Ogobamidele (Represented by Derek Williams & co - Solicitors) -v- IQon Technologies (Represented by BCM Hanby Wallace - Solicitors)
1. DISPUTE
This dispute involves a claim by Mr. Ogobamidele that he was harassed on grounds of race and religion within the meaning of section 6(2) of the Employment Equality Act, 1998 and in contravention of section 32 of that Act by IQon Technologies, from October, 2002 until his employment ceased with the respondent in August, 2003
2. BACKGROUND
2.1 The respondent is a small PC manufacturing company and the complainant commenced employment in its assembly area in October, 2002. The complainant, who is a black male and a Nigerian national, alleges that within weeks of commencing his employment he was subjected to a chain of jibes, comments and behaviour by his colleagues which he contends constitute harassment of him on grounds of race and religion contrary to the Employment Equality Act, 1998. He adds that when he raised these issues with his Managers they failed to deal with his concerns in an appropriate manner and he was compelled to resign from his position in August, 2003. The respondent in the first instance rejects that the complainant was harassed contrary to the Act and submits that in any event it took reasonably practicable steps to (i) prevent the harassment from occurring and/or recurring and (ii) to reverse the effects of any such behaviour on the complainant and it therefore seeks to rely on the defence available to it at section 32(6) of the Act.
2.2 The complainant referred a complaint under the Employment Equality Act, 1998 to the Equality Tribunal on 15 December, 2003. In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Act. Written submissions were received from both parties and a Final Hearing took place on 1 March, 2004. A number of issues emerged at the hearing which gave rise to further correspondence with the parties subsequent to the hearing. This process concluded on 27 May, 2005.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant commenced employment in the respondent's assembly area in October, 2002. He alleges that within weeks of commencing employment he was subjected to a series of racial jibes, remarks and humiliating/threatening behaviour by and from his colleagues. He further contends that he was subjected to other racial treatment which included damage to the tyres on his car and a general disturbance/disorganisation of his workstation. The complainant states that the first of these alleged incidents took place about four weeks after started work with the respondent. He states that damage was caused to his car, and only his car, when it was situated in the company's car park on the first occasion he worked overtime. He states that he reported the matter to his Line Manager Mr. D the following morning and that he (Mr. D) organised a meeting of the staff, during which the complainant alleges certain employees became angry and references to immigration were made. The complainant adds that he felt his colleagues were trying to intimidate Mr. D and the meeting ended without resolution.
3.2 The complainant contends that the racial jibes and remarks started shortly after the incident with his car. He adds that they happened 2/3 times a week and alleges they were carried out by two specific colleagues in particular. The complainant states that when he reported these incidents to Mr. D his response was that "people from the locality didn't accept people quickly and that things would be ok". The complainant states that initially he refused to name those involved when asked to do so by Mr. D because he did not want to be labelled a trouble maker and he was fearful of losing his job, although he subsequently identified the two individuals involved. He further states that he did not report all of the incidents and that he tried to stand up for himself. The complainant alleges that around the same time his work area, which he tidied at the end of each day, was frequently disturbed and items (screws and drill bits) were strewn in disarray. He contends that when he reported this matter to Mr. D he told him he would look into it. The complainant adds that despite raising the matter on two further occasions no action was taken by Mr. D or any other member of Management.
3.3 The complainant states that in July, 2003 a racial comment "the black boy must go" was written on the wall of the men's toilet. He states that he reported this matter to Mr. O (a supervisor in the area as Mr. D was not at work) and they went to inspect the cubicle. The complainant states that Mr. O told him he would report the matter to Mr. M, the Managing Director and all three met subsequently. The complainant alleges that at this meeting he told Mr. M and Mr. O that he suspected a specific colleague as the culprit. He adds that Mr. M apologised to him, told him he did not know what to do and that he would explore what other employers did in similar circumstances. The complainant returned to work and alleges that his colleagues chanted "we have won" on his return to the production area. He states that this was degrading to him and he felt isolated. The complainant contends that following this meeting he expected something to be done and that when nothing happened he wrote to Mr. M on 14 August, 2003 to prompt some action. When this did not happen the complainant resigned on 19 August, 2003. He states that the respondent's letter of that date was handed to him as he was literally walking out the door. He submits that alleged behaviour detailed above constitutes harassment of him on grounds of race contrary to the Act.
