ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00032423
Parties:
| Complainant | Respondent |
Parties | Johannes Lodewikus Lee | TransEuro |
Representatives | Hannah Cahill BL instructed by Molan Solicitors | Donnacha Kiely BL instructed by Charles Daly & Co. Solicitors |
Complaints:
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-00042701-001 | 09/02/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012(withdrawn) | CA-00042701-002 | 09/02/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00042701-003 | 09/02/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00042701-004 | 09/02/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012(withdrawn) | CA-00042701-005 | 09/02/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00042701-006 | 09/02/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998(withdrawn at hearing) | CA-00042701-007 | 09/02/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00044165-002 | 06/05/2021 |
Date of Adjudication Hearing: 27 June 2022 and 2 December 2022
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 6 of the Payment of Wages act, 1991 , Section 27 of the Organisation of Working time Act, 1997 and Section 7 of the Terms of Employment (Information)Act, 1994 and Section 79 of the Employment Equality Acts, 1998 – 2015, following the referral of these complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints . I have listed the complaints which have been withdrawn and not proceeded with.
Background:
On 9 February 2021, the Complainant, in introducing himself as a Truck driver and lay litigant, submitted a number of work-related complaints before the WRC, arising from an employment which commenced on 25 February 2020 and concluded in resignation on 23 April 2021. This application had to be amended by the complainant, as particulars relating to the complaints had been omitted. The Complainant outlined that he was paid € 711 weekly. A reference to a contravention of the National Minimum Wage Act and TUPE regulations were not advanced. This employment was covered by a two-year duration General Work Permit. CA-42701-002, CA-42701-005 and CA-42701-007 were subsequently withdrawn. CA-00044165-001 was also withdrawn. On the 13 April 2021, the Respondent Representative came on notice in the case and filed a submission in defence of the claims. On 23 April 2021, the Complainant resigned his employment and returned his work permit.
On May 6, 2021, the Complainant augmented his earlier complaints in CA-00042701 by submission of a complaint of discrimination on grounds of race, harassment, and victimisation. By then, the complainant outlined that he had been constructively dismissed from his employment on 23 April 2021 arising from a reduction in salary to less than the minimum wage. On 11 August 2021, the Complainant introduced a legal representative to the case. This Representative confirmed that they were being “consulted “in the case and later confirmed that they were acting as the complainants’ representatives on 31 August 2021. On 8 June 2022, in preparation for the scheduled hearing, I wrote to the complainants’ legal representatives and sought submissions. On 24 June the Respondent representative, Ms. Curran highlighted the lack of submissions from the Complainant and flagged that the respondent side would be seeking an adjournment. On 27 June 2022, I met the parties for the first time. By then, both parties were legally represented. The Complainant by Hannah Cahill, BL, and the Respondent by Donnacha Kiely BL. The Respondent, through Mr. Kiely, raised an objection to proceeding as they contended that they were not sufficiently on notice of the particulars of the claims made. The Complainant confirmed that submissions had been prepared. The representatives contended that the complainant had delayed in getting advice. I adopted a case management approach in the face of this level of a vacuum of preparedness and conflicted views. I requested that the complainant particularise his claims against chronological order. I requested that the parties seek to nett the issues before the resumed hearing. I gave the parties a time deadline for completion and submission of outline submissions. There were some delays in receiving this requested documentation before the case resumed on December 2, 2022.
At the conclusion of the hearings in this case, I sought a record of the Government correspondence relied on by the Complainant, that of July 2020. I also sought a record of salary paid to the four comparators relied on by the complainant. Following a concerted attempt, final documents in this case were received in the last week of March 2023. There was a delay in my receiving sufficient clarity in both documents to assist me in closing my investigation. All witnesses gave evidence under oath. The Complainant had also filed three complaints with the WRC Inspectorate. |
Summary of Complainant’s Case:
The complainant comes to this case having worked as an HGV truck driver in his native South Africa. He applied for the position held with the Respondent on social media. On 14 November 2019, the complainant was offered employment for €39,000 (€750.00 per week) as a professional HGV driver. He communicated his acceptance by email. He understood the application for a work permit followed by the respondent. This work permit was granted to cover the period 19 January 2020 to January 2022 on €711.00 per week. The Statement of main terms of employment reflected work done for a named customer supermarket. From the very outset of the employment, on 26 February 2020, the complainant submitted that his pay did not reflect that recorded on the work permit. This caused him to feel discriminated against. The supermarket related work ceased after two months on 21 April 2020, and the complainant was assigned other work and denied a revised contract. Other staff were terminated. He worked a variable 5- or 7-day week. He received €600 for 5 days nett, €720 for 6 days nett, but often a basic wage of €450- €500 per week, without explanation. There was an agreed upward alignment in his allowance paid in August 2020 from €42 to €63 per week. Counsel outlined a typical daily start of 11 am -4am finish, following which, the complainant was forced to sleep in his unbranded truck, in locations, bereft of washing or dining facilities and the payment of “sleep out “monies. Counsel submitted that a named employee had received the sleep out money and that all four comparators had also received the money. It was the complainant’s case that he was treated less favourably than 4 named Irish comparators, who were permitted to go home on conclusion of these journeys. Counsel submitted that the Respondent treatment of the Complainant was not in line with the treatment afforded to the Irish nationals in the same employment. She submitted that the complainant had experienced discrimination as a continuum in not being paid his full wages, by habitual omissions in annual leave and by his having to remain in his truck 7 days a week. Counsel argued that the complainant was left to do work rejected by the comparator group. Mr A Mr B Mr C Mr D The Complainants wife arrived in Ireland in December 2020, yet despite assurances, he was not permitted to go home at the end of his working day. The employment ended on one weeks’ notice because of the negative and discriminatory treatment to which the complainant was continually subjected to. Prior to leaving, the complainants landlord informed him that the respondent had sought to have him evicted from his home. The Complainant relied on the application of St James Hospital v Eng EDA 3/2002, Nevins v Portroe Stevedores [2005] 16 ELR 282, Aukscionis and ors v AR Constructions Ireland ltd DEC E2010-227 and A Company v A Worker EEDO24 /2002 Counsel argued that that the complainant was treated less favourably than his Irish co-workers in comparable positions based on his race. His conditions of employment were “completely degrading and unsuitable “when compared to the Irish staff. The Complainant encountered problems with his shortfall in wages due to his race. He was not provided with a revised contract when the supermarket work ended. The Complainant was not provided with a grievance procedure and the complainant raised issues through the informal pathway. Counsel argued that because of the facts raised, the complainant, as a vulnerable non-national had attained the burden of proof required to meet a prima facie case and the burden moved to the respondent. The discrimination formed a continuum.
CA-00042701-001 Payment of Wages Act, 1991 This claim was clarified as not being related to a claim under the national minimum wage legislation, but rather that the complainant was owed €15,000 in unpaid wages, notice and annual leave. Counsel argued that this treatment of inconsistent payments and imposed shortfalls in pay went to the root of the latter-day complaint of discrimination on grounds of race. Counsel submitted that the differential between the wage set on the work permit and that received by the Complainant constituted a deduction in wages contrary to the Payment of Wages Act.
