DEC–E2017-012

EMPLOYMENT EQUALITY ACTS

Decision - DEC–E2017-012

PARTIES

Tomasz Melynk

v

Woods Property Maintenance Limited

(represented by Terry Gorry & Co. Solicitors)

File Reference: et-154744-ee-15

Date of Issue: 13th February, 2017

1. Dispute

1.1 This case concerns a complaint by the Complainant that he was discriminated against by the Respondent on the grounds of civil status, family status and race contrary to Section 6(2)(a) of the Employment Equality Acts in relation to his conditions of employment and discriminatory dismissal. The Complainant also claims that he was subjected to harassment contrary to Section 14A and to victimization contrary to Section 74 of the Acts.

2. Background

2.1 The Complainant referred the present complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 24th March, 2015. In accordance with her powers under Section 75 of the Employment Equality Acts, the Director General delegated the case on 27th September, 2016 to me, Enda Murphy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts. This is the date I commenced my investigation. A written submission was received from the Complainant on 22nd November, 2015 and from the Respondent on 24th February, 2016. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 16th December, 2016.

2.2 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 the Complainant's case

3.1 The Complainant, who is a Polish national, commenced employment with the Respondent as a Cleaner on 15th October, 2013 after his employment was transferred to the company following a transfer of undertakings. The Complainant claims that he was subjected to discriminatory treatment by the Respondent on the grounds of his nationality in relation to the following matters:

· The Complainant submitted that prior to the transfer of undertakings he normally worked an average of 19 hours per week for his previous employer (i.e. the Transferor) in a local shopping centre. The Complainant claims that following his transfer to the Respondent his hours were reduced to an average of 14/15 hours per week. The Complainant submitted that the additional hours which he had previously worked were allocated to an Irish worker by the Respondent following the transfer.

· The Complainant submitted that the Respondent publicly accused him of not carrying out his duties in front of other workers and customers on two occasions during 2014. He claims that this treatment by the Respondent damaged his reputation and submitted that an Irish worker would not have been treated in such a manner.

· The Complainant submitted that the Respondent made frequent complaints about the standard of his work and that he was required to achieve impossible work related targets during his employment. He claims that the Irish female worker who was also employed by the Respondent at this location was not subjected to such treatment.

3.2 The Complainant claims that he was subjected to discriminatory treatment by the Respondent on the grounds of his family status and civil status in relation to the following matters:

· The Complainant was absent from work on stress related sick leave from March, 2015 to September, 2015. He submitted that following his return to work the Respondent transferred him from the shopping centre where he had been assigned prior to sick leave to a school in another location which was 12 kilometers from his home. The Complainant claims that his only mode of transport was by means of bicycle. He submitted that the change of location resulted in him not being able to get home on time to care for his children and necessitated him having to hire a child minder. The Complainant claims that there were other workers employed by the Respondent who did not have child minding responsibilities who could have been transferred to this other location.

· The Complainant submitted that the Respondent informed the Social Welfare Office that he refused to make himself available to work additional hours which resulted in his application for Job Seekers Allowance being refused.

3.3 The Complainant claims that he was subjected to harassment and intimidation by the Respondent in relation to the following matters:

· The Respondent was attempting to “get rid of him” by transferring him to a location that was a further distance from his home whilst in the full knowledge that this would cause difficulties for him in travelling to work.

· The Respondent carried out excessive checks on his work following his transfer to the school and made unjustified complaints about the standard and quality of his work. The Complainant claims that on one particular occasion he was reprimanded for having spoken to the School Principal.

· The Complainant claims that Mr. A (the Respondent) made a remark on another occasion that “the Polish economy was picking up and that he might wish to return home”.

3.4 The Complainant claims that he was forced to resign from his position as a result of the stress caused by the manner in which he was treated by the Respondent during his period of employment. He submitted that the Respondent insisted on transferring him to another location after his return to work in September, 2015 following a period of stress related sick leave. The Complainant submitted that he informed the Respondent about his personal difficulties in transferring to this new work location which was 12 kilometers from his home given that his only mode of transport was by way of bicycle. The Complainant submitted that the Respondent insisted on the transfer, and therefore, he was left with no option but to resign from his job due to the stress which resulted from the situation. The Complainant submitted that he was subjected to a discriminatory constructive dismissal contrary to the Employment Equality Acts.

3.5 The Complainant also claims that the treatment by the Respondent in relation to the aforementioned incidents amounts to victimisation contrary to the Employment Equality Acts.

