Complainant

Respondent

Parties

Izu  Egbuchulam

Provincial Security Services Limited

Representatives

  N/A

Peter Gilfedder, Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00053780-001

18/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00053780-002

18/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00053780-003

18/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00053780-004

18/11/2022

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

CA-00053780-005

18/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00053780-006

18/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00053780-007

18/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00053780-008

18/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00053780-009

18/11/2022

In late March 2019, the Complainant commenced employment as a Security Officer for the Respondent, following a transfer of undertaking process. The Respondent provides security and support services. The Complainant worked approximately 45.5 hours per week, earning €13.29 gross per hour and an average of €604.69 gross per week. On 24 June 2022, the Complainant resigned. On 8 July 2022, the Complainant’s employment ended. On 11 July 2022, the Complainant started his new employment.

On 18 November 2022, the Complainant submitted his Complaint Form to the Workplace Relations Commission (the “WRC”). The Complainant now has five complaints for adjudication:

·     CA-00053780-001 – Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act 1977, as amended;

·     CA-00053780-004 – Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994, as amended;

·     CA-00053780-005 – Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act 1998, as amended;

·     CA-00053780-006 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997, as amended; and

·     CA-00053780-009 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997, as amended.

In summary, the Complainant asserts, inter alia, that he was constructively dismissed; that he was not notified of changes to the terms of his employment; that he was discriminated against on the ground of race and victimised by the Respondent; that he was penalised or threatened with penalisation for invoking his rights or giving notice of his intention to do so under the Organisation of Working Time Act 1977, as amended; and that he was not notified of the start and finishing times of his shifts in advance as required. The Respondent denies the complaints in their entirety. The Respondent also makes a number of preliminary arguments.  

The Complainant provided detailed written and oral submissions.

CA-00053780-001 – Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act 1977, as amended:

The Complainant submitted that he has worked as a Data Centre Security Officer for the Respondent since late March 2019. The Complainant outlined that he has covered several shifts and trained many security officers for the Respondent.

The Complainant submitted that on 17 May 2022, he received a call from his Manager, who “was angry” that he did not show up for work. The Complainant submitted that he had a doctor’s appointment arranged that day and that he had not agreed to work that day. The Complainant outlined that on 22 May 2022, his Manager asked to have a “formal meeting” with him. The Complainant submitted that this meeting amounted to “harassment”. The meeting focussed on the Complainant’s absence on 17 May 2022 and on his access to “TimeGate” (a work roster and scheduling app). The Complainant gave his permission for the meeting to be recorded however, he took issue with the minutes which his Manager sent to him later that afternoon. The Complainant submitted initially that all of the minutes were falsified but then stated that only part of the minutes were falsified. The Complainant also stated that he felt pressured into signing off on the minutes and only agreed to them “under duress”. The Complainant outlined that on 23 May 2022, he called HR as per his Manager’s instructions. The Complainant submitted that HR did not have any knowledge of his meeting on 22 May 2022 and asked him to clarify what it was about. He clarified this with his Manager who said that it concerned his access to “TimeGate”.

The Complainant outlined that he took sick leave on 23 May 2022 as he was “so stressed and afraid of going back to work”. On 27 May 2022, the Complainant emailed HR about the meeting on 22 May 2022. In his email he stated, inter alia, “I would like to know for definite what the meeting was about”. The Complainant submitted that HR replied on 30 May 2022 but failed to address his concerns. The Complainant believed that this was “intentional”.

The Complainant submitted that on 17 June 2022, he emailed HR and the Chief Operating Officer regarding his grievance. He submitted that HR replied that day, stating that they were “pausing the investigation as they were going on holiday.”  On 24 June 2022, the Complainant resigned because of the “company’s lack of duty of care and their actions towards [his] grievance and [his] wellbeing.” The Complainant also stated that he received “many conflicting statements from management”. The Complainant submitted that these conflicting statements concerned the status and/or stage of the investigation into his grievance.

