Complainant

Respondent

Anonymised Parties

Cargo agent

Airline

Representatives

  Self- represented

Rachel Barry Arthur Cox

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-00026472-001

22/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00036328-001

22/05/2020

CA-00026472-001. Complaint under section 77 of the Employment Equality Act, 1998.

 This is a complaint of discrimination, harassment and victimisation under the Employment Equality Acts 1998-2015.

The complainant is Polish. He is employed as a cargo agent with the respondent airline since 2009.The complainant submits that the respondent in demanding higher standards of performance in his role as a cargo agent, treated him less favourably than non- Polish  employees, denied him training opportunities, harassed and victimised him contrary to the provisions of the Employment Equality Acts.

He works 37.5 hours a week. His fortnightly salary is €1253.

He submitted his complaint to the WRC on 22/2/2019. The last act of discrimination occurred on the 19/11/2018.

CA-00036328-001. Complaint under section 6 of the Payment of Wages Act, 1991.

The complainant has also presented a complaint alleging that the sum of €1,147 was unlawfully deducted from his wages on 24/10/2019.

He lodged this complaint on the 22 May 2020.

Admissibility of incidents prior to 23 August 2018.

The respondent submits that section 77(5)(a) dictates that the only admissible incidents grounding the complaint of discrimination are those that occurred in the six months prior to the submission of the complaint, that period being the  23 August 2019- 22 February 2019.

The respondent argues that Section 77(5)(b) of the Employment Equality Acts which allows for the  making of a claim under the Acts to be extended up to twelvemonths, i.e. back as far as 23 February 2018 ,does not arise in this instance. The respondent points to the Labour Court determination in A Bank v A worker ,EDA104,  which set out that there must be reasons which both explain and excuse the delay.

The complainant has presented no such case. The complainant was represented by his trade union when he was processing these very same complaints through a Dignity at Work Procedure  from November 2018 and subsequently when appealing the outcome of that investigation through the mechanism of the respondent’s grievance procedure. This did not prevent the complaint from lodging his complaints within the statutory deadlines.

The respondent also relies on Sword Risk Services v Seamus O ’Dwyer (DWT1410) where the Court confirmed that extensions of time should not be granted where a claimant is not actually prevented from making a claim in time, but rather chooses not to do so. This is what arose in the instant  case.

Continuum Cases

The respondent submits that it is not possible for the complainant to include incidents occurring before the 23 August 2018(the statutory deadline for submission of his complaint) as being part of a continuum. They are separate, unconnected assertions ranging from alleged interpersonal difficulties between a range of different colleagues to alleged unsubstantiated instances of less favourable treatment, preventing any conclusion being drawn as to whether such incidents constitute discriminatory events. The respondent relies on the determination in County Cork VEC v Ann Hurley EDA1124 wherein the Labour Court noted that “in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit.”

The complainant has not satisfied the burden set out under Section 85A of the Acts, concerning the acts which took place between 23 August and 2 February 2019. The onus falls squarely on the complainant to demonstrate this.  In Minaguchi v Mr. Ray Byrne, T/A Wineport Lakeshore Restaurant DEC-E/2002/20, the Equality Officer set out 3 requirements necessary to establish that a prima facie case exists. They are:

- That s/he is covered by the relevant discriminatory ground(s);

- That s/he has been subjected to specific treatments; and

- That this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.” 

Without prejudice to the jurisdictional point the respondent submits the following in relation to the incidents cited:  

Incident number 1. The complainant dates this as having occurred on the 13 September. The  respondent’s  evidence  and a report dated 22 August shows that this incident occurred on 22 August and is out of time. In relation to the submission of an incorrect date concerning an incident alleged to have occurred in December 2018, and based on a diary entry, the respondent stated that the complainant was on sick leave from 30 October 2018 onwards. She asked that the adjudicator take note of the unreliability of the complainant’s dates and evidence.

Incident no 2 on the 13/10/2018. The complainant maintains that the possibility of a reprisal from the respondent deterred him from seeking medical advice following a workplace accident. This is unsupported by evidence.

