Complainant

Respondent

Anonymised Parties

A car hire administrator

A car hire company

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-00026093-001

07/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00026093-002

07/02/2019

The complainant asserts that a contravention of the Employment Equality Act occurred when he was subject to harassment, discrimination and victimisation on the sexual orientation and civil status grounds. He also raises breaches of the Organisation of Working Time Act regarding the taking of annual leave and rest breaks. The respondent denies the claims.

The complainant outlined that the problems in the workplace arose in 2018 when a named manager was appointed. Previously, they had done all jobs, but were now punished for remaining in the office and not cleaning cars.

The complainant outlined that he applied for annual leave, which the respondent did not approve, even though it approved other applications. He told the manager in December 2017 of his intention to visit Japan and reminded him of this in February 2018. He applied for a visa in March 2018 to travel in May 2018. The manager had told him that he was checking his application but did not approve the leave in time. The complainant later established from HR that what the manager said was untrue. The complainant was not able to travel because of the respondent’s failure to approve the annual leave and lost out on the cost of the flights.

The complainant stated that his contract of employment provided a working week of 48 hours. The respondent kept them working over 48 hours, often working 50 hours. The complainant was paid for the extra hours. He was required to drive cars which were not taxed, and this was illegal. Some cars had bald tyres. There was confrontation when they sought to drive the bus to the airport as the airport authorities said that the respondent did not have a licence to collect passengers.

The complainant outlined that he was assaulted at work by a colleague. The complainant had complained three times about threats made by the colleague. The assault occurred on the 6th July 2018 after the colleague had forced a customer to take out insurance. They spoke about this when the colleague grabbed the complainant’s arms and said they “should go outside and whoever survives is the winner”. This was within sight of CCTV cameras. The complainant reported the assault to the Gardaí, who are pursuing this. The respondent suspended the colleague, but he returned to work after a month. While the complainant’s hours were changed, he and the colleague still crossed in the workplace.

The complainant said that one day in October 2018, an assistant manager told him to go home. He was asked to hand over his keys and leave. He was not told why. The local Citizens Information Centre wrote to the respondent on his behalf and he was later given a reason for the suspension (relating to rentals and signing in on a colleague’s behalf). The complainant was suspended for one week and removed from the Whatsapp group. He said that this was because of concerns he raised about customers not being able to sign in using notepads.

The complainant said that he was bullied at work because he is gay. The respondent delayed approving things he sought, and he was not allowed drive a certain make of car. He fell and hurt his knee and back while checking cars in the snowstorm of 2018. He was made to sign something regarding this incident. The complainant said that the respondent did not care about him. He was directed to drive the bus as a punishment for raising issues. He was not given training and just told to follow others. There could be 20 customers in a night but only one person to serve them all. This led to mistakes being made. The complainant brought this to the respondent’s attention, but they criticised him.

On the 24th November 2018, the complainant was called in about a missing key. He had placed the key at the proper place, but it disappeared. The complainant resigned. He was being framed and the key later “magically” reappeared.

The respondent outlined that it had conceded the dispute regarding Sunday premium. It referred to the contract of employment, which provided for longer hours and flexibility. This was evened out over the reference period. Until the date of the assault, the complainant had exceeded the maximum working week 13 times but worked less in other weeks. On one occasion, he was warned when he worked in excess of 68 hours.

The respondent stated that the colleague was placed on a different shift pattern after the incident with the complainant. While they crossed over for one hour, there was also a manager on duty. The colleague had grabbed the complainant by the arm and not by the throat. The complainant had only said that the colleague told him to go outside.

The respondent denied that the complainant was rostered to work from 1pm to 1am and then had to go in again at 5am the following morning. It was only on the 18th September the complainant challenged his not being able to take annual leave to travel to Japan. The complainant was advised to contact HR, which he did not do. The complainant had phoned in sick after being refused annual leave. The respondent acknowledged the email of 12th April 2018 regarding annual leave. In June 2018, the complainant challenged the annual leave issue, to which HR replied to ask if he had accrued annual leave, TOIL and public holidays. The complainant availed of two or three weeks of leave in October 2018.

