Odion
(Represented by Kieran Kelly BL, on the instructions of Kevin Tunney Solicitors)
AND
Techniform (Waterford) Ltd
(Represented by IBEC)
1. DISPUTE
1.1 This dispute concerns a claim by Mr Tony Odion that he was discriminated against by Techniform (Waterford ) Ltd on the ground of race, contrary to the provisions of the Employment Equality Acts 1998 and 2004, when he was harassed by co-workers. He claimed further that he was subjected to discriminatory dismissal because of his complaints to management.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on 25 August 2004 under the Employment Equality Acts 1998 and 2004. In accordance with her powers under section 75 of the Acts, the Director then delegated the cases 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 Acts. Submissions were sought from the parties, and a joint hearing was held on 17 January 2007. Subsequent correspondence with the parties concluded on 23 January 2007.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant is a Nigerian national and was employed as a welder by the respondent company on 8 September 2003, following a two-week work experience placement on completion of a FÁS course. The complainant alleges that he had problems from the beginning of his employment, particularly with co-workers throwing paper towels at him, and he sought the assistance of his former FÁS supervisor to speak to his current supervisor, Mr A.
2.2 The complainant says that after this Mr A told him that there was no further welding work for him and that he would have to work as a general operative or be let go. The complainant says he did not believe there was no welding work, but he had no choice but to transfer to general operative duties. The complainant says that three co-workers, Mr B, Mr C and Mr D, caused him constant problems by telling him he was working too hard and should slow down. He says they told him there had previously been two black employees in the company who were no longer there, and the complainant says he interpreted this as a threat that he would meet the same fate.
2.3 The complainant alleges that the three men told him they owned the company and that they would get rid of him if he did not slow down. He claims that he threatened to report them and was told that if he did so "no one would f**king talk to" him. The complainant says that he did in fact report them and Mr B was called to the office. The complainant says that, on his return, Mr B made a jibe at him wondering why, if he was a welder, he was working as a general operative. The complainant says the clear inference was that he was not wanted as a welder, which he states was discrimination.
2.4 The complainant asserts that Mr C and Mr D asked him if he knew that black men were slaves. He says that he asked for clarification if he was being called a slave, and was told he could take it any way he wanted to and if he wished to call himself a slave he could do so. The complainant claims that at various times he was called a "ni**er" and a "black b*****d", and was told to go home to Nigeria. He says that his greeting to co-workers of "hello brother" met with the response "I am not your f**king brother, we are not black". The complainant alleges that when he sat down to have lunch, the other men would get up and walk away. He says that if he needed assistance in doing a particular job, it was not forthcoming. He says that he sought to join the union on several occasions but was not facilitated.
2.5 The complainant made a formal complaint of harassment against Mr B, Mr C and Mr D on 26 November 2003. The respondent engaged a consultant to carry out an investigation and she interviewed the complainant, the alleged harassers and several other co-workers. During this time, the complainant was suffering from anxiety and stress because of his treatment at work. On 8 December, the complainant was given a copy of the investigator's report and invited to a meeting with all concerned to discuss matters the following day. Continuing to feel unwell, the complainant went on sick leave on 9 December.
2.6 The complainant telephoned the respondent on several occasions during the month of December to say that he wished to resign and he wanted his P45. The respondent asked that he put his resignation in writing, but also tried to persuade him to return saying that the situation would be improved. The complainant says that he ultimately went to his former FÁS supervisor for help, and he wrote a letter of resignation for the complainant. The complainant says he called to the respondent premises on 6 January 2004 with the letter, but was persuaded not to submit the letter and re-consider returning to work. By letter dated 20 January 2004, the respondent forwarded the complainant's P45 and P60, but urged the complainant to make contact regarding a return to work.
2.7 The complainant says he contemplated returning for some time, and discussed the matter with his wife. The couple agreed that he should return, if the respondent would protect him as it was promising. The complainant ultimately resumed work in the welding section on 20 February. He says he met with the HR Manager, who arranged a meeting between him and his alleged harassers. The complainant says they apologised for everything that had occurred and said it wouldn't happen again.
2.8 However, the complainant says he was subsequently informed by another colleague that his co-workers intended to strike because of his return. He says he noticed efforts to frustrate him and as soon as he put his helmet on he was showered with nuts and bolts. The complainant says he ignored the behaviour as best he could and did not identify anyone specific. Over the next few weeks, the complainant alleges that he was the subject of taunting and laughing, and was apprehensive about what might be thrown at him next. He says that, on one occasion, he was hit on the face with a "missile", lost concentration and burnt himself.
