The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2011-090
PARTIES
Ahmed Velic
(Represented by Willie Fawsitt BL, instructed by Dillon solicitors)
AND
Remoc Limited t/a Malone O'Regan, Consulting Engineers
File reference: EE/2008/765 & EE/2009/482
Date of issue: 3 May 2011
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 and 8 - Gender - Religion - Race - Discriminatory Dismissal - Harassment - Victimisation & Victimisatory Dismissal
1. DISPUTE
1.1 This dispute concerns a claim by Mr Ahmed Velic that he was dismissed in a discriminatory manner in terms of section 8 of the Employment Equality Acts and that he was harassed in terms of section 14A of the Acts and that he was victimised and dismissed in a victimisatory manner in accordance with section 74(2) of the Acts by Remco Limited t/a Malone O'Regan Consulting Engineers on the grounds of gender, religion and race contrary to section 6(2) of the Acts.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on 13 November 2008 and a further claim on 21 July 2009 under the Employment Equality Acts. On 26 May 2010, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 15 October 2010 and final information was received on 3 December 2010.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant has dual Bosnian/Irish citizenship and started work for the respondent on 11 December 2006 as a Senior Engineering Technician.
2.2 He submits that he has a complaint of discrimination against Mr A, a Director with the respondent. He submits that Mr A used foul language, unjustified criticism and sarcasm to humiliate him in front of other staff dating from January 2007 and he gave a number of examples:
On 14 September 2008 the person with responsibility for IT used abusive language when they had a dispute over a problem with the complainant's computer. Mr A asked the complainant to sign a letter saying that his behaviour was unacceptable. The complainant submits that he had done nothing wrong and when he had a discussion about this with Mr A he used foul language.
At the end of October and on 4 November 2008 Mr A used inappropriate and foul language in discussions on a particular project.
On 8 Nov 2008 the complainant was looking for a pick axe in the office to take on a site visit and in the middle of the reception area Mr A said he would need an instruction book. This caused other people in the reception area to laugh at him and he felt humiliated.
On 11 Nov 2008 the complainant left the office to take three mobile phone calls, two concerned a project he was working on, one of which was from a client and one from an architect, the third call was private. Mr A told him he spent too much time on the phone and to remember that four people had been made redundant. As a consequence of the threat of redundancy the complainant refused to come to work the next day.
On 13 November 2008 he wrote a letter of complaint to a Director, Mr B in which he accused Mr A of repeated inappropriate behaviour, loud voiced criticisms and obscenities, ridiculing him, unwanted conduct and bias, overloading him with work, not giving him credit for his work contribution, social exclusion or isolation and intimidation. The complainant also made his first complaint to the Equality Tribunal on the same day; that he was discriminated against on the ground of his gender in relation to a discriminatory dismissal and harassment.
2.3 The complainant submits that on 16 April 2009 his representative wrote to the respondent setting out his complaints and on 21 April 2009 he was made redundant. The complainant submits that he was victimised when he was unfairly selected for redundancy. He made his second claim to the Equality Tribunal on the same day, that he was discriminated against on the grounds of his religion and race in relation to discriminatory dismissal, harassment, victimisation and victimisatory dismissal.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denies that any discriminatory treatment took place. They state that the complainant started working for them on 11 December 2006 as a Senior Engineering Technician. In or around August 2008 the complainant started his own business and was attending his own business during office hours.
3.2 The respondent submits that on 21 August 2008 the complainant was absent without proper reason. On 22 August Mr B spoke to the complainant about his unexplained absences on 6 and 21 August 2008. The complainant responded by raising difficulties he was having with Mr A.
3.3 The complainant continued with his own business and on 4 September 2008 Mr C, an Associate Director, spoke with the complainant about the number and nature of phone calls he was making and receiving. On 10 November 2008 Mr A queried the complainant about the use of his mobile phone. On 12 November 2008 the complainant failed to attend for work. He phoned Mr B and accused Mr A of harassment. On 13 Nov 2008 the complainant submitted a written complaint to Mr B. On 18 November 2008 Mr B met the complainant and asked for a meeting with the complainant and Mr A but the complainant refused to meet.
3.4 The respondent engaged White HR solutions and on 28 January 2009 a representative met with the complainant and Mr A. From 29 January to 9 February 2009 the complainant was away from work. On 30 January 2009 the respondent sent the complainant to an Occupational Health Doctor who said he was fit to return to work and recommended he avoid contact with Mr A. The respondent accommodated this recommendation in terms of reporting arrangements.
3.5 The respondent submits that on 9 February 2009 the complainant said he did not want to pursue the mediation option they were offering as he had made his complaint to the Equality Tribunal. The respondent told the complainant that a formal investigation would have to be held.
