DEC-E2016-090

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-090

PARTIES

Antonija Briska

AND

Kilbride Security Limited t/a Midland Security

File reference: EE/2014/373

Date of issue: 17th June 2016

1. DISPUTE

1.1This dispute concerns a claim by the Complainant that she was discriminated by the Respondent on the grounds of race contrary to Section 6 (2) (h) of the Employment Equality Acts in relation to the terms and conditions of her employment.

1.2 The complainant referred her claim to the Director of the Equality Tribunal on 10th July 2014 under the Employment Equality Acts. On the 2nd March 2016, in accordance with his powers under section 75 of the Acts, the Director General of the Workplace Relations commission delegated the case to me, Marguerite Buckley, an Adjudication 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 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.

2. SUMMARY OF THE COMPLAINANT’S SUBMISSION AND EVIDENCE

2.1 The Complainant was engaged as a cleaner for a shopping centre in Thurles, Co. Tipperary. The Complainant started working on the 11th of February 2008.

2.2 The first company she worked for went into liquidation. While working for that company she worked between 24 and 29 hours per week. Occasionally she worked 39 hours a week if one of her co-workers was on holidays.

2.3 A new company was contracted by the owners of the shopping centre to take over the cleaning duties and by reason of the transfer of undertaking regulations the Complainant transferred to the new company.

2.4 She was provided with a contract of employment by the new company dated the 17th of September 2012. She signed the contract on the 18th of October 2012.

2.5 The Complainant relies on a clause in this contract wherein it states that her hours of work are 39 hours per week.

2.6 The clause the Complainant is relying upon goes on to state the employer reserved the right to change these working hours and due to the nature of the business staff may be required to work outside of these hours. “Your working hours shall be displayed on the work roster.” (emphasis added)

2.7 The Complainant confirmed that she was never rostered to work a 39 hour week.

2.8 She continued working the same hours she had with the previous contractor namely 24 to 29 hours a week.

2.9 The Respondent became the employer of the Complainant by means of a transfer of undertaking on the 6th of April 2014.

2.10 It continued employing the Complainant until the 9th of October 2014 where after she was transferred again to another cleaning company by reason of a transfer of undertaking.

2.11 While working for the Respondent the Complainant worked a different number of hours each week. She estimated that she worked around 22 hours per week.

2.12 Since the 10th of October 2014 the Complainant has worked for the same employer. She is rostered for work a max of 32 hours per week but sometimes more due to holiday leave.

2.13 The Complainant’s claim is that any of her co-workers who started after her employment commenced, were contracted to and rostered to work more hours than she been provided. She is relying on the contract of employment dated the 17th of September 2012 which stated she was required to work 39 hours per week. Despite this contract, she has never been rostered to regularly work 39 hours per week.

2.14 She was recently told by her most current employer that there must have been a mistake in the contract she signed on the 18th October 2012.

2.15 Whilst working for the Respondent, initially the Complainant was rostered to work three days per week however this was increased to a fourth day.

2.16 She worked the following roster

Tuesday: 10am to 8pm

Thursday: 1pm to 10pm

Saturday: 12pm to 8pm

Sunday: 12 pm to 7pm

2.17 She had responsibilities for cleaning the toilet area, cleaning the floor of the common areas, cleaning the windows.

2.18 The comparator she chose was an Irish male who was hired in 2012 by her first employer working a 39 hour week.

2.19 The Complainant agreed that this comparator may have replaced another co-worker who had a 39 hour contract. He may have replaced an Irish male.

2.20 The Complainant confirmed that she replaced a Latvian female who did work 24 to 29 hours per week.

2.21 The cleaning staff of the shopping centre comprise of:

- an Irish supervisor

- the comparator Irish male A

- Irish male B

- Complainant

- Irish male C

- Latvian female

- Two Irish male security men

2.22 When the respondent took over her employment in April 2014, she received a contract from them but she didn’t sign it. She wasn’t happy with the clause in it regarding her hours.

2.23 The Complainant confirmed that when she received the earlier contract of employment on the 17th of September 2012 she was delighted with it because she felt she was going to be rostered for 39 hours a week every week. She wanted to get more hours.

2.24 She claimed that her Irish co-workers were on contracts of 39 hours per week. To back up her claim she provided six sign in sheets from the Respondent. These were pre-printed sheets numbered 2731, 2732, 2733, 2734, 2816, and 2817.

2.25 From a review of the sign in sheets the sheets numbered 2816 and 2817 referred to the security employees only.

2.26 Sign in sheet 2731 ran from Saturday 19th of July 2014 to Thursday the 24th of July 2014. These are part of weeks 29 and 30. For these two weeks, the Complainant was not available for work due to illness.

The Comparators hours for these weeks were

2.27 The complainant argued that the comparator was a full time employee.

2.28 She confirmed that he did the same work as she did in terms of cleaning but also had responsibility for carrying bins and heavy duty cleaning which was also his work.

