FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : DUBLIN AIRPORT AUTHORITY, SHANNON AIRPORT (FORMERLY AER RIANTA CPT.) - AND - MR OMAR KHATIMY (REPRESENTED BY UNITED AFRICAN ASSOCIATION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal against the Decision of the Director of Equality Investigations under Section 83 of the Employment Equality Act, 1998 Dec-E2005-041.
BACKGROUND:
2. A Labour Court hearing took place on the 12th May, 2006 in accordance with Section 83 of the Employment Equality Act, 1998. The following is the Court's determination:-
DETERMINATION:
Background.
Mr Omar Khatimy (the Complainant) claims that he was subjected to harassment on racial grounds, contrary to Section 32 of the Employment Equality Act 1998 in the course of his employment with the Dublin Airport Authority (formally Aer Rianta), hereinafter referred to as the Respondent. The Complainant asserts that the harassment complained of took the form of racist remarks directed at him by a work colleague.
The Complainant referred a complaint to the Equality Tribunal pursuant to Section 77 of the Act. However the Complainant failed to attend at the hearing of his complaint by an Equality Officer. The Equality Officer was satisfied that the Complainant had been duly informed of the time date and place of the hearing and had failed to show any valid cause for not attending the hearing. In these circumstances the Equality Officer held that the Respondent had no case to answer and the Complainant was dismissed.
It appears from the Decision of the Equality Officer that the Complainant had notified the Equality Tribunal of a change of address on 5th July 2005. The Tribunal wrote to the Complainant at this new address advising him of the hearing of his complaint on 31st August 2005. When the Complainant failed to attend at the hearing the Equality Officer sought to have the Complainant contacted on his mobile telephone but the phone was not answered. The Decision of the Equality Officer further records that on the day following that fixed for the hearing a telephone message was received from an unnamed person who purported to represent the Complainant. The Equality Officer stated in her Decision that the content of the message indicated that the Complainant was aware that a hearing had been scheduled on 31st August 2005.
The Complainant told the Court that he had not received the notification of the hearing before the Equality Officer. He confirmed that he was resident at the address to which the notification was sent at the material time.
Complainant’s entitlement to maintain the appeal.
The Equality Officer came to the conclusion that the Complainant had failed to attend the first instance hearing without valid cause. It appears to the Court from what is recited in the Decision of the Equality Officer that she had ample grounds for that conclusion. Nonetheless the Complainant has an unfettered right to appeal to this Court from the Decision of the Equality Officer under Section 83 of the Act and provided the appeal is lodged within the prescribed time-limit the Court is obliged to hear the appeal. Accordingly the Court proceeded to hear the case de novo.
The Facts.
The salient fact as admitted by the parties or as found by the Court are as follows:
- The Complainant commenced employment with the Respondent at Shannon Airport on 1st May 2003. He was employed in the in-flight services department on a fixed-term contract as part of a seasonal employment opportunities programme. The contract was to expire on 31st October 2003.
On 15th October 2003 the Complainant complained to his manager that named fellow employees had called him racially abusive names. The manager interviewed the named employees who denied the allegations. The manager took no further action in the matter.
On 20th October 2003 the Complainant, at his request met with the Manager of Human Resources, Ms O’Rourke, and repeated to her his complaint of racial abuse by the named employees. Ms O’Rourke advised the Complainant that the subject matter of his complaint came within the scope of the Respondent’s Dignity at Work Policy. He was advised that under that policy he could have the matter addressed through an informal process or by way of a formal approach involving the taking of written statements from the parties concerned. The Complainant opted for the latter approach.- The Complainant was advised that he should prepare a written statement particularising his complaint. Due to the Complainant’s limited literacy in the English language Ms O’Rourke undertook to write a statement in terms dictated by the Complainant. Despite assertions to the contrary by the Complainant, the Court fully accepts that Ms O’Rourke faithfully recorded what she was told by the Complainant. The Complainant was then given the original of the transcribed document which he took away so as to discuss its content with a friend. Later, the Complainant returned the document to Ms O’Rourke, without amendments, and signed it in her presence. In this statement the Complainant referred to an incident in which he made derogatory comments concerning the daughter of one of those alleged to have made the racist remarks of which he complained.
