ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002403

Complaint for Resolution:

Date of Adjudication Hearing: 10th August 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 15^th March 2016, the complainant referred a complaint to the Workplace Relations Commission. The complaint is made pursuant to the Employment Equality Acts and refers to discrimination on grounds of race in the complainant’s workplace. The complaint was scheduled for adjudication on the 10^th August 2016.

The complainant attended the adjudication in person and was accompanied by a witness. The respondent attended the adjudication and was represented by Brian Dolan, Peninsula Business Services.

In accordance with the Employment Equality Acts 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.

Complainant’s Submission and Presentation:

The complainant outlined that he is an electrician and commenced working for the respondent in September 2015. He had been asked to work by the respondent to work for him after a difficult period with the respondent’s uncle. The complainant is a qualified electrician in his home country, a county outside of the European Union. He was required to complete an apprenticeship in Ireland and had been told by SOLAS that he could convert his qualification in one year, as opposed to the usual four years required. He required the signature and support of a qualified electrician in order to achieve this. The respondent had led him to believe that he would sponsor his apprenticeship. The complainant pressed him on this matter after he started working for the respondent and was also concerned to ensure that his employment was legitimate.

The complainant outlined that the respondent’s employees received pay slips while he did not. The pay slip he received was in March 2016 and then several were emailed to him at once. He outlined that the employment relationship came to an end in March 2016 when he was not paid and hungry. He had a discussion with the respondent, who told him to take his tools off the job. He said that he was owed wages but did not have a figure for how much was owed to him. He outlined that he had been sent on assignment around the country and stayed in B&B or hotel accommodation. There had been issues with the respondent paying for the accommodation and this had left him in a difficult position. On another occasion, he was asked at short notice to stay overnight in a mid-west town, causing him issues with his landlord as his rent was due that evening. At his request, the respondent spoke to his landlord by telephone but this did not lead to a satisfactory outcome; he had to later leave this accommodation.

The complainant said that while he worked full-time hours, he was given dockets showing that he worked part-time hours. This prevented him progressing with an apprenticeship. He also encountered difficulties in claiming social welfare because of delays with the respondent completing the necessary documentation. He outlined that he was now in the process of seeking an apprenticeship.

In cross-examination, the complainant said that he had only been issued with a contract of employment in January 2016 when this should have occurred earlier. He had to demand the contract and refused to work until he was provided with one. He acknowledged receiving pay dockets but this occurred at a late stage. It was put to the complainant that the respondent had sent an email on the 12^th December 2015 asking for BIC and IBAN details; the complainant said that he provided these in February 2016 and the delay was because the respondent insisted on a particular bank and that he had been homeless at this time. The complainant did not accept that the late payment of wages was explained by the respondent having to physically give him money; the respondent was often on jobs. The respondent’s evidence regarding the complainant’s hours; the intention to put the complainant on an apprenticeship and the overnight in the mid-west were put to the complainant.

In closing comments, the complainant outlined that this was a trade he loved and wanted to work in a fully qualified and legitimate capacity. The respondent had sent him to work on his own and he devised solutions in jobs. He was aggrieved in how he had been treated by the respondent.

Addressing the preliminary issue raised by the respondent, the complainant outlined that he had downloaded the form from the internet and sought to raise the bad treatment he had received at the hands of the respondent.

Respondent’s Submission and Presentation:

The respondent raised a preliminary point regarding whether there was jurisdiction to hear the complaint. This arises because the complaint was lodged on an Equal Status complaint form and the respondent was notified in accordance with that Act. It was submitted that the Workplace Relations Commission had exceeded its power in designating this case as an Employment Equality matter. It was submitted that this constituted the WRC giving legal advice to the complainant and this was not permissible. This had been an issued raised in pre-adjudication correspondence and no response furnished by the WRC or by the complainant. The respondent relied upon the decision of MacMenamin J. in Louth/Meath Education and Training Board v The Equality Tribunal [2016] IESC 40, where, at paragraphs 43 and 44, the Court held that findings made by the High Court in the case were pre-emptive. Those findings related particularly to the effect of the EE1 form.

