Equality Officer’s Decision

DEC-E2011-025

Gerschen Moodley

(represented by Conor Bowman, B.L. instructed by Antonia Cosgrave,  Bourke and Co. Solicitors)

versus

Counter Product Marketing Ltd

(represented by Mairéad Crosby, Irish Business and Employers Confederation)

File reference: EE/2009/770

Date of issue:  10th February 2011      

Keywords: Employment Equality Acts, Race, Harassment, Section 14A (2) Defence, Access to Promotion.

1.    Dispute

1.1 This dispute concerns a complaint by Gerschen Moodley against Counter Product Ltd. The complainant alleges that he was discriminated against on the grounds of  race in relation to promotion and was harassed on the same ground  within the meaning of Section 14A of the Employment Equality Acts 1998-2008 [hereinafter referred to as the ‘Acts’].

1.2 The complainant referred his complaint under the Act to the Director of the Equality Tribunal on 16th October 2009. In accordance with her powers under Section 75 of that Act, the Director delegated the case on 2nd June 2010 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. Submissions were received from both parties and a hearing was held on 29th September 2010. The final response to information I sought as part of my investigation was received on 15th November 2010.

2.         Summary of the complainant’s case

2.1 Mr Moodley commenced employment with the respondent on 18th July 2005 as a Residential Sales Representative on the Eircom Account. This entailed door-to-door (cold-calling) sales. He submits that he was subjected to consistent verbal harassment as well as not being considered for promotion.

2.2 The complainant refers to various incidents of alleged harassment. The main allegations on the ground of race were:

(i) he submits an other field sales representative, Mr A said in a coffee shop with the rest of his team present 'Look, you are the only black in here'.

(ii) He also alleges that Mr A said 'Oh Gersch, I was at a customer's house and they said some fat, black South African was there'. In the investigation conducted by the respondent following a grievance made by the complainant, an other field representative conceded that this comment might have been made.

(iii) the complainant maintains that his Regional Sales Manager Mr B used to put his phonecalls on speakerphone when others were present and mock his South African accent by saying 'Ja' instead of 'Yes'.

(iv) Mr B made a comment about a sales area in Dublin saying 'Don't work there, full of foreigners, there is no point - it is full of Poles'. The complainant submits he found this offensive as he is a foreign national himself.

(v) The complainant submits that Mr B made a racist joke in his presence during the working day:

      Why does Beyonce sing 'To the left, To the left'?

      Because niggers have no rights.

2.3 The complainant maintains that he felt so stressed by the culmination of this alleged bullying that he was unable to attend a team meeting on 24th August 2009 He rang Head Office asking to speak to the Human Resources Manager to inform her of this. She was unavailable but an other employee in Human Resources instructed him to attend the meeting. Mr Moodley drove to the depot where the meeting was held but he felt unable to go in. Mr B (his direct supervisor) went to Mr Moodley's car to ask him to attend where the complainant was holding a Stanley knife and threatening to self-harm.

2.4 Mr Moodley submits he felt alienated on his team as he was the only black person there. Between the commencement of his employment and 2009, he submits that foreign nationals were 'weeded out' of his team. Only he and a British person remained. The complainant maintains that he trained in many people - some of whom were promoted ahead of him. To see how sales were conducted, Mr Moodley submits he was chosen as the person that senior people from Eircom accompanied. For the same reason, the present National Sales Manager also accompanied him before doing the interview for that position.

2.5 The complainant submits that he devised a sales technique for a product that was difficult to sell. Mr C, the Area Sales Manager (his manager's manager) instructed him to demonstrate it all of his team. Because he was over-achieving on his targets for this product, all of Mr C's team adopted this technique. He submits that the Mr C took credit for this.

2.6  The complainant states that he mentioned to Mr C many times about his interest in promotion. He submits that it is almost impossible to be promoted in CPM Ltd without the imprimatur of somebody at Mr C's level. Mr Moodley submits that he returned from holidays to find a person with less experience than him promoted to Team Leader. The complainant submits that the person promoted was a friend of Mr C's - they used to work together in a pub. As he was on leave, the complainant was not given an opportunity to apply for this position. He maintains that he applied for a lateral transfer to the Bord Gais account but he never received a response to his application nor was he called to interview. Mr Moodley submits that he was never made aware of promotional vacancies. In the respondent's own investigation Mr D, an other field sales representative, said 'No, I have never gone for interview but Mr C would have asked me on a number of occasions to go for team coach'. The complainant maintains that this shows that other people were being advised of and encouraged to go for promotional positions. He maintains that he always met his sales targets and had an exemplary disciplinary record so there was no reason that he was not recommended for promotion.

2.7 Mr Moodley remains an employee of the respondent but is currently on unpaid sick leave on the grounds of work-related stress.

3.         Summary of respondent’s case

3.1 CPM Ireland Ltd was established in 1986. They employ approximately 500 people including 300 field sales representatives which was the position Mr Moodley held.

