Complainant

Respondent

Anonymised Parties

Delivery Driver

Bakery

Representatives

Self

Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

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-00030793-011

02/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00030793-013

02/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00030793-014

02/09/2019

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

CA-00030793-015

02/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00030793-016

02/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00030793-017

02/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00030793-018

02/09/2019

The Complainant was employed as a delivery driver by the Respondent from 7th March 2019 until 23rd July 2019. He was paid €500 gross per week.

Complaint CA-00030793-011 was withdrawn at the hearing.

The Worker submits that on 23rd July 2019 he was informed by his manger that a complaint had been made against him by a customer. The Worker submits that he was asked to explain what had happened.  

The Worker submits that he explained to his manager that the customer asked him to give her his business card as a Mentor of Live (sic) and a Mentor of Love.

The Worker submits that the Employer informed him that he was suspended with immediate effect and that he should stay at home until he heard further from the Employer.

The Worker submits that he did not hear anything further from the Employer after the 23rd July 2019 and that he did not get any correspondence from the Employer in relation to a disciplinary hearing.

The Worker submits that he tried to talk to the Employer after 23rd July 2019 but that his calls were not answered.

The Worker submits that he received his last payslip on 28th July 2019 and he realised that he was dismissed.

At the hearing, the Employer declined to participate in any of the matters pertaining to the Industrial Relations Act.

Preliminary issue: Investigation of a Trade Dispute

Section 13(3)(b)(ii) of the Industrial Relations Act, 1969 provides that an Adjudication Officer shall not investigate a trade dispute “if a party to the dispute notifies the commissioner [now Adjudication Officer] in writing that he objects to the dispute being investigated by a rights commissioner [now Adjudication Officer]”.

Section 13(3)(b)(ii) of the Industrial Relations Act, 1969 was subsequently qualified by Section 36(1) of the Industrial Relations Act, 1990 which provided that:

“An objection under section 13(3)(b)(ii) of the Industrial Relations Act, 1969, by a party to a trade dispute to an investigation of the dispute by a rights commissioner [now Adjudication Officer] shall be of no effect unless it is notified in writing to the commissioner [now Adjudication Officer] within three weeks after notice of the reference of the dispute to the commissioner [now Adjudication Officer] has been sent by post to that party.”

On 26th September 2019, the WRC notified the Employer, in writing, of receipt of a complaint under Section 13 of the Industrial Relations Act, 1969.

The WRC drew the Employer’s attention to the provisions Section 36(1) of the Industrial Relations Act 1990, whereby any party has the right to object to an investigation of the complaint by an Adjudication Officer.

The WRC asked the Employer to please indicate whether it wished to object to an investigation by an Adjudication Officer by completing an enclosed form and returning it to the WRC within 21 days of the date of its letter.

The WRC went on to inform the Employer that failure to reply within the period specified would be regarded as consent to an investigation by an Adjudication Officer under Section 13 of the Industrial Relations Act 1969.

On 17th October 2019, the WRC wrote to the Worker to advise him that no communication had been received from the Employer within the period specified. The WRC informed the Worker that, in the circumstances, the Employer was deemed to have consented to an investigation by an Adjudicator under Section 13 of the Industrial Relations Act, 1969 and that the dispute would proceed to be considered on that basis accordingly.

In light of the above, I find that I have jurisdiction to investigate the herein complaints.

CA-00030793-013     Unfair Dismissal under the Industrial Relations Acts

As the Employer declined to participate in the Industrial Relations component of this hearing, my findings and conclusions are based on the uncontested case put forward by the Worker.

Whilst an employee with less than twelve months of service is not covered by the Unfair Dismissals Acts, the fact that an employee may have less than one year’s service with an employer does not negate their entitlement to fair procedures in relation to grievance and disciplinary matters.

In a Labour Court determination concerning an employee of the Park Hotel Kenmare (LCR21798) who was dismissed while on probation, the Court found that:

“Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures.

… The Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.

