Complainant

Respondent

Parties

Rabson  Ndlovu

TTM Healthcare

Representatives

  Self Represented

William Wall Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00053256-001

11/10/2022

The Respondent is an agency supplier of workers to the healthcare sector. The Complainant applied for a position with a third party through the Respondent and following a conversation with the Respondent left his employment on the basis of him being offered a job with the third party. However, the third party had previously interviewed the Complainant and deemed his application unsuitable and they did not offer the Complainant a role through the Respondent. The Complainant alleged the Respondent acted in a discriminatory manner toward him. The Respondent denied they acted in a discriminatory manner and claimed the complaint was submitted out of time by the Complainant and the Adjudication Officer did not have jurisdiction to decide on the substantive complaint.

The Complainant was employed, at the time of engaging with the Respondent, as a Support Worker in a good job.

The Complainant resigned his employment with his then employer on the basis of a conversation with the Respondent about a new job with a third party.

The Complainant alleged that the reason he did not get a job offer from the prospective employer (the third party) was due to discrimination based on his race by the Respondent.

The Complainant stated that he continued to engage with the Respondent about the situation over time and therefore the time limit for the complaint should be extended.

The Complainant has referred this matter under s.77 of the Act of 1998. He alleges discrimination and he refers that the first date of discrimination occurs in May 2021 and the most recent date of discrimination occurred in May 2022.

Two sets of claim papers exist in this claim. One electronic and one handwritten. The electronic referral shows April 2021 and the first date discrimination arose and May 2022 as the most recent date of discrimination.

Within the handwritten document it states the most recent date of discrimination stands at the 9th of May2022.

The Respondent refers to the cognisable period in this case is the 25th of December 2023 to the 24th of June 2024.

The Respondent refers to s.41 (1 ) of the Workplace Relations Act 2015 (Act of 2015) wherein it refers.

Presentation of complaints and referral of disputes

“41. (1) An employee (in this Act referred to as a "Complainant") or, where the employee so consents, a specified person may present a complaint to the Director General that the employee's employer has contravened a provision specified in Part lor 20f Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer.

In accordance with s.41 (6) & (8) of Act of 2015 were it refers.

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

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

In accordance with s.41 (1) of the Act of 2015, the Respondent submitted that the Complainant is not an employee of the Respondents is therefore statute barred from raising a complaint against them.

The section allows for employees whose employer has contravened provisions of a particular Act as set out in Schedule 1 of the Act of 2015.

Moreover, a Complainant has 6 months from the date of contravention in which to refer a matter to the Adjudication services of the WRC. However, in accordance with

s.41 (8) if a Complainant can show reasonable cause, the Adjudication Officer is obliged to look at that application in accordance with the precedent set out by the Labour Court in its previous decisions.

The Respondent  submitted that the Complainant in referring the matter confirms that his complaint relates to the 9th of May 2022. He referred the matter to the WRC on the 13th of April 2023. The cognisable period operates from the 13th of October 2022 to the 13th of April 2023. Having regard to s.41 (8) it was submitted that the claim falls outside both subs 6 & 8 of the Act of 2015 and as a matter of law is statute barred. It was submitted that the adjudicator should dismiss this claim as if falls outside the 12 months allowable under the Act.

The Respondent is a recruitment agency who hire healthcare staff based on the needs and requests of clients. The Complainant applied for a role of support worker.

The Complainant in correspondence dated the 3rd of June 2021 states that there was a contractual breach of an agreement by the Respondent in not having employment. That the Respondents' actions have caused a loss of income, damages arising from negligence, deceit and misrepresentation. He goes onto state that the way the Respondent has treated him borders around insubordination, indifference and arrogance.

The Respondent strongly denies these claims and sets out for the record the events occurring.

The Complainant was interviewed on the 16th of April 2021 and the Respondent noted that he could fit into a role of a specific client of theirs. (Client A). He was aware of the Respondent's client to which he was interviewing for.

The Complainant had previously interviewed for the role, directly with the Respondent's client and was unsuccessful in gaining employment. He advised the Respondent that he was happy to have his CV sent to Client A.

On the 20th April 2021 the Complainant was concerned he didn't get a job offer.

