EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-101
PARTIES
Lukasz Olszewski
AND
Royal Dublin Golf Club
(Represented by Management Support Services)
File reference: et-155585-ee-15
Date of issue: 21st July 2016
HEADNOTES: Employment Equality Acts –Discrimination-Race–Conditions of Employment-Victimisation
1 DISPUTE
1.1 This dispute concerns a claim by Lukasz Olszewski that he was discriminated against by the Royal Dublin Golf Cub on the grounds of his 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 he was victimised contrary to section 74 (2).
1.2 The complainant referred a claim to the Director of the Equality Tribunal on 28th March 2015 under the Employment Equality Acts. On 7th June 2016, in accordance with his powers under section 75 of the Employment Equality Acts, on June 7th 2016 the Director General of the Workplace Relations commission delegated 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.
1.3 In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on 23rd June 2016.
1.4 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 COMPLAINANTS' SUBMISSION
2.1 The complainant was employed by the respondent as a Greenkeeper in August 2008. He referred to problems arising from his poor spoken English which dated back to 2008. However in his written submission at the hearing he says that his problems began in the autumn of 2011.
2.2 He submitted that his supervisor would make fun of him and that this would incur the ridicule of his colleagues. The supervisor would make comments such as ‘No English, no work’.
2.3 He says that from early 2013 work was assigned to him on an unfair basis. Instead of the previous mix of heavy and light duties his would be overwhelmingly heavy duties.
2.4 He was also reprimanded for use of a mobile phone when he was engaged in a consultation with his solicitor on an important family law matter. He had matrimonial difficulties which he accepts caused him to be late on occasion, but for which he always apologised.
2.5 In respect of the claim of victimisation he was on sick leave in October 2014 and left Form MC1 to be filled out by the respondent. This is a form required by the Department of Social Protection to qualify for certain benefits. He says there was an undue delay in the respondent filling out the form until mid-December which resulted in his claim for benefit being delayed. He says this was an act of retaliation against him.
2.6 The respondent had written to him regarding some concerns it had about the form. The first letter sent by the respondent went to a previous address, even though the complainant said that he had advised the company of his change of address. He had also called to the club on a day the Chief Executive was away and was told by a co-worker that the CE would get in touch with him, but he failed to do so.
2.7 The complainant also sent a series of emails to the respondent (on October 1st, 5th, 18th and 21st) asking for the form to be filled in and returned to the DoSP.
3 RESPONDENT'S SUBMISSION
3.1 The respondent denies all claims and says that they are all outside the time limits specified in the Acts and that no comparator has been identified. It says that none of the alleged acts of discrimination which occurred before September 28th 2014 are within jurisdiction. The complaint was received by the Equality Tribunal on March 28th 2015.
3.2 That said, it denies any discrimination against the complainant in respect of his language skills and said it went to some lengths to support the development of his skills through an offer to partially fund classes in 2011 and through an introduction to a fellow Polish national employed in a neighbouring golf club and who was willing to assist him. The complainant availed of none of these offers.
3.3 In addition the respondent had given financial assistance to the complainant in relation to another family matter and had re-employed him after a period of voluntary absence from the company.
3.4 In relation to the allegations of unfair distribution of light and heavy work the Chief Executive of the Club stated that he had carried out a detailed investigation in respect of this. He had reviewed the diaries which contain the allocation of work over a period of years from 2010 to 2014 and had concluded that there had been no changes as alleged in 2013. His investigation found that the pattern of work was fair on a continuing basis up to the point when the complainant went on sick leave in October 2014. He concluded that there was a high degree of rotation of work.
3.5 His direct supervisor also denied in direct evidence that he discriminated in the allocation of work. He said he had a good relationship with the complainant and at no stage mocked him in front of colleagues. He regarded him as a good worker but there were definite communication problems. He would have to use a mix of language and physical demonstration to indicate the work required to be done, and as a result it was not always done as required.
3.6 Regarding the delay in filling out the MC1 form the Chief Executive stated in evidence that he had concerns about the implications of a statement on the form. In the section under ‘Nature of Disease’ the complainant had written; ‘Back Injury’ and in response to a further question, ‘Why do you think it was caused by the nature of your work’ the complainant had answered;
‘Most of activities at work make me working in standing position with my arms lifted up, I do lots of cleaning, mowing standing for hours’.
3.7 The respondent initially wrote to the complainant on November 5th 2015 but to a previous address. A further letter issued on November 22nd asking the complainant to contact the respondent pointing out that it ‘was not in a position to sign this document in its present form’ and asking him to make contact at his ‘earliest convenience’.
3.8 Finally, evidence was given of the respondent’s general support for the complainant; the offer of language lessons, his re-employment after a period of absence, an extra four days annual leave in 2013, a financial loan of €2,000 all of which indicate a significant degree of good will towards the complainant.
4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have considered all the relevant evidence that was laid before me, oral and written, prior to, and in the course of the hearing. In particular, all of the historic allegations were examined to see whether a sequence of actions could be identified which might bring them within the time limits.
4.2 The respondent has submitted that all of the complaints which occurred before September 28th 2014 are outside the time limits prescribed in the Acts. 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.”
4.3 Some of the complaints relate to unspecified dates in 2008 and concern criticism of the complainant’s spoken English skills. By the time this aspect of the complaint was referred to the Tribunal in March 2015 these complaints were about seven years old. It is, therefore ‘out of time’. No dates were provided for some of the complaints.
4.4 In relation to the complained of unfairness in the assignment of tasks which took place at some point in 2013 (early 2013 was stated in the complainant’s evidence), this too falls well outside even the twelve month limit, and no case was made for extending it. Even had it been it would not have fallen within jurisdiction.
4.5 There were other, miscellaneous complaints, all of them outside the time limits in the act. One related to the criticism of the complainant for his use of mobile phones. Likewise the complaint that the rejection of a pay claim made in 2014 is out of time.
4.6 I therefore conclude that all incidents regarding the claim of discrimination in relation to conditions of employment are out of time.
4.7 The complaint about the incident giving rise to the victimisation and the delay in relation to the completion of the MC1 form took place in October 2014 and therefore is within the six month time limit.
4.8 The complainant has described the delay in relation to the completion of the MC1 form as retaliation. However, at that time he had made no complaint. While I accept the respondent had reservations about the contents of the form I am not entirely persuaded by the explanation for its failure to complete the form more quickly. It ought to have done so given the implications of the delay for the complainant’s eligibility for benefit and the fact that he had no other source of income. However, no issue of victimisation arises under the Acts.
4.9 The provisions of the Acts in respect of victimisation are clear. Victimisation arises ‘where dismissal or other adverse treatment’ occurs as a reaction to a complaint of discrimination, or proceedings being taken by complainant etc. (Employment Equality Acts, section 74 (2). However, in this case the complainant had not made any complaint at the time of the incident.
5 DECISION
5.1 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 that:
· that the claims with regard to discriminatory treatment in relation to conditions of employment were not lodged in accordance with the time limits provided for in section 77 (5) (a) of the Acts and I therefore have no jurisdiction to investigate the claims and,
· The complainant has failed to establish a prima facie case of victimisation.
Therefore, I dismiss the complaints.
_______________________
Pat Brady
Adjudication Officer/Equality Officer
21st July 2016