2.9 The complainant says the circumstances at work caused him to become depressed and he was certified as unfit for work on 1 April. He says he felt management was attributing blame to him for reporting his co-workers, and says he felt things had got worse instead of better after his complaints. The complainant says the respondent purported to dismiss him on 20 April, allegedly for gross misconduct because he worked elsewhere while on certified sick leave.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denies that the complainant was harassed as claimed. It says it is an engineering company, engaged in sheet metal fabrication and spray painting. At the time the complainant was employed, there would have been approximately 30 employees. Since that time, due to short time and redundancies, the workforce has decreased to less than 20. The respondent says that FÁS would frequently ask if welding trainees could be taken on for work experience. The complainant was taken on in this way initially for two weeks' work experience. The respondent says he was subsequently kept on and furnished with a Workers' Agreement which set out the terms and conditions of his employment.
3.2 Without prejudice to its contention that racial harassment did not occur, the respondent also contended that it can not be held liable, as it did everything reasonably practicable to prevent racism at its premises and amongst its employees. The respondent submits that section 15 (3) of the 1998 Act states that it shall be a defence for an employer to prove that it took such steps as were reasonably practicable to prevent an employee from doing a particular act. It says this is also referred to in section 32 (6), dealing with harassment at work.
3.3 The respondent says it had a written policy on bullying and harassment, contained in its Safety Statement, which specifically mentions race. It says the Safety Statement was prominently displayed in its canteen and all employees were encouraged to familiarise themselves with it. The respondent says further that the Safety Statement is subject to ongoing review, and it says that all employees attended a Bullying and Harassment seminar in January 2004.
3.4 The respondent says that the complainant made an initial informal complaint against Mr B on 19 November 2003, which related to the complainant being assigned to other duties. The respondent says this re-assignment was in accordance with the Workers' Agreement, which states that there is no guarantee of specific jobs and employees may be transferred from one job to another to enable the company to run smoothly. The respondent says the complainant was selected for transfer because he was the most recently recruited and least experienced welder. It says the reality was that he would have to be re-assigned or let go, as there was not enough welding work for him.
3.5 The respondent says that soon after the complainant was re-assigned, he made the complaint against Mr B, which stated that Mr B had said to him he must be a bad welder as he had been removed from welding duties. Mr B conceded that the comment had been made, but he said it had been a joke and was not meant to cause offence.
3.6 The respondent says that the complainant made formal complaints on 26 November against Mr B, Mr C and Mr D. These complaints were made verbally to the HR Manager, who typed them as follows:
Tony Odion has made a formal complaint of harassment against [Mr B] citing the following issue:
1. When Tony finishes work at 5.00pm, [Mr B] calls Tony names - f---- c----.
2. Sometimes in the canteen, [Mr B] stands in front of Tony calls Tony f----- c---.
Tony Odion has made a formal complaint of harassment against [Mr C] citing the following issues.
1. [Mr C] has on numerous occasions told Tony he is working too hard and to take it easy. [Mr C] told Tony that previously 2 black guys did the same thing and were sent away. This will also happen Tony if he continues to work too hard. It won't work for Tony in this co.
2. [Mr C] has on several occasions told Tony he owns the company and anything he tells Tony to do, he is to f------ do it. If Tony doesn't do it, he will be gone. If you report me, no-one will f----- talk to you.
3. [Mr C] has said to Tony: "Do you know black people are slaves?"
4. When Tony finishes work at 5.00pm, [Mr C] calls Tony names - f----- c---.
Tony Odion has made a formal complaint of harassment against [Mr D] citing the following issues.
1. [Mr D] has on several occasions told Tony he owns the company and anything he tells Tony to do, he is to f------ do it. If Tony doesn't do it he will be gone. If you report me, no one will f---- talk to you.
2. [Mr D] has said to Tony: "Do you know black people are slaves?"
3. When Tony finishes work at 5.00pm, [Mr D] calls Tony names - f---- c----.
3.7 The respondent says that the complainant was notified the following day that an investigation would take place, and the three alleged harassers were suspended with pay pending the outcome of the investigation. The respondent says that it appointed an independent investigator to carry out the investigation, and she interviewed the complainant, the alleged harassers and several other members of staff. The investigator concluded, inter alia, that "I do not find a case for bullying nor do I find a case for harassment. I find that cultural differences have arisen and that there is a need for acceptance and tolerance on both sides. I find that management acted immediately and promptly to deal with the situation."
