ADJUDICATION OFFICER DECISION & RECOMMENDATION.
Adjudication Reference: ADJ-00014873
Parties:
| Complainant | Respondent |
Anonymised Parties | A horticulture farm worker | A fruit grower |
Representatives | Krystian Boino Hoban Boino Solicitors | Conor O'Gorman Ibec |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00019393-001 | 24/05/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00019393-002 | 24/05/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00019393-003 | 24/05/2018 |
Date of Adjudication Hearing: 20/09/2019
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, and/or Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant is one of a group of seven employees who submitted complaints to the Workplace Relations Commission on 24th May 2018. The seven complaints were viewed as individual complaints and each was allocated a file number. The Complainant in this complaint commenced employment on 1st June 2011. The Complainant is employed as a Horticulture Farm Worker who works on the Respondents fruit farm. |
Summary of Complainant’s Case:
Submissions in relation to Lay-off 8. Complainants were put on a lay off in circumstances where the lay-off did not exist.
Where [ …] an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and— (a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and (b) the employer gives notice to that effect to the employee prior to the cessation, that cessation of employment shall be regarded for the purposes of this Act as lay-off.
- Performance measurement and motivation system - Skill needs - “Other metrics” not indicated in the letter
- Complainant BC had in January (one month before end of leave year) still 12 days of annual leave. - Complainant BC was refused some days of annual leave in October 2017 although at that stage- 4 months before end of leave year she has still 19 remaining days of annual leave. - Complainant MM was in 2013 rejected similar leave and forced to return to work on 14/01/2013. It is worth noting request was made in August and refusal is dated 25th October 2012 so at that stage Respondent knew their staff requirements for January.
- BC from 22nd January to 24th January - MM from 18th January to 22nd January - WB om 22nd January to 8th January It is therefore submitted that whatever was the criteria for selection for lay-off of particular Complainant with the first date must be checked and must apply when second date was advised. Furthermore, it shall be explained why the date changed and why it changed only to some of the Complainants. It is submitted that, in circumstances where all Complainants were employed to do similar work, it is difficult to understand why the calendar period of no work being available changes and changes to some of Complainants. Payment of Wages 1. It is submitted that while considering the above submission in relation to alleged lay-off it is clear that there was either no lay-off or no criteria of sending Complainants for lay-off over particular periods.
Employment Equality Acts 1998-2008
1. It is submitted that the Respondents discriminated against the Complainants on gender and/or nationality ground by treating them less favourably contrary to Section 6(2a) and 6(2h) of the Employment Equality Act, 1998-2008, as amended. The less favourable treatment amounted to selecting them based on discriminatory criteria for the alleged lay-off. Complainants were selected based on their gender- only female workers were selected for lay-off and based on their nationality- only Polish workers attempting to avail of more time with their family over Christmas period were selected.
A Prima Facie Case 1. It is submitted that discrimination may be inferred from the facts outlined above and, in the Complainants, written submissions and oral evidence and it is submitted that the said facts constitute prima facie evidence of discrimination. In essence those facts are as follows: 7 polish female Complainants were put on lay-off and the Respondent referred to criteria from which it subsequently departed (the criteria of performance), provided subsequent criteria (Complainants availing of leave) which was nor relied upon when the decision was communicated to Complainants and/or relied on unknown criteria captured as “other metrics” 2. Complainants rely on decision Kieran McCarthy-v-Cork City Council where Labour Court indicated:
It is well settled that those who discriminate rarely do so overtly and will not leave evidence of the discrimination within the Complainant's power of procurement. In most, if not all, cases of discrimination the core fact in issue is the motive or reason (whether conscious or subconscious) for the act or omission complained of. It would be palpably unfair to require a complainant to prove that the respondent was influenced by discriminatory considerations. Conversely, it is eminently reasonable to require the actor or decision- maker to explain the reason for his or her actions or decisions and to show the absence of a discriminatory taint. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondent’s capacity of proof
3. It is submitted that the burden of proof thus shifts to the Respondent who has failed to establish that the less favourable treatment was attributable to objective, non-discriminatory grounds.
