Employment Equality Acts
DECISION NO: DEC-E2016-093
Adil Mushtaq
(Represented by Lars Asmussen B.L.,
instructed by Sean Ormond and Co Solicitors)
V
Top Security
(Represented by Management Support Services.)
File Nos. EE -2013 -638
Date of Issue: 21st June 2016
1. DISPUTE
1.1. The case concerns a claim by Mr. Adil Mushtaq (hereinafter referred to as ‘the complainant’) that he was subject of discrimination by Top Security Limited (hereinafter referred to as ‘the respondent’) on the grounds of race contrary to section 6 of the of the Employment Equality Acts (hereinafter referred to as ‘the Acts’) when he was harassed and ultimately dismissed from his employment. The complainant also claims that he was the subject of victimisation by the respondent in terms of Section 74(2) of the Acts.
1.2. The complainant referred his claim to the Director of the Equality Tribunal under the Equal Status Acts (hereinafter referred to as “the Acts”) on the 5th December 2013. On the 9th February 2016, in accordance with his powers under section 75 of the Equal Status Acts, the Director General of the Workplace Relations Commission delegated the case to me, Peter Healy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under section 25 of the Acts, on which date my investigation commenced. A hearing took place on the 14th April 2016 at the WRC, Davitt House, Dublin 2.
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. SUMMARY OF COMPLAINANT'S CASE
2.1 The complainant commenced employment as Security guard for the Respondent in August 2010 and was dismissed from that employment in August 2010. During that time the complainant submits that he was not furnished with a contract of employment.
2.2 The complainant submits that he was rostered for less hours then others and that one occasion his supervisor (Mr X) said that this was because he was not Irish. The complainant submits that at that time he though Mr X was referring to his Visa status.
2.3 The complaint submits that he refused annual leave on two occasions for visits to Pakistan relating to a wedding. It is the complainants submission that he was refused leave on both occasions as it was explained to him by Mr X that he was only entitled to 21 days leave and that he could only take 14 days leave at any one time.
2.4 The complainant also submits that he was refused annual leave for the purpose of undergoing a serious surgical procedures. It is the complainants submission that he was refused leave on this occasion as it was explained to him by his supervisor Mr X that he had to give one months prior notice.
2.5 The complainant submits that, on the 11th April 2013, he was moving cars for third parties at a site where he was a security guard and that this was normal practice. The complainant submits that he was accused by me X of Driving without a licence and of moving vehicles of a client without permission.
2.6 The complainant submits that, also on the 11th April 2013 he was threatened by the Mr X for not holding a GNIB card despite holding n Irish Passport. The complainant submits that he was issued with notification on the same day to attend a disciplinary meeting for not wearing a tie, being unshaven and for driving cars without insurance.
2.7 The complainant submits that a disciplinary meeting was held on the 16th Aril 2013 resulting in a written warning, but that the did not appeal that warning for fear of further disciplinary action.
2.8 The complainant submits that he was on duty at Location X on 1st September when he failed to notice an incursion into the area by a group of youths who caused damage to the premises and a security camera. The complaint submits that he was the only one subjected to a disclipinary process relating to this failure despite two other Irish Security not noticing the damage to the camera on the same day.
2.9 A disciplinary meeting was heard on the 9th of September, resulting in the complaints dismissal as he was already on a written warning. The complainant appealed the decision but was unsuccessful. The complainant submits that the disciplinary hearing failed to meet any of the requirements of natural justice.
3. SUMMARY OF RESPONDENT’S CASE
3.1 It is the respondent’s position that the complainant was originally employed by another security operator and only commenced working for the respondent, in 2010, when it was successful in securing the contract and he was transferred under the Transfer of Undertaking Regulations to the Company. It is the respondent’s position that the non-issuing of a statement of terms is not in itself evidence of discriminatory treatment.
3.2 The claimant, prior to being transferred to the company, was known to Mr X who had previously worked with the claimant for another company. As far as Mr X was concerned the complainant was a satisfactory employee and he had no difficulty with him whatsoever transferring to the company. It is the respondent’s submission that after the transfer the claimant’s performance was initially satisfactory. However, the rostering department, who has responsibility for organising the working hours for all officers, advised Mr X that there were difficulties with the claimant not phoning in for his rosters. As a consequence of this Mr X spoke to the claimant about this, advising him it was his responsibility to ensure he made contract with rostering so that he would be aware of his hours of work and that rostering would know he was available to do those hours.
Issue of Leave.