4. Summary of the Respondent’s case

4.1 The Respondent is a contract cleaning company and the Complainant was employed as a Cleaner. The Complainant transferred to the company on 15th October, 2013 following a transfer of undertakings after the Respondent became the transferee in relation to a cleaning contract with a local shopping centre. The Respondent submitted that the Complainant was required, as part of his employment, to drive a motorised vehicle/buggy around the shopping centre to move refuse bins. It subsequently transpired after the Respondent had taken over the contract that the Complainant did not have a driving licence and was, therefore, uninsured to drive the vehicle. This was brought to the Respondent’s attention by the client shopping centre who was concerned about the insurance position. The Respondent submitted that it was necessary to take the Complainant off these duties after the issue regarding insurance arose and he was assigned to alternative cleaning duties at the shopping centre.

4.2 The Respondent submitted that it did not have sufficient hours available to fulfil the Complainant’s contractual obligation of 18 hours per week following the alteration in his duties. The Respondent submitted that the Complainant was offered another position with more hours on another contract at a local school in order to comply with his contractual obligations. However, the Complainant refused the offer of additional hours for lifestyle reasons. The Respondent submitted that it was obliged to complete a form from the Social Welfare Office in respect of the Complainant’s availability for extra hours in work. The Respondent filled out this form honestly and in accordance with the law. The Respondent denies that the completion of this form could be construed as discriminatory treatment against the Complainant on the grounds of his civil and/or family status.

4.3 The Respondent submitted that the Complainant went absent on sick leave from March, 2015 to September, 2015 and the company lost the contract where the Complainant was assigned during this period. When the Complainant returned to work he was assigned to another contract at a different school and that arrangements were put in place to transport him to and from this location. This assignment was made in the normal way and was in accordance with the Complainant’s contract. The Respondent submitted that the Complainant was transferred to this location purely on the basis of the business needs of the company and it denies that the transfer was in any way discriminatory on the grounds of his civil status, family status and/or nationality.

4.4 The Respondent also denies that the Complainant was subjected to discrimination on the grounds of his civil and family status and/or nationality in relation to the manner in which he carried out his duties during his period of employment. The Respondent denies that the Complainant was publicly admonished at any stage of his employment and claims that he was given normal and reasonable directions similar to those given to all of its employees regardless of their nationality. The Respondent submitted that there were difficulties with the Complainant’s performance during the period of his assignment to work on the contract at the school following his return from sick leave. The Respondent submitted that the School Principal raised issues in relation to inadequacies in the cleaning work being carried out by the Complainant with the result that the company was in danger of losing the contract. The Respondent, in attempting to bring about the necessary improvements, brought these complaints to the Complainant’s attention and put in place a Training and Development Plan to try and address the deficiencies in his performance. The Respondent rejects the Complainant’s assertion of discriminatory treatment in relation to this matter and contends that these matters were brought to his attention because the company was anxious to ensure the retention of the contract and that a good standard of cleaning was provided to its client.

4.5 The Respondent also denies that the Complainant was subjected to a discriminatory constructive dismissal on any of the grounds claimed. The Respondent submitted that the Complainant failed to attend for work on 12th November, 2015 or during the week thereafter. The Respondent wrote to the Complainant on 19th November, 2015 and requested him to attend a disciplinary hearing to consider an allegation of misconduct as a result of his unexplained absence from work. The Respondent submitted that the Complainant tendered his resignation shortly after this letter was issued and did not attend the disciplinary meeting. The Respondent submitted that the Complainant left his employment of his own volition and denies that he was dismissed either constructively or otherwise.

4.6 The Respondent also denies that the Complainant was subjected to harassment or victimisation contrary to the Acts during his period of employment.

5. Conclusions of the Equality Officer/Adjudication Officer

5.1 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 in relation to him. If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. The Labour Court elaborated on the interpretation of Section 85A in the case of Melbury v. Valpeters[1] where it held that Section 85A:

"…. provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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 Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subSection (2)…..”. Section 6(2)(b) of the Acts defines the discriminatory ground of civil status as follows – “as between any 2 persons, ... that they are of different civil status", Section 6(2)(c) of the Acts defines the discriminatory ground of family status as follows – “as between any 2 persons, ... that one has family status and the other does not" and Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows – “as between any 2 persons …. that they are of different race, colour, nationality or ethnic or national origins”.