 Incident 3 on the 17/10/2018. A team leader at a grade higher than the complainant shouted at him for using his phone while he was driving an ET Vehicle. The respondent’s Head of Cargo Operations for Ireland and UK stated in evidence that driving a 3-storey machine, loaded with goods on pallets for placement on the aircraft is not permitted and is dangerous.

Incident 4 on the 18/10/2018. The complainant was prohibited from using a particular type of vehicle to move freight in contrast to other colleagues, five Irish cargo agents of a lower grade and with less experience, who had been trained to use this transport in 2016. The respondent stated that it is company policy and not disputed by the complainant that training in the use of these vehicles is a prerequisite to using one. The respondent observed that this was the first time that the names of persons trained in 2016 in driving this vehicle had been put to them.

 A cart or dolly is needed to transport goods to the loading bay

Incident no 5  on the 19/10/2018.The complainant was working from an export station. He was incorrectly parking a pallet of goods for loading on to the plane. It is essential that cargo is loaded in a secure way and with the correct removal or lifting equipment so as the ensure the stability of the load. The complainant had to be told more frequently about loading the pallets. A cart or dolly is needed to transport goods to the loading bay. Grades C and D are the only grades allowed move pallets with a forklift. The complainant is a grade B agent

This matter was the subject of a legitimate complaint submitted by the complainant using the Dignity at Work Procedure. There was never a mention of discrimination on the grounds of race concerning this or any other incident grounding  this complaint and previously examined in 2018 via the mechanism of the Dignity at Work Procedure. The respondent investigated his legitimate complaints. This incident of the 19/10/2018 was the subject of a mediated agreement.

Because of the many instances of conflict with colleagues and supervisors in the warehouse, he was offered a role in check in to minimise conflictual relationships for him, but he declined the offer.

The respondent submits that the absence of a comparator means that the complainant is unable to demonstrate that he was treated less favourably than a person of a different nationality. Furthermore, his complaints are assertions unsupported by evidence . That being the case, the complainant has failed to make out a prima facie case of discrimination in relation to the in-time complaints. Consequently, his complaints which fall outside the statutory time limits are inadmissible.

 His complaint of discrimination cannot succeed.

The complainant stated that the UK decision of Robertson v Bexley Community Centre (2003) IRLR 434 allows a tribunal to extend the time to include incidents that occurred before 23 August 2018.

The complainant asked the Adjudicator to be guided by County Cork VEC v Ann Hurley EDA1124 where the incidents grounding that complaint, and which had occurred both prior to and after the statutory deadline had passed, were held to be sufficiently connected so as to constitute a continuum. The complaint states that the practice of requiring him to perform to a higher standard than his non-Polish colleagues is evident in all the incidents submitted by him and stretching back to March 2018.

The incidents of discrimination occurring within the statutory limits and for which the complainant states that he has no other explanation other than his race- complaints which should enable the incidents of discrimination which fell prior to August 2018 to be considered- are as follows:

Incident no 1.

The complainant did not contest the respondent’s evidence and a report dated 22 August concerning an incomplete list for a forklift truck that shows that this incident occurred on 22 August and is out of time.

Incident no 2.

On the 13/10/2018, in colliding with a pillar, he accidentally damaged a piece of equipment and in doing so, injured himself and suffered pain in his ribs. He confirmed that he declined the offer of medical assistance though he was in pain due to his fear of retaliation by the respondent. In cross examination he confirmed that he knew of no other employee who was denied access to a doctor or who had suffered career- wise in any way for having sought medical assistance following an accident at work.

 Incident 3. On the 17/10/2018, a team leader at a grade higher than the complainant  shouted at him for using his phone while he was driving an ET Vehicle. He was trying to contact a supervisor at the time. He complained about this behaviour to a more senior leader.

Incident 4 on the 18/10/2018. The Facilities Services Supervisor prohibited the complainant from using a particular type of vehicle – a diesel tug- as he, the complainant, had not been trained in its use. It is company policy and not disputed by the complainant that training in the use of these vehicles is a prerequisite to using one.

