ADJ-00043304 - Workplace Relations Commission Serdar Goksel Sen v Specialised Air Products Ltd

• Judgment Date: 20 January 2023
• Docket Number: ADJ-00043304
• Date: 20 January 2023
• Hearing Date: 30 August 2022
• Court: Workplace Relations Commission
• Respondent: Specialised Air Products Ltd

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 as amended,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

At the adjudication hearing the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised.

The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. All participants who gave evidence were sworn in. Both parties were offered the opportunity to cross-examine the evidence.

Background:

The Complainant referred his complaint to the Director General of the WRC on 12th September 2021 alleging that he was discriminated against by reason of his religion and his race. He also claimed that the Respondent treated him unlawfully by discriminating against him in getting a job, in conditions of employment and that he was victimised. The Respondent denies the claims. This complaint was heard in conjunction with ADJ-00034976.

Summary of Complainant’s Case:

In his complaint form, the Complainant alleged that that he was discriminated against by reason of his religion and his race. He also claimed that the Respondent treated him unlawfully by discriminating against him in getting a job, in conditions of employment and that he was victimised. In the complaint form, the Complainant alleged also that his complaint refers to a contravention of the Transfer of Undertakings Regulations. He named Specialised Air Products Limited as the Transferor. The Complainant did not provide any further details with regard to the alleged transfer of undertakings or the alleged contravention. In the complaint form, the Complainant submitted that he is a Turkish citizen living in Ireland since 28th May 2019. He came to Ireland with a critical skills employment permit to work as a compressed air service engineer. Due to the pandemic and payment issues, he lost his job on 2nd June 2020. The Complainant’s colleague, Mr. Bermingham, started to deal with air compressors before the Complainant had lost his job. The Complainant was always in touch with Mr. Bermingham and helped him with the new business. When the Complainant lost his job, Mr. Bermingham offered him employment/partnership in his company so the Complainant would not have to return to his home country. The Complainant submitted that Mr. Bermingham was aware that the Complainant needed to have a work permit to be able to work legally. The Complainant further submitted that he had all his gear, tools and spare parts to repair and service air compressors. These were sent to him by his father from Turkey. The Complainant asserts that Mr. Bermingham told him to bring his stuff to the workshop as capital investment so when they sorted out the work permit situation, the Complainant would be legally his partner. The Complainant started working for Mr. Bermingham. Because it is illegal to be paid without a work permit, the Complainant asserted that Mr. Bermingham told him to hold on until he got the permit and then he would be paid whatever was owed to him. Meanwhile, to be able to survive, the Complainant applied for the Jobseeker’s Benefit and rent support from the Department of Social Protection. The Complainant submitted that he started to help Mr. Bermingham a few days a week, but it then turned into a full-time job. The Complainant submitted that Mr. Bermingham owns a packaging company, Specialised Tapes Ltd., and the Complainant started working for that company which traded as Specialised Air Products Ltd. The Complainant submitted that whenever he asked Mr. Bermingham about his work permit, Mr. Bermingham would not deal with the matter. The final excuse was that the Complainant could not get the permit through the old company and a new one needed to be set up. The Complainant agreed. In February 2021, Mr. Bermingham set up a new company and applied for a work permit for the Complainant in May 2021. Due to COVID-19, the Complainant got a reply from the Department of Enterprise, Trade and Employment only 10 days before the submission of his complaint to the WRC. His application was refused because neither the wage, the company nor other specifications matched the permit requirements. The Complainant submits that it was all done so Mr. Bermingham can learn the job from him and get on with the business with bigger customers after getting rid of him. The Complainant submitted that, because he is well known in the industry, he brought his own customers to Specialised Air Products Ltd. He believed that he worked for his own company. The Complainant submitted that he bought and paid for a company van but Mr. Bermingham registered it in his own name and transferred it to his company as he used the fear factor that the Complainant could not own a commercial vehicle while jobless. The Complainant also made allegations in relation to non-reporting of certain matters to the Revenue Commissioners by Mr. Bermingham. The Complainant submitted that after he had received notification from the Department of Enterprise, Trade & Employment refusing his permit application, he met with Mr. Bermingham and asked him what to do. Mr. Bermingham said nothing but changed the lock to the workshop and cancelled the fuel card he had provided the Complainant with. Mr. Bermingham also kept the Complainant’s tools and spare parts. The Complainant asserts that Mr. Bermingham used his situation as a non-EU citizen and his religion was mentioned many times. The Complainant submits that Mr. Bermingham gave him €200-300 a couple of times so he could buy diesel before he got a diesel card and a few times he gave the Complainant money to pay rent. In response to the Respondent’s written submission, the Complainant furnished an additional submission on 29th August 2022. With regard to the matter of the correct respondent, the Complainant submitted that “technically” he was never employed by Specialised Tapes Ltd. or Specialised Air Products Ltd. as his work permit has never been issued. The Complainant furnished copies of documents from Specialised Air Products showing that work had been done for customers of the company. Regarding the Respondent’s assertion that there is no valid existing contractual relationship between the Complainant and the Respondent, the Complainant agreed. He submitted that Mr. Bermingham told the Complainant that he would set up a new company and separate the operations and invoices from Specialised Tapes Ltd. so his other unofficial partner would not benefit from the compressors business. The Complainant furnished copies of “Job Cards” written and signed by Mr. Bermingham before setting up Specialised Air Products Ltd. Regarding the matter of comparator, the Complainant submits that he was “doing as good as he can”. The Complainant confirmed that he was not formally employed but that he helped Mr. Bermingham on the understanding that he would become a business partner. The Complainant confirmed that he was furnished with a contract of employment on 11th May 2021 by Specialised Air Products Ltd. The Complainant also confirmed that Mr. Bermingham issued a letter to the Department of Social Protection dated 20th May 2021 confirming that the Complainant accepted a job offer with Specialised Air Products Ltd. The Complainant confirmed that the work permit application was refused, and he blamed Mr. Bermingham for not sending all relevant documents with the application. He also confirmed that on 31st August 2021 he sent a text message to Mr. Bermingham stating he was finished working and that he would be taking up employment elsewhere. In his written submission, the Complainant also asserted that Mr. Bermingham started to make jokes about the Complainant’s religion around the time when the Complainant returned to his own country to have his son circumcised. The Complainant said in his submission that during summer of 2021 Mr. Bermingham went “beyond the line”. He further asserted that on the New Year’s night of 2021, the Complainant and his friends and Mr. Bermingham and his friends were in the workshop and Mr. Bermingham made racist jokes, so they had to leave the warehouse. Summary of the Complainant’s direct evidence and cross-examination At the adjudication hearing, the Complainant confirmed that he did not have a work permit at the relevant time. He said that Mr. Bermingham was always joking about his religion, he said that there are ...