ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015542
Parties:
| Complainant | Respondent | |
| Anonymised Parties | Contracts Manager | Duct Cleaning Company |
| Representatives | In person |
Complaints:
| Act | Complaint Reference No. | Date of Receipt |
| CA-00020107-001 | ||
| CA-00020107-002 | ||
| CA-00020107-003 | ||
| CA-00020107-004 | ||
| CA-00020107-005 | ||
| CA-00020107-006 | ||
| CA-00020107-008 | ||
| CA-00020107-009 | ||
| CA-00020107-010 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 , Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 79 of the Employment Equality Acts, 1998 - 2015, and Section 25 of the Equal Status Act, 2000,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
| The Complainant worked for the Respondent from 24th August 2015. He was paid €620 gross and worked 40 hours a week. The Complainant referred a number of claims against the Respondent to the WRC on 29th June 2018.At the adjudication hearing the complaint CA-00020107-006 in respect of constructive dismissal and the complaint CA-00020197-009 under the Equal Status Act were withdrawn.The Respondent was represented at the hearing. The Complainant was unrepresented and confirmed to the hearing that he was happy to proceed with the hearing without representation. |
Summary of Complainant’s Case:
| The Complainant submits that he did not receive a statement in writing of his terms and conditions of employment. |
Summary of Respondent’s Case:
| The Respondent conceded that the Complainant was not furnished with a contract of employment. |
Findings and Conclusions:
| Section 3 of the Act provides as follows:“ Written statement of terms of employment(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say…(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say…(2) Each statement referred to in subsection (1) and (1A) shall be given to an employee notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given.” I find that the Respondent was in breach of Section 3 of the Terms of Employment (Information) Act, 1994 and that the Complainant was not provided with a written statement of his terms and conditions of employment. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
| I declare this complaint well-founded and I order the Respondent to pay the Complainant compensation of €1,000. |
Summary of Complainant’s case:
| The Complainant submits that he was not notified in writing of a change to his terms of employment. The Complainant claims that in mid-November 2017 his hours of work were reduced from 40 to 20 hours a week for three weeks and then went back to 40 hours. The Complainant applied for an extension of time in respect of the submission of this complaint to the WRC. He claims that in November 2017 he contacted a Citizens Information Office and was advised to get a form outlining the changes signed. This never materialised. He submitted that he did not submit the complaint earlier as he was put back on his normal hours and initially it was not an issue. |
Summary of Respondent’s case:
| The Respondent submits that it does not accept that changes to the Complainant’s terms of employment occurred.The Respondent submits that the claim is statute barred and an extension should not be granted. |
Findings and conclusions:
| The first matter I must decide is if I have jurisdiction to hear these complaints.In making my decision, I must take account of both the relevant legislation and the legal precedent in this area. The time limits for submitting claims to the Workplace Relations Commission are set out in Section 41 of the Workplace Relations Act 2015 which provides that:“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.” The Complainant claimed that a change was made to his terms of employment on or around 15th November 2017. Therefore, under Section 41(6) of the Workplace Relations Act 2015, the initiating complaint referral form must have been submitted by 14th May 2018. The complaints were referred to the WRC on 29th June 2018. I find that the herein complaint has been lodged outside the time limit prescribed by Section 41(6) of the Workplace Relations Act 2015. Section 41(8) of the Workplace Relations Act 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions: “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.” The Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows; “It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.” Therefore, in order to achieve an extension to the time limit the Complainant must be able to show that there are reasons which both explain the delay and afford an excuse for the delay. The Complainant submitted that he did not submit his complaint to the WRC as he was put back to work his normal hours and “initially it wasn’t an issue”. He confirmed that he was in contact with the Citizens Information Office in November 2017.Having carefully considered all evidence available to me, I find that the Complainant has not shown reasonable cause to empower me to extend the deadline for submission of his claim for redress under the Act.Taking all of the foregoing into consideration, I find that I have no jurisdiction to investigate this complaint. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
| Having carefully considered all evidence available to me I find that the Complainant has failed to submit his complaint within the required time limit. Accordingly, I do not have jurisdiction to inquire into the complaint. |
Summary of Complainant’s case:
| The Complainant submits that he was not notified of the working hours regulations applying to the road transport sector.The Complainant submits the he drove a Renault Trafic van carrying equipment and tools. The Complainant confirmed that the van was not equipped with a tachograph. |
