Case Number: ADJ-00014318. Workplace Relations Commission

• Date: 20 February 2019
• Docket Number: ADJ-00014318
• Court: Workplace Relations Commission
• Parties: Contract Cleaner v Cleaning Company

Procedure:

In accordance with 79 of the Employment Equality Acts, 1998 - 2015, andfollowing the referral of the complain 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.

BACKGROUND.

The Complainant was employed from 1st March 2007 until he terminated the employment on 19th March 2018. The Complainant worked as a Contract Cleaner, he earned €12.00 an hour and he worked 40 hours a week. The Complainant referred a complaint to the Workplace Relations Commission on 18th April 2018 alleging he had been discriminated against by the Respondent on grounds of his Race in relation to his conditions of employment and in harassing him and the latest occurrence of the discrimination took place on 30th January 2018.

SUMMARY OF COMPLAINANT’S POSITION.

The Complainant began working with a named Respondent in 2017 and following a Transfer of Undertaking he transferred to the current Respondent. In or around 20th October 2017 he informed his named Manager that he was cancelling his annual leave which was due to commence on 29th October 2017 until 1st November 2017. This was agreed. It was also agreed that he would have a Sunday night off on 22nd October 2017. However he received a text from his named Supervisor at 6.39pm to inform him that the cancellation of his annual was being denied as the roster had been done. He lodged a Grievance which was dealt with on 3rd November 2017 and the Complainant was happy with the outcome and hoped his Manager would change his attitude to him.

In December 2017 the Complainant requested a pair of safety boots from his Supervisor, named. A photo was taken of his old and broken boots and these were sent to his named Manager. He followed up twice in January 2018 and on 24th January 2018 he was informed he would have to wait another week or two. He was told if he wished to buy them himself and he would be reimbursed but the Complainant could not do so. He received his boots on 24th January 2018.

The Complainant was informed on l4th December 2017 that he could not take any more flexible days as one or 4 and that it must be one week or two. On 22nd January 2018 the Complainant requested annual leave of 4 weeks and a further two weeks Paternity Leave as he was going home to the Phillipines for a family reunion. He spoke to his Manager and begged to be allowed to take this leave. He stated the Manager shouted at him and he stated he felt intimidated. The Complainant discovered that another named employee had been granted 8 weeks annual leave to go to the Phillipines. The Complainant referenced the Employee Handbook which states at page 20 – Normally can take two weeks annual leave at one time. We also allow people who have worked with (named) for longer than one year to request a longer period of absence from work in special circumstances, such as to attend events abroad or to fulfil personal commitments. Such requests may be made once in any 12 month period and will be authorised in line with business requirements.

On 29th January 2018 the Complainant was told by his Supervisor to work early at 7pm the following night. He could not do so. His Manager rang him at 4pm to ask why and the Complainant informed the Manager that he had set hours as per his contract. He was spoken to in a threatening manner and was informed that the Transfer of Undertaking ended on 28th February 2018.

He asserted that he was treated less favourably on grounds of his race as his Manager and Supervisor are both Lithuanians. He also contends that he is being harassed by the conduct of his Manager in relation to his requests for leave and new boots.

The Complainant and his Legal Representative referenced the sections of the Employment Equality Legislation and he also identified relevant case law to substantiate their complaint of discrimination on the grounds of race.

SUMMARY OF RESPONDENT’S POSITION.

The Respondent stated that the Complainant had failed to establish a prima facie case of discrimination. In the complaint form the Complainant has failed to establish any facts and has identified a comparator in relation to his claims as regards his annual leave where the comparator had given notice of six months and had arranged his leave to coincide with a less busy period.

The Complainant commenced employment with the Respondent on 30th June 2017. He participated in an onsite induction programme and he signed to acknowledge his understanding of the employee handbook on 2nd July 2017 – evidence provided. This Handbook includes policies related to Dignity and Diversity at Work and sets out in detail the policy on Time Off.

On 26th June 2017 the Complainant submitted four separate requests for annual leave, all of which were approved for 4 days in August, September, October and December 2017.

The Complainant raised a Grievance by email dated 20th October 2017 to a named HR Generalist. This was in relation to his Manager who he asserted did not allow him to cancel his annual leave of 4 days from 29/10/2017 to 1/11/2017. The reason given was this request by the Complainant was given at short notice and the rosters for the following two weeks had been done. This complaint also related as to how his Manager spoke to him over the phone in relation to his request to cancel. This Grievance was investigated and the Complainant did accept that the Manager had a right to refuse a request for annual leave if there was a business need. A Mediation Meeting was arranged between the Parties, i.e the Complainant and his Manager on 3rd November 2017. The various policies in relation to annual leave, sick leave were discussed as was the Complainant’s complaint. The outcome of the meeting was agreed as a success and both Parties agreed to move on in a positive manner. This is acknowledged in the Complainant’s submission that he was satisfied with the outcome.

The Complainant received new safety boots when he commenced employment with the Respondent in June 2017. On 17th January 2018 the Supervisor sent the Manager a text and image of the Complainant’s work boots and requested the Manager to order replacement boots – evidence provided. The Manager responds on the same day agreeing to order the new boots and the Supervisor texts the Complainant to this effect. The Supervisor also asks for the Complainant’s shoe size. The Complainant confirms his shoe size the same day. The Manager texts the Supervisor on 24th January 2018 to inform them the boots have arrived. This took one week as boots are not held in stock and have to be ordered. – evidence provided to the Hearing.

On 13th November the Complainant submitted two further requests for annual leave for single days in December 2017. One was approved and the second was not as two other employees had already booked annual leave. This was explained clearly on the leave request form as – not approved as (employee) and (employee) on holiday. At this stage the Complainant had not taken a continuous week as leave and had only two days annual leave left in the annual leave year to March 2018.

The Complainant emailed the Manager on 16th January 2018 requesting 24th June to 29th July 2018 – 5 weeks – and that he was taking Paternity Leave from 30th July to 12th August 2018. The Complainant then submits a holiday request form on 17th January 2018 seeking annual leave from 24th June to 12th August 2018. The Manager responded on 22nd January 2-018,...