4. Where the burden of proof rests with Respondent a Court should normally expect cogent evidence to discharge that burden since the facts necessary to prove a non-discriminatory explanation would normally be in the possession of the Appellant- Barton v Investec Henderson Crosthwaite Securities Ltd & Rachel McCarthy v Niscayah Ltd3 is relied upon. Labour Court in this jurisdiction confirmed such an approach in decision Portroe Stevedores v Nevins
Discrimination 1. When the above submitted set of facts in relation to lay-off are considered it is clear that: - Respondent provided conflicting information in relation to selection for lay-off (initially stating it was performance related and subsequently denying same); - Relying on unknown “other metrics” which were never disclosed even following grievances submitted - Only when grievances were submitted another explanation was provided- that long periods of requested leave may result in lay-off. Respondent has however established practice of refusing annual leave and must be aware of legal obligation to give employees annual lave before end of leave year (being end of February) - Respondent accepted leave requests and subsequently used that as an alleged criterion for selection for lay-off. - Criteria of applying lay-off in last month of annual leave year on those who has unused paid leave does not seem to be a justifiable criterion. - Lay-off start dates were clearly crafted to target particular Complainants and also in same cases changed without any explanation
Complainants Additional Submissions Following receipt and review of the Respondent submissions and exhibits the Complaints wish to rely on following further submissions. Submissions in relation to Lay-off 1. Complainants reiterate their argument that lay-off by definition is a situation where employer is unable to provide work for employee. Other words the work is not available. Respondent submissions are clear that from the various dates in January (that Complainants were available for work) up to 19/02/2018 when they returned to work, there was work available. 2. Section 2.9 of Respondent submission advices that in week ending 6th January 2018 only 8 employees were engaged. Exhibit page 4-7 to this supplemental submission shows a Daily Roster for 6th January 2018 and shows about 111 employees engaged (most of them Farm Operatives same as Complainants). Therefore, there was more work available than the Respondent submits.
- when lay off advised Respondent relies on Performance measurement - in response to grievance Respondent say performance is not a reason for lay off - In Submissions (Section 2.11) “productivity” so clearly performance is the criteria used.
Payment of Wages 1. Complainants reiterate that they were available for work during the alleged lay off and it is submitted that there was work available when they were on the alleged lay off. It is submitted that only for the purposes of the instant case Respondent created artificial so called “intake” dates as Exhibit A and B shows as follows: - There were more employees on farm than as alleged by Respondent in early January 2018 - Employees were returning to work after annual leave outside of the so called “intake dates”
Employment Equality Acts 1998-2008 1. By way of clarification Complainants relay on the concept of indirect discrimination defined in act as follows (Section 22 of the Act read in conjunction with Section 31 of the Act:
22 (1) (a) Indirect discrimination occurs where an [apparently neutral provision would put] persons of a particular gender (being As or Bs) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer. (b) Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to (including A or B), unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
2. Creating so called alleged “intake” dates on 15th January 2018 and 19th February 2018 female and Polish Complainants were put at particular disadvantage as they could not simply arrange an immediate change of their travel plans (expensive flight tickets) and return from Christmas period they have chosen to avail of more time with their families in Poland being migrant workers in this jurisdiction. Due to such scheduled “intake dates” they would have to either cancel their plans to go to Poland (due to high price of flight tickets in early January) and not spent much time with their families in Poland or face another over a month (from 15th January to 19th February 2018) unpaid leave which deprive them from earning wages and support their families.