Summary of Respondent’s case:
| The Respondent submits that the Complainant’s employment with the Respondent’s company does not fall within the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012. The Regulations have a clearly defined scope and it is clear that the Complainant was an employee of a duct cleaning company. While he was furnished with a company vehicle in order to attend at the contracted places of cleaning, he does not fall within the definition of the Regulations. |
Findings and conclusions:
| The Complainant argued that he was a mobile worker while in employment with the Respondent. He claimed that he drove a Renault Trafic van to travel to various locations where he worked. He confirmed that the van was not equipped with tachograph. I find that the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 S.I. 36 of 2012 applies to bus and truck drivers and other mobile workers who use tachographs for recording driving times, breaks and rest periods. A mobile worker is defined as any worker forming a part of the travelling staff who is in the service of an undertaking which operates transport services for passengers or goods by road for hire or reward or on its own account. There was no dispute that the Respondent operates a duct cleaning business. The Complainant was provided with a company van, a non-tachographed vehicle for the purpose of traveling to and from the locations where he performed his work. I am satisfied from the evidence adduced that the Complainant is not covered by Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 and accordingly I find that this complaint is not well-founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
| I find that this complaint is not well-founded. |
Summary of Complainant’s case:
| The Complainant submits that he did not receive the terms and conditions as laid down by an Employment Regulation Order (ERO) for the contract cleaning industry. |
Summary of Respondent’s case:
| The Respondent submits that the Complainant’s employment with the Respondent did not fall within the confines of the ERO. The Respondent submits that the ERO covers workers employed in contract cleaning on any of the following duties: the cleaning of the interior of offices, shops, hospitals, factories, stores and other similar establishments. |
Findings and conclusions:
| I find that “Contract Cleaning” means the cleaning of premises by companies engaged in whole or in part on the provision of cleaning and janitorial services in establishments such as hospitals, offices, shops, factories, stores or similar establishments on a contract basis.Workers covered by the ERO are those employed in contract cleaning on any of the following duties: the cleaning of the interior of offices, shops, hospitals, factories, stores and other similar establishments. I am satisfied from the evidence adduced that the Complainant is not covered by the Employment Regulation Order (ERO) for the contract cleaning industry and accordingly I find that this complaint is not well-founded.
|
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
| I find that this complaint is not well-founded. |
Summary of Respondent’s case:
| The Respondent submits that the Complainant started his employment on 24th August 2015. The Complainant worked well within the business resulting in yearly bonus payments and his hourly rate of pay increase. The Respondent submits that in or around October 2013 the Respondent obtained a contract with Client A. This contract, which is renewed annually, has a 40-week work duration and the employees of the Respondent company are supervised by the Client A’s Maintenance Manager. In November 2015 MW was tasked with this contract as he lived near. He was assisted by an agency worker. The nature of the contract was that while it had 40-week duration, the weeks were allocated by the Maintenance Manager. In mid-2017, the Maintenance Manager requested a break in the work and therefore, MW and the other worker were assigned to another contract (Client B). When Client A looked again to resume works some weeks later, as MW and his colleague were not finished with Client B, the Complainant and another employee, DK, were sent to Client A from 11th September 2017. Unfortunately, on 1st November 2017 the Respondent was informed that Client A was no longer agreeable to the Complainant and his colleague completing the contract and did not wish them to attend their site any further. The Respondent found itself in a very difficult position. It necessitated having to redeploy MW back to Client A. There was no other long terms contract for the Complainant or DK to be sent to. The Complainant’s last day of work on the Client A contract was 31st October 2017. The Complainant had been informed of the situation and was redeployed to various other contracts to work. However, work was not in abundance for the Respondent. Fortunately, the Respondent obtained another contract with Client C and was able to fully engage the Complainant and DK. This contract commenced on 18th December 2017 and was due to finish on 9th May 2018. Due to the fact that the Respondent had limited work available at the time, the Director of the Respondent, KM informed the Complainant on 9th May 2018 that due to the lack of contracts available, the Respondent was going to lay him off pending the achievement of new contracts. The Complainant noted this position. However, he stated that he would actually be seeking his redundancy as he required finance and did not wish to wait around in a lay-off period. The Complainant also informed the Respondent in that conversation that he was setting