Complainant

Respondent

Parties

Elvira Yusupova

Athlone Credit Union Ltd

Complainant

Respondent

Anonymised Parties

Representatives

Niall Phillips

SIPTU

Ronnie Lawless IBEC

Tom Upton Chief Operating Officer

Liam Flannery Head of Lending

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-00016111-001

03/12/2017

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

CA-00016111-002

03/12/2017

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

CA-00016111-003

03/12/2017

The Complainant was employed by the Respondent since October 2009. She was initially engaged on a Job Bridge Scheme. She remains in employment with the Respondent.  

She is an Uzbekistani national who has lived in Ireland since 2001.

She worked part time (22 hours) with the Respondent until January 2017 and then following her request she worked full time (37.25 hours) a week as per a roster.

CA-00016111- 001

Due to a change in the Complainant’s childcare arrangements, the Complainant requested her hours of work to be reduced from 37.25 hours to 35 hours per week. She wished to commence work at 9.30 a.m.in the morning as opposed to 9.00 a.m.

Her case is that her manager initially agreed to this. The Complainant was then provided with a written contract of employment which set out a start time of 9.00 a.m. She signed this based on verbal assurances from her manager, that despite what was written in her contract, she could start work at 9.30 a.m.

Some weeks later, the manger advised her that the late starting arrangement could no longer continue and the Complainant was required to start work at 9.00 a.m.

The Complainant made a formal written request for the late start time which was declined by the Respondent.

The Complainant appealed the decision to the Board of Directors which was also declined.

In addition, she requested the Chief Operational Officer on three occasions to allow her to start work at 9.30 a.m. In a meeting on the 26th October 2017, the Complainant raised the fact that that other co-workers (Irish Nationals) were on reduced hour contracts with the permission of the Board of Directors. She was advised that these work practices had been agreed before his tenure. Her request was declined.

The Complainant was offered a new contract in another branch with a 9.15 a.m. start however she considered this to be unsuitable and less family friendly as she would have to work every Saturday as opposed to every second Saturday.

The Complainant identified two co-workers to base her claim of discrimination on grounds of race. One worked 37.25 hours but went home at 3pm and another who worked 3.5 days a week.   She identified a further co-worker who started at 10.00 am but acknowledged that this worker commenced work at 9.00 a.m. since 2018.

CA-00016111- 002

The Complainant wished to upskill and requested to be trained into the position of loan officer.   She did the required exams and again requested to be trained into the position. This did not take place. To the Complainant’s dismay a colleague who was on a temporary contract was trained for the position of loans officer. This colleague was an Irish National and was only working for the respondent for 3 years whereas the Complainant had far longer service.

The Complainant approached the Head of Lending and asked for training as a loans officer. There was an initial attempt to start the process, however due to technical issues the training never commenced.

The Complainant has since trained as a loans officer as have all her colleagues. She can take a loan application from a member; however, she does not have the discretion to grant the loan.

The Complainant identified two loan officers in the main office who were Irish who had this discretion to grant loans.

CA-00016111- 003

This complaint is in relation to equal pay and relates to the fact that the Complainant asked in 2014 for a pay rise and again in 2016. On the first occasion she was advised that as she was a temporary employee she was not entitled to a pay rise. On the second occasion she was advised that that she would have to apply to the Board of Directors. She did this and was granted a pay rise retrospective to the date of her application in 2016.

The Complainant’s case is that she should have been entitled to a pay rise from when she was entitled to be made permanent in 2013. The Respondent refused to back date her pay increases to the date of her permanency.

Her case was that her co-workers who were Irish nationals did not have to make this formal application for a pay rise. They were automatically moved on to the next pay scale with their tenure.

In all the above complaints, the Complainant submitted that she had set out facts that were of a sufficient significance as to raise the presumption of discrimination.

CA-00016111- 001

The facts outlined by the Complainant were agreed in the main. Within two weeks of the Complainant obtaining her full-time status, her timekeeping became a problem. It was agreed with her manager that if this was only one or two mornings a week, she could make up the shortfall at lunchtime.

The problem with lateness continued almost daily through March 2017. In April 2017, the Complainant formally requested a start time of 9.30 a.m. The outcome of the application and appeals are set out above.

Following his appointment, the Chief Operations Officer carried out an entire operational review of the business. In November 2017 he offered the Complainant a position in another branch with a start time of 9.15 a.m. This was rejected by the Complainant.

Despite the Complainant’s timekeeping being a problem, no disciplinary sanction was ever imposed.  

In June 2018 a further meeting was organised with the Complainant’s union representatives. The Complainant now works at the branch office without issue.

It was submitted that all the Comparators named by the Complainant all start work at 9.00 a.m.   It was agreed that part-time employees do finish early in some cases. The Complainant did have different working hours when working part-time. She had requested to work full-time hours.

CA-00016111- 002

The Respondent’s position was that this complaint was clearly out of time. The date of her complaint was June 2016. The Complaint was received by the WRC on the 3rd December 2017.