3.4 The complainant states that sometime before the alleged incident of racial graffiti in the toilet a photograph of him was copied on to a picture of a naked woman and placed on his workstation. He adds that he destroyed the photograph and did not report the matter to the respondent although he suspected a particular colleague of being responsible. He submits that this constitutes harassment of him on the religion ground contrary to the Act as he is a Pastor in his Church and the entire incident was offensive and humiliating to him.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent states that on the morning of 22 November, 2002 the complainant informed Mr. D that his tyres had been slashed the previous evening. Mr. D immediately reported the matter to Mr. M (the Managing Director) and questioned staff whom he knew to be working late on the evening in question. This enquiry did not shed any light on the matter other than the complainant's car was the only one damaged. A general meeting of staff in the Production Area was convened later that morning at which it was stressed in the strongest terms by Mr. D that racial behaviour was unacceptable and would be viewed in a serious manner by the company, possibly warranting instant dismissal. The respondent accepts that there was a strong feeling at this meeting as those in attendance felt they were being accused of such behaviour. Mr. D states that he did not hear any reference to immigration at this meeting - which was corroborated by Mr. O - and rejects the complainant's assertions that he was intimidated by those present - he had over 20 years experience as a Manager at that time. Mr. M states that he subsequently addressed staff in the Technical and Administrative areas along the same lines, that he spoke with the complainant and assured him that this type of behaviour was unacceptable, that he alerted Divisional Managers of this and that he arranged for the complainant to be re-imbursed the cost of replacing his tyres and the taxi fare home on the night in question.
4.2 The respondent states that the complainant informed Mr. D on only two occasions that offensive remarks had been made to him by colleagues and his workstation had been disturbed, the first of these was on 12 December, 2002. Mr. D states that the complainant declined to name the individuals involved or be specific about the remarks which he alleged were made. Mr. D denies that he made the comments attributed to him by the complainant. He also states that the disturbance of the complainant's workstation had occurred some time previously and he asked the complainant to notify him of any future incidents so that CCTV footage could be checked. The footage in respect of the previous incident could not be checked as the tapes are used on a seven day cycle and are recorded over. Mr. D states that he discussed the matter with Mr. M and he was instructed to keep a closer eye on things. He did so and noticed nothing untoward although he acknowledged that around that time certain workers were ribbing and disrupting their faster colleagues who regularly exceeded targets. He added that the complainant felt into this latter category and consequently the respondent was anxious to ensure his dignity in the workplace. Mr. D states that the next time the complainant spoke to him about such matters was 11 February, 2003. On this occasion the complainant again refused to identify any of his colleagues as the culprits.
4.3 The respondent states that the comment written on the toilet wall was "Blacks out" and furnished a copy of the photograph at the hearing. The respondent adds that the complainant reported the graffiti to Mr. O at about 3:30pm on 17 July, 2003. Mr. O accompanied the complainant to the toilet, observed the comment on the wall and reported the matter to Mr. M. Mr. M arrived, the comment was photographed and Mr. O cleaned the wall himself. Both Mr. O and Mr. M state that all this occurred within thirty minutes of the complainant reporting the matter to him. The respondent states that the complainant Mr. O and Mr. M met in the Boardroom at around 4pm. Mr. M states that he assured the complainant he did not condone this sort of behaviour and would do all that was possible to get to the bottom of it. He denied that the complainant had identified any particular person as the culprit. Mr. M's version of what happened at the meeting was confirmed by Mr. O at the hearing. Mr. O states that after this meeting the factory was closing and he was unable to pursue the matter at that time. He adds that he personally spoke individually with all the Operations staff the next morning and none of them saw anybody acting suspicious around the toilets in question. Consequently, he informed the complainant later that day that nothing could be done. The respondent states that the complainant never informed it at any stage about the alleged incident of his photograph being copied on to a picture of a naked woman.
4.4 The respondent submits that the alleged act concerning damage to the complainant's car does not constitute harassment of the complainant and notwithstanding this argument submits that it can rely on the defence at section 32(6) of the Employment Equality Act, 1998 in that it took steps that were reasonably practicable in the circumstances. It further argues that the complainant has failed to establish a prima facie case of harassment in respect of the racial jibes/remarks as his recollection of events, dates and times were poor and inconsistent. In particular his allegations at the hearing were levelled against a named individual and when this individual attended at the hearing, the complainant accepted that he was mistaken in naming him as the alleged perpetrator of the treatment of him. Consequently, the credibility of the complainant's evidence must be questioned. The respondent also argues that the as the alleged incidents occurred prior to the coming into force of the Equality Act, 2004 the burden of proof does not shift to the respondent under the provisions of the 1998 Act. Finally, the respondent argues, notwithstanding the foregoing, that when the complainant drew its attention to the alleged treatment of him by his colleagues, it acted in a manner which were reasonably practicable in the circumstances and it can therefore rely on the defence provided at section 32(6) of the Employment Equality Act, 1998.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the complainant was harassed by IQon Technologies on grounds of race and religion, within the meaning of section 6(2) of the Employment Equality Act, 1998 and in contravention of section 32 of that Act from October, 2002 until his employment ceased with the respondent in August, 2003. In reaching my decision I have taken into account all of the submission, both oral and written, made to me by the parties.
