Complainant

Respondent

Parties

Hamza Tanvir

Bidvest Noonan (ROI) Limited

Representatives

Represented himself 

Brian Kavanagh, IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00064790-001

16/07/2024

The complainant started working with the respondent in September 2015.  Apart from a few months after he joined the company when he worked in the Swan Centre in Rathmines, he worked for almost 10 years as a security officer in Dun Laoghaire Shopping Centre.  When he finished up on June 26th 2024, he was a supervisor.

On the form on which he submitted this complaint to the WRC, the complainant claims that he was discriminated against because of his race.  He is from Pakistan.  He claims that he was treated less favourably than another supervisor, who had an arrangement to work from 8.00am until 7.00pm four days a week, so that he could get a train home.  The complainant claims that, as a result of this arrangement for his colleague, he had to work a mixed shift and that he regularly had to work until 9.15pm to cover the closing of the shopping centre.  He claims that this is unfair as both men are supervisors and that they should be treated equally.

At a meeting with the operations manager, Mr Devlin, and the training manager, Ms Arlenda, on June 26th 2024, the complainant claims that he was forced to resign.

The complainant explained that, when he filled in the WRC complaint form, he assumed that he could make a complaint about discrimination because his colleague had a more favourable roster.  He assured me that he did not feel that he was being treated badly because of his nationality.

In his evidence at the hearing, the complainant referred to a meeting on May 8th 2024, when Mr Devlin and Ms Arlenda came to the shopping centre to do training with the team of security officers.  The other supervisor, Mr Mahony, was on paternity leave at the time.  The complainant said that he told Mr Devlin and Ms Arlenda about his concerns with the roster and that Mr Mahony was doing more favourable shifts.  He said that Mr Devlin agreed that the situation was unfair and that he and Ms Arlenda would need to approve the roster in future.

When Mr Mahony came back from paternity leave, the complainant went on holidays.  When he was on holidays, he got his roster for when he was going back to work.  He sent a text message to Mr Mahony, in which he complained that he was still doing closing shifts.  He told Mr Mahony that this wasn’t fair.  In response, Mr Mahony explained that he made a deal with Mr Devlin about the roster because he had to get a train at 7.00pm. 

On June 10th, the complainant wrote to Mr Devlin and Ms Arlenda and asked for a meeting to discuss his roster.  Mr Devlin was on holidays and a meeting was arranged for June 26th.  When he arrived at the meeting room, the complainant said that Mr Devlin, Ms Arlenda and Mr Mahony were already there.  He said that Mr Devlin then told him that he wanted to discuss “what I have in my hand.”  The complainant said that Mr Devlin had a copy of the CCTV records of the morning of Monday, June 3rd, which was a public holiday.  The complainant accepted that he was in the gym when he should have been at work and he said that he apologised.  He said that Mr Mahony said that he didn’t want him in the shopping centre any longer and that Mr Devlin gave him three options:

1.       Disciplinary action to be taken;

2.       Resign;

3.       Transfer to a different site.

The complainant said that he decided to resign and that the training manager gave him a piece of paper and told him what to write.  He submitted a copy of this document at the hearing which reads, “I just want to leave this job from today.  I am just resigning with immediate effect.”  He said that he felt under pressure to resign and that it was “three of them against me at the meeting.”  He said that Mr Devlin told him that he never had any problems with him and that the previous supervisor always said good things about him.

After he left his job, the complainant said that he was angry and upset and that he sat at home.  He produced a medical certificate from his doctor which states that he was suffering from stress and that he was advised about various coping strategies.  He said that he started driving a taxi after two or three weeks and that this job is going well.

The complainant was not represented and, in response to questions from me, he said that he was treated differently to Mr Mahony because Mr Mahony had to get a train home at 7.00pm.  He said that he doesn’t think this is related to his nationality, but that it is unfair and unequal.  He said that he apologised for being in the gym on June 3rd when he should have been at work, but he thinks that the way this was brought up at the meeting on June 26th was an “ambush.”  He said that he didn’t intend to resign.  He said that Mr Devlin asked him to work two weeks’ notice, but he refused.

The complainant said that, before he got a car about three years ago, he worked every Christmas day for the respondent.  He said that, after working one Christmas eve, he slept overnight in the shopping centre because there was no public transport to get into work the next day.  He said that he feels very angry about how he was treated by the managers.  At the conclusion of the hearing, he said that he would like an apology.

In his submission on behalf of the respondent, Mr Kavanagh said that a meeting was arranged on June 26th 2024, to discuss two issues; the complainant being in the gym and leaving the site without permission, and his issue with his roster.  Mr Kavanagh accepted that the complainant was not notified of the managers’ intention to discuss the first issue and that he attended the meeting on the understanding that the only item for discussion was his grievance about his roster.

