EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-138
PARTIES
Khizar Jan
v
Noonan Services Ltd. (Represented by Management Support Services Ltd.)
File reference: et-157607-ee-15
Date of issue: 5 October, 2016
1. CLAIM
This dispute involves a claim by the complainant that he was discriminated against by the respondent in respect of his race in relation to his working conditions.
2.1 The complainant referred a complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 9 July 2015. In accordance with his powers under the Acts the Director General of the Workplace Relations Commission delegated the complaint to me - Valerie Murtagh, an Adjudication Officer/Equality Officer on 21 March 2016, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Employment Equality Acts. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 9 June, 2016. This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant, who is a Pakistani national, worked as a security officer for the respondent. He submits that on 10 December 2014, he received a telephone call from one of the shops in the Retail Park named H where the company provide security services. The shop assistant in question stated that someone had stolen car batteries from the back of the shop. The complainant advised her he would check the CCTV footage and would let her know if he finds out who had took the batteries. The complainant states that he checked the security camera and found out that it was his supervisor who took the batteries and left them at the back of the Retail Park. When his supervisor came into work that day around 1 pm, the complainant states that straight away he was told by his supervisor to go out and start cleaning the Retail Park. The complainant states that while he was carrying out cleaning duties, he received a call from his supervisor on his radio that he needed to come back. When the complainant returned, he states that his supervisor looked very stressed and worried. The complainant states that on his way home from work he texted his supervisor and informed him that he knew about the stolen batteries. His supervisor replied to his text stating that the Store Manager of H told him to get rid of the batteries as they were old and put them into storage but the complainant states that this could not be true as none of the other staff members knew about it. The complainant submits that to cover his tracks, his supervisor tampered with the CCTV system and zoomed in on a particular store in the Retail Park to its maximum. The complainant states that not long after the incident, his supervisor went on Christmas holidays and when he returned to work he took a number of security personnel including the complainant off the rosters. The complainant contends that prior to this change in his working hours, he had worked a 39 hour week but his hours were reduced from January 2015 onwards. The complainant contacted management regarding the reduction in hours and management got back to him saying he was being moved to another site. The complainant was shocked and disappointed. The complainant stated that management informed him that it had a policy of rotating security personnel around after a period of time. The complainant maintains that because of his knowledge of his supervisor stealing batteries, he was discriminated against and moved to a different site.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent states thatthe complainant was employed as a security officer and was assigned to work at a particular Retail Park. The complainant was one of a number of security officers who were assigned to that site and his responsibilities included providing security services, carrying out cleaning duties and any other duties that arise from time to time. The respondent states that in 2014 a number of issues arose in relation to the complainant’s performance that came to the attention of his supervisor. In some instances the respondent’s clients started to make complaints about the complainant’s performance. His supervisor noted a number of problems with the complainant that were causing difficulties including the following;
10.2.2014- complainant was spoken to about the barrier being up in the air all the time and respondent’s client complained regarding this matter.
15.03.2014-complainant made no attempt to leave the gatehouse and move a number of boys who were on site at Store C (client complained)
15.07.2014-complainant failed to clean certain areas which he was assigned to clean.
25.07.2014-complainant caught smoking in the office.
13.08.2014-complainant told a member of staff not to come to work which he had no authority to do.
25.08.2014-complainant attempted to stop two other security officers carrying out their scheduled routines.
13.09.2014-client complained that the service yard and carpark were in an unacceptable condition and the barrier had been left up in the air.
13.10.2014-complainant said he no longer wanted to do cleaning duties.
29.10.2014-complainant was seen smoking whilst cleaning and also left the barrier up in the air.
27.11.2014-supervisor noticed the barrier was in the air again and complainant on his phone instead of doing his cleaning duties.
29.11.2014-staff member complained because complainant was telling him to do cleaning work whilst he remained sitting in the gatehouse.
06.12.2014-complainant taking too long on his breaks and was leaving work to be done by his colleagues.
12.12.2014-supervisor had to speak to complainant regarding the service yard and car park being unclean.
15.01.2015-complainant constantly on his phone while out patrolling.
18.01.2015-supervisor received complaints from a client regarding poor patrolling by the complainant on 16 and 17 January.
