ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021267
Parties:
| Complainant | Respondent |
Anonymised Parties | IT Support Engineer | Global software providers. |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00027713-001 | 12/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00027713-002 | 12/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Criminal Justice Act 2011 | CA-00027713-003 | 12/04/2019 |
Date of Adjudication Hearing: 04/11/2019
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, and Section 41 of the Workplace Relations Act, 2015 andfollowing the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant commenced employment with the respondent as an IT support engineer on the 7 August 2018. His employment ended on the 7 December 2018. The complainant claims that the respondent breached its obligations to him under the Employment Equality Acts 1998-2015, on the grounds of race. He is a Polish national. He states that they further breached their obligations to him under the Parental Leave Act, 1998 and the Criminal Justice Act, 2011. His salary is €35,000 p.a. He works 40 hours a week. He submitted his complaint to the WRC on 12/4/2019. |
Preliminary Issue –incorrect respondent.
Summary of Respondent’s Case:
The respondent states that they are not the employer of the complainant. The complainant was at all times employed by a staffing agency who deployed him to their company. The complainant’s payslips, contract of employment and letter of termination clearly identify the employer. The respondent contends that the adjudicator has no jurisdiction to hear the complaints referring to an alleged breach of the Parental Leave Act, 1998 or the complaint of discriminatory dismissal tabled under the Employment Equality Act,1998. |
Summary of Complainant’s Case:
CA-00027713-001 .Complaint under section 77 of the Employment Equality Act, 1998 The complainant maintains that he was under the supervision and direction of the respondent’s personnel. He answered to the respondent’s Global IT lead. It was they who assigned and supervised his work. It was the respondent’s staff who discriminated against him on the grounds of race by making unjustifiable complaints about his performance. CA-00027713-002.Complaint under Section 18 of the Parental Leave Act 1998. The complainant states that it was the respondent who penalised him for taking force majeure leave. It was the respondent’s report, submitted to the staffing agency, containing what he asserts are fake and discriminatory accusations which ultimately led to his dismissal. CA-00027713-003 Complaint under Schedule 2 of the Criminal Justice Act 2011. The respondent penalised him by making what he describes as a false and critical report about his performance for making a complaint to both the respondent and the staffing agency. |
Findings and Conclusions on Preliminary Issue.
I must consider if I have jurisdiction to hear the complaints against the named respondent. I accept that the correct name of the respondent was on the complainant’s pay slip and contract. CA-00027713-001 .Complaint under section 77 of the Employment Equality Act, 1998 I accept that the named respondent in this complaint is not the employer. There are 4 complaints included in the complaint under this Act. A complaint of discriminatory dismissal. I find that the respondent was not the employer. I do not have jurisdiction to hear this complaint. A complaint of less favourable treatment in terms of the respondent’s failure to provide him with training opportunities Relevant Law and its applicability to this complaint of discriminatory treatment on grounds of race. The Act at section 8 states “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. (2) For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker is, has been or would be treated. (3) In subsections (4) to (8), references to an employee include references to an agency worker and, in relation to such a worker, references to the employer include references to the provider of agency work. The right to equal treatment in terms of training opportunities. Section (7) states Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different. The respondent is a provider of agency work, the complainant is an agency worker and therefore I have jurisdiction to hear the complaint on the grounds of an alleged infringement of section 8 (7) of the Act of 1998 as amended. A complaint of harassment. Section 14 A of the Act as amended prohibits harassment on any of the 9 grounds listed at section 6 (2) of the Act of 1998 and states “the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment”. I find that I have jurisdiction to hear this complaint by virtue of section 8 of the Act. Complaint of victimisation by the complainant. Section 85 of the Act of 1998 as amended prohibits victimisation against an agency worker. I find that I have jurisdiction to hear this complaint CA-00027713-002.Complaint under Section 18 of the Parental Leave Act 1998. Employer in relation to an employee is defined in section 2 of the Act as “ the person with whom the employee has entered into or for whom the employee works under …….. a contract of employment” and “who is liable to pay the remuneration.” The complainant’s contract is not with the respondent, neither is he paid by the respondent. I do not find the respondent is the employer. I do not have jurisdiction to hear this complaint.
