Complainant

Respondent

Anonymised Parties

A Security Officer

A limited Company

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00022921-001

30/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00022922-001

30/10/2018

CA 00022922-01.

The scope of the Equal Status Acts is clearly set out in the legislation, which states, at Section 5, that

“A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public“

The respondent does not provide goods and services to the public generally nor does it provide goods or services to the Claimant. The Claimant is an employee of the Respondent and so any interactions he has with the Respondent are in the context of an employment relationship. He is not a customer of the Respondent.

The Respondent notes that the definition of a service as outlined in the Acts is as follows;

“service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—, ,

(a) access to and the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service,

but does not include pension rights (within the meaning of the Employment Equality Act, 1998 ) or a service or facility in relation to which that Act applies;

The respondent is a party to a commercial contract with its client D Ltd by virtue of which it provides cleaning, security and catering services at a location in Dublin. Members of the public are not permitted to enter the site and entry to the site is subject to certain security checks and measures. The scope of the Equal Status Act does not extend to employment disputes. In this regard, the Respondent refers to the Workplace Relations Commission’s guidance note, entitled “What is the difference between Employment Equality and Equal Status?”, available on the WRC website.   The guidance note differentiates between employment disputes and allegations of discrimination outside the workplace as follows;

“Discrimination at work is covered by the Employment Equality Acts. If you are an employee, or trying to get a job, and you feel you are discriminated against unlawfully, on any of the nine prohibited grounds, you can make a claim under these Acts. The legislation covers all aspects of work including recruitment and promotion, the right to equal pay, conditions of employment, training or experience.

Discrimination outside the workplace is covered by the Equal Status Acts. If you are trying to get goods or services and you feel you are discriminated against unlawfully, on any of the nine prohibited grounds, you can make a claim under these Acts. The legislation covers many different goods and services. It includes access to a place, facilities for banking, entertainment, cultural activities or transport, professional or trade services, health services, access to education and accommodation. It does not apply to licensed premises.”

The Claimant’s representative, IK Solicitors, have submitted a claim to the WRC under the Equal Status legislation on his behalf. Their intention to do so is clear, per their communication to the Respondent in October 2018 outlining same. However, nowhere on the claim form has he identified an occasion on which the Respondent has allegedly discriminated against the Claimant in the provision of goods or services to the public. The Respondent therefore submits that the claim must fail.

The respondent is not on notice of a discrimination claim under any other piece of legislation.

The complainant accepts that he is not a member of the public for the purposes of this case and was not in receipt of any goods or services within the meaning of the Act.

CA 00022922-001

Based on the complainant’s acceptance that he, as an employee of the respondent, was not a member of the public and was not in receipt of a service or goods by the respondent or anyone else for that matter, I find that his claim is misconceived and accordingly fails.

Mr YM, a security man was talking to the complainant in the security hut. He started talking about a beautiful woman he saw. Then he went on about what he does with his wife at night. He then raised his right arm to check his muscles. He pumped his right arm like a wrestler and asked the complainant to feel his right arm muscles to see how powerful and strong he was. The complainant only used is left fingers to feel his muscles. The complainant then went out to deal with two people at the gate. When the complainant came back in Mr. YM said that he needs to report Mr YK because he nearly hit him with his car. The complainant said that he would not report a colleague. They then had an argument about it.

The following day, 24th of April, 2018 Mr YM walked pass by the Complainant’s check- post limping and when the Complainant asked him,“why are you limping”? He said he “hurt my leg at the Gym” and continue walking. On the 25th of April, 2018 as the Complainant was performing his duty at the check-post a colleague, Mr RC came to inform him that he has been asked to relieve the Complainant from his duty. He told the complainant he was to attend at Mr. DA’s office. Mr DA had previously called the Complainant to ask him of his address. When he arrived at the manager’s office, the Complainant met two of his managers waiting for him, Mr DA and Mr SH. They both told the Complainant that a colleague of the Complainant has reported a case of assault against him. The name of the person making the allegation was not mentioned to the Complainant. He demanded to know but his demands fell on deaf ears. The Complainant responded by saying that this must have been a mistake in identity because he had not assaulted any of his colleagues. Mr DA and Mr SH refused to accept his defence. He was then suspended with pay. Both managers walked the Complainant to the gate and took his ID card off him. The Complainant was not informed when to return back to work or how long he will be left on suspension.

A letter from Mr SH dated 26th April 2018, which was received on the 27th of April, 2018 stated that the Complainant has been accused of assaulting one of his colleague. A letter dated 22nd June was not received by the Complainant until 30th of July 2018 (Monday). Before the Complainant received the letter, Mr DA called the Complainant to inform him about the investigation which was to take place on 1st August 2018 at 10am – Nangar Rd, Dublin 12. The complainant attended for this meeting On the 29th August, 2018 the Complainant received a call from Mr EM, the site Canteen Business Manager, for an onsite company, asking the Complainant to attend a disciplinary hearing on the 31st August, 2018. The complainant was given a copy of the minutes, which are exhibited.

The Hearing was held on 31st August 2018.

After the hearing, the Complainant was asked to resume work on the 3rd September,2018. On 21st September,2018 the Complainant was handed a warning letter dated 31t August,2018 by Mr DA. He had been given a warning. The complainant attended back at work on the 3rd September, 2018. He did not appeal the warning he was given. The complainant would ‘rather die that appeal a decision for something he didn’t do’ .

The complainant feels that the disciplinary process was flawed and was unfair to him.

The Respondent is a contracted services company that provides a range of services to its clients. The Claimant is employed as a Security Officer on this site.

Preliminary Argument: Expired Sanction.

The Claimant seeks to appeal a disciplinary sanction which is now expired and removed from his file. It is respectfully submitted that there is no longer a live trade dispute on this point. The respondent draws the Chair to the following cases in this regard;

LRC21862

In this case the Chair of the Court stated;

“The disciplinary procedure of the Respondent provides that a final written warning shall ‘remain on a staff member’s personnel file for 12 months’... The Court finds therefore that the warning has no existence following the lapse of 12 months from date of issue.

The Court therefore concludes, in accordance with the disciplinary code under which it was issued, that the fact of a written warning having been issued to the Complainant has no meaning for the Complainant in terms of his employment or his relationship with his employer since 13thJuly 2018. In those circumstances the Court has decided that no decision it could make on the substance of the within matter could have any effect on the worker concerned.”

LRC21763

“The issue came before the Court on the 25thJuly 2018 at that point the final written warning had expired and therefore the issue was moot. The Court cannot expunge something that no longer exists.”

In a similar manner to the cases referenced above, the respondent notes that the Claimant's disciplinary sanction, which he seeks to appeal has been expunged and removed from his file. In line with LRC21763, the Respondent submits that this issue is now moot, and, in line with LRC 28162, that the Adjudication Officer can make no decision on the substance of the matter.  

CA 22921-001

Following a thorough, fair and procedurally accurate investigation and disciplinary process, the complainant received a warning from the respondent. He did not appeal the decision to give him a warning. Furthermore, I note that the warning expired on the 31st August, 2019.

In all of the circumstances, I find that no recommendation I could make would have any effect on the worker or his personnel file. There is no warning in existence for me to do anything with. I am therefore making a recommendation that the complainant accept the sanction imposed and accept that the sanction has now expired.

The complaint is misconceived and accordingly fails.

For the reasons set out above, I am making a recommendation that the complainant accept the sanction that was imposed and accept that it has now expired.