ADJ-00000185

ADJUDICATION OFFICER DECISION

A Worker -v- A Transport Company

Adjudication Decision Reference: ADJ-00000185

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 26/02/2016

Workplace Relations Commission Adjudication Officer: Gerry Rooney

1. Procedure:
2. In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

3. Complainant’s Submission and Presentation:
4. The complaint refers to an allegation of discrimination contrary to Section 6 (1)(a) in that the claimant, a Polish national and a driver, alleged he was treated less favourably in a comparable situation on the grounds of his race in accordance with the protection under Section 6(2)(h); and contrary to Section 8(1)(b) in accordance to his conditions of employment.

3. The Claimant commenced work with the Respondent on 11^th May 2015 as an international truck driver.

3. The Claimant alleged that on 18^th July 2015 he was physically and verbally threatened and verbally assaulted by the Respondent following an incident in which the Respondent had moved/or had instructed the movement of the Claimant’s personal belongings (including his clothing, money, passport, phone, documents, and other personal effects) from the cab of his truck to another truck, and where this other truck had left the Respondent’s premises with the Claimant’s personal belongings. The Claimant contended this situation rendered him, as a Polish national working in Ireland, vulnerable as he lived in the cab of the truck when on driving duties, and therefore he had no home or belongings. In light of the Respondent’s alleged assaultive and threatening behaviour the Claimant had no option but to leave his employment with immediate effect.

3. In claiming discrimination the Claimant contended that he was only treated in this manner because he was a Polish national. The Claimant stated that he reported the incident to the Gardaí and returned later that day when the Respondent was not present to collect what he could of his personal belongings.

3. The Claimant further alleged that over 90% of the driver’s employed are Polish and that they are all treated in a discriminatory manner by the Respondent.

4. Respondent’s Submission and Presentation:
5. The Respondent advised that his entire driver workforce of 24 drivers is made up of non-Irish nationals, mostly Polish. Many of these drivers have been in employment for a number of years, some having started employment in 2003 and 2004. The Respondent suggested that this workforce profile does not support the Complainant’s assertions of a discriminatory attitude towards Polish nationals.

4. The Respondent denied that the Claimant was discriminated against, or that he would have abused physically, or otherwise, any of his drivers, or had any inappropriate contact with any of them as alleged. In his response the Respondent referred to the claim as being an outrageous allegation.

4. The Respondent contended that the Claimant worked for a month from 11^th May 2015 at which time the Claimant requested time to go home to Poland for a month. The Claimant returned on 14^th July 2015 where the Respondent observed the Claimant was difficult and behaving in a provocative manner. The Respondent further advised that on the morning of 18 July 2015 the Claimant broke the coupling braking device of his truck and as a result the truck could not be scheduled for trips that day until it was repaired. The Respondent organised for his mechanic to fix the truck and he told the Claimant that he was take another truck in order to complete a scheduled trip. The Respondent contended that he advised the Claimant to leave his personal belongings on the broken truck while the repairs were being effected. The Respondent said he came out to the yard later to see the Claimant was still there and he questioned him as to why he had not left. The Respondent said that an argument ensued and the Claimant told him at that time he was resigning. The Respondent then told the Claimant to leave and he went away to organise another driver. The Respondent denied using the language alleged by the Claimant or that he made any physical contact with him whatsoever.

4. At the hearing the Respondent acknowledged that the Gardaí had been in touch with him recently, but not as the time of the alleged incident. He again denied that he treated the Claimant in the manner alleged.

4. The Respondent presented a legal submission arguing that the Claimant has failed to prove an allegation of where he has been treated less favourably than another person on any of the nine grounds including race whatsoever, or elsewhere, or at all. The Respondent therefore contended that there is no contravention of Section 6 of the Employment Equality Act 1998.

4. The Respondent further argued that the Claimant has failed to prove an allegation under the Employment Equality Act 1998 of where he has not been afforded the same conditions of employment as his fellow employees. The Respondent contended that Claimant has been afforded the same conditions of employment as his fellow employees.

4. The Respondent also argued that, in accordance with Section 28 of the Act, it is a prerequisite that all claims must satisfy the criteria of having a comparator. The Respondent contended that as the Claimant has failed to identify such a comparator and accordingly has been no contravention of the Act.

4. The Respondent contended that the matter related to an issue regarding damage to a truck and was not a matter that fell under the employment equality act and therefore the Adjudication Officer was not entitled to hear the case as an equality complaint arguing that consequently the complaint must fail.

5. Further Evidence
6. In cross examination at the hearing the Claimant described that he had been appointed by the Respondent to excellent working conditions which allowed him work a month on and month off, and these conditions were more favourable than any other job an international truck driver could get. The conditions afforded the Claimant with the opportunity to spend every other month at home in Poland with his family.

5. The Claimant did not identify a comparator against which he could demonstrate he was treated less favourably.

5. The Claimant and Respondent disputed the facts around the events of 18^th July 2015, the day of the alleged discrimination. Notwithstanding it was clear that the Claimant’s truck had been damaged early in the morning and the dispute that occurred between the parties took place later that day. On the one hand the Claimant said his personal effects were moved to another truck and driven away under the instructions of the Respondent; whereas on the other hand the Respondent contended that the Claimant, when he was asked to take another truck to cover his scheduled run, that he insisted on moving his personal effects to a different truck that was scheduled for another run. When the Respondent became aware this happened he instructed the truck to return. In the interim the Claimant became difficult towards him and resigned.

6. Decision
7. Section 41(4) of the Workplace Relations Act 2015, and Section 79 of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint and determine whether the Claimant was discriminated in relation to his conditions of employment on the grounds of his nationality contrary to Sections 6 and 8 of the Employment Equality Acts 1998-2011.

6. Specifically the Act requires that a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant. Therefore without a comparator, the claim will fail.

6. The evidence presented upholds that the dispute which occurred between the parties related to the repair of a truck and the subsequent contention by the Claimant that the Respondent treated him in a discriminatory manner. However I am satisfied based on the evidence presented that the events which occurred were not as a consequence of the Claimant’s nationality. To the contrary the evidence further supports that the Respondent employs only non-Irish drivers who are mainly Polish, and where the Claimant has provided in his evidence that the Respondent had offered him very favourable terms and conditions of employment in May 2015, approximately two months before the incident.

6. The Claimant failed to provide a comparator to show how he was treated less favourably because of his nationality and the complaint fails.

Dated:   25^th May 2016