THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 170
PARTIES
Mr Pawel Siekerski
Mr Rafal Labedzki, Mr Lukasz Jedlinski,
and Mr Mariusz Kowalski
(represented by Richard Grogan and Associates)
and
Sales Placement Ltd.
File Reference: EE/2007/120
Date of Issue: 7 September 2010
Headnotes: Employment Equality Acts, 1998 & 2004,, section 6,8, 14 and 77 - harassment, Section 14A - Section 2(3)(c), agency worker - Section 14A(2) defence
1. Delegation under relevant legislation
1.1. On 5 March, 2007, the complainants referred complaints under the Employment Equality Acts, 2000 & 2004 to the Director of the Equality Tribunal, alleging that the respondent (who is a recruitment agency) had harassed them on the ground of race contrary to the Employment Equality Acts (hereinafter referred to as "the Acts"). Written submissions were sought from both parties.
1.2. On 22 July, 2009, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, 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, on which date my investigation commenced. Clarification of certain matters were sought from the parties. A hearing of the complaints was held in Dublin on 27 May, 2010.
2. Dispute
2.1. This case concerns complaints by Mr Pawel Siekierski, Mr Rafal Labedzki, Mr Lukasz Jedlinski and Mr Mariusz Kowalski, all Polish nationals, that they were discriminated against by Sales Placement Ltd.. in respect of harassment on the ground of race, in terms of section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 (hereinafter referred to as "the Acts") and contrary to section 14A of those Acts.
3. Summary of the Complainants' case
Submissions in relation to all complainants
3.1. The complainants submitted that they were subjected to harassment on the ground of race while they worked for Sales Placement Ltd. as general operatives in an industrial site operated by a third party (hereinafter called Z Ltd.). They submitted that this harassment was carried out by two of their co-workers, Mr A and Ms B, who supervised them and who were employed by Z Ltd.. The complainants illustrated the behaviour in question by referring to a number of incidents which served as examples of the alleged behaviour.
Submissions in relation to Mr Siekerski
3.2. The first-named complainant, Mr. Pawel Siekerski is a Polish national. He referred to an incident on 24 January, 2007, when he submitted that his supervisor forbade him from speaking in Polish with two of the other complainants, Mr Labedzski and Mr Jedlinski, while they were eating ("the eating incident"). He said that, on 25 January, 2007, the same supervisor accused him of stealing when he was holding a TV set in order to destroy it ("the TV incident"). On 5 February, 2007, he submitted that he was sweeping the floor with two of his colleagues when they were told by this supervisor that they were idiots from Poland who do not even know how to sweep a floor and that, when they confronted the supervisor, they were told they would "pay for answering me" ("the sweeping incident"). They submitted that this was the last day they worked with Z Ltd. and were scheduled by the respondent to be in a different workplace thereafter. Mr Siekerski also referred to an incident on an unknown date where the supervisor shouted at him, and other fellow Polish workers, saying "you f*****g lazy Poles." ("the shouting incident").
3.3. He submitted that he complained to the respondent about the conditions of employment in Z Ltd.. He submitted that it acknowledged his phone call and the behaviour in question but told him that it could not do anything about it.
Evidence of Mr Siekersk
3.4. Mr Siekerski was the first of the complainants to give evidence at the hearing. He stated that he started working with Z Ltd. on 22 January, 2007. He confirmed that Ms A was the supervisor referred to in the complainants' submissions, at least as far as the incidents involving him were concerned, and elaborated on his submissions in relation to those incidents. In relation to the eating incident, he stated that Ms A said "polish food is stinking like you are stinking" to the three complainants concerned. In relation to the TV incident, he added that she said to him that he should "leave the TV cos you are a thief from Poland, you are too stupid for that." In general, Mr Siekerski stated that Ms A was very rude to them all saying "you f****g Polish, you lazy Poles" He said that Ms A wanted them to do everything she wanted but that they couldn't say anything against it. He said she treated them like pigs.
