EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-010
PARTIES
Marek Mozio
AND
Occipital Limited
(Represented by IBEC)
File reference: EE/2014/442
Date of issue: January 2016
1. Complaint:
1.1 This complaint concerns a claim of discrimination on the grounds of race. The complainant is an employee of the respondent. The respondent is a limited company providing distribution services to a major supermarket retail chain.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on the 17th August 2014 under the Employment Equality Acts. On the 22nd September 2015, in accordance with 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. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on the 28th September 2015. The complainant attended in person. The respondent was represented by IBEC and one witness attended on its behalf.
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 is of Polish nationality, although he also became an Irish citizen in September 2014. He outlines that he has been discriminated against on the grounds of his race in relations to the conditions of his employment. He states that he worked for the respondent for five years and during this time did not receive a contract of employment. He states that following the submission of this complaint, he was furnished with a contract of employment, although this is not accurate, for example in its references to his position, his place of work, the date of commencement, his rate of pay and hours of work. He contrasts this treatment with that afforded to Irish employees, who received contracts without having to seek the assistance of lawyers or statutory bodies. He refers to correspondence issued on the 17th January 2013 by a solicitor on his behalf and on behalf of five colleagues.
2.2 The complainant commenced employment in December 2009 and since then, has been promoted to a supervisor post on the night shift. He said that not having a contract of employment impinged on his ability to obtain mortgage finance to buy a dwelling. He outlined that at the time he commenced working with the respondent, he worked with a named line manager who did not come back to him with a contract of employment. He said that the Irish colleague named in the letter of the 17th January 2013 received a contract after the letter was issued. He did not see his correct contract of employment until it was appended to the respondent submissions as part of this hearing. Previously, he had been provided with an incorrect contract of employment; it gave incorrect details regarding his start date and his rate of pay.
3. Summary of the respondent’s case:
3.1 The respondent outlined that contracts of employment were provided to 44 employees in January 2010. At this time, the respondent did not have procedures to preserve contracts of employment provided to employees. It submitted email correspondence from this time that discusses the circulation of the contracts to named employees, including the respondent. No issue was raised regarding this matter until the letter of 17th January 2013 from a solicitor. The respondent outlines that one of the comparators put forward by the complainant is Irish and one of the employees on whose behalf the letter of the 17th January 2013 is issued.
3.2 The respondent acknowledged that no response issued following the letter of the 17th January 2013 as “it slipped through the cracks”. The respondent witness said that the respondent believed that all employees had contracts of employment. It submitted that the respondent workforce is multi-national and that Irish employees make up a minority of the workforce. The respondent outlines that on the 7th November 2014, it met with the complainant, a number of colleagues and their solicitor regarding the terms of the contract. They had raised issues regarding the terms relating to the right to search, flexibility and after hours work.
4. Findings and reasoning:
4.1 This complaint relates to discrimination on the grounds of race, where the complainant outlines that he and non-Irish colleagues were treated less favourably in relation to the terms of their employment. The complaint relates specifically to the provision of a contract of employment and one that correctly reflects its terms. This is a longstanding issue, having first arisen soon after the complainant’s employment commenced in late 2009. It is an issue pursued by the complainant and colleagues in correspondence with the respondent. It has also been pursued by way of complaint made under the Terms of Employment (Information) Act.
4.2 In respect of the complaint made under the Employment Equality Acts, I find that the respondent has not discriminated against the complainant on the grounds of race or under any of the other grounds provided by the Acts. I find as fact that the complainant was not provided with a contract of employment at the time he commenced employment with the respondent; I prefer the oral evidence of the complainant to the email correspondence provided at the hearing; the named line manager who sent the emails did not attend the hearing. I also accept that it took the 17th January 2013 correspondence and the complaints to the Labour Relations Commission and the Equality Tribunal to prompt action. I also accept that the complainant is not satisfied with contract put forward by the respondent. All this, however, does not mean that the complaint is well founded. It is not in dispute that the letter of the 17th January 2013 was issued on behalf of one Irish staff member and five employees who did not, then, have Irish nationality. It is not disputed that the majority of employees of respondent are not of Irish nationality, nor that their place of birth was outside of Ireland. The complainant states that named Irish colleagues received contracts of employment; they commenced employment in the years after he started working for the respondent. Given that an Irish colleague formed part of the group of the 17th January 2013, it follows that the respondent did not differentiate between employees on grounds of nationality. Any deficiencies in how the respondent met its obligations under the Terms of Employment (Information) Act (on which I make no findings) is a matter for determination pursuant to the other complaints.
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. The decision is that the respondent did not discriminate against the complainant on the grounds of race with regard to his conditions of employment.
_______________________________
Kevin Baneham
Adjudication Officer / Equality Officer
22nd January 2016