For the sake of completeness, and while the point is of marginal relevance to the facts at issue in this case, the Court finds as a fact that the Complainant was not subjected to any treat or inducement to sign the document. In so far as there is a difference of recollection between the Complainant and Ms O’Rourke on this point the Court prefers the recollection of Ms O’Rourke
- The Complainant was advised that he should prepare a written statement particularising his complaint. Due to the Complainant’s limited literacy in the English language Ms O’Rourke undertook to write a statement in terms dictated by the Complainant. Despite assertions to the contrary by the Complainant, the Court fully accepts that Ms O’Rourke faithfully recorded what she was told by the Complainant. The Complainant was then given the original of the transcribed document which he took away so as to discuss its content with a friend. Later, the Complainant returned the document to Ms O’Rourke, without amendments, and signed it in her presence. In this statement the Complainant referred to an incident in which he made derogatory comments concerning the daughter of one of those alleged to have made the racist remarks of which he complained.
- The Respondent undertook an investigation into the Complainant’s complaints in which a number of employees were interviewed. It appears that this investigation also enquired into the Complainant’s conduct in making derogatory comments against the daughter of another employee. Having completed the investigation the Head of Human Resources wrote to one employee against whom complaints had been made ( hereinafter referred to as Mr A) on 21st October 2003, in the following terms:
- “We refer to our recent meeting and the Company’s investigation into complaints received from Mr Omar Khatimy that you made raciest remarks about him and in doing so you were in contravention of the Company’s Policy of Respect and Dignity at Work.
We have now completed our investigation and are satisfied that you made such remarks. We now propose to take disciplinary action against you in accordance with agreed procedures and we are affording you the opportunity to make representations which you feel are relevant at this time against the proposed disciplinary action. These representations will be heard on Tuesday, 23rd October 2003 at 15.00pm in my office.
In accordance with Company/Union agreements, you may be accompanied by an authorised Shop Steward”
- “We refer to our recent meeting and the Company’s investigation into complaints received from Mr Omar Khatimy that you made raciest remarks about him and in doing so you were in contravention of the Company’s Policy of Respect and Dignity at Work.
- The letter was signed by Mr Noel Fitzgibbon, Head of Human Resources.
On the same day Mr Fitzgibbon wrote to the Complainant in the following terms:
- The letter was signed by Mr Noel Fitzgibbon, Head of Human Resources.
- “We refer to our recent meeting and the company’s investigation into complaints received from [ Mr A] that you made remarks about his family and in particular [Mr A’s] daughter, in contravention of the Company’s Policy of Respect and Dignity at Work. We have now completed our investigation and are satisfied that you made such remarks”
We now propose to take disciplinary action against you in accordance with agreed procedures and we are affording you the opportunity to make representations which you feel are relevant at this time against the proposed disciplinary action. These representations will be heard on Tuesday, 23rd October 2003 at 15.30pm in my office.
- “We refer to our recent meeting and the company’s investigation into complaints received from [ Mr A] that you made remarks about his family and in particular [Mr A’s] daughter, in contravention of the Company’s Policy of Respect and Dignity at Work. We have now completed our investigation and are satisfied that you made such remarks”
- In accordance with Company/Union agreements, you may be accompanied by an authorised Shop Steward”
- The meetings notified proceeded and both the Complainant and Mr A were issued with verbal warnings.
The Complainant’s contract of employment expired by effluxion of time on 31st October 2003 and was not renewed. There is no evidence before the Court from which any connection could be inferred between the non-renewal of the Complainant’s contract and matters surrounding his complaints of racial abuse.
- The meetings notified proceeded and both the Complainant and Mr A were issued with verbal warnings.
The Law applicable.