The Court is satisfied that the Claimant was not provided with details of any performance issues; no warning was given that his employment was in jeopardy; he was not afforded the right to representation; he was not provided with reasons for his dismissal and he was not afforded an opportunity to reply. Therefore, the Court is satisfied that he was denied natural justice.”

The Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures, emphasises the importance of procedures to ensure fairness and natural justice.

The Code of Practice emphasises that good practice entails a number of stages in the discipline and grievance process as follows:

·       That employee grievances are fairly examined and processed

·       That details of any allegations or complaints are put to the employee concerned

·       That the employee concerned is given the opportunity to respond fully to any such allegations or complaints

·       That the employee concerned is given the opportunity to avail of the right to be represented during the procedure

·       That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

From the uncontested case put forward by the Worker, it would appear that the Worker was not aware that he was in danger of losing his job and that he was not afforded due process and fair procedures in line with the Code of Practice on Grievance and Disciplinary Procedures.

According to the Worker, he was suspended from work on 23rd July 2019 and heard nothing further from the Employer after that date. I note the Worker’s submission that he did not even realise that he was dismissed from his employment until he received his final payslip.

Based on the uncontested case put forward by the Worker, I am satisfied that the Employer’s handling of the entire matter breached the Worker’s right to fair procedures and natural justice.

CA-00030793-014   Disciplinary sanctions up to and including dismissal

The subject matter of this complaint has been addressed under CA-00030793-013 above. Accordingly, I find that this complaint is a duplicate of CA-00030793-013 above and, therefore, is not well founded.

CA-00030793-013     Unfair Dismissal under the Industrial Relations Acts

Based on the uncontested case put forward by the Worker, I find that this complaint is well founded and I recommend that the Employer pay the Worker the sum of €1,000 in compensation.

CA-00030793-014   Disciplinary sanctions up to and including dismissal

I find that this complaint is not well founded.

The Complainant referred complaints of discrimination in his conditions of employment and discriminatory unfair dismissal on the grounds of race and gender. At the hearing, the Complainant withdrew his complaints of discrimination on the ground of gender.

The Complainant submits that all his problem stemmed from the van that was assigned to him which he contends was faulty. The Complainant asserts that when he raised this matter with his manager, his manager started laughing and was disrespectful towards him.  

The Complainant submits that he had to work excessive hours for which he was not paid.   The Complainant submits that he was under too much pressure in his employment. The Complainant submits that the manager started treating him like a bad person.

The Complainant submits that in his last month working for the Respondent, the manager put more pressure on him and that he was more aggressive towards him. The Worker contends that in June, his manager called him “you f***ing gypsy, you idiot”.

The Complainant submits that he was assigned a newer van in the last month of working with the Respondent. He contends that he was working 70-80 hours per week over 6 days with no breaks and only 1 day off. The Complainant submits that, when he asked for a second day off, the manager would not give it to him.

The Respondent refutes the Complainant’s complaints of discrimination and contends that all employees are treated in the same way. The Respondent submits that it has 24 employees of many different nationalities – only three of its employees are Irish. The Respondent submits that four of its other employees are of the same nationality as the Complainant and that the Respondent has a good working relationship with them.

Furthermore, the Respondent submits that the Complainant has failed to identify any comparator, either real or hypothetical, as required by legislation.

The Complainant has submitted a complaint of discrimination on the ground of race in relation to his conditions of employment and his dismissal for discriminatory reasons.

The issue for decision in this case is whether or not, the Respondent discriminated against the Complainant on the ground of race in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015. In reaching my decision I have taken into account all of the submissions, oral and written, made to me as well as the evidence at the hearing.  

In evaluating the evidence before me, I must first consider whether the Complainant has established a prima facie case pursuant to section 85A(1) of the Employment Equality Acts 1998 to 2015 which states:

“Where in any proceedings 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.”

In order to make a valid prima facie case of discriminatory treatment on the ground of race, pursuant to section 85A of the Employment Equality Acts, the Complainant needs to identify a comparator of a different race who received more favourable treatment than he did.     This is specified in section 6(1) of the Employment Equality Acts, where discrimination is defined as “a person 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)”, which includes the ground of race on which the complaint was brought.