3.5. Mr Siekerski stated that he told the respondent about what was going on. He said that the response was that they knew about it, and had known about it for four months, but that they could not do anything about it. He said that, on more than one occasion, he and Mr Jedlinski had spoken with a Ms C, who worked for the respondent and who was also Polish. He said they spoke with Ms C in Polish. Therefore, Mr Siekerski said that the respondent knew what was going on. He said that, on the day of the sweeping incident but after that incident, the respondent informed him that he would no longer be working in Z Ltd.
3.6. Mr Siekerski stated that the way he was informed about his working arrangements was that the respondent would send him a message each evening, around approximately 6-7 p.m., confirming where they would be working the next day. He said that this could change from day-to-day although it did not in relation to their time with Z Ltd, until the day of the sweeping incident. The day after he finished working at Z Ltd. (i.e. 6 February, 2007), he stated that he went to the respondent and Ms C told him that Ms A had said she did not want him working there anymore. He said that the respondent did not provide him with any work for the following 4-5 weeks, but after five weeks, he was sent to a different company where he worked for three months and where he was eventually offered a contract. In that regard, he explained that after a certain period of time a company that provided work for the respondent's workers was entitled to employ such workers on a full-time basis, after which time the respondent would no longer have responsibility for those workers.
3.7. Mr Siekerski stated that he did not have a contract of employment with anyone and that the only documentation he had received from the respondent was his initial application form and his payslip. He stated that he did not receive any documentation relating to dignity in the workplace or a grievance policy and did not receive any anti-harassment documentation either.
Submissions in relation to Mr Jedlinski
3.8. Mr Jedlinski is also a Polish national. He made the same submissions in relation to the eating incident, the shouting incident and the sweeping incident as Mr Siekerski. He also submitted that, on January 27, 2007, he was told that he was a "lazy Pole", that he should work faster and that he wasn't being paid for hanging around. He submitted that he also complained to the respondent about the conditions of employment in Z Ltd. and submitted that the respondent acknowledged that but told them that it could not do anything.
Evidence of Mr Jedlinski
3.9. Mr Jedlinski gave evidence directly after Ms Siekerski and independently from him. He stated that he also worked with Z Ltd. from 22 January to 5 February, 2007. He corroborated the evidence of Mr Siekerski in relation to all the incidents outlined at paragraph 3.2 above.
3.10. In relation to the eating incident, he added that Mr Labedzki and Mr Siekerski were with him when he was in the canteen on a break and was sitting with his Polish colleagues. In that regard, he stated that there were no other workers than Polish workers (and apart from Ms A and Mr B). Therefore, it was usual for them to talk in Polish to each other. He stated that Ms A told them that they couldn't use Polish because they were in Ireland and that she was the boss there and so she knew the rules. Mr Jedlinski also stated that, on another unspecified occasion, she said to him "you Polish b******, work faster - this is not Poland, this is Ireland." In relation to the sweeping incident, he said that they started to tell Ms A that she should not curse to them in relation to their nationality; that they were not using curse words in relation to her and so she should not use them in relation to them. He added that, from the start, he thought that Z Ltd. was not a nice company to work with. When he started working there, he said that he was put in a van with no lights and no windows and was brought to other warehouses ("the van incident").
3.11. He said that an hour before they were due to finish for the day of the sweeping incident, Ms C rang him to say that they had to move out of working for Z Ltd. and that she would find them another place to work. He said that she told him it was "the supervisor's decision" and he took this to mean Ms A.
3.12. He said that he spoke frequently with Ms C and that he explained what was going on in Z Ltd. but that her response was that the respondent knew about this and had tried to do something about it but that nothing had happened. Mr Jedlinski stated that he was paid by the respondent. He said that he did not receive any contract of employment and that the only document he got at work was his payslip
Submissions in relation to Mr Labedzki
3.13. Mr Labedszki worked with Z Ltd. for the same period of time as Mr Siekerksi. He submitted that he was involved in the eating incident and the sweeping incident and made the same submissions as the other relevant complainants in that regard, as well as in relation to their contact with the respondent about Z Ltd.
Evidence of Mr Labedzki
3.14. Mr Labedszki gave evidence directly after Mr Jedlinski and independently from him. He stated that Ms A was "not good" because she said "f****g Polish" and "f*****g" donkey". He said that, at breakfast, he was speaking Polish but that Ms A said "only speak English", "no f****g Polish" and "no more pizza" (in reference to the particular type of pizza which is popular among Polish nationals). He said that he had a lot of problems with Ms A and that these occurred every day. Mr Labedzski said that Ms C knew about the problem, and that he had spoken with her directly in that regard. He said that the respondent paid him.
