Complainant

Respondent

Parties

Mr John  Moran

Security At Risk Security Group Limited Sar Group

Representatives

Ms Concepta Moran

Mr Warren Parkes Warren Parkes Solicitors

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-00055974-001

07/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00055974-002

07/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00055974-003

07/04/2023

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

CA-00055974-004

07/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00055974-005

07/04/2023

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

CA-00055974-006

07/04/2023

These matters came before the Workplace Relations Commission dated 07/04/2023 as a complaint  submitted under section 77 of the Employment Equality Act, 1998 and complaints pursuant to Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003); section 45A of the Industrial Relations Act, 1946; section 27 of the Organisation of Working Time Act, 1977; and a complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994.  

The aforesaid complaints were referred to me for investigation.  A hearing for that purpose was scheduled to take place on 11/12/2023.

The Complainant at all material times was employed by the Respondent as a security guard.  The Respondent company is a provider of security services to healthcare, public, commercial and construction industries.  The Complainant commenced his employment with the Respondent on 04/07/2015. 

CA-00055974-001

The Complainant claims that he was discriminated against by reason of his age.  The Complainant claims the Respondent treated him unlawfully by discriminating against him in victimising him. 

The Respondent denies the claims as alleged or at all. 

CA-00055974-002

The Complainant’s claim pursuant to Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) relates to confusion around continuity of service and the manner in which this might affect him in terms of a potential redundancy process.

CA-00055974-003

This complaint pursuant to section 45A of the Industrial Relations Act, 1946 relates to an alleged breach of an ERO.

CA-00055974-004

This complaint pursuant to section 27 of the Organisation of Working Time Act, 1977 alleges failure to pay bank holiday entitlement over Easter. 

CA-00055974-005

This complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994 alleges failure on the part of the Respondent to notify the Complainant of changes in the terms and conditions of his contract. 

CA-00055974-006

This complaint pursuant to section 27 of the Organisation of Working Time Act, 1977 alleges non-receipt of breaks during 12-hour shifts. 

The Complainant did not file a written submission and preferred to rely on the narrative set out in the WRC complaint form.  The Complainant filed supporting documentation by way of a brief statement; screen shots of text messages; and copies of medical certificates. 

The Respondent did not file any written submissions.  During the hearing the Respondent opened copies of contracts of employment x 2; S.I. No. 231 of 2017; and copies of a number of email exchanges between the Respondent and the Complainant a number of which post-dated the filing of this complainant with the WRC.   

I have carefully reviewed the Complainant’s WRC complaint form and the written statement from which I have extrapolated the core issues of his complaints and I summarise hereunder.

CA-00055974-001

The Complainant was involved in a physical altercation in the Emergency Department (hereafter the ED) of the hospital on the night of 26 January 2023.  The Complainant was injured as he received a blow above the eye area, and he states he had a bleed.  The Complainant had to wait in the ED for a scan.  The morning after the incident the Complainant met with Ronnie Weston Security Manager Facilities Management in the hospital to complete an incident report form.  The Complainant states Mr Weston mentioned to him that the ED very intense and because of his age he should be placed somewhere else, and he would have to talk to the company managers.  The Complainant submits he was not happy that his age was being brought into the situation and his ability to do his job.

The Complainant submits he went on sick leave for two days and he gave in a doctor’s letter clearing him to return to work that week.  The Complainant submits he was ready and available for work, but he was given no shifts or explanations of why he was being given no shifts.  The Complainant submits he sent messages to managers that were being ignored.  The Complainant asked for a copy of his contract more than once and because of the delay providing the contract the Complainant submits he mentioned to the HR person Darius that his sister studies employment law and she wanted to see his contract.  The Complainant submits he eventually received his contracts.

The Complainant submits he sent text messages to his boss asking about returning to his duties at the ED in the hospital and he submits he questioned why his age, and his ability was being brought up.  The Complainant also questioned why his contract was incorrect as it was showing only 18 months of service when he had 8-9 years there.  The Complainant had a meeting with Oliver Conlan at his request to discuss the various text messages he had sent him.  The Complainant submits none of his questions were answered and he felt threatened about his job and his future position within the company. 

The Complainant submitted an email to HR and copied to management at the Respondent company on 05/03/2023 raising his issues that he felt had not been addressed and seeking clarity on his current job status; whether or not he was being paid his contracted hours as provided for in the ERO; asking when he can expect to be given some shifts; and if there is a formal investigation into the incident in the ED. 

