Complainant

Respondent

Parties

Dariusz Bryl

Cognex Ireland Ltd

Representatives

Appeared in Person

Shane O Gorman, IBEC.

Act

Complaint Reference No.

Date of Receipt

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

CA-00018824-001

30/04/2018

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

CA-00018831-001

30/04/2018

This case concerns several complaints of discrimination on civil status grounds, conditions of work and discriminatory dismissal. The Title of the Employer was amended at hearing on consent. The Complainant represented as a Lay Litigant and the Respondent was represented by Shane O Gorman at IBEC.

Two Preliminary Issues were raised:

1 The Correct Identity of the Employer for the purposes of the Act.

2 The Statutory Time limits associated with the complaint.

Both parties presented several written statements, and both relied on supplementary oral submissions.

The Complainant is a Polish National who worked as an electronics assembler from 27 February 2017 until the date of his dismissal on 31 October 2017. He worked a 39-hr week for €11.50 per hour. The Complainant submitted two complaints of discrimination which were duplicated and then conflated to C A -00018824-001 in the form of ADJ 14510 on 25 May 2018. The Complainant was a lay litigant and presented his case with the support of an interpreter. He submitted that he had been in Ireland for 13 years and had worked for an agency previously during this time.

The Complainant submitted that he had been discriminated against on Civil status, in relation to his conditions of employment and had been dismissed for discriminatory reasons. He submitted that the most recent date of discrimination stood at 31 October 2017 which coincided with his last day of work.

Preliminary Issue:

The Complainant sought an extension of the statutory time limit on reasonable cause grounds. he had not received any contact from the Agency and he attributed the delay in needing to secure advice on the treatment he had received at the Respondent business.

Substantive issue:

The Complainant outlined that he had attended an interview with Mr A at the Respondent site two days before he started work. He understood he was to work for the respondent and be paid by the Agency. He submitted his time sheets to the Respondent Supervisor.

On his complaint form CA -00018824, dated 30 April 2018, at 16.55:13 hrs, the complainant outlined a 12-point complaint where that he recorded that he experienced mocking and sneering resulting from his difficulties with the English language, a deficiency in accessing professional tools, lack of proper training at the outset of employment, omission from a communication in house email group.

The Complainant also raised an impediment to him applying for a direct employment position as he was first required to serve 11 months with an Agency but submitted that a named co-worker had benefited from direct employment on serving 6-7 months. This came to his attention post-employment. He also highlighted that his ideas had not been taken on board but were then subsequently implemented.

The Complainant stated that he lost his job due to lack of work in October 2017. The next day, a very similar job was placed on the internet. He applied as his work colleagues had informed him that this was his position, but he did not secure a response.

The Complainant supplemented this by way of written submission dated 8 August 2018.

The Complainant submitted details of a series of negative and discriminatory approaches to him by Mr A, his manager. The first incident evolved from an intercountry call on device wiring where Mr A had publicly referred to the complainant’s difficulties with English which caused him to be very embarrassed and humiliated. A series of incidents followed where the complainants received mis leading information from Mr A. The Complainant sought to discuss these matters, but Mr A was unsuccessful and felt unsafe at work.

The Complainant referred to a communication vacuum which emerged between another company employee Mr B which was frustrated by a fellow agency worker. The complainant had sought to improve the quality of his work tools but was unsuccessful. He believed that he had been deliberately ignored when he sought inclusion in the main mailing group of the company.

The Complainant submitted that he had sent an email request to all at the Logistics Department on 12 October 2017, the purpose of which was to seek his inclusion in email communication.

The Complainant submitted copies of both job advertisements he referred to

1 Electronics Assembler, Recruitment Company, Cork. Tenure: Temporary.

2 Electro Magnetic Operator       Tenure: Temporary

The Complainant submitted his co-worker in Logistics, Mr C, as his comparator, who was unmarried.

During his evidence, the complainant confirmed that he did not have a clear recollection of dates as it had been some time since his employment.

He confirmed that he had been moved from the logistics section to the Production line in the last two weeks of his employment. He submitted that he was dismissed by his supervisor without written confirmation. He had served 7 months of his contract.

During cross examination, The Complainant confirmed that he had written his submission. he stated that he didn’t have dates governing the discriminatory behaviour, but he believed that he couldn’t raise his unease at work and had not raised a grievance. When questioned by the Respondents representative why he should have felt ridiculed when in possession of perfect English, the complainant did not engage with the question.

The Complainant accepted that the second advertisement referred to in his documents had not emerged from the Respondent company. The Complainant confirmed that he had answered an advertisement via an Employment Agency for a position with the respondent. He confirmed that he was paid by the Agency. He couldn’t recall if the contract had been with the Respondent or the Agency as he had not signed it.