The Complainant submitted that his last day was 8 July 2022. The Complainant submitted that on 29 August 2022, he received the Respondent’s Investigation Report into his grievance.

The Complainant submitted that his mental health suffered as a result of this alleged constructive dismissal. He submitted that he suffered stress and depression. He submitted that he had MRI and CT scans and “was placed on sleeping tablets”. The Complainant further submitted that the dismissal has impacted his career as he was unable to get a similar job without a good reference and that he lost job security as a result.

The Complainant relied on a number of cases in his submissions, including Western Excavating (ECC) Limited v. Sharp [1978] IRLR 27.

CA-00053780-004 – Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994, as amended:

The Complainant submitted that he was meant to work night shifts only. The Complainant submitted that rostering him to work day shifts was in breach of the terms of his employment. The Complainant submitted that he was not notified verbally or in writing of these changes.

CA-00053780-005 – Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act 1998, as amended:

In his Complaint Form, the Complainant submitted that he was discriminated against by reason of his race. He further submitted that the Respondent treated him unlawfully by discriminating against him in his conditions of employment and in “other”.  The Complainant further submitted that he was victimised.

The Complainant submitted that he is “one of the senior officers in the company who is black/African” and he does not get any incentive or extra pay for covering a shift on his day off. He submitted that his transport expenses are not covered when he travels to locations far from where he lives. He submitted that there are other officers who can cover shifts more conveniently, but they are not rostered to do so. The Complainant also submitted that “Management was giving One4all vouchers to certain officers for covering shifts. The officers were Caucasian.” The Complainant submitted that he never received any vouchers for covering shifts. The Complainant also submitted that some newer employees had a higher salary than him.  

The Complainant submitted that the Respondent initiated disciplinary action against him “within a couple of days” of him not attending work. He submitted that HR failed to provide him with a response to his concerns or grievance. He also submitted that the Respondent did not offer him mental health support. The Complainant submitted that he and his concerns were treated differently on account of his race. He submitted that the meeting on 22 May 2022 was racially motivated. He concluded that he was “victimised by Management and treated differently and unfairly because of [his] race”.

CA-00053780-006 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997, as amended:

The Complainant outlined that he was not notified of the start and finish times of his shifts at least 24 hours before his first day of work. The Complainant submitted that on 17 May 2022, he was informed of his start time, over two hours after his shift began. He also submitted that he was not notified of the change of shift from nighttime to daytime. The Complainant submitted that he was penalised or threatened with penalisation for invoking his rights or giving notice of his intention to do so under the Organisation of Working Time Act 1977, as amended.

CA-00053780-009 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997, as amended:

The Complainant outlined that he was not notified of the start and finishing times of his shifts at least 24 hours before his first day of work. The Complainant submitted that on 17 May 2022, he was informed of his start time, over two hours after his shift began.

Cross-Examination:

Under cross-examination, the Complainant denied that he only first raised his formal grievance in his email dated 17 June 2022, in which he stated, inter alia, “I am formally requesting that this incident is investigated”. The Complainant stated that he first raised his grievance in an email dated 27 May 2023 in which he stated, inter alia, “I am writing to request for [sic] some information in my file”.

Under cross-examination, the Complainant stated that he was “constantly applying for jobs” and that he had applied for jobs prior to the 17 May 2022 incident. The Complainant confirmed that he started his new role on 11 July 2022 – three days after his employment with the Respondent ended.

The Respondent provided detailed written and oral submissions.

CA-00053780-001 – Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act 1977, as amended:

The Respondent submitted that it acted reasonably and fairly at all times. The Respondent outlined that the purpose of the meeting on 22 May 2022 between the Complainant and his Manager was to understand why he did not attend work and to establish whether he had access to “Timegate”. The outcome of the meeting was that the Complainant was asked to contact the office and ensure that he had access to “Timegate”. The Respondent submitted that this was not a disciplinary meeting. The Respondent outlined that it was a “counselling” meeting which is stage one of the Respondent’s Disciplinary Policy. The Respondent submitted that the Complainant misunderstood the nature of the “counselling” meeting.

