Complainant

Respondent

Anonymised Parties

An agency worker

An agency employer

Representatives

Ibec – Darragh Whelan

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-00019307-001

15/05/2018

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

CA-00019307-002

15/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under 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

CA-00019307-003

15/05/2018

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

CA-00019307-004

15/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00019307-005

15/05/2018

The Complainant commenced as a warehouse operative/van driver/delivery man and was placed, as an agency worker, with a company supplying small household items to new housing estates and also to older houses. Many of these items required assembly and installation in these houses.

While his initial engagement was as a delivery driver/warehouse operative only, he was subsequently asked to assemble and install the products. He agreed to do this on the basis that he was “handy” and capable of doing this work. He says that he agreed to do the assembly and installation provided he was paid as an “installer”.

He says that he never received a higher rate and that because he pursued this issue and raised a Health and Safety issue around it he was no longer acceptable to the client company and was dismissed.

He is here processing his complaints under the legislation detailed above.

The Respondent says that there was no higher rate to employees performing the same roles and that they understood that he was comparing, as an agency worker, to an individual who had a supervisory role who enjoyed a higher rate.

The Complainant says that he was recruited as an agency worker by the Respondent on the 9th October 2017. He commenced as a general operative/van driver, on a rate of €12 per hour. If there were no activities on a day or part thereof on deliveries, he would work in the warehouse.

After a few weeks of his employment he was asked to deliver and install some of the products of the organisation he was placed in. He did this, did a good job and was recognised as someone with the required ability to perform assembly and installation of the products. He was asked by the warehouse manager if he would continue to do this work as required. The complainant responded that he would, provided he received the pay level of an installer and some training. The warehouse manager did not have a problem with this.

The Complainant says he continued to do the work, he received some routine training, which he said was helpful. He describes himself as being a handyman and as such gained knowledge and some expertise from the training.

He says that in the first week he did not receive a pay increase and so continued to lobby on this. His supervisor at the agency company took it up for him and eventually came back with an offer of €13 an hour “while he was carrying out the role of assembly and installer”. He was also advised that at €12 per hour he was being paid above the rate of his comparators. He said that he wanted the €13 per hour rate together with retrospective payments, at the higher rate, for work already done.

The over and back continued, he says, for some time, and he then advised the warehouse manager that he would not continue with this work.

He says that shortly thereafter he was dismissed on the basis that there was not another role for him.

His complaints are:

·       Discriminated against and denied Equal Status on pay and conditions of employment with other like employees

·       That he was denied other Terms and Conditions under the Organisation of Working Time of persons performing Mobile Road Transport Activities – S.I. No. 36/2012

·       That he suffered Penalisation having made a complaint under Section 28 of the Safety, Health and Welfare Act, 2005

He says that he is seeking Compensation for breaches of these pieces of legislation, which resulted in his dismissal.

The Respondent says that the Complainant was hired as a van driver/warehouse operative on the site of the Respondent’s client.

They say that as part of this role the Complainant’s role was that of driver, warehouseman and if required, assembler/installer.

They say that together with his contract of employment the Complainant was issued with an Assignment Details Form. They say that when taken together they outline the Complainant’s remuneration as €12 per hour. They say that direct employees of the client are paid at a starting rate of €11.50 per hour for combined tasks including a combination of driving, delivery and assembly.

They say that the Complainant’s employment was terminated due to his refusal to undertake duties for the client company and because of threats received by their client.

They say that there is an onus on the Complainant to show that there was discrimination against him. In this they quote from the Labour Court decision in Southern Health Board v Mitchell, DEE011, [2001] ELR 201 where the Court stated:

                                             “The first requirement is that the Complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicated that a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”

The Respondent believes that such primary facts have not been proven here and believe therefore that the complaint must fall.

In his case the Complainant started originally with 7 complaints. Complaints 00019307-006 and 00019307-007 were withdrawn by the Complainant.

Complaints CA-000019307-001 and CA-00019307-002 are one and the same and deal with the substance of the Complainant’s case, where he asserts that he was discriminated against by the Respondent insofar as he was paid a lesser rate of pay compared to employees performing similar work for the client. Outside of making this assertion he was unable to prove the assertion of discrimination. Notwithstanding, I asked the Respondent to remit to me and the Complainant, the hourly rates of the employees with whom the Complainant compared his pay rate.

The Respondent, after some time, remitted the information required to myself and the Complainant -suitably redacted in terms of names-.

The Complainant made no further submission.

This information demonstrated no discrimination in pay as claimed by the Complainant.

I find that these complaints fail.

Complaint CA-19307-003. There was no evidence adduced by the Complainant in support of this complaint.

The Respondent says that the legislation referred to applies to Heavy Goods Vehicles and not to van-driving

I find that this complaint fails.

Complaint CA-19307-004. In this complaint the Complainant says that, under Section 25 of the Protection of Employees (temporary agency work) Act, 2012, he was penalised for raising his complaint about his pay and his refusal to carry out the work required. He says the he was willing to carry out the work if he received the appropriate pay rate.

The Respondent denies penalisation and says that indeed they had engaged with the complainant in relation to the pay rate. They sought to demonstrate to him that he was paid the same as and ultimately at a higher rate than those employees he compared himself to. They say that notwithstanding this the Complainant refused to carry out the work for which he and they say he was competent and had been provided with training. They say that he refused to and that further there were complaints of intimidation against the Complainant by the client. They say that as he refused to do what he was trained, able and paid to do, there was no role for him.

It is clear to me that the Complainant created the circumstances for his removal from his position.

I find that this complaint fails.

CA-OOO19307-005. This complaint is taken under the terms of Section 25 of the Safety, Health and Welfare at Work Act, 2005. During the course of the hearing the Complainant says that he was required to perform work for which he was not qualified or trained and that this was inherently unsafe and that he complained about this. He also says that he was ‘handy’ and able to perform the work required, that he was provided with training to do so but that he was not paid the same as other comparable employees for doing so. He was paid a higher rate for when he performed the installation duties. In this he was advised that he received a higher rate than his comparators. I find that the complaint insofar as it was pursued, was not about his competence to carry out the tasks required, but came back again to the issue of his pay. This had been dealt with.

I find that this complaint fails.

I find that the complaints. fail as laid out above in my findings