The Respondent representative asked whether the complainant had given thought to operational differences in UK and EU preparations. the complainant re-emphasised that he believed that he had been treated differently to Mr C who had commenced in April 2017

The Complainant confirmed that he had sent his time sheet to the Supervisor at the Respondent company who also approved his annual leave.

The Complainant confirmed that he had got married on 25 September 2017 and when he returned from leave was verbally attacked by Mr A who expressed his lack of knowledge of the present for the complainant.

The Complainant submitted that he was told to leave work on 31 October 2017 by his Supervisor and he believed that he had been unfairly treated in this dismissal. He was dismissed by a Supervisor at the Respondent business and the Agency had not contacted him or issued correspondence to him.

He maintained that he had been subjected to repeated acts of discrimination during his work.

Preliminary Issue:

The Respondent presented an early argument on a Preliminary matter dated 30 October ,2018. He submitted that the complainant had lodged his complaint outside he statutory time limit of six months after the most recent alleged occurrence of discrimination. He outlined that the complainant had not sought an extension of time through reasonable cause or given any reason for the delay in submitting his complaint. The Respondent sought that the Preliminary matter be disposed of prior to commencing the substantive case and argued that the Adjudicator did not hold the jurisdiction to hear this complaint.

The Respondent submitted that jurisprudence pointed to the premise that an Adjudicator was precluded by law from holding a substantive hearing until a decision on the preliminary matter is reached. Sheehy V Most Rev James Moriarty.

The Respondent referred to two other cases of the Higher Administrative bodies. Employee V Employer UD 969/2009 and Bus Eireann V SIPTU PTD 8/2004 which addressed a Preliminary issue in a standalone fashion successfully. The Respondent submitted that the Adjudicator should follow suit and reach a determination prior to hearing if the substantive case could be heard.

The Respondent submitted that the only dates referred to in relation to an alleged act of discrimination was six months and one day prior to the lodgement on 31 October 2017, being the alleged termination date.

In relying on an EAT case of Donaldson V South West Regional Tourism Authority ltd UD 1309/2004, the Tribunal recognised that a claim lodged on 22 May 2008 fell afoul of a 21 November 2008 deadline.

The Respondent sough that the claim be dismissed as out of time.

Substantive Issue:

The Respondent is a world leader in the provision of vision systems and industrial equipment. The Complainant was hired via an Agency to support a new project in February 2017 on a temporary assignment. The complainant was paid €11.50 per hour in a contract envisaged to run for 11 months.

The Respondent submitted that the Complainant had not followed the WRC procedures on the submission of his complaint and he had not observed the 21-day timeframe or given enough detail on his complaint.

The Respondent disputed that the Complainant had satisfied the Burden of Proof in the case as he had only referred to a notional comparator and had not demonstrated how he had been treated less favourably. The Respondent took issue that the complainant had not substantiated or particularised his claim and this in turn had disadvantaged the Respondent.

The respondent also disputed the late addition of the “ground of origin “complaint of discrimination dated August 8, 2018.

The Respondent sought that the claim be deemed frivolous or misconceived and dismissed in accordance with the provisions of Section 77A (1) of the Act.

In addressing the substantive complaint, the Respondent remarked that the claim of discrimination of civil status has not been particularised and instead the complainant had raised that he had been central to a " grudge" from his co-workers. The Respondent submitted a statement from Mr A dated October 4, 2018

“On the day a collection was made by some production operators for the complainant upcoming wedding. I did not know about the collection and did say to some operators and the complainant that I known about the collection, I would have liked to contribute it “

The Respondent disputed the presence of a Circulatory email listing for four employees in Logistics. Instead the Complainant received direct email communication from his line manager and this was a two-way process. The Complainant was obliged to manage holiday requests through his employer, the Agency. The Complainant was permitted to use the specialist printer in a nearby work location.

The Respondent did not have a defined Innovation programme for the Innovation operation the complainant was hired onto. He had participated on the job evaluation to ensure competency prior to his commencement date.

The Respondent disputed that the Complainant had been discriminatorily dismissed. The Respondent hosted two Agency workers, the complainant and Mr B in logistics in October 2017. The Complainants work became dormant and due to Mr B’s skillset of proficiency in other areas of the business, he was maintained when the complainants project concluded. The Company did not backfill the complainant position and did not re-advertise for his position. Mr B was hired by open recruitment in January 2018.

The Complainants dismissal was not attributed to any reason outside a dormancy in production. On 24 October 2017 the Respondent called the Agency to confirm that they intended to terminate the complainants contact and were informed that they would have pay a weeks’ notice. there was no further contact with the Agency.

The Respondent contended that the complainant spoke perfect English and was not disadvantaged by this in a company that prides itself as employing a diverse and global workforce. The Respondent nor the Agency had received any cause of complaint or grievance from the complainant during his time worked at the company.

The Respondent illustrated the contract of employment signed but undated from the Agency and submitted that the Agency was the employer.

