Complainant

Respondent

Anonymised Parties

Security officer

Security Company

Representatives

Self-represented

Management Support Services (Ireland) Ltd

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-00013949-001

14/09/2017

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

CA-00013949-002

14/09/2017

CA-00013949-001

The complainant commenced employment with the respondent in October 2015 as a security officer. He worked 48 hours a week. He was paid €1090 gross per fortnight.

He states he was discriminated on grounds of race. He submitted his complaints to the respondent who failed to adequately address them. The last act of discrimination occurred on 5 June 2017.

CA-00013949-002

The complainant states that he was denied his rest breaks contrary to the provisions of the Organisation of Working Time Act, 1997.

He submitted both complaints to the WRC on 19 September 2017.

CA-00013949-001

The complainant states that the respondent discriminated against on the grounds of a race in the following instances:

Refusal to allocate him day shifts in comparison to his Irish colleagues who worked both day and night shifts.

He took on the job on the understanding that he would work day and night shifts. The prior occupant of his job in the client’s control room had worked day and night shifts. He was retained on nightshifts exclusively and contrary to his wishes. Mr S, an Irishman, worked day and night shifts and then worked day shifts only. He worked with a four-person team comprised of 1 Irish employee and 3 non- Irish employees.

The complainant stated that on the 8th of December 2015 the site supervisor drew up a new duty room roster under which all employees would work day and night shifts. He advised the complainant that the proposed roster failed to get the site manager’s approval. In August 2016, the complainant took a holiday, was replaced temporarily by Mr D. Mr D was supposed to take over his duties and work the same hours during his absence on leave. The duty roster was then changed, and Mr D worked day shifts only from 10-15 August 2016. This demonstrates a lack of goodwill on the part of the employer. This proves that it was possible to change shifts.

The refusal to provide him with training for day shifts.

He was refused training to enable him to exercise his role as a security officer during the day.

He did avail of some limited training on the 21 March and 25 April 2016 but further training was not available to him because he was working nights and also because of staff shortages. He contacted the Staff Support section to seek dates for further training. She undertook to contact the manager. He received his rota for the period 25 April to 8 May to discover that he would be working 12 days over the fortnight. He was to work reduced hours. He contacted Staff Support. They advised that discretion lay with them as to the number of hours he should work and the distribution of same was the prerogative of the respondent as the complainant was a part – time worker. He viewed this as a threat following on his stated wish to work days and nights. He sought the assistance of a former manager who rectified the matter for him.

Another security officer was appointed in November 2015 to fill in for absent colleague. Mr D., an Irishman received training to work day and night shifts.

Other instances of discrimination.

In September 2016 an iPad was taken from the control room. Staff were questioned. and the complainant had to appear for questioning at his own expense and on a day off. Mr D, an Irishman was questioned at his work during his working hours. His Irish work mate was treated in a more privileged manner.

The complainant mentioned health problems on a number of occasions due to working 48 hours per week on night shifts. Following the incident that took place on the September 16 - the missing iPad-, he consulted a psychologist. On March 27, 2017 his doctor certified him as unfit to attend work until 3 April.

He failed to secure promotion.

A site manager’s job came up in December 2015. He did not apply as he believed he would not get the position.

On March 30, 2017 he sent a registered letter to the human resources department regarding discrimination in the workplace. On April 7, 2017 he received a phone call from Mr F, site manager, who undertook to resolve the issues in question.

On April 19 he met the site manager. The meeting was held in the canteen within visibility of all regular employees who were taking a break and it lacked confidentiality. He made it clear that he wanted to be treated the same as all other employees in the same position. Mr F advised that he have to consult with colleagues in the control room. He did not receive a written record or any kind of recommendation or decision contrary to his expectation and experience. He did not get a time line by which his issues would be rectified.

In cross examination the complainant accepted that he was never informed that training for day shifts was a precondition for allocation to same.

Victimisation

The complainant contends that the proposed reduction in his working hours in April 2016 following on his request for training to enable him to work on day shifts was designed to dissuade him from making any other complainants or requests.

He states that after he submitted his formal complaint on 30 March, the site manager expressed a concern to staff that the contract on which he was working could be in jeopardy. No such utterances had ever occurred previously.

After he made his complaint on the 30 March the company introduced electronic surveillance. He found this to be very stressful.

On March 30, 2017 he sent an official complaint by registered mail to the human resources department regarding discrimination in the workplace. On April 7, 2017 he received a phone call from Mr F, site manager, who undertook to resolve the issues in question.

CA-00013949-002

The complainant states that he did not always receive breaks while employed on 12 hour night shifts as a standalone security officer.