3.8 Regarding the specific responses of the named parties in the complainant's complaint, the respondent says Mr B denied targeting the complainant in any way. He said he was taken aback by the informal complaint made on 19 November about what he said was meant as a joke. He said he made a decision to keep his distance from the complainant in the future, to avoid similar misunderstandings. Mr B confirmed that bad language was common on the respondent's premises but said that it was never directed at the complainant as a means of an insult. Mr B rejected any allegation of bullying or harassment.
3.9 The respondent says Mr C said he had worked with individuals from many cultures previously and had always had a good rapport with them. He said his working relations with the complainant were initially good, and that there was good banter between them. He said a misunderstanding had arisen as a result of the complainant feeling left out when sandwiches were being bought from the shop. Mr C said that it emerged that this was a cultural problem in that the complainant would not ask someone older than him to do a favour, and that the matter had been resolved. Mr C rejected the allegations of bullying and harassment.
3.10 The respondent says that Mr D said he was particularly hurt by the allegations made as he has worked with people of different cultures and has a close friend who is black. Mr D said there were differences in culture in that the complainant used to call him "sir" and ask for permission to use the toilet until Mr D told him there was no need. Mr D said that he had regularly offered the complainant lifts home and tried to assist him, and that the conversation on such occasions would be of a general nature. The respondent says Mr D reported that the only conversation he had with the complainant about black people was a well known story that a former black employee sent someone else to do his medical for him, and that this story was known to everyone. Mr D said that the complainant's informal complaint against Mr B was a turning point, and that contact was now at a minimum as he did not want to expose himself to a situation whereby something he said might be misunderstood. Mr D said he was aggrieved by the allegations, and was particularly hurt by claims of a racial slur.
3.11 The respondent says that the complainant was given a copy of the independent investigator's report on 8 December and was invited to attend a meeting of all concerned the following day. It says he did not show up for work on 9 December, but submitted a medical certificate later that day. The respondent says further that the complainant telephoned the company requesting his P45 and was urged not to resign, but that if he insisted on doing so he should put his resignation in writing.
3.12 The respondent says there were several written and verbal communications with the complainant over the next several weeks, wherein he requested his P45 and was asked to put his resignation in writing, although he was also asked to re-consider and reassured that the respondent would support his return. The complainant's solicitor also contacted the respondent, stating that the complainant had been discriminated against. Several meetings were arranged to discuss the complainant's return to work, but he failed to keep the appointments. The complainant called to the respondent premises on 6 January with a letter of resignation, but again was asked to re-consider the decision. Following further failure of the complainant to make contact as agreed, the respondent says it sent him a letter on 20 January enclosing his P45 and his P60. The respondent says it did not include a leaving date on the P45 as it still considered him to be an employee.
3.13 The respondent says that the complainant again called to its premises on 18 February, this time to say he wished to return to work. It says that the Manager sought assurances that he would return, since he had failed to attend so many previously arranged meetings. The respondent says that the complainant indicated that he didn't want to talk about what had happened and that he found it difficult and embarrassing showing up at this stage. The respondent says the Manager said he was happy to have the complainant return to work but that his probationary period would be extended by the length of his sick leave absence. The complainant then met with Mr A, Mr B and Mr D who welcomed him back, and the complainant resumed work on 19 February.
3.14 The respondent says that the complainant approached the HR Manager on 31 March, saying that other employees were throwing "bits of steel" at him when his back was turned and his visor was down, and that he had lost concentration and burnt his hand as a result. The respondent says the HR Manager noted there was a mark on his hand, but it was so small as to be barely visible. However, the HR Manager spoke to Mr A, the welding supervisor, who confirmed that throwing small bits of steel - known as "pegging" - did occur, but that he very much doubted that the complainant was being targeted for any particular reason. Mr A said that "pegging" took place long before the complainant started working, and it was strictly forbidden by management. Mr A spoke to the employees of the welding section and told them that "pegging" had to stop.
3.15 The respondent says that the complainant attended work at 6am the next morning and told Mr A he was going to the doctor. The respondent says that he returned later with a medical certificate stating he was suffering from anxiety and depression. On inspection of the certificate, the respondent says it was noted that it was dated 1 January to 9 January. The respondent says the Manager spoke to the complainant and explained that the welding supervisor was satisfied the complainant was not being targeted in any way. The Manager told the complainant that an expert on bullying and harassment had been engaged to review the company's policies and invited him to meet her to discuss his concerns. The complainant agreed to meet the expert the next morning.