CA-00027713-003.Complaint under the Criminal Justice Act, 2011. Relevant law. Section 20 of the Criminal Justice Act, 2011 states — (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee— (a) for making a disclosure or for giving evidence in relation to such disclosure in any proceedings relating to a relevant offence, or (b) for giving notice of his or her intention to do so. The respondent is not the employer. I find that I do not have jurisdiction to hear this complaint.
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Substantive Complaint
Summary of Complainant’s Case:
CA-00027713-001 .Complaint under section 77 of the Employment Equality Act, 1998 The complainant cites four instances of discrimination on the grounds of race. A complaint of discriminatory dismissal. The complainant maintains that he was dismissed on the 7 /12 /2018 on the grounds of race because he notified the employer on the 14 /11/2018 that the respondent line manager’s observations on his performance, being unjustifiably critical, constituted discrimination on the grounds of race . A complaint of less favourable treatment in terms of the respondent’s failure to provide him with training opportunities contrary to section 8 (c) of the Act of 1998. Two Irish agency workers who commenced employment in January 2018 were provided with a particular type of training- Empower training. He was denied same though he had been told at interview that he would be provided with this training. Had he received this training it would have enabled him to perform more sophisticated operations. He was asked by a client company to perform some tasks but could not do so as in the absence of the training he did not have the password associated with that training programme and could not therefore access a particular programme. He maintains that it was an expensive training package. He asked the respondent on a few occasions to arrange it but it never happened. He maintains that he was denied this because of his nationality. A complaint of harassment on grounds of race. The complainant did not make out a case of harassment on the grounds of race. A complaint of victimisation on grounds of race. The complainant did not make out his case of victimisation on the grounds of race.
CA-00027713-002.Complaint under Section 18 of the Parental Leave Act 1998. The complainant links the taking of force majeure leave with the respondent’s criticism of his performance. He had received no criticism prior to his taking leave.
CA-00027713-003 Complaint under Schedule 2 of the Criminal Justice Act 2011. The complainant states that he was penalised in having false accusations about his performance put to him because he reported the unsolicited delivery of a pass key to him by one of the Directors of a client company of the Hirer. He believes this to be one of the “relevant offences” covered by the Act of 2011. |
Summary of Respondent’s Case:
The respondent develops and provides IT solutions for its customers in the fields of science and healthcare. The complainant worked in the professional services and laboratory IT businesses. The respondent states that they are not the complainant’s employer. The staffing agency employed him and assigned him to the respondent. CA -00027713-001.Complaint under section 77 of the Employment Equality Act, 1998 The respondent states that the complainant has failed to make out a prima facie case of discrimination as required by section 85A of the Employment Equality Acts. The respondent addressed the 3 elements of this complaint A complaint of discriminatory dismissal, The respondent is not the employer and has no responsibility for the termination of his employment by the hirer. The respondent’s failure to provide him with training opportunities. The Regional IT lead with the respondent gave evidence that the training sought by the complainant was not essential for the performance of the job for which he was engaged. Neither was it provided for in his contract of employment. It did not hinder him in any way from the performance of his job. The reason it was provided to the two Irish colleagues was that they commenced work at the beginning of the project in January 2018 when the training was deemed necessary. The project on which the complainant is employed is nearing its end and therefore there is no necessity to have a third engineer with that training. Notwithstanding the foregoing, the respondent did not, as alleged, deny the complainant training. The respondent states that the complainant was on the “wait list”. The respondent submitted emails showing that the IT lead was trying to source training opportunities for the complainant, but the trainer required more than one participant. Training opportunities were being explored. His replacement was a Nigerian who did not do the Empower training. The respondent relies on Melbury Developments Ltd V Valpeters 2004, ELR 64 in support of their submission that the complainant has failed to raise an inference discrimination. The Labour Court held that ” mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”. The respondent argues that the complainant was not discriminated against on the grounds of race.
