ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001417

Complaints/Dispute for Resolution:

Date of Adjudication Hearing: 21/07/2016

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 79 of the Employment Equality Act, 1998, and Section 13 of the Industrial Relations Act, 1969 and following the referral of the complaints/dispute to me by the Director General, I inquired into the complaints/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints/dispute.

The Complainant has been employed with the Respondent on a Fixed Purpose Contract of Employment from 24^th October 2014 until 18^th January 2016. He was given four specific Fixed Purpose Contracts when assigned a child client by the Respondent. The Complainant was paid €14.00 an hour and he has worked 16 hours over the 66 weeks of his employment. The Complainant referred complaints to the Workplace Relations Commission on 18^th January 2016 alleging the Respondent had breached Section 5 of the Terms of Employment (Information) Act, 1994, a complaint under the Industrial Relations Act, 1969 in relation to Bullying and Harassment, a complaint under the Employment Equality Act, 1998 that he was discriminated against on unspecified grounds and a complaint under the Protection of Employees (Part-Time Work) Act, 2001 that the Respondent had treated him less favourably than a comparable full-time employee.

Summary of Complainant’s Position.

Terms of Employment (Information) Act, 1994. The Complainant stated at the Hearing that there had been no change to this Terms and Conditions of Employment

Industrial Relations Act, 1969. The Complainant stated at the Hearing that he did not have a complaint under this Act.

Employment Equality Act, 1998. The Complainant stated at the Hearing that his complaint of discrimination was based on the Gender Ground. The Complainant works as an Advocate for the Respondent. Cases are referred to the Respondent by TUSLA. The break down in gender of cases referred is 60% female/40% male or 70% female/30% male. As a Male Advocate only male clients are referred to him whereas a Female Advocate has clients of both genders referred to them. Therefore the availability of work to him is curtailed and he is discriminated against on the gender ground.

Protection of Employees (Part-Time Work) Act, 2001.The Complainant stated at the Hearing that he did not have a full-time comparator as there are no full-time Advocates working with the Respondent.

Summary of Respondent’s Position.

Terms of Employment (Information) Act, 1994. The Complainant commenced employment on 24^th October 2014 and has been issued with four Fixed-Purpose Contracts of Employment as the Advocate for the Client and Family. The first contract was from 24^th October 2014 to 15^th July 2015. The second was from 12^th December 2014 to 10^th June 2015. The third was from 19^th June 2015 to 19^th December 2015 and the fourth contract was from 16^th July 2015 to 18^th January 2016. Copies provided to the Hearing. The Complainant informed the Respondent in January 2016 that he was not available for further work with the Respondent

The Respondent stated there has been no change to this Terms and Conditions of Employment.

Industrial Relations Act, 1969. The Respondent stated they have detailed Anti-Bullying and Anti-Harassment policies and procedures in place. The Complainant has never raised a complaint with the Respondent under their detailed Grievance Procedures.

Employment Equality Act, 1998. The specific complaint form refers to the Respondent operating a de facto if not de jure Zero-Hours Policy, that some employees received a lesser mileage rate and are excluded from policy and planning mechanisms. The Complainant did not reference these issues in his submission to the Hearing. In relation to the specific complaint outlined at the Hearing in relation to Gender Discrimination the Respondent stated that they adhere to the TUSLA Child Protection Policy and they match the needs of the client to the Advocate. This depends on the needs of the Young person referred. The Respondent stated they have a (Named) Irelands Child Protection Policy which is agreed with the HSE and Tusla on a bi-annual basis in line with the Children First Guidelines. They have also been drawn up in compliance with the Child Care Act 2001, Children First 2011, The National Guidelines for the Protection and Welfare of Children, and the HSE Protection and Welfare Practice Handbook. – These were provided to the Adjudication Officer post the Hearing as requested.

The Respondent stated that the burden of proof in the first place was on the Complaint under Section 85(a) of the Act.

Protection of Employees (Part-Time Work) Act, 2001. The Complainant has not named a full-time comparator in relation to this complaint

Terms of Employment (Information) Act, 1994. CA-00001996-002. The Complainant was unable to substantiate this complaint at the Hearing as he accepted his 4 fixed purpose contracts have not been changed. I find this complaint is not well founded.

Industrial Relations Act, 1969. CA-00001996003. This complaint was not substantiated at the Hearing by the Complainant in relation to Bullying and Harassment Policies and Procedures. The Complainant confirmed he had been provided with the Policies and he also confirmed that he had not made a complaint to the Respondent in relation to this Policy. I find that this complaint is not well founded.

Employment Equality Act, 1998. CA-00001996-004. The complaint form submitted by the Complainant under this Act related to Zero Hour Contracts – Mileage Rates and exclusion from Planning and Policy mechanisms. The Complainant did not refer to or seek to substantiate these complaints in any respect at the Hearing. The Complainant was requested at the Hearing to state the Discriminatory Ground on which the complaint was being taken as required by Section 8 (6) (c) of the Act. . He stated the Gender Ground and then proceeded to add a further complaint that he was discriminated against on the Gender Ground on the basis of the allocation of clients to him on the basis of their gender. The Respondent agreed to allow this complaint to be heard even though they had not been informed in advance of the Hearing of this complaint.

Section 85 (A) (1) of the Act 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.

There were no facts or evidence presented by the Complainant to the Hearing to substantiate his complaint of discrimination on the gender ground in relation to the allocation of child clients to him. It was the Complainant who informed his Employer that he would not be available for further work in January 2016. The Complainant has also failed to present facts that the Children First Policy whereby Male Advocates are restricted in having female child clients allocated to them discriminated against him.

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

Protection of Employees (Part-Time Work) Act, 2001- CA-00001996-005. The Complaint asserts that the Complainant has been less favourably in relation to his conditions of employment when compared with a comparable full-time employee. The Complainant was unable to name a comparable full-time employee. Section 7 (2) of the Act defines a comparable fulltime employee as “the employee and the relevant part-time employee are employed by the same employer or associated employer and one of the conditions referred to in subsection (3) is satisfied in respect of those employees.”. Section 7 (3) requires that both the Part-time employee and the named comparable full-time employee are employed on the same work under the same or similar conditions or that the work performed by one of the employees concerned is of the same or similar nature or that the work performed by the Part-Time employee is equal or greater In value to the work performed by the comparable full-time employee.

The Complainant was unable to name his full-time comparator for the purposes of the Act. I find the complaint is not well founded.

Decision

Terms of Employment (Information) Act, 1994 – CA-00001996-002

On the basis of my findings above and in accordance with Section 41 (5) of the Workplace Relations Act 2015 I declare the complaint is not well founded.

Industrial Relations Act, 1969 – CA-00001996-003. On the basis of my findings above and in accordance with Section 13 of the Industrial Relations Act, 1969 I declare this complaint is not well founded.

Employment Equality Act, 1998 – CA-00001996-004 On the basis of my findings above and in accordance with Section 79(6) of the Employment Equality Act, 1998 – 2011, I declare the complaint is not well founded.

Protection of Employees (Part-Time Work) Act, 2001 – CA-00001996-005. On the basis of my findings above and in accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare the complaint is not well founded.

Dated 5^th October 2016