CA-00042701-003 Organisation of Working Time Act, 1997. Annual leave The Complainant is seeking €740.89 for accrued but not awarded annual leave. His base rate of €100 per day of annual leave fell short of €142.31 and 19 differentials arose. CA-00042701-004 Organisation of Working Time Act, 1997(excessive night hours) The complainant submitted that he worked over 10 hours during a night shift and that he commenced work at 11 am until anytime up to 2 am next day. CA-00042701-006 Terms of Employment (Information) Act, 1994(notification of change) The complainant had not been provided with a contract of employment outside of a statement of terms of employment. The Complainant submitted that he had not been notified of the change in the Supermarket contract and denied receiving a written notification of the change. Counsel sought a maximum compensation award in respect of this contravention. CA-00044165-002 Employment Equality Act 1998 (received 6 May 2021) Argued as a continuum. The Complainant submitted that he had left his employment on 23 April 2021 as his employer had reduced his salary to less than minimum wages. Pay slips exhibited. The Complainant requested that a maximum award of compensation and interest be awarded in this matter. The Complaint disputed agreeing to take a reduction in wages to 100 euros. He submitted that he had been discriminated, victimised, and harassed when the Respondent tried to evict him from his home by informing the letting agent that he no longer worked with Transeuro. Evidence of the Complainant: The Complainant outlined that he had considered what he viewed as a “good offer for me “from the Respondent. He accepted the offer of €39,000 pa by phone and email directly with the Respondent. He understood that he would be driving in work for supermarkets inclusive of night work. He acknowledged that the Respondent helped with a deposit for housing. He was disgusted to see a differential in wages, €711.54 per week cited on the work permit, short of €39,000. He recalled signing his contract on the day he arrived in Ireland on 26 February 2020. He shadowed Mr A in driving for a week, before driving alone by night. He was paid €120.00 per day, and it varied. He discussed it with his manager and was told “This is how it is “ Four weeks into the employment there was a disagreement. He understood that the owner Mr Z wanted to honour the €711 and he gave him a commitment to pay that amount but did not action the change to €142 daily from €120. The salary varied weekly. It chopped and changed, but he never received €711. The complainant contended that he had been taken advantage of by departing from the amount listed on the work permit rate. He said Mr B had a take home pay of over €1,000 per week. Once the supermarket work concluded, he reverted to day work and €100 per day, which he could not alter. This went on over May / June and July 2020 and he was delegated new work in Cork. He understood that Mr C and D had both refused this work. The topic of “sleep out money “(rate €30 per night) was raised by the complainant as he had been told he was required to sleep in the truck. He received mixed responses from his manager and owner of the business, the latter of which said “maybe “. Nothing happened in terms of sleep out money and he observed that Irish drivers were not sleeping in the truck as they went home, but he and a Latvian national were sleeping in their trucks. He spent 24/7 in that truck without access to proper facilities. The complainant exhibited photos of contingency hygiene arrangements relied on. His pay was €455, and allowance was raised to €63. The Complainant could not recall the name of a driver in receipt of €30 sleep out rate. The Complainant revealed that he had previously worked in Wexford, where wages, allowance and sleep out was paid cumulatively by his then employer. The Complainant had not raised a grievance but had a meeting with the owner at his home in August 2020, where the allowance was raised and the owner’s wife committed to “fixing “the wage, but the pay slip continued to reflect €455 per week and €63 allowance for 7 nights. The frequency in sleeping overnight in his truck reduced in October 2020 to 5 nights and his family joined him in December 2020. Mr A, B and C had more comfortable trucks than his unbranded truck, which were “nicer to live in “ He submitted that Irish Drivers had earned more than him and he felt victimised. The complainant gave two weeks’ notice of withdrawing from sleeping in the truck, he contended that he had been threatened with reduced diesel supply, but this had not occurred. He felt compelled to resign, subsisted on job seekers allowance for 7 weeks before he secured a new work permit for new work in June 2021 During cross examination, Counsel put it to the complainant that he was aware of the €120 per day payment before he left South Africa.The Complainant emphasised the differential from €711.54 on the permit. He reaffirmed that Ms M had shown him the contract when he arrived in Ireland. Counsel put to the complainant that there were 5 or 6 other employees of Romanian / Irish origin engaged on the supermarket work contract, all in receipt €120. the Complainant responded by stating that he did not know as some were on more, some less and “they did not want to discuss salary with me “He confirmed that he first learned of the change in the supermarket work when his manager phoned him. He disputed receiving the letter exhibited at page 29 of the respondent booklet. As far as he was aware, he would be starting on day work at €100 per day plus allowance. The Complainant disputed Counsels assertion that he had decided to sleep in the van to save money, he clarified that he was working on the owners’ directions. He confirmed that he had left his accommodation voluntarily during this time. He had heard a named Spanish driver describe “sleep out “money and rejected Counsels’ contention that this was the subsistence payment. He denied being furnished with a staff handbook. He stated that he had observed that Mr C had been unhappy regarding wages, then appeared happy. He said that he had a “hunch “that pay was resolved for him. He had approached his manager and told him others were paid differently but this was denied. He disputed that the upward alignment of the €42 to €63 was a gesture individualised to benefit him. Counsel told him that two of the named comparators had not received the adjustment. The Complainant replied in recalling the wage of €585 plus allowance plus sleep out paid to him previously in Wexford. He confirmed that his truck was a 141 in response to Counsels summary. Mr A 141 Mr B 141 Mr C 161 Mr D 181 Mr E 151 The Complainant responded that his truck was very dirty and the bed uncomfortable. The Respondent put to the complainant that the Complainant had been assisted by the respondent in his adjustment to Ireland. The complainant denied this. He confirmed that he was claiming €740.89 in unpaid annual leave. He confirmed that the terms of employment were not altered when night work at the supermarket ended. In re-direct the complainant confirmed there were no rosters in operation. He reaffirmed that the changes of March 28,2020 were communicated by text rather than letter format. The Complainant clarified that he left the employment as he was dissatisfied with his salary and allowances. I sought to clarify the insertion of €711 on the government work permit. Nobody presents at hearing admitted to inserting this amount. The Proprietor of the business was not present at hearing. The Complainant confirmed that he had raised the disparity with the Government Dept and agreed to forward the correspondence received in July, which he contended supported his position. He did not confirm which year. The Complainant was very clear that he had not previously placed this correspondence before this investigation or previously before the Respondent. I did receive a brief email to the Work Permit section dated 31 July 2021, post hearing accompanied by a checklist from the same Dept. In conclusion, Counsel emphasised that the complainant had been discriminated against on grounds of race. He had been underpaid. She submitted that he had not been paid in line with Irish truck drivers, who in turn were afforded better conditions. Counsel outlined that the complainant had not been properly informed of the changes in the supermarket contract and he had sustained an unfair differential in his annual leave.