Submissions in relation to Mr Kowalski
3.15. Mr Kowalski submitted that there was an incident whereby he was on a smoking break when Mr B said to him and another colleagues "you f*****g Polish". He also referred to the shouting incident. He submitted that he was subsequently dismissed when he was told that Sales Placement Ltd. no longer cooperated with Z Ltd.
Evidence of Mr Kowalski
3.16. Mr Kowalski gave evidence directly after Mr Labedzki and independently from him. He stated that he started working in Z Ltd. on 9 January, 2007, earlier than the other complainants. He said that he made contact with the respondent who placed him with Z Ltd.. He referred to incidents in which the other three complainants were not involved, including one where Ms A pushed him and said to him "work faster, f*****g" Polish guy". He said that, at other times, she did not speak but screamed at him instead. He also described an incident where she said to him that he didn't know how to wash cutlery because he was Polish and that on one occasion she accused him of being a thief. He said that he was scared when he went to work.
3.17. Mr Kowalski also gave corroborating evidence in relation to the van incident and the eating incident. In relation to the van incident, he said they drove very fast over a ramp and he said to Ms A "what are you doing, we will be broken" to which her response was "shut up, you Polish animal". Mr Kowalski stated in relation to the eating incident that Ms A said " Polish food smells, you smell, all Polish people smell". Mr Kowalski also outlined the contact he made with Ms C concerning the incidents in question.
3.18. Mr Kowalski stated that, while travelling to Poland in May , 2007 for personal reasons, he received a text message from the respondent saying his work in Z Ltd. was finished and that they would talk about his future when he got back. He said that the respondent told him that all the people they had working in Z Ltd. were now finished there, but Mr Kowalski said that he still had a Polish friend who was still working in Z Ltd. after that.
3.19. Mr Kowalski also made an allegation in relation to Mr B and said that he had a smoke break and met with Mr B, the other supervisor who worked for Z Ltd., who told him to go to the warehouse and said "you lazy f*****g Polish". He said that Mr B also said "if you are recording me, I'm in trouble".
General Submissions of Complainants
3.20. The complainants stated that they were subjected to an appalling litany of racial abuse amounting to harassment. They stated that Ms A's comments were demeaning and would even be close to incitement to hatred were the comments made in the presence of a third party who was Irish. They said that once they arrived at Z Ltd., they were immediately characterised as lazy and stupid, and that nothing was done about this. They said that the behaviour in relation to driving the van showed that the person carrying out this abuse was enjoying it. The complainants also stated that Z Ltd. claimed to have carried out an investigation, but never interviewed them. In relation to the submissions of the respondent, they stated that the correspondence to the Tribunal from the respondent clearly showed that it completely fails to recognise its responsibilities and that it knew what was going on, but wasn't going to do anything about it because it did not want to jeopardise its financial situation.
3.21. The complainants stated that they were employed by the respondent and not Z Ltd. In that regard, they argued that the person paying the wages was responsible. They said that the respondent had an obligation under the Acts to prevent harassment. In that regard, they all stated that they had informed Ms C at an early stage of their complaints against Ms A, and had done so on more than one occasion. Indeed, Mr Kowalski had informed Ms C of his complaints before the other three complainants began working in Z Ltd. In that context, the complainants said that if there had been a one-off incident upon which they had acted immediately to prevent, they could understand that. However, they reported to Ms C in a clear and unambiguous language and in Polish, and complained about the incidents very quickly, but the respondent did nothing. They added that Mr Kowalski was kept on when the other three were not because he was not present during the sweeping incident.
3.22. The complainants stated that the fact that the company was in liquidation was irrelevant to my decision in this regard. They said that the relief they sought was compensation and that a significant level of such compensation was warranted. They said that the legislation was designed to protect and that there was a duty to not put people in an environment where they were subjected to that type of abuse.
3.23. Complaints made by all four complainants against Z Ltd., also in respect of harassment, were withdrawn at the hearing.
