ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002231

Complaint for Resolution:

Date of Adjudication Hearing: 26/07/2016

At:                          Workplace Relations Commission, Dublin 4.

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 79 of the Employment Equality Act, 1998, and 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.

Background

The Complainant was employed as a Security Guard with the Respondent from 19th February 2016 until his employment was terminated on 29th February 2016. The Complainant was paid €10.75 an hour. The Complainant referred a complaint of discrimination on the Family Status Ground to the Workplace Relations Commission on 3rd March alleging he had been dismissed when he opposed discrimination.

Summary of Complainant’s Position.

The Complainant stated that he commenced employment on 19th February 2016 as a Security Guard on a named campus. He was on duty on 25th February 2016 and at 5am after doing a quick patrol around the building he went to the Reception Area when another named Security Guard called him saying “Where is my car”, where is my car”. It transpired that the Complainant had left the patrol van in the wrong place. The Complainant informed him it was just an accident on his behalf. The Complainant stated that the other named Security Guard shouted “accident. What if I hit your child and said it was an accident”.

The Complainant stated he finished his day shift, cycled home when he realised he had left his bag with his phone charger in it at the security hut. He stated he cycled to the security hut at 5am on the morning of 29th February 2016. There was no one in the hut. He stated he placed a mask of Barack Obama on his face with the intention of having fun with the Security Guard on duty who was the same named Security Guard cited in the alleged incident of 25th February 2016. The Security Guard appeared and appeared frightened so he pulled the mask off, collected his bag and left the security hut.

He received a phone call from the Operations Manager at 9.44am seeking a meeting at 11am in relation to the incident that morning at 5am. He attended a meeting with the Operations Manager who questioned him concerning the wearing of a mask at the security hut when he was not scheduled to work.

He was dismissed with immediate effect.

The Complainant stated that it was the decision of the other named Security Guard to “fear”. That was his choice when he saw the Complainant wearing a mask in the Security Hut. He stated he was not aware there was any law against having a mask on for 15 seconds for creative purposes.

Summary of Respondent’s Position.

The Respondent provides Security Services to clients on a contract basis. The Complainant was employed from 19th February 2016 and was assigned to work with another Security Guard to a named campus.

On 29th February 2016 the Operations Manager received a phone call from a named Security Guard who was assigned to work on the Campus. He explained that at approximately 05.00 hours the same morning a person had entered the security hut wearing a full face mask of Barack Obama, and making gestures with his fingers as if to shoot him. When the person was challenged it was the Complainant, who was off duty.

The Operations Manager made contact with the Complainant and it was agreed to meet at 11am the same day. At 10am the Manager received a call from the Complainant stating his child had been injured by a car and had to go to hospital. It was agreed to defer the meeting. However the Complainant attended at 11am. The Manager made enquiries regarding the Complainant’s child but he did not respond. They proceeded to deal with the incident that took place that morning at 5am. The Complainant explained that he had left his phone charger in the hut the previous day and had cycled to the security hut that morning at 5am and he confirmed that he decided to put on the mask and that he was aware of the name of the security guard on duty. He stated he wanted to see if the other named security guard had “balls of steel”, as he was always telling people about his army life. The Complainant became very agitated, stood up and started waving his arms in what the Manager perceived to be a threatening manner.

It was decided to terminate the Complainant’s employment and the Complaint was informed that he had failed his probationary period.

Findings. Employment Equality Act, 1998. CA-00003015

Section 6 (1) of the Act defines the basis on which discrimination can be taken to have occurred. This states as follows - Discrimination shall be taken to occur where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection 2…………(2) as between any two persons, the discriminatory ground are ….(c ) that one has family status and the other does not.

Section 85 (A) (1) of the Act places the Burden of Proof to establish facts from which discrimination may be inferred on the person making the complaint. It provides as follows: Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

The Complainant has failed to provide any facts to the Hearing to substantiate his complaint that he was discriminated against on the Family Status Ground when he was dismissed by the Respondent.

Decision: CA-00003015.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

The Complainant has not satisfied Section 85 (A)(1) of the Act in that he has not established facts to establish that he was discriminated against by the Respondent on the basis of his Family status.

It is clear from the evidence from both Parties that the Complainant was dismissed during his probationary period when he had been working for a number of weeks due to his own behaviour in going to a Security Hut and placing a full face mask of Barack Obama on his face, entering the security hut in which another employee was working and in circumstances where the Complainant was not scheduled to work, at 5am on the morning of 29th February 2016.

In accordance with Section 79 (6) of the Act I declare the complaint is not well founded.

Date: 07/11/20106