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Summary of Respondent’s Case:
The Respondent operates a Logistics business which employs 11 workers. It is a family business. It was common case that the Complainant came to employment through the application for a work permit from his native South Africa. Counsel for the Respondent has disputed the claims made by the complainant and said that he was mistaken in his interpretation of the events within the employment relationship. The Respondent contended that the claim under the Industrial Relations Act (described as a claim for constructive dismissal) had gone from November 5, 2021. The first submission was prepared by the Respondents HR Advisors on April 13, 2021, the second was prepared by the Legal team and in response to the July / August Complainants submission and is summarised as: The Respondent disputed all claims and contended that the working relationship between the parties constituted a “reasonable working relationship “ It was the Respondent case that the company had successfully completed a work permit application on behalf of the complainant. The offer of employment comprised a remuneration inclusive of subsistence. Counsel contended that the complainant was fully aware of his terms and conditions through his signage of the statement of terms prior to leaving South Africa for Ireland. The Company had assisted the complainant in sourcing suitable accommodation before arrival in Ireland. The Complainant was informed of transfer distances to the truck stop. The Respondent submitted that the Complainant had been supported in his work, accommodation, and familial needs. The Complainant commenced work on 26 February 2020, initially on the respondent’s contract with a named supermarket on €800 per week for 5 days work. He was the highest paid driver in the group. On March 10, 2020, the Respondent was informed of the impending loss of the supermarket haulage tender for 2020 on 21 April 2020. The Complainant was informed of this by Mr M. The Respondent followed through with an exhibited explanatory letter dated March 30, 2020, disputed by the Complainant. “…. we will no longer be in a position to offer night shifts at the present time, but we are in a position to offer you alternative work of which we hope you will be able to accept …………. daytime container/ trailer drivers are €100 taxable income and €40 tax free subsistence …. “ The Respondent outlined that the Complainant accepted these changes and the employment continued. The Respondent submitted that they were strangers to the complainants stated unhappiness and dissatisfaction at work. There was no correspondence thread and verbal communication was live during that period. 52 weeks totalled an earning of gross €40, 293 including subsistence, nett pay €774.00 (€585.62) excluding subsistence. In April 2020, the Respondent lost a contract with a supermarket. Redundancies followed and 5 employees alongside the complainant agreed to receive a reduced fee per day of €100, while comparable work to that of the supermarket contract was sourced. The Respondent supported the complainant in his bid to relocate his family to Ireland. Permission was granted in September 2020. It was the Respondent case that the company held a reasonable expectation that the complainant would remain in the truck overnight on 4 nights per week from week 31, 2020. this was not discrimination. The 24/7 contention from the complainant arose from the complainant seeking permission from the respondent for this practice to prepare finances for the arrival of his family. The Respondent outlined detail surrounding the commencement of Monday work at Fermoy, where the complainant requested the truck be parked to facilitate access to his car. The Respondent submitted that microwave and fridge were fitted to the complainant’s truck at this request. The Respondent outlined that the complainant first gave notice to leave in June 2020, but retracted following Mr Ms intervention. The Respondent submitted that the complainants average working hours from 6 December 2020 to 4 April 2021 were 46 hrs and 6 minutes. It was the Respondent case that the company had made every reasonable effort to accommodate the complainant in his employment and denied discrimination. The Respondent denied that the burden of proof had shifted in the case as facts had not been established which gave rise toa presumption of discrimination, Valpeters v Melbury Developments ltd [2010] ELR 64 The Respondent also drew on Darguzis v Lough Corrib Engineering ltd DEC E2009 038, where the Equality Officer found that for discrimination to be established, he must demonstrate a “difference in treatment “and not simply treatment of a manner which is less than ideal. Counsel submitted that the complainant had not adduced evidence to show that he had been treated less favourably than his work colleagues on the grounds of race. Counsel added that the Respondent had supported the Complainants adjustment in Ireland and vehemently denied discrimination. CA-00042701-001 Payment of Wages Act, 1991 It was the Respondent position that the rate of pay set out in the work permit included a daily payment of subsistence (composite rate) The Respondent accepted that there was agreement of a daily night rate of €120. Counsel outlined that pay was restructured following the loss of the supermarket contract. The Respondent went on to engage with the complainant on his desire for a tax efficient salary and increased the daily subsistence to the maximum permitted at €63 from August 2020. The Complainants reference to national minimum wage contravention was without merit.
CA-00042701-003 Organisation of Working Time Act, 1997 The Respondent disputed this claim and countered that €2,319 .65 had been paid to the complainant in annual leave. The Respondent acknowledged that there had been a delay in issuing the payment, however, they contended that the complainant had disregarded email correspondence and raised the matter of payment on Christmas day.
CA-00042701-004 Organisation of Working Time Act, 1997 The Respondent has denied the claim. The Respondent exhibited correspondence which demonstrated an active management of working hours.
CA-00042701-006 Terms of Employment (Information) Act, 1994 The Respondent has denied the claim. The Respondent outlined that the statement of terms and conditions was signed by the complainant before he left south Africa. This was the sole contract and disputed that a second version existed from February 2020. He was also provided with a handbook. The Respondent disputed the complainant’s contention that a new contract should have followed the loss of the supermarket contract and relied on the mobility clause in the statement of terms in addition to the extensive communication and documentation supporting the notification of change. CA-00044165-002 Employment Equality Act 1998 (received 6 May 2021), argued as a continuum. The Respondent presented a record of salary paid (gross pay plus subsistence, plus TWSS, ( where relevant ) ) over the 14 months of the complainant’s employment. This information followed a S 76 request by the complainant and further clarification sought at hearing. This enhanced information arrived post hearing and did not attract commentary from the complainant. Mr A €48,069.41Mr B € 50,587.22 Mr C €38,038.38 Mr D €30,113.57 The Complainant € 51,417.89 None of the stated comparators presented at hearing. Evidence of Mr N, Accountant Mr N has been an external Accountant with the Respondent for 15 years. There are 11 employees now, a reduction from a previous 19. He confirmed that the complainant was offered €120 per day on the first contract plus €40 allowance which was the universal rate. He clarified that Remuneration comprised basic pay and allowance. He stated that the supermarket work paid a higher rate. Mr N confirmed that at €63 allowance rate, the complainant received the highest payment in this category. He confirmed that €455 was the take home pay in August 2020. He agreed to furnish the 4 salary records of payment to Mr A, B C and D, the comparators. He confirmed that he had never heard of “sleep out “allowance. He confirmed that there was no collective agreement governing truck drivers. He said the complainant received the maximum allowance permissible by Revenue but not maximum salary. During cross examination, Mr N confirmed that employers did not carry a discretion, drivers were paid the same. He told counsel that he had no knowledge of the background to the work permit. He referred to the road haulier’s association acts as pay determiners. He was unable to refute payment of “sleep out “allowance in the main, outside of it not being paid under hi swatch at the respondent company. Evidence of Manager, Mr M Mr M had been Operations Manager since December 2019. He oversaw Administration and Trucks at the business. He confirmed