The Respondent outlined that HR acted immediately once it received the Complainant’s formal grievance on 17 June 2022. The HR Director called the Complainant that same day. The Respondent outlined that the Complainant resigned on 24 June 2022. The Respondent submitted that the Complainant did not provide the Respondent with sufficient time to address his grievance. The Respondent outlined that both the Chief Operating Officer and the HR Manager asked the Complainant to reconsider his resignation but he refused.

In support of its submissions, the Respondent relied on, inter alia,Western Excavating ECC Limited v. Sharp, [1978] ICR 221; Conway v. Ulster Bank Ltd., UD 474/1981; and Travers v. MBNA Ireland Limited, UD720/2006.

CA-00053780-004 – Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994, as amended:

The Respondent submitted that it requires its employees to be flexible in line with the operational needs of the business. To this end, the Respondent referred to the Employee Handbook. The Respondent submitted that the requirement to work the day shift from 17 to 22 May 2022 was not a breach of the Terms of Employment (Information) Act 1994, as amended.

CA-00053780-005 – Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act 1998, as amended:

By way of preliminary argument, the Respondent submitted that the Complainant brought complaints under the Unfair Dismissal Act 1977, as amended and under the Employment Equality Act 1998, as amended (the “EEA”). The Respondent submitted that the Complainant’s complaint under the EEA should therefore not proceed.

The Respondent also argued that the complaint was statute-barred. The Respondent noted that the Complainant’s Complaint Form outlined that the most recent date of alleged discrimination was 17 May 2022. The Respondent submitted that as the Complainant filed his Complaint Form with the WRC on 18 November 2022, his complaint is out of time.

The Respondent further submitted that the Complainant had failed to demonstrate a prima facie case of discrimination. The Respondent submitted that section 85 (a) of the EEA requires a Complainant to present facts from which it can be inferred that he was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. The Respondent relied on, inter alia, Southern Health Board v Teresa Mitchell [2001] ELR 201 and Melbury Developments v. Arturs Valpeters [2010]21 ELR 64.

The Respondent denied the Complainant’s discrimination and victimisation complaints in their entirety. The Respondent submitted that it does not hold meetings with staff members based on their race, nor does it give vouchers to employees based on their race. The Respondent submitted that it has a multinational workforce and that it has been recognised for its efforts to foster greater diversity in the workplace.

CA-00053780-006 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997, as amended:

The Respondent submitted that this complaint is statute-barred. The Respondent submitted that the Complainant submitted his WRC Complaint Form on 18 November 2022 and as this complaint relates to an incident which occurred on 17 May 2022, it is out of time.

The Respondent further submitted that for penalisation to take place, the Complainant must have carried out an act described under section 26(1) of the Organisation of Working Time Act 1997, as amended (the “OWTA”), before penalisation as described in section 26(5) can be deemed to occur. The Respondent submitted that the Complainant does not explain how he carried out an act described under section 26(1) of the OWTA. The Respondent further submitted that the Complainant provides no evidence to show that he requested his roster in advance of 17 May 2022. The Respondent submitted that the meeting held on 22 May 2022 was not an act of penalisation. The Respondent submitted that this meeting was classed as a stage one “counselling” meeting under the Respondent’s Disciplinary Policy and the outcome of the meeting was for the Complainant to ensure that he had access to “Timegate.”

Finally, the Respondent submitted that this complaint overlaps with the Complainant’s above complaint under the Unfair Dismissal Act 1977, as amended.  

CA-00053780-009 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997, as amended:

The Respondent submitted that this complaint is statute-barred. The Respondent submitted that the Complainant submitted his WRC Complaint Form on 18 November 2022 and as the Complainant argues that he should have received his roster on 16 May 2022, his complaint is out of time.

