Complainant

Respondent

Parties

Felix  Toure

Securitas Security Services Ireland Ltd

Representatives

Barry O'Donoghue  Ferrys Solicitors

Conor O'Gorman,  IBEC

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-00028670-001

26/05/2019

The Complainant was employed by the Respondent as a security officer on 1st September 2016. He is claiming that he was discriminated against on the race ground in relation to his conditions of employment and was victimised contrary to the terms of the Employment Equality Act 1998.

The Complainant was employed by the Respondent as a security officer and was assigned to work on a site in Grangecastle. His job title was a responder. His training consisted of learning on the job and observing his work colleagues on site. His shift pattern like his work colleagues was two weeks on days and two weeks on nights. He said that despite these agreed hours he was forced to work nights for 8 weeks in a row.

At the outset he was told that he was on probation for 6 months. He said that he was told by the Administration Officer that if any of his permanent colleagues left the role he would be given it. He said that 2 permanent colleagues left, and he expected to get a permanent role but instead he was transferred to the screening section.  He sought a reason from the AO for the transfer, but none was forthcoming. The Complainant then contacted the Manager and she told him that he was moved because he was “not quick enough”.  This was the first time that an allegation about his work was made. The manager then went on to question him if he knew what to do in an emergency. The Complainant was taken aback but he went through the emergency procedures and the Manager was satisfied with his response. The Manager told him she would speak to the AO about the situation and revert to him, but he heard nothing further.

He continued to work as a screener and was made permanent in April 2017. He was then made a relief screening supervisor filling in for annul leave or illness.

In July 2017 he was informed by one of the screening supervisor (PM) that he was monitoring him and that he was doing his job well. PM was not the Complainant’s supervisor or manager and he had no reason to monitor him.  The Complainant reported this to the AO and a site notice was put up to say that instructions to staff should only come from the Site Manager or the AO.

Following this when the Complainant was on the same shift as PM he said that PM antagonised him and made matters difficult for him.

PM was on annual leave in from 30th October until 18th November 2017. The Complainant was acting as a relief screening supervisor and he was advised by another screening supervisor that PM had appointed a work colleague to monitor him and to take notes and provide a report to PM on his return from holidays.

The incident was reported to the AO and the site manager and the complainant was asked for a report. The Complainant was then invited to a meeting with HR The first meeting was deferred because the friend the Complainant wished to accompany him was not allowed to attend as he could only bring a work colleague or a union representative.  A meeting took place on the 1st December 2017 and the Complainant was represented by the union.

PM was on sick leave and when he returned he changed the Christmas roster which was drawn up by the other screen supervisor. He changed the shifts that the Complainant had committed to over the holiday period.

 On the 21st February 2018, the Complainant received an email from the HR Manager to say the investigation was concluded and he received a further email on the 26th of February to say that the complaint against PM was unfounded. 

In March 2018 the Complainant was abruptly transferred to Leopardstown without any explanation the Complainant enquired if the decision was final and if he could return to Grangecastle in the future and he was told he was informed the decision was final and he couldn’t return to Grangecastle.

It was submitted that the Complainant was considerably disadvantage in respect of pay by the transfer to Leopardstown as his current rate of pay is €13.25 per hour and the employees in Grangecastle are earning €15 per hour.  

It was submitted that the Complainant who had been performing relief screening supervisor was unsuccessful on 3 occasions when he applied for the role despite his experience in carrying out the role. He said that he was discriminated against on the race ground as all the successful applicants are white and he is black.

It was submitted that there was a continuum of discriminatory treatment and the Complainant was actively taking issue with the discrimination up until May 2019.

The Respondent submitted that the complaint was referred outside the statutory time limit. The complaints raised by the Complainant relate to alleged acts of discrimination which occurred between September 2016 and March 2018.

The Respondent rejected the contention that the Complainant was discriminated against on the race ground contrary to the terms of the Employment Equality Act, 1998. It was submitted that the burden of proof is on the Complainant and he has failed to present any facts from which discrimination can be inferred.  The Complainant’ s complaints about the screening supervisor were investigated and not upheld. This complaint was referred to the WRC under the Industrial Relations Act and a Recommendation was issued and it was not appealed.

In relation to the promotional posts, the Respondent denied that the Complainant was discriminated against on the race ground. The Complainant, who is black, was not successful at the interview together with 5 white employees.

The Respondent denies that the Complainant was victimised and stated that in late 2017 the Complainant sought to work on a site near his home but there were no vacancies at the time. A vacancy arose in Leopardstown in January 2018 and he was offered the chance to move there which was nearer his home. The Complainant continued to retain his rate of pay despite the fact the employees on this site were on a lower hourly rate.

The Respondent submitted that the complaints were referred outside the statutory time limits in the Act.

The first matter I must decide is whether the complaint was referred within the statutory time limit set out in the Act.

Section 77(5) of the Employment Equality Act, 1998 provides:

“(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.”

The complaint of discrimination and victimisation was referred to the Director of the WRC on the 26th of May 2019 stating that the most recent date of discrimination was the 24th of May 2019.  The Complainant’s representative submitted that there was continuing discrimination and all the issues came within the time limits.  The Complainant accepted that nothing in particular happened on the 24th of May 2019. His representative submitted that he was discriminated against every day he goes into work. He submitted that he took a case to the WRC under the Industrial Relations Act, 1969 concerning bullying and a recommendation issued on the 16th March 2019 and the recommendation contained a certain course of action to be undertaken by the Respondent and furthermore that he could come back to the WRC if a satisfactory outcome could not be reached between the parties. He further submitted that a satisfactory outcome was not reached.  The above IR case was not taken under the Employment Equality Act 1998. It related to bullying and no further acts of alleged discriminatory treatment was claimed by the Complainant because of this case and cannot therefore be considered as a new date of alleged discriminatory treatment.

I am satisfied that no incident of alleged discrimination took place on the 24th of May 2019. I am also satisfied that all of the incidents of alleged discrimination referred to by the Complainant in his evidence took place in 2017 and 2018. The alleged victimisation incident concerning the transfer took place in March 2018 and is also outside the statutory time limits.

I find that this complaint was referred outside the statutory time frame set out in S. 77(a) and (b) for referring a complaint to the Director. All the incident of the alleged discriminatory treatment took place over 12 months before the case was referred to the WRC. In the circumstances I have no jurisdiction in the matter.  

I find that this complaint was referred outside the statutory time frame pursuant to S. 77(a) and (b) of the Employment Equality Act, 1998   for referring a complaint to the Director. Therefore, I have no jurisdiction in the matter.  

Employment Equality Act, 1998, Statutory time limit, discrimination, race victimisation.