Complainant

Respondent

Parties

Complainant

Respondent

Anonymised Parties

A Security Officer

A Security Company

Representatives

 Self-Represented

 Michael Francis Forde B.L. instructed by Conor Maguire & Co. Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00058704-001

07/09/2023

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

CA-00058704-002

07/09/2023

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

CA-00058704-003

07/09/2023

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

CA-00058704-004

07/09/2023

The Complainant was employed by the Respondent as a security officer from the 6th January 2022 until he resigned from his employment in April 2023. He referred a number of complaints to the Workplace Relations Commission (hereinafter referred to as “the WRC”) on the 7th September 2023.

CA-00058704-001: Unfair Dismissals Act 1977 (as amended)

The Complainant was employed by the Respondent as a security officer but worked at a Client Company site. He stated that he had been working for the Respondent without issue from the 6th January 2022 until the 1st April 2023. He

On the 1st April 2023 the Complainant was contacted by his line manager, Mr. N, to discuss personal issues about which a Client Company staff members had raised an issue.  The Complainant’s Manager, Mr. McC asked Mr. N to handle the issue as he was of the same ethnic/cultural background as the Complainant and spoke a common language – Punjabi.

A very disputed telephone call between the Complainant and Mr. N took place on the 1st April 2023. In this telephone call various allegations were made against the Complainant based on reported complaints from the Client Company. The complaints were relayed by a Punjabi staff member of the Client Company, a Mr. R.  The Complainant did not accept that Mr. R had made the complaints against him so he contacted him directly. The Complainant forwarded the Whatsapp messages between himself and Mr. R to Mr. N. Mr. N was angry that the Complainant had contacted a staff member of the Client Company directly regarding the issue. Various text messages were exchanged which the Complainant alleged were intimidatory. 

The Complainant was concerned that Mr. N was going to spread information to other members of staff of the Respondent and that rumours would spread in the workplace regarding the Complainant’s hygiene. The Complainant felt harassed and intimidated by Mr. N.

The Complainant contacted his manager, Mr. McC, on the 1st April 2023 to complain about the accusations being levelled against him and to complain about the manner in which he had been spoken to by Mr. N. Mr. McC responded on the 1st April 2023 stating that he would investigate the matter further. On the 2nd April 2023 the Complainant sent a Whatsapp message to Mr. McC stating that he would not be attending work for his shift because he did not feel safe. Mr. McC responded by stating that he would investigate matters further on Monday, 3rd April 2023.

The Complainant referred a dispute under the Industrial Relations Act 1969 to the WRC on the 3rd April 2023.

After the telephone call on the 1st April 2023 the Complainant did not attend for his rostered shifts and on the 6th April 2023 he attended his General Practitioner and was certified as unfit to work due to “Illness” from the 6th April 2023 to the 14th April 2023.

On the 13th April 2023, in response to a message regarding the roster for the following week, the Complainant sent a Whatsapp message to Mr. McC informing him that he did not feel safe working for the Respondent anymore.  The Complainant made no further contact with the Respondent and he commenced employment with a new employer on the 1st July 2023.

Under cross examination the Complainant confirmed that he received the Respondent’s safety policy and staff handbook which included the grievance procedure. He stated that he did not raise his concerns with the manager, Mr. McC, further because he did not feel he would get a positive response. The Complainant stated that Mr. N informed him that even if he did make a complaint Mr. McC would not investigate it. In response to a further question the Complainant accepted that he did make contact with Mr. McC on the 1st and 2nd April 2023 and that he was informed on at least two occasions by Mr. McC that he would investigate the Complainant’s complaint. The Complainant accepted that he never utilised the Respondent’s internal procedures and that he never set out his complaints in writing apart from the Whatsapp messages sent on the 1st April 2023. The Complainant’s last day of work was the 1st April 2023.  

CA-00058704-002: Employment Equality Act 1998 (as amended)

The Complainant confirmed that this complaint was in relation to discriminatory treatment, harassment and victimisation and that he was not claiming discriminatory dismissal.

The Complainant stated that he was harassed and insulted by his line manager, Mr. N, because he was a student, was young and was new to Ireland. He was not allowed to take breaks because he was Pakistani and because he was a student.

