ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000450

Complaints for Resolution:

Date of Adjudication Hearing: 23/06/2016

Workplace Relations Commission Adjudication Officer: Ian Barrett

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, 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 stated that he worked in the UK for the parent company of the Respondent between May 2012 and January 2013. He then moved to Ireland and started working in their Dublin operation, starting in March 2013. He stated that prior to starting in Dublin he was told by UK and Irish based management personnel that he would be an employee in Ireland and not a self-employed contractor (as was the case in the UK). However, as soon as he started working in Dublin it was made clear to him that the only option was to work as an independent contractor. He accepts that he signed an agreement to this effect, but that he did not have an opportunity to read it fully and he was not given a copy of the signed document. The Complainant states that he did not fully understand his tax and other obligations as a self-employed contractor and as a result he incurred debts to Revenue, a situation that he claims caused him stress and health problems. He also claimed that he did not receive pay slips, he worked hours in excess of those allowed under the Working Time Act, he received a uniform and had deductions made from his weekly pay.                                                                                                                                                                                                       The Complainant stated that in February 2015 the Respondent told him that he was no longer an independent contractor but an employee working under a zero hours’ contract. He stated that he was not shown nor did he receive an employment contract, setting out the terms under which he was now employed.                                                                                                                                           The Complainant’s second complaint is for discrimination under the Equality Acts on the grounds of his race and that he was subject to discrimination in relation to unlawful treatment concerning promotion, his conditions of employment and his dismissal.   The claimant stated that in addition to his vehicle valeting and driving duties from the middle of 2014 he worked as the Garage Supervisor for an account the Respondent had with a major car rental company. He stated that he worked alongside five other management and supervisory personnel, four of whom were Polish and one Irish. The Complainant alleges that he was subject to isolation and bullying from his Manager and peer group and that he believes that this was due to his race. He alleged that this discriminatory behavior took the form of comments made behind his back, or complaints being made about this performance to his superiors without his knowledge. He referred to incidents where he felt isolated at work, that he was often ‘left out of the loop’ if changes were being discussed or made and situations where he was blamed for mistakes that he had not made or were not his fault.                The Complainant also alleged that due to difficulties with a number of their clients the Respondent had to make cutbacks that caused serious difficulty and stress for him and the other employees. He says that it became impossible to complete all his tasks in the time allocated and as a result complaints were being made “behind my back”.   The Complainant alleged that in May 2015 he asked for an additional work duty to help with his financial problems but in response he was told that he was being removed from his position of Supervisor for poor performance and he was transferred to other duties. He states that the following day his job was given to a brother of one of the other employees. The Complainant left the Company in December 2015 to take up another opportunity with a car hire firm, where he remains employed.

Respondent’s Submission and Presentation:

The Respondent was represented by a Senior Manager and a HR Officer from the UK parent company, both having responsibility for the Dublin operation. They confirmed that the Complainant was engaged by their UK parent Company as an independent self-employed contractor and he had signed an agreement to that effect on the 16^th May 2012. He left the UK based Company in January 2013 and moved to Ireland shortly afterwards. On the 11^th March 2013 he signed an agreement to provide services as a self-employed contractor to their Irish company, based in Dublin. Signed copies of both agreements were included in the Respondent’s submission. In both cases the Complainant was involved in providing car valeting and services associated with car valeting to the Respondent. In January 2015 for operational reasons the Respondent ceased using independent self-employed contractors and offered direct employment under casual hours’ contracts instead. The Complainant accepted these new arrangements. In their submission the Respondent provided a copy of their standard employment contract, but accepted that the Complainant was not provided with a copy until June 2015. They stated that this was an oversight and contended that when presented with the contract the Complainant did not sign or return it.

