FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : THE CENTRAL HOTEL (REPRESENTED BY MATHESON ORMSBY PRENTICE, SOLICITORS) - AND - MR IACOB LAURENTIU (REPRESENTED BY MACGUILL AND COMPANY, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2008.
BACKGROUND:
2. The Worker referred his case to the Labour Court on the 7th September, 2010. A Labour Court hearing took place on the 4th May, 2011, and was continued on 29th June, 2011. The following is the Court's Determination:-
DETERMINATION:
This is an appeal by Mr. Iacob Laurentiu against a Decision of an Equality Officer dated 3rd August 2010 in a claim which he brought against his former employer, The Central Hotel.
In this Determination the parties will be referred to by the designations given to them at the original hearing i.e. Mr. Laurentiu as “the Complainant” and The Central Hotel as “the Respondent”.
The Complainant referred a claim to the Equality Tribunal on 19th June 2007 claiming that he was discriminated against on the race ground contrary to Sections 6(2)(h) of the Employment Equality Acts 1998-2008 (the Acts) in terms of his conditions of employment and discriminatory dismissal. The Complainant also claimed that he was subjected to harassment contrary to Section 14A of the Acts.
At the hearing before the Equality Tribunal on 13th May 2010 the Complainant submitted a further claim of sexual harassment contrary to Section 14A of the Acts.
The Equality Officer found that the Complainant (i) had failed to establish a prima facie case of discrimination on the grounds of race in relation to his conditions of employment; (ii) had failed to establish a prima facie case of harassment on the grounds of race; and (iii) had failed to establish a prima facie case of discriminatory dismissal on the grounds of race.
The Complainant appealed the Equality Officer’s Decision and in particular he appealed against the Equality Officer’s failure to adjudicate upon the claim of sexual harassment advanced at the hearing before the Equality Officer.
Background
The Complainant is a Romanian national who has been residing in Ireland since 1999. He commenced employment as a Hall Porter with the Respondent from 8th April 2002 until 15th March 2007 when he claimed that he was constructively dismissed from his employment.
The Complainant's case
Mr. James MacGuill, Solicitor, MacGuill & Company, Solicitors, presented the case on behalf of the Complainant at the first day of the hearing and Ms. Karina O’Leary, Solicitor, MacGuill & Company, Solicitors, presented the case on the second day. They submitted that the Respondent discriminated against the Complainant when it acted in an openly hostile and discriminatory manner towards him over a prolonged period of time. Mr MacGuill submitted that this treatment culminated in conduct, acts and omissions on the part of the Respondent towards the Complainant to such an extent that it was impossible for him to continue in its employment.
The Solicitors for the Complainant stated that the Complainant experienced deterioration in his conditions of employment in or around April 2006 when there was a change in the Hotel's management. They stated that the Complainant was subjected to offensive and humiliating treatment at the hands of Mr. A, Managing Director of the Respondent, which included verbal and racial abuse. He was subjected to regular incidents of discrimination and harassment during the course of his work and these incidents invariably involved the Managing Director, Mr. A. The Complainant cited a number of incidents when he was subjected to such treatment, summarised as follows:
•In or around May, 2006, a conference was held in the Hotel in 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 started 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 four 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 in front 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".
•In or around August 2006 the Complainant was approached by Mr. A and accused of stealing stock 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 drunk by the Complainant. The Complainant denied this allegation but despite this Mr. A persisted in accusing the Complainant and informed him that he would call the Garda� 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.
•In or around the 7th February 2007, Mr. A accused the Complainant of using the Hotel mobile telephone for making 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.
•In or around March 2007 the Complainant was directed by Mr. A to restock the Hotel cellar. This entailed removing empty kegs and crates from the cellar and bringing in the newly delivered kegs and crates. Up to 20 kegs and 20 crates had to be moved up a flight of steps between the cellar and the street. On one occasion the Complainant was suffering from back pain and requested help with the 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.
The Solicitors for the Complainant stated that it was following this incident in March 2007 that the Complainant finally gave notice of his resignation. He told the Respondent that he was resigning from his employment as could no longer tolerate this treatment. The Complainant ceased his employment on 15th March 2007 and 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 final eleven months of his employment.
The Solicitors for the Complainant denied the Respondent’s contention that the Complainant had been given a total of six written warnings concerning his conduct and performance-related issues during the latter stages of his employment. The Complainant 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 the Complainant, was being subjected.
The Solicitors for the Complainant submitted that the Respondent’s openly hostile and discriminatory manner towards the Complainant over a prolonged period of time and which was based on the Complainant’s race made it impossible for him to continue in the Respondent’s employment and this amounted to constructive dismissal within the meaning of the Acts.