In response to questions from the Adjudication Officer the Complainant could not say why he selected “civil status” as a discriminatory ground and was not sure if the treatment he was subjected to was because of his race. He stated that his line manager, Mr. N, was from the same area of Pakistan as the Complainant and that they both spoke Punjabi and that a number of the other security officers were from Pakistan and India and spoke Punjabi. He stated that irrespective of race or age none of the security officers got breaks.  The Complainant confirmed that he did not bring anything to the Respondent’s attention regarding his employment equality rights before his employment ended.

CA-00058704-003: Protected Disclosures Act 2014

This complaint was withdrawn at the hearing.

CA-00058704-004: Organisation of Working Time Act 1997

The Complainant alleged that when working as a security officer he was not provided with cover and did not receive any breaks during his 12-hour shifts.

CA-00058704-001: Unfair Dismissals Act 1977 (as amended)

Evidence of Mr. N

Mr. N gave evidence that he was the assistant manager and that he had been employed by the Respondent for eleven years. He was Pakistani and was from the same town in Punjab as the Complainant. The Complainant was referred to Mr. N  in 2022. It was the Complainant’s first job in crime control and he had a good working record. The Complainant was issued with an employee handbook containing the Respondent’s policies and procedures via email on the 22nd May 2022. Mr. N was the Complainant’s line manager and Mr. McC was the manager.  

Prior to the 1st April 2023 the Respondent had received no complaints regarding the Complainant. On the 1st April 2023 Mr N. put the Complainant on notice that the Respondent had received a complaint from the Client Company regarding the Complainant’s personal hygiene. There were two telephone calls on the 1st April 2023 and Mr. N and the Complainant spoke in Punjabi throughout both calls. The first telephone call was to speak with the Complainant regarding the complaint and the second was to inform the Complainant that he should not have contacted staff members from the Client Company directly regarding the complaint.  Mr. N denied that he used bad or threatening language against the Complainant or that he informed the Complainant that if he made a formal complaint to Mr. McC he would not investigate it.

Under cross-examination Mr. N stated that in his view the telephone call went smoothly and that the Complainant contacted Mr. R because he did not trust that a complaint had been made. The Complainant was fixated on the fact that a complaint had been made against him regarding his personal hygiene as he believed that staff members of the Client Company had never in fact made any such complaint. The Complainant accused Mr. N of making up the complaint. Mr. N confirmed that he contacted the Complainant a second time on the 1st April 2023 because he wanted the Complainant to stop contacting staff members of the Client Company and engaging with them directly.

Evidence of Mr. O’R

Mr. O’R is a Director of the Respondent company. Mr. O’ R became aware on Monday 3rd April 2023 that the Complainant was not happy with the manner in which a complaint from a Client Company had been relayed to him. Mr. O’R stated that the Complainant did not give the Respondent sufficient time to carry out an investigation before he resigned. Having contacted his manager Mr. McC on the 1st and 2nd April 2023 Mr. O’R stated that the next step would have been to speak with the Complainant but he never returned to work after the telephone call on the 1st April 2023. On the 5th April 2023 the Complainant sent a Whatsapp message to say that he was sick and stressed and he was on sick leave from the 6th to the 13th April 2023. Mr. O’R was aware that the Complainant sent a Whatsapp message to Mr. McC on the 13th April 2023 stating that he could no longer work for the Respondent and that there was no further communication from the Complainant after the message from him on the 13th April 2023.  

The Respondent submitted that while the Complainant stated that he resigned and was constructively dismissed on the 1st April 2023 he advanced a contradictory complaint that Mr. McC stated that he would investigate the complaint on the 3rd April 2023 but failed to do so. It was further submitted that it was unreasonable for the Complainant to resign in the manner that he did and that his actions were irrational and rash. The Complainant failed to invoke the grievance procedure or to allow the Respondent an opportunity to trigger its bullying and harassment procedures.

CA-00058704-002: Employment Equality Act 1998 (as amended)

Evidence of Mr. N

Mr. N stated in evidence that he was aware that the Complainant was new to Ireland and on a student visa but that the Complainant’s civil status, age and/or race played no part in the decision to address the complaints made by the Client Company staff members with the Complainant on the 1st April 2023 and that all security officers, irrespective of their civil status, age or race, worked the same hours, had access to the same facilities and were afforded the same compensatory rest breaks. Mr. N denied that the Complainant was not allowed to take breaks because he was Pakistani or because he was a student, young or new to Ireland.     