Summary of direct evidence of Complainant on oath

The Complainant outlines what happened in the ED as a result of which he had to get 6 stitches above his eye and a CT scan.  The Complainant states he filled in an incident report the following morning and it was brought up by Mr Weston how intense it is the ED and “his age and all.” 

The Complainant states he got no more shifts in the hospital after that even though he was certified fit to return to work on 07/02/2023.  He states he was removed from the hospital without explanation.  The Complainant states that when he went for the informal chat with Oliver Conlan he felt that he was being blamed for the incident in the ED. 

Summary of cross examination of the Complainant

The Respondent asks the Complainant if it is correct that he had been working in construction at the Children’s Hospital for 4 shifts per week with which the Complainant agrees.  The Complainant confirms that he had been in the ED in the hospital for two weeks when the incident occurred.  The Respondent representative puts it to the Complainant that both he and his colleague had sustained injuries, and this was a matter that was viewed very seriously by the company.  The Complainant is asked if he has ever been involved in such an incident before to which he responds “no” and makes reference to the control and restraint training he would have received when he worked in the security industry in the UK.  The Complainant states he never got any training here.  The Respondent representative puts it to the Complainant that he is a career security officer and nobody is doubting his ability to perform.    

The Respondent representative makes reference to a text from the Complainant on 10 February seeking shifts in the hospital as he needs to be near home in case anything happens to his sister when he is at work.  The Respondent representative makes reference to another text from the Complainant on 13 February further requesting that he would like to stay on working in the hospital for the reasons he had already given them and to let him know if the company is going to let him go back working in the hospital or the reasons noted in writing. 

The Respondent representative asks the Complainant why did he think that by mentioning his age Mr Weston was making an issue of it and he asks if the Complainant can remember the actual words spoken.  The Complainant states he felt he did not get any shifts after what Mr Weston said about his age and he cannot recall the exact words spoken.  The Respondent representative asks if he is claiming he was discriminated against because of his age to which the Complainant responds age was brought up in the control room the morning after the incident. 

The Respondent representative puts it to the Complainant that he is making a quantum leap alleging age discrimination on the grounds of one singular reference to age which was made to which the Complainant replies yes and that it is also in the What’s App messages.  The Respondent puts it to the Complainant again that reference was made to the intensity of working in ED and he presses the Complainant to see if he can recall the exact reference to age to which he comes back with “oh your age.” 

The Respondent representative asks the Complainant about the meeting with Oliver Conlan and asks if he brought up age and the Complainant responds it was he who brought it up.  The Respondent representative asks the Complainant if it remains his preference to go back to the hospital to be near his sister to which he replies yes.  It is put to the Complainant that if he were at a gate for instance it would not be as easy to get cover with which agrees.  The Respondent representative asks the Complainant would be fair to say it is easier to get cover when you are working somewhere with a team around you with which he agrees. 

CA-00055974-002

The Complainant alleges an issue around his contracts and seeks clarification on his years of service for the purposes of redundancy. 

CA-00055974-003

The Complainant alleges he did not seek the minimum rate(s) of pay set out in the Employment Regulation Order (ERO).

CA-00055974-004

The Complainant alleges he did not receive his public holiday entitlement at Easter.

CA-00055974-005

The Complainant alleges he was not notified in writing of a change to his terms and conditions. 

CA-00055974-006

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

CA-00055974-001

Summary of direct evidence of Respondent witness Mr Geoffrey Doyle (hereafter GD) on affirmation

The witness is Operations Director with the Respondent company and he is acquainted with the Complainant having met him a few times over the years.  The witness confirms he was not involved in the incident that happened on site in the ED.  He became aware the Complainant had been injured fairly badly and he had to have stitches and a CT scan all of which was taken very seriously by the Respondent.  GD states there was a judgment call made by management not to return the Complainant to the hospital out of a duty of care to the Complainant himself and to the patients in the hospital.

GD states that working on a construction is not necessarily easier but it is not as intense at all as working in an ED.  GD states the Complainant was offered suitable alternatives by way of work in safer locations.  GD states the Complainant had worked in the hospital before but prior to February he had worked primarily in construction.  The witness clarified the job titles of other staff in the company Ronnie Weston is the GM in the hospital site.  Darius is the HR manager and Oliver Conlan is a contracts manager who oversees a number of sites.

GD states in reference to the meeting with Oliver Conlan on 15 February and the follow up with Ronnie Weston that if age was mentioned it would have been in the context of highlighting ED was a dangerous place to be working and if he had been involved, he never would have sent him to work in the ED in the first place.    

