Complainant

Respondent

Anonymised Parties

An Employee

A Company

Representatives

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-00018653-001

23/04/2018

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

CA-00018653-002

23/04/2018

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

CA-00018653-003

23/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00018653-004

23/04/2018

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

CA-00018653-005

23/04/2018

CA 186503- 001

The complainant alleges that she was discriminated against on grounds of race. The discrimination occurred in relation to the rosters. The Polish employees who work for the respondent get all the shifts. The complainant only gets 3 shifts a week compared to the 4 or 5 shifts the Polish people get. Furthermore, the majority of the Polish people work their shifts as an acting team leader, earning £12.33 per hour. The complainant’s comparator Ms. J worked 16 more shifts than the complainant over a specified period of time. Miss J commenced working for the respondent on the 29th of October 2017 and the complainant commenced working for the respondent on the 2nd of October 2017. D respondent also gave gives more shifts to the people that they know best. They did not know the complainant very well. This is why she didn't get the same number of shifts as the respondent’s friends and family.

One particular employee, treated the complainant very badly. She called her a “Romanian s**t” one day. Also, the respondent accused the complainant of a very high level of absenteeism.

The complainant’s mental health was suffering and she went to the Doctor. She couldn’t take it anymore so she resigned.

CA18653-003

On the 26th of December, 2017 the complainant was working as an acting team leader on line three. The complainant believes she was discriminated based on gender. She complained to the shift operations manager that the agency workers were being treated differently to the respondent’s direct workers. The agency workers started work at 10 p.m. At 11:25 p.m. the operations shift manager informed her that he was sending home all the agency workers. The complainant stated that she could not send home the agency workers because it was too late for them. There was no public transport and some of them had no means of getting home given the lateness of the hour. She also stated that it would have a detrimental effect on the operations of the night. The shift operations manager got angry with her and used obscene language to her, stating that he didn't care where they went, if they needed to, they could stay in the canteen until 6 a.m. until their transport arrived. After this altercation the shift operations manager gave the complainant and excessive amount of work to do which she interpreted as a punishment for standing up to him. Later on that night the complainant try to find the operations manager because she needed help with the production line. He was nowhere to be found from the hours of 3 a.m. to 4:30a.m. When he reappeared at 5:15 a.m. he started screaming at the complainant and humiliating her using foul and obscene language because he said she would not get the production line finished on time for 6a.m. The complainant believes that she was discriminated against by the shift operations. The complainant believes that she was discriminated against by the shift operations manager on the basis that she was a female and he was a male and in relation to her conditions of employment. The complainant raised a grievance. She appealed the decision. She was unhappy with that also so she filed a claim with the WRC.

CA 18653- 005.

The complainant alleges that she was subject to a campaign of harassment by the other employees of the respondent. She refers to the claim form that sets out the details of each incident of harassment. In particular she states that her team leader regularly shouted at her, humiliated her, said to her “you move like a snail” moved shifts on her without notice and failed to give her adequate training. Other employees spoke to her in an intimidating way, shouted at her, called her a Romania Shit, undermined her and generally made her feel uncomfortable. She accepts that a large number of the complaints occurred between September 2016 and October,2017, outside of the timeframe allowed by the Act and that she did not raise a grievance in relation to them. She did raise a grievance in relation to some of the issues arising from November, 2017 to January, 2018. The matters were investigated and a full report was given to the complainant setting out the findings.

CA 18653- 002

The complainant alleges that her wages were cut on by € 100.61 on the 4th January, 2018.

CA 18653 – 004

On the 10th January, 2018 the complainant was working on the line as acting team leader. Her Category team leader came into her line and asked her “are you a permanent or acting team leader? ”. She told him that she was an acting team leader. He then told her that she would have to give up the line to a permanent team leader and go and work as a general operative. She tried to explain that she had been rostered as an acting team leader but he did not pay any attention to what she was saying. She felt that she had no other option, so she did what she was told. Later on, he told her to go back to her original line as the team leader did not want to work it.

The complainant commenced employment with the respondent on 4th July 2016 and was employed as a General Operative until she was appointed to the position of Acting Team Leader on 2nd October, 2017. She occupied that position until her resignation in January, 2018.

On 11th December, 2017 the complainant emailed a member of the HR team outlining details of a compliant she wished to make concerning allegations of discrimination and unequal treatment that she felt she was being subjected to in the workplace.