3.16 The respondent says the complainant did not attend as agreed, and was telephoned by the HR Manager, to whom he said he was unwell. The respondent says the complainant submitted a further medical certificate on 8 April which stated that he had suffered a burn injury to his hand. The respondent says this appeared to relate to a different injury from the minor injury reported by the complainant on 31 March, and claims that it has no record of the injury referred to in the certificate.
3.17 The respondent says the complainant telephoned on 16 April to ask why he had not been paid. It says the HR Manager explained the respondent did not operate a sick pay scheme, even for employees suffering an alleged occupational injury. The respondent says she also pointed out that there was no report in the accident report book of any reported injury.
3.18 According to the respondent, it came to its attention around this time that the complainant had worked for another local company. It says the complainant attended the office on 19 April with a further medical certificate for burns. The Manager and the HR Manager met him and asked him if he had worked anywhere else while he was on sick leave in January. The respondent says the complainant denied this, saying he had been in Dublin. The respondent says it was put to him that he had been working for the local company, which he denied. The Manager then told the complainant that he was being dismissed with one week's notice for gross misconduct and for breach of trust. The respondent says the complainant's response was that he had been discussing his situation with reporters and with people who knew the law. He then said that his probationary period had expired, but he was reminded it had been extended due to his period of absence. The respondent issued a letter of termination on 20 April.
3.19 The respondent concludes that it had investigated the complainant's allegations and found that no harassment had taken place, either racially motivated or otherwise. It claims further that it did everything reasonably practicable to prevent harassment from occurring, by having a written bullying and harassment policy which was regularly reviewed. The respondent says the complainant's dismissal from his employment related to a completely separate issue, namely his own misconduct, and took place a number of months after the complainant's allegations had been dealt with.
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. The claim relates to events which allegedly occurred prior to the passing of the Employment Equality Act 2004. Consequently the relevant statutory provisions are those which were contained in the Employment Equality Act 1998 prior to its amendment by the 2004 Act.
4.2 The complainant alleged that he was subjected to harassment on the ground of race contrary to the provisions of the Employment Equality Act 1998. Section 32 (5) of the Act states
...any act or conduct of E (including, without prejudice to the generality, spoken words...) 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.
It is clear that all of the comments allegedly addressed to the complainant are abusive, and I am in no doubt that several of them are racist in nature and would therefore constitute harassment on the race ground.
4.3 The Labour Court, in a recent determination of a claim on the race ground (Icon Clinical Research and Tsourova - Determination No EEA071) pointed out that "The allocation of the burden of proof in discrimination cases is now governed by s85A (1) of the Act as amended. This provides: -
(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
This Section was enacted to give effect to Article 10 of Directive 2000/78 (the Framework Directive) and Article 8 of Directive 2000/43 (the Race Directive). In Determination EED054 Tsourova v ICON Clinical Research [2005] 16 E.L.R. 250 the Court took the view that the rule of evidence provided by s 85A of the Act as amended is applicable in current proceedings including proceedings relating to events which occurred prior to its enactment. In line with that conclusion the Court is satisfied that if the Complainant can establish facts from which discrimination can be inferred the onus of proving the absence of discrimination shifts to the Respondent." The first matter to be addressed, therefore, is whether the complainant has established the relevant facts.
4.4 The complainant was unable to provide any witnesses to the comments allegedly addressed to him. The respondent, also, did not bring any members of staff other than the welding supervisor, Mr A, to the hearing, and no evidence was adduced that Mr A knew of the alleged harassment. The only evidence available to me was therefore the complainant's uncorroborated testimony. On being questioned at the hearing, he appeared to have been genuinely hurt and offended by some of the comments he described. I wish to note that some of the comments, not listed above but described to me by the complainant at the hearing, were extremely offensive and lewd. On balance, I found the complainant's testimony to be convincing and I am satisfied that he was subjected to the harassment complained of.
4.5 Section 32 of the Act imputes to an employer liability for certain acts of harassment suffered by an employee. The section states
(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...
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.
(2) Without prejudice to the generality of subsection (1)...if, in a case where one of the conditions in paragraphs (a) to (c) of that subsection is fulfilled --
(a) E harasses C by reference to the relevant characteristic of C, whether or not in the workplace or in the course of C's employment, and
(b) C is treated differently in the workplace or otherwise in the course of C's employment by reason of C's rejection or acceptance of the harassment or it could reasonably be anticipated that C would be so treated,
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.