The Respondent submitted that the omnibus complaints submitted by the Complainant under this Act lacked specific details and were not issues previously raised by the Complainant. The Respondent rejected any suggestion of it engaging in any discrimination in relation to the Complainant’s civil status, age or race or that it victimised the Complainant, discriminated against him in relation to his conditions of employment or engaged in harassment and that the complaints are entirely misconceived.  

CA-00058704-004: Organisation of Working Time Act 1997

The Respondent refuted this complaint in its entirety and sought particularisation of the claim in terms of dates and times.  The Respondent also made reference to the cognisable period of claims under the Organisation of Working Time Act 1997.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

CA-00058704-001: Unfair Dismissals Act 1977 (as amended)

Relevant Law

Unfair Dismissals Act 1977 (as amended)

Section 1 of the Unfair Dismissal Act 1977 (as amended) (hereinafter referred to as “the 1977 Act”) defines constructive dismissal as:

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

The statutory definition of (constructive) dismissal provides for two tests, the contract test and the reasonableness test. The contract test is where the employee argues that he or she was “entitled” to terminate the contract because of the conduct of the employer which constitutes a fundamental breach of the employee’s contract of employment. The second test, which is the reasonableness test, has two elements. First, an employee may allege that while an employer may have acted within the terms laid down in the contract of employment its conduct may be none the less unreasonable. Second, the employee has to show that he or she acted reasonably in terminating the contract of employment in the circumstances. This latter element is a key factor as it requires the employee to have considered all other possibilities prior to taking the step of terminating his or her employment.

The contract test has been summarised in Western Excavating (ECC) Ltd. v. Sharp [1978] I.R.L.R. 27; [1978] QB 761 by Lord Denning MR as:

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

In the circumstances of this case, the Complainant has not identified any breach of his contract of employment on the part of the Respondent and certainly none which would amount to a significant breach going to the root of the contract of employment.

If I am not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test. It is well established law that the burden of proof in a constructive dismissal case is on the employee and the burden is extremely high.

In Cedarglade Limited v. Tina Hliban (UDD1843/2018) the Labour Court noted that "the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such as to justify her terminating her employment" and held that the complainant failed to do so.

In Murphy v. CLI Insurance Services Limited (UD976/2014) the EAT noted that "in a constructive dismissal case the employee must show that because of the employer's conduct he was entitled to resign" and held that the complainant failed to do so.

Similarly, in Burns v. ACM Community Development Society Limited (UD2166/2011), the EAT held that the complainant fell "short of the high bar set to prove constructive dismissal".

The decision in Byrne v. Horwath Bastow Charleston Wealth Management Limited (UD67/2014) sets out the test for proving the very high threshold for constructive dismissal. In this case, the claimant argued her manager had engaged in bullying and harassing behaviour towards her and had raised her concerns with HR. Notwithstanding her discussions with HR, the respondent employer did not believe it was necessary to move the claimant to another reporting line. The claimant chose to resign instead of exhausting the company's bullying and grievance policies claiming that she "had lost confidence in utilising those procedures". The EAT rejected the claimant's case and set out the test for claimants to satisfy in a constructive dismissal case as follows:  "In constructive dismissal cases, the onus is placed on the Claimant to show that her conditions and treatment in the workplace by the Respondent were so intolerable and intractable that she had no other reasonable option but to involuntary resign”.

The burden of proof in a complaint such as this is an onerous one, in that the Complainant must prove not only that the Respondent's behaviour was unreasonable, but also that the Complainant response in resigning was reasonable.

To succeed in a complaint of constructive dismissal it is incumbent on a Complainant to demonstrate their engagement with the Respondent’s internal procedures. In the case of Beatty v. Bayside Supermarkets (UD147/1987) the EAT held that:

“… it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v. Ulster Bank Limited UD474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of his not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

It is for the Complainant to show on the facts of his case that he meets the high threshold as set out above and I am not satisfied that the Complainant has done so. The Complainant failed to exhaust all avenues at workplace level prior to his resignation in April 2023. He did not provide the Respondent with any opportunity to investigate his claim that he was harassed and insulted by his line manager, Mr. N, on the 1st April 2023 prior to resigning and did not provide the Respondent with any opportunity to remedy any issues had any finding supported the Complainant’s claims. I accept the Respondent’s submissions that had the Complainant made use of the internal procedures he would have been provided with the opportunity to have his complaint investigated and for any recommendations arising to be implemented or to appeal any findings within these policies and procedures.