Industrial Relations Act
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Summary of Respondent’s Case:
A. Factual Background to Respondents Fruit Farms and Operations 1. The respondent grows a range of fruit and salad crops at its farm in North County Dublin. The regular crops grown on the Fruit Farms include but are not limited to strawberries, blackberries, raspberries, apples etc. The claimants are employed as a Horticultural Farm Workers. 2. Soft fruits generally become available for picking at least to some degree in April. Prior to that field crops require husbandry before fruit production. Some of those who proceed to pick in the summer months are employed on early season husbandry maintenance. 3. The claimants were employed from season to season until they received permanent contracts. However, the primary task of all “Horticultural Farm Workers “(which is the appellant’s contract) is soft fruit picking. 4. By nature of the workplace staffing levels are irregular, for example; in week 52 of 2017, December 30, 2017; the total number of working hours required on the farm was 45 hours; requiring one employee on site. Contrast this with Week 30 of 2018; June 23, 2018; the total number of working hours required on the farm was 33,645 requiring 765 staff on site. 5. The growing of soft fruit is a low profit margin business. The respondent operates a sophisticated system to ensure close monitoring of required staff levels. Due to the nature of the business this matrix must account for the total area of the farms, the timescales for growing the various crops and the facilities available. Obviously, factors such as weather can only be planned for in the short term. Therefore, the staffing matrix are constantly monitored and updated on the most accurate long-term forecasts available. 6. Every year the respondent has a Winter Shutdown period. This is the period when there is no work, or work for a handful of employees, on the farm. The overwhelming majority of Horticultural Farm Workers are non-Irish nationals. They are employed on; permanent contracts, seasonal contracts and agency workers. 7. The dates of the Winter Shutdown period roughly coincide with the Christmas season when a large majority of staff return home for the holidays. Most staff use a combination of paid and unpaid leave for this period, so they are not laid off at any point. An employee’s requested leave dates may result in a period of lay-off if they are not available when the intake of staff commences. 8. In the first quarter of each year, as the weather improves, and planting commences staff intake commences. This is done in phased intakes, by reference to the needs of the business, i.e. the staffing levels required on the farm. In 2018 the total numbers of staff required on the farm were:
9. The first 8 employees are those engaged in specialised work such as tunnelling, spraying etc. The next intake of staff (209 people) was week ending 08-Jan-18. In order to be offered this return to work date one must be available for work (i.e. not on annual/unpaid leave). This was followed by a further intake of 40 employees on 15-Jan-18, the next intake was on 19-Feb-18 of another 40 staff. This process continued until the farm reached its peak staffing level of 822 employees; week ending 21-Jul-18. 10. As can be seen, a great deal of planning goes into staffing levels, the lay-off dates for employees are not solely determined by reference to facilitating leave requests of employees. It is the preference of the respondent to have permanent staff return first but the respondent always facilitates leave requests for this period when practicable. If there are not enough permanent staff available then those on seasonal contracts will be offered work, only if there is still a short fall are agency workers brought in. 11. Where there are more permanent employees available than posts available the respondent will refer to the employee’s productivity levels by reference to productivity levels. 12. When first assigned to fruit picking all workers are trained on the requirements of quality picking (to satisfy consumers) and speed of picking. The respondent manages its picking operations through assessing picker performance by individual pick volumes (by weight). Pickers are assigned to one of three working groups, A to C, to pick crops (strawberries, raspberries etc.) fields as the growing season evolves. Normally it is the experienced pickers in group A and B. 13. Group C is mainly those who have started working for the first time for that season. 14. When working groups are assigned to a field, the respondent determines what a reasonable pick standard output should be, having taken into account the relevant group (A /B/ C), the crop, the season and yield in that field on that day. The standard output can therefore vary daily, but the same standard is applied to all group workers on that day. The individual pickers ultimate output is measured by fruit weight and recorded each day. 15. A piece rate system is in place. The output standard having been set in advance for the day, pickers ostensibly earn by piece working what their personal output is for that day, and so forth for the week and month. However, the respondent always pays pickers at least the National Minimum Wage (NMW) for hours worked. Where pickers under-perform, and piece rate calculations indicate that ostensibly they would not be paid at NMW rate, then their pay is ‘made –up’ to the NMW rate. The scale of ‘make-up’ is an objective measure of underperformance. 16. The performance of pickers who manifestly under-perform (as shown by ‘make-up’) is managed at the individual level to help them achieve better performance and achieve payment above the NMW level. 