On cross examination he accepted that he could leave the control room on occasions and go to the canteen. Sometimes he took his break in the control room. He was frequently interrupted while on his breaks.

CA-00013949-001

The respondent denies that they discriminated against the complainant on grounds of race.

The first the respondent knew of any concerns on the complainant’s part was when they received the letter of the 30th of March 2017. The complainant had never raised any formal grievance with the company regarding his concerns or the way he was being treated. The site manger telephoned the complainant and sent an email to the complainant on the 7th of April 2017 confirming the telephone conversation with the complainant and advising the complainant that the matter would be addressed upon the site manager’s return from annual leave on the 18th of April.

The site manager investigated the matter in more detail on return. He sent an email to the complainant on the 26th of April 2017 confirming that the complainant wanted to do day and night shifts, that he wanted to receive training and to have access to portals in the head office. The site manager asked the complainant to advise of any omissions in his email. The respondent proceeded to put in place the changes necessary regarding the rosters. There was no email response from the complainant until correspondence was received, dated the 11th of May, which seemed to suggest that he hadn't received any response to his letter of the 30th of March notwithstanding the fact that his complaint form to the WRC acknowledges that he had received the respondent’s emails. The respondent sent an email on the 15th of May confirming that he had portal access and also advising that he should be in a position to roster him soon "on days and nights in the next week or so” that he would have to find out what's to be done. He also asked the complainant if he required a couple of days training or was he happy with how the dayshift works.

On the 16th of May, the respondent wrote to the complainant again, explained that he was on leave for eight days, told him the steps that he intended to take, confirmed that he had spoken to the team on the site and that he would be hopeful of putting a new roster in place by the end of May and

The company received no reply from the complainant until the letter of the 23rd of May arrived notifying the respondent of the complainant's intention to resign on the 6th of June. The respondent wrote to the complainant on the 24th of May asking him to reconsider his position that his concerns were being addressed and rectified, that training will be provided, and day and night shifts would be scheduled. The respondent received no response from the complainant.

The respondent refers to section 85A of the Employment Equality Acts regarding the obligation which lies with the complainant in a complaint of discrimination to raise facts from which an inference of discrimination can be drawn. In this regard the respondent relies on the decision of Melbury v Valpeters,EDA 0917.

The complaint that he was discriminated against because he didn't get the same training as other employees is denied by the respondent who employ people from a range of nationalities. He received training when he joined the company and it was only as a result of staff shortages that he didn't receive more training. It is the respondent’s understanding that the complainant who worked with the same client previously, received training at that point. He failed to respond to the site manager’s enquiry on 15 May as to whether he needed additional training.

The respondent also told the complainant that he would change the shift pattern by the end of May.

Promotion.

The complainant never applied for any promotional post.

Victimisation.

The respondent denies that the complainant was victimised. The letter of the 30 March cites instances which are outside of the 6-month time limit. Any acts of alleged discrimination occurring before 14 March 2017 are time- barred and thus inadmissible. The complainant acknowledged that when we went to his former manager in April 2016, she sorted the issues. This clearly shows there is no victimisation of the complainant. It should be noted that the complainant failed to identify any issues from March 2017 onwards which would fall within the grounds of victimisation. The respondent’s actions show that the issues raised by the complainant were taken on board immediately and addressed. Had the complainant remained in employment he would have been rostered for day shifts.

The complainant also seems to be suggesting that a registered letter warrants an equivalent response and that absence of same equals victimisation.

Surveillance of staff applies to everybody.

There is no evidence that the complainant's ill- health was linked to his workplace.

The complainant has referred to a wide range of unrelated incidents to try and justify the claim that he was treated less favourably. The complainant's case has been that he was the only person kept on nights and the reason was because the employer was discriminating against him on grounds of race. People of different nationalities worked the night shift. The complainant maintains that the last discriminatory act was the 5th of June. This was the date of his resignation. Nothing else occurred on that date.

The evidence advanced has failed to raise an inference of discrimination and his complaint cannot succeed.

CA-00013949-002

Organisation of working time act and

The security industry falls within the definition under the Organisation of Working Time Act (General Exemptions Regulations) Statutory Instrument 21, 1998 in relation to the matter of breaks. Under the exemptions, a security officer is not obliged to take breaks within the prescribed time limits as per the Act. He can take them at another time during the night shift. At no stage did the complainant ever bring the absence of breaks to the attention of his manager as required by his contract. He was not obliged to stay in the control room and could go to the canteen. He was permitted to take breaks when it suited and at quieter times. He worked as a standalone for a 12-hour shift.