up a duct cleaning company and was planning to work for himself. Despite the business being in direct competition with the Respondent’s business the Respondent had no objection and agreed that if the Complainant did not wish to avail of the lay off period with a view to be re-instated once work increased, then the Respondent would make him redundant. Following the meeting, KM personally drove the Complainant home and the relations were extremely amicable. They discussed keeping in touch and KM confirmed should the Respondent obtain extra contract, that if he wished, the Complainant may subcontract for those jobs. KM wished the Complainant well in this new venture. The Respondent submits that DK had also been informed of the lay-off. Approximately seven weeks later DK agreed to work as a labourer for another company of which KM was a Director and by mid July 2018 he was once again employed by the Respondent as new contracts were achieved. The Respondent submits that, on foot of the conversation that had taken place with the Complainant on 9th May 2018, the Directors of the Respondent obtained legal advice as to how best manage the situation. They were advised that as the Complainant had sought redundancy as opposed to the lay-off, that he should be asked to sign RP9 form. HM, another Director of the Respondent made contact with the Complainant in this regard. However, the Complainant stated that he did not wish to sign that form as to do so, would mean that he would concede his two weeks notice period. The Respondent submits that the Complainant initially issued correspondence to HM on 11th May 2018. Within that letter, he acknowledges that he was informed on 9th May 2018 that he was to be laid off temporarily and that he expressed interest in redundancy. He goes on to state that “after discussions with [KM] we both agreed that it would be better for myself to take redundancy”. HM reverted to the Complainant on foot of this letter, as due to her lack of legal understanding of the position, she felt that this phraseology in relation to the discussions with KM would indicate that potentially, the Respondent had imposed redundancy on the Complainant. Her concerns were unfounded as the original letter had in any event clearly stated that the Complainant had expressed interest in redundancy payment. In any event, the Complainant issued a second letter, of the same date removing this line. In the revised letter, the Complainant states that after speaking with HM it was agreed that “you will settle over this coming weekend and also you have agreed that you will include the statutory two weeks notice period in my redundancy package as goodwill”. The letter goes on to furnish the Complainant’s own calculations of the redundancy sum which is incorrect. By referring to the 2 week payment as one of goodwill, it is clear that a discussion had ensued about the fact that notice was not due if redundancy was elected by the employee. The accountant for the Respondent issued confirmation of the redundancy sum owed to the Complainant. In the Complainant’s form, he correctly confirms that he was met post his redundancy by KM to return items belonging to him. It is absolutely denied that KM acted in a threatening or intimidating manner and in any event this unsubstantiated account has no bearing on any matter before this forum. As clearly set out form the history of matters above, the Complainant was in fact temporarily laid off by the Respondent. However, he elected to take redundancy. While the Respondent had no work for the Complainant as of 9th May 2018, the Complainant was advised that on that situation changing he would be immediately contacted to re-engage in his employment. The Complainant clearly elected not to partake in this lay-off procedure on the basis that he had started or was in the process of starting his own competing business. This is clear from the correspondence exhibited. The Respondent submits that lay-off and short time are defined in Section 11 of the Unfair Dismissals Act, as amended. A lay-off occurs where the services of an employee are not required because of lack of work to be carried out by that employee, once the employer gives notice to the employee beforehand that the break in employment is temporary in nature. An RP9 form may ne used by an employer in this regard and Part B of that form allows the employee to confirm their notice of their intention to claim a redundancy payment. The Respondent submits that due to the conclusion of the contract with Client C and due to the fact that the Complainant was refused entry to the Client A, the Respondent had no work available as of 9th May 2018. The Respondent notes that the Complainant exhibits documentation, which alleges that work was available. Firstly, the Respondent points out that, taking into account that these are documents of the Respondent, the company is unaware as to how the Complainant holds copies of same. In any event the Respondent sets out as follows: Invoice 1 is dated 16th April 2018 and indicates the completion of works. The fact that the Respondent was seeking payment for works carried out does not indicate ongoing work. An email from a potential client dated 22nd March 2018 for works which were due to be carried out in June 2018. Again, it is unclear why the Complainant has furnished this document as at the time of lay off, these works were not available. By way of information, the Respondent was not finally required by this client until July 2018. An email dated 9th April 2018 confirming payment. Again, this is a month prior to the Complainant being laid off. It is irrelevant to the Complainant’s claim that the Respondent as seeking