that the complainant’s contract had issued on 23 December 2019, and it was returned on 3 January 2020. He submitted that this was the sole contract and was without ambiguity, €120 per day and €40 allowance. He denied that the complainant was given to understand that €711.54 was payable as he had not been provided with a document which stated basic pay only. Mr M confirmed that the business had made 6/7 redundancies during the pandemic. He confirmed that 8 drivers on the same rate had serviced the supermarket contract and that rate did not change. The complainant was one of the 8. Mr M was fully aware that the complainant would face greater difficulty if made redundant. He confirmed that he was satisfied with his work. He notified the complainant of the change in the supermarket contract by what’s app and phone and 10 minutes later, he placed the letter in his truck in Cork. He recalled that the complainant thanked him for not letting him go. Mr M clarified the change in pay on the phone. He knew that the change could not be forced on him. He was clear that the complainant was not treated differently to anyone else. He confirmed that he bought food for him as he did for other drivers. Mr M stated that the complainant left his accommodation in Kildare in May 2020 for the purposes of saving for his family’s’ arrival. He requested to sleep in the truck and did so May to October 2020. Mr M acknowledged that nobody could force the complainant to vacate his accommodation. The job from August 2020 required 4 nights in the truck, but the 48 maximum hours had to be honoured. Pay fluctuated in the case of the 4/5/6-day attendance records. There was no payment at the business for “sleep out “ The business did not operate cash payments. Mr M did not attend the August 2020 meeting with the owner but was aware of its occurrence. He understood that the complainant was seeking a tax efficiency in his take home pay. Mr M confirmed that the previous payment in Wexford had not been advanced or discussed by the complainant as a comparative analysis on pay. Mr M disputed the restrictions raised by the complainant and stated that the complainant was not bound to base himself at any one service station to rest. He named 7 stops on the road to Cork, which he believed were “perfectly well equipped “The Complainant also had a car available. In denying that the complainant was discriminated against, he confirmed that any errors in pay were corrected. He confirmed that he received abusive texts from the complainant on Christmas day, 2020. Mr M concluded that the Respondent had treated the complainant fairly, they helped in helping him find a family home, secured it, however, the complainant did not avail of this. The Complainant had not raised real time complaints on the service station facilities. In clarification, Mr M confirmed that there had been 3 conversations about the complainants pay. Mr M confirmed that the complainant was the first South African employee and the business had not been approached by the Government in follow up to the work permit. During cross examination, Mr M said that he was not aware of the check list associated with the work permit. He confirmed that the owner had arranged the work permit and he was ill currently. He confirmed that errors in pay were corrected. He recalled placing the letter of notification of change in customer onto the complainant’s truck seat, his whereabouts being secured via “tracking information “He recalled the complainant saying thank you. He reaffirmed hearing the complainant thank him for avoiding his redundancy. The job description said “various locations around the country “ If driving occurred on the continent, a 7-night truck presence would not be unusual. He denied that the respondent treated Irish staff differently to the complainant. He named two drivers who undertook 4 nights in the truck as part of their role. He countered that “sleep out “was paid and confirmed that hygiene facilities were available 1-2 kms away from where the complainant was based. Evidence of Ms Z, Manager, and daughter of owner Ms Z said that she grew up in the business. She confirmed that she had prepared for the complainant’s arrival by scoping out accommodation facilities and a support agency for his family. Ms Z contended that the complainant was fairly treated by the respondent. She stated that she had no knowledge of the work permit. During cross examination, she confirmed that the €37 ,000 was a typographical error, but added that she had not discovered this sooner. The complainant said that she was not involved in the work permit, but rather in areas of administration and passport. In conclusion, Counsel for the Respondent stated that the complainant had not secured the necessary burden of proof in the case. He contended that the complainant had been “factually incorrect “in his recollections and no evidence of discrimination had emerged. He highlighted the management prerogative aligned to the mobility clause within the contract. He concluded that the Complainant had voluntarily stayed 7 days in his truck, when others had stayed 4 days related to work.
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Findings and Conclusions:
I have been requested to make decisions in these employment rights cases. In arriving at my decisions, I have had to expend concerted attempts to secure facts from both parties in this case. The case commenced on a fragmented representative basis which caused some delay in my securing clarity on the claims. I have considered both parties oral and written submissions in the case. I have reflected on the complainant’s own evidence and on the three-respondent witness evidence. I would have liked to have met the owner of the business who confirmed to the WRC in April 2021 that he was joined with the HR company in answering the claims. The Respondent submitted that Mr O’Callaghan was sick but did not produce a medical note to that effect. This case comes to hearing in an unusual manner, where the complainant was unrepresented for the first 18 months of the claims. During this time, there were two submissions of contraventions of the employment rights legislation. These were later reviewed and abbreviated as mentioned at the outset. However, this case also comes to hearing against a high level of conflict between the parties, which did not dissipate during the hearing. I am left with a record of very strongly expressed views from both parties. The Complainant was clear that he was poorly treated for the 14 months of his employment. The Respondent countered this and contended that they had welcomed the complainant and saved his employment when others were made redundant in April 2020. It is not lost on me that the events of this case also encompass the timeline of the national covid 19 pandemics. The Complainant arrived in the country consistent with the onset of the pandemic. It was an unusual time for all parties to all employments both here and abroad. The Work Permit: I find that I must start with a brief analysis of the antecedent events to this employment. I understand that the complainant had previously worked in the State, however, this employment was introduced to me as that governed by a General Employment permitted employment under Section 3A (2) (c) of the Employment Permits Act, 2006, 20 January 2020 to 19 January 2022. That is where the Minister is satisfied that a person in the State has been unable to recruit an employee for a vacancy for an employment, to provide for the recruitment of a foreign national who has the required knowledge and skills for the employment and, where appropriate, the qualifications and experience may be required for that employment. In Employment Law in Ireland, second edition, Cox, Corbett, and Connaughton pp 384-405, emphasises that as a pre-condition to a grant of permit “that the employer or contractor have published an offer of the employment generally (and thus have offered the employment to a citizen or a foreign national referenced in S 2 (10) or 2(10) (A of the 2003 Act. This notice must be placed with the Minister for Social Protection for publication on the EURES website for a minimum of 14 days. This is in addition to at least one national newspaper, web sites and one local newspaper. In drawing from the Permit granted to Mr Kevin O’Callaghan T/ A Trans Euro, I quote, The permit is issued on the basis that the salary to be paid to the named Foreign National is, at a minimum, the national minimum hourly rate of pay or a rate of pay provided for in section 12 (6) (B) of the 2005 Act. Notwithstanding this, this permit is issued on the basis that the named Foreign National is paid the remuneration specified on this Employment Permit The place of employment is recorded as Trans Euro Remuneration per week is recorded €711.54 as a standalone salary, without reference to a composite rate. Both parties accept that this