Complainant

Respondent

Parties

Mykhailo  Bovkun

Morbiz Ltd trading as Charlestown Lodge

Representatives

Kevin Callan & Nicola Burke, HR Duo

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00063885-001

04/06/2024

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

CA-00063885-002

04/06/2024

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

CA-00063885-003

04/06/2024

The Complainant was employed by the Respondent from the 23rd of February 2024 to the 17th of May 2024. He claims he was unfairly dismissed; he was discriminated against on the basis of race and that he did not receive his terms and conditions of employment within the required time frame.

The Respondent submitted; the Complainant does not meet the statutory requirement of one year’s service in relation to the unfair dismissal allegation. The Respondent denies discrimination on the grounds of race. It accepts there were different rates of pay, however these depended on the skills, experience and qualifications of the individual. The Respondent accepted that the terms and conditions of employment were not provided in the requisite time. These were received by the Complainant on 17 April 2024. 

The Complainant is Ukrainian. It was agreed that the Complainant received €1,092.00 per fortnight at a rate of €13 per hour. It was accepted the employment had terminated. 

The Complainant accepted that he did not have the 12 months’ employment. 

It was agreed that if the Complainant was successful, compensation was the appropriate form of redress.

The Complainant was accompanied by his wife. The interpreter took an affirmation. 

The Complainant then gave his evidence after taking the affirmation. The Complainant used an interpreter. He stated that at first he was promised different duties that what he had to do. He asked for his contract. The pay was less than others. His duties were more difficult than others.

When the Complainant started working there were four others there. Two Ukrainians, one from the Czech Republic and the Complainant did not remember what nationality the other was. They were receiving €13. Many staff would come and go. Some were Irish. Others were receiving more such as €14 to €15. The porter F was receiving €14 to €15. There were others after the Complainant was employed. S was receiving €14; he was British and there was one man who was Irish who was receiving €14 per hour. There were many staff employed short term. 

The Complainant submitted that he worked day and night doing many jobs including cleaning, welcoming residents, bringing them on tour, answering their calls and emails, signing them in and out and being overall responsible for the safety of the place. F did the same job. In fact, he did less.  He was not there any longer.

S did the same job and was still there when the Complainant finished. J was there for a week and worked at night. There was an advertisement on Indeed and the Complainant took a screenshot of it at the time.

The Complainant was then cross-examined. He stated that everyone employed after him with the same experience was paid €14. The Complainant was unsure as to what other peoples’ qualifications were. He was not sure if some people were qualified electricians or plumbers who were working as porters. The Complainant stated that that had nothing to do with anything as porter. The Complaint submitted that he had not been asked about his qualifications. He had a master’s in education. 

It was put to him that there was another Ukrainian who was paid €17 per hour as an electrician. The Complainant stated that was not relevant.

The Complainant had asked both his manager why his salary was lower. The response was that there was no answer, and it was unfair. He asked both of them about his low salary and there was no explanation, it could be discussed later. It was put to the Complainant that both managers would deny saying that. The Complainant stated that maybe they had changed their words. He stated that he was telling the truth, that it was not right to lie but both were working for the Respondent.

The Respondent’s representative asked the Complainant questions in relation to documentation showing the different pay salaries and the different nationalities. One of them was Ukrainian who earned €17 per hour. The Complainant stated that this was a different position. 

The Complainant was then asked about his interview. He said he was interviewed by the director and one of the managers. The Complainant told them about his education. He was told that it would be considered in the future and that his payment would be raised. His qualification was in relation to economics and judicial science. It was pointed out that the Complainant’s second manager was not present at the interview. It was put to the Complainant that the company hired many nationalities including Irish, Ukraine, Czech, Malawi, and the pay depended on their position and qualification. The Complainant said he understood what was being said but that he was paid less than others. 

The interview notes of Complainant’s interview were opened to the Complainant. He said this is the first time that he has seen them. There was a question in relation to salary expectations.  The Complainant denied asking for €13.00. The Complainant stated that what was said was that the salary started at €13 and then would increase. The Complainant stated that he would not have done the job for this. It was put to the Complainant that the manager would deny saying that.

The Complainant’s wife then gave evidence after taking an affirmation. She stated that she were hired at the same time as the Complainant. She was interviewed on the 22nd of February 2024. It was online. She has a qualification in psychology and experience in that area. There was only one question asked at the interview in relation to what the Complainant’s wife would do if there was conflict between residents. She referred to her experience as a conflict mediator taking steps when people are in conflict. 

