Complainant

Respondent

Anonymised Parties

An Agency Worker

An Employment Agency

Representatives

Conor Quinn John J Quinn & Co Solicitors

Darragh Whelan IBEC

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-00017230-002

02/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00017230-003

02/02/2018

The Complainant was employed by the Respondent under an Agency Contract to work with a third- party manufacturer. The contract commenced on the 16th June 2017 and ended on the 3rd November 2017.

The complainant submitted three complaints to the WRC:

1.       That he was unfairly dismissed

2.       That he suffered discrimination under Section 77 of the Employment Equality Act, 1998.

3.       That there was a breach of the Section 25 of the Protection of Employees (Temporary Agency Work) Act,2012.

The Complainant says he commenced work on June 16th 2017 as an agency worker, general operative and was assigned to work at a factory in the Midlands. The contract was to expire on the 16th May 2018.

He withdrew the Complaint under the Unfair Dismissals Act, 1977.

He says in relation to the breach of Section 25 of the Protection of Employees (temporary agency work) Act, 2012, that he was not paid the same as fulltime workers, employed at the factory, in breach of this Act. He says that the Act applies to agency workers temporarily assigned by an employment agency to work for a third party. He says that the principle of equal treatment in respect of “basic working and employment conditions” is contained in Section 6 of the Act. It provides that agency workers should be afforded the same basic working and employment conditions as employees directly hired by the hirer to do the same or similar work. He says that this should also apply to overtime and public holidays.

He says that he was paid at the rate of €10.06 per hour while fulltime employees at the factory were paid €12.35 per hour. In his submission he quantified his loss arising from the lower hourly rate in terms of the rate itself, overtime worked at T+50% and T+100% and pay received for holidays and public holidays.

In his complaint under S. 77 of the Employment Equality Act, 1998, he claims that due to a disability at the time and the fact that he had raised the issue of equal pay for agency workers with that of fulltime workers, he was dismissed by the Respondent company during a fixed term contract of employment. He adds that no proper procedures were followed by the Respondent.

He says the issue in relation to pay was first raised in July 2017. In email correspondence with his Account Manager he advised that he had not been paid the correct rate, back to June 2017.

He says he was out ill on the 13th and 14th September 2017. He then advised the Respondent that he would be unfit for work from the 6th October. He confirmed on the 8th October that he could be off work for an unspecified number of weeks, due to Sciatica. He submitted medical certificates to this effect.

On the 31st October he submitted a medical certificate of fitness to return to work provided he was assigned to “light duties”. He says the Respondent notified him that they could not accommodate the light work and that they would “keep him in mind for future work”.

He says that he sought a letter from the Respondent setting out why he could not return to work. He says that the Respondent replied that they could not reply to this as it was against company policy.

The Complainant says that he was denied further work on the basis that it was penalisation for having raised the equal pay issue.

The complainant is seeking compensation for these alleged breaches of his rights.

The Respondent acknowledges the complaint of the Complainant, under Section 77 of the Employment Equality Act, 1998-2011, where he alleges that he has been discriminated against on the grounds of disability and that he has been dismissed due to discriminatory reasons.

The Respondent rejects the allegation that the Complainant was discriminated against on the grounds of disability, or any discrimination at all.

They say that the Complainant commenced employment with them on the 16th June 2017, as a general operative, on a fixed-term basis until the 16th May 2018. They say that the Complainant’s hours of work were variable throughout the week, on an ‘if and when required’ basis. The Complainant, they say, was under no obligation to accept hours and the refusal to accept hours could have no negative consequences for the Complainant’s employment. Similarly the Respondent was under no obligation to offer hours and no guarantee was given to the Complainant that hours would be provided. They say that staffing levels and rosters are determined by the client.

They say that the Complainant resigned from his employment with effect from the 3rd November 2017.

They say that the Complainant alleges that he was not paid the same rate of pay as similar fulltime workers (at his work location). This would be in accordance with Section 6(1) of the Protection of Employees(Temporary Agency Work) Act, 2012. They say that the Complainant commenced on a rate of €10.06 per hour. This was the correct pay rate at the time and was that paid to comparable fulltime workers. They say that, without advising the Respondent, the client increased the basic rate to €10.32. The agreed onus was on the client to advise the Respondent of such changes. The Respondent said they first became aware of the disparity during an audit on pay parity, with the client, in August 2017. They immediately corrected the error retrospective to the date of change in the pay rate, for all agency workers, paying back pay to all.

They say that the Complainant accepted the updated rate and back pay and raised no further grievance. They further say that the rate of €12.35, raised by the Complainant as the rate of pay of comparable fulltime employees, was a rate that all staff, fulltime or Agency, could get to following successful completion of a competency-based assessment at approximately 12 months into their employment. Employees could apply to take the assessment earlier if they wished.