17. The respondent supervises pickers through their field Team Leaders, and in addition the respondent provides field coaches to support poor performers, and new recruits (i.e. those typically starting in group C). 18. By reference to the productivity related pay it is possible to rank the most productive to the least. For example, the best performer for 2017 earned an average rate of pay of €15.89; while the worst performer earned an average hourly rate of €6.30 before ‘make-up’. It is perfectly reasonable that the best performer is offered a return to work date before a lesser performer, all other things being equal. 19. All permanent Horticultural Farm Workers have the following clause in their contracts; Lay Off/Short Time The Company reserves the right to lay you off from work or reduce your working hours where, through circumstances beyond its control, it is unable to maintain you in full-time employment. You will receive as much notice as is reasonably possible prior to such lay-offs or short time. You will not be paid during the lay-off period. You will be paid for hours worked during period of short time. 20. As per the aforementioned clause the respondent seeks to give as much notice as possible. Obviously, the single biggest factor in determining staffing levels on a farm in Ireland in January/February is the weather. Unfortunately, this is also the most variable factor and as the advanced weather forecast changes so the planning arrangements must be varied. 21. Staff are informed, as soon as possible, what the lay-off period will be each year, so employees can plan their arrangements accordingly. Where the respondent is forced by the weather or some other factor beyond their control, to change the dates of the lay-off period staff are informed as quickly as possible.
B. 2017 – 2018 Lay – off Period (as it relates to the claimant). 22. All seven claimants requested annual leave beginning in December 2017 and ending in January. All of these requests for paid and unpaid annual leave were made before any perspective dates for the Winter Shutdown period had been decided on or communicated.
By letters dated early December 2017 the respondent advised the claimants of the date their period of lay-off would commence and conclude. Lay-off commencement was done, as with all employees, by reference to their paid and unpaid annual leave requests as well as the needs of the organisation.
23. It is important to note that letters of this nature and overall content were issued to several hundred staff. It is not uncommon in such a situation that errors will occur, It should also be noted that this was the same process that the respondent has followed in regard to laying off the claimants and their colleagues for the past several years. In fact, all of the claimants have received letters of the same type in past years. in the 24. The position was that staff intake would for 2018 would happen as follows;
25. All of the claimants had requested to be on annual leave until after 1st and 2nd intake dates. The approval of these leave dates had been given and the respondent gave the leave that was by then, requested and agreed by the parties.
C. Employees of Farm We feel that it is important to draw attention to demographics of the respondent’s workplace. total employees in farms (2018)
employees laid off in farms over last 3 years
2015/2016 - 4 people were laid off. 1 Latvian Female (long layoff until June) and 3 Irish Male 2016 / 2017 – nobody was laid off that year (winter shut down was comprehended by leave arrangements). 2017 / 2018 -8 people were laid off in January 2018 (the claimants) 2018 / 2019 - 4 people are expected to be laid off in Jan 2019 (4 Polish – 1 Male and 3 Female) [Correct at the time of writing) employees not laid off last year and as such comparators for the claimants 127 employees were not laid off last year: 41 Female (1 Latvian and 40 Polish) 86 Male (4 Latvians; 2 Lithuanians; 80 Polish) RESPONDANT’S POSITION We wish to draw the Adjudicators attention to the factual inaccuracies in paragraph 5, 6, & 7 in the ‘Background’ of the claimant’s submission. It is not true that all of the claimants raised a grievance, none of the claimants raised a grievance as per the respondent’s grievance procedure. Instead of raising a formal grievance all of the claimants submitted identical emails to the respondents HR department. None of these emails refer to any grievance or the grievance procedure. Given the nature and content of the emails it is reasonable to conclude that these emails were drafted with the assistance of the claimant’s representative, a representative who is well aware of how to formally raise a grievance. We regret that this was not the course of action taken as we have full confidence that the matter could have been resolved without the expense associated with this claim. The response from the respondent was to meet with each of the claimants, follow up in writing and invited all the claimants to contact HR if they required clarification on the lay-off process, not one of the claimants sought further clarification. It is therefore the claimants and their representative who chose not to engage on the issue locally. The matter would not be raised again with the respondent until after the lodging the instant claims. Payment of Wages claim 1.Section 5(6) of the Payment of Wages Act 1991 states: “Where— (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), […] then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.” 