Thus, the Complainant must be the subject of less favourable treatment in comparison to another person on grounds of race i.e. because he is Romanian.

I find that the Complainant has not identified any comparator who was in a “comparable situation” to the Complainant within the meaning of the Acts, to serve as a valid comparator within the meaning of section 6(1) of the Acts.

The second component of a valid prima facie case is that the Complainant establishes the facts from which less favourable treatment could be inferred. 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.

The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the 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 continued:

 “It is only if these 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 was no infringement of the principle of equal treatment”.

Further, in Determination EDA0917 [2010] 21 E.L.R, Arturs Valpeters v Melbury Developments Ltd, the Labour Court, 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."

I note that the Complainant has raised a number of grievances with regard to his general working conditions, particularly regarding the van that was allocated to him and the fact that he felt that he was under too much pressure. He has also raised a number of grievances in relation to an allegation of under-payment for hours worked. The matter of alleged under-payment was raised under CA-00030793-011 which was withdrawn at the hearing.

I am of the view that the Complainant failed to establish a connection between the grievances he has raised and his complaints of discrimination on the ground of race.

The Complainant also alleges that his manager called him an “f***ing gypsy”. He was unable to provide any specifics as to when exactly this event had occurred.  

At the hearing, the Complainant confirmed that he was Romanian and not Romany and that the term which he alleges was used to describe him did not apply to his race.

Overall, I am not satisfied that the evidence adduced by the Complainant is of sufficient significance to satisfy the test set by the Labour Court in EDA0917 [2010] 21 E.L.R, Arturs Valpeters v Melbury Developments Ltd above.

On balance, and after much deliberation, I am of the view that, between the Complainant’s failure to identify a valid comparator and the evidence adduced by both sides at the hearing, the Complainant did not establish facts from which it may be presumed that he was treated by the Respondent less favourably than a person of another race is, has been or would be. Accordingly, the Complainant did not establish a prima facie case of discrimination on the grounds of race in his conditions of employment or dismissal for discriminatory reasons.

In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of the investigation as well as the evidence presented at the hearing.

I find that the Complainant has failed to establish a prima facie case of discrimination within the meaning of the Acts in relation to his conditions of employment or dismissal for discriminatory reasons.

I find, therefore, that this complaint is not well founded.

CA-00030793-016  Minimum Notice

The Complainant submits that he did not receive his statutory minimum period of notice on the termination of his employment or payment in lieu thereof.

CA-00030793-017   Minimum Notice

The Complainant submits that he did not receive all his rights during the period of notice.

CA-00030793-018   Minimum Notice

The Complainant submits that he did not receive minimum notice of termination of the contract of employment from the Respondent.

The Respondent acknowledges that one week’s notice pay is due to the Complainant and undertakes to pay same.

CA-00030793-016   Minimum Notice

Based on the uncontested evidence of the Complainant, I find that this complainant is well founded. In accordance with section 4(2)(a) of the Minimum Notice and Terms of Employment Act, 1973, I find that the Complainant is entitled to one week’s notice pay.

CA-00030793-017   Minimum Notice

The subject matter of this complaint has been dealt addressed under CA-00030793-016 above. Accordingly, I find that this is complaint is a duplicate of CA-00030793-016 above and, therefore, is not well founded.

CA-00030793-018   Minimum Notice

The subject matter of this complaint has been dealt addressed under CA-00030793-016 above. Accordingly, I find that this is complaint is a duplicate of CA-00030793-016 above and, therefore, is not well founded.

CA-00030793-016   Minimum Notice

Based on the uncontested evidence of the Complainant, I find that this complaint is well founded. In accordance with section 4(2)(a) of the Minimum Notice and Terms of Employment Act, 1973, I direct the Respondent to pay the Complainant €500 gross subject to the normal statutory deductions.

CA-00030793-017   Minimum Notice

I find that this complaint is not well founded

CA-00030793-018   Minimum Notice

I find that this complaint is not well founded.

Industrial Relations, Employment Equality, Minimum Notice