Oral Evidence:

Mr. Stephen McCarton, Security Team Supervisor:

Mr. McCarton outlined that he was the Site Supervisor in Blanchardstown, in May 2022. He supervised the team at the time. He built rosters around peoples’ flexibility. He outlined that he had a good relationship with the Complainant.

Mr. McCarton outlined that the Complainant was rostered for work on 17 May 2022. When he did not turn up to work, Mr. McCarton called the Complainant but there was no answer. When he did hear from the Complainant later that day, the Complainant stated that he did not know that he was rostered to work that day. Mr McCarton said that he was certain that he had asked the Complainant to work on 17 May 2022, the week beforehand.

Mr. McCarton outlined that employees are on notice of their roster in five ways: (i.) through “Timegate”; (ii.) by email from the account manager; (iii.) the roster being available on the PC; (iv.) the roster being appended to the back of the cupboard door; and (v.) verbally.

Under cross-examination, Mr. McCarton confirmed that the Complainant had not previously failed to attend work.

Mr. Stephen MacDermott, Chief Operating Officer:

Mr. McDermott outlined that he is the Chief Operating Officer for the Respondent. He oversees all of the sites and operations for all clients. He outlined that the Complainant was transferred by TUPE to the Respondent and that he had discussions with him at the time. He further outlined that there were no issues between them and that relations between them were quite good.

Mr. McDermott outlined that the Complainant’s resignation came as a surprise to him. He recognised that the Complainant was a valuable employee – he was dependable and had a good working knowledge. Mr McDermott outlined that he reached out to the Complainant on 27 June 2022 and asked if he would reconsider his resignation and provide the Respondent with the opportunity to address his concerns. However, on 30 June 2022, the Complainant responded to say that he would not reconsider his resignation. Mr. McDermott outlined that the Complainant resigned one week after raising his grievance. He outlined that this was not a reasonable timeframe.

Ms. Davina Lavin, HR Manager:

Ms. Lavin outlined that she is the HR Manager for the Respondent. She outlined that she knew the Complainant as a good and professional member of the “Digital Realty Team”. She outlined that there were no issues with him.

Ms. Lavin outlined that when the Complainant did not come into work on 17 May 2022, she asked his Manager to have a chat with him, to check on his welfare and to ensure that it did not happen again. The Manager emailed her the minutes of the meeting which took place over the weekend when the Complainant was at work.

Ms. Lavin outlined that under the Respondent’s Disciplinary Policy, there are a number of steps. She outlined that the first step is a “counselling” meeting. She believed that this is what the meeting on 22 May 2022 entailed. She outlined that from the content of the meeting minutes, it seemed as if it was an informal conversation. She outlined that the following Monday, 23 May 2022, she received a call from the Complainant who told her that his Manager had told him to call her. Ms Lavin outlined that she believed that there was some confusion. Her understanding was that the Complainant needed to speak to Payroll Operations about access to “Timegate”.

Ms. Lavin refuted that the “counselling” meeting took place due to the Complainant’s race. She stressed that the same policy is applied to every member of the team. She outlined that there was concern when the Complainant did not attend work. She outlined that the meeting had nothing to do with his race.

Ms. Lavin outlined that some flexibility is required from employees and that this is provided for in their contracts. She explained that sometimes people are called into work suddenly. She outlined that some employees have more flexibility than others.

Ms. Lavin outlined that vouchers are awarded for “Teammate of the Month”. This is done in recognition of an employee’s team support, for example if they take on extra shifts. She said that taxi fares are reimbursed if a person is covering a shift and cannot reach the site on time by way of public transport. She outlined that this is not done frequently. She said that such reimbursements are nothing to do with a person’s race.

Under cross-examination, Ms Lavin accepted that the word “formal” was used in the minutes of the meeting, but she stated that this was not her language of choice and she stated again that it was not a formal meeting. Ms Lavin also stated that she did not believe that the Complainant’s email dated 27 May 2022 was a complaint, but rather a request for information, to which she responded.