In addressing the substance of the claim, the respondent confirmed that he was a sole trader and was in the process of incorporation. He started business in 2015 and was getting the business going. He had one full-time member of staff, a named colleague, who received his papers in 2016. The complainant was employed part-time and had initially been in a casual basis. Between September and December 2015, the respondent said he wished to test the complainant’s skills so he only officially began in January 2016. No P60 was provided to the complainant for 2015. The complainant had been paid in cash until February 2016 when he was paid by ETF. The wage was minimum wage and he had changed payment from monthly to weekly. The respondent outlined that as the complainant was a non-EU citizen, he had to complete an apprenticeship. This required him to work a full-time post and the respondent did not have such a post available. He signed documentation to allow the complainant receive a social welfare payment to supplement his part-time hours; he denied deliberately being late in signing and submitted the documents.

In respect of the mid-west overnight, the respondent said that the complainant had asked to stay overnight and that he had spoken with the landlord at this time. He denied that the complainant had been without money in March as he had been paid the week before and would have also received the subsistence payment when staying away from home. A grievance meeting had taken place on the 22^nd March 2016, but this did not lead to a conclusion as the respondent received notice of these proceedings. The respondent outlined that the complainant’s job was still available and that this was a part-time post.

In closing comments, the respondent said there had been allegations of mis-treatment but no evidence of discrimination on grounds of race. The complainant had not established a prima facie case in accordance with section 85A of the Employment Equality Acts. The issues raised by the complainant had been resolved by the respondent; these included the contract, pay slips, the apprenticeship, the issue of a cheque bouncing, the overnights and the documents for the Department of Social Protection.

Findings and reasoning:

The first issue to address is the preliminary objection raised by the respondent. It is submitted that there is no jurisdiction to hear this complaint as it was made on an historical Equal Status complaint form, while, in substance, it is an Employment Equality claim. The respondent relies on the decision of the Supreme Court in Louth/Meath Education and Training Board v The Equality Tribunal, handed down on the 13^th July 2016. It is submitted that the Workplace Relations Commission has provided the complainant with impermissible legal advice in classifying the complainant as one made pursuant to the Employment Equality Acts.

Having considered the arguments advanced on the preliminary matter, I am satisfied that I have jurisdiction to decide this claim. It is the case that the complaint was referred on a complaint form headed “The Equal Status Acts 2000 – 2012”. This form, like the EE1 form and the WRC complaint form, are non-statutory forms, devised to facilitate the advancement of claims. It is clear from the contents of the complaint form that this matter relates to the complainant’s workplace. The email attached to the form is titled “work incidents” and details issues arising in the workplace. The respondent accepted that he had not been prejudiced by the referral of the complaint form in the manner submitted.

Addressing the substance of the claim, it is clear from the evidence and documentation submitted that the complainant was aggrieved with his treatment in the workplace. Amongst other issues, he raises his entitlement to a contract of employment, pay slips, access to an apprenticeship and certain overnights. The complainant outlines that he felt excluded visiting locations around the country and amongst certain colleagues. He attributes this issue to race. He is a citizen of a Caribbean nation and seeking to work in his established trade in this country.

This is a claim of discriminatory treatment in the workplace. The question is whether the issues raised by the complainant amount to discrimination on grounds of race. There were certainly significantly employment law issues arising in the complainant’s employment in particular in the period of September to December 2015. This period was categorised as a casual or trial period; it was, however, a period of employment. Some of these issues were rectified in early 2016, but not to the complainant’s satisfaction. Taking the circumstances of this case, I do not think that the breaches identified by the complainant suggest discrimination on the race ground. Even taking this evidence at its height, I find that there is insufficient connection between the issues raised and the question of race in order to raise the inference of discrimination.

For the sake of clarity, I have not considered or made findings around the ending of the complainant’s employment.

It is obvious that the complainant is a skilled electrician; the correspondence from the respondent includes praise for his work. The complainant seeks to obtain the necessary qualifications to work in Ireland without impediment. In respect of this case, however, I must conclude that the complainant does not succeed in the claim of discriminatory treatment on grounds of race.

Decision:

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.

Pursuant to the findings contained in this report, I decide that the complainant does not succeed in the claim of discriminatory treatment on grounds of race.

Dated:   9-11-2016