DEC-E2010-147-Full Case Report

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2008

Decision - DEC-E2010-147

PARTIES

Laurentiu Eugen Iacob
(represented by MacGuill and Company
Solicitors)

and

The Central Hotel
(represented by Matheson Ormsby Prentice
Solicitors)

File Reference: EE/2007/295
Date of Issue: 3rd August, 2010

Keywords: Employment Equality Acts, 1998 to 2008 - Section 6(2)(h) - Race - Section 8 - Conditions of employment - Harassment - Discriminatory Dismissal - Constructive Dismissal - failure to establish a prima facie case of discrimination

1. Dispute

1.1 This case concerns a complaint by the complainant, Mr. Laurentiu Eugen Iacob, that he was subjected to discrimination by the respondent, The Central Hotel, on the grounds of his race contrary to section 6(2)(h) and section 8 of the Employment Equality Acts, 1998 to 2008 in terms of his conditions of employment and discriminatory dismissal. The complainant also claims that he was subjected to harassment contrary to section 14A of the Acts.

2. Background

2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 19th June, 2007. In accordance with her powers under section 75 of the Employment Equality Acts, the Director delegated the cases on 18th August, 2009 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. A written submission was received from the complainant on 28th August, 2008 and from the respondent on 11th May, 2010. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 13th May, 2010 and 2nd July, 2010.

3. Summary of the Complainant's case

3.1 The complainant is a Romanian national and he has been residing in Ireland for a period in excess of ten years. He was employed by the respondent as a Hall Porter from 8th April, 2002 until 15th March, 2007 when he claims that he was constructively dismissed from his employment. The complainant stated that there was a change in the hotel's management in or around April, 2006 and he claims that he experienced a deterioration in his conditions of employment from this time until he was constructively dismissed. The complainant claims that during this period of his employment he was subjected to offensive and humiliating treatment at the hands of Mr. A, Managing Director, which included verbal and racial abuse. He claims that he was subjected to regular incidents of discrimination and harassment during the course of his work and that these incidents invariably involved the Managing Director, Mr. A. The complainant provided evidence in relation to these incidents which can be summarised as follows:
- On or around May, 2006 a conference was held in the hotel at which the complainant was working. At one point the complainant was asked by Mr. A to "look after the bar". The complainant did not go to the bar immediately as he had to wait to serve tea and coffee to the conference participants during a break which was scheduled. After he had attended to this task the complainant proceeded to the bar where he was met by Mr. A who confronted him as to why he had not proceeded to the bar immediately. The complainant began to explain his delay but Mr. A began to shout at him in front of the people who were present. Mr. A informed the complainant that "he was the boss" and that if he didn't do as he was told "he would be sacked". The complainant stated that he was extremely embarrassed and humiliated by this encounter as he had never been addressed in such a manner in his previous 4 years as an employee of the hotel.
- A number of weeks after this incident the complainant was asked by Mr. A to clean the canopy of the hotel. This canopy was on the first floor and he was asked to climb out onto the canopy without any safety equipment. The complainant expressed his reservations to Mr. A given the risks involved but Mr. A told him that "if you don't do it I will sack you" and referred to the complainant as "a lazy Romanian b......d". The exchange ended when Mr. A demanded that the canopy be cleaned "when I come back or else you're out the f.....g door". The complainant complied with this direction as he feared losing his job.
- On occasions groups of drug users would congregate in the stairwell at the entrance to the hotel cellar where they would inject heroin. Mr. A would ask the complainant to go out and get rid of them. The complainant would protest at this due to fears for his safety, however, Mr. A would insist that he carry out this direction or else he would be "f.....g sacked". On such occasions the complainant would usually pretend to go and carry out these instructions in order to avoid confrontation with Mr. A.
- On one occasion during the Summer of 2006, Mr A. requested the complainant to deliver a letter to a given address. The complainant went to deliver the letter but was unable to find the address despite his best efforts. When the complainant returned to the hotel with the letter undelivered Mr. A became very angry and abusive despite his explanation that he was unable to find the address. The complainant submitted that Mr. A called him a "useless Romanian b.....d" and gestured that he "was close to being f....d out".
- On or around August 2006 the complainant was approached by Mr. A and accused of stealing coca-cola from the hotel's cellar. The basis for this allegation was that Mr. A had found some empty bottles in the cellar which he believed had been drank by the complainant. The complainant denied this allegation but despite this Mr. A persisted to accuse the complainant and informed him that he would call the Gardai if it happened again. The complainant submitted that there was no subsequent formal investigation and that he was not afforded the opportunity to establish his innocence.
- On or around the 7th February, 2007, Mr. A accused the complainant of using the hotel mobile telephone for personal calls. The complainant denied this allegation and questioned why he was accused as he was only one of many who had access to this phone. The respondent deducted €150 from the complainant's wages as recompense for the telephone calls following this incident.
- On or around March, 2007 the complainant was directed by Mr. A to restock the cellar. This entailed removing empty kegs and crates from the cellar and bringing in the newly delivered kegs and crates. On average there would be up to 20 kegs and the same number of crates which had to be moved up a flight of steps between the cellar and the street. On this occasion the complainant was suffering from back pain and requested if someone else could help him with this task. The complainant submitted that Mr. A became angry and abusive towards him and referred to him as a "lazy Romanian b......d" whilst insisting that he carry out the task.