In the particular circumstances of this complaint and upon consideration of all the relevant correspondence, documentation, oral evidence and submissions and the case law referred to above I find that the Complainant has not demonstrated that the Respondent breached his contract of employment or acted so unreasonably that he was justified in resigning and he has failed to establish that his response was reasonable in all the circumstances. Accordingly, I find that the Complainant has not discharged the burden of proving that he was constructively dismissed pursuant to the 1977 Act.

CA–00058704-002: Employment Equality Act 1998 (as amended)

Discrimination for the purposes of this Act

Section 6 (1) of the Employment Equality Acts 1998 (as amended) (hereinafter referred to as “the 1998 Act”) states:

For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated.

Section 6 (2) provides that: as between any two persons, the discriminatory grounds are inter alia:

(b) that they are of different civil status (in this Act referred to as “civil status ground”),

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

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

The Cognisable Period for the purposes of this Act

Section 77(5) of the 1998 Act states:

(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the  complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

 (c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

The Burden of Proof

Section 85A of the 1998 Act provides as follows:

“85A(1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The effect of section 85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.

I note that the Labour Court in Arturs Valpeters v Melbury Developments [2010] 21 ELR 64, widely regarded as the seminal decision on the onerous nature of the burden of proof, states that it:

“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.  All 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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Discrimination on the civil status grounds

In accordance with the Labour Court in the Valpeters decision, cited above, to succeed in a complaint of discrimination on the civil status grounds, the Complainant must show that he was treated differently from his colleagues because of his civil status. The Complainant failed to articulate how he was discriminated on the civil status ground. As the Complainant failed to produce any evidence of discrimination on the civil status ground during the cognisable period, namely in the six months prior to the referral of the complaint to the WRC to support this contention, I find that he has not established a prima facie case of discrimination in respect of this aspect of his complaint.

Discrimination on the age grounds

In accordance with the Labour Court in the Valpeters decision, cited above, to succeed in a complaint of discrimination on the age ground, the Complainant must show that he was treated differently from his colleagues because of his age. Specifically, he must demonstrate that he was not provided with rest breaks because of his age. The Complainant stated in evidence that on the basis of being a student, young and new to Ireland he was not afforded with rest breaks. He gave evidence that there were security officers of a similar age and security officers older than him employed by the Respondent and they did not receive rest breaks either. According to the Complainant, no security officer received his rest breaks. As the Complainant has failed to produce any evidence of discrimination on the age ground during the cognisable period, namely in the six months prior to the referral of the complaint to the WRC to support this contention, I find that he has not established a prima facie case of discrimination in respect of this aspect of his complaint.

Discrimination on the race grounds

In accordance with the Labour Court in the Valpeters decision, cited above, to succeed in a complaint of discrimination on race grounds, the Complainant must show that he was treated differently from his colleagues because of his race. Specifically, he must demonstrate that he was not provided with rest breaks because of his race. When questioned by the Adjudication Officer the Complainant stated that “I am not sure if it was because of race”. As the Complainant has failed to produce any evidence of discrimination on the race ground during the cognisable period, namely in the six months prior to the referral of the complaint to the WRC to support this contention, I find that he has not established a prima facie case of discrimination in respect of this aspect of his complaint.

Discrimination in relation to conditions of employment

In accordance with the Labour Court in the Valpeters decision, cited above, to succeed in a complaint of discrimination in relation to conditions of employment, the Complainant must show that his conditions of employment were different to others because of his civil status, age and/or race. As the Complainant however failed to produce any evidence of discrimination in relation to conditions of employment during the cognisable period, namely in the six months prior to the referral of the complaint to the WRC, I find that he has not established a prima facie case of discrimination in respect of this aspect of his complaint.

Harassment on the civil status, age and/or race grounds

Section 14A of the Employment Equality Act states:

“(1) For the purposes of this Act, where —

(a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is —

(i) employed at that place or by the same employer, …

and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it

…

(b) without prejudice to the generality of paragraph (a) —

(i) such harassment has occurred, and

(ii) either —

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable —

(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’ s employment and, if and so far as any such treatment has occurred, to reverse its effects.