CA-00027713-002.Complaint under Section 18 of the Parental Leave Act 1998. The respondent is not the employer and has no liability in respect of this complaint. CA-00027713-003 Complaint under Schedule 2 of the Criminal Justice Act 2011. The respondent stated that the complainant has failed to identify any disclosure covered by either the Act of 2011 or by the Protected Disclosures Act, 2014. Furthermore, the penalisation complained of which was the respondent’s identification of performance issues to the complainant on the 13 November occurred before the complainant made the complaint about the delivery to him of a pass key. The respondent submits that the complainant should be dismissed pursuant to section 42 of the Act of 2015. The Hirer has no recollection of this issue having been raised with him by the complainant and he has no record of such a report having been made to him. It is noted that the complainant has not referred to any record of his alleged reporting of this issue. The respondent states that no relevant offence as set out in schedule 1 of the Act has been identified by the complainant. |
Findings and Conclusions:
CA-00027713-001 .Complaint under section 77 of the Employment Equality Act, 1998. A complaint of discriminatory dismissal, The respondent is not the employer. I have no jurisdiction to hear this element of his complaint under the Employment Equality Acts.
The respondent’s failure to provide him with training opportunities The statutory provisions guiding the examination of this complaint of discrimination is contained in Section 6 of the Acts which defines discrimination as occurring where (a) “one person is treated less favourable than another is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) of this Act”. The complainant being of Polish nationality is within the protected class as set out on section 6(2)(h) of the Act which prohibits discrimination “where a person is of a different race, nationality or ethnic or national origin”. However, section 85A of the Acts requires the complainant, in the first instance, to submit facts which allows me to infer that the failure to provide him with training opportunities constitutes a discriminatory act. The Labour Court in Intesa Sanpaola Life Ltd. v Nowak (EDA 1840) stated: “It is settled law that, in circumstances such as this, the mere coincidence of nationality and a perceived detriment is not sufficient to ground a complaint of discrimination. Something more must be established that would suggest the possibility that there is a relationship between the two facts.” The respondent’s evidence must also be considered in establishing if the complainant has met the burden of proof. The Labour Court in the case of Dyflin Publications Limited v. Ivana Spasic, EDA 823, stated “the Court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the Court should consider any evidence adduced by the Respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant”. I find on the basis of the evidence that the respondent did not deny the complainant training opportunities. I find the respondent was exploring training options two and a half months into the complainant’s employment. I find that the absence of training did not at that time in any way hinder the complainant in performing the work to which he was assigned as opposed to a random task he was asked to undertake by a person who had no management function over him and who was employed by a client of the respondent. Therefore, I find that then complainant has failed to raise an inference of discrimination on grounds of race and contrary to section 6 of the Employment Equality Act,1998. Complaint of Harassment on grounds of Race. The complainant did not make out his case against the respondent.
A complaint of victimisation on grounds of race. The complainant did not make out his case.
CA-00027713-002.Complaint under Section 18 of the Parental Leave Act 1998. I do not have jurisdiction to hear this complaint. This complaint has been adjudicated upon in decision numbered ADJ 00021266.
CA-00027713-003 Complaint under Schedule 2 of the Criminal Justice Act 2011. I do not have jurisdiction to hear this complaint. This complaint has been adjudicated upon in decision numbered ADJ 00021266.
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Decision:
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 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00027713-001 .Complaint under section 77 of the Employment Equality Act, 1998 I find that the complainant was not discriminated against on the grounds of race in relation to the provision of training opportunities. CA-00027713-002.Complaint under Section 18 of the Parental Leave Act 1998. I do not have jurisdiction to hear this complaint CA-00027713-003 Complaint under Schedule 2 of the Criminal Justice Act 2011. I do not have jurisdiction to hear this complaint.
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Dated: 19th August 2020
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Key Words:
Alleged Discrimination by Hirer. |