3.2 The complainant stated that it was following this incident in March, 2007 that he finally gave notice to the respondent that he was resigning from his employment as he was unable to continue to tolerate this treatment. The complainant ceased his employment on 15th March, 2007 and he submitted that the incidents outlined above are illustrative but not exhaustive of the type of treatment to which he was subjected by Mr. A during the course of the final eleven months of his employment.

3.3 The complainant denied that he was given a total of six written warnings by the respondent regarding his conduct and performance related issues during the latter stages of his employment. He accepted that he may have received two or three of these written warnings although he claims that these warnings were issued by Mr. A as a means of covering up the derogatory treatment to which he was being subjected.

3.4 The complainant submitted that the respondent acted in an openly hostile and discriminatory manner towards him over a prolonged period of time. It was submitted that this treatment culminated in conduct, acts and omissions on the part of the respondent towards the complainant such that it was made impossible for him to continue to be employed by the respondent. The complainant submitted that his resignation on 15th March, 2010 amounts to constructive dismissal within the meaning of the Acts.

4. Summary of the Respondent's case

4.1 The respondent is a hotel which currently employs approx. 34 employees, of which over two-thirds are non-Irish national employees, comprising somewhere between nine and ten different nationalities. The respondent stated that the complainant commenced employment as a Hall Porter on 29 August, 2002 and that he was required to carry out a range of duties including that of general maintenance. The respondent stated that the complainant was an excellent employee up until late 2004; however, from this period of time onwards his work deteriorated and a number of issues arose including the following:

- becoming confrontational towards other members of staff, in particular towards female members of management. The respondent referred to an incident which it claims occurred in January, 2005 when the Head of Housekeeping discovered the complainant in a hotel room notwithstanding the fact that the room was unoccupied. The respondent submitted that this female member of staff was subjected to verbal racist abuse and general abusive language by the complainant.
- attempting to goad another member of staff, Mr. B, into saying something derogatory so he could tape it using a concealed dictaphone and later bring this to the attention of the Duty Manager. This included the complainant calling Mr. B an "Irish b.....d" and indicating that he would get him fired; and
- often boasting that he would get management to sack him so that he could bring a claim against the hotel.

4.2 The respondent submitted that in addition to the above behaviour the complainant was given a total of six final written warnings in accordance with its disciplinary procedure. These written warnings were issued to the complainant as a result of incidents such as being late for the third shift in a row and leaving the bar unattended (12th April, 2006); for losing the keys and for his failure to complete the handover to the next porter on duty (12th June, 2006); for unacceptable time-keeping (12th November, 2006); for making telephone calls from the phone in a function room (classed as stealing), not completing tasks, unauthorised absence when on duty and not keeping in touch with reception and making personal calls on a mobile phone during work hours (4th February, 2007); for time-keeping (9th March, 2007); abusing another staff member and reducing him to tears whilst gloating about it afterwards (15th March, 2007).