5.3 The issues for consideration by me are (i) whether or not the Respondent discriminated against the Complainant on the grounds of civil status, family status and/or nationality contrary to Section 8 of the Acts in relation to his conditions of employment (ii) whether or not the Respondent subjected the Complainant to harassment contrary to Section 14 of the Acts on the grounds of civil status, family status and/or nationality (iii) whether or not the Respondent discriminated against the Complainant on grounds of civil status, family status and/or nationality contrary to Section 8 of the Acts in relation to discriminatory constructive dismissal and (iv) whether or not the Respondent subjected the Complainant to victimisation contrary to Section 74 of the Acts. In reaching my decision I have taken into account all of the evidence, written and oral, submitted by the parties.

Discriminatory Treatment in relation to Conditions of Employment

5.4 The first element of the complaint which I must consider relates to the claim that the Complainant was subjected to discriminatory treatment by the Respondent in relation to his conditions of employment. The Complainant gave evidence in relation to a number of different incidents during his period of employment which he contends were discriminatory against him on the grounds of his civil status, family status and/or race including the following:

· The Respondent reduced his normal weekly working hours following the transfer of undertakings;

· The Respondent made excessive complaints about the standard and quality of his work, assigned him unachievable work targets and admonished him in public;

· The Respondent re-assigned him to a work location which was further from his home, and;

· The Respondent informed the Social Welfare Office that he refused to make himself available to work additional hours which resulted in his application for Job Seekers Allowance being refused.

5.5 Having considered the evidence, I am satisfied that the Complainant has failed to establish facts from which it could be inferred that persons of a different nationality, civil status and/or family status were or would have been treated more favourably than him in relation to these matters. The Complainant has failed to adduce any significant evidence to support his claims that the alleged treatment was discriminatory on the grounds claimed but rather has essentially relied upon supposition and assertion, unsupported by evidence, in support of these claims.

5.6 I have found the Respondent’s evidence in relation to these matters to be more credible and I accept the Respondent’s evidence that there were genuine reasons, wholly unrelated to the discriminatory grounds claimed, for the treatment afforded to the Complainant in relation to these matters. In this regard, I fully accept the Respondent’s evidence that the reasons for the reduction in the Complainant’s normal weekly hours and his reassignment to an alternative work location were genuinely attributable to the business and operational requirements of the company at the material times in question. I also accept the Respondent’s evidence that difficulties arose in relation to the standard of the Complainant’s performance during his period of employment. The Complainant has not adduced any evidence from which I could reasonably conclude that the Respondent subjected him to less favourable treatment on the grounds claimed in relation to the measures put in place to address these performance related issues. Having regard to the foregoing, I find that the Complainant has failed to establish a prima facie case of discrimination on the grounds of civil status, family status and/or race in relation to his conditions of employment.

Harassment

5.7 The Complainant has also claimed that he was subjected to harassment and intimidation contrary to Section 14A of the Acts on a number of occasions during his period of employment with the Respondent. For a complaint of harassment under the Employment Equality Acts to be made out, the Complainant must demonstrate a nexus between the alleged treatment and the discriminatory ground. The Complainant has claimed that the intimidation and harassment involved a number of different incidents, including:

· The Respondent was attempting to “get rid of him” by transferring him to a location that was a further distance from his home.

· The Respondent carried out excessive checks on his work following his transfer to the school and made unjustified complaints about the standard and quality of his work.

· Mr. A (the Respondent’s Operations Manager) made a remark on another occasion that “the Polish economy was picking up and that he might wish to return home”.

Having carefully considered the totality of the evidence adduced, I have found the Respondent's evidence to be more credible in relation to these issues and I do not accept that the Complainant was subjected to harassment in relation to any of the alleged incidents. Accordingly, I find that the Complainant has failed to establish a prima facie case of harassment on the grounds of his nationality within the meaning of Section 14A of the Acts.

Constructive Discriminatory Dismissal

5.8 The next element of the complaint relates to the claim that the Complainant was constructively dismissed from his employment as a result of the discriminatory treatment and harassment which he claims that he was subjected to by the Respondent. Section 2(1) of the Acts defines dismissal as including:

"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract, without giving such notice, or it was or would have been reasonable for the employee to do so .... ".

