ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001835

Complaints for Resolution:

Venue: WRC; Lansdowne House, Lansdowne Road, Dublin 4.

Date of Adjudication Hearing: 03/11/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998, 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

Background

The Complainant is employed as a General Operative since 29th March 2007. She is paid €448.50 per week + 20 % shift premium. She has claimed that she did not get a contract of employment that complied with Sec 3 of the Terms of Employment (Information) Act and that she was discriminated against on grounds of race contrary to the Employment Equality Act.

Terms of Employment (Information) Act CA-00002354-001

Complainant’s Submission and Presentation:

1) Sec 3 g) & ga

The Complainant’s Representative stated that her contract of employment breached Sec 3 g) as the statement did not specify the pay reference period for the purpose of the National Minimum Wage Act 2000.

g,a) The statement does not expressly state that the employee may request a statement of his average earnings pursuant to s.23 of the Act of 2000.

2) Hours of work

The contract of employment did not state the actual hours of work

3) Holiday year

The holiday year was listed as the calendar year January to December whereas in law its April to March.

4) PRSA

She was not advised of pension or PRSA provisions.


Respondent’s Submission and Presentation:

1)Sec 3 g) and ga)

The Respondent stated that her basic pay was €448.50 + a 20 % shift allowance. Amounting to €538.22 per week. This is in excess of 150 % of the national minimum wage and so this is not a requirement.

2)Hours of work

They stated that the Staff Handbook, which she received at Induction training specifically refers to the 3 different shift which gives specific start and finish times on the days at work e.g. Mon to Thurs 8.30am to 5.00pm, and Friday 8.30am to 4.00pm. She signed and accepted the handbook

3) Holiday year

The holiday year in the company is the calendar year. No query has ever been raised on this matter.

4) PRSA

The Staff Handbook provides this information. She signed and accepted the handbook. This complaint is rejected.

Findings

1)Sec 3 g) and ga)

I note that the total earnings are significantly above the national minimum wage.

I refer to the Labour Court decision TED161“The document furnished did not contain such a statement. However, the Complainant’s contractual salary was set at five times the national minimum wage. A statement of the type envisaged by s.3(1)(g) of the Act could not have had any practical significance in the circumstances of the Complainant. Nor is it suggested by him that the omission of such a statement had any practical significance in the circumstances of his employment”.

I am satisfied that the Complainant was fully aware that she was paid significantly above the national minimum wage.

I find no reason why this information would be required or have any practical significance

2) Hours of work

I find that contrary to the complaint’s evidence the Staff Handbook explicitly sets out the actual hours of work. I note that the Complainant signed for this Handbook. I find no breach of this section.

3) Holiday year

I refer to the Labour Court decision TED161

“The statement provides that the leave year is to run in tandem with the calendar year whereas the Organisation of Working Time Act 1997 provides that a leave year runs from 1st April to 31st March”.

“Section 3(1)(j) of the Act provides that the statement furnished to the employee must provide information on any terms or conditions relating to paid leave (other than paid sick leave). The statement provided did contain information on the terms and conditions relating to annual leave. If it is suggest that the contractual provisions in the Complainant’s contract of employment in relation to annual leave contravened the Organisation of Working Time Act 1997 that is a matter that could only be adjudicated upon in proceedings under that Act”.

Therefore I must find that this matter can only be adjudicated upon under the Organisation of Working Time Act.

4) PRSA

Pension entitlements are specifically referenced in the Staff Handbook. The Complainant signed for having received it at induction training. I find no breach of this section.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the above stated reasons I have decided that this complaint is not well founded and that it fails.