4.3 The respondent (by way of evidence from Mr. A, Managing Director) also addressed each of the allegations of discriminatory treatment made by the complainant (as outlined in para. 3.1) and its response can be summarised as follows:
- The respondent has no recollection of the incident in which the complainant claims that he was requested to look after the bar.
- The respondent submitted that while the complainant may have been requested to clean the canopy, it would not have allowed this to have happened without using the proper safety equipment as this would have been in breach of its health and safety guidelines.
- The respondent submitted that no porter was ever requested to get rid of drug users from the stairwell at the entrance to the hotel cellar. It was submitted that the respondent put in place a number of measures to ensure that individuals could no longer gain access to this area such as installing a steel door and intercom system, requesting An Garda to inspect the entrance on a regular basis and giving each porter panic buttons with direct communication to a nearby Garda station. In addition, when it was necessary for porters to go into the cellar, the respondent recommended that they be accompanied by a colleague at all times.
- The respondent submitted that it had no recollection of the incident in relation to the delivery of the letter occurring. The respondent stated that it uses the Pony Express at a cost of €2.50 per letter and therefore, it would make no economic sense to send the complainant on such a task, as alleged, as it would have taken him away from his duties.
- The respondent submitted that the loss of stock from the cellar was an ongoing problem. It claims that all porters, including the complainant, were sent a number of memoranda specifically stating that as they were the only employees with access to the cellar, they were being held responsible for such losses. The respondent submitted that each porter, including an Irish national, were warned in relation to these losses, however no deduction from wages occurred.
- The respondent submitted that it has a number of meeting rooms and that prior to these rooms being used, it is the porters responsibility to physically place a telephone in these rooms. This is done to specifically prevent members of staff using hotel telephones in an unauthorised manner. The respondent submitted that on a number of occasions whilst one of these meeting rooms was not in use, a large number of calls were made. Following an investigation of this matter, it was established that these calls were made while the complainant was the only porter on duty and he was the only person with access to these phones. The respondent also stated that the numbers dialled were to numbers associated with him such as his partner, Ms. C (who had been previously employed by the respondent). The respondent stated that the complainant was deducted a sum of €150 from his wages which was less than half of the actual cost incurred.
- Mr. A denied that the incident in relation to the re-stocking of the cellar ever occurred and therefore the respondent stated that it was not in a position to comment any further on this allegation.

4.4 The respondent denies that the complainant was subjected to harassment by Mr. A or that there was any desire on his part to dismiss the complainant from his position. The respondent submitted that if this was the case, it could have elected to dismiss him on a number of previous occasions given that he had been afforded six final written warnings during the latter stages of his employment. The respondent submitted that it had a policy in place to deal with harassment in the workplace which made it clear that any employee who had an issue in this regard could raise the matter through the grievance procedure that was in place. The respondent claims that the complainant was at all times aware of this policy, yet he never brought any of these allegations of harassment to the attention of any member of management. The respondent also denies that the complainant was constructively dismissed from his employment and it claims that he voluntarily resigned his position on the basis that he had accepted alternative employment in the construction industry at a greater salary.

5. Conclusions of the Equality Officer

5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.

5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2).....". Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins".

5.3 The issue for decision by me in this case, then, is whether or not the respondent (i) discriminated against the complainant on grounds of race, in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts in relation to his conditions of employment during the period from April, 2006 until his employment terminated on 15th March, 2007, (ii) harassed the complainant on the grounds of race, in terms of section 6(2) of the Acts and (iii) whether his resignation constitutes discriminatory constructive dismissal on the ground of race contrary to section 8(6) of the Acts. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence of the parties at the Hearing.

Discriminatory Treatment

5.4 In the present case, the complainant has claimed that he experienced a deterioration in his conditions of employment following the appointment of Mr. A to the position of General Manager in or around April, 2006. The complainant claimed that during this period of his employment he was subjected to offensive and humiliating treatment at the hands of Mr. A which included verbal and racist abuse. The complainant has claimed that this treatment amounts to discriminatory treatment in relation to his conditions of employment on the grounds of race contrary to the provisions of section 8(6) of the Acts.