permit was received by the complainant, while he was in South Africa and he proceeded to finance his own trip to Ireland arriving on 24 February 2020, collected by the Respondent. Quite a lot of the conflict in this case has centred around the complainant’s expectation of receiving a base salary of €711.54 plus subsistence, plus sleeping out money. The complainants own evidence told me that he had learned about sleep out money when he had previously worked in Rosslare. It has been the Respondents consistent argument that the €711.54 was a composite rate which incorporated base salary and subsistence. At every level of the Respondent narrative, they denied payment of sleeping out money. I note that the long-term Accountant denied the very existence of the category of payment in the company. In paper submissions, the complainant side alluded to one named Spanish worker in receipt, but this did not permeate the complainant’s evidence, nor was he a comparator. I must exclude this as “hearsay “. I am not an authorised officer under Section 22 of that Act. Considerable penalties are outlined in the Legislation for noncompliance with this legislation. I do not hold any jurisdiction under this Act. I began to wonder early on in this investigation as to why the complainant did not appear to have actioned any complaint on the divergence between the €711.54 on the permit And €120 night rate on the statement of main terms of employment received on 23 December 2019 And Letter of offer of employment 14 November 2019 €39,000 (annual salary) It is clear to me that those variables were worthy of an earlier grievance within the powerful legislative basis of a general work permit. I have formed the view that the Complainant was not au fait with the nuances around the “national minimum wage “rider on the employment permit. Section 9(2) (c) of the Employment Permits Act, 2006 determines that a permit holder cannot be paid less than this amount. This may explain the complainant’s earlier reliance on exploring that claim. He clarified at hearing that no claim existed under the National Minimum Wage Act, 2000. Remuneration for the purposes of the employment permit is defined in Section 1 A of that Act. The national minimum wage during 2020 was € 10.10 and did not provide for expenses, Saturday, Sunday, or public holiday. It is a separate and distinct entity to the work permit wage. The reason, I would have liked to have met the Owner of the business was that nobody else at hearing had any organisational knowledge on how the €711.54 came into being. Yet the Employment Permits legislation sets out a clear mechanism of securing a Ministerial approved permit. Somebody in the business submitted a proposed wage to the employment permits section of the State. Somebody in the business made an application for a permit with the requisite details attached. I did not have the benefit of meeting that person or being presented with the preparatory work for the permit. I did inquire regarding pay determination in truck driving and was directed to the road haulier’s association as pay determiners, yet no one from that grouping attended the hearing. There was no one within my investigation who would or could confirm where the €711.54 was born. There was nobody available either, who could cogently explain how €39,000 quoted on the letter of offer dated November 2019 became a cryptic €120 for five over seven days per week on the terms. The terms were nonspecific when it came to the default clause attached. “Additional contract work outside of your normal day to day contracts at Supermarket night store work, you will be paid at the agreed rate for that contract. Your manager will inform you of the agreed rates.” I am struck by the less-than-ideal foundation work in communicating with the complainant around his position, which commenced 5 weeks into the lifetime of the permit. This was the complainants second work experience in Ireland. I did question the complainant on what measures he had taken to resolve this matter directly with the Employment Permits Section? I requested documentation commensurate with that exchange. I was disappointed to receive an extract from a communication from the complainant to the permits section as it did not match the high level of conviction and certainty contained in the complainant’s evidence that he was assured by the Permits Section that his base salary should match the permit. The complainant raised a query with the Permits section on 31 January 2021 and sent in a copy of a checklist received in response. This checklist describes that it is not a substitute for legislation and is aimed at the application stage. Given that the application is governed by a fee and high penalties exist for infringement of employment permit legislation in the Ordinary Courts, I would have expected a much earlier clarity on the wage to be paid to the complainant. I do not accept that the €39,000 mentioned in the letter of offer was a typographical error as led by the Respondent. I have reflected on this and have concluded that the period during which the complainant experienced the disparity in pay also co incided with an active plan he had to bring his family to Ireland. I accept that the Respondent supported him in this plan. I note, the supportive email from the Complainants wife in gratitude from August 2020. Ms Lee attended the hearing but did not give evidence. Perhaps the complainant concentrated his efforts on this plan rather than on trying to resolve the pay disparity with the Employments Permit Section Authorised Officer? I have not received any documentation to support the complainants’ contentions at hearing in this regard. He confirmed at hearing that he had been endorsed by the Employment Permits section that €711.53 was his real wage. This point was also reflected in the respondents post hearing submissions. The first contact was 31 January 2021 and was without follow up. The Complainants amended claim to WRC was dated 9 February 2021 and 19 March 2021 and augmented in May 2021. There were three complaints submitted to the WRC Inspectorate also, both parties deemed these irrelevant to the instant investigations.
CA-00042701-001 Payment of Wages Act, 1991 I have been requested to decide whether the complainant was the subject of a pay deduction from” 3 March 2021 and ongoing “ Section 41(6) of the Workplace Relations Act, 2015 requires a timely submission of a workplace. (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. This constitutes the umbrella for my jurisdiction in this claim. The claim was received at WRC on 9 February 2021. Section 40(5) (a) An adjudication officer to whom a complaint or dispute is referred under this section shall— (i) inquire into the complaint or dispute, (ii) give the parties to the complaint or dispute an opportunity to— (I) be heard by the adjudication officer, and (II) present to the adjudication officer any evidence relevant to the complaint or dispute, (iii) make a decision in relation to the complaint or dispute in accordance with the relevant redress provision, and (iv) give the parties to the complaint or dispute a copy of that decision in writing. I am obligated to inquire into this complaint and determine whether a contravention of section 5 has occurred? The Complainant has rested his claim on the differential between the wage set down on the general work permit and the variable wage he received from the outset of his employment, which he says worsened further when he left the night work and falling to an erratic €455 per week. The Respondent has denied this and has consistently relied on the meaning of wages amounted to a composite wage. For my part, I have had cause to scrutinise the framework of the complaint considering the superior courts decisions in Moran V EAT [2014] IEHC 154 and the case of HSEv Mc Dermott IEHC 331 The issue in the instant case, has the complainant formulated or framed his complaint in a way I can safely hold jurisdiction? In the above cases, the High Court scrutinised the proximity of the stated contravention to the cognisable period allowed under section 6(4) of the Payment of Wages Act, 1991 My attention was drawn to one of the illustrative examples relied on by the then Hogan J in Mc Dermott Second example 23. Suppose, for example, an employer hires a young employee with little English and who perhaps has little familiarity with Irish labour rights legislation. The employer makes a series of unlawful deductions from the employee's wages and this state of affairs continues for many years due to the employee's vulnerability and lack of awareness of his statutory entitlements. Is to be said that in those circumstances the employer should be permitted to continue to make these unlawful deductions every month, more or less in perpetuity, even though this result would be precisely the logical consequence of the argument now advanced by the HSE?