discharge of invoices for works carried out prior to his temporary lay-off. On foot of the above, the Respondent argues that the Complainant cannot uphold a claim for unfair dismissal. It is clear that he sought to be made redundant by the Respondent as opposed to a temporary lay-off. Further, the Complainant expressed an interest in redundancy and he himself outlined applicable payments. The Complainant informed KM of the Respondent that he was setting up his own business. A print out from the Companies Registration Office shows that he duly incorporated his own company on 11th June 2018. This affirms the version of events as recited by the Respondent. Evidence of HM, Director HM stated that KM told her that he contacted two employees and one requested redundancy. She said that she needed to contact an accountant as she was not sure about the situation. She got advice to get form RP9 signed. HM stated that the Complainant first refused to sign the form because of the notice loss. She reverted to the accountant as she did not know how to address that. She advised the Complainant that he requested redundancy and he would need to sign the form but the Respondent would pay him 2 weeks ex-gratia payment in respect of his notice period. The Complainant then signed the form and accepted the cheque. Evidence of KM, Managing DirectorKM confirmed that following completion of the contract for Client C there was no work and two employees were informed of temporary lay-off. He confirmed that DK was subsequently employed by another company KM is involved in, but no new employees were employed by the Respondent since. |
Summary of Complainant’s case:
| The Complainant submits that he was unfairly dismissed and seeks compensation in this regard. In his written submission the Complainant outlined an extensive list of encounters with KM of the Respondent when he claims he and KM “fell out”. For the purposes of this decision only the matters related to the claim of unfair dismissal will be addressed. The Complainant submits that the Respondent planned to “remove” him from the company. The Complainant argues that he was told that he and one other employee were being made temporary laid-off due to no money or work. He claims that this is false, and he was made to take redundancy. The Complainant claims that he was told that the Respondent was closing the business, so he was “letting me go as there was no work”.The Complainant claims that, after he finished a big contract that no one else could do (Client C), KM of the Respondent told him straight away on the same day that he was temporarily laying him and DK off. The Complainant questioned it and was told that there was no work or money available. Unbeknown to KM the Complainant could see there was remittance notices coming in to the bank plus lots of purchase order for work. The Complainant submits that he asked KM about redundancy as he knew that the Respondent would not be taking him back and KM offered it straight away. The Complainant then contacted HM, the Director of the Respondent and was informed that he needed to write a letter saying that he requested redundancy. The Complainant did so and put all the information about the meeting in it. The Complainant claims that HM was not happy with that and advised him that he needed to re-word the letter saying that he personally requested redundancy, so he followed instructions and did that. The Complainant submits that a day later he received a telephone call from his co-worker DK telling him that he had been laid off.The Complainant claims that over the next few days HM of the Respondent arranged to meet him with his redundancy cheque. Before handing it over she made the Complainant sign RP9 or RP50 form. The Complainant claims that he was told that this was just a standard form so he signed it. The Complainant asked HM to honour his 2 weeks notice, which was paid to him.The Complainant submits that his colleague DK was re-employed two weeks later with another company which operates from the same office and would often swap employees if one was busier. The Complainant submits that DK is now cleaning ducts and everybody is still employed but not him. He believes that the whole thing was constructed to make him leave. In his direct evidence the Complainant confirmed that when he was informed of the temporary lay-off he inquired about redundancy. He confirmed that he signed RP9 form requesting redundancy and collected and cashed the received cheque. He also agreed that the Respondent’s accountant’s calculations of the redundancy payment were correct. In cross-examination, the Complainant confirmed that he set up his own business. |
Findings and conclusions:
| The Complainant was informed that he was to be laid-off on 9th May 2018. The Complainant confirmed at the hearing that, having been informed of the temporary lay-off he inquired about the possibility of redundancy. The correspondence dated 11th May 2018 shows clearly that the Complainant “expressed interest in redundancy” and that the Respondent agreed to “pay all that was owed in regards to redundancy matters”. At the adjudication hearing the Complainant raised the matter of the amendment he claims he was required to make to the initial letter he wrote to the Respondent in that regard. The change related to the statement “…after discussions with [the Director] we both agreed that it would be better for myself to take redundancy…” The Complainant argued that he “was told to manipulate a letter I had sent so I could get paid what was owed”. I find that the Complainant was fully aware of his entitlements and he capably negotiated the matter of redundancy and any other outstanding