1. DISPUTE
1.1 This dispute concerns a claim by Mr Martin Moors that he was discriminated against by Howley Distribution Services Ltd on the ground of race contrary to the provisions of the Employment Equality Acts 1998 - 2004 when he subjected to racial harassment by the Managing Director. He also claimed he had been victimised, but this claim was withdrawn at the hearing
1.2 The complainant referred a claim to the Director of Equality Investigations on 7 September 2004 under the Employment Equality Acts 1998 - 2004. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 1 July 2005 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties, and a joint hearing was held on 25 April 2006.
2. SUMMARY OF THE COMPLAINANTS' CASE
2.1 The complainant, a Dutch national, commenced employment as a warehouse operative with the respondent company in June 2004. He says that during his second week of employment, the Managing Director started to call him "Tulip" as he walked past. The complainant says he took this as a reference to his nationality. He claims this was said without a smile, and that everyone else was called by their first names. He asserts that, having worked in another job in Dublin for 10 months, he knows that the term is only used in a degrading way. The complainant says he asked the Managing Director why he was calling him by that name, and that the Managing Director said it was because tulips come from Amsterdam.
2.2 The complainant claims that on another occasion, when he was standing with a group of colleagues having a cigarette, the Managing Director approached him and said "I hope that's not wacky tobacco you're smoking." The complainant asserts that this was an immediate assumption that, because he is from Holland, he was smoking drugs.
2.3 The complainant asserts that he was constantly harassed by the Managing Director, was shouted at to get new clothes and was blamed for everything that went wrong. He alleges these things happened only because he is foreign and from Holland. The complainant says he felt totally humiliated, but trapped at the same time as he was new to the company. The complainant eventually resigned, after about eleven weeks, as he felt he could not bear the situation any longer. He says he was totally depressed and lacked confidence because of the way he had been treated.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denies that discrimination took place. It says it is a third-party logistics company providing warehousing and distribution for clients. It has approximately 90 employees, about half of whom are foreign nationals. The respondent denies that there has ever been a complaint or even a hint of racial discrimination within the company.
3.2 The Managing Director denies absolutely that he made the comments attributed to him. He says he does not work in the warehouse and does not recruit the staff himself. Occasionally, when he noticed a new employee, he says he would greet them and ask their name, but would otherwise have little contact with the warehouse staff. He says that he did, on one occasion, ask the complainant where he came from. When the complainant told him, the Managing Director says he responded by remarking that Holland was where tulips came from.
3.3 The Managing Director also denied any conversation with the complainant in or around the smoking area. He says that smoking was forbidden on the premises even before the workplace smoking ban, because inflammable stock was stored in the warehouse. Employees who wish to smoke must go outside the gates of the premises. The Managing Director says he does not smoke and therefore does not frequent the smoking area, except to the extent that he would drive in and out through the gates.
3.4 The respondent points out that it has in place grievance procedures which were not invoked by the complainant. It says further that the Warehouse Manager, who interviewed and engaged the complainant in the first place, was available on the premises at all times, but no complaint was ever made to him.
3.5 The respondent says the complainant was a satisfactory employee, and there had been no problems with his work or attendance. As far as the respondent is concerned, he terminated his employment of his own volition after 11 weeks. The respondent says it was amazed when the complaint of discrimination was referred.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The complainant alleged that the respondent discriminated against him on the ground of race contrary to the provisions of the Employment Equality Acts 1998 - 2004. Section 6 of the Acts provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, including race, colour, nationality or ethnic or national origins. Section 8 provides that
(1)In relation to-
(b) conditions of employment...
an employer shall not discriminate against an employee or prospective employee...
4.3 The Labour Court, in a recent determination of a claim on the disability ground (A General Practitioner and A Worker - Determination No EED062) said "It is now well settled that in cases of discrimination it is for the Complainants to prove the primary facts upon which they rely in asserting that they have suffered discrimination. If those facts are proved and they are regarded as sufficient to raise an inference of discrimination, the onus shifts to the Respondent to prove the absence of discrimination. In all cases the standard of proof is the normal civil standard; that is to say the balance of probabilities." The first matter to be addressed, therefore, is whether the complainant has established the relevant facts.
4.4 Certain of his complaints are rather generalised and non-specific, such as that he was shouted at by the Managing Director and told to get new clothes. At the hearing, the complainant was unable to offer any further information on these allegations, which were absolutely denied by the Managing Director. In the circumstances, I find that the complainant has not established that these incidents occurred.
4.6 Just two specific claims were made by the complainant: that he was called "Tulip" by the Managing Director and that the Managing Director made a reference to "wacky tobacco" when the complainant was smoking a cigarette. It is the complainant's contention that both of the references are directly related to his nationality and therefore constitute discrimination on the race ground. As the Managing Director rejected the assertion that he had made either of the comments, it will be necessary to decide on the balance of probabilities which version of events is more persuasive.
4.7 I note that it is the complainant's evidence that he recognised the term "Tulip" to be derogatory because he had worked in Dublin for 10 months before joining the respondent company. If this is the case, then he will have recognised that the term has no connection with Dutch nationality when used in that context. In any case, both parties agree that the Managing Director made some reference to the fact that tulips come from Amsterdam. In the absence of any other evidence, I am satisfied that this was the only reference made to tulips and that the Managing Director did not refer to the complainant using that term.
4.8 In relation to the smoking incident, it is the complainant's contention that an implied reference to smoking drugs constituted a derogatory assumption regarding Dutch nationals. Having considered the evidence, I find the Managing Director's explanation that he would never have reason to be in the smoking area, outside the gates, to be more plausible. It is difficult to imagine the logic of a scenario whereby he would deliberately join the smoking employees for the sole purpose of making a derogatory reference to the complainant.
4.9 The complainant asserted that he felt trapped in his employment as he was new to the company. It is true that a person may feel isolated and helpless in a foreign country, particularly if they have language difficulties. However, I note that the complainant was not new to this country, having had previous employment in another firm, and that he spoke excellent English. I note further that he never made a complaint of any form while in the company. Taking into account all of the evidence, I am satisfied that the complainant has failed to establish a prima facie case of discrimination on the race ground, and the respondent therefore has no case to answer.
5. DECISION
5.1 Based on the foregoing, I find that Howley Distribution Services Ltd did not discriminate against Mr Moors contrary to the provisions of the Employment Equality Acts 1998 - 2004.
_____________________
Anne-Marie Lynch
Equality Officer
25 May 2006