ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00036193
Parties:
| Complainant | Respondent |
Parties | Fabiano Barros da Cruz | Roseview Lodgings Ltd. |
Representatives | Lórian Leal | Aaron Shearer BL |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00045861-001 | 27/08/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00045861-002 | 27/08/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00045861-006 | 27/08/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00045861-007 | 27/08/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00045861-008 | 27/08/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00045861-009 | 27/08/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00045861-010 | 27/08/2021 |
Date of Adjudication Hearing: 26/10/2022
Workplace Relations Commission Adjudication Officer: Seamus Clinton
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2021,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard and to present any evidence relevant to the complaints.
The hearing was conducted online in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020. The complainant was represented by Ms Leal and the respondent was represented by Mr Shearer instructed by Mc Kenna, McArdle Solicitors. The complainant gave evidence under affirmation through the translator, and Mr Burke, General Manager, gave evidence on behalf of the respondent, under affirmation.
It was clarified at the outset of the hearing that complaints 001 & 002 under Payment of Wages Act were withdrawn along with the Unfair Dismissal Act complaint 003. The complaints 008, 009, & 010 were also withdrawn.
The two complaints to be inquired into (006 & 007) were both under the Employment Equality Act, 1998. Discrimination on race ground on matters related to the termination of employment (006) and discrimination on race ground in breach of entitlement to equal pay (007). On the equal pay complaint, I sought further information from the respondent after the hearing on the breakdown of hourly pay rates between Irish and foreign workers which was duly provided.
Background:
The complainant was employed as a Security Worker by the respondent. His employment commenced on 16th December 2020 and was terminated during the probationary period on 29th March 2021. The events which led to the termination of his employment surrounded an incident towards the end of his shift on the morning of 14th March 2021. On this date, there was a theft of tools from an adjacent building where works were being carried out. Management viewed CCTV footage around the suspected time of the theft and placed the complainant leaving his post for a short period to enter an adjacent building. At a meeting on 23rd March 2021, management sought reasons as to why he left his post for this short period. The explanation provided by the complainant was that he had an interest in building renovations and this was his hobby when previously living in Brazil. Management did not accept the explanation as credible and after considering the matter over a few days, then sent a text message terminating the employment. It was clarified by management during the hearing that the complainant was not implicated in the theft and that a garda investigation was ongoing. Management stated the reason for the dismissal related solely to the explanation given for leaving his post which in their eyes was not credible. |
Summary of Complainant’s Case:
The complainant’s representative gave an outline of the complaint. The complainant through the interpreter gave evidence on the specific complaints. Evidence was given on the equality complaints of unequal pay and on the manner of the termination of his employment. The complainant’s representative gave evidence that he was paid €13 per hour and other Irish security guards were paid €20- €22 per hour. It was claimed that this was discriminatory treatment. The complainant gave evidence that he was aware of the difference in pay as this was discussed among workers in the employment. The complainant’s representative outlined that he was not afforded due process or a formal investigation prior to the termination of his employment. The complainant gave evidence that after the initial meeting with management on 23rd March 2021, he requested a translator in any further meetings with management. At the meeting on 23rd March, he stated that he was willing to attend the garda station and make his bank statements available. He asserted that he was not afforded due process on his rights prior to termination. He claimed that Irish workers would not have been treated in this manner if they were in the same situation as they would have been more aware of their rights in this situation. He outlined that the adjacent building works were easily accessible from his current posting and that the area was used by service users as a smoking area. He stated that others also accessed the adjacent building without any issue or reprimand from management. After giving evidence, the complainant was then cross examined on his reasons for accessing the adjacent building, the length of his absence, his interest in renovation buildings, and the extent of the CCTV footage he was shown by management. He was questioned on whether he understood what was taking place at the meeting with management. He was also questioned on the arrangements for the change of shift. He was asked for any available evidence on alleged differentials in the hourly rate with Irish workers and any particulars to prove same. |
Summary of Respondent’s Case:
Mr Burke, General Manager, gave evidence that security staff were paid between €13 and €15 per hour based on length of service. He stated that there was no discrimination on pay related to race or nationality. He outlined that there is a service level agreement with the local authority and that employment matters are strictly regularised. He gave evidence of the sequence of events after the theft had been discovered in an adjacent building. His evidence differed from the complainants in that he maintained that CCTV footage was shown to the complainant and not just still shots of same. There was conflicting evidence on the length of time the complainant was in the adjacent building. He gave evidence that the reason for dismissal was the unsatisfactory explanation for entering the adjacent building and that this was not credible in management’s eyes. He stated that it was not a summary dismissal, and the complainant was given notice and his full entitlements. Under cross examination, Mr Burke was questioned on his reasons for meeting the complainant when matters had already been referred to the gardai and the complainant was not implicated in the theft. Mr Burke gave evidence that other staff on duty at the time of the incident were also questioned initially before the garda involvement. Mr Burke clarified to the adjudicator that during his time as manager there were no other disciplinary investigations concerning Irish or foreign workers. |