In An Employer -v- A Worker (Mr. O No. 2)[2] the Labour Court comprehensively addressed the issue of constructive dismissal under employment equality legislation. It noted that the definition was practically the same as the definition of "dismissal" contained in the Unfair Dismissals Acts and held that the tests for constructive dismissal developed under that legislation i.e. the "contract" test and the "reasonableness" test were applicable tests under the Employment Equality legislation. In the present case, I am satisfied that the "reasonableness" test is the more appropriate. It requires the Complainant to establish that the behaviour of the Respondent was so unreasonable that he could not fairly be expected to put up with it any longer and he was therefore entitled to resign from his employment. The corpus of case law developed on this point requires the Complainant, before taking the unilateral step of terminating his employment, to give the Respondent the opportunity to address his grievance.

5.9 In the present case, the Complainant has claimed that the alleged discriminatory treatment and harassment to which he was subjected by Mr. A was of such a nature that he was left with no option but to resign from his position in November, 2015. As I have already stated above, I have found the Respondent's evidence to be more credible regarding the allegations of harassment and discriminatory treatment and I am not satisfied that the Complainant has established a prima facie case of harassment or discriminatory treatment on the grounds claimed within the meaning of the Acts. I have taken into consideration also that the Complainant failed to make any complaint to the Respondent regarding the alleged discriminatory treatment or harassment during his period of employment nor did he attempt to invoke the internal grievance procedures which the Respondent had in place to deal with any such issues. In the circumstances, I am not satisfied that the Complainant has established that the conduct of the Respondent towards him in the months preceding the termination of his employment was such that it was reasonable for him to terminate his contract of employment. Having regard to the foregoing, I find that the Complainant has failed to establish a prima facie case of discriminatory constructive dismissal contrary to the Employment Equality Acts.

Victimisation

5.10 The final element of the Complainant’s complaint which I must consider relates to the claim that she was subjected to victimisation contrary to the Acts. Section 74(2) of the Acts defines victimisation as follows:

“victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by the complainant

….. ….. …..

(f) an employee having opposed by lawful means an act that is unlawful under this Act….

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

5.11 In the case of Tom Barrett v Department of Defence[3] the Labour Court set out the three components which must be present for a claim of victimisation under Section 74(2) of the Acts to be made out. It stated that (i) the Complainant must have taken action of a type referred to at paragraphs (a)-(g) of Section 74(2) –
what it terms a “protected act”, (ii) the Complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the Complainant. In the instant case I must decide, in the first instance, whether or not the Complainant took action that could be regarded as a “protected act”. The Complainant has claimed that she was subjected to victimisation by the Respondent after he had referred a complaint to a Rights Commissioner under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2013 in December, 2013. It was not in dispute that the Complainant did, in fact, refer a complaint to a Rights Commissioner under that legislation. I therefore find that this fact satisfies the requirement outlined in (i) above.

5.12 The adverse treatment contended by the Complainant in the present case relates to the alleged discriminatory treatment and harassment which he claims to have been subjected to by the Respondent following his referral of a complaint to a Rights Commissioner. As I have already stated above, I have found the Respondent's evidence to be more credible regarding the allegations of harassment and discriminatory treatment and I am not satisfied that the Complainant has established a prima facie case of harassment or discriminatory treatment on the grounds claimed within the meaning of the Acts. Having regard to the foregoing, I am not satisfied that the Complainant has adduced any evidence from which it could be reasonably concluded that he has been subjected to victimization within the meaning of the Acts in relation to the alleged adverse treatment claimed. In the circumstances, I find that the Complainant has failed to establish facts from which it could be inferred that he was subjected to victimisation within the meaning of Section 74(2) of the Acts in the present case.

6. Decision

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:

(i) The Complainant has failed to establish a prima facie case of discrimination on the grounds of civil status, family status and/or nationality contrary to Section 8 of the Acts in relation to his conditions of employment;

(ii) The Complainant has failed to establish a prima facie case of harassment contrary to Section 14 of the Acts on the grounds of civil status, family status and/or nationality;

(iii) The Complainant has failed to establish a prima facie case of discrimination on grounds of civil status, family status and/or nationality contrary to Section 8 of the Acts in relation to discriminatory constructive dismissal, and

(iv) The Complainant as failed to establish a prima facie case of victimisation contrary to Section 74 of the Acts.

Accordingly, I find in favour of the Respondent in this case.

______________

Enda Murphy

Equality Officer/Adjudication Officer

13th February, 2017

Footnotes

[1] EDA0917

[2] EED0410

[3] EDA1017