Incident no 5 on the 19/10/2018. The complainant was working from an export station. He was parking a pallet of goods for loading on to the plane. His team leader stated that he was preparing the load of goods for lifting incorrectly. He should be using a different, long spreader. His supervisor said to the complainant “you are supposed to rebuild the pallet. Do it the way as instructed “. The complainant stated to the supervisor that he was doing nothing incorrectly. The team leader then said, “get off my f…….g forklift and come to my office, ‘sit on that f…ing chair”. He kicked the door shut and tapped the complainant three times on the shoulder.” I will put another shoe to your head”. The Supervisor continued” It’s not all about you”. The complainant was shaken and asked to be sent to the company doctor. The supervisor told him to have a coffee and he would be ok. Afterwards the complainant submitted a cargo operations report to the supervisor.

In relation to these incidents, the complainant never saw any non-Polish colleague spoken to in that way. In contrast he observed a named colleague, 1, on 25/9/2018, on a higher grade ,lifting a pack of pallets in a way that he had been prohibited from doing in March 2018 by his supervisors and managers.  The complainant confirmed that the supervisor was at a distance of 10-15 metres from employee no 1. The complainant was not aware if anything had been stated to employee no 1 at a later stage.

Failure to name a comparator in the form.

The complainant stated the reason he chose not to identify a comparator was because he believed that any such person would be victimised by the respondent.

Admissibility of incidents prior to 23 August 2018.

Legal Framework

Section 77(5) of the Employment Equality Acts requires that a claim for redress in respect of discrimination be referred within six months from the date of the most recent occurrence. Applying this provision to the instant case, the complainant’s evidence of discriminatory, less favourable treatment concerning his working conditions reveals that the demands for a higher standard of performance relative to his non-Polish counterparts occurred on 23 August 2018. 27 and 29 September 2018, 18 and 19 October 2018, and concerning the non- provision of training, in September 2018.

Section 77(5)(b) of the Employment Equality Acts allows for the making of a claim under the Acts to be extended up to twelvemonths, i.e. back as far as 23 February 2018.

The complainant made no submission for an extension of time as per section 77(5)(b) of the Act concerning those acts which occurred outside the statutory deadline. He did make a case for the pre and post August 2018 incidents to be seen as part of a  continuum. The complainant relies on the determination of the Labour Court in Cork County VEC v. Hurley EDA 24/2011. However, both that determination and County Dublin VEC v. Dodo EDA1327/2013) set out that a discriminatory act must have occurred within the limitation period in order to consider those acts occurring outside of the statutory period. He states that Robertson v Bexley Community Centre should permit me to extend the time for him to include incidents that occurred before 23 August 2018.

I will consider if these incidents which occurred within the statutory time limit amount to a prima facie case of discrimination on the grounds of race and contrary to section 6(2)(h) and section 8(1)(b) of the Acts. Section 6 of the Acts defines discrimination as occurring where

6. (1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), (h) one person is treated less favourably 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”

Did the respondent discriminate against the complainant in terms of Section 6 (2)(h) contrary to section 8(1)(b) of the Employment Equality Acts, 1998-2015 in requiring him to reach a higher standard than that expected of his non-Polish colleagues and treating him less favourably for any lapses in performance, and in harassing him on the grounds of race. If I find that these incidents contained in the complainant’s evidence do constitute a prima facie case of discrimination, I must then consider the connectedness or not of the pre- August 2018 incidents to the post- August 2018 incidents.

Incidents grounding the complaint of discrimination; do they constitute prima facie evidence of discrimination?

Burden of Proof.

Section 85A of the Acts provides for the allocation of the probative burden in complaints of discrimination. This requires that the complainant must first of all establish the facts which raise an inference of discrimination. I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent. In Hallinan v. Moy Valley Resources DEC-S2008-25, a complaint taken under the Equal Status Act, 2000 the equality officer held that in order to establish a prima facie case of discrimination, the following must be established:

(a) The complainant must establish that he or she is covered by the protected ground;

(b) Establish the specific treatment has allegedly taken place

(c) The treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground.

I accept that the complainant is covered by a protected ground. I find that the incidents or treatment as alleged occurred. The determination of Graham Anthony and Co Ltd v Mary Margretts, EDA 038 held that mere membership of a protected class and specific treatment

“is insufficient of itself to ground a complaint of discrimination. An additional element is required. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred”

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”.