Summary of cross-examination of Respondent witness GD

Ms Moran asks why her brother was removed from the hospital to which GD replies because he is in his early 60s, involved in a serious incident, and it was thought it would be an act of stupidity to put him back there.

Ms Moran puts it to the witness that the Complainant was left out of work for 12 weeks and that it was disgraceful to which GD replies yes that was disgraceful and he should have got his hours.  Ms Moran asks the witness why the Complainant only received 24 hours to which the witness refers to the ERO and he concedes the Complainant did not get paid as he should have.

Re-direct of Respondent witness GD

GD confirms there are 55 security guards between the age of 60 and 70 in the Respondent company and of this number only 2 are located in an ED and that is in Waterford where they have been for 20 years.

Management took a decision as part of their policy in their examination of the role after an incident such as that in which the Complainant was involved through no fault of his own was that the ED was not the best place for him to work.  It was decided construction was the best location for him and it took almost 10 weeks to get him back working. 

CA-00055974-002

The Respondent confirms there is continuity of service from when the Complainant commenced in 2015 to the present day.   

CA-00055974-003

This claim is conceded by the Respondent and the amount owing is €3,715.00 gross. 

CA-00055974-004

This claim is conceded by the Respondent and the amount owing is €12.65 x 12 x 2 = €303.60 gross. 

CA-00055974-005

The Respondent has provided clarity on this matter in recent times by email of 13 April 2023 which provided that as has happened in the past throughout his employment his work has changed from SAR to MCR and vice versa depending on which sites he is on and this has been always been discussed with him.  Two of the relevant contracts were exhibited at hearing. 

CA-00055974-006

The Respondent refutes this claim in this entirety and sought particularisation of the claim in terms of dates and times.  The Respondent also make reference to the cognisable period of claims under the Organisation of Working Time Act, 1997. 

In conducting my investigation, I have reviewed the relevant submission and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.    I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

CA-00055974-001

The Complainant claims that he was discriminated against by reason of his age.  The Complainant claims the Respondent treated him unlawfully by discriminating against him in victimising him. 

The Relevant Law

The legal framework prohibiting discrimination on nine specific grounds is set out at section 6(1) of the Employment Equality Act 1998-2015 (“the Act”).

“…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 sub-section (2), in this Act, referred to as ‘the discriminatory grounds…”

The wording of section 6 “would be treated” allows for the use of hypothetical comparators in appropriate circumstances of discriminatory treatment, other than in relation to equal pay where an actual comparator is required. 

In cases involving less favourable treatment, a comparator can be actual or hypothetical and in this I am guided by Henry Denny v. Rohan [EDA1310] where the Labour Court followed the decision of the House of Lords to that effect in Shamoon v. Chief Constable of the RUC [2003] IRLR 258.  Where the treatment complained of is because of a protected characteristic, a hypothetical comparator is a person who does not have that characteristic. 

At sub-section (2)(f), the “the age ground” is listed as one of the nine discriminatory grounds.  The Complainant’s case is that he was discriminated against on the age ground when, after a physical altercation in the ED of a hospital where he was employed, the facilities manager on site referred to his age when he was assisting the Complainant to complete the incident report form.  The Complainant claims he was provided with no shifts since the night of the incident in the hospital and he further claims this is a result of his age being mentioned and he brought this mention of his age  to the attention of his employers.   

The Burden of Proof:

Section 85A of the Employment Equality Act imports the burden of proof requirement to be established by both a complainant and a respondent.  The section shifts the burden of proof to the respondent where facts are established by a complainant “from which it may be presumed that there has been discrimination in relation to him or her”. 

Section 85A (1) provides as follows:

—(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.”

This requires a complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him.  If he succeeds in so doing, then, and only then, is it for the respondent to prove the contrary.  The Labour Court has consistently held that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to a respondent.  “Prima facie” evidence is evidence which in the absence of any contradictory evidence would lead any reasonable person to conclude that a discrimination had occurred.

In Margetts v. Graham Anthony & Company Limited [EDA038] the evidential burden which must be discharged by a complainant before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows:

“The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place.  The appellant must, on the balance of probabilities, prove those facts from which such inferences can be drawn.  When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show, on the balance of probabilities, that it did not discriminate against the appellant.  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.” [emphasis added]

The Labour Court in the case of Melbury v. Valpeters [EDA0917] held as follows in its consideration of section 85(A):

“…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.  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, 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.”

