Complainant

Respondent

Parties

Zhihua  Yuan

Gaffney Mechanical Limited

Complainant

Respondent

Anonymised Parties

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Representatives

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-00059147-001

29/09/2023

An issue arose at the outset as to whether the Complainant was ever employed by the Respondent. I stated I would hear the evidence and submissions and reserve my decision.  

The Respondent also stated that the complaint was out of time and beyond the prescribed six month time limit. The Complainant stated that he didn’t discover the discrimination and/or that he was  working illegally until August 2023 since his work permit was only for the Respondent company and not another company for whom he worked in 2023. The Complainant maintained that the Respondent arranged for him to work for this other company.

The Complainant stated that he was discriminated against by the Respondent on the race ground and that he was treated unlawfully and victimised. He stated that on 8 April 2022 he signed an employment contract with the Respondent. Accordingly, the Complainant maintained that he was employed by the Respondent from April 2022 in accordance with the contract which he had signed.

The Complainant stated that he obtained a work permit and work visa in or around October/November 2022 and that he arrived in Ireland on 31 December 2022. Under questioning the Complainant accepted that he never worked for the Respondent and that he was never paid by the Respondent. In his submissions he stated that:

“GAFFNEY MECHANICAL LIMITED did not hire me in accordance with the employment contract, completely failed to fulfil their employer responsibilities, and discriminatively arranged for me to engage in illegal employment at another company where my work was not protected by the law….”

The Complainant stated that after he came to Ireland the Respondent refused to arrange a job for him. He stated that the Respondent provided him “with false job invitations and deceptive labor contracts”. He stated that after 50 days he commenced working for another company.

The Complainant stated that he came to Ireland through an “intermediary company” which charged him fees. He outlined his complaints about this intermediary company including  financial losses he had incurred. He also outlined his complaints in relation to his dealings with work permits for the Respondent and another company.

Whilst not identified on his Complaint Form, in his submissions to the WRC, the Complainant also sought compensation for breaches of the Protected Disclosures Act [2014-2023].

It is the position of the Complainant that he was discriminated against and treated unfairly as a result of which he is seeking compensation for the financial loss he has suffered and the impact on his health.

The Respondent outlined its business. The Respondent stated that it was a stand alone business entity and it rejected the Complainant’s assertions with regard to its purported dealings on behalf of another company and with regard to the matter of work permits and any alleged illegality on its part.

The Respondent stated that it had applied to the Department of Enterprise Trade and Employment (DETE) – through a recruitment agency – for work permits for a number of workers. The Respondent stated that as part of the process it was required to submit to the DETE a signed statement of the main terms and conditions which would attach to the employment. The Respondent stated that the Complainant’s employment was due to commence on 20 June 2022 however, he did not arrive in Ireland until 31 December 2022. The Respondent stated that as a consequence, the Complainant never became an employee of the Respondent and that it did not enter into any contractual relationship with the Complainant  after he arrived in Ireland.

The Respondent stated that by December 2022 the economic situation had changed for its business, that it no longer required the number of workers it originally sought and consequently, only employed the first five workers who arrived. The Respondent stated that it did not make any direct contact with the other workers with regard to alternative work but that it provided details of subcontractors to the recruitment agency in an effort to assist those workers.

The Respondent’s Payroll Officer gave evidence that she had never come across the Complainant and that he was never put on the Respondent’s payroll.

The Respondent’s Commercial Director gave evidence that the contract was issued to facilitate the Complainant getting a work permit and that the issuing of contractual terms was “part and parcel” of the employment permit process. He stated that after a prospective employee is interviewed a job offer may follow – but that this did not happen in the case of the Complainant. The Complainant questioned the Commercial Director on why he was offered a “fraud” contract which was disputed and rejected by the Witness on the basis that the contract was necessary to facilitate the work permit.

The Respondent introduced a representative of the recruitment agency as its third Witness. The third Witness outlined the process of recruiting workers to come to Ireland from the Complainant’s country including the various documentation required such as contractual terms. The third Witness stated that if this documentation was not furnished the requisite permit would not be granted. The third Witness stated that the Complainant came to Ireland in December 2022, that he needed a PPS number, Safe Pass and manual handling certificate and that at the time the Respondent stated it had no available position for him. The third Witness stated that other workers from the same country had obtained work with the Respondent. He stated that he explained matters to the Complainant and considered the latter understood the situation.