Findings and Conclusions:
Discrimination on Termination (CA-00045861-006) Section 6 of the Employment Equality Act 1998 sets out the discriminatory grounds and that no person can be treated less favourably in a comparable situation. In this case, the complainant alleges discriminatory treatment on the ground of his race and nationality. Section 85(A) of the Act provides ‘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.’ In Southern Health Board v Mitchell [2001] ELR 201 the extent of the evidential burden was considered as; ‘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.’ There is a minimal amount evidence from the complainant to establish a presumption of discrimination to be rebutted by the employer in this case. Although, there was a lack of due process afforded to the complainant prior to termination, there is insufficient evidence to ground a claim as to whether an Irish worker would not have been treated in a similar manner. The respondent outlined the reason for termination directly related to ‘the explanation provided for leaving his workstation’. As there was no available evidence of how management dealt with any previous disciplinary issues, I do not see that a case of discriminatory treatment has been made out. While the complainant can claim to have been unfairly treated due to an absence of due process, this is not sufficient to prove discriminatory treatment in an equality case. As this issue arose during the probationary period, there is insufficient evidence to find that an Irish worker would have been kept in employment in similar circumstances. I find that the complainant was not discriminated on race grounds on the termination of his employment. Equal Remuneration (CA-00045861-007) The Act provides that a comparator is required as per section 28 and (g) below; 28.—(1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows: (g) in relation to the ground of race, C and D differ as to race, colour, nationality or ethnic or national origins or any combination of those factors; (2) In the following provisions of this Part, any reference to C and D which does not apply to a specific discriminatory ground shall be treated as a reference to C and D in the context of each of the discriminatory grounds (other than the gender ground) considered separately. (3) Any reference in this Act to persons having the same relevant characteristic as C (or as D) shall be construed by reference to the discriminatory ground in relation to which the reference applies or, as the case may be, in relation to each of the discriminatory grounds (other than the gender ground) separately, so that— and so on for each of the other discriminatory grounds. Section 29 of the Employment Equality Act provides; 29.— (1) It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer. (2) For the purposes of subsection (1), in relation to a particular time, a relevant time is any time (on or after the commencement of this section) which falls during the 3 years which precede, or the 3 years which follow, the particular time. (3) For the purposes of this Part, where D’s employer is an associated employer of C’s employer, C and D shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment. F54[(4) Section 19(4) applies in relation to C and D as it applies in relation to A and B, with the modification that the reference in it to persons of a particular gender (being As or Bs) is a reference to persons (being Cs or Ds) who differ in a respect mentioned in any paragraph of section 28(1) and with any other necessary modifications.] (5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees. At the hearing the complainant gave evidence that the respondent paid a higher hourly rate to Irish workers than the complainant as a foreign worker. The evidence was that there was talk within the employment of a higher hourly rate paid to Irish workers. On the complaint form, he made specific reference to three Irish workers as comparators. The respondent gave evidence that the rates were between €13 and €15 per hour based on length of service. The respondent subsequently provided evidence of the hourly rates being paid to all staff. Two Irish workers were remunerated at €14 per hour and one Irish worker was on €15 per hour. The complainant, a Brazilian national was earning €13 per hour. Although the respondent gave evidence that the different rates are based on length of service, this is not specifically set out in the contract of employment or in any pay policy document. His contract states his hourly rate is €13 per hour with no reference of it increasing on length of service. Therefore, the complainant has made out a case of discrimination which has not been rebutted by the respondent. For the reasons outlined, I find the complainant has been discriminated against on race/nationality grounds and there has been a breach of his entitlement to equal remuneration. I find his complaint on equal pay to be well founded. As redress, for a contravention of an obligation to equal pay, I order compensation in the form of arrears of remuneration. As the complainant worked up to 48hrs per week for the duration of his employment, I order a payment of €1,440. |
Decision:
All the complaints were withdrawn except for CA-00045861-006 & CA-00045861-007.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under section 82 of the Act.
CA-00045861-006 – I find the complainant was not discriminated against when his employment was terminated. I find that this complaint is not well founded. CA-00045861-007- I find the complainant was discriminated against on his entitlement to equal pay. I find this complaint well founded. As redress, for a contravention of an obligation to equal pay, I order compensation in the form of arrears of remuneration. As the complainant worked up to 48hrs per week for the duration of his employment, I order a payment of €1,440. |
Dated: 03rd January 2023
Workplace Relations Commission Adjudication Officer: Seamus Clinton
Key Words:
Discrimination, Equal Pay, Termination of Employment |