Employment Equality Act CA-00002354-002

Complainant’s Submission and Presentation:

The Complainantstated that she has been instructed by her Supervisor not to speak Polish, which is her native tongue. It I admitted by the Respondent that she is not permitted to speak Polish. There is no business reason why the Respondent has made this decision other than providing that people speak a common language. It appears that if there are people of different languages on the production line they must all speak English. The default position is that English is the language. This is discrimination on the grounds of her race and nationality. No business reason has been put forward to justify this. There was no policy put forward by the Respondent that English is that language to be used, nor is this a health and safety issue. The Complainant made a complaint to her Supervisor on 16th October 2015 so the claim is in time. When she made the complaint no investigation took place. She recalls being spoken to about this and she became very upset. She is claiming that this is discrimination on grounds of race. There is no policy to this effect about English as the business language. The Respondent has referred to inclusion but this can only be an issue if there has been exclusion. If this is the case how was it assessed? There is no evidence that this occurred. She can’t recall attending any meeting on diversity, she can’t recall attending any briefing on inclusion by Supervisors and she can’t recall seeing any guidelines about this on the noticeboards. She was discriminated against on the ground of her race. She is seeking compensation and a decision that she is entitled to speak Polish to other Polish people.

Respondent’s Submission and Presentation:

The company currently employs 838 employees from 14 different nationalities, 10 of which English is not their first language. On 16th October 2015 the Complainant was working on a line and was in conversation with her colleague in Polish. The Supervisor brought both employees to a private room and asked them to speak in English when they are working on a line with others of a different nationality. She then spoke to her manager who confirmed the reason for this, that it is of inclusion so as to ensure that no one person was excluded. She was told that she could speak Polish at her breaks or if it occurred that there were only Polish people working on the line. No further communication was received until her solicitor wrote to them on 27th November 2015. She has never raised an issue with the speaking of English before. She should have raised a grievance under the company’s dignity at work policy but she didn’t. Diversity workshops were conducted in May 2013. Guidelines on the use of native languages was one outcome of these workshops. These guidelines were then communicated to all employees through the Supervisors via the weekly meetings. At no stage did she make a formal complaint under the grievance procedure.

This matter of staff being asked to speak English in the workplace has been the subject of adjudication on a number of occasions in the past e.g Karina Potasinska and Bank of Ireland Security Services (EE/2008/556). The findings were that it has to be showed that the practice puts her at a particular disadvantage. They also cited DEC E2013 -086 and EE/2013/058 in support.

It is accepted that she was upset when she was spoken to but at the end of the meeting she stated that she was OK about it. She has cooperated with this ever since. It is rejected that she was intimidated.

Following the Diversity Workshops guidelines were issued and briefing meetings were held with all employees. The guidelines were posted on all noticeboards.

This practice is not discriminatory, it is the opposite, it is for inclusion purposes. Compensation is rejected; inclusion is the objective of this exercise.

The complaint is rejected.

Findings

I note that this is a multi-cultural employment.

I note the Respondents’ evidence that in 2013 they held a Diversity Workshop facilitated by an external consultant. The outcome was that guidelines were produced and communicated to all employees via the Supervisors’ weekly meetings and were also placed on the noticeboards.

I note the Complainant’s evidence that she cannot recall attending the workshop, attending the Supervisor’s briefings on this subject or ever seeing the guidelines on the noticeboards.

I accept that she may not have attended the workshop; however on the balance of probability I find that she would have become aware of the guidelines from Supervisor briefings, colleague conversations and the posters on noticeboards.

I note the Respondent’s evidence that the motivation behind these guidelines was to be inclusive and not exclusive.

I note that the Complainant did not raise any formal grievance concerning this matter.

I find that Section 85A of the Employment Equality Acts 1998 – 2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination.

I find that the test for applying that provision is well settled in a line of decisions of the Equality Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent.

I find that if the complainant does not discharge the initial probative burden required her case cannot succeed.

I have considered the evidence presented to this hearing.

I find that the Complainant has not established that these guidelines were discriminatory.

I have concluded that the Complainant has not established a prima facie case of discrimination on grounds of race.

On the contrary I have found that the Respondent acted in good faith and for the purposes of inclusion in bringing in these guidelines.

Therefore I find that this complaint must fail.

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 above stated reasons I have decided that a case of discrimination on grounds of race has not been established.

Consequently I have decided that this complaint fails.

Dated: 5th January 2017