditions of Employment-Discrimination-Victimisation

1. DISPUTE

1. This dispute concerns a claim by Ms Monika Porebna that she was discriminated against by the Respondent on the grounds of Gender and race contrary to section 6 of the Employment Equality Acts in relation to conditions of employment in terms of section 8 of those Acts and that she was victimised contrary to section 74 (2).

1. The complainant referred a claim to the Director of the Equality Tribunal on 24^th January 2013 under the Employment Equality Acts. On 13^th October 2015 in accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission referred the case to me, Pat Brady an Adjudication Officer/Equality Officer for investigation, hearing and decision and for the exercise of other relevant functions of the Director General 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 October 20^th 2015.

1. 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. BACKGROUND

2. The respondent operates a petrol station where the complainant has been employed since April 6^th 2012. Her initial contract of employment was for fifteen hours per week but this was variable. She left her employment on September 10^th 2013 citing failures on the part of her employer to respond to various complaints she had made. She had a clear disciplinary record.

3. COMPLAINANT’S CASE

3. The complainant says that when she complained about her conditions of employment and changes in her roster they were reduced to fifteen hours a week. She says she was given little or inadequate notice of these changes, sometimes at the close of one late shift (23.00) she would be told that her next shift might be at 11.00 the next morning.. She also says she was constantly discriminated against vis a vis other colleagues. Also she was often given unfavourable shifts such as between 19.00 and 21.00 hours.

3. She gave examples of two colleagues P and G who worked evenings but were always given six to eight hour shifts.

3. She says that she was denied the correct rest periods under the Organisation of Working Time Act and sometimes would be given only twenty minutes on her 07.00 to 14.00 shift, and cited other problems in relation to the payment of her wages and holiday entitlements. She says that two colleagues P and G always got their wages on the due day.

3. A complaint regarding her leave entitlements was eventually resolved in her favour.

3. AS gave evidence. He is not based on site but provides financial services to the business and challenged in his direct evidence that the complainant was not paid on time. He conceded that this might have happened on occasion but if so it was a purely administrative fault and was not aimed in any way at the complainant. He accepted that he did not have direct knowledge of local level operations but stated that all due payments were made, breaks were given and records kept of these breaks.

3. AS was the investigator of the complaints made by the complainant. He says he fully investigated them and talked to all the relevant people on site before issuing his findings.

3. On July 21^st 2013 while she was at work her place of work was the victim of an armed robbery which resulted in her becoming extremely distressed. She asked her manager to be permitted to go home and while this was initially refused after some delay in this she was permitted to do so about half an hour later.

3. On August 7^th 2013 she made a formal complaint in writing outlining twelve grounds of complaint (including those referred to above). These detailed her dissatisfaction in relation to rosters, holiday pay, her treatment compared to her co-workers and her dissatisfaction with the handling of outfall of the robbery. She says that these were not properly investigated.

3. She did not appeal the findings as she had no confidence in the process and felt that her relationship with the business had broken down.

3. She alleges that these were discriminatory acts on the basis of her race and gender as prohibited by the Acts.

3. In respect of the alleged victimisation she said she reported the discrimination she was victim to in relation to her working hours, holiday pay and weekly pay. She outlined adverse treatment of her by managers following the making of the complaint and also following a consultation with SIPTU. Also, following an internal investigation (that conducted by AS referred to above) only two of her complaints were upheld.

4. RESPONDENT’S CASE

4. The respondent raised, by way of a preliminary issue the absence of a comparator, against whom the complainant was alleging less favourable treatment. It says that where comparators are available they must be identified.

4. The respondent challenged assertions that the complainant was treated less favourably than P and G in respect of being called in as relief. It says that P and G did different jobs. (They worked on the main checkout, the complainant worked in the delicatessen.) This also explained the variation in the complainant’s shifts as there were peaks and troughs in demand at the Delicatessen whereas the requirements at the general check out were more consistent.

4. The respondent challenged the assertions that the complainant’s hours were cut as a response to her consulting her trade union. That consultation happened in June 2013 and evidence was given by AS of hours in the weeks following as being (from June 14^th on; 10,5 (this included annual leave), but thereafter, 46, 25.5, 28, 25, 29.5 and 29 hours.

4. The respondent says all of the issues raised in the reference to the Tribunal had been the subject of processing at local level through the grievance procedures except that at no stage did she associate her treatment with discriminatory grounds.

4. In relation to the burglary it says that the complainant was not treated any different to anyone else.

4. Whereas she now says that she had no alternative but to resign the respondent points out that she declined to appeal the outcome of the investigation of her grievance as provided for in those procedures.
5. FINDINGS AND CONCLUSIONS OF THE ADJUDICATION OFFICER

5. I have to decide if the complainant was treated in a discriminatory manner on the grounds of her gender or nationality. 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 presented at the hearing.

5. To succeed under the Employment Equality Acts a complainant must establish less favourable treatment on one of the proscribed grounds. It is not sufficient to identify poor management practises (for example in the matter of notice of shift changes) unless it can be demonstrated that this is attributable to a discriminatory cause. In this case she failed to do so. Even the factual basis of some of her assertions was rebutted in evidence (the reduction in hours).

5. There was no attempt to show any less favourable treatment in relation to a number of the claims submitted or these were effectively rebutted by the respondent. The robbery incident (upsetting as that must have been) raised no issue of less favourable treatment.

5. In relation to the investigation, by letter of August 29^th the employer upheld four of her complaints and did not uphold four others. The complaint related to holidays it was said had been corrected, (two complaints), regarding the encroachment of her shifts a commitment was given that, in general there would be an eleven hour gap. In respect of another where she felt ‘she was being treated ‘different’ by telling her that she was thought highly of by her manager because she was hard working and he (the manager) respected her. The final matter not upheld related to the robbery. By any view of it this was not an unsatisfactory outcome from her point of view.

5. However by September 10^th she instructed solicitors to write confirming her decision to resign. The respondent wrote on September 12^th asking ‘if that is what you really want to do’ and on September 30^th asking her again to reconsider her decision. Her solicitor wrote again on October 10^th confirming her decision.

5. The complainant submission in her evidence included a claim under section 74 of the Act where victimisation is defined as ‘adverse treatment [by an] employer where ‘a complaint of discrimination [is] made by the employee to the employer’. No evidence was offered that the complainant at any stage made a complaint to her employer of a complaint of discrimination having taken place. Her complaint of August 13^th 2013 refers to treatment ‘in comparison to other staff members’ but there is no hint here that she is alleging that this is on grounds of either nationality or gender. Therefore no case was made out in respect of the victimisation complaint.

4       DECISION

I have investigated the above complainant 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.

I determine that the complainant has not established a prima facie case of discrimination in relation to conditions of employment on the gender or race ground, or victimisation and I do not uphold the complaint.

____________________

Pat Brady

Adjudication Officer/Equality Officer

      January 2016