5.2 It has been commonplace in this jurisdiction for many years that in gender based discrimination claims the complainant must, in the first instance, establish facts from which it can be inferred that s/he was treated less favourably on grounds of gender before the burden of proof shifts to the respondent to rebut the inference of discrimination raised. This procedure formally became part of Irish law with the coming into force of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 . A similar procedural rule concerning the burden of proof in non-gender claims has been consistently applied by this Tribunal and the Labour Court following the coming into force of the Employment Equality Act, 1998 in October, 1999. The respondent argues that such an approach is incorrect in the instant case as there is no basis in law by which it can be fixed with the onus of proving the absence of discrimination as the alleged incidents predate the coming into force of the Equality Act, 2004, which came into force on 18 July, 2004 and provides a legal footing for shifting the burden of proof in claims of non-gender discrimination. In Citibank v Masinde Ntoko the Labour Court rejected a similar proposition to that submitted by the respondent in the instant case and held that it should operate a procedural rule in respect of the burden of proof in claims of non-gender based discrimination to that operated in gender based discrimination cases. The Court further elaborated on this point in Icon Clinical Research v Djemma Tsourova . The Doctrine of Precedent requires me to follow the Court's rulings in this regard unless the cases can be distinguished and I can find no reason for such a departure in the instant case.
5.3 Section 6(2) of the Employment Equality Act, 1998 defines the discriminatory grounds for the purposes of the Act which includes, inter alia,
"(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as "the religion ground"),....
(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as "the ground of race"),..."
The Act also provides at section 32:
"(1) If, at a place where C is employed (in this section referred to as "the workplace"), or otherwise in the course of C's employment, another individual ("E") harasses C by reference to the relevant characteristic of C and --
(a) C and E are both employed at that place or by the same employer,
(b) E is C's employer, or
(c) E is a client, customer or other business contact of C's employer and the circumstances of the harassment are such that C's employer ought reasonably to have taken steps to prevent it,
then, for the purposes of this Act, the harassment constitutes discrimination by C's employer, in relation to C's conditions of employment, on whichever discriminatory ground is relevant to persons having the same relevant characteristic as C. ......
(5) For the purposes of this Act, any act or conduct of E (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material) constitutes harassment of C by E if the action or other conduct is unwelcome to C and could reasonably be regarded, in relation to the relevant characteristic of C, as offensive, humiliating or intimidating to C.
(6) If, as a result of any act or conduct of E another person ("F") who is C's employer would, apart from this subsection, be regarded by virtue of subsection (1) as discriminating against C, it shall be a defence for F to prove that F took such steps as are reasonably practicable --
(a) in a case where subsection (2) applies, to prevent C being treated differently in the workplace or otherwise in the course of C's employment and, if and so far as any such treatment has occurred, to reverse the effects of it, and
(b) in a case where subsection (1) applies (whether or not subsection (2) also applies), to prevent E from harassing C (or any class of persons of whom C is one).".
5.4 The first alleged incident of harassment took place late evening on 21 November, 2002 when the complainant's tyre was slashed while he worked overtime. I note that this was the first occasion that he worked overtime and that only his car was damaged. I also note that the area around the car park was not fenced in and it was therefore possible for a person other than an employee of the respondent to cause the damage. I accept the respondent's submission that it was unable to identify the culprit in the circumstances. I note the response of the respondent when the matter was brought to its attention and would commend it for the compassionate way it treated the complainant and the manner in which it informed its employees that behaviour of that nature was unacceptable and how seriously it viewed same. In the circumstances I find that the complainant has failed to establish a prima facie case of harassment in respect of this incident.
5.5 I now turn to the alleged racial jibes/remarks and the general disturbance of the complainant's workstation. The complainant states that this behaviour started shortly after the incident with his car and that initially he did not report them to Management for a number of reasons, instead trying to deal with them himself. I understand the complainant's reluctance to report the matter yet even when he did so to Mr. D, he continued to refuse to name whom he considered to be the culprit. This made a thorough investigation of his allegations difficult. In the course of the hearing the complainant was inconsistent as regards dates and times of the alleged incidents and was also confused with the sequencing of events. In addition he was adamant at the hearing that a specific individual was the culprit. When this gentleman attended the hearing the complainant agreed that he was not the person in question. Evidence presented at the hearing by Mr. D. Mr. O and Mr. M, along with evidence by two other employees (Mr. A and Mr. R) contradicted the complainant's version of events as regards these incidents. In such circumstances I must decide on balance which version of events I consider more credible. In the circumstances and having regard to the totality of the evidence presented by both parties on these issues, I consider the respondent's evidence to be more reliable. Consequently, I find that the complaint has failed to establish a prima facie case of harassment in respect of these incidents.