2. Given that the claimant was on a period of unpaid lay off, no deduction as defined in Section 5 of the Act has been made. Accordingly, no jurisdiction exists under the Payment of Wages Act 1991 for this claim to be heard. Additionally, there is an explicit clause in the claimant’s contract of employment that periods of lay off are not paid. 3. Furthermore, it is a custom and practise of the company to not pay staff during periods of lay off. Such a practise is certain, reasonable and within the knowledge of employees. The Employment Appeals Tribunal in Employer v Employee [PW379/2012] held; The question the Tribunal must answer is whether or not by virtue of the employer having invoked Section 11 of the 1967 Act the employee’s contractual and statutory right to pay during that period of lay-off is suspended. No evidence was produced before the Tribunal in relation to the custom and practice of the respondent. However, it can be said that generally throughout this country the custom and practice is that lay-off will be without pay. That custom and practice has existed since the coming into force of the Redundancy Payment Act. The Tribunal finds that when Section 11 is genuinely invoked, and the employer satisfies Section 11 1 (a) and (b) then, the contract of employment is temporarily suspended and there is no right to payment during that period. Furthermore, the Tribunal finds that there is a notorious custom and practice in this jurisdiction that employees will not be paid during a period of lay-off.
Section 13 Industrial Relations Act, 1969 claim We note that the complaint specific details for this part of the claim refers; “to a complaint in relation to disciplinary sanctions.” It goes onto refer to the “lay-off for three weeks…amounted to an unfair disciplinary sanction”. Yet, in their submission to the WRC they refer to the Adjudicator making a collective recommendation as to how lay-off is to be dealt with in the entire company. As the claimants have never raised any issue under the company grievance procedure, they cannot appeal to the WRC under section 13 of the Act. As the absurd allegation of a disciplinary sanction has been dropped no appeal of warning arises under section 13. We ask that the Adjudicator use their discretion under this part of the claim to recommend that such matters should be properly raised under internal dispute resolution procedures, in this case, the grievance procedure, before proceeding to litigation.
Employment Equality Acts The claimants have submitted that they were discriminated against “on gender and/or nationality ground…the less favourable treatment amounted to selecting them based on discriminatory criteria for lay-off.” No comparator has been identified by the claimants. Discriminatory Criteria The claimants have failed to identify what part of the selection criteria for identifying staff numbers that would be required for work is discriminatory. As we have shown the only regard had to employees in determining staffing levels is the objective criteria of productivity. This same criterion is used to determine varying rates of pay for employees and has never been found to constitute discrimination. At paragraph 26. The following is stated; “only Polish workers attempting to avail of more time with their family over Christmas period were selected.” This statement is absurd as Bulgarian, Latvian, Moldavian and Slovakian employees are just as likely to wish to spend Christmas at home. No comparator has been cited by the claimants, both the Race Directive and the Employment Equality Acts provide that discrimination can only occur where a person is ‘treated less favourably than another is, has been or would be treated in a comparable situation’. At the time that the claimants were on lay-off 127 employees were not. Of those employees not placed on lay-off 120 of them were Polish. Of those employees not placed on lay-off 41 were women and 40 were Polish women. In this face of these facts the claim of discrimination crumbles. Prima Facia Case It has been the well-established practice of the Equality Tribunal, WRC and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that they were treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. Section 85 (a) of the Act provides that: where in any proceeding’s facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary. The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated: The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment. In case Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden that must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows: 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. Notwithstanding that the particular circumstances of each case are different; the respondent submits that it is only when the claimant has discharged this burden to the satisfaction of an Adjudicator that the burden shifts to the respondent to rebut the inference of discrimination raised. It is the respondent’s position that the claimant has failed to discharge this burden of proof and failed to show that there is a prima facie case to answer. Conclusion. It is clear that no discrimination has taken place, the claimants were facilitated in their requests for leave and their return to work was scheduled for the soonest date after they wished to return. No facts from which discrimination could be inferred have been presented and these claims must fail. The lay-off was operated in accordance with the provisions of the contracts so claim under the Payment of Wages Act cannot be sustained. We submit that had this matter been raised properly under the grievance procedure this entire matter could have been resolved locally and we ask that under the Industrial Relations the Adjudicator state as much.