4. Summary of the Respondent's case
4.1. The respondent, Sales Placement Ltd., submitted that the relevant contract was the one it had with Z Ltd. and that it had no responsibility towards the complainants with regard to the complaints in question. In any event, it submitted that the Tribunal had no jurisdiction to carry out an investigation into its treatment of the complainants. It submitted that the Tribunal was harassing it.
4.2. The respondent submitted that, in any event, it was never informed of the complaints by the complainants, other than Mr Kowalski. In that regard, it submitted that it immediately dealt with his complaint by informing Z Ltd. as the person to whom this "so-called" discrimination was done by, was an employee of Z Ltd. and not it. It submitted that it therefore had absolutely no control over other employer's staff. It submitted that Mr Kowalski was on a short-term contract working on a day-to-day basis and that this contract ended. It submitted he was not dismissed. It submitted he was offered another contract with another client but he refused to take this contract. It submitted that it cannot be responsible for someone in a company, with no relation to it, calling someone else a name. It said that it did not train this person, did not know this person and did not manage this person.
4.3. The respondent submitted that, in term 6 of its contract with Z Ltd. it is stated that "SPL contractors are deemed to be under the direction and control of the client. The client agrees to comply with all statutes, laws, codes of practice and legal requirements.... to which an employer is normally subject with regard to personnel in their employment". In short, the respondent submitted that it was not the employer in this case and cannot be held responsible for the actions of an employee of Z Ltd. in this respect.
4.4. On 21 April, 2010, the Tribunal received a letter from a liquidator stating that the second-named respondent had gone into liquidation and did not have any funds to pay any award that might be made by the Tribunal. The Tribunal replied to the correspondence stating that the hearing would proceed nonetheless.
5. Conclusions of the Equality Officer
5.1. Section 85A of the Employment Equality Acts, 1998 & 2004 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/her. If he/she succeeds in doing so, then, and only then, it is for the respondent to prove the contrary. 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 14A(7) of the Acts provides that harassment occurs in relation to "any form of unwanted 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 6(2) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins.." The issues for decision by me in this case, then, is whether or not the respondent harassed the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 14A of those 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.
Liability
5.3. An agency worker is defined under the Acts as being "an employee whose contract of employment is as mentioned in paragraph (b) of the definition of such a contract in this subsection." The definition of contract of employment, is, "subject to subsection (3) [of Section 2], (a) a contract of service or apprenticeship, or (b) any other contract whereby - ....(ii) an individual agrees with a person carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 to do or perform personally any work or service for another person (whether or not the other person is a party to the contract)." Subsection 3 , as referred to, states, inter alia,: "(c) in relation to an agency worker, the person who is liable for the pay of the agency worker shall be deemed to be the employer.".
5.4. These are the provisions in the Acts that govern the triangular relationship between workers recruited by employment agencies, the agency itself, and the third parties with whom the workers are placed. The Acts can be distinguished from other employment legislation in that respect, particularly as Section 2(3)(c) is not a provision that is common to employment legislation. In all the circumstances of the present case, then, it is quite clear that the respondent paid the complainants to work for third parties, in this case Z Ltd., as agency workers. Therefore, it is clear that the respondent is the employer of those persons within the meaning of the Acts.
5.5. I also note that Section 77(b) defines respondent as, inter alia, "the person who is alleged to have discriminated against the complainant" and harassment is defined as constituting discrimination. Therefore, Sales Placement Ltd. is the correct respondent in this matter.
Substantive Claim
Question of whether harassment occurred
5.6. I have no reason to doubt the evidence of the complainants and found it to be credible. It is clear from it that each of the complainants was subjected to treatment which they considered to have had the effect of violating their dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for them. It is also clear that these incidents were related to their nationality and/or ethnic or national origins. Therefore, they have established a prima facie case of harassment within the meaning of the Acts.
Respondent's rebuttal
5.7. As the respondent was not present because it was in liquidation, it did not provide any rebuttal evidence at the hearing. I note in its submissions that it stated that the only complaint of which it was aware was that made by Mr Kowalski. However, the evidence of the complainants was clear and decisive in stating that they all communicated their complaints to Ms C, who worked for the respondent. The respondent further submitted that it took appropriate action in relation to the complaint by Mr Kowalski by reporting it to Z Ltd. However, the harassment continued and the respondent did nothing more to prevent it, even though it was aware of it continuing.