In relation to the second complaint the Respondent stated that they were not aware of any issues concerning discrimination, bullying or harassment at their Dublin operation, including the incidents involving and referred to by the Complainant in his complaint. They stated that their workforce was made up of several nationalities, their concern was for ability and performance and they would not tolerate individuals being treated differently because of their race. They stated that in certain roles an individuals’ command of English was important and as the Complainant had good English it was likely that he performed a more varied role that other operators with less proficiency, but that this did not amount to him being employed in a supervisory position. They also stated that the operators’ role would change depending on how busy they were, for example, at the end of the summer season they would not be as busy and operators might be asked to perform different duties.   Therefore, the Respondent refuted that the Complainant’s contention that he was demoted from a supervisory position. The Respondent also acknowledged that they had issues with one of their major clients and as a result resources were cut so that the situation led to an increased workload. They stated that they have a bullying policy (but admitted that it might be issued to the Management personnel only). They stated that they also have a grievance policy but the Complainant did not avail of it during his employment and therefore they were not aware of any of the issues raised in his written complaint or in his evidence. They accepted that occasionally there were disagreements between the various operators (and that the Dublin based Manager’s management style was occasionally abrupt).

Finally, the Respondent stated that the Complainant resigned his position by email on December 2015 so as to take up a better paid position with a car hire firm at Dublin Airport. He received all entitlements due to him and a copy of his P45.

Issues for Decision (Complaint 1):

Did the Complainant receive a copy of his terms and conditions of employment as per the lawful requirements of the Terms of Employment (Information) Act 1994?

Issues for Decision (Complaint 2):

Was the Complainant subjected to discrimination on the grounds of his race and treated unlawfully by being discriminated against in relation to promotion, conditions of employment or in his dismissal?

Findings and Reasoning:

In respect of the complaint under the Terms of Employment (Information) Act 1994 I find that the Complainant was not supplied with a contract of employment or written terms or employment within the time specified by law. I award the Complainant redress of four weeks remuneration in respect of this breach. Based on the Complainant gross weekly wage, the amount awarded under this breach is €1,760.

The second complaint refers to the Equality Acts and whether the Respondent treated the Complainant unlawfully by discriminating against him by reason of his race; in relation to his conditions of employment, he being demoted from a supervisory position (or not promoted to one), he being subjected to bullying and harassment, unequal treatment and that he was dismissed.

I am satisfied that the Complainant understood when he commenced with the respondent in March 2013 that it was under a self-employed contractor arrangement. He signed an agreement to this effect prior to starting, which was almost identical to the agreement he worked under with the Respondent’s UK parent company the previous year. It set out clearly in writing that it is not an offer of employment and that the Respondent company would not be responsible for making income tax or national insurance deductions. At the hearing the Complainant did not refute the Respondent’s assertion that he left his employment of his own accord to take up a new position with another employer. He also confirmed was still employed by that company.

I heard two different versions of events on the issues that might give rise to discrimination on the grounds of the Complainant’s race or his being subjected to discriminatory treatment in relation to promotion/demotion, conditions of employment and his departure from the company.

In order for he Complainant to succeed in his contention that the events complained of amounted to acts of discrimination he would be expected to produce some significant evidence of discrimination in order for me to draw an inference that persons of a different race to the Complainant’s would have been treated more favourably by the Respondent. Furthermore, his contention might have added weight were he in a position to provide a witness at the hearing, which he did not.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relations to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

In relation to the first complaint the respondent shall pay to the claimant the amount of €1,760 for the breach of the Terms of Employment (Information) Act. This award is for redress for an infringement of the claimant’s statutory rights and, therefore, is not subject to income tax as per Section 192A of the Taxes Consolidation Act, 1997 (as amended by Section 7 of the Finance Act, 2004).

In relation to the second complaint The Adjudication Officer finds that the claimant has not established a prima facie case of discrimination on the grounds of race and therefore the claim fails. The Adjudication Officer also finds that the claim of unlawful treatment in promotion, conditions of employment and in dismissal for discriminatory reasons also fails.

Dated:   13 October 2016