EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-022
PARTIES
Josef Walkowaik
(Represented by Sean Ormonde & Co Solicitors)
AND
O’Leary International Limited
File reference: EE/2012/281
Date of issue: 29 January 2016
HEADNOTES: Employment Equality Acts - Sections 6 and 8 – Disability & Age – Conditions of Employment – Failure to Provide Reasonable Accommodation – Harassment - Equal Pay.
1. DISPUTE
1.1 This dispute concerns a claim by Mr Josez Walkowaik that he was discriminated against by O’Leary International Limited on the grounds of disability and race contrary to section 6 (2) of the Employment Equality Acts in relation to conditions of employment in terms of sections 8 of the Acts, that he was harassed, that the respondent failed to provide him with reasonable accommodation and and that he performs “like work”, in terms of section 7 of the Employment Equality Acts and is entitled to equal remuneration in accordance with section 29 of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 9 May 2012 under the Employment Equality Acts. On 5 December 2014, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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. Submissions were received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 18 February 2015 and final information was received on 11 March 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. COMPLAINANT’S WRITTEN SUBMISSION
2.1 The complainant is Polish and started working for the respondent on 1 June 2009 as a long haul truck driver. He submits that no contract of employment was given to him and that he was asked to sign a form when he started work but he was not given a copy, nor was he given a copy when he later asked for it. He was given no training, particularly on health and safety matters.
2.2 The complainant submits he was left to load his truck during his attributed breaks and rarely received any assistance to do it. He claims he was owed €2,000 by the respondent in relation to unpaid bank holiday pay. He further submits that he was not paid in accordance with the National Minimum Wage Act.
2.3 He submits that he was paid €80 per day, whilst Irish colleagues were paid €120 per day. Also he was forced to work extremely long hours, in breach of the Organisation of Working Time Act; 12-15 hours per day and up to 90 hours in a week.
2.4 The complainant submits that a work colleague called him a “f****** polish driver”. He raised this with management but he was ignored. Subsequently he was penalised and threatened with disciplinary action. He contends he was managed by means of threats and intimidation, and he was threatened with dismissal on a regular basis.
2.5 At Christmas 2011 the complainant suffered a back injury while at work. He submits that he was away from home and asked the respondent if he could return home to see his doctor. This request was refused and his injury was exacerbated; consequently he has not worked since.
2.6 The complainant submits he was badly treated by the respondent in trying to obtain his basic employment rights. Also, that no grievance procedure existed and there was no procedure in his own language which he could understand.
3. RESPONDENT'S WRITTEN SUBMISSION
3.1 The respondent submits that the complainant was provided with a statement of terms and conditions of employment in Polish.
3.2 The respondent denies the allegations of the complainant in relation to the hours he worked. They wanted more details to check the tachograph records for the complainant. The records for January to July 2011 show that the complainant had an average working week of 40.21 hours.
3.3 The respondent submits that the complainant was paid €60.55 per day and received subsistence payments that brought his payment up to €90 per day. They have been given no details of a named comparator with whom they can compare details of their pay.
3.4 The respondent submits that the details of the allegations of harassment are vague.
3.5 The respondent submits that in relation to the complainant’s claim on the grounds of disability he has given no specifics regarding his claim they failed to provide reasonable accommodation. The complainant has been on certified sick leave since December 2012.
3.6 The respondent submits that the complainant has provided no evidence that he was treated less favourably than other named employees on the grounds of race.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainant was discriminated against in relation to conditions of employment, if the respondent failed to provide him with reasonable accommodation, if he was harassed and if he is entitled to equal remuneration. 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.
Conditions of Employment
4.2 At the hearing the complainant reaffirmed the evidence in his written submission that he had no contract of employment, no training, lost breaks and that he had to work long hours.
4.3 He contends he was made to work up to 17-18 hours on some days and at times he was forced to stop only because of the tachograph. He contends it was suggested to him that he could use a magnet to stop the tachograph. Subsequent to the hearing the respondent submitted tacograph records which showed that from January to June 2011 the complainant worked an average of 40.21 hours per week, and on two weeks worked over 50 hours per week. I also note that at the hearing when shown a copy of a signed contract the complainant could not provide an explanation.
4.4 Whilst I accept from the tacograph records that his weekly average was legally acceptable, it is also clear that he did work some long weeks and, therefore, must have worked some long days. However, the complainant has provided no evidence that he was treated in a differently because of his nationality in relation to the hours of work or any of his claims in relation to his conditions of employment.
4.5 Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. The complainant provided no evidence that he was treated any differently than anyone else in relation to the redundancy payment. I therefore conclude that he is unable to establish a prime facie case of discrimination in relation to conditions of employment.
Harassment
4.6 The complainant alleges he was harassed and harassment is defined bysection 14A (7) of the Acts which states:
“references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds ….
being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.
4.7 The complainant referred to comments and treatment by his immediate supervisor which he contended were not made or done to drivers of other nationalities. The respondent contended they were unaware of any such comments, that the complainant has given no dates of details of incidents, and made no complaint to them. They also contend that the complainant was given a copy of an Employee Handbook which included a Grievance Procedure’, an ‘Equal Opportunities Policy’ and a ‘Personal harassment policy and procedure’. The complainant denied receiving the Handbook.
4.8 Section 14A(2) of the Employment Equality acts gives an employer a defence against harassment if it can prove that it took such reasonable steps as are practicable to prevent the harassment or where the harassment took place to reverse its effects.
4.9 From the direct evidence given at the hearing I am satisfied that the complainant was aware of the respondent’s procedures but did not use them. I therefore conclude that the respondent can rely on the defence in section 14A (2) of the Acts and find that the complainant was not harassed in accordance with the Employment Equality Acts.
Equal Pay
4.10 In relation to his claim of equal pay the complainant’s evidence at the hearing was that he was paid between €420 and €500 per week and that Irish drivers were paid €800 per week. At the hearing he said he saw the pay slip of an Irish driver who was doing the same work but he was not able to give the name of a direct comparator. The respondent showed a list of 120 drivers who, at the time the complaint referred his complaint, were earning a composite (pay and subsistence) rate of either €90 or €100 per day; apart from one person on €107 and three drivers on €110.
4.11 The complainant produced no evidence to substantiate his claim that he received less pay than someone else performing like work because of his nationality. Furthermore, the evidence produced by the respondent showed that any variations in pay were unrelated to nationality. I therefore find that the complainant is unable to establish a prime facie case of discrimination in relation to his claim for equal pay.
Disability
4.12 At the hearing the complainant put forward the circumstances where a medical prescription ran out when he was on mainland Europe and the respondent did not facilitate the filling of this prescription. He asked to go home, after already being away for a number of weeks, and he was not allowed. On another occasion he contends he sustained a back injury but was not allowed to return home. His claim is that Irish drivers would have been treated differently in the same circumstances. The respondent says they were unaware at the time that the complainant’s prescription had expired and they were unaware of his back injury before the complainant went on annual leave.
4.13 The evidence given by the complainant in relation to both events was vague. I am not satisfied that either was brought to the attention of management in the respondent at the time. Therefore there was no way of them being aware that reasonable accommodation was either needed or sought by the complainant.
5. DECISION
I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
· the complainant is unable to establish a prima facie case of discrimination in relation to conditions of employment,
· the complainant was not harassed,
· the complainant is unable to establish a prima facie case of discrimination in relation to his claim for equal pay, and
· the respondent did not discriminate against the complainant in relation ot the provision of reasonable accommodation.
___________________
Hugh Lonsdale
Adjudication Officer/Equality Officer
29 January 2016