In the context of this adjudication hearing, the responsibility is on the complainant to show that, based on the primary facts, he has been treated less favourably than a younger person.

I accept a comment about the Complainant’s age was made on the basis of the evidence as presented by the Complainant albeit I remain unclear as to the exact words spoken because the Complainant could not recall apart from “his age and all”.   

As set out by the Labour Court in Valpeters in order to establish that discrimination has occurred, I must find that, in respect of the delay the Complainant experienced in being provided with shifts in the 10 weeks after the incident in the ED of the hospital, “there was evidence of some weight from which it could be concluded” that the Complainant was discriminated against because of his age. 

When considering the primary facts adduced by the Complainant, I must take into consideration the Respondent’s contrary evidence when determining whether the burden of proof should shift to the Respondent.  The Labour Court in the case of Dyflin Publications Limited v. Spasic [EDA 0823] held as follows:

“…the Court should consider the primary facts which are relied upon by the complainant in their proper context.  It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant.”   

The Relevant Facts

The Complainant’s primary case is grounded on what he terms a refusal by the Respondent to provide him with work for 10 weeks after the incident in the ED of a hospital because of his age.  The Complainant has grounded his claim of age discrimination in a comment he alleges was made to him by the person assisting him to complete an incident report form following an incident in the ED of the hospital.    

As set out by the Labour Court in Valpeters to establish if discrimination has occurred, I must find that in respect of the non-provision of work to the Complainant for a 10-week period, “there was evidence of weight from which it could be concluded” that the Complainant was discriminated against because of his age. 

I note the Complainant was certified fit to return to work by his doctor from 07/02/2023.  I note a text from the Complainant 10/02/2023 requesting that he be provided with work in the hospital as he needed to be near home in case anything happened to his sister.  I note another text from the Complainant on 13/03/2023 outlining that he would like to stay working in the hospital and reiterating the reason for same.  This text was responded to by Oliver Conlan requesting that the Complainant attend the office to “sort things”. 

On 15/02/2023 the Complainant confirms attendance and asks if he will be paid his contract hours as he has been available for work and no one has been in touch with him regarding his shifts and being given any work due to Ronnie Weston “bring in to question my ability to carry out my duty in James hospital cozed my age was brought up when I was getting him to doing incident report.”   I note the aforesaid meeting took place on 16/02/2023 and on 23/02/2023 the Complainant texts advising it has been over a week now since the meeting and still no work.  On 02/03/2023 Oliver Conlan texts the Complainant to ask him to check that his PSA and his safe pass are up to date. 

In the intervening period I note there was a number of text exchanges between the Complainant and the Respondent requesting copies of his contracts as he had lost them and also querying various issues on continuity of service in relation to MCR / SAR. 

I note on 10/03/2023 the Complainant’s sister on his behalf refused shifts he had been offered as they were 15-hour shifts over three consecutive days and it was stated on the Complainant’s behalf by his sister that those shifts did not allow for the 11-hour daily rest period and he is eager to return to work “as long as the shift allows for the daily rest periods and breaks”.  In this email the Complainant’s sister also requests the issues she had raised in her email of 05/03/2023 to be addressed. 

I note there were numerous email exchanges between the Complainant’s sister on his behalf and the Respondent involving shifts that had been offered in early April and seeking clarification as to whether these shifts were with SAR or MCR.  The within complaint was filed with the WRC on 07/04/2023.

I note from the direct evidence of the Respondent witness that in fact the Complainant should never have been placed in the ED in the first instance.  I note that there had been a requirement to remove the Complainant from the previous site on which he had been working over a long period at the request of the client due to an incident which is not the subject of this hearing and on which nothing turns for the purposes of this investigation.  The Complainant was at that time provided with shifts in the ED where he remained for almost two weeks until the incident occurred.  I note there was no evidence of a delay adduced at hearing in regard to the aforesaid placement in the ED following the Complainant’s removal from the previous site.    

In direct evidence the Respondent outlined that the company employs 55 security guards between the age of 60 and 70 and among this age cohort only 2 are rostered in an ED in Waterford where they have been in situ for 20 years.  I note that unlike other forms of discrimination, different treatment on the grounds of age can be justified and shall not constitute discrimination provided that the difference may be objectively and reasonably justified by a legitimate aim and the means of achieving that aim are proportionate and necessary.  However, the Respondent did not engage with or advance its case in this regard apart from providing the above statistical data.    