The respondent’s evidence is that all employees must comply with SOPs – no exceptions.

Incident no 2. Applying the legislative requirements found in section 85A of the Acts to this incident of the 13 October 2018, the complainant was unable to provide any evidence of adverse consequences for other non- Irish persons availing of medical assistance. While it is regrettable that he harboured such fears, it does not meet the evidential standard required.

Incident no 3. He offered no evidence of tolerance towards a non -Polish colleague using a phone while driving a 3-storey vehicle loaded with goods. A complainant must prove less favourable treatment as compared with another person of a different nationality in a similar position to the complainant who was treated differently. On the balance of probabilities, I find the respondent’s evidence that this is universally prohibited to be more convincing.

Incident no. 4. The complainant did not give evidence of any other employee of his grade, grade B, who had been permitted to use these vehicles without training. Being prohibited from using these vehicles is not evidence of any difference in treatment but merely a universal application of this safety rule. The training which he did not seek occurred in 2016 and is clearly out of time.

The essence of the three of less favourable instances of treatment is not that the requests to him to perform a task in a particular way were contrary to standard operating procedures just that non-compliance with same did not provoke the same condemnation for Irish employees. The respondent looked the other way, was selective and inconsistent when non- Polish cargo agents committed same or similar errors.  Though asked, he failed to identify instances of such safety breaches with the exception of his observation of the incident of the 29 September which concerned a cargo agent whose higher grade allowed for greater latitude in deciding how a particular cargo load should be moved. The cargo operations manager confirmed that nobody in a grade B position was permitted to move pallets with a forklift truck, that was the preserve of grade C (team leaders) and grade D (Supervisors).

Incident number 5 was unacceptable and abusive behaviour towards the complainant. It was the subject of a mediated agreement, but abusive, unjustified behaviour is not necessarily synonymous with discriminatory behaviour on grounds of race. He was offered a role in check -In so as to minimise conflictual relationships for him but he declined the offer.

While the complainant made assertions, he was unable to demonstrate how a person of a different race to him facing the same set of circumstances would have been treated any differently. The Cargo Operations Manager stated that he repeatedly advised the complainant of the necessity of reporting any lapses in standard operating procedures on the part of others which could compromise the stability of the cargo load and the aircraft. He provided no details.

 The complainant submitted a written document purporting to be from a colleague attesting to the unfair treatment of the complainant, but the witness who attended the first adjourned hearing was no longer in the country and could not give evidence or be cross examined on same. This letter was therefore inadmissible and was stated to be so.

Failure to name a comparator.

The complainant has cited a hypothetical comparator which is permitted in certain situations, The Equality Officer in Darguiz v Lough Corrib Engineering Ltd.DEC-E2009-038 stated

“I have no hesitation in using a hypothetical comparator in appropriate situations such as where it is shown that the existing potential comparators are unsuitable for one reason or another. However, in the instant case there were 4 non-Lithuanian employees working for the respondent on the same site at any one time and no reason has been adduced by the complainant as to why they were suitable as comparators”.

 A complainant must establish a difference in treatment relative to a named comparator in relation to the adverse consequences of availing of medical treatment or using the mobile phone while driving a vehicle with loaded goods, or loading cargo in an incorrect manner, or being prohibited from using a particular machine or vehicle to move goods. There were 50-60 cargo agents, 6 of whom were non- Irish. The complainant confirmed that there were usually two non-Irish workers on the daily team of 20 cargo agents. His argument that he was afraid to name them for fear they would suffer retaliation in circumstances where they would not have to appear at the hearing is questionable.  And while the complainant did assert that 2 named individuals exited unscathed from lapses in standard operating procedures, he could not confirm in cross- examination that the lapses were actually observed or that the cargo agents were not taken to task subsequently.

On the basis of the evidence and for reasons cited above, I do not find the incidents complained of within the statutory time limit constitute a prima facie case of discrimination on grounds of race. I am not obliged to consider the incidents complained of which fall outside of the statutory time limit.

I will proceed to examine the other standalone elements of the complainant’s complaint which fall within the statutory limits.