Ms. Anthea Lalor, HR Director:

Ms. Lalor outlined that she is the HR Director for the Respondent. She outlined that she oversees employee matters from recruitment onwards. She outlined that her first interaction with the Complainant was when she received his email dated 17 June 2022, outlining his grievance.

Ms. Lalor outlined that when she received the Complainant’s email dated 17 June 2022, she called him later that day. She wanted to get a feel for the matter and to establish if it was operationally critical. She outlined that, unusually, both she and Ms. Lavin were on annual leave at the same time. She stated that she had a cordial conversation with the Complainant. She asked the Complainant if it would be ok to postpone the investigation of his grievance for two weeks until she returned from annual leave. She outlined that he was agreeable to this and that they exchanged emails later that day to confirm. She believed that the Complainant knew that they were taking his grievance seriously. She stated that when she returned from annual leave, she was “extremely” surprised to find that he had emailed his resignation on 24 June 2022. She outlined that she emailed the Complainant on 11 July 2022, asking him to reconsider his resignation. However, the Complainant refused and in his email dated 12 July 2022, he indicated that he would cooperate with the investigation into his grievance.

Ms. Lalor outlined that usually when a grievance is raised, she sits with the employee and gathers the full story around the grievance. She also seeks a good solution. She outlined that the Respondent’s Grievance Policy is shared with the employee and it is worked through. She outlined that an investigation usually takes a couple of weeks and involves an initial meeting, follow up meeting(s), and 3rd party meeting(s) – depending on the facts of each case. She outlined that a grievance cannot be properly dealt with in one week.

Ms. Lalor outlined that the Complainant sent her numerous emails, with screenshots and documentation attached. She put it all together. She spoke with Mr. Stephen McCarton and Ms. Lavin. She tried to understand what had happened. She completed an Investigation Report on 11 August 2022. She explained that as both the Complainant and his Manager no longer worked for the Respondent, it was difficult to collate all perspectives, but she used the information that she had. She noted in the Investigation Report that the issue seemed to surround access to “Timegate”. She also noted in the Investigation Report that there seemed to have been a miscommunication about the type/seriousness of the meeting which took place on 22 May 2022.

CA-00053780-001 – Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act 1977, as amended:

The Law:

Legislation:

Unfair Dismissals Act 1977-2015, as amended (the “UD Act”):

The definition of constructive dismissal under section 1 of the UD Act is:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving  prior notice of the termination to the employer”.

Caselaw:

There are two tests in relation to proving that a Constructive Dismissal has occurred. These are the “Contract Test” and the “Reasonableness Test.” Both relate to the behaviour of the employer.

In Western Excavations Ltd v. Colin John Sharp [1978] 1 All E.R. 713 the “Contract Test” is summarised as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”

Addressing the “Reasonableness Test” the same decision assesses the conduct of the employer as follows:

“whether the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

The Supreme Court in Adam Berber v. Dunnes Stores Ltd. [2009] IESC 10 held that in cases of alleged constructive dismissal, there should also be an examination of whether the implied term of mutual trust and confidence has been repudiated:

“There is implied in a contract of employment a mutual obligation that the employer and employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. […] In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended.”

The requirement to exhaust internal procedures is an essential element of succeeding in a claim of constructive dismissal. This is set out in the case of Conway v Ulster Bank Ltd., UD 474/1981, where the EAT said that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Findings and Conclusion:

On 22 May 2022, the Complainant attended a “counselling” meeting, after he failed to attend work on 17 May 2022. The “counselling” meeting is stage one of the Respondent’s Disciplinary Procedure. At the conclusion of the meeting, the Complainant was tasked with ensuring that he had access to “Timegate”. On 27 May 2022, the Complainant sought further information from HR about the meeting and on 17 June 2022, he filed a formal grievance. When he spoke with the HR Director on 17 June 2022, the Complainant clearly consented to the investigation into his complaint being paused for approximately two weeks. Despite this, he resigned on 24 June 2022 and his employment came to an end on 8 July 2022. Despite requests by the Chief Operating Officer and the HR Director, the Complainant refused to reconsider his resignation. The Complainant started in his new role on 11 July 2022.

