ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00010409
Parties:
| Complainant | Respondent |
Anonymised Parties | A Supervisor | A Distribution Centre |
Complaint(s):
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-00013551-001 | 03/09/2017 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The dispute concerns allegations of Discrimination against the Complainant on the grounds of Religion, Race and Victimisation by the end user Company in a Managed Services situation. |
1: Summary of Complainant’s Case:
On the night of the 26th August 2017 the Complainant, a night Shift Supervisor, was on overtime from 06:00 to 08:00. At approximately 07:20 the Complainant used his mobile phone to check the time. He was observed doing so by an End User Manager. Investigation and Disciplinary action followed and the Complainant was penalised by three Penalty points on the internal End User Safety/Traffic system. The Penalty was completely unwarranted and other employees have a much more lenient approach taken towards them. The Complaint is of Pakistani origin and is a Muslim. The behaviour of the Managers concerned towards him following this incident was clearly one of Victimisation. |
2: Summary of Respondent’s Case:
2:1 The question of the correct Respondent The Respondent in this case is an End User in a situation of a Manged Services Contract. There is no employment relationship between the Respondent and the Complainant and the claim has to fall on these grounds alone. 2:2 Substantive Case. Nevertheless, the Complainant was disciplined for a clear breach of the End User “Highway Code” -he was engaging with a mobile phone while using a LLOP Forklift. There was no doubt of this. It was not denied. The site is a very large building with a lot of internal traffic by forklifts and other mobile machinery. The breach of the Highway Code was clear and the penalty was as per procedure. The Complainant was well aware of all the Health and Safety regulations governing the site. The Penalty had nothing to do with any of the Discriminatory Grounds alleged. As regards the Discrimination claim itself the Respondent cited the normal Legal Precedents to point to the fact that they felt that no sustainable legal Prima facie case had been made to sustain a Discrimination claim. |
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3: Findings and Conclusions:
3:1 The Correct Respondent The Labour Court has recently considered this type of case - Determination EDA 1823 (April 2018) refers. Discussion and Decision The Court is very familiar with the distinction between a provider of agency personnel and a provider of managed services. Neither the 1971 Act nor the 2012 Act applies to a business the operations of which come within the latter category. Both Acts apply exclusively to the former type of business. Named Company Limited is of the latter type. In the context of the factual background to this case, Named Company Limited was contracted at all material times to provide security services at the Respondent’s stores throughout the country. It did not supply the Respondent with personnel to work under the latter’s supervision and direction. It follows, therefore, that the Complainant’s claims against the Respondent under the 1998 Act are not well-founded as the Respondent was at no stage his employer for the purposes of that Act. The factual overlaps between EDA 1823 and the present case are close – the End User in this case is the Respondent referred to above in EDA 1823. Allowing for normal daily interactions between the Complainant and End User Mangers, particularly in the area of Health and Safety I did not find that these were of sufficient weight to alter the Agency /Managed Service arrangement. The Complainant was employed by Respondent A to provide a Manged Service on a major physical site - not to fill vacancies in the End User Employee & Manpower requirements. Accordingly, the claim has to fall on these grounds alone.