CA-00026472-001. Complaint under section 77 of the Employment Equality Act, 1998

Failure to provide the complainant with training,

The complaiant in evidence stated that the respondent had failed to provide him with training in the use of scanning machines for goods and luggage. This would have helped him to progress in his career. The complainant does not know the exact number of warehouse employees selected to participate in the training in 2018 or how they were notified of its availability but states that he is aware of six names on the roster for training all of whom were Irish. The complainant asked a manager in September 2018 why he was not on the list for training and was advised that he would be on the next training session. The complainant also raised the matter with the warehouse manager in September 2018 who told him that he had no responsibility for training.

Complaint of harassment on grounds of race.

At the hearing the complainant stated that he was harassed on general grounds. He could only deduce that he was harassed on grounds of race, with the constant shouting and   criticism of his work.

Supervisor, A, stated to him at some point in 2018 that he sounded like Count Dracula.

Complaint of victimisation on the grounds of race.

The complainant in evidence stated that the protected act is his complaint, submitted in 2012 under the Dignity at Work procedure, against one of his supervisors, A. The complainant’s complaint was upheld. The supervisor was removed from his supervisory post for one year (2015-16) after which he was reinstated into his post.

Retaliation occurred from 2016-2019. The adverse treatment was the bullying, abusive behaviour as evidenced in the shouting at him by his supervisors and the higher standard expected of him. Another supervisor, B, called him “a headless chicken” and stated, “If you had a brain you’d be dangerous”. The complainant was uncertain of the dates.

CA-00036328-001. Complaint under section 6 of the Payment of Wages Act, 1991.

Preliminary matter. Jurisdiction to hear the complaint.

The complainant pointed to County Cork VEC v Hurley which allowed for a continuing series of discriminatory acts, some of which were lodged outside of the statutory time limits to be admissible.

The complainant states that the respondent unlawfully deducted the sum of €1,147 from his wages on 24/10/2019 as the respondent argued that he had exhausted his entitlement and wasn’t entitled to paid sick leave. This deduction continued until 19/11/2020. He resigned on the 10/11/2020.

He lodged his complaint on the 22/5/2020.

He states that his own doctor declared him unfit to work whereas the respondent’s doctor declared him fit to work. He relies on the 2009 Labour Court recommendation of Imperial Tobacco v A Worker AD0964 which held that while a company’s sick leave scheme can provide for the employee’s fitness to be determined by a company- appointed doctor, the consequences of a conflict between the company doctor and the employee’s doctor must be spelled out to the complainant before a  deduction is made from his salary.

This did not happen in the instant case. In addition, the complainant argues that the withholding of salary from him was a disciplinary sanction for his failure to return to work after the company nominated doctor, in contrast to his own doctor, declared him fit to resume work. Accordingly, the company viewed this as a breach of the sick leave policy and this breach -if breach it was -could only result in a deduction of pay after having been dealt with through the disciplinary procedure. The disciplinary process of warning etc was not applied prior to this deduction.

He asks the adjudicator to uphold his complaint.

CA-00026472-001. Complaint under section 77 of the Employment Equality Act, 1998

Standalone complaints.

Failure to provide training in the x-ray scanning machine.

The respondent asks the adjudicator to note that the complainant never made a complaint of discrimination in any of the previous processes activated by him

The Head of Cargo Operations for Ireland and UK stated in evidence that six non-nationals work in the warehouse. The complainant was told that he would be on the next group to be trained. The witness advised that the x-ray scanner training was confined to the Grade B role, the complainant’s grade. Had he received this training it would not have led to any pay increase for him. It is more on- the- job training type of experience. The Cargo operations Manager stated that he did not know how many non- nationals were trained in September. He never saw the list submitted by the complainant before the hearing. The Cargo Operations Manager stated he believed those who went on the course were verbally notified of its existence. He believes that Deputy Cargo Security Manager notified and selected those employees who were to attend the training.

The respondent has to wait for the training authority to offer such a course.

Complaint of harassment on grounds of race.

The respondent refers to section 14A(7)(a) of the Employment Equality Acts 1998-2015 and argues that even if the behaviour set out by the complainant did occur, the complainant has failed to establish any relationship or link between the conduct complained of and his race.