entitlements such as annual leave and wages with the Director of the Respondent. The Complainant was clearly aware of the fact that he was not entitled to minimum notice and successfully negotiated this matter with the Respondent. The Form RP9 provided post-hearing shows that the Complainant was informed of the temporary lay-off on 6th May 2018. The Complainant confirmed that he signed Part B of the Form ‘Notice of Intention to claim Redundancy Lump Sum Payment in a Lay Off/ Short Term situation’. The date the Complainant signed the form on is illegible. However, the parties confirmed that it was 18th May 2018 and the employment ceased as of that date. I note that the Redundancy Payment Act, 1967 requires that to render the notice valid the claimant must be on short-time or lay-off for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive. However, the matter before me relates solely to whether the dismissal was unfair or otherwise. There has been no submission made that the Complainant was unfairly selected for redundancy.Having considered the circumstances of this claim I find that the Complainant, having been informed of the temporary lay-off, requested redundancy and therefore his employment terminated by reason of redundancy arising from a circumstance consistent with the circumstance set out in the Redundancy Payments Acts 1967 to 2015 at Section 7(2). It is common case that all relevant statutory payments under the Redundancy Payments Acts, 1967 to 2015 were paid to the Complainant upon termination. In the circumstances I find that the Complainant was not dismissed and that no complaint under the Unfair Dismissal Act 1977 arises. |
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.
| I declare this complaint to be not well-founded. |
Summary of Complainant’s case:
| The Complainant submits that he has been discriminated against by the Respondent. In his WRC Complaint Form the Complainant did not indicate on what ground he believed he was discriminated against. He stated that the most recent date of discrimination was 9th May 2018. At the adjudication hearing the Complainant stated that he was discriminated against on the ground of his race. He argued that he is British and was called by the Director of the Respondent an “English bastard”. He also stated that a tracker was put on his van because the Respondent thought him being untrustworthy. He also referred to a meeting in January 2018 in respect of diesel receipt. He claimed that the Respondent accused him of stealing diesel and took €120 of the Complainant for diesel for using the van without asking. The Complainant said that he was never told that he couldn’t and after this incident he never used the van after hours. In his direct evidence the Complainant said that he and the Director of the Respondent, KM used to be friends. He stated that KM was calling him “English bastard” and the Complainant believed it was humorous. He confirmed that he had never made any complaint about it as he thought it was a banter. |
Summary of Respondent’s case:
| The Respondent submits that the Complainant contends that he has been discriminated against by the Respondent however, he has not selected any of the nine grounds for discrimination. It is essential that the Complainant stipulate on which of the nine grounds he contends he has been discriminated against. The Complainant then, via his complaint form, states that the discrimination falls under the bracket “other”. He then recites the most recent date of discrimination being 9th May 2019. The Respondent submits that there is an obligation of the Complainant to firstly set out the grounds and reasons for any alleged discrimination and, secondly, to confirm and name a comparator within the workplace. The Complainant has not dealt with any of these issues and the Respondent contends that this was done on the basis that there was no discrimination. The Respondent submits that the Complainant recited the date of 9th May 2018 and this is the date when he was informed of his temporary lay-off. Taking into account that this lay-off was put to both the Complainant and to another employee, DK, the Respondent puts the Complainant of strict proof of any matters that he may attempt to raise at the hearing. The Respondent relies on Section 85A of the Act in relation to the burden of proof. The Respondent argues that it is pre-requisite that there are some primary facts upon which the Complainant must rely to ground his allegation of discrimination. Evidence of KM, Managing DirectorKM stated that the Respondent owns two vans, the only one used was the one the Complainant used to drive. KM argued that it is a standard procedure to have trackers installed in circumstances when employees are using a vehicle belonging to an employer. The Complainant was aware of the tracker, he was the person who brought it to the van. KM emphasised that there were always two employees travelling in the van, the Complainant and an Irish employee. |