The complainant was then contacted by a member of the HR team and invited to meet with the Group HR Generalist and the HR Generalist to discuss her complaint in more detail. That meeting took place on 14th December 2017. During the meeting the complainant detailed a number of incidents involving a number of different employees throughout the business. The Group HR Generalist informed the complainant that she would need to investigate her complaints by speaking to the individuals involved, however due to the fact that it was the Christmas period it was likely to be after Christmas by the time that investigation concluded.

The Group HR Generalist then commenced the process of meeting the individuals named by the complainant to put the details of the allegation to them.

During the course of the investigation the complainant tendered her resignation in an email dated 8th January 2018. In her email she stated that the reason for her resignation was due to the detail set out in her email of 12th December 2017 and also due to an incident that had occurred on 26th December 2018 during which she believed she was the subject of discriminatory behaviour. In her email the complainant also stated that she would make a complaint to the Workplace Relations Commission if she was unhappy with the response to her grievance.

The Group HR Generalist responded to the complainant in a letter dated 11th January, 2018. In her letter The Group HR Generalist advised the complainant that she was in the process of investigating her complaint. She also advised the complainant that she had not exhausted the company’s internal procedures with regards to her complaint and therefore had not allowed the company the opportunity to fully investigate the matter. The Group HR Generalist urged the complainant to reconsider her position. The complainant responded to The Group HR Generalist in an email dated 12th January 2018. She advised The Group HR Generalist that she could not reconsider her position and she had found alternative employment.

The Group HR Generalist responded to the complainant on the same day informing her that although she had confirmed her intention to resign The Group HR Generalist would like to get clarity on some points raised for the purpose of her grievance investigation and asked if the complainant was in a position to meet with her. The complainant responded via email later that day advising that she was in a position to meet The Group HR Generalist to discuss more detail on her complaint. She advised that the reason she was willing to do so was to maintain a good relationship with the company and to contribute to solving the problems that made her resign.

The Group HR Generalist met with the complainant again on 22nd January 2018. During that meeting The Group HR Generalist obtained further information from the complainant regarding some of the issues that she had raised at the meeting on 14th December 2017. The complainant also gave The Group HR Generalist further details concerning the incident that had occurred on 26th December 2018.

The grievance investigation was concluded and a report was issued on 14th February 2018. The investigation found that there was no evidence to substantiate the complainant’s claims that she was subjected to discriminatory behaviour. The report recommended that the complainant and those whom she levelled the allegations against should be offered mediation in an effort to resolve any underlying issues that there may be. However, as the complainant had since left the employment of the respondent it was not possible to organise mediation between the parties.

The complainant emailed The Group HR Generalist on 20th February 2018 advising that she was dissatisfied with the outcome of the grievance investigation and she wished to appeal the matter to senior management.

On 22nd February 2018 the complainant was informed that a next level grievance hearing was in the process of being scheduled with the Operations Manager. On 6th March, 2018 the complainant was invited to attend a meeting with the Operations Manager. That meeting took place on 9th March, 2018. During the meeting the complainant offered that the individuals against whom she was making the allegation were being dishonest.

Following the meeting the Operations Manager wrote to the complainant on 21st March, 2018 to inform her that as there was no evidence to substantiate the claims she was making she could not make any further recommendations in relation to her complaint.

Specifically, in response to the complainant’s allegation that she was not given the same number of shift as ‘acting team leader’ as Ms. J. The respondent denies this allegation. It is correct to say that the complainant did not work the same number of shifts as Ms. J. The reason for the discrepancy was due to the complainant’s level of absenteeism. Ms. J was not absent at all for the period in question and therefore she worked more shifts than the complainant. The rosters are submitted.

The workplace relations complaint form details three separate claims under the Employment Equality Acts, one under the Protection of Employees (Part Time Worker) Act and one under the Payment of Wages Acts. We believe that the two of these claims can be simply disposed of.

Protection of Employees CA 18653 - 004

The complainant was employed on a full time, permanent contract of employment. The complainant remained a full time, permanent employee until her resignation. We submit that this element of the claim is misconceived.