Mindful of the direction provided by the Labour Court in Dyflin Publications Limited, I have carefully considered and taken into account all the evidence from both parties when considering section 85A of the Acts as it is applied in this case and I am satisfied that the Complainant has established a prima facie case that he was treated less favourably on account of his age than a younger employee would have been.  There is no doubt the Complainant was subjected to the run around by the Respondent after the incident in the hospital.  It is my finding there were very significant communication failures by the Respondent.  I do not accept as credible that it could have taken 10 weeks to find work for the Complainant and for him to be put back on the roster somewhere when clearly there appeared to have been no such delay when he was removed from a site at the client’s request and rostered for the ED in the first instance and if there was such delay it was not canvassed at hearing.   

For completeness, I do not base my decision solely on the words alleged to have been spoken regarding age which in and of themselves may not have been deemed sufficient to infer discrimination.  The words alleged to have been spoken assume significance when considered in an overall context.   I base my decision on the ensuing events and the totality of the circumstances as they evolved on the basis of the evidence adduced by both parties.    

The Complainant was waiting for 10 weeks to be put back on the roster and I can only conclude that this was because of his age in the absence of any meaningful contradictory evidence that would lead me to conclude that discrimination had not occurred.   The reason put forward by the Respondent that the Complainant was not rostered back in the ED as he had requested was as result of a judgment call by management out of a duty of care to the Complainant himself and to the patients in the hospital.  I accept this may be a commendable sentiment but it does not provide a reason for the delay in providing alternative work in any location at all for the Complainant during the 10 weeks that followed.          

I note and I have carefully considered the statistical data provided by the Respondent that there are 55 employees in the 60-70 age cohort among which only 2 are rostered in an ED.  It was not advanced by the Respondent that this is a specific company policy and there was no evidence adduced of such a policy documented anywhere if indeed it is company policy.  For completeness, I could not be persuaded by this “policy” even if it does exist in the absence of a failure to justify this difference in treatment objectively and reasonably and by means that are proportionate and necessary as required under the Act. 

I have no doubt and I accept the Respondent subjectively believes they are justified in having a strategy or a policy that provides the age cohort of between 60 – 70 will not be rostered in an ED.  However, I note this strategy or policy has already been breached as there are 2 from this age cohort rostered to an ED in Waterford and it was breached when the Complainant was rostered to the ED in the first instance in the instant case. 

For the above reasons, I find that the Complainant, on the balance of probabilities, has established a prima facie case of discrimination for the purposes of this Act on the grounds of age in relation to him.  I have come to this conclusion because the available evidence when viewed in its proper context supports an inference of discrimination on the age ground which the Respondent has failed to rebut.  I find the Complainant has discharged the burden of proof which leads to a presumption that discrimination has occurred and I am satisfied the Respondent has not rebutted this presumption.

Accordingly, I find this claim to be well-founded. 

Redress

In assessing redress, I note that section 82 allows for an order for compensation for the effects of discrimination.  I award redress of €5,000.00.  This sum is awarded not only to compensate the Complainant for the effects of the discriminatory treatment but also to dissuade the Respondent from discriminatory acts into the future. 

CA-00055974-001

Victimisation

The Complainant alleges victimisation in his WRC complaint form albeit he did not advance or engage much with this element of his complaint at hearing. 

For completeness I address this claim hereunder on the basis of the evidence adduced at hearing as there was a significant degree of overlap in relation to all the complaints. 

Victimisation is defined at s.74(2) Employment Equality Acts as follows:

(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.

The Labour Court has held that the definition of victimisation contained in that section contains essentially three ingredients and in the case Department of Defence v Barrett [EDA 1017] the Court held that in order to make out a claim of victimisation under the Act it requires that: -

“(a) the Complainant had taken action of a type referred to at section 74(2) of the Acts (a protected act),

(b) the Complainant was subjected to adverse treatment by the Respondent, and,

(c) the adverse treatment was in relation to the protected act having been taken by the Complainant.” 

Victimisation is a stand-alone cause of action which requires specific proofs in that there must be evidence that the alleged adverse treatment occurred as a reaction to any of the situations listed at (a) to (g) of section 74(2). 

I must now decide if the Complainant was victimised for having committed an act that was protected by section 74(2) of the Employment Equality Acts.  In order to maintain a claim of victimisation within the meaning of the Employment Equality Acts, the Complainant must first show that he took one or more of the actions listed under section 74(2) of the Acts.  It is only when he shows he took such an action that he can seek to establish a connection between his action and the adverse treatment complained of.  