The Respondent undertook to furnish a letter from the Agency regarding the circumstances of the dismissal for the purposes of the Investigation. This was not furnished.

The Human Resource Manager outlined that there were 113 direct employees and 25 Agency staff based on the plant. She confirmed that the Agency stated that a week’s pay would need to accompany a decision taken to terminate a contract of employment.

I have considered both party’s presentations in this case. The complainant is a Lay litigant and presented at hearing with the assistance of a Polish Interpreter. I explained the procedures involved in the decision making in his case.

The Respondent was represented by an experienced Practitioner and presented with the assistance of company representatives. When I commenced my investigation, I was struck by the narrative submitted by the complainant which was unaccompanied by supporting documents of any kind. I sought access to any work-related documents and none were presented. Instead it was clear that the complainant carried a large unresolved disappointment following his termination of employment. However, I was struck by his incapacity to recall particulars of his complaints .

The Respondent in turn carried a high sense of disappointment that the company attended a hearing that was out of time, on claims they disputed and were not particularised in accordance with the WRC procedures or the burden of proof outlined in Section 85 A of the Act.

Preliminary Issue:

I cannot accept the Respondent insistence that a case should automatically be permitted to be curtailed at the Preliminary hearing stage.

Section 79 (6) of the Employment Equality Act provides that:

At the end of an investigation under this section (including an investigation of a preliminary issue under subsection (3) or (3A) Director General of the Workplace Relations Commission shall decide and, if the decision is in favour of the complainant—

( a) it shall provide for redress in accordance with section 82, or

(b) in the case of a decision on a preliminary issue under subsection (3) or (3A), it shall be followed by an investigation of the substantive issue.

I am obliged to investigate these complaints and as I explained to the parties, I am obliged to conclude this investigation incorporating both preliminary arguments and the substantive case. The Respondent has confused the case management practices prior to and post the inauguration of the WRC.

Nonetheless, I must be satisfied that the Complainant has the locus standi (standing) to advance his complaint and I have taken note of the Definition of Employee for the purposes of the Act

employee’ , subject to subsection (3), means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and, where the context admits, includes a member or former member of a regulatory body, but, so far as regards access to employment, does not include a person employed in another person ’ s home for the provision of personal services for persons residing in that home where the services affect the private or family life of those persons;

Sub section 3 provides that for the purposes of this Act I.e. Employment Equality, the person who is liable for the pay of the agency worker shall be deemed to be the employer.

In applying Section 2(3) (c) to the facts of this case, the complainant did not dispute that he was paid by the agency or submit any opposing arguments to this point. He confirmed that he had not been in contact with the Agency to raise any problem issues either during or post-employment. I would have liked to have seen his, P60 to assist my deliberations.

The Respondent, while initially answering the case as the employer and agreeing to amend the company name on consent submitted that the Complainants employment was terminated by the Respondent and not the Agency.

For my part, on listening carefully to both parties, I began to have a sense of confusion on the actual identity of the Employer for the purposes of the Act. To abate this, I alerted the parties to the provisions of the Act in that regard and requested a response.

The Respondent presented a copy of an Agency Contract between the complainant and the Agency. This was undated and unsigned. The Complainant did not provide any documentation which linked the Respondent to him as an employer. He confirmed that he had worked for an agency previously in this country. The Complainant relied on written statements augmented by oral presentations alone. He had virtually no recall of any dates of work-based events. He did submit a copy of  pay slips and P45 post hearing. The Pay slips identified the Agency as the paymaster.

The Respondent confirmed that the company paid the Agency for the complainants work and the Agency in turn paid the complainant. The contract of employment (unsigned or dated) which took the form of a signed template by the Agency referred to the Agency as the employer with an obligation that the complainant should adhere to all the Respondents “policies and procedures in the course of your work”

Section 2 (5) of the Act sets out:

A person who, under a contract with an employment agency, within the meaning of the Employment Agency Act, 1971, obtains the services of one or more agency workers but is not their employer for the purposes of this Act is in this Act referred to, in relation to the agency workers, as the “ provider of agency work”.

The Complainant has cited one employer in this case. He has not named the Agency as an employer. This contrasts with EDA 1129, A Worker V Two Respondents, (2011) where the complainant named two Respondents referred to in decision as Respondent A and B. The former Chairman of the Labour Court set out in expansive detail how the case was framed against two Respondents:

It is accepted that Respondent B obtains the services of one or more agency workers pursuant to a contract with Respondent A. In the Court’s view, it matters not that the service agreement between both Respondents provides for more than the mere provision of agency workers. Once one of the services which Respondent A provides to Respondent B is the supply of agency workers Respondent B is a provider of agency work for the purposes of the Act. Section 8 of the Act contains the general prohibition of discrimination. Section 8(1) provides: - In relation to— (a) access to employment,

(b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts, an employer shall not discriminate against an Employee or prospective Employee and a provider of agency work shall not discriminate against an agency worker.

