Complainant

Respondent

Parties

Rafal  Morton

Sar Group Part Of Mcr Group Companies.

Representatives

Warren Parkes Warren Parkes Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00049873-001

26/04/2022

The Complainant commenced employment in 2009 with a company which was taken over by the Respondent in a Transfer of Undertakings in 2013. The Complainant was employed as a security guard, primarily working in the healthcare area, he has worked in the same Dublin hospital for the last 13 years. He works 39 hours per week and is paid €525.07 per week.

In his WRC complaint form the Complainant submits that he has been trying to get matters relating to his terms and conditions sorted out but this has not happened. He submits that he has been “side-lined” when he has attempted to air his concerns.  One such issue related to the lack of PPE during the pandemic.

The Complainant submits that he was excluded from the main roster and not offered extra shifts. He feels this is because he would, according to his old contract, have to be paid overtime rates.  The Complainant submits that he is overlooked and excluded by his employer.  He submits there is a system of favouritism, whereby if you are “nice to them and keep quiet you will be given preferable shifts and off-site positions.”

The Complainant gave evidence on oath at the hearing. He stated that he felt like a second-class citizen and that overtime was given to other staff.  He stated that, more work was given to Irish colleagues.

In his evidence the Complainant outlined that he had tried to discuss his working conditions with his manager but to no avail. He had raised serious health and safety issues, for example traffic duty problems, but these were ignored. He stated that it was, “mainly foreigners doing duty” (on the roads).

The Complainant stated that he felt he was treated less favourably because he was on an old contract and that is why he was getting the worst possible positions on his shifts.

In cross examination, the Complainant accepted that offers of overtime were processed through a WhatsApp group message and that it was up to the employee to accept an offer of overtime. He also accepted that he had given up on the WhatsApp group. When asked if he generally did not work overtime the Complainant replied that he occasionally works overtime.

In cross examination, when it was put to him that he had stated that he had discriminated against because he was Polish, the Complainant replied that “it’s me personally”.  He also agreed that most other security officers do the traffic duties he had referred to previously. And that he did not want to carry out specific duties that were being carried out by other security officers.

In closing, the Complainant stated that he had had an opportunity to express himself at the hearing.

The Respondent called the Company’s Security Administration Manager to give evidence, which she did on affirmation. She explained the workings of the traffic roster and security officers move every three hours. Most security officers do traffic duty at varying times.  She stated that she had not received any complaints from the Complainant about this aspect of work.

The Respondent called the Company’s Security Manager to give evidence, which he did an oath. The Security Manager stated that the Complainant had been offered overtime but chose not to take the opportunity. He also stated that although at the outset of the pandemic the company did not get proper face masks any employee going into a Covid facing role was issued with the proper type of face mask. 

In closing, the Respondent put forward that there was nothing in the complaint nor in the Complainant’s evidence that demonstrates discriminatory behaviour, rather the Complainant has advanced a series of grievances, all of which were answered in full. Nothing has been adduced that could constitute discrimination under the Act.

Establishing a prima facie case.

The general rule in the context of the burden of proof is that the burden lies on the party asserting a particular claim.

I have examined whether the complainant has established a prima facie case of discrimination.  The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the 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 continued:

 “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”.

In order to determine whether the complainant has established a prima facie case a three-tier test is employed:

First, the complainant must establish that he is covered by the relevant discriminatory ground.

Second, he must establish that the specific treatment alleged has occurred.

Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

In this instant case, the agreed facts of the case are that the complainant is a Polish national, covered by the race ground. It is common case that he was required to carry out certain security duties in his place of work, for instance, traffic duty.

In considering the third tier of the test, I have noted that it was the Complainant himself who indicated that all his colleagues were required to do various duties including the traffic duties he referred to in his evidence. Although he objected to carrying out such duties the fact that the treatment was less favourable than what would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground has not been proven.

I find that the complainant has not established a prima facie case and his complaint therefore does not succeed.

The Complainant was not discriminated against.

Less favourable treatment, discrimination, contract of employment