5.5 Having considered the evidence adduced by the complainant, I am not satisfied that he has adduced sufficient evidence from which I could conclude that he was treated less favourably than other workers of a different nationality in relation to his conditions of employment contrary to this section of the Acts. I therefore find that the complainant has failed to raise a prima facie case of discrimination in relation to his conditions of employment contrary to section 8(6) of the Acts.

Harassment

5.6 The vast majority of the complainant's evidence relates to incidents involving his interaction in the workplace with Mr. A whereby the alleged conduct of Mr. A would appear to fall within the definition of harassment within section 14A(7) of the Acts. "Harassment" is defined in section 14A(7)(a) of the Acts as "any form of conduct related to any of the discriminatory grounds being conduct which ... has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person". Section 14A(7)(b) further states that "such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material".
I am satisfied that the incidents described by the complainant in his evidence, if proven, would constitute harassment on the grounds of nationality within the meaning of section 14A of the Acts.

5.7 I also note that section 14A(1)(b) states that where harassment is found to have occurred and the victim is treated differently in the workplace in the course of his or her employment by reason of rejecting or accepting the harassment, this harassment constitutes discrimination by an employer in relation to the victim's conditions of employment. I am therefore obliged to consider the allegations of harassment made by the complainant in the present case in the context of the provisions of section 14(A)(1) of the Acts.

5.8 In considering this issue, I note that there is a complete conflict in the evidence of the parties in relation to the issue as to whether or not the alleged incidents of harassment that have been described by the complainant actually occurred. The complainant, on the one hand, has claimed that he was subjected to offensive and humiliating treatment at the hands of Mr. A, over an eleven month period between April, 2006 and March, 2007, which included verbal and racist abuse. The respondent, on the other hand, has denied that the complainant was subjected to any such treatment or abuse by Mr. A and it counter claimed that his level of performance deteriorated post 2004 to such an extent that it was necessary to issue him with six final written warnings.

5.9 I must therefore examine the evidence of both parties in order to decide, on the balance of probabilities, which evidence is the more credible in the circumstances of the present case. In reaching my conclusions in this matter, I have taken the following points into consideration:

- The complainant made no complaint of harassment to the respondent on the race ground while he was employed by the respondent despite the fact that he alleges that the harassment at the hands of Mr. A was ongoing for a period of approximately eleven months prior to the termination of his employment in March, 2007.
- The complainant never complained to his immediate supervisor/manager (who was not Mr. A) nor did he ever seek to invoke the respondent's Grievance Procedure during the period of time that he claims the harassment was taking place. I note that the respondent had a policy in place to deal with harassment in the workplace and I am satisfied that the complainant would have been aware of the existence of this policy especially in light of the fact that he had been in the employment of the respondent for a period of four years prior to when the alleged harassment commenced.
- The respondent gave evidence that there was a deterioration in the complainant's performance post 2004 which resulted in him being issued with six final written warnings during the period from April, 2006 to March, 2007. The complainant disputed this evidence and he denied that there had been any difficulties in relation to his performance. Based on the evidence adduced, I have found the respondent's evidence to be more credible in relation to this issue and I am satisfied that there was, in fact, a number of issues in relation to the complainant's performance during this period which required the respondent to invoke its disciplinary procedure. In coming to this conclusion, I have taken into account that there were a number of inconsistencies and contradictions in the complainant's evidence in relation to whether or not he received these final written warnings. I have also found the documentary evidence which the respondent submitted in evidence (including copies of the written warnings) regarding these performance relates issues to be persuasive in relation to this issue.
- The respondent gave evidence (which was not disputed by the complainant) that there were approx. 10 different nationalities employed by the hotel in 2007, including three Romanian nationals. The complainant claimed that Mr. A subjected him to harassment because he was a Romanian, however he also gave evidence that Mr. A did not subject any of the other non-Irish national workers (including the other Romanian nationals) to harassment or abusive behaviour. Whilst I accept that there may not have been a positive working relationship between Mr. A and the complainant, I do not accept the complainant's evidence that any issues which arose between himself and Mr. A were in any way attributable to his Romanian nationality.