3.3 On the 19th November 2012 the claimant put in a request for leave to Pakistan. The leave was requested for 4 weeks which would be an exceptional period of time. On this occasion the company did not accept the request but did indicate to the claimant that he would be allowed 3 weeks, and the application was returned to the claimant. Subsequent to this a further application form was submitted on the 22nd November 2012. This request was for a weeks’ leave commencing on the 30th November. The company rules are that applications for leave should be made one month in advance and thus this application was refused. This request was dealt with by an Administration manager (My Y). However, the complainant subsequently advised Mr Y that the reason for the leave was to attend hospital. On being advised of this Mr Y agreed to the leave and the claimant was facilitated
3.4 On the 9th December the claimant submitted another request to the Company which was received by Mr Y . On this occasion the claimant requested 3 weeks leave commencing on the 15th February. In accordance with company procedures normal leave entitlement is a maximum of 2 weeks and thus this request was initially denied. However, this was subsequently given to him and he was on leave from the 12th February to the 9th March 2013 as stipulated by Mr X.
3.5It is the respondent’s submission that when Mr X was visiting a site on Thursday 11th April 2013, he observed the complainant was out of his full uniform, was unshaven and was moving a private vehicle not belonging to him. It is the respondent’s submission that, it is their policy that all officers are not permitted to drive vehicles not belonging to the company on the site, for insurance reasons this was a security matter and also a health and safety matter. As a consequence of these observations the claimant was invited to attend a disciplinary hearing on 16th April 2013.
3.6 The respondent submits that the complainant was advised of his right to be accompanied if he so wished and on the day of the meeting but arrived without representation and confirmed he wished to proceed without anyone in attendance. The respondent submits that the complainant signed the meeting notes confirming this. Subsequent to the hearing the claimant was issued the letter dated 17th April 2013 outlining that he was receiving a written warning and that he had seven days in which to lodge the appeal.
Incident at location X
3.7 The respondent submits that the complainant was on duty and his main responsibility was to monitor close circuit televisions from the monitoring room. The complainant was on duty but he did not notice some youths climbing over the wall into the yard, nor them throwing pallets over the wall nor the fact that a camera was taken out of action. It is the respondent’s position that, as the complainant had not noticed these matters it meant that the incoming officer was not advised either of the intrusion nor the fact that a camera was out of action.
3.8 The respondent submits that, in relation to the intrusion, this was not something the incoming officer, Mr W, was made aware of, as it happened when he was not on duty, and it would not be practice for him to roll back cameras to check previous footage to see what had gone on. In relation to the broken camera, as the camera was out of action when he came on duty, and again he was not advised of it by the outgoing officer, Mr W would automatically assume this was already in hand and had been dealt with by the claimant, otherwise the claimant would have advised him of the fact that a camera had gone out of action and had not yet been reported. Furthermore, the claimant should have also brought it to the attention of Mr W that the only camera watching that particular yard was now the single camera, the one on which the youths were observed climbing over the perimeter wall in the first place. It is the respondent’s position that due to the complainant’s carelessness, nothing was reported to the client until the matter was brought to the respondent’s attention by the client, who eventually discovered the broken camera.
3.9 The respondent submits that once the discovery had been made the footage was then evaluated, and it is seen that the intruders were filmed climbing over the perimeter wall, trying to throw wooden pallets over the wall and the camera then being damaged and left hanging from the wall. The respondent submits that it is also clear from the internal CCTV which is located in the monitoring office that the complainant was preparing to leave the site at the end of his shift and in so doing was walking in and out of the security office clearly out of uniform, rather than carrying out his duties. The respondent submits that the complainant got changed before his finishing time and had left the cameras unattended.
3.10 The respondent submits that as a consequence of this matter being reported to the company the claimant was invited to a disciplinary hearing on 4th September 2013, by a letter detailed the matters that were to be investigated and again advised the complainant that he was entitled to be accompanied by a representative. The respondent submits that this invitation format is standard throughout the company for any disciplinary meeting and is used for all employees. The meeting took place on 9th September 2013. The Manager who conducted the meeting was Mr X, who was the claimant’s direct line Manager. It is the respondent’s submission that, at this meeting that the complainant accepted responsibility for not dealing with the incident in question.
It is the respondents submission that, after the claimant had provided his responses Mr X proceeded to take a break to consider the facts. At this stage the facts that Mr X was considering were as follows:
- Security Officer failed to observe an incursion into the clients’ premises.
- Security Officer failed to observe the youths stealing property belonging to the client.
- Security Officer failed to observe the fact that a camera which had been operational had gone out of action.
- Security Officer had failed to remain in post and instead was, at the time of the incursion, busy going in and out of the office getting changed early so that he could leave work as soon as his shift finished rather than waiting to be released by the officer taking over and then getting changed.
- Security Officer failed to do a proper camera check on the Monday which would have identified the camera out of action, which was operational as far as he was concerned when he had finished his duty the previous shift, which then would have resulted in a report being made to the client.