23.01.15-complainant’s work colleagues made a complaint about the complainant not doing his duties and staying in the office all the time.
28.01.15-it was discovered that the barrier was up and there was a strong smell of smoke in the office.
04.02.15-the complainant had a friend in the office for about an hour and a half and was not carrying out his duties.
09.02.15- complainant was seen constantly on his phone whilst patrolling.
15.02.15-in response to a complaint from the complainant that he was not getting enough hours, he was informed by the supervisor that he needed staff who carried out their full duties.
16.02.15-a member of staff complained that the complainant was interfering with him while carrying out his duties.
19.02.15-supervisor had to speak to the complainant about his poor behaviour on site
06.04.15-complaint from a member of staff that the complainant was constantly talking to him about religious issues and was distracting him from his work.
10.04.15-complaint from another member of staff that the complainant was constantly on his phone and was not helping out other members of staff.
4.2 The respondent submits that as a result of these ongoing difficulties, the supervisor had a discussion with his Manager, Head of Security about the complainant and it was decided that it would be best to reassign the complainant to a different site. The supervisor rang the complainant and informed him that he was required to attend a meeting and it was in relation to him being transferred to an alternative site. The complainant responded by shouting and then abruptly hanging up. Subsequently, the complainant did not make himself available for work and in October 2015 submitted a request for his P45. The respondent submits that the complainant is suggesting he was discriminated against on race grounds as a result of an incident relating to stolen batteries. The respondent refutes this assertion and submits that the supervisor had placed the batteries in storage in a room at the back of the Retail Park at the request of the Store manager. The respondent states that, in this regard, the supervisor was requested to remove old batteries somewhere safe until they could be removed off site. The respondent submits that at no time was the supervisor acting in any way incorrectly and at all times was acting under the instructions of the Store in question who had written to the company confirming these instructions. The respondent maintains that the complainant appears to be relying heavily upon this incident and suggesting it was because of this incident that the supervisor began reducing his working hours. The respondent states that working hours were reasonably consistent amongst all employees.
4.3 The respondent submits that as outlined above, there were a number of issues over the years 2014 and 2015 in relation to the complainant’s work performance. The respondent contends that the complainant’s work colleagues were finding it increasingly difficult to work with him as he was constantly interfering with their work routine. The respondent submits that as a result of these performance issues, in April 2015, the supervisor deemed it necessary to talk to his manager, Head of Security and a decision was made that the complainant should be moved to an alternative site. The respondent submits that the complainant has adduced no evidence to demonstrate that he was treated less favourably than another employee because of his race.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issue for decision is whether or not the complainant was discriminated against on grounds of race in his conditions of employment. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule".
5.2 Having adduced the totality of the evidence on this matter and considering the complete divergence and conflict regarding the evidence from the complainant and that of the respondent; I find the evidence of the respondent more cogent and convincing. Although the complainant stated he was discriminated against on race grounds, he has not provided any evidence to corroborate this assertion. At the hearing, the complainant alleged that his hours were reduced and he was informed he was being moved to an alternative site after he discovered that his supervisor had apparently stolen batteries from a store. The respondent submitted that, in general based on the time sheets for security personnel on site at the juncture; working hours were reasonably consistent amongst all employees with only some slight variations. In relation to the batteries, the respondent stated that the store manager in question requested the supervisor to take the old batteries away into storage until they could be safely removed off site. The respondent submits that at no time was the supervisor acting in any way incorrectly and at all times was acting under the instructions of the Store in question who had written to the company confirming these instructions. In my view, given the issues with the complainant’s work performance and his serious allegation regarding the supervisor stealing goods, the work relationship clearly became fractured and in discussing the issue at management level, a decision was made to move the complainant to an alternative site as a result of events. On balance therefore given the totality of the evidence adduced on this matter, I cannot find any evidence to substantiate the complainant’s claim that he was treated less favourable in his conditions on account of his nationality. Accordingly, I find that the complainant has not demonstrated a prima facie case of discrimination on grounds of his race and therefore his case fails.
6. DECISION OF THE EQUALITY OFFICER
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts; I find that the complainant has failed to establish a prima facie case of discrimination on race grounds in his conditions of employment.
_____________________
Valerie Murtagh
Adjudication Officer/Equality Officer
5 October, 2016