CA-00013949-001

I am required to establish if the complainant was discriminated against on grounds of race and contrary to section 6 (2)(h) of the Acts.

But first I must identify the range of admissible complaints. Thereafter I must consider if the Complainant has established facts from which discrimination may be inferred.

Admissibility of complaints.

Section 77(5)(a) of the Acts provides: -

“(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

In Hurley v County Cork VEC (EDA 1124), the Labour Court held that

“Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum.”

I find that the complaints of less favourable treatment contrary to section 6(2)(h) of the Acts and manifest in the shift patterns, and in the denial of training opportunities so as to allow him to work day shifts are part of a continuum extending back to April 2016.

All other instances of alleged discrimination occurring before the 14 March 2017 are inadmissible.

Burden of Proof

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201. The Labour Court concluded that”

“a complainant 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 was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed.”

The facts advanced by the complainant to raise an inference of discrimination were:

The decision to confine him to night shifts and the denial of training opportunities.

It is correct that the complainant was not Irish and that Irish employees were rotating on the shifts. Mere membership of a designated, protected group as set out in section 6.2 of the Acts is insufficient to raise an inference of discrimination. It must be accompanied by facts of sufficient import to raise an inference of discrimination.

I accept that when the matters were brought to the respondent’s attention he did proceed to change the shift arrangements. The complainant resigned before they could be put into effect.

The uncontested evidence is that training was not a prerequisite for working on the day shift. Furthermore, he failed to respond to 2 enquiries as to whether he required extra training.

Failure to promote the complainant on race grounds.

The complainant applied for no promotional positions.

I am satisfied that the respondent made efforts to rectify the matter and, had planned to schedule the complainant for day shifts by the end of May but that the complainant resigned before they could be put into effect.

Victimisation.

In the case of Department of Defence -v- Barrett EDA1017, the Labour Court set out the three elements which must be present for a successful claim of victimisation under Section 74(2) of the Acts:

“(1) The Complainant had taken an action of a type referred to at Section 74(2) of the Acts;

(2) The Complainant was subjected to adverse treatment by the Respondent, and;

(3) The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

The complainant must have taken an action of a type referred to at Section 74(2) of the Acts before considering the second and third limbs of the test. Even if the complaint of discrimination does not stand up, it is the making of such a complaint that triggers protection under this Section. Section 74 of the Act of 1998, as amended, defines victimisation as

“(2) For the purposes of this Part, 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 a complainant,

(c) n/a”

To make a representation to your employer that you are being treated less favourably than non-Polish colleagues is a protected act.

The second element of the test at 2 above is that the representation resulted in adverse treatment,

The first instance of adverse treatment identified by the complainant is the reduction in his working hours in April 2016, done, he maintains, in retaliation for his request for training. A former manager rectified the matter immediately it was brought to her attention, so while indicated, it did not actually happen. The next victimisatory act identified by the complainant is the site manager’s statement in April 2017, made to colleagues, and not at all, or not exclusively to himself, that the contract on which he was employed was endangered and that this constituted a ‘shot across the bows’ designed to dissuade him from maintaining or resurrecting his request for day shifts. The third instance of adverse treatment is the failure of the respondent to reply in writing to his complaints and the decision to maintain him on night shifts after his letter of 30 March. At worst this could be seen as discouragement rather than an actual detriment or adverse treatment which places the complainant in a worst position than before he made the protected act.

I do not consider these occurrences to be adverse treatment and I am therefor not obliged to consider the third limb of the test set out in Department of Defence -v- Barrett, EDA1017.

I do not find that the evidence supports the complainant ‘s contention that he has raised a prima facie complaint of discrimination on race grounds based on this complaint of victimisation.

I do not find that the complainant was victimised

CA-00013949-002.

The complainant alleged that he did not receive breaks in accordance with section 12 of the 1997 Act. Schedule1 of S.I 121 1998 provides an exemption to the security industry from section 12 of the act of 1997 subject to employees being provided with breaks. The complainant accepted that he could go to the canteen, that he could take breaks though he states that they were sometimes interrupted. He failed however to notify his employer as per his contract that he was prevented from taking his statutory breaks.

On the basis of the evidence submitted, I do not find this complaint to be well founded.

CA-00013949-0012

I do not find that that the complainant has established facts from which discrimination based on race grounds, or victimisation on race grounds can be inferred. Therefore, his complaint cannot succeed.

CA-00013949-002

Based on the evidence submitted, I do not find this complaint to be well founded.

Discrimination on race grounds; fear of adverse treatment rather than actual adverse treatment. S.I 121, 1998.