Payment of Wages Act CA 18653 - 002

Each year during the Christmas period the business operates a skeleton staff and a number of departments in the company are closed completely including the payroll department. The closure of the payroll department for one week during the Christmas period is a standard and regular occurrence. The closure affects all staff and all staff are informed in writing of the close down period in writing. The written notification for the 2017 Christmas period is submitted. The complainant was not under paid nor was any deduction made from her wages, all weekly paid staff (including the complainant) were paid on December 21/22 for week ending December 16 and their estimated pay for week ending December 23 (i.e. double week). No payment was made to any weekly paid staff on December 28/29. All weekly paid staff were paid on January 4/5 for week ending December 30; this pay also corrected any anomalies arising from the estimated pay of week ending December 23. So, if any employee worked more than their estimated hours they would receive the additional balance, if they worked less than their estimated hours the overpayment is recouped from this payment.

Prior to her resignation the complainant advised HR that she had queries about her pay. She was asked to provide HR with the payslips she was querying. This was not done and the respondent heard no more until receiving the instant case.

We respectfully submit that this element of the claim is misconceived.

Employment Equality Acts

The instant claim was received by the WRC on April 23, 2018; the complainant resigned her position effective January 14, 2018. This means that jurisdictional period under consideration is from October 24, 2017 to January 14, 2018.

The workplace relations complaint form lists three separate complaints under the employment Equality Acts, all three are brought under the 'race' ground, all three refer to 'discrimination in conditions of employment' and 'harassment'. We note that the complaint specific details refer to gender discrimination, other parts of the details could refer to victimisation, promotion and training. We are unclear as to precisely what the detail of the Equality claim is and are greatly hampered in our ability to respond.

The first complaint (CA-00018653-001) specific details refers to a named manager (the manager in question is a Polish female) and seems to alleged that this manager arranged the roster for acting team leaders in a manner which discriminated against the complainant. No comparator has been named. This allegation formed part the complainant's complaint referred to above. The allegation was not upheld, all relevant records were examined. We submit that no prima facia case of discrimination has been made in regard to this complaint.

The second equality complaint (CA-00018653-003) concerns an incident that is alleged to have occurred on December 26, 2017. The complainant made a complaint against a named manager (the manager in question is a Polish Male); the respondent investigated this incident.

We submit that the complainant's account of events does not constitute a breach of the Acts. This complaint relates to her allegedly being shouted at and foul language being used. No racist or sexist language is alleged to have been used in this exchange.

The finding of the investigation report was that as there was no independent witness and both accounts differed greatly the allegation could not be confirmed or denied.

We submit that no prima facia case of discrimination has been made in regard to this complaint.

The third complaint (CA-00018653-005) refers to 13 alleged incidents and gives an account of the complaint, investigation and resignation. Of these 13 alleged incidents 11 took place before October 24, 2017 and are thus outside the jurisdiction of this hearing.

Incident 12 refers to a payroll error that occurred in November 2017. By the complainant's own account this was rectified by the respondent prior to the complainant's complaint. The respondent has nearly 1,400 employees on the site where the complainant worked. From time to time errors occur with payroll, this has happened to female employees, male employees and employees of all nationalities.

Incident 13 concerns matters investigated by the respondent. We submit that the complainant has failed to establish any prima facia case of discrimination arising out of any of these incidents. The respondent conducted a full and through investigation of these complaints. We standby the findings of that investigation.

We are mindful that the complainant in the instant case is a lay litigant. We also appreciate that the complainant may wish to amend her complainant or may have been at a disadvantage in stating her case. We are not clear if discriminatory dismissal is being alleged and in some cases we are not sure if the grounds of discrimination have been correctly stated. For example, the complainant has alleged discrimination on the grounds of race against a manager who is the same nationality as her. Likewise, gender discrimination has been alleged against managers who are the same gender.

We have no objection to the complaint being amended and will expect a reasonable opportunity to respond to any amendment of the claim. Notwithstanding we shall address the issue of what we believe to be the complainant's failure to discharge the burden of proof.

Based on the detailed arguments above, the respondent respectfully requests that the adjudicator finds in favour of the respondent company, and dismiss the claimant’s complaints.

Burden of proof in equality matters require a complainant to present, in the first instance, facts from which it can be inferred that she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited, in this instance, Race, Conditions of Employment and Harassment.  

Section 85 (a) of the Act provides that:

“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”.

Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated:

‘The first requirement is 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 those 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.

