1. DISPUTE
1.1. This dispute concerns a claim by Marin Chitii that he was discriminated against by P & J Security Services on the grounds of nationality and family status contrary to section 6 of the Employment Equality Acts in relation to conditions of employment in terms of section 8 of those Acts.
1.2. The complainant referred a claim to the Director of the Equality Tribunal on 3rd May, 2015 under the Employment Equality Acts. On 4 April 2016 in accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission referred 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. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on April 12th 2016.
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 Case
2.1. The complainant identified four areas under which he wished to pursue his complaint. The first related to a difference in his pay as between him and a co-worker who was an Irish citizen. The complainant was paid €10.01 per hour while the comparator was paid €10.75.
2.2. The other causes of complaint related to his having been requested to provide more information regarding the fact that, having previously held a Moldovan passport only he now had a Romanian passport. He alleged that this represented a view being held by the respondent that he was a member of the Romanian traveller community.
2.3. Thirdly he says that he was discriminated against in respect of the allocation of annual leave. This related to a single incident in 2014 when he was refused permission to take annual leave in a single block of four weeks. This grounds the complaint on family status grounds.
2.4. Finally he complained about a conversation with a supervisor who, the complainant says, made various threats against him.
3. Respondent’s Case
3.1. The respondent says that it applies the relevant JLC rates for its sector and that this alone explains any disparity between the complainant and the comparator who has longer service. It also says that this matter has been the subject of a previous adjudication by a Rights Commissioner which found in its favour. Further the complainant is now on the rate of €10.75 having met the relevant service qualification.
3.2. Regarding the request for further information on the changed passport the company pointed out that the complainant’s previous passport required an employee to have a current work visa as he was not an EU citizen while a Romanian passport holder did not have that requirement. It said the request for further detail on the change of passport was purely an administrative act designed to verify that the company was in compliance with the law. It categorically rejected any suggestions that it saw the complainant as a Romanian Traveller which it describes as ‘a complete fabrication’ and ‘quite an assumption’. It employs other Romanian nationals and one is a senior manager responsible for all contracts in the Dublin area.
3.3. In relation to the annual leave policy the respondent says it employs a wide diversity of nationalities and that it has been flexible in the past in facilitating on an individual basis employees who wished to return to their country of origin where this involved long haul travel, for example. In the specific case of this complaint the leave was refused purely for operational reasons. The company has since decided that, as a result of abuse of the policy, with effect from this annual leave year it will operate a strict policy of a maximum of two weeks’ leave at a time.
3.4. Regarding the alleged threats made by the supervisor the respondent said it had no knowledge of them. The company complained that the complainant was not availing of its internal machinery to process grievances and called on him to do so.
4. Conclusions and findings.
4.1. The complainant has not made out a sufficient case to support his claim. He did not appear to accept the position regarding the age-related incremental scale attaching to the then applicable JLC rates but this was clearly the explanation for the differential in the pay rates. It is all the more surprising that the complaint reached this stage as the complainant has now been placed on the point of the scale he claimed as he has acquired the qualifying service.
4.2. In respect of the request for further information regarding the passport this was a purely administrative request and the complainant’s reaction to it seems excessive. There was no evidence that the complainant was treated less favourably in relation to how any other person was or might have been on any of the grounds of claim. The suggestion that the company might have seen the complainant as a ‘Romanian Traveller’ is entirely baseless.
4.3. Regarding the application for annual leave no evidence of any sort was adduced to suggest that this represented a case of less favourable treatment on either of the grounds claimed. The company declined to accommodate the complainant with his request on that single occasion only, which it is entitled to do under the Organisation of Working Time Act (subject to this not being discriminatory). While other employees of varying nationalities had been accommodated on a case by case basis there was no evidence that, in the case of the complainant it was motivated by family status or nationality criteria. Indeed, on the contrary it operated to facilitate employees requiring to return to their countries of origin where this required long distance travel.
4.4. Regarding the processing of future grievances I endorse the recommendation to the complainant to fully avail of the respondent’s internal grievance machinery and the respondent should take steps to familiarise the complainant with those procedures.
DECISION
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: • the complainant has failed to establish a prima facie case of discrimination in relation to conditions of employment on the race or family status grounds, and I dismiss the complaint.
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Pat Brady
Adjudication Officer/Equality Officer
31 May 2016