The very incidents now advanced as evidence of alleged harassment were submitted as evidence of bullying in the November 2018 complaint. With the exception of the incident of the 19/10/2018, they were not upheld. Notwithstanding that he had the opportunity to identify such complaints as relating to “harassment on grounds of race, colour, nationality, ethnic or national origin”, he chose not to do so. There is substantial overlap between the complaint lodged on 21 November 2018 and the instant complaint.

The respondent asked the Adjudicator to note that the remark reportedly made to him by the Warehouse Manager” You sound like Count Dracula” is new evidence today, the 5 October 2020, which was never submitted in any of the processes which he activated previously to examine his complaints against these same individuals.

Complaint of Victimisation.

The respondent submits that the complainant has failed to meet the test set out in section 74(2) of the Acts which requires the complainant to demonstrate that he invoked a protected act which resulted in retaliatory acts towards him. The complainant did not make a complaint of discrimination, nor advise of an intention to do so, nor characterise the incidents anchoring his complaint of victimisation which had already travelled through IR procedures as victimisation on the grounds of race, prior to making a complaint of discrimination on the grounds of race on 22 February 2019.

His complaint cannot succeed.

CA-00036328-001. Complaint under section 6 of the Payment of Wages Act, 1991

Preliminary issue: Time limits.

The respondent points to section 41(6) of the Workplace Relations Act, 2015 which denies jurisdiction to the WRC to hear a complaint unless the complaint is submitted within six months of the date of contravention. The contravention occurred on 24 /10/2019. The complaint was lodged on 22 /5/2019.The complainant attended the WRC in July 2019 in relation to his other complaints, so was familiar with the matter of time limits.

There is no ground for the Adjudicator to extend the six-month time limit as no reasonable cause exists to allow for same.

This complaint should be dismissed.

Without prejudice to the respondent’s preliminary position, the respondent states that no deduction has been made from the complainant’s wages. The respondent refers to section 1 of the act of 1991 which defines wages as “sums payable” to the employee. The respondent relies on the EAT determination in Sullivan V Department of Education (1998) 9 ELR 217 which determined that the word “payable”, quote meant “properly payable”, and a deduction is a failure to pay what is properly payable to an employee.

 The respondent made no such deduction of any sum which is properly payable. What the respondent did do was to act in compliance with the provisions of the sick leave regulations which forms part of his contract of employment. The respondent pointed to the relevant regulations which were submitted in evidence. An employee who satisfies the terms of the scheme and is medically certified as unfit to work is paid salary for 6 months, followed by 6 months’ pay on 75% of his salary.

On 7 January 2019, the complainant was medically declared fit to return to work and to engage with management.

The respondent Employment Law Manager stated in evidence that ceasing to pay salary to an employee where three medical reports from 2 Occupational Health Doctors and an independent Psychiatrist attest to his fitness to resume work is not disciplinary action and is mere compliance with the respondent’s medical scheme. The complainant is mistaken in classifying his failure to return to work as an abuse of the sick pay scheme which would have to be addressed through the disciplinary procedures before any reduction or cessation of pay could occur. An abuse arises where, for example, an employee in receipt of sick pay has forged medical certificates or has travelled or is working elsewhere. It does not apply to non- compliance with the terms of the scheme which is what occurred in this instant case. The complainant was on sick leave from 30 October 2018 to the date of his resignation in November 2020. His salary ceased after the exhaustion of his entitlement and for failure to return to work having been declared medically fir to do so.

He was advised by the respondent that this would occur.

The respondent’s solicitor states that Imperial Tabaco v Worker AD0964 (Labour Court 23rd July2009), cited by the complainant in support of his complaint, where the Court had held that the respondent should outline the consequences where there is conflict of opinion between a Company-appointed-Doctor and the worker’s GP is a recommendation under the Industrial Relations Act 1969.

 The respondent states that their OH medical personnel are expert in the field. The respondent’s solicitor requests that the adjudicator should be guided by the decision of Nolan v Irish Prison Service and anor (2015) IEHC 101 where the court acknowledged the legitimacy of the respondent relying on the Chief Medical Officer’s assessment on the complainant’s ill health and its connection to an earlier assault.

