ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000124

Complaints for Resolution:

Date of Adjudication Hearing: 5th May 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 5^th October 2015, the complainant referred complaints pursuant to the Employment Equality Acts to the Workplace Relations Commission. The complaints were scheduled for adjudication on the 5^th May 2016. The complainant was in attendance at the adjudication and was accompanied by a friend. Two witnesses attended for the respondent and it was represented by Tiernan Doherty, IBEC.

At the outset of the adjudication, I outlined to the parties that I had previously heard a complaint from the same complainant regarding a previous employer, the transferor of a security service now operated by the respondent, the transferee. I outlined that the complainant had been successful in this earlier Employment Equality complaint.

In accordance with Section 79 of the Employment Equality Act, 1998 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

The complainant is a security guard and works for the respondent. He is assigned to stores of a large supermarket chain. He outlines that the most recent date of discrimination was the 18^th June 2015. He indicates that he was subject to discriminatory treatment on grounds of race in not being provided with a contract of employment or a uniform and in not being allocated hours of work. He also states that he was subject to harassment by the respondent and lodges an equal pay claim. A decision issued by a Rights Commissioner had not been complied with and there was a delay in reinstating him. He had been asked to sign a backdated contract that contained the wrong information. There had been one week in August 2015 when he had not been paid.

The complainant further outlined that he had not been allocated work between the 24^th December 2014 and the 11^th August 2015 and that he should be compensated for this. He outlines that he is now allocated work further away from his home, meaning that he has higher expenses in travelling to work. At the large store where he now works, he states that 90% of his colleagues are paid breaks, including one named comparator. He is not paid breaks. He acknowledged that one or two Irish colleagues are not paid breaks. He outlined that he is being penalised by the respondent for not signing the contract provided by the respondent.

The complainant also raised issues of a delay in paying him wages as well as the provision of paid annual leave. He said that he ought to have been allocated work closer to his home, naming a store in which he had previously worked. He said that he was not paid a Sunday premium and that his grievances were ignored. As well as the issue of unpaid breaks, he outlined that during his breaks he was not able to leave the building and had to stay on radio. He also said that he had been allocated work for 12 consecutive days over Christmas by the site manager. He had not been provided with annual leave over Christmas and Easter. The complainant outlined that he had been victimised because the shifts allocated to him meant that he had to leave the job.

The complainant outlined that security at the store was provided by a mix of respondent security staff and staff employed directly by the supermarket. There was a 50-50 split between Irish and non-Irish staff. There were three Polish guards employed by the respondent on site.

In reply to the respondent, the complainant said that he had already raised the issues of his unpaid Sunday premium and night work, but these issues had not been addressed. The complainant further referred to a job advertisement of the respondent of the 16^th June 2015 where they indicate that they pay JLC rates. In respect of the contract, there was no reason to have a May date on the contract of employment and this was only shown to him in August. The date of the relevant Rights Commissioner hearing was the 18^th June 2015. In respect of breaks, the complainant said that he was a key holder and had to take his breaks in the canteen and be on radio. While this was not always the case, it did happen. He had raised this issue in an email with the respondent. He named a comparator (a Polish colleague) who was paid breaks when he was not paid breaks. He also said that there were more convenient locations of work for him to be assigned to.

In written submissions, the complainant states that he was discriminated against by the respondent in not getting a job and in respect of the following matters: lack of a proper contract, uniform and a two-month delay in finding him a work placement. He raises his entitlement to payment during this time as well as travel expenses and issues related to working time (rostering, annual leave, rest periods and paid breaks). He provides references from the store in which he now works as well as pay slips, rosters and correspondence exchanged by the parties.

Respondent’s Submission and Presentation:

The respondent outlined that the complainant has not established a prima facie case of discrimination in advancing his claim. It outlined that the store where the complainant had initially worked scaled back its hours as it was no longer open for 24 hours. At the time of the transfer of undertaking, the complainant had been assigned to a different store, but this was not one of the stores which the respondent had won a tender to provide services to. This and the complainant's original store were now in the hands of a competitor security provider.

Between December 2014 and August 2015, there had been a dispute over the rate of pay due to the complainant. While this had been referred to a Rights Commissioner, what had issued was only a suggestion. The respondent did not owe a back payment to the complainant. From October 2015, the complainant was at work and assigned to a large supermarket where he was on €10.75 per hour.

The respondent outlined that it employed some 300 personnel, of which 50% were Irish and 50% were not. The complainant is not paid breaks and annual leave is paid on rolling basis. It was open for employees to request an advance payment but this could lead to a later shortfall in income. It was practice for the respondent to hold a week back so that wages were paid nine days in arrears across the board. It did not accept that the complainant could not go off radio during breaks. It outlined that the contract of employment was dated May as this was when the Rights Commissioner suggested the complainant return to employment. The return to work did not occur until later.

In respect of victimisation, the complainant outlined that there was no substance to this claim. The respondent had already righted a wrong in respect of rates of pay. The complainant had been treated in the same way as others.

The respondent’s written submissions refer to an appeal to the Labour Court, held on the 28^th April 2016 (a week before this adjudication). It acknowledges that it owes the complainant the amount of €1,630.72 and submits that the complainant’s TUPE appeal should fail.

Findings and reasoning:

There are two claims to be determined in this adjudication. One is the claim of discriminatory treatment on grounds of race, including the complaint of harassment. The second is the claim relating to equal pay. The complainant is a security guard and was included in a transfer of undertaking from a security provider to the respondent. He has taken separate proceedings regarding employment law matters arising from his relationship with the respondent. According to the parties, these matters were before the Labour Court, on appeal, a short time before this adjudication.

It is obvious from the submissions that there has been a protracted dispute between the parties regarding the complainant’s return and location of work, as well as the terms and conditions of his current placement at a large supermarket. The complainant states that he is owed redress and the respondent , in submissions, accepted that it owed the complainant the amount of €1,630.72.

My role in this adjudication is to determine whether the two claims of breaches of the Employment Equality Acts are well-founded and in the first instance, has the complainant established a prima facie case of discrimination. Having considered the oral and written submissions of the parties, I find that the complainant has not established facts that raise a prima facie case of discrimination on grounds of race. I reach this finding for the following reasons. In respect of the claim of discriminatory treatment, it is clear that the complainant has grievances regarding his treatment at the hands of the respondent, but little relates to the issue of race. He acknowledges that the respondent employs many Irish and non-Irish staff. He refers to a comparator, who is Polish, as well as Irish colleagues who are treated the same as him. I have regard that this dispute arose in which the security personnel assigned to a large supermarket chain was subject to a transfer of undertaking, which led to two security providers taking over individual stores. The chain also reduced the hours on certain large stores. The complainant now works with colleagues employed by the respondent but also with security staff directly employed by the supermarket. Taking the facts presented by the complainant at their height, I find that they do not amount to a prima facie case of discrimination and nor do they show harassment.

In relation to the equal pay claim, the complainant states that he ought to have been on a higher rate of hourly pay and that there were breaches of working time and the less convenient workplace. Again, I find that there were insufficient facts to ground a prima facie case of discrimination. It is apparent that there was a dispute over what the complainant’s rate of pay would be after his return following the transfer of undertaking. Even if the complainant is correct regarding the merits of his pay claim, there are insufficient facts to indicate that the difference in pay is related to race. It follows from these findings that the complaints do not succeed.

Decision:

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

CA-00000070-001

In relation to the claim of discriminatory treatment and harassment, I find that the claim is not well-founded.

CA-00000070-002

In respect of the equal pay claim, I find that the complaint is not well-founded.

Dated:   13/10/2016