I was also struck by the remoteness in time in Moran as commented by Keane J The uncontroverted evidence presented to the rights commissioner, the Tribunal and to the Court establishes that the appellant did not, as a matter of fact, present a complaint to the rights commissioner relating to a contravention of the 1991 Act alleged to have occurred on any specific date or dates within 6 months of the 17th of May 2010. The appellant himself identified the contravention to which his complaint relates as an “application … for payment of a 5% wage increase awarded by Government to [HSNs] in the [HSE] with effect from 14 September 2007.” I have taken account of the complainants lay litigant and non-national status and that he did not obtain legal advice prior to August 2021. I find that the Complainant framed his complainant in a matter which draws my attention to his clear and unequivocal statement that he was underpaid wages within the cognisable period allowed for this claim, August 10, 2020, to February 9, 2021. I am strengthened in that view by his clarifications to me in sworn evidence that he left the employment due to low pay. He highlighted that he had been happy with the pro offered wage from November 2019 and this was his motivator to accept the job. I find that, armed with my overall responsibility and duty to inquire in the case, that I can inquire into his claim. Substantive case: Section 5 (1) of the Payment of Wages Act 1991 outlines the rules pertaining to a deduction in wages. 5. Regulation of certain deductions made, and payments received by employers (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it.
In Balans v Tesco Ireland ltd [2020] IEHC 55, the High Court emphasised that any shortfall of wages outside of a computational error amounted to an unlawful deduction. In Dunnes Stores (Cornelscourt) ltd v Lacey {2005] IEHC 417, directs me to assess “what wages were properly payable? “ Sullivan v Dept of Education [1998] 9ELR 217 I have explained that I do not carry a jurisdiction under the Employment Permits legislation. I have reviewed the letter of offer of employment dated 14 November 2019. “The job requires you to deliver various articulated loads across Ireland. The hours would be 48 hours weekly. The annual salary for this job is €39,000”. This was the offer accepted by the complainant, without reference to a typo graphical error until the last day of hearing. I must apply the contra preferendum rule against the drafter here. Balans, applied. I find that the wages properly payable to the complainant as provided for in section 1 of the Act amount to €39,000 per annum. (750 euro weekly) Expenses are delineated in section 1 of the Act. Provided however that the following payments shall not be regarded as wages for the purposes of this definition: (i) any payment in respect of expenses incurred by the employee in carrying out his employment, This fractures the respondent argument on a composite rate of wage inclusive of subsistence. Expenses, such as subsistence are not wages. I accept the clear and cogent evidence of Mr Z, the Accountant and Mr M, the line Manager, that “sleep out “money was not paid at the business. I understand that the complainant may have been paid this money in a previous employment and that he may have carried an expectation on its universality within the truck industry. I accept Counsels point that he was mistaken in that regard. The complainant was entitled to receive €750 per week as gross pay as his properly payable wages. I do not accept that pay could be altered as recorded on the statement of terms of employment as it comes in direct collision with the terms of Section 5(1) of the Act. “Additional contract work outside of your normal day to day contracts, supermarket store work, you will be paid at the agreed rate for that contract. Your manager will inform you in advance of the agreed rates “ The Primary wage comprises of the €750 and again the ambiguity contained in the Statement of Terms does not dislodge this. I am satisfied that there was no consent to change the wages from the primary wage at any time in this employment. I have found that the Complainant in being denied €750.00 properly paid wage suffered an illegal deduction of wages, which Is not rectified by the Autumn 2020 agreement to max the payment of expenses. I have identified a contravention in Section 5(1) of the Act. I find the claim is well founded. In line with my permitted jurisdiction, I can address the contravention in the immediate six-month period prior to the submission of the complaint on 9 February 2020. CA00042701-003 Annual Leave Section 27 of the Organisation of Working Time Act, 1997 requires to me to make a decision in this case in accordance with Section 19 and 23 of the Act. Compensation on cesser of employment. 23.— [(1) (a) Where— (i) an employee ceases to be employed, and (ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave. The Respondent has confirmed that the complainant received €98.92 per annual leave day. I had some concerns that the complainant may have been given payment rather than rest time. However, I am now considering this claim as cesser pay in accordance with section 23 of the Act. I note the claim addresses 19 instances of differential in payment. I have identified a shortfall in the divisor paid in respect of annual leave based on the €750 gross wage. This amounts to a contravention of section 23 of the Act I find the claim is well founded.
CA-00042701-004 Organisation of Working Time Act, 1997 I have considered this claim, but I could not establish the particulars relied on by either party within the cognisable period. I have noted that the Respondent sought to regulate the complainants’ hours of work on a number of occasions outside of the cognisable period. I find the claim is not well founded. CA-00042701-006 Terms of Employment (Information) Act, 1994 The Complainant has denied receiving any notification of change in his statement of terms of employment. The Respondent has denied the claim and has submitted that the complainant was appraised of the change through dialogue and what’s app. Further, in Mr Ms evidence, he recounted the process that occurred where the complainant was saved from redundancy on losing the supermarket contract. The Respondent has also relied on a written notification in Mr Ms evidence that he placed a copy of a letter dated 30 March 2020 in the cab of the complainant truck. The complainant has denied receipt or sight of this. The Respondent appended a “J Lee received 1 April 2020” in handwriting but accepted that the letter did not carry an address. The Respondent has contended that despite the former reliance on notification, the statement of terms reflected a mobility in driving around Ireland, which the company had not departed from. The Respondent denied any contravention. For my part, my jurisdiction in this claim rests once more with the formation of the complaint. The Complainant has submitted that he did not receive a notification of changes in his terms of employment under section 5 of the Act. Notification of changes. 5.—(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 Substituted (16.12.2022) by European Union (Transparent and Predictable Working Conditions) Regulations 2022, S.I. No. 686 of 2022, reg. 8. (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 or instruments 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. My jurisdiction rests firmly with section 41(6) 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. The Complainant has relied on the contention that he was not notified of written changes in his rate of pay, work base or location within the notification period allowed under section 5, that is within a month of the occurrence of change. The Respondent has countered this in Mr Ms very cogent account of enforced redundancies, which by passed the complainant, who was retained in employment. On a strict application of Section 41(6), this claim is outside of my jurisdiction as the parameters for this claim i.e., the clock started ticking between the date of occurrence of change, 21 April 2021 and 21 May 2021. This claim was submitted on 9 February 2021 and therefore must be declared as out of time as it was submitted outside the statutory time permitted. The claim is not well founded. CA-00044165-002 Employment Equality Act 1998 (received 6 May 2021) I have been requested to decide whether a continuum of discrimination occurred in this case. Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. I have considered all oral and written submissions in addition to the evidence adduced at hearing. Section 6(2)(h) of the Employment Equality Act, 1998 -2021 provides that it shall be unlawful discrimination to treat a person less favourably than another person is has been or would be treated because they are of a different race, colour, nationality or ethnic or national origin. 6.(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where— (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which— (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned, In this case, the Complainant relies on of his South African ethnicity to ground his claim. He is fully au fait and competent in the English language and no issue arose in terms of any lack of comprehension on his contract / terms of employment, Goode Concrete. The Complainant has submitted that he was faced with a continuum of discrimination during his tenure of employment, by not being paid properly, by having pay unilaterally deducted, by receiving less annual leave, by having to abide by dreadful conditions in his truck and overall being treated less favourably than the 4 named comparators. The complainant has strongly contended that he was mistreated by the Respondent. The Respondent has contended that the complainant is mistaken in his submissions and has rejected all claims for discrimination, harassment, and victimisation on grounds of race. In finding whether the burden of proof can shift to the respondent, I must first consider, whether the complainant has satisfied the burden of proof in section 85 A of the Act? Burden of proof. 85A.— (1) Where in any proceeding’s 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. (2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant. ……. (4) In this section "discrimination" includes— (a) indirect discrimination, (b) victimisation, (c) harassment or sexual harassment, (d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void. It is over 20 years, since the Labour Court considered the case of Dr Teresa Mitchell and Southern Health Board in [2001] 12 ELR 201, yet the observations of the Court endure. The case considered facts surrounding a long-term locums’ interview for a hospital position and a complaint of gender discrimination. I refer to it here for the seminal commentary in the case, followed later in Valpeters relied on in this case. It is necessary, however, to consider the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. The first requirement of Article 4 of the Directive 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 was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed. In Bolger, Bruton and Kimber, Employment Equality law 2nd edition, the authors reflect that there has been an increase in racial discrimination complaints before the WRC. (210 in 2020) Employers’ treatment of workers on grounds of their race, colour, ethnic or national origins is now regularly examined by the Workplace Relations Commission and the Labour Court where issue of cultural, linguistic and religious diversity arise, alongside the challenges that may face a non-Irish employee trying to integrate into a new and unfamiliar society where traditional supports such as family may not be readily available to them. 6-07 In considering claims of race discrimination, the intention of the employer is irrelevant. Eng v St James Hospital, EDA 023 The law focuses on the effect of the treatment on the employee rather than the treatment itself or the motivation behind it.