3.2 The respondent submits that the complainant worked for three years with CPM without issue. When he raised the issues outlined above with the Human Resources Section, he was sent a copy of the respondent's grievance procedure. The complainant subsequently raised a grievance and the respondent submits that the matter was investigated thoroughly by a HR Generalist in conjunction with the National Sales Manager. The investigation was appealed to the Head of HR. They submit that they did everything in their control to investigate this complaint as fairly as possible. The respondent submits that they were left with no option but to find that the bulk of Mr. Moodley's complaints were unfounded. The respondent argues that the complainant has sought to refer the same grievance letter to the Equality Tribunal for a further and separate investigation into the same allegations.

3.3 In relation to the specific allegations in 2.2, their investigation was inconclusive regarding (i), (ii) and (iii). In relation to (iv), Mr B conceded that he made this statement but that it was not intended to be racist or in any way offensive. As one of the recommendations of the investigation, Mr B was to be sent on an anti-bullying, anti-discrimination course. As other members of the team admitted to comments that could be interpreted as racial, a recommendation was made to send the whole team on an anti-bullying and harassment course.

3.4 In the initial investigation, the respondent had found the evidence as to whether the allegation at 2.2(v) occurred to be inconclusive. However, on appeal the respondent found that Mr B made this 'joke' as Mr D also remembers it. Mr B has been disciplined accordingly. As a result of the appeal, the complainant has been allowed four weeks of paid sick leave and allowed to report to a different line manager.

3.5 Regarding access to promotion, Mr. Moodley had previously said to the National Sales Manager he was not interested in promotion. He did not formally apply for promotion as per their recruitment policy. CPM deny that promotions were within the gift of the line managers. The respondent further submits that all field representatives were expected to bring new recruits with them for training purposes.

3.6 In the investigation report, Mr C, the Area Sales Manager, denies that the complainant came up with this sales technique. Regarding the internal transfer, the respondent submits that he was not singled out. Mr Moodley simply did not get this position for logistical reasons - it took a while to get these positions set up and by the time this happened, the Dublin vacancies were already allocated.

3.7 The respondent submits it is an equal opportunities employer and that it resents the accusation of causing or allowing the complainant to be the victim of discrimination. It also points out that it has a Bullying and Harassment policy in compliance with Section 14A of the Acts.

4.         Conclusions of the Equality Officer

4.1 There are two issues for me to decide:

(i) Was the complainant harassed on the ground of race within the meaning of Section 14A of the Acts?

(ii) Was the complainant discriminated against by CPM Ireland Ltd in relation to promotion as per Section 8 (1)(d) of the Acts on the grounds of race?

4.2 In reaching my decision I have taken into account all of the submissions,     written and oral, made by the parties. Section 6 (1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is race.

4.3 Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Prima facie evidence has been described as ‘evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.’[1]

Harassment

4.4 Section 14A (7) of the Act defines harassment as any form of unwanted conduct related to any of the discriminatory grounds and 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. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

4.5 Section 14A (2) provides a defence for an employer if it can prove that it took reasonably practicable steps to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects [my emphasis]. I have examined the respondent's Prevention and Management of Bullying/Harassment in the Workplace Policy and the compilation of this document may be regarded as one 'reasonably practicable step' to prevent harassment. While the complainant raised a grievance under the respondent's grievance procedure, it is obvious from the first paragraph of his letter of 16th October 2009 to the Human Resources Department that his complaint is also one of bullying and harassment: 'I am being bullied in the workplace which is undermining my right to dignity at work and that I am being harassed in the workplace on the grounds of my race and colour'. It is clear from the way  in the respondent's investigation  was conducted that it was in line with its anti-bullying and harassment policy i.e. a more formal investigation took place than what is outlined in it's grievance procedure. For example, witnesses were interviewed and the line of questioning focussed on complaints of harassment within the meaning of the Acts.

4.6 Conducting such an investigation is undoubtedly an onerous task. The respondent interviewed 18 employees as well as the complainant and the investigation report consisted of 115 pages. While the respondent is to be commended for the effort undertaken, I could not escape the conclusion that the initial investigation was conducted with the purpose of proving the complainant wrong. While the complainant was correctly probed about all the allegations he made, statements made by both witnesses and those accused of harassment by the complainant were taken at face value and not probed as deeply. For example, in relation to the allegation at 2.2 (ii) an other employee said he could imagine Mr A saying 'Oh Gersch, I was at a customer's house and they said some fat, black South African was there’ as it was like something Mr A would say. However, this was not explored and the investigation of this allegation was found this to be inconclusive. In relation to the allegation in 2.2(iii) when the complainant's accusation about mocking his accent was put to Mr B as part of the company's investigation Mr B responded by saying, 'I don't think he has an accent'. From my experience at the hearing, the complainant has a very strong South African accent. Again, this disingenuous statement by Mr B could have been probed more deeply rather than merely making a finding of inconclusive [Mr B did not attend the Tribunal hearing]. To be successfully employed as a defence, an anti-harassment policy must work in practice - not just in theory. The respondent's Prevention and Management of Bullying/Harassment in the Workplace Policy states 'The complaint will be subject to an initial examination by a designated member of management, who can be considered impartial, with a view to determining an appropriate course of action'. I do not consider the investigation into Mr Moodley's complaints was impartial. For the avoidance of doubt on this issue, I am not suggesting that an independent investigator needs to be necessarily employed but the investigation must be seen to be conducted in line with natural justice.