(3) A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.

…

(7) (a) In this section —

(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.”

In accordance with the Labour Court in the Valpeters decision, cited above, to succeed in a complaint of harassment on civil status, age and/or race grounds, the Complainant must show that he was subjected to unwanted conduct related to his civil status, age and/or race.

The Complainant claimed that he was harassed and insulted on the 1st April 2023 by his line manager, Mr. N. Mr. N denied that he harassed or insulted the Complainant whether on the 1st April 2023 or at all. Whilst it was common case that there were two telephone conversations followed by a series of Whatsapp messages between the Complainant and Mr N., I find that the Complainant’s evidence that he was harassed and insulted by Mr. N on the 1st April 2023 because he was a student, young and new to Ireland lacked credibility. I found Mr. N to be a credible witness and I find that on the 1st April 2023 Mr. N, in his capacity as the Complainant’s line manager and in circumstances where Mr. N and the Complainant spoke a common language, sought to address a personal issue with the Complainant which was raised by staff members of the Client company but that the Complainant would not accept that the complaint was made in the first place.  

Taking into consideration the evidence of the Complainant and Mr. N and the documentation submitted by the parties I find that there was no evidence before me to support the Complainant’s contention that the treatment he was subjected was on the basis of his civil status, age and/or race or that the treatment comes within the definition of harassment within the meaning of the 1998 Act. As the Complainant has failed to produce any evidence of harassment during the cognisable period, namely in the six months prior to the referral of the complaint to the WRC, I find that he has not established a prima facie case of discrimination in respect of this aspect of his complaint.

Victimisation

Section 74 (2) of the 1998 Act states:

“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.”

The Labour Court in the case of Department of Defence v. Barrett EDA 1017 stated in relation to victimisation:

“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”

That obligation is given effect in Irish law by section 74(2) of the 1998 Act. The definition of victimisation contained in that section contains essentially three ingredients. It requires that:

1. The Complainant had taken action of a type referred to at section 74(2) of the 1998 Act (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.

It is apparent from the above that there must be a detrimental effect on the Complainant which is caused by him having undertaken a protected act of a type referred to above.

Section 85A of the 1998 Act refers to the burden of proof that rests upon a complainant. It is incumbent upon a complainant to establish facts from which discrimination, and in the instance case victimisation, may be inferred and only then does the burden shift to the respondent.

The burden of proof was considered in the case of A Female Employee v. A Candle Production Company DEC-E2006-035 wherein the Equality Officer stated that:

“The first issue for consideration… is whether the complainant in the present case has established a prima facia case of victimisation. I must therefore consider whether the complainant has adduced evidence to show that she was penalised and secondly, whether the evidence indicates that the pensalisation was solely or mainly occasioned by the complainant having in good faith opposed lawful means an act which is unlawful under the Employment Equality Act.”

In the instant case I must decide, in the first instance, whether or not the Complainant took an action that could be regarded as a “protected act” within the meaning of section 74(2) of the 1998 Act. The Respondent disputed the Complainant’s claim of victimisation and submitted that he did not undertake any of the “protected acts” within the meaning of section 74(2) of the 1998 Act.

It is clear from the wording of “victimisation” in the 1998 Act that a complaint for victimisation must relate to a complaint under the 1998 Act and not a general complaint of victimisation. Taking into consideration the evidence of the Complainant and the witnesses on behalf of the Respondent and the documentation submitted by the parties, while it is apparent that the Complainant was unhappy with the manner in which a complaint regarding a personal issue was handled by the Complainant’s line manager, Mr. N, the Complainant’s grievance was not a complaint of discrimination. As the Complainant in the instant case failed to present any evidence of a protected action he had taken, prior to the referral of the instant complaint, I find that he was not victimised pursuant to section 74(2) of the 1998 Act.

CA: 00058704-003 – Protected Disclosure Act 2014

This complaint was withdrawn at the hearing.