It is the position of the Respondent that the Complainant was never an employee and that he had not made out a prima facie case of discrimination on any of the nine grounds. The Respondent also rejected that it was in breach of the Protected Disclosures Act [2014-2023] on the basis that the Complainant had not made out any case in that regard.   

Section 2 of the Employment Equality Act [1998-2022] provides as follows:

“2.—(1) In this Act, unless the context otherwise requires—……..

"contract of employment" means, subject to subsection (3)—

(a) a contract of service or apprenticeship, or

(b) any other contract whereby—

(i) an individual agrees with another person personally to execute any work or service for that person, or

(ii) an individual agrees with a person carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 to do or perform personally any work or service for another person (whether or not the other person is a party to the contract),

whether the contract is express or implied and, if express, whether oral or written;”

"employee", subject to subsection (3), means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment …..

“employer”, subject to subsection (3), means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment….”

Section 6 of the Employment Equality Act [1998-2022] provides:

6.—(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i)               exists,

(ii)              existed but no longer exists,

(iii)            may exist in the future, or

(iv)            is imputed to the person concerned…….”

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

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

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

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

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

(e) 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”),

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

(g) 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”),

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

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).

Section 8 of the Employment Equality Act [1998-2022] provides as follows in relation to discrimination by employers:

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.”

Section 85A of the Employment Equality Act [1998-2022] provides that a complainant must set out a prima facie case of discrimination – ie he/she must establish facts from which discrimination may be inferred. Where a complainant discharges this burden, the onus is then shifted to the Respondent to prove to the contrary. The Labour Court considered the extent of the evidential burden that a complainant must discharge before a prima facie case of discrimination can be made out in Southern Health Board v Mitchell [DEE011 [2001] ELR 201]. In that case it was held that the first requirement is that the complainant must establish on the balance of probabilities, the primary facts from which it may be presumed that the principle of equal treatment has not been applied to them. In Melbury Developments Ltd v Valpeters [2010] ELR 64 it was held that "mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn."

Sections 3, 5 and 12 of the Protected Disclosures Act [2014-2023] state as follows:

“3 ­- “worker” means an individual who—

(a) is an employee,

(b) entered into or works or worked under any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertook to do or perform (whether personally or otherwise) any work or services for another party to the contract for the purposes of that party’s business,

(c) works or worked for a person in circumstances in which—

(i) the individual is introduced or supplied to do the work by a third person, and

(ii) the terms on which the individual is engaged to do the work are or were in practice substantially determined not by the individual but by the person for whom the individual works or worked, by the third person or by both of them….”

“5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 1, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 8, 9 or 10…..”

“12. (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.”

Having considered all the evidence, documentation and submissions in this case I have come to the following conclusions:

·        Whilst the Statement of Main Terms of Employment was signed by the Complainant on 8 April 2022 and by the Respondent on 13 April 2022 and whilst it provided that the Complainant’s employment was to begin on 20 June 2022, I am satisfied that the Complainant did not arrive in Ireland until 31 December 2022 and that he never worked for the Respondent nor was ever paid by the Respondent;

·        There was a letter of offer of employment to the Complainant from the Respondent of 21/9/2022. However, for the purpose of this decision, that letter does not alter my finding that the Complainant never worked for nor was ever paid by the Respondent;

·        As the Complainant was never employed by the Respondent the issue of an employment end date did not arise. In terms of prospective employment, the Complainant Form was received by the WRC on 29 September 2023 which was over a year after the Complainant’s employment was due to start on 20 June 2022;

·        The Respondent hired 5 workers at the end of 2022. In all the circumstances, I am satisfied the Complainant has not made out a prima facie case that he was discriminated against or victimised or not employed as a result of discrimination on any of the grounds set out at Section 6 of the Employment Equality Act [1998-2022];

·        I am satisfied the Complainant has not established that he was a worker or an employee for the purposes of the Protected Disclosures Act [2014-2023]; 

·        Whilst the Complainant expressed significant complaints about the work permit system and the financial costs of seeking employment in Ireland, I am satisfied these are matters outside my jurisdiction.

Section 79 of the Employment Equality Act [1998-2022] requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. For the reasons outlined this complaint is not well founded.

Discrimination