EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-028
PARTIES
An employee
AND
An employer
(Represented by IBEC)
File reference: EE/2014/443
Date of issue: 22nd February 2016
HEADNOTES: Employment Equality Acts Sections 6, 8, Racial Discrimination, Discrimination /Conditions of Employment.
1: Background
This dispute concerns a claim by Mr. VV that he was Discriminated against on the grounds of Racial origin contrary to the Equality Acts.
The Complainant referred a claim to the Director of the Equality Tribunal on the 18th August 2014, under the Employment Equality Acts. On the 5th November 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission delegated the case to me, Michael McEntee, 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 the 9th November 2016.
2: Complainant’s Submission
2:1 The Complainant was a Tipper Truck driver employed since July 2007. His employment was terminated on the 4th June 2014.
2:2 The Complainant’s issues were
Ø He was required to work Saturday and Sunday when Irish drivers were off for the weekend.
Ø He was required to work excessive overtime.
Ø He had been directed to work even though there were issues with his valid Tachograph licence.
Ø He was on medication that affected his mental skills.
3: Respondents Submission.
3:1: The Respondent rejected the Complainant’s case on the following grounds
Ø The case was out of time
Ø Weekend working and Overtime working was voluntary. The Complainant was a regular volunteer for both duties. Statistics were provided to demonstrate this.
Ø At no stage in the course of his employment did the Complainant ever raise any grievances in relation to Night work or weekend work with any Manager. The Company has a well-established Grievance Procedure.
Written and oral evidence was provided by the Respondent in support of all these points.
4: Findings and Conclusions of the Equality Officer
4:1 Time Limits
(a) Time Limits
Section 77(5) of the Employment Equality Acts, 1998 to 2011 states -
“(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which case relates or, as the case may be, the date of its most recent occurrence
(b)On application by a Complainant the Director may, for reasonable cause, direct that in relation to the Complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such a period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.”
On this basis the 6 month period prior to the lodging of the claim on the 18th August 2014 would have been February 19th 2014 – if an extension (i.e. a further 6 months) were agreed the date would have to be August 19th 2013.
At the Oral hearing it was alleged that the delay was due to legitimate confusions and misunderstanding on the part of the Complainant. He was unrepresented and English would not have been his native tongue.
I find that this delay amounts to “reasonable cause” in accordance with section 77 (5) (b) of the Employment Equality Acts and I extend the period to 12 months. I conclude that the Respondent is not prejudiced by this extension.
While the Complainant did not specify any date for Discrimination on his Claim Form some documents submitted by his then Solicitor refer to a weekend date of October 26th 2013 within the second 6 months.
Accordingly the Claim was allowed to proceed.
4:2 Racial/Ethnic Origin /Discrimination in Working Conditions.
Statistics submitted by the Respondent to the Tribunal and to the Complainant demonstrated that there was no pattern of Discriminatory selection for either Night or Weekend work against the Complainant. The Complainant had no issues with the statistics presented.
The Complainant worked in a section of the Respondents business that was closely linked to preparation of a material for Road repairs in Dublin City and County. Road availability was often linked, due to the need to minimise traffic disruption, to nights and weekends. An Irish national, a Mr B, worked at least as many, if not more nights and weekends as the Complainant. This person was suggested by the Respondent as a suitable Comparator.
The Works Manager, Mr. RB, gave verbal evidence that the Complainant was always a first class worker and a “Go to person” for any weekend or night working. The Drivers were a group of mixed nationalities and no selection or favouritism towards Irish or any other Group ever took place. The Complainant was always keen to facilitate the Respondent in terms of availability for Overtime or Weekends.
4:3 The Labour Court has previously pointed out in Determination EDA0917,Arturs Valpeters v Melbury Developments [2010] 21 ELR 64 quoted below
“that mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Court cannot engage in speculation as to how a person of a different nationality to the Complainant would have been treated in a comparable situation nor can it decide the case on the basis of conjecture as to the factual criterion for the treatment complained of. The responsibility to bring forward the necessary proofs to establish the primary facts from which discrimination can be inferred rests fairly and squarely on the Complainant and her legal advisors. There was a total failure to discharge that responsibility in this case. Accordingly the claims of discrimination cannot succeed.”
4:4 The Complainant was unable to adequately support his contention that he was being unfairly selected in a discriminatory Racial or Ethnic fashion for Night or Weekend working. At the Oral hearing he agreed that he was a hard worker who often volunteered for Night and Weekend working.
4:5 The Respondent has well developed Staff Procedures, available in the Complainant’s native language. Signed copies, by the Complainant, were produced in evidence by the Respondent. No Appeals or Grievances were ever raised by the Complainant in relation to his patterns of working.
4:6 Tachograph issues; Medication Issues
The Tachograph issues were outside the remit of the Equality Officer. Not withstanding this no evidence of any Discriminatory issues were raised.
The Respondent submitted evidence that the prescribed medication would be most unlikely to have any effect on driving ability.
4:6 Overall Conclusion
The Burden of Proof is on the Complaint to establish a prima facie case of discrimination on the grounds of racial or ethnic origin. No evidence has been adduced to support any claim of Discrimination on Racial or Ethnic Origin grounds his contention and the claim must accordingly fail.
5: DECISION
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.
I have investigated the above complaints and make the following decisions in accordance
With Section 79 of the Acts that:
Ø The Complainant has not succeeded in establishing a claim of discrimination on Racial or Ethnic grounds and the claim fails.
__________________
Michael McEntee
Adjudication Officer/Equality Officer
22nd February 2016