CA: 00058704-004 – Organisation of Working Time Act 1997

This is a complaint under the Organisation of Working Time Act 1997 (hereinafter referred to as “the 1997 Act”) wherein the Complainant alleges that when on duty as a security officer with a Client Company he did not receive any breaks during his 12-hour shifts.  This complaint was submitted on the 7th September 2023.  Therefore, the cognisable period pursuant to the 1997 Act would be the 8th March 2023 to the 7th September 2023. The Complainant’s last day of work with the Respondent was the 1st April 2023 therefore the period  relevant for consideration in this investigation is from the 8th March 2023 to the 1st April 2023.

The Relevant Law

Section 12 of the 1997 Act provides:

“(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1)

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).”

I note at the outset that workers to whom the Employment Regulation Order (ERO) for the security industry refers will, pursuant to section 4(6) of the 1997 Act be exempt by agreement from the provisions of sections 11, 12 and 13 of that Act.

Section 4 of the 1997 Act allows the Minister to exempt by regulation from the application of section 12 any specified class or classes.  In S.I. No. 21 of 1998 (Organisation of Working Time (General Exemptions) Regulations, 1998), the Minister did exempt the security industry from the application of section 12 as follows:

“An activity of a security or surveillance nature the purpose of which is to protect persons or property, and which requires the continuous presence of the employee at a particular place or places, and, in particular, the activities of a security guard, caretaker or security firm.”

The Regulations also provide (at Article 3) that:

“The exemption shall not apply, as respects a particular employee, if and for so long as the employer does not comply with Regulation 5 of these Regulations in relation to him or her.”

Notwithstanding the exemptions, the Regulations qualify them as follows:

“4. If an employee is not entitled, by reason of the exemption, to the rest period and break referred to in sections 11, 12 and 13 of the Act, the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can be reasonably regarded as equivalent to the first mentioned rest period and break.

5. (1) An employer shall not require an employee to whom the exemption applies to work during a shift or other period of work (being a shift or other such period that is of more than 6 hours duration) without allowing him or her a break of such duration as the employer determines.

(2) In determining the duration of a break referred to in paragraph (1) of this Regulation, the employer shall have due regard to the need to protect and secure the health, safety and comfort of the employee and to the general principle concerning the avoidance of risk in the workplace.”

The High Court considered the meaning of the aforesaid qualifying provisions in the circumstances obtaining in the appeal of a security officer, denied scheduled breaks, in the case of Stasaitis v. Noonan Service Group Ltd [2014] IEHC 199. The Court held as follows:

“The requirement of “strict construction” can only mean in this particular context that an interpretation is adopted which most effectively secures the rights of an employee as envisaged by both the Directive and the legislation.  Thus, the Court is satisfied that any arrangements put in place must satisfy the criteria of equivalence and compensation.”

In Stasaitis the Court found that the arrangements enabled the security officer to take breaks though he could not leave the security hut.  He had access to a kitchen in the hut.  The evidence was that he was able to take breaks.

The evidence presented by the Complainant in the instant case is that he did not get breaks while he was working as a security officer in the CCTV room on the Client Company’s premises and that he was “not allowed to leave the control room”. I note the Complainant did not raise this issue with the Respondent at any time during the period he alleges he was unable to take breaks.  I find the claim by the Complainant that he did not receive any breaks to be inconsistent with the evidence adduced by him that he was able to take regular smoking breaks (10-15 times per day),  that he had access to the Client Company’s canteen which he availed of on a number of occasions, that in the control room there were kitchen facilities in a cupboard which included utensils, a kettle and microwave and that while he did not drink tea or coffee there was a vending machine where he could and did buy drinks.   

I find in all the circumstances that the Respondent met their obligation under the 1997 Act to provide arrangements for breaks that satisfy the criteria of equivalence and compensation.  On the basis of the evidence presented to me by the Complainant and the Respondent I am satisfied that the Respondent has ensured that the Complainant had breaks which can be regarded as equivalent to those provided for in sections 11, 12 and 13 of the Organisation of Working Time Act 1997. I therefore find that the complaint is not well-founded.     

CA-00058704-001: Unfair Dismissals Act 1977 (as amended)

For the reasons set out above I find that the within complaint is not well-founded.

CA-00058704-002: Employment Equality Act 1998 (as amended)

For the reasons set out above I find that the within complaint is not well-founded.

CA-00058704-003: Protected Disclosures Act 2014

This complaint was withdrawn at the hearing.

CA-00058704-004: Organisation of Working Time Act 1997

For the reasons set out above I find that the within complaint is not well-founded.