2.29 The Complainant stated that she asked the manager from the Respondent when would her hours be increased. This conversation took place at the end of June or beginning of July 2014. The manager told her that she was working for a different company now and pointed to her work badge stating the name of the Respondent.

2.30 The Complainant gave evidence that she wrote to the Respondent but there was confusion as to whether she wrote to the Respondent or her prior employer. She didn’t have a copy of the letter that she wrote.

3. SUMMARY OF THE RESPONDENTS SUBMISSION AND EVIDENCE

3.1 The Respondent managing director gave evidence to say that following the transfer of undertakings he maintained the same number of staff as had been transferred to the Respondent’s employment. Their terms and conditions remained exactly the same way as they had been before the transfer.

3.2 He said that during the Respondent’s tenure in the shopping centre, he replaced an Irish employee with a non-Irish worker.

3.3 He sent a job specification to the employees following the transfer. The work they were to do was the same before and after the transfer of undertakings took place.

3.4 The Respondent objected to the choice of comparator. He said that the comparator had duties other than that of the Complainant and was mainly engaged in outdoor work at the shopping centre. He was more engaged in maintenance than cleaning. The comparator was also a retained fireman and because of this was allowed to sign out when needed and have flexible hours.

3.5 The role of the comparator was set before the transfer of undertakings took place and the respondent had no input in what he was doing. He was mainly engaged to clean the carpark and he had a small ride on street cleaner for this purpose. He also had to take out the bins from the front to the rear of the site which involved a lot of manual labour.

3.6 The managing director confirmed that the Respondent was contracted to work 180 hours per week with the shopping center. In carrying out the duties, it had five cleaning staff and treated all five staff equally. He confirmed that the cleaning staff were all contracted to work around 36 hours each.

3.7 The Respondent provided a breakdown of the weeks during when it was the Complainants employer, the total hours worked, the sick days and holidays relating to the Complainant.

3.8 The Complainant was unavailable for work for two weeks due to illness. The average hours worked by the Complainant per week was 36.06.

3.9 The managing director gave evidence that the average hours contracted on site were 180 hours per week. The hours varied due to shopping centre opening hours, special events, bank holidays etc.

3.10 The Respondent confirmed that if there was extra hours they would be distributed equally across the cleaning team. He confirmed that it was a fair and equitable distribution of hours.

3.11 When asked as to his views on the contract provided to the Complainant in September 2012, his view was that it was more aspirational than practical.

3.12 He confirmed that it was never possible for the Complainant to be rostered for a 39 hour week. The hours that the Respondent was able to bill the shopping centre was 180 hours. These hours were divided between the five cleaning staff in a fair and equitable manner.

3.13 The attitude of the Respondent at all times to the Complainant was that they wished to maintain the status quo both before and after the transfer of undertakings.

3.14 The Respondent withdrew from the service contract with the shopping centre due to its unfavourable business terms.

3.15 The Respondent did not agree with the time sheet submitted by the Complainant as they hadn’t been vouched by a company representative. Also they were a snapshot of a fortnight when the Complainant herself was unavailable for work and therefore her hours were allocated throughout the team.

3.16 He confirmed he didn’t feel that it was fair the weeks that she had submitted as substantiating evidence and it shouldn’t be counted as evidence.

3.17 The Respondent submitted the hours worked by the Irish Male comparator selected by the Complainant.

4. FINDINGS AND CONCLUSIONS

4.1 I have to decide if the Complainant suffered discriminatory treatment on the grounds of her race in relation to her conditions of employment. 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 the evidence presented at the hearing.

In Determination EDA0917 [2010] 21 E.L.R, Arturs Valpeters v Melbury Developments Ltd the Labour Court, whilst examining the circumstances in which the probative burden of proof operates held as follows:-

"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.

In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."

As in any equality claim the Claimant had the task of choosing a comparator. She had to show that she had been treated badly because of her race. The burden of proving that a difference in treatment exists rests with the Claimant.

The Respondent was in a position to show that the alleged comparator was not really the same as the Complainant. However this was not ultimately necessary as they were in a position to demonstrate that there was no difference in the hours allocated to the Complainant as to the alleged comparator.

The Complainant set out a certain number of facts that she wasn’t in a positon to prove. While it is daunting to a lay litigant to understand what is required to prove an equality case, nevertheless the employment equality acts at Section 85(a) lays the burden on proof squarely on the Complainant. I conclude that the complainant has failed to establish a prima facie case of discrimination in relation to her conditions of employment.

5. DECISION

I have concluded my investigation of this complaint and hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts:

I find that the Complainant has failed to establish a prima facie case of discrimination in relation to her conditions of employment.

_________________________

Marguerite Buckley

Adjudication Officer/Equality Officer

21st June 2016