4.7  However, despite some flaws, the investigation did recommend Equality and Diversity training for Mr B and his team. I understand this training has been completed.  I also note that the appeal of the initial investigation recommended four weeks paid sick leave for the complainant and offered to allow him to report to a different line manager. These are certainly reasonably practicable steps to reverse the effects of the harassment. While the complainant has requested since to report to a line manager outside the Dublin area, I accept the respondent's contention that this is not feasible. To do so would be beyond a reasonably practicable step to reverse the effects of harassment.

4.8 The Chairman of the Labour Court has pointed out that if the impugned conduct had the effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim 'whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the complainant, it constitutes harassment for the purpose of the Acts.'[2]

4.9 Therefore, I am satisfied that Mr Moodley was harassed within the meaning of the Acts. From the respondent's investigation report, the evidence of the complainant and witnesses he called, I am satisfied that there was a culture of casual racism within the field sales team where Mr Moodley worked. The respondent is entitled to avail of part of the defence provided in Section 14A(2) as it did conduct an investigation and attempted to reverse the effects of harassment by giving paid sick leave and recommending sessions with their Employee Assistance Officer. However, it is not entitled to avail of the full defence as the initial investigation was not sufficiently objective (in conflict with its stated anti-harassment policy) and one of the main perpetrators of the harassment was the complainant's supervisor. Mr B had been given no staff management training prior to taking on a supervisory role. Therefore, the respondent could have taken more reasonably practicable steps to prevent the harassment of the complainant.

Access to Promotion

4.10 According to Section 8(8) of the Act, an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds the employers refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access or the employer does not in these circumstances offer or afford the employee access in the same way to those opportunities. The Labour Court has held that if the protected factor or characteristic is more than a trivial influence in the impugned decision, a claim of discrimination will have been made out.[3]

4.11 At the hearing, I asked for the profile of nationalities of field sales representative and of those promoted to Team Coach/Team Leader/Regional Sales Manager. 85% to 90% of approximately 300 Field Sales Representatives were foreign nationals. There were 19 promotions to team leader since 2007, 16 of these were Irish, 1 was South African (white), 1 was Australian and 1 was British. It is significant that even though foreign nationals make up 85% to 90% of field sales representatives, only 16% of non-Irish nationals are promoted above this level. Regarding length of service before being promoted, the shortest length of service was 7.23 months and the longest was 54.6 months. The complainant was working there 48 months before he went on sick leave.

4.12 Mr D (an other field representative) gave evidence at the Hearing that Mr C was regularly encouraging him to go for Team Leader and actually got annoyed when Mr D said he had no interest. Mr D is British-born but travels on an Irish passport.  At the hearing, Mr D said he could see no reason for why he was encouraged to go for promotion and Mr Moodley was not. I found Mr D to be a cogent and credible witness and it is noteworthy that Mr D left CPM after three years of employment with them, on amicable terms, to become a professional photographer.

4.13 The respondent acknowledges that the complainant has a clean disciplinary record and there is no evidence to suggest that he did not meet his sales targets. At the hearing, Mr Moodley admitted that initially he was not interested in promotion but after a year, he felt capable of doing the Team Leader role. In the investigation Mr C stated ‘ He[the complainant] came to talk to me about life, where he wants to be. He said on Mobile or a Team Leader'. While CPM argue that Mr Moodley did not apply formally for these positions in line with their document Internal Recruitment Policy, it is clear from the evidence at the hearing and the respondent’s investigation report that employees on Mr Moodley’s team did not apply for promotions without the imprimatur of Mr C. I accept the complainant’s evidence that promotional vacancies were filled without Mr C advising the complainant of these vacancies. Therefore, I am satisfied that he has established a prima facie case that he was not allowed access to promotion in the same way as Irish Nationals were and the respondent has failed to rebut this.

Decision

I have concluded my investigation of Mr Moodley’s complaint and hereby make the    following decision in accordance with Section 79(6) of the Act. I find that:

(i)                 the complainant was harassed on the ground of race within the meaning of Section 14A of the Acts

(ii)               the respondent  did  discriminate against the complainant on the ground of race in relation to promotion contrary to Section 8(1)(d) of the Acts

In calculating the redress, I have taken into account all of the circumstances of the case. Pursuant to 82 (1) (c) I order that the respondent pay the complainant

(i) €5,000 for the effects of harassment

(ii) €10,000 for the effects of discrimination regarding access to promotion

This award is in compensation for the infringement of Mr Moodley's statutory rights and, therefore, not subject to income tax as per Section 7 of the Finance Act 2004.

_______________
Orlaith Mannion

Equality Officer

Footnotes:

[1] EE5/1986 Gibney v Dublin Corporation

2 EDA1023 Nailzone Ltd and A Worker

3  EDA0714 A Technology Company v a Worker