ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00051787
Parties:
| Complainant | Respondent |
Parties | Víctor Hugo Santiago Álvarez | Excel Recruitment |
Representatives |
| Barbara Conlon of Employment Law Services |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00063518-002 | 17/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00063518-003 | 17/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00063518-005 | 17/05/2024 |
Date of Adjudication Hearing: 06/08/2024
Workplace Relations Commission Adjudication Officer: David James Murphy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaints me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant works for the Respondent on an if and when basis. He is assigned to client sites based on demand and his own availability.
The Complainant raised a complaints under the above acts that he had been treated adversely for refusing work when he had been given less than 24 hours notice, that he had not been given mandatory training required by law and that he had suffered pay discrimination related his gender, age and race. |
Summary of Complainant’s Case:
The Complainant attended the hearing and gave evidence under affirmation. He made detailed written submissions before the hearing. Where relevant I have referred to his evidence in the findings section of the decision. |
Summary of Respondent’s Case:
The Respondent attended the hearing represented by Ms Conlon and Ms Ciara Connolly gave evidence under affirmation. They made detailed written and oral submissions. Where relevant I have referred to their evidence in the findings section of the decision. |
Findings and Conclusions:
CA-00063518-002 The Complainant has submitted a complaint under the Organisation of Working Time Act on the basis of Section 17 of that act, alleging that he had a reduction in shifts after he refused to work shifts on short notice. This reduction was alleged to have happened in Spring 2023 and carried on until today. The Respondent disputes this, first pointing out that the Complainant is not required to work any shift, he can say yes or no. The Respondent agrees he had a reduction in working time but attributes that to other factors such as him refusing shifts. In the Respondent’s view the main reason his working hours reduced was his request to change “consultant” (which is the Respondent’s term for hiring manager) and that his new consultant had a different client base with less shifts available for him. However, despite what was set out in his complaint form, the reason the Complainant outlined in evidence in the hearing for his reduction in hours was that he decided to take time off around Easter 2023. He does not actually allege that the fall off in hours was linked to him refusing to work on under 24 hours notice. CA-00063518-003 Section 6G of the Terms of Employment Act states that— Where an employer is required by law or by a collective agreement to provide training to an employee to carry out the work for which he or she is employed, such training shall — (a) be provided to the employee free of cost, (b) count as working time, and (c) where possible, take place during working hours. The Complainant alleges that he is required to undergo updated manual handling training and this has not been provided to him. Ms Connolly gave evidence that the Respondent have offered him paid manual handling refresher training on a number of occasions and he has either declined the training or not responded. The Complainant refers to an incident in May 2021 which is obviously well outside my jurisdiction. He alleges that he was last offered manual handling training after this, in the Summer of 2021. The Complainant sent in emails after the hearing demonstrating that the Respondent was trying to get his manual handling training updated and was asking him to complete it online. It is not clear to me what if any breach of the above section that he is alleging. CA-00063518-005 The Complainant has raised an equal pay complaint under the Employment Equality Acts. He alleged that he had worked alongside other Excel staff on a specific client site. He alleges that those staff were paid more than him though they have the same service and perform the same role. He does not know who these employees’ names or their actual salary or identify a period of time in which he was paid less than them. He just says that some of them told him they were paid more than him. Section 85 A of the Employment Equality Acts places the burden of proof with the Complainant, unless he shifts that burden to the Respondent by establishing facts from which it may be presumed that there has been discrimination in relation to him. Having reviewed the Complainant’s evidence on the issue of pay discrimination and in particular noting the failure of the Complainant to identify any protected ground linked to different rates of pay, even indirectly, I am of the view that the Complainant has failed to do this. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00063518-002 I find that the complaint is not well founded. CA-00063518-003 I find that the complaint is not well founded. CA-00063518-005 I find that the complaint is not well founded. |
Dated: 22-10-25
Workplace Relations Commission Adjudication Officer: David James Murphy
Key Words:
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