The respondent stated that the complainant was suspended because of his language in the workplace. The HR Manager had warned the complainant about his language. The complainant was called to another disciplinary hearing but did not attend because he was ill. He was given a warning for incorrectly following procedures and there were later nine issues occurring in a two-week period.

The respondent HR manager had addressed the issue of driving without tax through procedures introduced in August 2018. The vehicles were leased from the leasing company. While they were taxed, the disk might not have arrived to post on the car. The complainant refers to the ‘we’ being forced to do things but this is a discrimination claim and he was not singled out. It outlined that the complainant posted a great deal to the Whatsapp group. While the manager said that the complainant could raise issues, they should not be posted to the whole group. The complainant continued to post to everyone, and this was why the complainant was removed from the group.

In respect of the use of particular cars, the respondent outlined that the regional manager could approve performing sales reps to use the higher spec of car. This was a reward for good performance. The complainant was approved for a particular car, but this was subject to availability. While the complainant was often approved to use a car, he had no contractual entitlement to this. A sales agent under a disciplinary process was not entitled to the use of a car.

At the time of the snowstorm, the complainant was asked to check tax disks. He said that he had to go home because he was unwell. The complainant did not submit an accident report regarding any fall.

On the 22nd March 2018, the complainant received a warning because of his failure to follow procedures. There were two further disciplinary processes in 2018, while a new disciplinary process was initiated on the 20th November 2018 arising from the complainant’s performance. The complainant also submitted a complaint of bullying.

The respondent said that the first time he mentioned homophobic bullying was in March 2018 at the time of the disciplinary process. He also mentioned homophobic bullying as part of the assault incident. The HR manager told the complainant that he would investigate any allegation relating to homophobia and asked for a statement of events. The HR Manager asked the manager to follow up, but the complainant did not provide a statement.

CA-00026093-001

The complainant worked for the respondent between the 6th June 2017 and the 20th November 2018. The evidence points to this being an unhappy place to work. Staff worked long hours and the complainant was assaulted by a colleague. Staff are challenged when collecting customers from a large piece of infrastructure close-by. The evidence points to difficulties with customers and negative online reviews. While the respondent states that all its cars are taxed, the legal obligation is also that the vehicles display a current tax disc.

This is a complaint pursuant to the Employment Equality Act, claiming discrimination, victimisation and harassment on the sexual orientation and civil status grounds. The complainant sets out that he has been subjected to unfair disciplinary processes and bullying at the hands of management. He was assaulted in the workplace. He claims working time breaches, namely excessive daily and weekly working hours and a request for annual leave not being considered in time for him to travel in May 2018. He outlined the customers were poorly treated by the respondent.

Section 85A of the Employment Equality Act provides that the claimant must show facts of such significance that establish a prima facie case of discrimination. Once this takes place, the onus falls squarely on the respondent to show that discrimination did not occur.

Section 14A of the Employment Equality Act defines harassment. It must be unwanted conduct related to a discriminatory ground. The conduct must have the purpose or effect of violating a person’s dignity and create an offensive or humiliating environment. The section provides a defence for the employer who takes reasonably practicable steps to prevent the employee from being harassed. Where an employee has been treated differently in the workplace because of the harassment, it is a defence for an employer to show that they took reasonably practicable steps to prevent this differential treatment or to reverse its effect.

In respect of an employer’s vicarious liability, section 15 provides:

“(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.

…

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—

(a) from doing that act, or

(b) from doing in the course of his or her employment acts of that description.”

Section 15 provides that it is a defence for an employer to show that it took reasonably practicable steps to prevent one employee’s harassment of the other. An employer is not strictly liable for harassment carried out by its employee. It can rely on the defence of taking “reasonably practicable” steps to prevent the harassment or to prevent or reverse any difference in treatment arising from the harassment.