I listened very carefully at hearing as both parties described the employment relationship that served as the common base in the case. The Complainant submitted that he experienced discrimination at an early stage in relation to the pay differential, this continued for him when he was moved on two further occasions when the supermarket contract expired without renewal. He exhibited photos of the living arrangements associated with his truck. He argued very strongly that the Irish Comparators earned more than him and had an unshakeable belief that the “sleeping out money “was payable within the business.
The Respondent had a different view of the employment relationship. They contended that there had been no mistreatment and instead the complainant had been supported in job retention when others were made redundant. I was particularly taken by Mr Ms evidence in that regard. The Respondent recounted their efforts to support the complainant in adjusting to Irish life and in preparation for the arrival of his family. I also noted that Mr M recounted taking the complainant for a meal in accordance with his other workers.
I received the requested figures of cumulative earnings from the Respondent. These placed the complainant as the highest earner over the 14 months of his employment, based on a formulaic wage, subsistence, TWSS calculation of A+B+C. These figures were shared with the complainant but did not illicit a comment in response. While there was no active equal pay complaint in the case , I felt compelled to investigate the wages attributed to the comparators as the complainant submitted that he had a “ hunch “ regarding their pay , while not discussed , he felt that he was paid at a lower level It is of interest and relevant to the calculations that 3 of the 4 comparators had wages paid through the TWSS/ Covid support during the 14 months of the complainants employment . This did not occur in the complainant’s case.
In the case of
Ritvars Bozs, Marius Sabaliauskas, Robertas Sabaliauskas, Robert Kocian, Grazvydas Jarasius, Robertas Jurelevicus (complainants) v Damoli Construction Solutions Limited (in liquidation) and Damien Brennan (respondents) [2011]22ELR 34
The then Equality Officer considered a number of claims of discrimination across a mixed-race workplace. In particular, they reported a variance in payment from the REA which governed the construction industry. He emphasised that a
In the instant case, the complainant was satisfied with his training but took issue with having to take work which was not as well paid as the supermarket night work. He contended that he was left to do work the Irish Comparators refused. He was also unhappy with the truck issue year. The Respondent placed an alternative context and background on that development and argued that the complainant had been appraised of his retention in employment. The Respondent position reflected that the complainants burning issue which transcended the employment relationship was pay and not conditions of work. It is regrettable that neither party retained notes of these discussions surrounding pay from April to August 2020. Notes such as these would have assisted my investigation. It would also have assisted greatly if the Respondent had shared a grievance procedure with either the complainant or this investigation as requested. In Bozs, the Equality Officer found that a Slovak worker had been treated less favourably on race grounds regarding onsite discipline. (6) The respondent did discriminate against the fourth named complainant on the ground of race pursuant to s.6(2)(h) of the Acts, in respect of his terms and conditions of employment contrary to s.8(1) of the Acts, by enforcing discipline in a discriminatory manner. The complainant gave cogent evidence which was uncontroverted that Irish workers were not subject to as rigorous on-site discipline as the complainant, a Slovakian national. Under s.82 of the Employment Equality Acts 1998 to 2008, the respondent will pay the complainant €3,000 in compensation for the effects of the discriminatory treatment suffered. In the instant case, I am not being asked to consider whether the complainant was disciplined in a discriminatory manner. I am being asked to decide is whether over the 14 months of employment, whether the complainant was treated less favourably on race grounds. The Complainant has relied on Aukscionis and ors v Ara Construction, which carried a decision from the former Equality Officer, Stephen Bonnlader. This is a case distinguished somewhat on the facts, at it concerned a grouping of Lithuanian workers denied contracts, health and safety training and were paid in cash. I would like to reflect Mr Bonnlander consideration of the evidence adduced on pay cuts, which, on reflection, is distinguished from the facts in the instant case. With regard to the complainants' complaint of discriminatory dismissal, Mr Kaluzevicius gave evidence that he received a text message from the respondent on a Saturday, with a proposal to cut everybody's pay to €50 per day. Before this, Mr Aukscionis and Mr Kaluzevicius, as carpenters, had received €150 per day, and the two other complainants had received €100 per day. Mr Kaluzevicius had saved the message on his mobile phone and was able to produce it in evidence; it reads: "Have to cut labours pay to 50 euro a day ask them is that ok or not prices for work are not good". Mr Kaluzevicius stated that when all workers reported for work on Monday and asked for reasons for the pay cut, they were told: "If you are not happy, everyone go home". According to Mr Kaluzevicius, nine workers, all Lithuanians, felt they had no other option but to leave the respondent's employment that day. The respondent's Irish workers were kept on. I find that by putting his Lithuanian workers before the alternative to have their pay cut between one half and two thirds, or else to leave his employment, the respondent effected their constructive dismissal as defined in S. 2 of the Acts: The employment climate depicted in Aukscionis is markedly different that that described by the parties in this case, where negotiations occurred in August 2020 on a more favourable subsistence at the respondent’s home. For me, this reflected a mutual respect. I was also struck by the connection made by the complainant’s wife with the business during the Summer of 2020. These, will not probative, as not given in evidence were of a cordial nature. This cordial tone was also reflected in the myriad of texts submitted as a demonstration of the employment relationship. It seemed to me that the Respondent held the complainant in high regard.