5.6 The final issue for examination by me on the race ground is the incident involving the graffiti in the toilet. It is accepted by both parties that the comment on the cubicle wall was "Blacks Out". The complainant is a black male and a Nigerian national. It is accepted that at the time of the incident - July, 2003 - the complainant was the only black employee working with the respondent. I am of the view therefore that the remark in question was focussed at him, that it was unwelcome and that it could be reasonably regarded as offensive and intimidating to him on grounds of race. I note the respondent's agreement at the hearing that the remark was put on the wall sometime during the day of 17 July, 2003 and that the toilets in question are located in an area which can only be accessed by employees or by others with the express permission of the respondent. I find therefore that the complainant has established a prima facie case of harassment on grounds of race contrary to section 32 of the Employment Equality Act, 1998.
5.7 I must now examine whether or not the actions of the respondent at the time were such as to enable it rely of the defence provided at section 32(6) of the Act. On the matter being reported to Mr. O he accompanied the complainant to the area, observed the offending remark, arranged to have it photographed and removed all within half an hour -which is indeed a swift response. He then met with Mr. M and the complainant to discuss the matter during which the complainant was assured that this type of behaviour would not be condoned and that the company would do everything it could to get to the bottom if it. He states that as the plant was closing for the evening he was unable to investigate the matter further until the next morning when he personally went to all Operations and none of them saw anything or anybody acting suspicious around the toilets in question. Consequently, he informed the complainant later that day that nothing could be done. I note Mr. M's response at the hearing when asked by the Equality Officer why he or another senior manager did not address the staff on the company's harassment policy at that time, given the potential seriousness of the incident was that "it didn't dawn on me". Contrast this with the company's response to the first alleged incident of harassment set out at paragraph 5.4 above. In addition, I note Mr. M's comment in the course of the hearing that at the time of the first incident (November, 2002) there was no policy on harassment in existence in the company but that shortly afterward it began to explore how "to fill that gap", that it consulted with a number of organisations in that regard - the results of which was the Harassment/ Bullying Policy Document furnished to the Equality Officer at the hearing. I note that this document did not come into operation until at least three weeks after the complainant resigned. It appears to me that at the time of the graffiti incident with the complainant (July, 2003) the respondent would have been significantly more aware than ever of what was required of it by way of investigating the complainant's allegation of harassment. In the circumstances I do not consider the respondent's actions to be sufficient to permit it to rely on the defence at section 32(6) of the Act. I find therefore that the complainant was harassed by the respondent on grounds of race contrary to the Employment Equality Act, 1998. As regards that complainant's allegation of harassment on grounds of religion I find that he has failed to establish a prima facie case of harassment on that ground.
5.8 In assessing the appropriate redress in this case I am mindful that the respondent did take steps early on to inform its employees that harassment would not be tolerated, that its Disciplinary Code was amended to include such behaviour as a disciplinary matter, that an Equality Policy and Harassment Policy were introduced (post the complainant's resignation), that the Managing Director and HR Manager commenced a "Diversity and Equality Awareness Training Programme" (again post the complainant's resignation) and that the complainant was reluctant to name specific individuals as the culprits - although I do not, on balance, accept the respondent's assertion that he did not indicate, in some manner, the identity of the person whom he believed to be the author of the offensive comment in the toilet. I am of the view that compensation of €5,000 is appropriate in the circumstances and I will make an order in that regard.
6. DECISION OF THE EQUALITY OFFICER
6.1 I find that -
(i) the complainant has failed to establish a prima facie case of harassment on grounds of religion contrary to section 32 of the Employment Equality Act, 1998.
(ii) the complainant was discriminated against by the respondent on grounds of race, in terms of section 6(2) of the Employment Equality Act, 1998 and in contravention of section 32 of that Act when he was harassed on grounds of race.
6.2 I therefore order, in accordance with section 82 of the Employment Equality Acts, 1998-2004 that the respondent pay the complaint €5,000 by way of compensation for the distress suffered by him as a result of the discrimination. This award does not contain any element in respect of loss of income on the part of the complainant.
____________________________
Vivian Jackson
Equality Officer
16 September, 2005