ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00012210

Parties:

Complaint(s):

Date of Adjudication Hearing: 13/Mar/2018

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015,Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and 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:

CA-00015995-001 Complaint under the Organisation of Working Time Act

This complaint was withdrawn by the Complainant at the hearing.

CA-00015995-002 Complaint under the Unfair Dismissals Act

Summary of Complainant's Case

The Complainant stated that the amount of work taking place in the factory diminished from March 2017 onwards; there was no work, or pay, in July.

The Complainant submitted that on 7th July 2017 he received an SMS message from his manager telling him that there was no more work available for him. Over the next 10 days the Complainant only worked two night shifts for the Respondent. On the 2nd August, he received another SMS message telling him that he had been made redundant.

Along with other colleagues the Complainant was called to a meeting with management held on 3rd August 2017 at which he and his colleagues were told to find work elsewhere.

The Respondent completed redundancy forms on 11th August 2017 and at the time of the hearing the Complainant had still not heard anything from the Respondent. In communications with the Department of Employment Affairs and Social Protection the Complainant submits that he was told that his employer had failed to submit evidence that they are unable to pay redundancy.

Summary of Respondent's Case

The Respondent did not attend. I am satisfied that all correspondence has been directed to the correct address and the Respondent’s non-attendance remains unexplained.

Findings & Conclusions

It would seem that the Respondent hit difficult financial troubles, losing contracts. On foot of these difficulties redundancies were sought. The Complainant was one of a number of employees who were made redundant. No redundancy payment was forthcoming from the Respondent and the Complainant has commenced the process of claiming a redundancy payment from the social insurance fund. This process may well be ongoing.

In this instance, it would seem a genuine redundancy situation existed in the Respondent Company.

Section 6 of the Act states:

4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee,

Therefore, a redundancy is not an Unfair dismissal.

Decision

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

In the circumstances the claim for unfair dismissal fails.

CA-00015995-003 Claim under the Minimum Notice Terms & Terms of Employment Act

Summary of Complainant's Case

The Complainant submits that as he entitled to a notice payment of four weeks.

Summary of Respondent's Case

The Respondent did not attend. I am satisfied that all correspondence has been directed to the correct address and the Respondent’s non-attendance remains unexplained.

Findings and Conclusions

I find the Complainant had more than seven years' continuous service with the Respondent. No notice was given to the Complainant.

Section 4 of the Act states:

(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

( a) if the employee has been in the continuous service of his employer for less than two years, one week,

( b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

( c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

( d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

( e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

Therefore, the Complainant is entitled to four weeks' pay in lieu of notice.

Decision

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

The Respondent is to pay the Complainant four weeks' pay in lieu of notice, i.e. €11.54 x 40 x 4 = €1,846.40.

CA-0001664-001 Complaint under the Employment Equality Act

Summary of Complainant's Case

The Complainant submitted that a colleague, an Irish man, worked at the same facility, under the same management and performed a job with lower level of responsibility yet was paid a higher hourly rate of €13.26 compared to the hourly rate of the Complainant, €11.54. The Complainant is not Irish.

For a long time the Complainant believed his rate of pay was the same as his Irish colleague but when he asked his colleague about his rate of pay he discovered the difference.

The Complainant sent an ES2 Form to the Respondent on 8th March 2017. On 8th August 2017, the Respondent replied by letter stating, "Following your claim for discrimination we accept that your hourly rate was less than hourly rate of another worker, name. However, we can't offer you additional payment from a begin (sic) of your employment to April 2017 due to unforeseeable situation occurred to a loss of our contract in the United States of America."

The Complainant put forward that this difference in rates of pay was due to discrimination of the race ground, there could be no other reason. He stated that he had been paid unequally for a couple of years.

Summary of Respondent's Case

The Respondent did not attend. I am satisfied that all correspondence has been directed to the correct address and the Respondent’s non-attendance remains unexplained.

Findings and Conclusions

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary.

The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established   that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.

The Labour Court elaborated on the interpretation of Section 85A in   the case of Melbury v. Valpeters EDA0917 where it held that Section 85A: "…. provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance   to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) …”. Section 6(2)(h) of the Acts defines the discriminatory ground of different race, colour, nationality or ethnic or national origins as follows – “as between any 2 persons, ... that one   has a different race, colour, nationality or ethnic or national origins from the other, or that one has a race and the other has not" and Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows – “as between any 2 persons …. that they are of different race, colour, nationality or ethnic or national origins”.

The issues for decision by me in this case are (i) was the Complainant discriminated against on the race ground in relation to his conditions of employment and following from that (ii) was the Complainant discriminatorily paid less on the grounds of Race.

On the uncontested evidence of the Complainant, allied with the documentary evidence supplied, I find the Complainant has established a prima facie case of discrimination.

The Labour Court has held on a number of occasions that since the facts that are necessary to prove an explanation that a process was free from discrimination can only be in the possession of the respondent, that Court (and therefore the Workplace Relations Commission) should expect cogent evidence to discharge the burden of proof placed on an employer.

On the uncontested evidence of the Complainant I find he was paid less than his comparator, for doing like work. I find that this less favourable treatment was discriminatory, based on a difference in race between the two colleagues.

The Complainant could not identify the duration of this discrimination but was of the belief that it had been going on for a "couple of years".

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.

The Complainant did perform ‘like work’ with the named comparator in terms of Section 7 (1) (b) of the Acts and I find that there are no objective grounds other than race for the difference in pay and that the Complainant has been discriminated against by the Respondent.

Accordingly, under Section 82 of the Act I here order that the Respondent pay to the Complainant arrears of pay of €1.72 per hour for the period of two years before the date of claim, November 2017; this equates to a total of €7,155. As this award constitutes remuneration it is subject to PAYE/ PRSI at the appropriate rates.

Dated:   4th September 2018.

Workplace Relations Commission Adjudication Officer: Roger McGrath

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