In case Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden that must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows:

‘The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred’.

CA-00018653-001 ( Race)

This complaint relates to a named female polish manager who allegedly gave more shifts to the polish workers than to the complainant. The complainant’s comparator was a Ms. J. She alleges that that this manager arranged the roster for acting team leaders, specifically Ms. J in a manner which discriminated against the complainant. Following examination of the documents submitted and the respondent’s submissions, it is clear, that both the complainant and Ms. J was rostered as acting team leaders equally and the only reason the complainant worked less shifts than the comparator was because she was absent from work.

Whilst the complainant did not specifically plead discriminatory constructive dismissal she does refer to it in the body of her complainant form. Having consider all the oral evidence, claim form and documents submitted I can find no grounds upon which I can find that the complainant was constructively dismissed on any of the discrimination grounds.

The complaint fails.

TCA-00018653-003 ( Conditions of Employment)

This claim concerns an incident that is alleged to have occurred on December 26, 2017 when the complainant states that her Operations Shift manager discriminated against her by treating non- agency and agency workers differently. The complainant whilst she may have objected to the timing and manner, in which the workers were sent home, she herself was not impacted by the managers decision.

She also alleges that she was spoken to in an inappropriate way by other members of staff. Whilst I find on the balance of probabilities that other members of staff did use inappropriate language towards the complainant that in of itself does not constitute a breach of the Acts. No racist or sexist language is alleged to have been used in this exchange.

I find that the complainant has not established a prima facia case of discrimination.

The complaint fails.

CA-00018653-005 (Harassment)

A large number of this claims, namely 1 -11 took place before October 24, 2017 and did not form part of the complainant’s grievance. It is on that basis that I find that I do not have jurisdiction to make a decision on them.

Claim no. 12 is in relation to a payroll error that occurred in November 2017. By the complainant's own account this was rectified by the respondent prior to the complainant's complaint. The respondent has nearly 1,400 employees on the site where the complainant worked. From time to time errors occur with payroll, this has happened to female employees, male employees and employees of all nationalities.

I find that this was a genuine error and occur on only one occasion. As soon as the respondent was notified of the error it was rectified.

Claim no. 13 concerns the level of training the complainant received and incidents that occurred due to the complainant’s perceived lack of training. This matter was fully investigated by the respondent following the complainant lodging a formal grievance. The respondent conducted a full and through investigation of these complaints and the investigation report was submitted for my benefit. The respondent accepts that the complainant was not released to do her training. This was due to operation issues. These operational issues prevented, not only the complainant, but others from carrying out their training. The complainant did not demonstrate that she was discriminated against in relation to training. Whilst I accept, and it is unfortunate that the operational issues can have a knock-on effect on the training courses and lack of training can cause issues for employees, that in of itself does not amount to discrimination.

The complaint fails.

Payment of Wages Act CA 18653 – 002

5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless-

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment,

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term.

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and  

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

The complainant alleged that she was under paid on the 4th January, 2018

The respondent denies the allegation and stated that the payment was correct and that the complainant simply did not understand the complicated mechanism used to calculate pay over the Christmas period. Each year over the Christmas period the respondent’ business operates a skeleton staff and a number of departments in the company are closed completely including the payroll department. This happens annually.   Closure affects all staff and all staff are informed in writing of the close down period in writing. All weekly paid staff (including the complainant) were paid on December 21/22 for week ending December 16 and their estimated pay for week ending December 23 (i.e. double week). No payment was made to any weekly paid staff on December 28/29. All weekly paid staff were paid on January 4/5 for week ending December 30; this pay also corrected any anomalies arising from the estimated pay of week ending December 23. Having carefully considered the evidence it would seem that the respondent needed to adjust the previously estimated figures for the week ending 23rd December. The amount of that adjustment is the amount claimed by the complainant. It is clear that she did not understand the mechanism used by the respondent to calculate pay over the Christmas period and that is why she came to the conclusion that she was underpaid.

I find that respondent did not breach Section 5 of the Act and therefore the complaint is not well founded. The complaint fails.

CA 18653 – 004 Protection of Employees (Part-time Work) Act, 2001.

The complainant was a full time, permanent employee of the respondent’s. The Protection of Employees (Part- time Work) Act does not apply to her. This complaint is misconceived.

The complaint fails.