Having regard to the two tests identified above, I find that the Complainant has failed to establish that: the Respondent’s conduct was so unreasonable; or was such that he had no option but to resign; or was such as to show that the Respondent no longer intended to be bound by one or more of the essential terms of the contract. The Complainant has shown no evidence of harassment, intimidation and coercion in support of his allegations of the same. I note also that despite the Complainant’s submission that his career was affected by the alleged constructive dismissal, he started in a new role just three days after his employment with the Respondent ended. Finally, the Complainant resigned one week after initiating the grievance procedure, thereby failing to utilise the grievance procedure, as per Conway v. Ulster Bank Ltd., UD 474/1981. In the circumstances, I find that the Complainant left his employment of his own volition and was not constructively dismissed within the meaning of section 1 of the UD Act. Accordingly, I find that the complaint is not well founded.

CA-00053780-004 – Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994, as amended:

The Law:

Section 5 of the Terms of Employment (Information) Act 1994, as amended, requires that when a term of employment changes an employee should be notified in writing of the change:

“(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

a) the day on which the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes orinstruments made under statute other than a registered employment agreement or employment regulation order, or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.”

Findings and Conclusion:

It was clear from the Respondent’s evidence, that employees were required to show flexibility regarding their shift times. The Complainant also gave evidence that he showed flexibility regarding his shift times. I note that the Respondent Employee’s Handbook provides:

·     “Employees are required to be flexible to meet the operational needs of the company”;

·     “You may be required to work day and or nights or such shift rotation as may be designed from time to time”; and

·     “Your normal working hours may be subject to alteration in accordance with the Organisation of Working Time Act 1997”.

In the circumstances, I find that there was no change to the Complainant’s terms of employment and therefore this complaint is not well founded.

CA-00053780-005 – Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act 1998, as amended:

The Law:

Discrimination:

Section 85A of the Employment Equality Act 1998-2015, as amended (the “EEA”), provides:

“(1) 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”.

Therefore, the burden of proof is on the Complainant to show that was treated less favourably on account of his race. 

In Southern Health Board v Mitchell (2001) E.L.R. 201, the Labour Court held:

“The first requirement … is that the claimant must “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a claimant 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 is no infringement of the principle of equal treatment”.

In Melbury Developments Ltd. v. Valpeters [2010] 21 ELR 64, the Labour Court found that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Victimisation:

Section 74 of the EEA 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 Tom Barrett v. Department of Defence, DEC-E2015-017, the Equality Tribunal set out the following requisite three components of a victimisation complaint under Section 74(2) of the EEA:

(i)                  the complainant must have taken action of a type referred to at paragraphs (a)-(g) of Section 74(2) – what it terms a “protected act”;

(ii)                the complainant must be subjected to adverse treatment by his/her employer; and

(iii)              the adverse treatment must be in reaction to the protected act having been taken by the complainant.

Findings and Conclusion:

The Respondent argues that this complaint is out of time as the Complainant noted in his Complaint Form that the most recent date of discrimination was 17 May 2022. However, it was apparent from the Complaint Form narrative that the Complainant takes issue with the “counselling” meeting which took place on 22 May 2022, and the handling of his concerns following that meeting. Therefore as the Complaint Form was submitted on 18 November 2022, it was brought within the six-month time limit. Moreover, I note that the Complainant does not allege that he was discriminatorily dismissed and that he also raises different allegations under his complaint brought pursuant to the UD Act to those under his complaint brought pursuant to the EEA. Therefore, an election between the UD Act and the EEA is not required in this instance, contrary to the Respondent’s submissions.