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Findings and Conclusions:
Payment of Wages Act, 1991. The Representative for the Respondent clearly states thatit is a custom and practise of the company to not pay staff during periods of lay off. Such a practise is certain, reasonable and within the knowledge of employees. The Employment Appeals Tribunal in Employer v Employee [PW379/2012] held; “The question the Tribunal must answer is whether or not by virtue of the employer having invoked Section 11 of the 1967 Act the employee’s contractual and statutory right to pay during that period of lay-off is suspended. No evidence was produced before the Tribunal in relation to the custom and practice of the respondent. However, it can be said that generally throughout this country the custom and practice is that lay-off will be without pay. That custom and practice has existed since the coming into force of the Redundancy Payment Act. The Tribunal finds that when Section 11 is genuinely invoked, and the employer satisfies Section 11 1 (a) and (b) then, the contract of employment is temporarily suspended and there is no right to payment during that period. Furthermore, the Tribunal finds that there is a notorious custom and practice in this jurisdiction that employees will not be paid during a period of lay-off”.
The Complainant and her six other colleagues are well aware of the seasonality of the activity in which they are employed. Lay-off is a feature of that business. I find that the case law submitted by the Respondent presents a very persuasive argument and it is on this basis that I find the complaint as submitted under the Payment of Wages Act, 1991 is not well founded and therefore fails.
Employment Equality Acts 1998-2008 The Complainant and her colleagues have submitted that they were discriminated against on gender and/or nationality ground…the less favourable treatment amounted to selecting them based on discriminatory criteria for lay-off. No comparator has been cited by the Complainant. The Employment Equality Acts and the Race Directive stipulate that discrimination can only occur where a person is’ treated less favourably than another is, has been or would be treated in a comparable situation. In the case before the Labour Court, Arturs Valpeters v Melbury Developments (EDA 0917[2010] 21 E.L.R. whilst examining the circumstances in which the probative burden of proof operates held as follows: “Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. 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. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
In this case, it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence”. The complaint submitted under the Employment Equality Act, 1998 is not well founded and therefore fails. Industrial Relations Act, 1969. The submission from the Respondent reads as follows: We note that the complaint specific details for this part of the claim refers; “to a complaint in relation to disciplinary sanctions.” It goes onto refer to the “lay-off for three weeks…amounted to an unfair disciplinary sanction”. Yet, in their submission to the WRC they refer to the Adjudicator making a collective recommendation as to how lay-off is to be dealt with in the entire company. As the claimants have never raised any issue under the company grievance procedure, they cannot appeal to the WRC under section 13 of the Act. As the absurd allegation of a disciplinary sanction has been dropped no appeal of warning arises under section 13. We ask that the Adjudicator use their discretion under this part of the claim to recommend that such matters should be properly raised under internal dispute resolution procedures, in this case, the grievance procedure, before proceeding to litigation.
There are no time limits contained in the Industrial Relations Act, 1969. The Complainant should now consider exactly what her complaint is and submit this as a complaint to the Respondent to be heard under the official Grievance Procedure in the Respondent organisation. Such complaint should include all aspects of lay-off and what criteria is to be used in calling back employees from lay-off. This is my recommendation in relation to the complaint submitted under the Industrial Relations Act. No complaint under this legislation should be submitted to the Workplace Relations Commission until all internal procedures have been exhausted.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
As outlined above |
Dated: 10th October 2019
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
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