Finally, the Solicitors for the Complainant submitted that an incident, which occurred on 20th February 2007, should be considered as sexual harassment and that such claim should be permitted as a claim under the Acts despite the fact that it was submitted out of time in accordance with Section 77(5) of the Acts. On that day the Complainant recorded on a personal dictaphone a conversation between Mr. A and himself wherein he alleged that Mr. A was aggressive in his manner and used sexually derogatory language referring to the Complainant 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's case
Mr. Ger Connolly, Solicitor, Matheson Ormsby Prentice, Solicitors, on behalf of the Respondent, denied the allegations of discrimination made by the Complainant. He stated that the Respondent employs approximately thirty four employees, of which over two-thirds are non-Irish national employees and comprising somewhere between nine and ten different nationalities. Mr. Connolly stated that the Complainant was required to carry out a range of duties including general maintenance. He said that the Complainant was an excellent employee up until late 2004 after which his work deteriorated and a number of issues arose including the following:
•The Complainant became confrontational towards other members of staff and in particular towards female members of management. The Respondent referred to an incident, which occurred in January, 2005, when the Head of Housekeeping discovered the Complainant in a Hotel room notwithstanding the fact that the room was unoccupied and on discovery the Complainant subjected her to verbal racist abuse and general abusive language.
•The Complainant attempted to goad another member of staff, Mr. B, into saying something derogatory so that the Complainant 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.
•The Complainant often boasted that he would get management to sack him so that he could bring a claim against the Hotel.
Mr. Connolly 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 warnings were issued to the Complainant for the following reasons:
-12th April, 2006, for being late for the third shift in a row and leaving the bar unattended;
-12th November, 2006, for unacceptable time-keeping;
-4th February, 2007, 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;
-5th March, 2007, for abusing another staff member and reducing him to tears whilst gloating about it afterwards.
-9th March, 2007, for time-keeping;
Mr. Connolly stated that in 2007 the Respondent employed workers from approximately ten different nationalities, including three Romanian nationals. He stated that the issues which arose between the Complainant and the Respondent stemmed from a deterioration in the Complainant’s work performance. He contended that the Complainant acknowledged that no other staff member, including other Romanians, were subjected to such alleged harassment.
Mr. Connolly denied that the Complainant was subjected to harassment by Mr. A or that there was any desire on the Respondent’s part to dismiss the Complainant from his position. He submitted that there were sufficient grounds to dismiss the Complainant as evidenced by the numerous warnings given, however, it had decided not to do so.
Mr. Connolly submitted that the Respondent 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. The Complainant was aware of the policy yet he did not bring any of the allegations of harassment to the attention of management.
Mr. Connolly told the Court that following an investigation into the matter of the use of the Hotel’s mobile telephone for making personal calls, 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 the Complainant.
Mr. Connolly denied that the Complainant was constructively dismissed and contended instead that he had voluntarily resigned his position on the basis that he had accepted alternative employment in the construction industry at a greater salary.
Preliminary Issue
The Solicitors for the Complainant contended that, while the Equality Officer considered the complaint of harassment on the ground of the Complainant’s nationality in relation to the incident which occurred on 20th February 2007, he did not proceed to deal with the separate stand-alone complaint that the language used was a form of sexual harassment given the graphic term used. The Solicitors for the Complainant confirmed that this claim, which was first mentioned at the Equality Officer’s hearing on 13th May 2010, when application was made to the Tribunal to amend the original complaint of harassment referred to it on 19th June 2007 to include a complaint of sexual harassment. At that hearing it was submitted to the Equality Officer that the Complainant alleged that Mr. A had called him a"p…k". It was further contended this word, which through its derivation an colloquial use has a sexual meaning, and therefore its use amounts to sexual harassment for the purposes of the Acts. The Solicitors for the Complainant stated that the use of the word was proven via an independent audio recording provided by the Complainant.
The Solicitors for the Complainant relied upon the case ofCounty Louth VEC v The Equality Tribunal[2009] IEHC 370 to support their contention that the claim was in time. In that case McGovern J. held that it was permissible to amend a claim, not specified in Form EEI, where an application to that effect was made to the Tribunal, as long as the general nature of the complaint remained the same and in circumstances where the Respondent would not be prejudiced by the change.
The Solicitors for the Complainant stated that the Complainant was not seeking to adduce new evidence nor to admit new details or complaints wholly unconnected with those of which both the Equality Tribunal and the Respondent were already on notice. They said that the outline and indeed the particulars of the complaint remained the same. The Complainant was merely seeking to have the allegation in question specifically addressed in the interests of justice.
Mr. Connolly, on behalf of the Respondent, stated that such a claim was out of time and in any event the use of the word"p…k"does not of itself or automatically amount to sexual harassment. He contended that the instant case can be distinguished from theCounty Louth VECas in that case an extension was permitted when, following the amendment, the general nature of the complaint remained the same. He held that to include the claim first made at the Equality Officer’s hearing on 13th May 2010 of alleged sexual harassment would fundamentally alter the nature of the complaint.