3:2 The Substantive case. In this case the legal principles regarding the need to establish a Prima Facie case are clear cut. The Mobile Phone incident complained of was on the face of it a once off situation. The follow through was clearly in keeping with normal rules and regulations. Accordingly, there can be no successful claim on the Grounds of Race or Religion or Victimisation for what was basically a once off situation/incident. The Complaint made numerous other allegations against a specific End User manager regarding incidents that were alleged to have happened over a prolonged period. The allegations ,while made most sincerely, were lacking in the required level of legal evidence ,witnesses etc required. I noted that the Complainant’s direct employer had investigated these complaints via a Third-Party HR Consultant and had found no substantiated claim. |
4: Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
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-00013551-001 | Claim dismissed. The Respondent is not the correct employer. Precedent of EDA 1823 refers. |
Dated: 27.6.18
Workplace Relations Commission Adjudication Officer:
Key Words:
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ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00010409
Parties:
| Complainant | Respondent |
Parties | Muhammad Ismail | Tesco Distribution Centre |
| Complainant | Respondent |
Anonymised Parties | A Supervisor | A Distribution Centre |
Representatives | Barbara Mebtouche of O'Hanrahan & Company Solicitors | Tiernan Doherty IBEC |
Complaint(s):
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-00013551-001 | 03/09/2017 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The dispute concerns allegations of Discrimination against the Complainant on the grounds of Religion, Race and Victimisation by the end user Company in a Managed Services situation. |
1: Summary of Complainant’s Case:
On the night of the 26th August 2017 the Complainant, a night Shift Supervisor, was on overtime from 06:00 to 08:00. At approximately 07:20 the Complainant used his mobile phone to check the time. He was observed doing so by an End User Manager. Investigation and Disciplinary action followed and the Complainant was penalised by three Penalty points on the internal End User Safety/Traffic system. The Penalty was completely unwarranted and other employees have a much more lenient approach taken towards them. The Complaint is of Pakistani origin and is a Muslim. The behaviour of the Managers concerned towards him following this incident was clearly one of Victimisation. |
2: Summary of Respondent’s Case:
2:1 The question of the correct Respondent The Respondent in this case is an End User in a situation of a Manged Services Contract. There is no employment relationship between the Respondent and the Complainant and the claim has to fall on these grounds alone. 2:2 Substantive Case. Nevertheless, the Complainant was disciplined for a clear breach of the End User “Highway Code” -he was engaging with a mobile phone while using a LLOP Forklift. There was no doubt of this. It was not denied. The site is a very large building with a lot of internal traffic by forklifts and other mobile machinery. The breach of the Highway Code was clear and the penalty was as per procedure. The Complainant was well aware of all the Health and Safety regulations governing the site. The Penalty had nothing to do with any of the Discriminatory Grounds alleged. As regards the Discrimination claim itself the Respondent cited the normal Legal Precedents to point to the fact that they felt that no sustainable legal Prima facie case had been made to sustain a Discrimination claim. |
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3: Findings and Conclusions:
3:1 The Correct Respondent The Labour Court has recently considered this type of case - Determination EDA 1823 (April 2018) refers. Discussion and Decision The Court is very familiar with the distinction between a provider of agency personnel and a provider of managed services. Neither the 1971 Act nor the 2012 Act applies to a business the operations of which come within the latter category. Both Acts apply exclusively to the former type of business. Named Company Limited is of the latter type. In the context of the factual background to this case, Named Company Limited was contracted at all material times to provide security services at the Respondent’s stores throughout the country. It did not supply the Respondent with personnel to work under the latter’s supervision and direction. It follows, therefore, that the Complainant’s claims against the Respondent under the 1998 Act are not well-founded as the Respondent was at no stage his employer for the purposes of that Act. The factual overlaps between EDA 1823 and the present case are close – the End User in this case is the Respondent referred to above in EDA 1823. Allowing for normal daily interactions between the Complainant and End User Mangers, particularly in the area of Health and Safety I did not find that these were of sufficient weight to alter the Agency /Managed Service arrangement. The Complainant was employed by Respondent A to provide a Manged Service on a major physical site - not to fill vacancies in the End User Employee & Manpower requirements. Accordingly, the claim has to fall on these grounds alone.
3:2 The Substantive case. In this case the legal principles regarding the need to establish a Prima Facie case are clear cut. The Mobile Phone incident complained of was on the face of it a once off situation. The follow through was clearly in keeping with normal rules and regulations. Accordingly, there can be no successful claim on the Grounds of Race or Religion or Victimisation for what was basically a once off situation/incident. The Complaint made numerous other allegations against a specific End User manager regarding incidents that were alleged to have happened over a prolonged period. The allegations ,while made most sincerely, were lacking in the required level of legal evidence ,witnesses etc required. I noted that the Complainant’s direct employer had investigated these complaints via a Third-Party HR Consultant and had found no substantiated claim. |
4: Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
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-00013551-001 | Claim dismissed. The Respondent is not the correct employer. Precedent of EDA 1823 refers. |
Dated: 27.6.18
Workplace Relations Commission Adjudication Officer:
Key Words:
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