5.8. The respondent also submitted that it could not be responsible for actions taken by another person over whom it had no control. However, this is not correct as Section 14A(1) is clear in stating that an employee can be harassed by another person who is "a client, customer or business contact and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it". Furthermore, in providing a defence for an employer, Section 14A(2) also clearly identifies that an employer can be liable for harassment carried out by a person other than the employer, when it states that: "if harassment....by a person other than his or her employer would....be regarded as discrimination by the employer under subsection (1)....it is a defence for the employer to prove that (it) took such steps as are reasonably practical....(a) ..to prevent the person from harassing the victim."
5.9. Therefore, the complainants are correct in admitting that if it was a one-off incident, liability may not attach to the respondent as it might not have reasonably been required to take steps to prevent the alleged harassment. Furthermore, if the respondent had taken reasonably practicable steps to prevent further harassment, it may have a defence available under Section 14A(2), particularly if it had coherent policies and procedures in place to prevent the harassment. . However, it is clear that the respondent was informed of the alleged harassment at an early stage and that it did not act upon the complaints made to it, or at least that its efforts to do so were minimal and certainly ineffective. Indeed, I am satisfied that it sent Mssrs. Jedlinski, Siekerski and Labedszki, at least, to work with Z Ltd. when it knew that Mr Kowalski had already been subjected to harassment. Finally, I note there is no evidence that it had any policies in place to prevent the harassment from taking place, or for dealing with effectively when it did.
5.10. The respondent has failed to rebut the claim of harassment.
Comments with regard to the award
5.11. While not a requirement of the Acts to establish a prima facie case, in terms of assessing quantum of an award there are certain matters which it is important to note. I note the respondent's submission that it did inform Z Ltd. about the allegation of harassment. As the complainants provided no evidence to the contrary, I find it likely that the respondent did indeed pass on such information. I also note its submission that it had no power to stop the actions of Ms A. However, the fact of the matter is that the respondent was well aware that Mr Kowalski had been harassed before it sent the other three complainants to work with Z Ltd. and it knew that they were likely to be subject to harassment. Furthermore, when the complainants requested it to take action to prevent the harassment, it ignored them. In that context, it was unmistakably culpable of subjecting the complainants on a daily basis to harassment which was deliberate, blatant and unfettered and caused them considerable distress, creating a particularly offensive work environment for them.
5.12. I note that Mr Kowalski worked with Z Ltd. for almost four months while the other complainants worked there for around two weeks. I also note that there were some differences in the level and frequency of abuse that the complainants were subjected to. I note that the complainants were paid approximately €10 per hour and would have earned approximately €350-400 per week. My award is against the respondent and not individuals so the fact that Mr Kowalski was subjected to harassment by two different individuals is not a consideration in relation to the quantum of the award. Finally, as the behaviour of the respondent was completely unacceptable, and in light of the level of the humiliation to which the complainants were subjected, I consider that my award in this regard must be in the higher end of an award that can be made in all the circumstances of the present case as, while proportionate, it must also be dissuasive. The quantum of award in relation to each complainant is reflective of these considerations.
6. 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:
6.2. I find that the complainants have established a prima facie case of harassment of them by the respondent within the meaning of section 14A of the Acts, and the respondent has failed to rebut the prima facie case established by the complainants;
6.3. I order the respondent to pay to the complainant, Mr Pawel Siekerski, the sum of €4,500 in respect of the harassment;
6.4. I order the respondent to pay to the complainant, Mr Lukasz Jedlinski, the sum of €4,000 in respect of the harassment;
6.5. I order the respondent to pay to the complainant, Mr Rafal Labedzki, the sum of €4,000 in respect of the harassment;
6.6. I order the respondent to pay to the complainant, Mr Mariusz Kowalski, the sum of €10,000 in respect of the harassment;
6.7. These awards do not relate to pay and, therefore, they are not subject to tax.
_____________
Gary O'Doherty
Equality Officer
7 September 2010