Conclusions of the Court
In their statement of appeal the Solicitors for the Complainant stated that they do not take issue with the statements of law propounded by the Equality Officer, however, they do take issue with his procedural rulings and his evaluation of the evidence. Therefore, the Court is being asked to consider the inclusion of the alleged claim of sexual harassment on the basis that the Equality Officer did not consider it under “procedures”. Under “evaluation of evidence” the Court is being asked to consider that Mr. A was not a credible witness as he did not produce the telephone records relating to the incident which occurred on 7th February, 2007, regarding the Complainant’s alleged abuse of the Hotel mobile telephone and he did not produce records of performance-related issues to substantiate the allegation that the Complainant’s performance deteriorated post-2006.
The Court has considered the written and oral evidence given by both parties and has taken account of the direct evidence given by both the Complainant and Mr. A.
Claim of Sexual Harassment
The Court notes that the claim of sexual harassment grounded upon the alleged use of the word“p…k”referred to the Equality Officer on 13th May 2011 was submitted as a separate "stand-alone” complaint. Ms. O’ Leary on behalf of the Complainant submitted to the Court that in addition to the three claims referred on 19th June 2007 (discrimination on the race ground in terms of his conditions of employment; harassment on the race ground and discriminatory dismissal) the Complainant was also seeking redress for alleged sexual harassment.
TheCounty Louth VECcase is authority for the proposition that it is permissible to amend a claim, not specified in Form EEI, where such an application is made, as long as the general nature of the complaint remains the same and in circumstances where the Respondent is not prejudiced by the change. In this case the Court is satisfied that the complaint of alleged sexual harassment does not come within the same “general nature of the complaint” of discrimination on the race ground but comes instead within the classification of a separate "stand-alone” complaint for which the Complainant sought separate redress. Accordingly, the Court does not have the jurisdiction to hear the complaint as it was submitted out of time.
In the alternative, if the Court decided that it had jurisdiction, it is in no doubt that the single use of the word in question during an argument between the Complainant and Mr. A., while clearly a term of vulgar abuse which should not form part of the normal exchange between employer and employee, however, the Court is of the view that it could not be classified as sexual harassment within the meaning of Section 14A of the Acts.
Claims of discrimination on the race ground in terms of conditions of employmentandof harassment contrary to Section 14A of the Acts.
In respect of the remaining complaints the Court must first consider whether the Complainant has established aprima faciecase of discrimination in respect of any of the issues raised.
Section 85A of the Acts provides that where facts are established from which discrimination may be inferred the probative burden of establishing that the principle of equal treatment has not been infringed rests on the Respondent. It is well established in the jurisprudence of this Court that the burden of proving the primary facts on which an inference of discrimination is contended rests with the Complainant and that if that initial burden is not discharged the Complainant cannot succeed.
Where the Complainant establishes aprima faciecase, i.e. where the primary facts alleged are proved, it remains for the Court to decide if the inference of discrimination contended for can properly be drawn from those facts.
The Respondent told the Court that during the relevant period covered by this claim there were approximately thirty four employees employed at the Hotel. Of these seven were Irish and all seven were in management grades.
Of the incidents cited by the Complainant, two were within time, i.e. those two dating from 20th December 2006. (Section 77(5) of the Act provides a time limit of six months from the date of the occurrence of the act of discrimination.) These, however, were disciplinary issues which the Complainant was aggrieved about and in respect of which other workers were similarly treated.
The remaining allegations consist of a series of unsubstantiated statements to the effect that a series of racial comments was used by the Managing Director of the Hotel. There is no corroborative evidence whatever for any of these allegations. The various incidents referred to during which the alleged comments were uttered, formed part of the Complainant’s duties and could not of themselves be corroborative of any complaint.
Furthermore, the Court notes that the alleged use of discriminatory language was strongly denied by Mr. A. who told the Court that as he had worked in London at a time when Irish and other nationalities were subjected to racist abuse he was therefore very conscious of such behaviour and was adamant that under no circumstances would he make such racist remarks.
Mr. A told the Court that up until 2006 the Complainant had been held in very high regard but that due to some personal difficulties he was encountering in 2006 his performance deteriorated substantially. Mr. A. said that it was for that reason and the expectation that the Complainant would return to his normal good behaviour that the Respondent had not terminated his employment despite the many final written warnings issued to him.
At the hearing of the appeal before the Court the Complainant accepted that he had been issued with three warnings, (12th April 2006 final written warning; 9th March 2007 warning; and 15th March 2007 warning) and denied that he got the other warnings. Mr. Connolly submitted to the Court that this was a complete change of position as at the Equality Officer's hearing, the Complainant stated that he had received no warnings at all. At the hearing of the appeal before the Court the Complainant accepted that that had been his evidence at the Equality Officer’s hearing.
