Complainant

Respondent

Parties

Juris  Akmentins

Compass Group Ireland

Representatives

Aleksandra Tiilikainen IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00038381-001

25/06/2020

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

CA-00038381-002

25/06/2020

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and four witnesses for the respondent gave their evidence under affirmation.

The respondent is a large food and support services organisation who manage and deliver onsite catering and cleaning services for their clients.  The complainant was employed as a cleaner from September 2006 and became an employee of the respondent by way of TUPE in December 2014.

CA-0003831-001

The complainant submitted that his employer took over his contract from his former employer by way of Transfer of Undertakings.  He submitted that his employer are now forcing him to work different hours to that which he worked with his former employer.

CA-00038381-002

The complainant submitted that he was harassed and victimised on the basis of his civil and family status and his nationality.  The complainant outlined that he had to work shift work and that this was not in accordance with the shift hours he worked under his previous employer.

The complainant submitted that the comment “oh, you have a family” was discriminatory.  He submitted that he was victimised for taking a grievance regarding working shift hours.

CA-0003831-001

The respondent submitted that as the Transfer of Undertakings took place more than five years before the complainant lodged his complaint, it is out of time. 

CA-00038381-002

The respondent submitted that the complainant was not treated less favourably in working shift hours as that is their business model and all of their cleaning employee work on a shift basis.

The respondent submitted that the remark “oh you have a family” was taken out of context by the complainant as it was not common knowledge in the workplace that the complainant had a family and that this was simply remarked by his manager.

The respondent also submitted that the complainant was not treated differently when he sought to take annual leave as all employees are required to apply in advance for holidays and to get the approval of their manager to take holidays.  The respondent noted that its policy also notes that employees may be required to take holidays in accordance with the needs of its service.

The respondent submitted that the complainant has not established facts from which discrimination may be inferred such as to shift the burden of proof onto the respondent.

CA-0003831-001

The respondent submitted that as the Transfer of Undertakings took place more than five years before the complainant lodged his complaint, it is out of time.  In support of this the respondent submitted that Section 10(6) of S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 gives the appropriate timeframe for consideration of claims as being limited to 6 months, or in exceptions circumstances it may be extended by a further 6 months.  Section 10(6) states that

(6)      A rights commissioner shall not entertain a complaint under this Regulation unless it is presented to the commissioner within the period of 6 months beginning on the date of the alleged contravention to which the complaint relates, or where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within that period, such further period, not exceeding 6 months from the expiration of the first-mentioned period, as the rights commissioner considers reasonable.

The timeframe is echoed in Section 41 (6) & (8) of the Workplace relations Act, 2015: 

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The complainant confirmed that the transfer took place in 2014.  Accordingly, I find that this complaint is outside the time limits laid down in the Act. 

CA-00038381-002

The complainant noted that he was required to work shift work.  He took a grievance which was dealt with in accordance with the respondent’s procedures.  In relation to providing evidence of his less favourable treatment, he was only able to give scant evidence and none where he was less favourably treated than his work colleagues, who also worked shift work.  He submitted that when he requested holidays for the following week, he was refused.  The complainant was asked about how and why he felt he was victimised and replied simply that he was victimised because ”they didn’t like me”.

The respondent suggested that this complaint where Melbury Developments v. Valpeters (2010) ELR 64, might be instructive – “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.   It was also noted that in Margetts v Graham Anthony Ltd, EDA038;

‘The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.’ Having considered the written and oral submissions, I am not satisfied that the complainant has established the existence of less favourable treatment nor has he connected any such treatment with any of the protected grounds.

The respondent submitted that it is for the complainant to establish facts from which discrimination may be inferred before the burden of proof shifts to the respondent.  The respondent suggested that in relation to this complainant such facts have not been established.

Section 85A(1) of the Employment Equality Acts, 1998, states that:

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.

Having regard to the foregoing, I am not satisfied that the complainant has established facts from which discrimination can be inferred.  In line with Section 85A(1) above, the burden of proof does not fall onto the respondent to rebut an inference of discrimination.  Accordingly, I am satisfied that the complainant was not discriminated against.

CA-0003831-001

Having considered all the written and oral evidence in relation to this complaint, my decision is that this complaint is outside the time limits laid down in the Regulation and Act and is accordingly not well founded.

CA-00038381-002

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was not discriminated against.

TUPE – time limits – out of time – Employment Equality – burden of proof – no inference of discrimination established – not well founded.