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. In the case of Melbury Developments v Arturs Valpetters EDA0917 the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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 …… the burden of establishing the primary facts lay 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 race as follows – “as between any 2 persons, ... “that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”)". Section 28 “The comparators(1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:(g) in relation to the ground of race, C and D differ as to race, colour, nationality or ethnic or national origins or any combination of those factors” I note that the Complainant did not name a comparator. First, I must consider whether the Complainant has succeeded in establishing a prima facie case of discrimination. In the context of this adjudication hearing, the onus is on the Complainant to show that, based on the primary facts, he has been treated less favourably than someone who is not British. The primary facts The Complainant alleged that throughout his employment with the Respondent he was called by KM an “English bastard”. He did not refer to any specific dates. He stated that he never made any complaint in relation to the matter as he considered it “humorous” and “banter”. The Complainant confirmed that he and KM were friends for some time and only in or around January 2017 KM’s attitude changed and the relationship deteriorated. The Complainant further alleged that a tracking device was installed in his van. There was no date given to the Adjudication Officer as to when this occurred. The parties confirmed that there were always two employees in the van, the Complainant and an Irish employee, DK, albeit it appears that the Complainant was the driver. The Respondent argued that having a tracker in a vehicle belonging to the Respondent is a standard procedure and, as two employees (the Complainant and an Irish employee) used the van it could not be possible racially motivated. The Complainant also alleged that in or around January 2018, again no specific date was given, he was accused of stealing diesel and €120 was deducted from him for using the van after hours. He claimed that he was not informed that he was not allowed to do so. The Complainant did not refer to the matter of lay-off. However, as he noted in his complaint form that the most recent date of discrimination was 9th May 2018, which is the date on which he was informed of the lay-off I will address it for the sake of completeness. There was no dispute that both the Complainant and his so-worker DK who is Irish were informed of the lay-off on the same day. The subsequent decisions made by each of these two employees in terms of the lay-off and redundancy are of no relevance to this claim. From my examination of the evidence presented at the hearing of this complaint, it appears to me that the Complainant had a long list of grievances against KM. He confirmed that he had not raised them with the Respondent. As no specific dates when the alleged discriminatory treatment occurred were furnished at the hearing it is impossible to establish whether the incidents referred to by the Complainant fall within the time frame prescribed by the legislation. Leaving that aside, I refer to the Labour Court determination in Graham Anthony & Company Limited v Mary Margetts EDA 038. The point made by the Chairperson of the Court, Ms Jenkinson, is relevant here: “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.”Having examined the primary facts adduced by the Complainant, it is my view, that, they are inadequate to show that, on the balance of probabilities, he was subjected to discrimination on the race ground. For this reason, the burden of proving the absence of discrimination does not shift to the Respondent. |
Decision:
| I have concluded that the Complainant had not established the primary facts which show that he was discriminated against on the ground of his race. I find therefore, that this complaint is not well-founded. |
Summary of Complainant’s case:
| The Complainant submits that he did not receive minimum notice of termination of his contract of employment. At the adjudication hearing the Complainant conceded that he received an ex-gratia payment in respect of his two weeks’ notice with the redundancy lump sum. |
Summary of Respondent’s case:
| The Respondent submits that an employee who claims and receives redundancy payment due to lay-off or short time, is deemed to have voluntarily left the employment and as such is not entitled to notice under the Act. The Respondent submits that it is the fact that the Complainant requested redundancy. On foot of this request being processed the Respondent had sought an RP9 form to be signed by the Complainant. The Complainant appeared to have already obtained advices and was aware that by doing so would lead to his losing his notice entitlements. In order to attempt to make sure that the Complainant was fairly dealt with, the Respondent agreed to provide an equivalent sum to the Complainant to cover his notice, by way of ex-gratia sum. Despite the Complainant in essence receiving more than the equivalent sum (as any notice payment would have been taxed but an ex-gratia payment was able to avail of exemptions) in any event, the Complainant is debarred from receiving a minimum notice entitlement on foot of his request for redundancy. The Respondent makes a further point that in the Complainant’s summary form which accompanied his complaint form, he states “I asked her to honour my 2 weeks notice period to which she paid.”. |
Findings and conclusions:
| An employee who initiates a claim for redundancy following lay-off/short-time has no entitlement to notice as he is considered to have voluntarily resigned employment. In view of my finding above that the Complainant, having been informed of temporary lay-off requested redundancy I find that the Complainant has no entitlement to minimum notice.I note that there was no dispute that the Complainant received a two-weeks’ ex-gratia payment to cover his notice period with the redundancy lump sum paid to him. |
Decision:
| I declare this complaint to be not well-founded. |
Dated: July 29th 2019
Workplace Relations Commission Adjudication Officer:
Key Words:
| Unfair dismissal- terms of employment-minimum notice- discrimination of race ground- |