The respondent states this complaint cannot be upheld.

CA-00026472-001. Complaint under section 77 of the Employment Equality Act, 1998.

 The issues for decision by me are whether the Respondent discriminated against the Complainant on the race ground in relation to conditions of employment, harassed, and victimised him contrary to the terms of the Employment Equality Acts 1998-2015.

Failure to provide training.

I am obliged to decide if the respondent’s failure to offer training in the use of the x-ray scanning machine constitutes discrimination on the grounds of race and contrary to section 8(1)(c) of the Acts.

Burden of Proof.

Section 85A of the Employment Equality Acts 1998-2015 lays the onus of proof with the complainant to establish a prima face case of discriminatory treatment contrary to the Acts. Section 85A (1) of the Acts states that

“In any proceedings where facts are established by or on behalf of a complainant from which it may be presumed that discrimination has occurred in relation to him/her, it is for the respondent to prove the contrary”

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201, the Labour Court concluded that”

 “a complainant 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 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”

The complainant must discharge this evidential burden. If he does, the respondent must prove that he was not discriminated against on grounds of his race. If he does not, his case cannot succeed.

In Hallinan v. Moy Valley Resources DEC-S2008-25, a complaint taken under the Equal Status Act, 2000, the equality officer held that in order to establish a prima facie case of discrimination, the following must be present:

(a) The complainant must establish that he or she is covered by the protected ground;

(b) Establish the specific treatment has allegedly taken place

(c) The treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground

Applying the above preconditions for the purposes of establishing if a prima facie case of discrimination has been met, the complainant is covered by the protected ground by virtue of section 6(2) (h) of the Employment Equality Acts 1998-2015.

It is accepted that the complainant was not offered training in the use of the x-ray scanning machine. It is accepted that the complainant was advised that he would be offered the next opportunity early in 2019. It is uncontested that the training was provided by an external body. It is accepted that no pay increase would flow from having undertaken this training. The respondent never previously saw the list of people who had previously attended training.

The complainant is obliged to demonstrate that the treatment was less favourable than that afforded to employees of a different race. The complainant has a difficulty in meeting (this requirement as he stated in evidence that that he was not aware of the exact number selected for training though he was aware of six Irish named employees. While there was an absence of transparency as to who, how, why, when, and by whom persons were selected for this on the job training experience, the principal onus lies with the complainant to meet the three elements required to establish a prima facie case of discrimination. He did not know the entire cohort selected and so therefore could not say that no non-Irish workers were selected.

I find that the complainant has failed to raise a prima facie case of discrimination and his complaint therefore cannot succeed.

Complaint of harassment on grounds of race.

The complainant stated in evidence that he was harassed on general grounds and could only conclude that it was because of his race. The harassment was systematic. The complainant was unable to state when in 2018 the supervisor’s statements “You sound like count Dracula” or “If you had a brain you’d be dangerous” were made to him.

These statements are offensive and unacceptable, but I am required to establish that they were uttered because of his race and that they were uttered within the statutory time limits.

The complainant has therefore been unable to raise an inference of discrimination and has been unable to demonstrate that I have jurisdiction to hear this complaint. His complaint of harassment cannot succeed.

Complaint of victimisation on grounds of race

I must examine the evidence to establish if the Complainant was subjected to adverse treatment as a result of making a complaint of discrimination pursuant to Section 74(2) of the Act of 1998 as amended.

Victimisation is defined in Section 74(2) of the Acts which provides:

“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a

reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a

complainant,

(d) the work of an employee having been compared with that of another

employee for any of the purposes of this Act or any enactment

repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act

or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful

under this Act or the said Act of 2000 or which was unlawful under

any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the

actions mentioned in the preceding paragraphs.”

In Moriarty v. Dúchas DEC-E2003-013 the Equality Tribunal emphasised that the act which results in victimisation must be connected to a reliance on rights set out in section 74(2) above.