Despite this, the Respondent made submissions to defend the Complaint. It stated that no position of Loan Officer exists for its business. The Complainant was trained in the area in February 2018. The issue of training does not correlate with promotion.

CA-00016111- 003

This Respondent’s position is that this claim relates to incidents dating back to 2013. On that basis, the complaint is out of time.   The Respondent did accept that errors were made in the calculation of the Complainant’s pay. However, they were corrected and all monies owed were paid to her. The Complainant is now paid at the top of the scale.

Overall, the Respondent’s submission was that the Complainant failed to discharge the burden of proof and failed to show a prima facie case of discrimination. They had a number of non-Irish staff in their employment. In any of the internal appeals brought by the Complainant, she never mentioned discrimination on the ground of race. She did mention family status on several occasions, but a complaint on this basis was not brought to the WRC.

Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated.

The discriminatory ground in this case is race.

The issues for me to decide are:

(i) Was the complainant discriminated in relation to conditions of employment on ground of race in terms of 8(1)(b) of the Acts? (ii) Was the complainant discriminated in relation to promotion or re-grading on ground of race in terms of 8(1)(d) of the Acts?

(iii) Was the complainant discriminated in relation to equal pay on ground of race in terms of 29(1) of the Acts?

A preliminary matter was raised the Respondent regarding time limits.

Section 77(5) of the Employment Equality Acts, 1998 to 2011 states -

“(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 case relates or, as the case may be, the date of its most recent occurrence

(b)On application by a Complainant the Director may, for reasonable cause, direct that in relation to the Complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such a period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

I am satisfied that the acts complained of extend and continued up to the date of the lodgement of the claim with the WRC. I accept that the claims were made in time.

In evaluating the evidence provided to me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:

“Section 85A of the Act provided 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. While those facts will vary from case to 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 establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

I must decide if the Complainant was treated in a discriminatory manner on the grounds of her nationality. In reaching my decision I have considered all the submissions, oral and written, made to me during my investigation as well as the evidence presented at the hearing. I have listened to direct evidence from the Complainant in relation to the three complaints. I have also heard from the Chief Operations Officer and the Head of Lending who were partially involved with the relevant incidents to the complaints.

CA-00016111- 001

I reviewed the Complainants contract of employment dated 4th April 2011. It was a part time contract for a duration of 12 months.   The hours of work were 20 hours per week, Monday to Friday 11.30 a.m. to 3.00 pm. The Saturday rostered hours were to be between 10.00 a.m. to 2.00 p.m.

The Complainant’s contract of employment dated 16th April 2012 was a part time contract and the hours of work were 21 hours between 9.30 a.m. to 5.15 Monday to Wednesday and a 9.00 a.m. start Thursday, Friday and Saturday.

The Complainant’s contract of employment dated 9th January 2017 had a start time at 9.00 a.m. each day.

I find that what has been put forward by both Complainant as less favourable treatment, to be normal operational rostering within the Credit Union. Having examined the correspondence between the parties and having heard direct evidence I accept the version of events put forward by the Respondent. I find the following to be the relevant facts in relation to the complaint under examination: -

-          The Respondent opened to its members at 9.30 a.m. Monday to Saturday (except Thursday).   It required its staff to commence administration duties at 9.00 a.m.

-          All Industrial Relations issues were dealt with in a fair, patient and reasonable manner by the Respondent.

-          The issue of race was not raised in any correspondence sent by the Complainant and it was denied by the Respondent that it was raised verbally during one of the meetings.

-          The Complainant’s evidence of different less favourable start times by her co-workers was rebutted by the Respondent. Following a review by the newly appointed Chief Operations Officer, all staff started at 9.00 a.m.

-          The Complainant was offered an alternative solution which she rejected.

CA-00016111- 002

Having examined the correspondence between the parties and having heard direct evidence I accept the version of events put forward by the Respondent.

I am satisfied that there is no distinction in the organisation between a Clerical Officer and a Senior Clerical Officer in terms of loans.

A new lending department was set up by the Respondent.

There was an issue with an excel sheet which prevented the Complainant receiving earlier training. The Complainant has been trained in the role.   Irish staff were also trained for the role and treated in the same manner by the Respondent.

CA-00016111- 003

I find the following to be the relevant facts in relation to the complaint under examination.

In the past individuals negotiated their own wages. Limited evidence was provided by the Complainant in relation to the different rates of remuneration to which the case relates. The Respondent set out how there had been a pay freeze at one stage in existence. The Respondent explained how the errors in the pay occurred and how it was corrected. The Complainant is paid in line with existing staff and is at the top of the salary scale.

The Complainant has not succeeded in establishing a claim of discrimination on racial grounds and her three complaints fail.

The complainant was not discriminated on the ground of race in relation to her conditions of employment in terms of 8 (1) (b) of the Acts.

The complainant was not discriminated in relation to promotion or re-grading on ground of race in terms of 8(1)(d) of the Acts.

The complainant was not discriminated in relation to equal pay on ground of race in terms of 29(1) of the Acts.