The combined effect of these statutory provisions is that both Respondent A and Respondent B can be impleaded under the Act; the former as the prospective employer and the latter as the prospective provider of the agency work for which the Complainant had applied. In these circumstances if liability towards the Complainant is made out both Respondent A and Respondent B could be regarded as being in the position of concurrent wrongdoers. However, having regard to the conclusion which the Court has reached in relation to the substance of the Complainant’s claims, it is unnecessary to express a concluded view on that point in this case.

In assessing the facts submitted by both parties on the Preliminary issue, I can safely conclude that the Respondent is a Provider of Agency services and covered by the provisions of Section 8 of the Act. There is no stated case against the Agency.

Time Limits

The Respondent submitted that the Complainant had departed outside the statutory time limits associated with claims of discrimination. The Complainant explained that he had delayed as he was awaiting advice and sought an extension of the time limits on that basis. I have found that the claim came before the WRC just within the six-month window of the date of the most recent alleged occurrence that of the Dismissal. I accept that the complainant submitted a range of events which he attributed as discriminatory acts. I find that the events can be viewed as a continuum of events which occurred within the statutory time limit.

Section 77 (5) (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 the case relates or the date of its most recent occurrence.

I am not able to approve an amendment in the complaint to include a complaint on race grounds, which was submitted outside the statutory time limit.

Overall, I find that the Complainant possesses the standing to advance his complaints of 30 April 2018 and I can now progress to the substantive case.

Substantive Case:

1.       Discrimination on civil status grounds and in relation to conditions of employment.

2.       Discriminatory Dismissal

The Complainant has cited Mr A as his Comparator for the purposes of the complaint. Mr A was a co worker in the logistics Section and was an Irish National. The Complainant confirmed that his civil status had changed on 25 September 2017 when he married, and discrimination followed this change of status. I found this to be a bare assertion which has not reached the Burden of Proof outlined in Section 85A of the Act and provide for in the seminal case of Mitchell V Southern Health Board, 2001. I could not establish any link between the claimant’s civil status and less favourable treatment. His case was not helped by a lack in surrounding events complained of. This aspect of his complaint is not well founded.

I accept that the complainant was unhappy in his employment. He did not believe he fitted in well, but did not formalise this as a complaint, outside a reference to his exclusion from an email listing. I note that the complainant accepted at cross examination that both jobs submitted by him in his written statement were not identical.

I have looked carefully at the circumstances advanced by both parties on the facts of the dismissal. The Complainant was struck by the speed of the decision and his lack of involvement in this decision. He did not accept that the work had decreased and believed that he had been dismissed because of his civil status in a pre-meditated manner.

I had asked the Respondent to submit a letter from the Agency which outlined the circumstances of the complainant’s termination of employment. This has not arrived some 16 weeks post hearing. I wrote to the Respondent in follow up and was informed that no such documents were in existence. I have drawn inferences from this omission.

I found the way the Complainant was informed of his dismissal was a long way short of best practice and it demonstrated a poor level of respect for a worker. I accept that the complainant has not worked since this date and I can appreciate that the manner of his dismissal was insensitive and highly traumatic for him. This trauma has lingered. I would urge the Respondent to reflect on the impact of these actions and to strengthen communication between the Agency and the Hirer inclusive of the Agency worker.

However, I also accept that the complainant did not advance his issues of unease through a formal framework during his employment. He kept them to himself which was unwise.

In Ryan Air ltd V Agnieszka Spyra EDA 1428, the Labour Court held that the complainant had not been discriminated against as the respondent had demonstrated a decision-making framework which justified a decision taken to cease provision of Agency Work to the complainant.

It is not for the Court to decide if this was a fair procedure. The only duty the Court has is to decide if it was discriminatory in design or outcome giving rise to discrimination on the grounds of national origin. In that context the Court finds that it was not.

The Complainant has submitted that the decision to dismiss him was linked to his civil status, that of a married man. Mr. C was unmarried. Based on the Complainants submissions , I could not establish this to be the case. I accept the Respondent submission that the Project experienced a downturn which in turn led to the termination of employment . Mr C was based in a separate section at this time .I have already commented on the poor practice of communication of the termination .

I must conclude that the complainant has not satisfied the burden of proof necessary in the case. He has not raised facts from which a presumption of discrimination on civil status grounds can be raised. I cannot establish that the Respondent has a case of discrimination to answer.

I find his complaint to be not well founded.

Decision:

CA-00018824

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have found the claims for discrimination on civil status grounds and in relation to conditions of employment to be not well founded.

I have found that the claim for Discriminatory Dismissal is not well founded.

Discrimination on grounds of civil status, conditions of employment. Discriminatory Dismissal.