Issue of Audio Recording presented in evidence

5.10 The complainant sought to present evidence of an audio recording (which he had recorded on a personal dictaphone) of a conversation between Mr. A and himself which he claimed had taken place a number of weeks prior to the termination of his employment in March, 2007. The complainant claimed that during this recorded conversation Mr. A was aggressive in his manner and used sexually derogatory language referring to him as a "p....k". The complainant also claimed that during this conversation he was denigrated on the basis of race with references being made to translation. The respondent objected to this audio recording being admitted into evidence on the basis that it had been made without the knowledge or consent of Mr. A. The respondent submitted that the recording of this conversation amounted to a breach of Mr. A's right to privacy under both the Constitution and The European Convention on Human Rights and that it was also in breach of the Data Protection Act, 1988. Having carefully considered the submissions of both parties regarding the admissibility of this audio recording, I decided that I was not precluded from admitting it into evidence.

5.11 I have considered the content of this audio recording and whilst I accept that Mr. A adopts an aggressive tone and uses inappropriate language towards the complainant during this incident, I do not accept that the nature of the language used could be construed as harassment of the complainant on the grounds of his Romanian nationality within the meaning of section 14 A of the Acts.

5.12 Having carefully considered the totality of the evidence adduced, I have found the respondent's evidence to be more credible in relation to this issue and I therefore find that the complainant has failed to establish a prima facie case of harassment on the grounds of his nationality within the meaning of section 14A of the Acts.

Discriminatory Dismissal

5.13 The final element of the complainant's claim concerns the assertion that he was constructively dismissed from his employment as a result of the harassment which he claims that he was subjected to by Mr. A. Section 2(1) of the Acts defines dismissal as including:
"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract, without giving such notice, or it was or would have been reasonable for the employee to do so .... "

In An Employer -v- A Worker (Mr. O No. 2) the Labour Court comprehensively addressed the issue of constructive dismissal under employment equality legislation. It noted that the definition was practically the same as the definition of "dismissal" contained in the Unfair Dismissals Acts and held that the tests for constructive dismissal developed under that legislation i.e. the "contract" test and the "reasonableness" test were applicable tests under the Employment Equality legislation. In the present case, I am satisfied that the "reasonableness" test is the more appropriate. It requires the complainant to satisfy the Tribunal that the behaviour of the respondent was so unreasonable that he could not fairly be expected to put up with it any longer and he was therefore entitled to resign from his employment. The corpus of case law developed on this point requires the complainant, before taking the unilateral step of terminating his employment, to give the respondent the opportunity to address his grievance.

5.14 In the present case, the complainant has claimed that the alleged discriminatory treatment and harassment (which included racial and verbal abuse) to which he was subjected by Mr. A was of such a nature that he was left with no option but to resign from his position in March, 2007. As I have already stated in para. 5.10 above, I have found the respondent's evidence to be more credible regarding the allegations of harassment and I am not satisfied that the complainant has established a prima facie case of harassment on the grounds of his nationality within the meaning of the Acts. I have also taken into consideration that the complainant failed to make any complaint to the respondent regarding the alleged discriminatory treatment nor did he attempt to invoke the grievance procedure which the respondent had in place to deal with harassment in the workplace. In the circumstances, I am not satisfied that the complainant has established that the conduct of the respondent towards him in the months preceding the termination of his employment was such that it was reasonable for him to terminate his contract of employment. Having regard to the foregoing, I find that the complainant has failed to establish a prima facie case of discriminatory dismissal in terms of the Employment Equality Acts, 1998 to 2008.

6.1 Decision

6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
(i) the complainant has failed to establish a prima facie case of discrimination on the grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts in relation to his conditions of employment.
(ii) the complainant has failed to establish a prima facie case of harassment on the grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 to 2008 and contrary to section 14A of those Acts.
(iii) the complainant has failed to establish a prima facie case of discriminatory dismissal on the grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 to 2008 and contrary to section 77 of those Acts.
Accordingly, I find in favour of the respondent in this case.

______________
Enda Murphy
Equality Officer
3rd August, 2010