The Court notes that the Complainant accepted that other workers (including non-Irish nationals) in the Hotel were not treated in a discriminatory way, both at the Equality Officer’s hearing and again before the Court.
Having considered the evidence the Court is satisfied that commencing in 2006 there was a deterioration in the relationship between the Complainant and the Managing Director which descended into the use of inappropriate language. The Court can conclude that the Complainant was subjected to conduct which may have the effect of violating his dignity in the course of his employment. However, he can only avail of the protection of the Act if it is found that his race was a reason for the treatment complained of. The Court is not satisfied that facts have been established on the balance of probabilities to raise the inference contended that the Complainant was discriminated against on the grounds of race.
In these circumstances, therefore, the Complainant’s complaint of discrimination on racial grounds in respect of the terms and conditions of his employment must fail at first instance. He has failed to prove sufficient facts to allow the Court to make a finding that aprima faciecase has been established.
Constructive Dismissal
Mr. Connolly submitted to the Court that the Complainant’s claim of constructive dismissal does not meet the criteria set down inConway v Ulster Bank UD474/1981where the Employment Appeals Tribunal held that an employee must substantially utilise the grievance procedure in an attempt to remedy his/her complaints before resigning from the employment. He submitted that the Complainant made no complaint concerning the alleged discriminatory treatment and left the Respondent’s employment to take up more lucrative employment in the construction sector.
Ms. O’Leary stated that the Complainant did not invoke the grievance procedure as his grievance was with the Managing Director and there was no suitable Manager to submit a grievance to.
Section 2(1) of the Act defines a dismissal as including:
- “[T]he termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in 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….”
- "This definition is practically the same as that contained at section 1 of the Unfair Dismissals Acts 1977 –2001 and the authorities on its application in cases under that Act are apposite in the instant case. It provides two tests, either or both of which may be invoked by an employee. The first test is generally referred to as the “contract” test where the employee argues “entitlement” to terminate the contract. The second or “reasonableness” test applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.
The contract test was described by Lord Denning MR inWestern Excavating (ECC) Ltd v Sharp [1978] IRLR 332as follows:- “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance”
There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts him or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer’s conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation, but is so unreasonable as to justify the employee in resigning there and then." - “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance”
The Facts
In arriving at its Determination in this appeal the Court has taken account of all the evidence adduced including the various warnings given to the Complainant. It is noted that the Complainant was furnished with a written contract of employment at the commencement of his employment in 2002. This contract made reference under the Grievance Procedure to Clause 6 of the Employee Handbook. It outlined the procedure an employee should take in the event of them having a grievance with management. The procedure includes a number of steps before any reference is made to the Managing Director.
The Complainant told the Court that he did not mention his grievance to any member of management and he did not invoke the grievance procedure as he had no one to refer it to. The procedures provide for a referral in the first instance to his immediate manager, in this case the Duty Manager or the General Manager.
Ms. O’Leary stated that the Complainant did not invoke the grievance procedure as his grievance was with the Managing Director and there was no suitable Manager to submit his grievance to.
The Complainant’s claim of discriminatory constructive dismissal is grounded upon the allegations upon which he also relied in bringing his claim of discrimination in relation to his conditions of employment.
Since the grounds upon which the Complainant relied to establish his claim of discrimination on racial grounds in relation to his conditions of employment were held to be insufficient to establish aprima faciecase, it must therefore follow that the Complainant’s complaint of discriminatory dismissal, relying as it does on the same uncorroborated allegations, must also fail. The Complainant has not, on the balance of probabilities, established facts from which it can be inferred that there is aprima faciecase of discriminatory constructive dismissal.
In the light of this finding there is no necessity for the Court to consider Mr. Connolly’s submission as to the Complainant's use of the Respondent's grievance procedure.
Determination
The Court determines that the Complainant has not established facts from which aprima faciecase of discrimination on the ground of his race in terms of his conditions of employment within the meaning of Section 8 of the Acts might be made.
The Court determines that the Complainant has not established facts from which aprima faciecase of harassment on grounds of his race within the meaning of Section 14A of the Acts might be made.
The Court determines that the Complainant has not established facts from which aprima faciecase of discriminatory constructive dismissal within the meaning of Section 2 of the Acts might be made.
The Court determines that it has no jurisdiction to hear the complaint of sexual harassment within the meaning of Section 14A of the Acts as the claim was submitted outside the time limit laid down under the Act.
The Court upholds the Decision of the Rights Commissioner and the appeal fails.
Signed on behalf of the Labour Court
Caroline Jenkinson
15th July, 2011______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.