The Complainant contends that he was subjected to harassment on the grounds of his race. The relevant definition of harassment for the purpose of this case is that contained at Section 32 (5) of the Act. Section 32 was repealed in its entirety by Section 21 of the Equality Act 2004 and replaced by Section 14A of the Act as inserted by Section 8 of the Equality Act 2004. However, by virtue of Section 106 (3)(a)(i) of the Act, as amended, since the subject matter of the complaint occurred before the commencement of the Equality Act 2004, the Court must deal with the instant case as if Section 32 of the Act of 1998 was never repealed.
Section 32(5) of the Act provides as follows:
- (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.
Subject to subsection (6) Section 32(1) of the Act imputes to the employer liability for certain acts of harassment suffered by an employee at the workplace.
This Section provides as follows:
(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.
Section 32 (6) provides an employer with a defence to a claim based on the harassment of an employee in the course of his or her employment where the employer can establish that it took such steps are were reasonably practicable to prevent the harassment. This subsection provides:
- “(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—
These provisions must also be read in conjunction with Section 15 of the Act which fixes an employer with vicarious liability under the Act for the wrongful acts of an employee committed in the course of that employees employment. This Section provides as follows:
(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval.(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.
(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—
(b) from doing in the course of his or her employment acts of that description.
It is clear from the evidence that the Respondent conducted an internal investigation into the Complainant’s complaints of racial abuse. As a result of its investigation the Respondent concluded that its employee, Mr A, had perpetrated such abuse. The Respondent cannot resile from that conclusion for the purpose of these proceedings and has not seriously sought to deny that the Complainant was racially abused in the workplace. The Court is satisfied that the abuse to which the Complainant was subjected constitutes harassment on the race grounds.
It is clear that in these circumstances the Respondent is liable in law for the harassment which the Complainant suffered unless it can prove that it took such steps as were reasonably practicable to prevent the harassment which occurred.
In its defence the Respondent told the Court that it had in place a Respect and Dignity at work Policy, a copy of which was submitted in evidence. This is a commendable document which states, inter alia, as follows:
- “ Aer Rianta is committed to implementing and promoting measures to protect the respect and dignity of employees at work. The Company will not tolerate harassment, sexual harassment of bullying behaviour by one employee of another”
At paragraph 2.1 the term “harassment is defined in terms consistent with the statutory definition set out at Section 32 (5) of the Act.
In the Court’s view the mere production by an employer of a policy statement of the type relied upon by the Respondent is insufficient to avoid liability for a subsequent act of harassment of one employee by another. In order to avail of the defence under either Section 32 (6) or Section 15(3) of the Act, the employer must satisfy the Court that it took practical steps to disseminate the content of the policy amongst employees and impress upon them the imperative of observing its terms.
The Respondent told the Court that employees were given a copy of the document and briefed on its content at induction. The Complainant contended that he was never told of the existence of this document nor was he briefed on its content.
The Court took sworn evidence from Mr A on this point. Mr A had no recollection of having been given a copy of the document in question on his induction nor had he any recollection of being told about the company policy to which it referred. In response to this evidence the Respondent told the Court that the policy document may have been out of print at the material time but that it was reproduced in a handbook which was given to all employees.
In these circumstances the Court cannot accept that the Respondent has discharged the onus placed on it of proving that it took all reasonably practicable steps to prevent Mr A from harassing the Complainant. Accordingly the Respondent is liable in law for the harassment suffered by the Complainant.
In so far as the Complainant contends that the non-renewal of his fixed-term contract was connected with his complaint of harassment, the Court can see no evidence whatever to sustain that assertion.
Determination.
The Court finds that the Complainant was harassed on grounds of his race contrary to Section 32 of the Act. The Court is further satisfied that the said harassment must be regarded as discrimination by the Respondent against the Complainant in relation to his conditions of employment. The Court considers that the appropriate redress is an award of compensation. The Court is satisfied that the Complainant suffered no economic loss in consequence of the said discrimination but that he did suffer humiliation and distress. Complainant is awarded compensation in the amount of €5,000 for the affects of the discrimination which he suffered.
The Complainant’s appeal is allowed and the decision of the Equality Officer is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
22nd May, 2006______________________
MG.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.