EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-024
PARTIES
Marcin Nowakowski
(Represented by SIPTU)
AND
Clonlara Wholesalers
(Represented by Peninsula)
File reference: EE/2014/049
Date of issue: 22nd February 2016
1. Background to Claim
1.1 This dispute concerns a claim by Marcin Nowakowski, (hereinafter the “Complainant”) that he was constructively dismissed from his employment at Clonlara Wholesaler Distributors Ltd. (hereinafter the “Respondent”) on the grounds of his Race contrary to the Employment Equality Act, 1998 to 2011 (hereinafter the “Act”).
1.2 The Complainants referred his claim to the Director of the Equality Tribunal on 3rd October 2014 under the Acts. On 6 October 2015 and in accordance with his powers under section 75 of the Acts, the Director General of the Workplace Relations Commission delegated the case to me, Caroline McEnery, an Adjudicator, 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 Acts and as part of my investigation I held a hearing for 9th December 2015 for this case. The Complainant and the Respondent attended the hearing along with their representatives.
1.3 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. Summary of the Complainant’s Case
2.1 The Complainant was hired by the company in August 2005. The Complainant states he as constructively dismissed on the 9th April 2014 due to his race.
2.2 The Complainant received one pay increase and was on a rate of €11 per hour when his employment ceased. In October 2013 his overtime was reduced by the Company. The Complainant was in receipt of approximately €350 net [€440 gross] per week. He discovered that a colleague, who did the same job, was in receipt of €500 gross. The Complainant requested a pay rise on a number of occasions but never received one in the last six years of his eight year employment.
2.3 The Complainant stated he was expected to do more than his comparable employees and received less help from the Company.
2.4 The Complainant stated that he submitted a grievance in writing to his employer in February 2014 regarding his rate of pay. The Complainant received a response in April 2014 from the respondent regarding arranging a meeting to discuss this issue. The Complainant’s Union Representative replied to accept the invitation to a meeting and requesting that the complainant’s Union Representative be allowed to attend. Neither party suggested an alternative date so this meeting never occurred. In the interim the Complainant submitted his grievance to the Equality Tribunal.
2.5 The Complainant raised his grievance regarding the pay increase internally on a number of occasions and the Company confirmed they were not in a position to increase his wages due to the financial circumstances of the Company. The Complainant felt that the working relationship with the Respondent deteriorated once he raised the matter formally. The Complainant states that he had expected that the Respondent would have dealt with the matter in accordance with the formal procedures. The Complainant stated that the Respondent failed to address his grievance, this along with the deteriorating working relationship meant that the Complainant felt he was left with no option but to resign from his position. The Complainant therefore claims his employment ended on 9th April 2014 due to constructive dismissal.
2.6 Upon receipt of his resignation the Respondent arranged a meeting with the Complainant which was attended by Mr L and Mr C in addition to the Complainant’s wife. At the meeting the Complainant outlined his issues regarding his rate of pay and he said if he did not receive the increase that he asked for that he was requesting his p45 be processed and his annual leave be paid. The Complainant confirmed that no other issues were discussed at this meeting. The Complainant stated that he was informed that it would be impossible for him to be given a pay rise. The Complainant stated the Respondent had brought a cheque book with them to the meeting which was on the table. Due to the fact that the Complainant did not get a pay increase the Complainants resignation remained after this meeting.
3. Summary Of The Respondent’s Case
3.1 The Respondent states that the Claimant was hired by the Company in August 2005 and they allege that the Complainant resigned his employment to commence another position.
3.2 The Respondent gave the Complainant an opportunity to attend a meeting along with his Union Representative which he did not utilise as the meeting was not rescheduled by either party.
3.3 The Respondent stated that the only issue raised by the Complainant during his time with them was in relation to his rate of pay. The Complainant never raised any issue in relation to the treatment that he was subjected to or in relation to discrimination.
3.4 The Respondent stated that they were not in a position to offer the Complainant a pay increase due to the economic situation and a pay freeze was in place.
3.5 The Respondent stated that no other formal grievance was raised in relation to discrimination.
4. Conclusions Of The Adjudicator
4.1 The issue for decision by me is whether or not the complainant was treated in a discriminatory manner regarding his conditions of employment and was in turn constructively dismissed by the Respondent, in circumstances amounting to discrimination, on grounds of race, in terms of Section 6 of the Acts and contrary to Section 8 of the Acts, In reaching my decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the hearing.
4.2 The Complainant must, in order to succeed in his claim for constructive dismissal, establish that the Respondent’s conduct towards him was so unreasonable that he had no option but to resign. The Complainant must establish that the conduct is sufficiently serious to merit his resignation only then can a claim for constructive dismissal arise. The Complainant must also show how they exhausted all internal procedure with their grievance. This is not that case in this situation.
4.3 The main grievance raised by the Complainant was a request for a pay increase. This was refused by the Respondent who confirmed a pay freeze was in place. The Complainant subsequently resigned as he did not receive a pay increase. No formal grievance was raised nor exhausted by the Complainant or via his Representative prior to his resignation in relation to his claims of discrimination.
4.4 Section 85(A) of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that he suffered discriminatory treatment. It is only when those facts have been established and are regarded by an Adjudicator as sufficient to raise an inference of discrimination that the onus shifts to the respondent to rebut the inference of discrimination raised. From the evidence presented this burden has not been met and therefore the claim for constructive dismissal must fail.
5. Decision
5.1. I have investigated the above Complaints and make the following decision in accordance with Section 85A of the Acts that the Complainant failed to establish a prima facia case of discrimination based on Race and that on this basis the Complaint of unfair dismissal fails.
____________________
Caroline McEnery
Adjudication Officer/Equality Officer
22nd February 2016