The Code of Practice on Sexual Harassment and Harassment at Work (S.I. 208/2012) provides that employers should “act in a preventative and remedial way.” It states “In order to rely on this defence [section 14(A)(2)] employers must show that they have comprehensive, accessible, effective policies that focus on prevention, best practice and remedial action, and also accessible effective complaints procedures. The measures taken to put the policies and procedures into practice will also be taken into account by courts and tribunals: employers will not be able to rely on an excellent policy if it has not been effectively implemented.” The Code states that the employer should “respond sensitively” to complaints of harassment and “monitor and follow up the situation after a complaint is made so that [harassment] does not recur.”

In respect of monitoring, the Code provides “The policy should include a commitment to monitor incidents of sexual harassment and harassment. The only way an organisation can know whether its policy and procedures are working is to keep careful track of all complaints of sexual harassment and harassment and how they are resolved. This monitoring information should be used to evaluate the policy and procedures at regular intervals, with changes recommended where appropriate.” The Code emphasises the importance of training and having a detailed complaints procedure. It provides that complaints should be handled “fairly, sensitively and with due respect for the rights of the both the complainant and the alleged perpetrator.”

The complainant set out that he was subjected to homophobic bullying and the very serious assault. The fact of a physical altercation on the 6th July 2018 is not disputed. I accept, however, the respondent’s evidence that it asked the complainant for a statement of events in order to investigate the allegation of homophobic bullying. While there is correspondence exchanged by the parties regarding other matters, there is no document setting out the homophobic bullying or reflecting that any such complaint was made verbally. No evidence of homophobic bullying was presented at the adjudication, i.e. dates or details of events. I accept that the respondent offered to investigate the allegation and also addressed the assault via the disciplinary policy. The respondent is, therefore, able to benefit from the defence of having taken reasonably practicable steps to prevent harassment and addressed any such harassment in the workplace. For completeness, there is no evidence of other discrimination on either ground or that the complainant was victimised for raising this matter.

CA-00026093-002

As set out above, the complainant clearly indicated in the complaint form that he was raising issues relating to working time. They include excessive weekly working hours, excessive daily working hours and not acceding to the complainant’s request for annual leave. The respondent accepted that the complainant worked excessive hours in 13 weeks but said that he worked fewer hours in other weeks. Having considered the evidence, I find that the complainant has not established that there was a contravention of the maximum working week, when assessed over a four-month reference period.

The schedules provided by the complainant indicate that he could be rostered to work a shift between 3pm and 1am, but to recommence work at 5am, to end at 3pm. One such schedule is the 11th and 12th September 2018. The complainant raises similarly rostered hours in emails in early 2018. This rostering is a contravention of section 11 of the Organisation of Working Time Act where the employee is entitled to a “rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.”

I accept that the complainant’s evidence regarding his protracted efforts to seek annual leave. I accept that he told the manager in December 2017 of his intention to visit Japan and reminded him of this in February 2018. I note that he applied for a visa in March 2018 and booked to fly in May 2018. I also accept that the manager told him he was checking on the application but never approved it.

While section 20 of the Organisation of Working Time Act sets out that the employer shall grant annual leave having regard to work requirements but also having regard to “the need for the employee to reconcile work and any family responsibilities and the opportunities for rest and recreation available to the employee.”

I have accepted that the respondent manager did not process the application of annual leave as required by the section, in particular in the light of the opportunity of recreation for the complainant in travelling to Japan. This is a contravention of the right to annual leave per the Organisation of Working Time Act.

I have held that there were contraventions of sections 11 and 20 of the Organisation of Working Time Act. There is evidence of one definitive breach of section 11 (the 11th and 12th September 2018), but the emails refer to other similar breaches. I have accepted the evidence of the breach of section 20 of the Organisation of Working Time Act regarding the taking of annual leave. Having considered the extent of the breaches and the importance of health and safety arising from working time and rest, I award redress of €900.

CA-00026093-001

I find that the complainant has not established a prima facie case of discrimination, harassment or victimisation on either the sexual orientation or civil status ground pursuant to the Employment Equality Act.

CA-00026093-002

I find that the complaint pursuant to the Organisation of Working Time Act is well founded and that respondent shall pay to the complainant redress of €900.

Employment Equality Act / harassment

Organisation of Working Time / daily rest / annual leave