Mr Kavanagh said that, when this issue was raised with the complainant, he wrote and signed his resignation.  The complainant was given the option of a different site closer to his home, but he refused this offer.

It is the respondent’s position that there has been no breach of the Employment Equality Act and that all colleagues are treated equally.  Mr Kavanagh submitted that the complainant has failed to demonstrate how he was treated less favourably than another person because of his nationality and that he has not shown that he was victimised.  He said that, after 10 years of employment, the complainant is familiar with the grievance procedure and that he did not use the procedure to try to resolve his complaints about the roster.

In his evidence at the hearing, Mr Devlin agreed with the complainant and he said that he was surprised when he saw the rostering arrangement that Mr Mahony was working.  He said that he discovered that this arrangement was agreed with a previous supervisor when Mr Mahony moved house and needed to get a train home at 7.00pm.  Mr Devlin said that when he got the email from the complainant on June 10th about this issue, he was on holidays and Ms Arlenda arranged a meeting for June 26th.  He had received a complaint from a customer in the shopping centre in which she said that, on June 3rd, she couldn’t find a security guard.  Mr Devlin said that he decided to talk to the complainant about this also.  He agreed that the complainant was not notified in advance that this issue would be raised and he said that he wanted to deal with it informally.

When Mr Kavanagh asked Mr Devlin how the complainant’s resignation came about, Mr Devlin said that he started the meeting by telling the complainant that there was an issue he wanted to discuss.  He said that he explained the severity of the issue and the complainant apologised.  He said that the complainant then said that he could earn more money driving a taxi and that he asked for a piece of paper so that he could resign.  Mr Devlin said that the offered the complainant the opportunity to work in one of the shopping centres in Tallaght, Blanchardstown, Dundrum or Liffey Valley, but that he over-reacted to the conversation about leaving the site.

When he left the meeting room, Mr Devlin said that he met the complainant in the shopping mall.  He said that he shook hands with him and he told him that there would always be a place for him in the company.

At the end of his evidence, I asked Mr Devlin why he didn’t go through the disciplinary procedure to deal with the fact that the complainant was missing from the shopping centre on June 3rd.  Mr Devlin said that, because of his good relationship with the complainant, he “wanted to go informal.”  He said that if he was do deal with a similar situation again, he would do things differently.

Ms Arlenda gave evidence that she arranged the meeting on June 26th and that “the primary agenda was the rosters.”  She said that she thought it would be a good idea for Mr Mahony and Mr Devlin to be at the meeting also.  The complainant had said that he was working too many closing shifts, but Ms Arlenda said that, when she checked the rosters, she found that, between January and June 2024, he worked only four closing shifts.  She said that the complainant over-reacted when Mr Devlin raised the issue about him leaving the site on June 3rd.  Ms Arlenda said that, on that day, the complainant took a break for two and a half hours, instead of two separate half hours.  Ms Arlenda agreed that the informal meeting “went out of control.”  She said that they didn’t want the complainant to resign and that they offered him alternative sites. 

It is clear from the evidence of the complainant at the hearing that he is not claiming that he was treated badly because of his nationality.  He claims that he was being rostered for shifts which were less favourable compared to his colleague who was in the same role as him as a supervisor.  The reason for this is that his colleague had an arrangement to work shifts so that he could get a train home.  The complainant felt that this was unfair and he asked for a meeting to try to resolve the problem.  At the meeting, he said that he was “ambushed” when he was confronted with the problem of his absence on June 3rd.  He said that he wanted an apology from the company.

To his credit, Mr Mahony apologised to the complainant before the end of the hearing.  He said that there was a mistake in the email he sent the email to the complainant on June 10th, in which he claims that Mr Devlin approved his roster arrangement.  He said that he was just back from paternity leave and he wasn’t thinking straight because he was suffering from sleep deprivation.

Conclusion

Based on the evidence of the complainant, I find that it was reasonable for him to think that he was treated unfairly because his colleague had a fixed roster from 8.00am until 7.00pm.  However, he agreed with me that this more favourable roster was not based on the fact that he is from Pakistan.  I agree with the complainant that he was ambushed when he was confronted with his absence from work on the morning of June 3rd 2024, when he expected the managers to listen to his grievance.  It is regrettable that this led him to resign. 

I am satisfied that the objective of the managers was not for the complainant to resign, but for him to move to a different site, where the problem of his colleague’s favourable shifts wouldn’t be an issue.  I accept Ms Arlenda’s evidence that the meeting went out of control and that the complainant was upset when he resigned.  I note the apology offered by Mr Mahony and Mr Devlin’s invitation to the complainant to return to work with them any time. 

Having considered the evidence of the complainant, I find that he has not shown that he was discriminated against because of his race.  For this reason, I decide that his complaint is not well founded.

Unfair treatment