The Complainant’s wife submitted that the Complainant had started three days before her as a porter. There were four people at the time, one Ukrainian, one Czech who was paid more than them at €14 or €14.50. He had more experience, there were no issues with his higher wages. Then more people started working as porters. J who was Irish, had no experience and was paid €13.50. He did nothing just be there. There was no experience needed for the job just clean. The place was in an awful condition and very dirty. For a month and a half, the Complainant and his wife cleaned and did other duties.

S was British and the Complainant’s wife trained him. He was paid €13.50 to do the same job and less duties than the Complainant and his wife. F was an Irish man, and he worked only a week or a little more. He was paid €14.50 to be a porter and deal with messages.

George was not Ukrainian, and the Complainant’s wife was not sure what his nationality  was. He was paid €14. The Complainant and his wife taught him his responsibilities. The job needed no special skills or experience it was just cleaning. 

The Complainant and his wife asked our line manager about the contracts and their salary. At the interview, the salary and contracts were not agreed. They need a permanent contract. The Complainant and his wife had small children who were two years and nine years. This work was so far away from where they resided in Sligo. The Complainant was on the last step to receiving his grant for a business of €25,000. The Complaint’s wife asked their line manager about the justice of it all. She was told that it was not fair that they were the best workers, the only workers at some times and it was not fair. It was the second manager who said this.

When the Complainant and his wife received the contract they were told the next contract would be permanent and the salary would increase. It was the second operations manager who told them this. 

The Complainant’s wife set out that when they were told their contracts were finishing they asked for reasons for it. They were the perfect workers. She stated that the second operations manager told them that they can make a complaint to the WRC. He advised them to put in discrimination, terms and conditions and unfair dismissals. They spoke to a lawyer and were told that  they could not bring an unfair dismissal claim as they did not have 12 months’ service. 

The Complainant set out that he has a job now which he obtained three weeks ago, scaffolding at €16 per hour, six days a week for eight hours per day. In between he had a job in a hotel for two weeks being paid €14.50 per hour as a porter for eight hours, five days a week. The Complainant stated he had applied for 20 jobs. 

The Respondent’s company director, and two operations managers attended the hearing.

The Respondent’s representative submitted that the Complainant was informed on the 17th of April 2024 when he received his contract that the employment would end in May. 

The company director then gave her evidence under affirmation. She explained that this was a homeless centre for people on a short term basis. Once they were legally entitled to remain in the country they could stay there. She and her husband saw a need for this. It is predominantly families. They have a room and ensuite, and then there is a common kitchen where each family has a cupboard and space in the freezer. The council pays the Respondent.

The director interviewed the Complainant and referred to the notes of same taken by the manager. There were no translator at the interview and there was no issues with the Complainant’s understanding. She denied there was any language barriers. Any questions that the Complainant was asked he could answer in English appropriately. In relation to the wages, the director accepted that she offered him €13 per hour and he agreed. She was unclear as to whether they were advertising at the time or not. Another Ukrainian employee recommended the Complainant. The Director could not remember who. 

The Director denied that the Respondent was discriminatory. She set out that it employed a number of different nationalities: Ukrainian, British, Irish, Africans. The primary consideration was what abilities they had. Race had no bearing on the rate of being paid. It was about their abilities and qualifications. 

The Director referred to the other salaries of other employees. She stated that the Czech person was receiving €13 per hour with no qualifications. There was an Irish person with no qualifications receiving €13 per hour, a Ukrainian with €13 per hour. Then there was a deputy manager who was receiving €13.50. They had worked at an IPAT Centre. There was a Ukrainian who was receiving €17 per hour. There was a porter who got a higher rate because they did extra work as an electrician and plumber, mostly electrical work. They also dealt with issues in relation to leaks and blocked toilets. 

The porters would make the lists for the maintenance team which included plumbing and electrical issues.  The Director denied ever knowingly discriminating against anyone. 

The Director was then cross-examined. It was put to her that the Complainant was due to start on €13 per hour and then increase. He was to start as a porter but then was doing maintenance and there was no change to his salary. The Director disagreed asserting that it was agreed that €13 per hour was his salary and there was no promise of a higher salary. She denied that the Complainant was doing any maintenance work. Sometimes he would have to fix the toilets or deal with electrical issues if there was a long time to wait for the maintenance team. 