From the evidence adduced by the Complainant I am satisfied he made a complaint of discrimination as provided for in section 74(2)(a).  In the instant case the basis of the alleged adverse treatment is the delay of 10 weeks in getting the Complainant back to work after the incident in the ED.  In the absence of evidence to the contrary from the Respondent I am satisfied that this delay can reasonably be attributed to the raising of a complaint of discrimination by the Complainant to the Respondent. 

Accordingly, I find I this complaint of victimisation to be well-founded.

CA-00055974-002

There was much confusion on the issue of continuity of service in terms of the Complainant’s service with the Respondent company.  It was unequivocally confirmed to the Complainant that his continuity of services remains intact with a start date of on or around 04/07/2015 as set out in his WRC complaint form. 

I note his contract of employment signed by the Respondent on 13/04/2023 provides an initial start date of 24th June 2015.  Accordingly, I conclude this complaint is not well-founded. 

CA-00055974-003

The Complainant alleges he did not receive the minimum rate(s) of pay set out in the Employment Regulation Order (ERO) under the minimum hours of employment. This claim is conceded by the Respondent.  I find this complaint to be well-founded and I order the Respondent to pay the Complainant in the amount of €3,715.00 gross based on the calculation of 10 weeks x 24 hours. 

I order the Respondent to pay the Complainant compensation in the amount of €500.00 for the breach of the Complainant’s statutory rights. 

CA-00055974-004

The Complainant alleges he did receive his public holiday entitlement.  This claim is conceded by the Respondent.  I find this complaint to be well-founded and I order the Respondent to pay the Complainant in the amount of €12.65 x 12 x 12 = €303.60.   

I order the Respondent to pay the Complainant compensation in the amount of €100.00 for the breach of the Complainant’s statutory rights. 

 CA-00055974-005

The Complainant alleges he was not in writing notified of a change to his terms of employment.  During hearing I was provided with copies of the relevant contracts by the Respondent together with copies of emails that postdate the filing of this complaint to the WRC on 07/04/2023.  It is settled law than an Adjudication Officer may only consider complaints made by a Complainant within the prescribed time limits of the relevant legislation and notified on the original complaint form.  For completeness I have carefully reviewed the contracts provided including the contract issued which post-dates the filing of this complaint and I am satisfied there is no change to any of the essential terms therein.   Accordingly, I find this complaint to be not well-founded.

CA-00055974-006

This is a complaint under the Organisation of Working Time Act, 1997 where the Complainant alleges that when on duty as a security officer on some sites he was not provided with cover and did not receive any breaks during his 12-hour shifts.  This complaint was submitted on 07/04/2023.  Therefore, the cognisable period pursuant to the Act would be 08/10/2022 to 07/04/2023.   The months relevant for consideration in this investigation are October and November 2022.   

The Relevant Law

Section 12 of the 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 Organisation of Working Time Act, 1997 be exempt by agreement from the provisions of sections 11, 12 and 13 of that Act. 

Section 4 of the Act of 1997 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. [emphasis added]

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 the circumstances obtaining in Stasaitisthe 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 on a construction site and he states he was “never away from his post”.  I note from the evidence adduced the Complainant brought a packed lunch to work with him every day and he ate it albeit he states he had to leave the post to get hot water.  I note also he was able to leave his post for smoking breaks.  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 smoking breaks [emphasis added].    

Notwithstanding, I cannot find in all the circumstances that the Respondent met their obligation under the Act of 1997 to provide arrangements for breaks that satisfy the criteria of equivalence and compensation in the absence of any evidence from the Respondent regarding same.  I am not 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 on the basis of the evidence presented to me.  I note in particular the fact the Complainant had to leave his post to get hot water.  I conclude that having no access to hot water falls short of arrangements that would satisfy the criteria of “equivalence and compensation” as considered by the Labour Court in Stasaitis where access to a kitchen in the hut satisfied the aforesaid criteria. 

I find in the circumstances that the Respondent has failed to meet their obligation under the Act of 1977 to provide arrangements for breaks that satisfy the criteria of equivalence and compensation. 

Accordingly, I find this complaint to be well-founded.  I order the Respondent to pay compensation to the Complainant of €200.00 in respect of this breach which I consider to be just and equitable in all the circumstances whilst taking into account the relevant cognisable period.    

Age discrimination; ERO; victimisation; breaks;