Having considered these matters Mr X reconvened the meeting and advised the claimant that this was an exceptionally serious matter and that it was noted that he was already on a written warning which had been issued some months earlier therefore, in the circumstances, his conduct was seen to be so serious that it had to be deemed to merit immediate termination of employment. The claimant was again advised at the end of the meeting of the appeals process that was available to him. The complainant availed of this appeals process but was unsuccessful.
3.11 The respondent submits that complainant’s hours were not reduced by the company or Mr X. He was on a set roster and continued to work this roster, which in actual fact was in excess of that which he worked with for the previous employer. He was on 42 hours bar one occasion when he went up to 45. The company do confirm that the claimant was approached about a pay cut. He was one of many members of staff who were asked for a pay cut at all levels in the company and the claimant chose not to agree to it, again like a number of staff members. However the respondent submits that this did not result in any detriment to the complainant.
3.12 The respondent rejects any allegation that the complainant was threatened by Mr X for not holding a GNIB card. The respondent submits that the complainant had been working under a GNIB card. Mr X, on becoming aware that the company had not been given a current GNIB card advised the complainant that his last card was out of date and that he needed to present a new one. The respondent submits that this was not done in either a threating nor intimidatory manner. Mr X simply advised the claimant that he needed to get his new card organised and a copy returned to the company. It was only at this time the claimant indicated that he no longer required a GNIB card because he now held a passport.
4. FINDINGS & CONCLUSION
4.1. I have to decide if the complainant was harassed and dismissed the ground of race and it he was subject to victimisation. In reaching my decisions 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.
4.2. Section 85A of the Act 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.
4.3. Section 14 of the Employment equality act sets out the conditions under which harassment in relation to access to employment can take place. It provides as follows: -
(7) (a) In this section—
(i) references to harassment are to any form of unwanted
conduct related to any of the discriminatory grounds,
and
(b) Without prejudice to the generality of paragraph (a), such
unwanted conduct may consist of acts, requests, spoken
words, gestures or the production, display or circulation
of written words, pictures or other material.
4.4. The complainant submits that only on one occasion he was subject to direct remarks from Mr X regarding the ground of race. I have heard direct evidence from Mr X and I accept his account of this interaction outlined at 3.12 above. In contrast having heard direct evidence from the complainant regarding the incident, I am satisfied that the complainant was simply confused by the query being put forward by Mr X. I am satisfied that Mr X was simply carrying out a necessary function of his role as supervisor and that he did not make any racist remarks.
Victimisation.
4.5 Given the respondent’s view that the complaints performance, I find that the action of the respondent, following the dismissal, in the nature of any reference issued does not constitute victimisation under the Acts.
Incident of moving cars
4.6 The complainant submits that other staff moved cars for clients while acting as security guards at location X. The complainant submits he was the only one singled out for disciplinary action for following this common practice. I am satisfied by the respondent’s account that such a practice was forbidden due to obvious exposure to insurance claims. As the complainant has at no time acknowledged the instructions of the respondent, I find it was entirely reasonable for the respondent to subject the complainant to a disciplinary meeting and a written warning.
Incident at Location X
4.7 I find that the respondent was entirely justified in investigating the complainant’s failure to notice a breach of security at location X. I find that the respondent investigated this incident in a highly responsible, fair and efficient manner.
As the complaint was the only one on duty at the time and it was his responsibilty alone to notice and report the broken camera I do not find the other guards (Mr W) to be suitable comparators.
4.8 The complainant submits that he was rostered for less hours but has provided no evidence of this. I accept the account put forward by the respondent at 3.11 above and find no evidence of any behaviour by the respondent being motivated by race.
4.9 The complainant has stated that all of the disciplinary processes where tainted by discrimination. Having heard direct evidence from personnel present for the relevant meetings and having reviewed relevant documentation supplied by the respondent I accept the version of events put forward by the respondent and find that they acted reasonably during all of the disciplinary processes, that the complainant was given every opportunity to put forward his version of events and I find no evidence of discrimination.
4.10 It is the complainant’s contention that has been the victim of harassment I have examined every allegation of discrimination put forward by the complainant and find there is no connection between any of the incidents put forward by the complainant to the ground of race. I find that the complainant has not established any inference of discrimination and in every instance I prefer the account put forward by the respondent.
5. DECISION
5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find that
(i) the complainant was not subject to discrimination or harassment on the ground of race and his conditions of employment were not affected,
(ii) the complainant was not subject to victimisation in terms of section 74 (2) of the Employment Equality Acts.
(iii) the complainant was not subject to discrimination on the ground of race in relation to dismissal from his employment.
____________________
Peter Healy
Equality Officer
21st June 2015