Complainant

Respondent

Parties

Thanushan Rajah

Cregg Recruitment

Representatives

Campbell International HR Consultants

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 21 Equal Status Act 2000

CA-00042675-001

24/02/2021

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Employment Permits Act 2006

CA-00042675-003

24/02/2021

On 24 February 2021, the complainant referred the within complaints against the respondent to the WRC.

On foot of complaint validation checks, the WRC identified processing issues with the complaints and sought clarification from the complainant in 2021/2022, including on the complaints the complainant wished to pursue. 

The complaints failed to progress until the WRC actioned progression and the respondent was notified of the complaints against it in April 2024.

The respondent disputed the claims against it.

The complaint referred to the WRC seeking adjudication under the Equal Status Act 2000 was of discrimination on grounds of race and bullying at work.  The complaint seeking adjudication under Schedule 2 of the Employment Permits Act 2006 was of penalisation for making a complaint.

In a statement submitted the week preceding the hearing date, the complainant detailed key points for consideration at the hearing.  The complainant submitted that the termination of his employment in July 2022 was unfair and that he was singled out for dismissal after complaining about harassment.  In his statement, the complainant highlighted his concerns about the respondent’s investigation of his complaints in the workplace and the report that issued in February 2021.

The complainant confirmed at the hearing that he held a resident permit at the relevant time.  In response to my questions about undertaking protected acts within the meaning of section 26(3) of the Employment Permits Act 2006, the complainant confirmed that he had not undertaken any of the acts set out therein.

The complainant experienced issues after he returned to work following the respondent’s investigation of his complaint of racial harassment.

The complainant was employed by the respondent under fixed-term contracts of employment as a mechanical operator and placed to work at a client site.

A complaint under the Equal Status Act 2000 does not relate to the respondent and the complainant’s employment with it. 

The respondent investigated a complaint of racial harassment made by the complainant in January 2021 in accordance with the relevant Code of Practice and the respondent’s bullying and harassment policy.   The complaint was properly investigated, and the investigation properly conducted.  The investigation concluded in February 2021 that the complainant had not been harassed.

The complainant has not established a protected act or detriment. 

The complaints relate to the complainant’s employment with the respondent.  There is no basis for the complaints under the Equal Status Act 2000 and Schedule 2 of the Employment Permits Act 2006.

On 24 February 2021, the complainant referred to the WRC complaints against a named entity under Schedule 2 of the Employment Permits Act 2006 (the “2006 Act”) and section 21 of the Equal Status Act 2000 (the “2000 Act”). 

Schedule 2 of the 2006 Act provides for the referral of a complaint to the WRC for penalisation under section 26(3) of the Act, which provides as follows:

“An employer shall not penalise or threaten penalisation against an employee for- 

(a) making a complaint to a member of the Garda Síochána or the Minister that a provision of the Act of 2003 or this Act is not being complied with,

(b) giving evidence in any proceedings under the Act of 2003 or this Act, or

(c) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.”  

The 2000 Act is concerned with the promotion of equality and prohibition of discrimination, harassment and related behaviour in connection with the provision of services and other opportunities to which the public or a section of the public has access.

In March 2021, the complainant changed the details of the respondent to his complaints.

The complainant provided the WRC with varying details for the respondent to his complaints on 2 March 2021, 16 July 2021 and 22 December 2021.

In communications from the WRC of 19 March 2021, 13 July 2021 and 4 February 2022, the WRC informed the complainant of discrimination covered by the Employment Equality Acts and discrimination covered by the Equal Status Acts and sought clarification from the complainant under which legislation he wished to pursue his complaint to enable processing of his complaint.  The complainant did not respond to the WRC on this matter.

I find that the information provided by the complainant to the WRC in March 2021 regarding the respondent to his complaints was the trading name of Cregg Labour Solutions Ltd, which entity was the complainant’s employer during fixed-term periods of employment from 2020 to 2022.

The respondent fully disputed the complaints against it.  It submitted that it had properly investigated a complaint of harassment made by the complainant in January 2021 and that a final report had issued to the complainant in February 2021.  It further submitted that there was no basis for the complaints under the 2006 Act and 2001 Act.

On 18 September 2024, in the week preceding the hearing, the complainant submitted to the WRC a written statement with key points he wanted addressed at the adjudication hearing.  It is of note that the statement was submitted after the complainant had received the respondent’s written submissions, which submissions put in issue the application of the 2006 Act and 2000 Act, however the complainant failed to address this in his statement and at the hearing.  The key points raised by the complainant in the September 2024 statement referred to an unfair termination of employment in July 2022 and issues with how the respondent had conducted the January / February 2021 investigation and the final report that issued.

In response to questions at the hearing regarding the nature of his complaints, the complainant reiterated the issues outlined in the September 2024 statement regarding the respondent’s conduct of an investigation and an unfair termination of employment.  The complainant further stated that he experienced issues after his return to work following the investigation and report. 

I have established that the complainant agreed with the respondent a return-to-work date of 15 March 2021 after the report of the investigation issued. 

I am satisfied that the nature of the issues raised by the complainant, which he sought to advance at the hearing on 26 September 2024, are not the same as the nature of the complaints referred to the WRC in February 2021.  Furthermore, I do not have jurisdiction to deal with an alleged unfair termination of employment having regard to statutory timeframes and I am unable to identify the legislative basis for the complainant’s complaints regarding the respondent’s investigation and report.

The complainant did not at the hearing pursue a complaint of discrimination on grounds of race.  The complainant was asked about undertaking a protected act as set out in section 26(3) of the 2006 Act and stated that he had not undertaken any of the acts in question.  Regarding the penalisation complaint, on the complainant’s own account, issues occurred after the complainant’s return to work, which I am satisfied was after the referral of the complaints to the WRC in February 2021.  I have also had regard to the fact that the complainant’s employment with the respondent terminated in July 2022.

I find that the complainant’s failure to respond to the WRC’s requests for clarification in 2021 and 2022 and the passage of time are fatal to the complaints the complainant sought to pursue at the hearing.  The complainant fell out of contact with the WRC after December 2021 until action was taken by the WRC and it scheduled a hearing for September 2024.  The scheduled hearing resulted in the complainant’s submission of the written statement in September 2024. 

When asked why he had not clarified his complaints with the WRC, the complainant stated that it was because his focus had been on personal matters at the time.

There was in fact no communication from the complainant to the WRC after 22 December 2021 until he submitted a written statement on 18 September 2024, the week before the scheduled hearing.

The complainant did not pursue the complaints referred under Schedule 2 of the 2006 Act and section 21 of the 2000 Act, and there was no evidence before me to ground complaints under either of these Acts.

I do not have jurisdiction to adjudicate on complaints raised in the written statement of September 2024, which are different in nature from the complaints originally referred to the WRC and are statute-barred or without legislative basis.

I find that the complaint referred under Schedule 2 of the Employment Permits Act 2006 is not well founded.

I find that there was no discrimination in contravention of the Equal Status Act 2000, as amended, and I find that the case referred against the respondent under the 2000 Act is not well founded.

Equal Status Act 2000 – Schedule 2 Employment Permits Act 2006 – Nature of complaints – Legislative basis - No clarification provided – Delay – Time limits