In 5 Complainants v Hannons Poultry Export ltd DEC E2006-050, The then Equality Officer dismissed claims of discrimination on grounds of race in respect of claims on overtime, accommodation, pay, harassment, and dismissal but found the deduction in pay which pertained to loans for travel and accommodation constituted discrimination on grounds of race. “I consider it more likely that an existing Irish employee approaching management for a loan would be required to sign an undertaking of repayment, or at the very least would have been very clear about the necessity for repayment. It seems to me to be possible that the complainants may not have understood this clearly. I note that the translated contract of employment specifies that cost of flights and accommodation will be deducted from wages, but at the time the complainants were engaged no such translation was available. On balance, I consider that the complainants were discriminated against on the grounds of race by virtue of having unlawful deductions made from their wages.” I must identify facts of sufficient significance to infer that discrimination on grounds of race occurred. The Respondent has relied on Darguisz and stressed that the complainant must prove difference rather than “less than ideal “treatment. I find that the Complainant migrated from his native South Africa for work purposes, leaving his family for a period of 9 months, before they joined him in Ireland. I have found that there was a lack of clarity in his base employment documentation. I have found that he experienced an uncertainty and confusion at the loss of the supermarket contract and had a genuine belief that he was treated less favourably than his Irish comparators. However, those beliefs were anchored by a presumption but not a fact. The Complainant had no idea what his colleagues earned. He analysed the change in demeanour to a named colleague and presumed that he had resolved a pay issue, but he did not present evidence on this topic or call the witness to hearing. I understand that the Complainant faced a hard adjustment on arrival to Ireland in February 2020 as a self-agent, paying for his own flight and accommodation, albeit facilitated by the respondent. I have considered his evidence that he was compelled to stay in his truck and bypass higher end rest and recreation stops off the motorways. However, I have found that he elected to forfeit his accommodation in Kildare as his work involved a greater frequency in trips to Cork. As he had no other residence in Ireland, he stayed in his truck until just before his family arrived at Ireland. I can fully appreciate that this was a self-limiting existence, but it was not wholly attributable to the respondent in this case. The situation was an economic decision, not determinative of race. I can appreciate that his observations of the Irish comparators going home from their trucks on the evenings they were permitted to do so, did not sit well with the complainant. I have found that he expressed a remoteness and loneliness from his home and family and was vulnerable during this time. I could see that he did everything he could to chase an acceptable wage to anchor a good start for his family, including an active pursuit of the “sleeping out “money known to him from a previous employment. I can see that life in the truck over 7 nights was far from ideal, but I have not found facts from which I can infer that this was discriminatory treatment due to his race. In addition, if I am to consider this claim as a continuum, the practice sleeping in the truck over 7 nights (partly self-managed and partly delegated by the company) ceased outside the cognisable period allowed. I appreciate that he continued to sleep in the truck on 4 occasions per week until he ceased the practice by notice some two weeks before he left employment. The fact remains and it has not been disputed by the complainant, the complainant as the highest earning employee when measured across his 4 cited comparators during the 14 months of his employment, I am satisfied that pay differential in the wake of the supermarket contract manifested itself for all workers assigned to that contract. I am satisfied that the Complainant was retained in employment, albeit on an unagreed wage, addressed in the claim for payment of wages. I am satisfied that the Respondent did breach the Payment of Wages Act and Organisation of Working Time Act on those technical points but taken at a height cannot meet a prime facie case such as set out in a Domestic Worker v An Employer where a South African domestic worker was placed in a vulnerable position in a home setting without a visa or work permit, proper breaks and subject to excessive monitoring. I fully understand the difficulties faced by the Complainant during the 14 months of employment, which were keenly felt by him. I have found that the Complainant has not discharged the evidential burden required to prove facts from which I can infer that discrimination on grounds of race occurred. Section 14 (7) (a) In this section—Harassment (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and (ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. (b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures, or other material. I have found that the Complainant has not discharged the evidential burden required to prove facts from which I can infer that harassment on grounds of race occurred. Victimisation Section 74(2) of the Act (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. I have considered the period 9 February 2021 to 6 May 2021 as the period pertaining to the complaint of Victimisation before the WRC. I am satisfied that the complainant did not raise a complaint of discrimination within the workplace prior to this date. The key elements of victimisation provided for in s.74(2) of the Employment Equality Acts therefore are as follows: The employee had taken action of a type referred to at s.74(2) of the Acts (a protected act), The employee was subjected to adverse treatment by the respondent, and, The adverse treatment was in reaction to the protected action having been taken by the employee. Dept of Defence v Barrett EDA1019 I am satisfied that the Complainant made a formal complaint of discrimination to WRC on 9 February 2021. I am not satisfied that he was subjected to adverse treatment as a result. The complainant has asked that I consider a contact made by the Respondent to his then landlord instructing him that he had given up his position. On a careful review of the documentation exhibited, I have found that it was an action taken by the employer which fell far short of best practice, but I have not identified it as an adverse treatment which was a retaliation for making a complaint to the WRC of race discrimination. I have found that the Complainant has not discharged the evidential burden required to prove facts from which I can infer that Victimisation on grounds of race occurred. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. CA-00042701-001 Payment of Wages Act, 1991 Section 6 of the Payment of Wages Act, 1991 requires me to make a decision in relation to this complaint in accordance with section 5 of the Act. I have found the complaint is framed within the parameters of my jurisdiction. I have found the claim is well founded. I have identified that there was a shortfall in gross pay for 25 of the 26 weeks immediately preceding February 9, 2021. I order the Respondent to pay the complainant €6,973 as reasonable compensation for the deduction in pay without consent. This amount is subject to statutory deductions. CA-00042701-003 Organisation of Working Time Act, 1997 Section 27 of the Organisation of Working Time Act, 1997 requires to me to make a decision in this case in accordance with Section 19 and 23 of the Act. I have found the claim is well founded. I order the Respondent to pay the Complainant €750 in respect of the contravention of the Act. I would also order the Respondent to maintain records of rest time given in respect of annual leave. CA-00042701-004 Organisation of Working Time Act, 1997 (Night Work) Section 27 of the Organisation of Working Time Act, 1997 requires to me to make a decision in this case in accordance with Section 20 of the Act. The claim is not well founded. CA-00042701-006 Terms of Employment (Information) Act, 1994 Section 7 of the Terms of Employment (Information) Act, 1994 requires to me to make a decision in this case in accordance with Section 3 of the Act. The claim is not well founded. CA-00044165-002 Employment Equality Act 1998 (received 6 May 2021) I have been requested to decide whether a continuum of discrimination occurred in this case. Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. I have found that the Complainant has not discharged the evidential burden required to prove facts from which I can infer that discrimination on grounds of race occurred. I have found that the Complainant has not discharged the evidential burden required to prove facts from which I can infer that harassment on grounds of race occurred. I have found that the Complainant has not discharged the evidential burden required to prove facts from which I can infer that Victimisation on grounds of race occurred. |
Dated: 28-July-2023
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Employment by General Work Permit in Truck Driving. Claims of deduction in pay, annual leave, and discrimination on grounds of race. |