 “It is necessary that a complainant demonstrate the connection between his or her actions i relation to defending entitlements under the Act and the treatment complained of”

The complainant has not demonstrated how he has relied on any of the elements of section 74(2). The adverse treatment of which he complains in how he was treated by the respondent’s staff during the period August- October 2018 predated the raising of any claims of discrimination.

I do not find that the complaint was victimised by the respondent on the grounds of race.

CA-00036328-001. Complaint under section 6 of the Payment of Wages Act, 1991.

Preliminary issue; time limits.

The complaint as submitted to the WRC identified the date of contravention as 24 October 2019. The complaint was submitted on the 22 May 2020.

The complainant submitted payslips at the hearing as evidence of deductions which commenced on 3/1/2019 and extended up to 24/10/2019 which he cites as the date of the contravention.

The complainant asked that I consider the decision of the Court of Appeal for England and Wales in Robertson v Bexley Community Centre [2003] IRLR 434, which concerned a similarly worded provision of UK legislation to section 77(5)(a) of the Employment Equality Acts. This decision held that a Tribunal has discretion to extend time, but only where there is just cause and the discretion is the exception rather than the norm.

The complainant also asked me to see the deductions as a continuing series of infringements and again pointed to County Cork VEC v Hurley EDA1124. But this complaint was examined under section 77(5) (a) and (b) of the Employment Equality Acts.

However, I am obliged to examine this complaint under the Payment of Wages Act, 1991.

Section 41(6) of the Workplace Relations Act, 2015 denies jurisdiction to hear a complaint unless the complaint is submitted within six months of the date of contravention. The contravention occurred on 24 /10/2019. The complaint was lodged on 22 /5/2019.

In the High Court decision of HSE v McDermott [2014] IEHC 331, the Court considered a complaint submitted within 6 months of the dated and alleged unlawful deduction by the respondent who maintained that as the deductions commenced a number of years previously, the complaint was inadmissible. Hogan J held that that employee was entitled to have deductions which fell outside of the 6-month statutory time limit examined. The Court examined Section 6 (4) of the 1991 Act which prescribes the following time limit for claims before the Rights Commissioner:

 “A Rights Commissioner shall not entertain a complaint under this section unless it is presented to him within the period of six months beginning on the contravention to which the claim relates.”

 The date of contravention, being the first date on which payment was allegedly withheld.

The court considered the date of contravention as being critical and held that as long as the complaint refers to a contravention which fell within the preceding six months of the referral to the Rights Commissioner, the complaint will be admissible, and the employee may also be permitted to look at alleged deductions outside of the 6-month referral period.

But this complainant’s date of contravention occurred almost 7 months prior to the lodgement of his complaint. Hogan J in HSE v McDermott considered the framing of the complaint to be critical so as to ensure it relates to a contravention which occurred within the preceding six months of the referral to the Rights Commissioner. If the claim refers to a contravention occurring before this period, the referral will be deemed to fall foul of section 6 (4) of the Act of 1991, meaning the Rights Commissioner will not have the requisite jurisdiction to hear the complaint. He noted that the key question is the “date of the contravention to which the complaint relates.” i.e. time runs from the date of the contravention “to which the complaint relates.” Accordingly, he noted that everything turns on how the complaint is framed by the employee.

The complainant framed his complaint, and his evidence supported the fact that the alleged contravention occurred on 24 October 2019.  He lodged the complaint on 22 May 2020 almost seven months after the contravention to which this complaint relates and not within the required six months as set out by the High Court in HSE v McDermott.

On the basis of the evidence and the authorities, I find I do not have jurisdiction to hear this complaint.

CA-00026472-001. Complaint under section 77 of the Employment Equality Act, 1998

The complainant has failed to establish a prima facie case of discrimination and his complaint of discrimination and harassment on the grounds of race in terms of section 6(2)(h) and contrary to section 8(1) (c) of the Employment Equality Acts cannot succeed.  I do not find that the complainant was victimised on the grounds of race.

CA-00036328-001. Complaint under section 6 of the Payment of Wages Act, 1991.

I do not have jurisdiction to hear this complaint

Prima Facie evidence of discrimination; race. Payment of Wages Act; date of contravention of the Act; jurisdiction to hear the complaint.