The complaint under Section 77 of the Employment Equality Act, 1998:

The Respondent says that the Complainant wrote, on the 8th September 2017, to tender his resignation with immediate effect and requested his P45 as he had taken up other employment on that day. They say that he wrote again on the 11th September 2017 asking the Respondent to disregard his resignation email. The Complainant continued to work with the client after this.

They say that, on the 7th October 2017, the complainant wrote to the Respondent to inform them that he had pain in his leg on the 6th October 2017, while travelling to work and had gone directly to his doctor. He then forwarded a Disability Benefit form to the Respondent together with his medical certificate. The complainant wrote again on the 8th October the Respondent that his doctor had recommended a few weeks off work. The claimant, at that time nominated his brother-in-law as his replacement to cover his absence. He advised the Respondent, in a telephone conversation, that he had hurt his leg by the way that he jumped into his car on the morning before travelling to work and that he would be absent for at least 6 weeks.

The Respondent says that they advised the complainant that they could not complete the Disability Form by stating that the complainant had an accident at work. They say that they also advised that they would require a fitness to work certificate, from the complainant’s doctor before he resumed work and that they would then contact the client to ascertain if there was work available at that time.

They say that on the 31s October the Complainant advised that he would be fit for work from the 3RD November 2017, but that he required work from the client that did not involve “heavy lifting”. The Responded say that they responded, by email, and advised the Complainant that they would advise the client by update on the Complainant’s condition and determine what hours were available.

They say the Complainant responded on the same day seeking his P.45 and following up with an abusive email.

The Responded says that they responded advising of their shock at contents of the email and advising that, given that the Complainant had advised that his absence would extend for at least 6 weeks, that the complainant had agreed to contact the respondent once he was to return to his normal duties. They say that the complainant responded that he was not in a position to wait for confirmation of available hours, and again requested his P.45 so that he could claim Jobseeker’s Benefit. They say he gave his final date of employment as the 3rd November 2017.

The say that on the 15th November 2017, the Complainant wrote to the Respondent alleging that the Respondent had refused to provide a reference for him to another third party. They say that they advised him that this was totally untrue and asked that he provide details of who had advised him so. The Respondent says that they had contacted this other third party on the 14th November 2017 to provide the reference, to which the Complainant apologised ‘for the misunderstanding’.

The Respondent, in support of their position, cite the relevant Act and Jurisprudence from Labour Court decisions.

They say that Section 6(1) of the Employment Equality Acts, 1998 states:

“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a)    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) (in this Act referred to as the “discriminatory grounds”) which—

(b)    (i) exists,

(ii) existed but no longer exists

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

They say that it has been well-established practice of the Labour Court to require a Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person is, has or would be treated, on the basis of the discriminatory ground cited. They say that Section 85A of the Act provides that “where in any proceedings facts are established or on behalf of a Complainant from which it may be presumed that there has been a discrimination in relation to him or her, it is for the Respondent to prove the contrary”

They say that this has been further explored in the case of Melbury Developments Ltd v Arturs Valpeters(EDA0917) where the Labour Court stated:

                     Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which the 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”.

They say, quoting from the Labour Court’s decision in Southern Health Board v Mitchell, DEE011, (2001) ELR 201, that “it is only if those primary facts are established to the satisfaction of the Court, that 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”.

They say that the Complainant has failed to cite any comparators against whom it could be established he has been treated less favourably.

The complaint under the Industrial Relations Act, 1977, was withdrawn by the Complainant.

The Complainant claims discrimination on the grounds that:

(a)    He was discriminated against on the ground of not being paid the same rate of pay (as an agency worker) as a fulltime worker in the client company and

(b)    Being discriminated against, in his disability, versus a fulltime worker with such a disability.

In respect of (a) it is clear that when this was corrected by the Respondent as described in the Respondent’s submission, the Complainant accepted this as an oversight and accepted the appropriate rate and back payment due. There was no intended discrimination and it was corrected when the Respondent received the information required from the client.

In respect of (b) the Complainant mentioned that a fulltime worker was facilitated with work when he had a temporary disability, but no evidence was provided to substantiate this. As the Labour Court said in the case of Arturs Valpeters v Melbury Developments, EDA0917, 2010, “The Court cannot engage in speculation as to how a person with a disability, or a person with a different disability to the Complainant would have been treated in a comparable situation nor can it decide the case on the basis of conjecture as to the factual criterion for the treatment complained of.

On this basis I must conclude that there was no discrimination against the Complainant on the grounds complained of and his claims must fail.

As the complaint of Unfair Dismissal was withdrawn, I am not required to make a decision on this complaint.

I find that the complaint under Section 25 of the Protection of Employees (Temporary Agency Work) Act fails as it was clearly demonstrated that the Complainant was paid the same rate as comparable fulltime employees and that he had accepted this.

Having considered the claims under Section 79 of the Employment Equality Acts, 1998-2015 and the case law as described in the Findings (above), I find that the Complainant’s claim fails.