Complainant

Respondent

Anonymised Parties

General Operative

Retail}

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00008869-001

20/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00008869-002

20/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00008869-004

20/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00008869-005

20/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00008869-006

20/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00008869-007

20/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00008869-008

20/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00008869-009

20/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00008869-010

20/12/2016

The Complainant has been assigned from a Recruitment Agency, named, to the Respondent Company as a General Operative from 20th May 2016. He is paid €10.04 an hour and works between 35 and 40 hours a week. The Complainant lodged complaints on 20^th December 2016 alleging the Respondent had breached the Terms of Employment (Information) Act, 1994 in that he had not been provided with a written statement of his Terms and Conditions of Employment – a complaint under S.I. 36 of 2012 in relation to night working – a complaint under the Organisation of Working Time Act, 1997 in relation to payment for annual leave, payment for Public Holidays, and payment of a Sunday Premium, a Complaint under the Payment of Wages Act, 1991 in relation to payment for travel and a complaint under the Employment Equality Act, 1998 – 2015 that he had been discriminated against on the grounds of race and age.

The following complaints were all withdrawn at the Hearing –

Complaint under the Terms of Employment (Information) Act, 1994

Complaint under the Payment of Wages Act, 1991

Complaints under S.I. 36 of 2012

All complaints under the Organisation of Working Time Act, 1997

The Complaint under the Employment Equality Act, 1998 alleging discrimination on the grounds of age.

The following complaints were also withdrawn at the Hearing

Complaints registered under ADJ 00006602 – ADJ 00006614 – ADJ 00006617 – ADJ 00006621.

The Complainant named four direct hire employees of the Company who are all paid €10.20 an hour while the Complainant is paid €10.04 an hour. The Respondent Company had advertised general operative positions in English and Polish but not in Lithuanian which is the employee’s Language. They held a recruitment day in Poland and these four named Polish workers were recruited directly by the Respondent at higher rates of pay. The Complainant was not offered a job directly with the Company and he was not afforded any reason as to why he did not get an offer of a position. He did apply for the position.

In relation to his conditions of employment he is paid €10.04 an hour as against €10.20 for the four named employees – he does not receive the 20% night shift allowance when he works the night shift – he does not receive the weekly productivity bonus which he receives on a monthly basis.

The Complainant is employed by a named Recruitment Agency and has been assigned to the Respondent Company since May 2016. The Respondent recruits via three streams, advertising domestically for direct employees, job fairs both at home and abroad for direct employees and hiring agency workers who have been placed with the Respondent. The Respondent has a large number of warehouse employees consisting of Irish, Polish, British, Latvian, Lithuanians, Croatians, Nigerians, Romanians, Czech, Slovakian and Spanish including ten Lithuanians.

In 2016 the Respondent Company decided to create a Panel of suitable candidates for direct hire. A job fair was held in Poland and another in Croatia. The Respondent received the Complainant’s CV in July 2016 – copy provided. The Recruitment Agency were   contacted to advise the Complainant they were considering him for a permanent position in a named Depot and the first stage would be to attend a pre-employment medical and he was advised of this. The Complainant did attend for a medical on 22^nd September 2016 and he passed this and was placed on a Panel for consideration for direct employment with the Respondent Company.

IBEC on behalf of the Respondent referenced significant number of cases of both the Labour Court, High Court and Supreme Court in support of their argument that the Complainant had not been discriminated against and that the Complainant had not shown under Section 85A that discrimination had occurred.

On the basis of the evidence and written submissions from both Parties and following cross examination by the Adjudication Officer at the Hearing I find as follows: Section 85A of the Employment Equality Act, 1998 – 2015 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” The Labour Court has held in Mitchell v Southern Health Board DEE 1/2001 has held as follows: The first requirement is that that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.

The Complainant advanced an argument that the Respondent Company where he was placed ran recruitment fair in Poland and allegedly recruited four named direct employees and that the Complainant was not afforded an opportunity to apply for these positions of direct employee with the Respondent. The evidence was that three of the named comparators were Polish and the fourth was Croatian. The evidence also was that that the Complainant was informed through his Recruitment Agency that he was being considered for direct recruitment by the Company but that this required a pre-employment medical. Both Parties confirmed that the Complainant did attend for a pre-employment medical on 22^nd September 2016 having applied for a General Operative Position as an employee of the Respondent Company. The evidence shows that the Complainant passed this pre-employment medical and that he was placed on a Panel for direct hire by the Respondent. The evidence was that the Complainant left the employment on 22^nd January 2017 before he could be appointed.

However Section 9 of the Protection of Employees (Temporary Agency Work) Act, 2012 provides as follows – “The following provisions shall, in so far only as they are inconsistent with this Act, not apply to an agency worker to whom this Act applies: (a) sections 7 and 8 of the Employment Equality Act, 1998…..”

Section 7 and 8 of the Employment Equality Act, 1998 refer to Section 7 – Like Work and Section 8 –           Discrimination by Employers in relation to (a) access to employment (b) conditions of employment (c) training or experience for or in relation to employment (d) promotion or regrading or    classification of posts.

The evidence of both Parties was that the Complainant is an Agency Worker and is employed on a Contract of Indefinite Duration by the named Recruitment Agency under Section 6(2) of the 2012 Act. The evidence was that the named Recruitment Agency complied fully with the conditions of Section 6(2) of his Act The evidence was that the Complainant was issued with a letter dated 23^rd May 2016 enclosing his permanent contract of employment with the recruitment agency and this letter sets out the application of Section 6(2) of the Act.

Section 11 of the Act of 2012 provides as follows: “A hirer shall,when informing his or her employees of any vacant position of employment with the hirer, also inform an agency worker for the time being assigned to work for the hirer of that vacant position for the purpose of enabling the agency worker to apply for that position” . The evidence was that the Complainant was informed of vacancies with the Hirer Company. He applied in an undated letter and he had a pre-employment medical on 22^nd September 2016 and was placed on a Panel of Agency Workers for appointment but he resigned before he could be appointed to a permanent position with the Hirer.

I find as follows: Equal Pay Claim

The Complainant is prohibited from taking a claim for equal pay as he is an Agency Worker employed under Section 6(2) of the Protection of Employees (Temporary Agency Work) Act, 2012 and is therefore prohibited by Section 9 of the Act of 2012 from taking an equal pay claim against the Respondent Company.

Discrimination on the basis of Race.

I find on the basis of the evidence and the applicable law that the Complainant is not prohibited from taking this complaint by reason of Section 9 of the Act of 2012. However the evidence was that the Complainant was informed of permanent positions with the Hirer – the Respondent – by the Recruitment Agency. He applied and had a pre-employment medical in September 2016, which he passed and was placed on a Panel for Agency Workers for appointment but he left the Recruitment Agency before he could be appointed.

I find that the Complainant has not satisfied Section 85A of the Act as he has not shown any evidence or facts to support his contention that he was discriminated against by the Respondent Company.

In accordance with Section 79 of the Act I declare this complaint is not well founded as the Complainant and his Representative have failed to satisfy Section 85A of the Act in that no prima facia case of discrimination on the grounds of race has been made out.

Race discrimination – Failed to satisfy Section 85A – Section 6(2) of the Act of 2012 prohibits claims under Sections 7 and 8 of the Employment Equality Act, 1998