ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000846
Complaint for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00001209-001 | 01/12/2015 |
Date of Adjudication Hearing: 30/11/2016
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000 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 outlined deep dissatisfaction with aspects of her employment from the time of her recruitment in her home country, Romania, especially in relation to aspects of her job description and her shift pattern.
In addition, three complaints other than those considered here were heard under a separate reference and in the past she had referred previous complaints to the Rights Commissioner Service and to NERA.
Complaint under Employment Equality Act r-157897-ee-15
The complainant is employed as a concierge although there has been an ongoing dispute about her precise title and range of duties which does not have a bearing on this complaint.
She says that she was treated less favourably than an Irish citizen in respect of the shifts she was required to work. She worked an extensive shift pattern of afternoons, evenings and nights. The comparator works Monday to Friday and has public holidays off which she does not have.
She says that all concierge employees should work the same roster
Complaint under section 77 of the Employment equality Act CA-00001209-001 Penalisation
This complaint arises as a result of a previous complaint made by the complainant to what was then the National Employment Rights Authority (NERA).
In response to questions at the hearing the Complainant identified four examples of where she suffered detrimental or adverse treatment by her employer.
These were a reduction in her hours down to two shifts per week, an invitation to a meeting to discuss a security incident (although the meeting did not take place), the failure of the company to reply to email correspondence and being ‘threatened’ with referral to a solicitor.
She was also criticised for not using the company grievance machinery.
Respondent’s Submission and Presentation:
Complaint under Employment Equality Act 157897-ee-15
The respondent says that it employs a very large number of workers who are not from Ireland and many from the complainant’s home country. These include some of its senior managers, including its HR Manager.
In the complainant’s former grade (she is no longer employed) out of a total of ten employees, three (including the complainant) are Romanian, four are Irish, and there is one from each of Canada, Pakistan and Slovakia,
Only two of them are available for all shifts but no two of the others have the same shift availability.
The respondent also says that differences in the shift patterns of its employees arise for a number of reasons. In the case of the comparator he joined the respondent as a result of a transfer under the TUPE regulations and therefore retained his previous shift arrangements. Others are allocated shifts on the basis of their availability; some are students, for example.
The respondent relied on the decision in Vladimir Bulaz v AES Ireland [2010] 21 E.L.R. 64 in which the complainant claimed that although he was employed on like work to colleagues he did not enjoy similar allowances.
In that case the Equality Officer found that while he was engaged in ‘like work’ there were objective grounds other than race for the difference in pay.
Complaint under section 77 of the Employment equality Act CA-00001209-001 Penalisation
In its submission the respondent relied on Tom Barrett v Department of Defence [EDA] 116 in which the Labour Court set out the three components for a claim of victimisation under the Acts to be made out.
These were that;
The complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74 (2), what is termed a protected act,
The complainant must be subjected to adverse treatment by his/her employer, and
The adverse treatment must be in reaction to the protected act having been taken by the complainant.
Elsewhere in Monaghan County Council v Mackaral EDA 13/2012 the phrase ‘as a reaction to’ is considered and the meaning was further refined to require it to be an ‘influencing factor’ in the decision.
The respondent submitted that the complainant suffered no adverse treatment in her employment and has failed to connect the adverse treatment to the making of the complaint.
In direct evidence the MD of the company stated that the reduction of the shifts was a consequence of accommodating the complainant’s need to stop working nights for health reasons and the absence of alternative day shifts for her.
As for the complainant’s second example the company merely wanted to speak to her about an incident which it needed to investigate further and was a normal part of the interaction between the company and its employees. In any event the meeting did not take place.
He says that he could not deal personally with all emails from the employees of the company.
Finally the only reference to a solicitor arose when the complaints made by the complainant entered the arena where it was in the hands of their solicitors and this was pointed out to her
Findings and Conclusions
By way of general comment the extent of the complainant’s distress arising from matters before the hearing was distressing to observe.
It is a matter of particular regret that, while a voluntary option, mediation offered by the respondent and set up by its legal advisors failed to materialise. This was because, it seems, the complainant did not wish to engage, on the basis of what was very probably either a misunderstanding about the nature of that mediation or a failure in having it explained, or some combination of the two.
She told the hearing that the mediator told her in advance of the mediation that she would not get the change in roster she was seeking. It seems improbable that a mediator would pre-empt the outcome of a mediation in that way, but in any event more effort may have been required to ensure that the complainant fully understood the position.
The Managing Director of the respondent told the hearing that all of the issues which arose in the case, including that which precipitated the termination of the complainant’s employment, ‘need never have happened’.
It would be wrong to attribute responsibility to either party for the general issues which gave rise to the problems or the failure to resolve them, other than to say that the mediation was a lost opportunity.
However, adjudication is only possible on the complaints referred under specific legislative provisions and I now move to do so.
Complaint under Employment Equality Act 157897-ee-15
The submission by the complainant in this complaint is weak and speculative. In respect of the specific comparator I accept the evidence of the respondent that his specific conditions of employment had their roots in his transfer to the company by means of a Transfer of Undertakings.
Even if this were not the case, the clear diversity in the shift pattern of the complainant’s co-workers supports the respondent’s submission that it allocates shifts on the basis of the availability of those offering to work them, or, as in the case of the comparator, as it was obliged to do.
The complainant has a view that all the employees in this category should work the same shifts. Perhaps it might lead to greater interchangeability as seemed to be desired by the complainant, especially given what she described as the impact of her shift pattern on her health and private life, but this is ultimately a business matter for the respondent.
No prima facie case has been made out in respect of this complaint.
Complaint under section 77 of the Employment equality Act CA-00001209-001 Penalisation
Again I find the examples given by the complainant as adverse treatment to be lacking in substance and they do not meet the tests set out in the Tom Barret case above as refined in the Monaghan County Council case.
Decision:
Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
For the reasons set out above I uphold neither of the complaints 157897-ee-15 or CA-00001209-001 and they are both dismissed.
Date : 25th January 2017