On the 21 st of April he emailed the Respondent when he was to start with their client as he wanted to hand in his notice. He was informed that they would let him know and that he could hand in his notice.

On the 27th of April he confirmed that he had handed in his notice.

On the same day he was phoned and asked why he failed to mention their client on his CV or, that he had already been interviewed and regretted for a role directly with the client. He failed to inform TTM Healthcare of same, therefore he failed to secure gainful employment.

The Complainant contended that he should not have been told to hand in his notice. He was aware that the client he was interviewing for work with, and that he had already interviewed directly without success.

The Complainant was advised of other roles that were vacant, none of which he took up.

On the 30th of April 2021 he was offered a choice of working for several employers, he refused.

On the 27th of July 2021 he enquired into pay and said that he shouldn't have handed in his notice.

On the 3rd of August he responded negatively to a further job offer. He was offered work again on the 18th of August 2021

In November of 2021 he was again offered work to which he failed to reply and again in December.

In February 2022 he was screened and passed to another member of the team in order to find work for him. He complained that the operative of the Respondent failed to reply to him with offers.

On the 21 st of February he was phoned with a further offer of work to which he did not respond.

The Complainant refers this matter to the WRC under s.77 of the Employment Equality Act 1998 as amended (the Act of 1998) wherein he believes that based on his race. He has not set out haw he believes that he was treated less favourably than another worker of a different race being offered work.

The Respondent refers to s.6(1) of the Employment Equality Act 1998 as amended (the Act of 1998).

“Discrimination for the purposes of this Act.

6.—F14(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 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—

exists,

existed but no longer exists,

may exist in the future, or

is imputed to the person concerned,

a person who is associated with another person—

is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

that one is a woman and the other is a man (in this Act referred to as "the gender ground"),

that they are of different civil status] (in this Act referred to as "the [civil status] ground"),

that one has family status and the other does not (in this Act referred to as"the family status ground"),

that they are of different sexual orientation (in this Act referred to as "the sexual orientation ground"),

that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as "the religion ground"),

that they are of different ages, but subject to subsection (3) (in this Act referred to as "the age ground"),

that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as "the disability ground"),

that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as "the ground of race"),

that one is a member of the F 161Travel/erl community and the other is not (in this Act referred to as "the traveller community ground.”

The Respondent further refers to s.8 of the Act of 1998 wherein it refers

“Discrimination by employers etc.

8.—(1) In relation to

access to employment,

conditions of employment,

training or experience for or in relation to employment,

promotion or re-grading, or

classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.”

The Respondent refers to s.28 of the Act of 1998,

“The comparators.

28.—(1) For the purpose of this Part, "C" and "D" represent 2 persons who differ as follows:

in relation to the civil status ground, C and D have different civil status.

in relation to the family status ground, C has family status and D does not, or vice versa.

in relation to the sexual orientation ground, C and D are of different sexual orientations.

in relation to the religion ground, C and D have different religious beliefs or C has a religious belief and D does not, or vice versa.

in relation to the age ground, C and D are of different ages.

in relation to the disability ground, C is a person with a disability and D is not, or vice versa, or C and D are persons with different disabilities. (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.

(h) in relation to the community ground, C is a member of the community and D is not, or vice versa.

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.

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—

in relation to the civil status ground, the relevant characteristic is having the same civil status as C (or, as the case may be, as D), and

in relation to the family status ground, the relevant characteristic is having the same, or the same lack of, family status as C (or, as the case may be, as D), and so on for each of the other discriminatory grounds.”

In the instant case the Complainant alleges that due to his race he was treated less favourably then another as set out within the Act of 1998.

Burden of Proof.

The Respondent refers to the case law outlining the requirement of the Complainant to prove an inference of discrimination upon the grounds in which he wishes to rely upon.

In Melbury Developments v Arturs Valpeters EDA0917the Labour Court stated.

"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. Al/ that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".

On this matter the Respondent also refers to Southern Health Board v Mitchell, DEEOII, [2001] ELR 201 where the Court stated:

"The first requirement is that the Complainant 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 Complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. "

The Respondent refers to the case of Margetts v Graham Anthony & Company Limited, EDA038, where the Court noted as follows:

"The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred. "

Galway Mayo Institute of Technology -v- Vlad Teleanca EDA 1835, the Court stated that this "Mitchell Test" was comprised of the following three steps:

1 "It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so he or she cannot succeed.