The Complainant alleged that he was discriminated against on the basis of his race.  This allegedly arose as he had to attend a “counselling” meeting on 22 May 2022 when he did not show up for work on 17 May 2022. The Complainant also alleged that that his concerns were treated differently because of his race. The Complainant also alleged that he was discriminated against on the basis of race in relation to the provision of vouchers and the reimbursement of taxi fares. However, it was clear from the evidence adduced that the Complainant was asked to attend the “counselling” meeting on 22 May 2022 as he had not attended work on 17 May 2022. This meeting was not racially motivated as alleged. It is also clear from the evidence that his concerns were taken seriously – HR called him on 17 June 2023, the day he submitted his grievance. Moreover, it was clear from the HR Manager’s evidence that vouchers are awarded for “Teammate of the Month” and that taxi fares are reimbursed if a person covering a shift cannot reach the site on time by way of public transport. It was clear from the evidence that such vouchers and reimbursements have nothing to do with a person’s race.

On the facts of this case, and in applying the test outlined above in Melbury Developments Ltd. v. Valpeters, I am satisfied that the Complainant has made only mere speculation or assertions unsupported by evidence. The Complainant has not established a prima face case that he was discriminated against because of his race. Therefore, I find that the Complainant was not discriminated against.

As regards the Complainant’s victimisation complaint, I find that no action was taken that constituted a “protected act” and/or that the Complainant was subjected to adverse treatment by the Respondent. Therefore, I find that the Complainant was not victimised.

I find that this complaint is not well founded.

CA-00053780-006 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997, as amended:

The Law:

An employer must not penalise or threaten to penalise employees who exercise their rights under the Organisation of Working Time Act 1997, as amended (the “OWTA”). Penalisation will be widely construed to include anything that causes detriment to the employee as a result of having asserted their rights.

Section 26 of the OWTA, provides:

“(1) An employer shall not penalise or threaten penalisation of an employee for—

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) giving evidence in any proceedings under this Act, or

(d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.”

Findings and Conclusion:

The Complainant has failed to show how he exercised his rights under section 26 of the OWTA and how he was penalised or threatened with penalisation for doing. Consequently, I find that this complaint is not well founded.

CA-00053780-009 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997, as amended:

The Law:

Section 41(6) of the Workplace Relations Act 2015 (the “WRA”) provides:

“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.”

This six-month time period can be extended, where reasonable cause is demonstrated. To this end, section 41(8) of the WRA provides:

“(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.”

Findings and Conclusion:

The Complainant filed his Complaint Form on 18 November 2022. In accordance with the six-month time limit prescribed under section 41(6) of the WRA, I can consider a complaint from 19 May 2022. This complaint concerns the alleged non-provision of a roster on 16 May 2022. The Complainant has not demonstrated “reasonable cause” for a failure to present his complaint within six months. As such, it is outside the cognisible period and I cannot entertain it.

CA-00053780-001 – Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act 1977, as amended:

For the reasons outlined above, I find that this complaint is not well founded.

CA-00053780-002 – Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act 1977, as amended:

This complaint was withdrawn on 16 August 2023 as it is a duplicate complaint.

CA-00053780-003 – Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act 2014, as amended:

This complaint was withdrawn on 31 October 2023.

CA-00053780-004 – Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994, as amended:

For the reasons outlined above, I find that this complaint is not well founded.

CA-00053780-005 – Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act 1998, as amended:

For the reasons outlined above, I find that the Complainant has not established a prima facie case of discrimination on the ground of race. Therefore, I find that the Complainant was not discriminated against. I also find that the Complainant was not victimised. I find that this complaint is not well founded.

CA-00053780-006 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997, as amended:

For the reasons outlined above, I find that this complaint is not well founded.

CA-00053780-007 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997, as amended:

This complaint was withdrawn on 31 October 2023.

CA-00053780-008 – Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act 1946, as amended:

This complaint was withdrawn on 31 October 2023.

CA-00053780-009 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997, as amended:

For the reasons outlined above, this complaint is out of time and I cannot entertain it.

Unfair Dismissals Act 1977, Constructive dismissal, Terms of Employment (Information) Act 1994, Employment Equality Act 1998, Discrimination, Organisation of Working Time Act 1997.