I then questioned the Director. The English man S received €14 as he was a handyman doing paint and general trade works. J received €13 and F €14.50.

The first operation manager then gave evidence under affirmation. She is the operations manager over four locations. She was there when this location opened for two years. The operation manager denied there was any conversation about the pay being unfair with her. There were different rates of pay for employees, but porters were generally €13. This operations manager was there for the interview and took the notes. There were no issues in relation to the Complainants understanding during the interview.

The porters generally dealt with some cleaning, fire and safety, health and safety issues, spillages. There was a requirement for a porter to be present 24/7. There would be a task list to be undertaken. Cleaning would take about two hours, policing the building and then hand over to the next porter.

The facility opened on the 15th of December 2023. This manager also dealt with compliance, Child First, health and safety, training, policies, and procedures. The next manager was there permanently whilst she was elsewhere from early April 2024. He gave the contracts to the Complainant. She could not recall the rate of pay that was advertised for the porters. There was more recruitment in April in which she was not involved.

The operations manager was cross-examined. She accepted the Complainant had completed the task list set for him and accepted that the reference was accurate provided by the other operations manager.

I then questioned the operations manager. She stated that S had additional skills in relation to maintenance and painting. He had experience in this area. AF did maintenance, caretaking work. He had a certificate and received €14 per hour. F was paid €14.50. He received an increased rate as he lived closer and was on call due to the operations manager being in Galway. J received €13. G had experience in an IPAT centre and had experience with residents. 

The operations manager was then asked further questions about the Complainant in relation to the rate of pay. She stated it was set at the interview. It depended on the individual’s skill base. She stated that S did painting and general maintenance. This could be done at night when people were in bed.

The second operations manager then gave his evidence under affirmation. He had been working in this facility since April. The only conversation he had about pay with the Complainant was in April when he told the Complainant that his contract was ending in May. The letter issued in May. At that stage he raised the issue of pay. The second operation manager denied ever saying it was unfair. He denied saying that the Complainant should sign the contract and then he would receive a permanent contract after. That would not be part of his remit; he just followed the instructions. The Complainant had asked The second operation manager if the contract could be renewed, and he could not do this. He told the Complainant he felt it was unlikely as it was a three month contract.  The second operation manager accepted there was an advertisement on Indeed showing a rate of pay of €13.50.  He was looking for someone for when he was not there. Ideally it would be someone locally to attend. They were offered a higher rate as they would be on call. This was after April. 

S had a different salary as he painted and decorated. 

The second operations manager confirmed that the Complainant was a good, solid worker when directed. He stated the Complainant may not know what to do for the next job but would do a superb job when completing a task set for him. The second operations manager denied there was any discrimination in the business. 

The Complainant then cross-examined the second operations manager. He stated that salary was only raised as an issue when the Complainant’s employment was ending. 

S did some painting with FAS, and he had worked in film and TV on sets. The second operations manager stated that he was looking for a set of specific skills and experience. He had not increased the Complainant’s salary as it was not in his remit. 

The second operations manager accepted that when the contracts were not being renewed he advised the Complainant that they were different avenues which he could not assist them in relation to it. They had had another conversation about a friend of his who went to the WRC and was awarded €7,000. Mr Murphy denied advising the Complainant.

In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of the investigation as well as the evidence presented at the hearing.

CA-00063885-001 – Section 7 of the Terms of Employment (Information) Act, 1994

Section 3 of the Terms of Employment (Information) Act, 1994 as amended (‘the Act’) specifies the particulars of the terms of employment which an employer must give in writing to an employee. The information required by subsection 1A, must be given not later than five days after the commencement of employment. The remaining information must be given not later than one month after the date of commencement of employment, subsection 1.

The Complainant asserted that he was employed on a permanent and full-time basis, but his contract did not reflect that.

The Respondent submitted that the Complainant was employed on a 3 month contract, as per the contract that was issued to him.

At the adjudication hearing, the Respondent accepted that neither the terms of employment, nor the further information required were provided within the required time frames. They were provided on the 17th of April 2024.

Section 7(2)(d) of the Act provides

“in relation to a complaint of a contravention under change section 3, 4, 5, 6, 6D, 6E, 6F, or 6G, and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.”