If the primary facts relied upon are proved, it is for the Adjudication Officer/Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent"

It is the Respondent's submission that the Complainant has failed to set out any occurrence of discrimination as alleged either on the 9th of May 2022 or at any time in or around April 2021 when this issue arose. In those circumstances the Complainant

has failed to reach the requirements of a prima facie case as provided for under s.85 of the Act of 1998.

Throughout the various correspondence and emails filed with the WRC, the Complainant fails to point to any instance of less favourable treatment in which to ground his case

The Respondent submitted that the Complainant must set out the instances where he believes he was treated less favourably in order to ground a complaint under the Employment Equality Act 1998. In failing to do so it is the Respondent's submission he has failed to raise a prima facie case of discrimination where the burden of proof shifts to the Respondent to rebut that inference.

The Complainant initially submitted his complaint to the WRC on October 11th 2022. The Complainant was advised by the WRC on 3/12/2022 that his complaint form was incomplete. The Complainant resubmitted his complaint form on 13/4/2023. The date of the alleged discrimination was given as April 2021. The Respondent argued the complaint was out of time and the Adjudicator had no jurisdiction to decide on the substantive issue. The Adjudicator heard both the submissions on the preliminary issue and the substantive issue and advised he would issue his decision on the preliminary issue if the claim was within the time allowed and if that was found to be in time that he would also issue his decision on the substantive issue.

The Employment Equality Act, which is the Act under which the complaint is referred allows a non employee to initiate a complaint under the Act.

Discrimination by employers etc.

8.—(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(2) For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker is, has been or would be treated.

(3) In subsections (4) to (8), references to an employee include references to an agency worker and, in relation to such a worker, references to the employer include references to the provider of agency work.

(4) A person who is an employer shall not, in relation to employees or employment—

(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

(5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered,

(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different, or

(c) by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) in so far as such advertisement relates to access to employment.

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

(7) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.

(8) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—

(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or

(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.

The argument that the complainant is not covered by the Act has to be considered. Firstly, the Respondent was not his employer nor was it his prospective employer. It was the intermediary between the Complainant and the firm seeking to employ a person. Secondly it was not going to provide agency work in this case. The Complainant, if hired, would have been hired directly by the third party. However ,the Respondent is an employer and was involved in the Complainant having “access to employment” and therefore I find that the Complainant as a non employee is entitled to pursue a complaint of discrimination in the circumstances of this case. This issue was not fully teased out at the Hearing and basically is mute given the assessment below that the complaint is out of time.

I wish to state that it is not my role to assess the circumstances  of the Respondent verbally offering the Complainant a position with the third party and the Complainant leaving his job before getting a job offer in writing from the third party, This was unfortunate from all sides but is not material to my assessment of the discrimination complaint.

From the forms submitted and the evidence given to the Hearing the date the alleged discrimination took place was in April 2021. The complaint was initially submitted to the WRC in October 2022. While this form was deemed incomplete by the WRC the substance of the complaint was contained in the submitted form. The maximum cognisable period for the complaint therefore under the Act (12 months) to be eligible is from October 2021 to October 2022 and I find the alleged discrimination took place before his time (April 2021). The Complainant stated that he continued to communicate with the Respondent on his grievance after April 2021 for a period and a new breach of the Act occurred during this period. No evidence was provided to support this claim. I find no act of alleged discrimination was shown to have taken place between April 2021 and October 2022. During this period it is noted that this was mainly a one way communication from the Complainant continuing his grievance that he had left his job and not been given a job offer by the third party. The Respondent did give the Complainant a number of job offers with other third party employers during this period. In conclusion, as the complaint was submitted in October 2022, the complaint was submitted outside of the 12 months timeframe allowed under Section 41 (quoted above) by the Act and I find I do not have jurisdiction to issue a decision on the substantive complaint.

I find that the complaint was submitted out of time and I do not have jurisdiction to decide on the substantive issue of the complaint.

Discrimination