4.6 The respondent argued that all perceived discriminatory comments arose from cultural misunderstandings and that, in any case, its prompt action to deal with the complaints provided it with a defence against the claim. As I am satisfied that harassment occurred, I must determine whether the respondent can rely on the defence available in section 32 (6), which states
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).
4.7 The respondent submitted a copy of its Safety Statement, which includes its written policy on bullying and harassment. I note that the policy encompasses all of the grounds included in the Act, and defines harassment in terms consistent with the definition in section 32 (5) of the Act. In Dublin Airport Authority, Shannon Airport and Mr Omar Khatimy (Determination No 067), the Labour Court said "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...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."
4.8 The respondent submitted that its policy was prominently displayed and its employees encouraged to familiarise themselves with it. No evidence was adduced by the complainant that this was not the case, and I wish to note that the policy appears to be a comprehensive and appropriate document. I note also that the respondent acted promptly to deal with both the complainant's informal and formal complaints, by speaking with Mr B with regard to the former and by appointing an independent investigator with regard to the latter.
4.9 However, the outcome of the independent investigation cannot be seen as completely satisfactory. Without in any way impugning the investigator, I note with concern the finding that cultural misunderstandings were solely responsible for the problems between the complainant and his work colleagues. The formal complaints, detailed at 3.6 above, clearly indicated that abusive language was directed at the complainant and there were obvious indications that both bullying and racial harassment may be involved. It is not clear from reading the report if the investigator actually had sight of the written complaints, or if the respondent questioned her failure to specifically refer to them. It would appear that the respondent should have investigated the matter more closely, and I am not satisfied that the appointment of the independent investigator absolves the respondent of further responsibility.
4.10 It is clear that the respondent made several efforts to assist the complainant's return to work, which were frustrated by the complainant's failure to keep several appointments to discuss the matter. However, I note that the complainant was suffering from stress at the time and had made several attempts to resign from the company. I am satisfied that the respondent was genuinely committed to the complainant's return to work, but it seems to me that it would have been reasonable to have put some form of support in place to assist his re-integration into the workplace. This support would be even more necessary in circumstances where the complainant had formally complained about his colleagues. Despite its apparent good intentions, the respondent appears to have had no plan in place to facilitate the complainant's resumption. From the evidence available to me, there was no contact between the complainant and management between his return on 19 February and his complaint of "pegging" on 31 March.
4.11 The complainant was the only black employee in the company, he had made complaints of harassment by fellow employees and the independent investigator had found that there were cultural differences between the complainant and his colleagues. As stated previously, I am not satisfied that "cultural differences" adequately describe the circumstances between the workers. It is clear, however, that the facts of the situation should have alerted the respondent to the necessity to take action to ensure the complainant did not feel isolated within the workplace. No such action was taken, and I find that the respondent's failure to deal with the situation after the complaints were investigated constituted discrimination against the complainant on the ground of race.
4.12 The complainant alleged he was subjected to discriminatory dismissal by the company. The respondent disputed this, saying he was dismissed because of gross misconduct unconnected with his complaints. Section 77 (2) of the 1998 Act states
If a person claims to have been dismissed-
(a) in circumstances amounting to discrimination by another in contravention of this Act, or
(b) in circumstances amounting to victimisation,
then...a claim for redress for the dismissal may be brought to the Labour Court and shall not be brought to the Director.
This was amended by the 2004 Act, and such claims may now be brought to the Director. However, the complainant's dismissal occurred on 20 April 2004, prior to the commencement of the 2004 Act, and I do not have jurisdiction to consider his dismissal.
5. DECISION
5.1 Based on the foregoing, I find that the respondent discriminated against the complainant contrary to the provisions of the Employment Equality Acts 1998 - 2004, when he was harassed by fellow employees and in its failure to prevent his isolation within the workplace.
5.2 I find that the complainant's dismissal is outside my jurisdiction to investigate.
5.3 I hereby order that the respondent
(i) pay the complainant the sum of €7,500 in compensation for the effects of the discrimination; and
(ii) carry out a review of all of its employment procedures and ensure that its harassment and bullying policies are formally and adequately disseminated among its employees.
_____________________
Anne-Marie Lynch
Equality Officer
19 April 2007