The Complainant had less than 52 weeks of continuous employment with the Respondent.

His average weekly pay was €546 gross.

CA-00063885-002 – Section 77 Employment Equality Act 1998

The issue for consideration in this case is whether the Complainant was discriminated against by reason of his race. 

Discrimination on the ground of race is defined in section 6(1)(a) of the Employment Equality Act 1998, as amended (the Act) which provides that discrimination shall be taken to occur where

“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,”

Section 6(2) of the Acts defines the relevant discriminatory grounds as follows

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

…

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

Burden of proof

Before I investigate the complaint, I will set out a brief explanation about the burden of proof applicable in relation to complaints made pursuant to the provisions of the Employment Equality Act 1998, as amended (the “Act”).

The burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably on the discriminatory ground of race. This means that the Complainant must establish primary facts upon which the claim of discrimination is grounded. If he succeeds in doing so, then, and only then, the burden of proof passes to the Respondent and it is for the Respondent to prove that there was no infringement of the principle of equal treatment.

Section 85A of the Act sets out the burden of proof which applies in a claim of discrimination in the following manner:

“(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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Commission to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.”

The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a presumption of discrimination is established and the burden of proof shifts to the Respondent.

The Labour Court elaborated on the interpretation of section 85A in the case of Melbury v Valpeters EDA0917 where it held that section 85A:

"…. 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 speculation 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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

There must be fact of “sufficient significance” to raise a presumption of discrimination. It is not sufficient to simply be a covered by one of the grounds of discrimination i.e. race to render acts discriminatory. If for example no comparator exists or can be inferred, or the acts are transparently attributable to a non-discriminatory cause.

In Margetts v Graham Anthony & Company Limited EDA038, the evidential burden which must be discharged by the Complainant before a presumption 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 an inference 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.”

The burden of proof which must be satisfied by the Complainant was summarised in Minaguchi v. Wineport Lakeshore Restaurant as follows:

“It appears to me that the three key elements which need to be established by a complainant to show that a prima facie case exists are:

(i)      that he is covered by the relevant discriminatory ground(s)

(ii)    that he has been subjected to specific treatment and

(iii)  that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.”

In deciding on this complaint, therefore, I must first consider whether the Complainant has established the presumption of discrimination. It is only where such a presumption has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

Having carefully considered the matters raised by the Complainant, I find the Complainant has established primary facts to support a claim of discrimination on the grounds of race. These relate to the different rates of pay for employees, and the advertised higher rate of pay. The Complainant provided a number of comparators who were paid at higher rates than the Complainant was.

Thus, the burden of proof shifts to the Respondent. It was accepted that the Respondent’s workforce is racially diverse. It includes employees who are Irish, British, Czech, Ukrainian, etc. The evidence on behalf of the Respondent was that where an employee was paid at a higher rate there was a specific reason for this. Those reasons included they had specific skills such as plumber, experience such as in a IPAT centre, were on call etc. This included another Ukrainian who was paid €17 per hour as an electrician.

I am therefore satisfied that the Complainant was not discriminated against on the grounds of race and the complaint is not well founded.

CA-00063885-003 – section 8 of the Unfair Dismissals Act 1977

Section 2(1) of the Unfair Dismissals Act 1977 sets out the following

“Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons:

(a)    an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him”.

The Complainant accepted his employment was from the 23rd of February 2024 to the 17th of May 2024. He does not come within the persons set out in section 4

“Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to the dismissal of a person who is or was employed under a statutory apprenticeship if the dismissal takes place within 6 months after the commencement of the apprenticeship or within 1 month after the completion of the apprenticeship.”

Thus, I have no jurisdiction as the Complainant did not have the required 12-month employment service.

CA-00063885-001 – Section 7 of the Terms of Employment (Information) Act, 1994

I find this complaint to be well founded.

I order the Respondent to pay to the Complainant compensation of €1,638, the equivalent of three week’s pay which I consider just and equitable having regard to all of the circumstances.

CA-00063885-002 – Section 77 Employment Equality Act 1998

This complaint is not well founded.

CA-00063885-003 – Section 8 of the Unfair Dismissals Act 1977

The Adjudication had no jurisdiction as the Complainant did not have the required 12-month employment service.

Terms of employment; Race discrimination; Unfair Dismissal