3.6 The complainant suggested that he could move to the respondent's office in Waterford and the respondent could pay for his home rental and relocation expenses. The respondent said such a relocation was not an option on the terms proposed by the complainant.
3.7 The respondent submits that the investigation did not uphold complainant's complaints against Mr A and recommended further mediation but the complainant was not willing to participate.
3.8 On 1 April 2009 the complainant proposed only working four days per week, with the complainant to choose the day off to suit him and the respondent refused this suggestion. The complainant then requested that the respondent make him redundant. The respondent submits that on 20 April 2008 they offered the complainant redundancy, having been selected on fair and objective criteria. The respondent submits that they received a letter from complainant's representative claiming unfair dismissal whilst he was still in their employment.
3.8 The respondent submits that the complainant has made no submission in relation to the ground of gender that was on his first claim form.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 At the hearing the complainant confirmed that he was not pursuing his claim in relation to gender. Therefore, I have to decide if the complainant was dismissed in a discriminatory manner and if he was subject to harassment and if he suffered victimisation and victimisatory dismissal on the grounds of his religion and race. 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 presented at the hearing.
4.2 Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. Section 6(1) of the Employment Equality Acts, 1998 and 2004 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).....". In this claim the grounds are race and religion.
HARASSMENT
4.3 In relation to his claim of harassment the complainant related a number of incidents that he claimed amounted to harassment. He had made a complaint about Mr A to the respondent regarding some of these incidents and the respondent engaged an external body to conduct an investigation into his allegations. At the hearing Mr A gave evidence in relation to the incidents:
in relation to the incident with the IT specialist he said that the complainant wanted him to dismiss the other person involved. He contended that he used "very strong" language but denies swearing at the complainant,
he contended that he would not have used inappropriate and foul language in discussions on a project as alleged by the complainant,
he stated that the incident regarding a pick axe should have been a minor matter. The complainant did not want to go on site and the comment was just banter,
he stated that he considered the complainant was using his phone too much for calls related to his other business. The complainant confirmed that he had a business of his own but it had nothing to do with engineering and he only worked on it outside of office hours.
4.4 At the hearing, in addition to the incidents referred to in his written submissions, the complainant made allegations about two incidents that directly referred to his race and/or religion for the first time. In the first incident he alleges that an Engineer from Zimbabwe made a comment to the complainant that "the Serbs did a good job". The complainant complained to Mr C and Mr A about this incident. For the respondent, Mr A consulted his diary for a contemporaneous note he made of the incident. He said it took place on 27 February 2007 and he spoke to both the complainant and the Engineer from Zimbabwe who apologised. As far as he was aware the complainant was satisfied that the incident had been dealt with and did not want the matter to be taken any further. In the second incident in July 2007 the complainant and Mr A were discussing a television programme. The complainant alleges that Mr A asked the complainant his religion and when he said Muslim Mr A made a comment about him (the complainant) coming to work "strapped up". The complainant says he went away and said nothing but was very upset. Mr A stated that he has no memory of the conversation. He knew the complainant's religion but was not sure when he became aware of it.
4.4 The complainant also made new allegations that in August 2007 he was moved into cramped office conditions. He was overlooked and people were looking at him. The respondent says there was a general change in the seating arrangements for staff. All the technicians were put in the middle of the room and the complainant was not disadvantaged as a result. The complainant also alleges that a number of members of staff went to lunch in UCD on Fridays but no foreigners were ever invited. He also felt excluded when he was not invited to a lunch for a colleague's birthday. The respondent says that the lunches were a private arrangement amongst some members of staff. The respondent says they were unaware that the complainant did not receive an email invitation to the lunch.
4.5 Section 14A(7)(a) of the Acts defines harassment as "any form of unwanted conduct related to any of the discriminatory grounds" None of the incidents about which the complainant complained to the respondent or which he put in his EE1 claim form or written submission to the Equality Tribunal directly relate to his race or religion. At the hearing he gave evidence of two incidents which referred to his race and/or religion. The respondent provided a contemporaneous note of the first incident which indicates that it was dealt with at the time to the satisfaction of the complainant. At the hearing the complainant did not agree with the note but I accept Mr A's evidence and conclude that the respondent dealt with the incident at the time. I also accept his evidence that he has no memory of the second incident. I also have to consider that despite the nature of the alleged remark the complainant made no complaint to either Mr B or Mr C which he had with other incidents referred to previously. I conclude that these remarks do not amount to harassment.
4.6 The other incidents do not make a direct reference to the gender, race or religion of the complainant and I can find nothing in the evidence provided that leads to me to make any inference that can be seen to amount to harassment on any of the discriminatory grounds.
I therefore find that the complainant has failed to demonstrate a claim of harassment.
DISCRIMINATORY DISMISSAL, VICTIMISATION & VICTIMISATORY DISMISSAL
4.7 The complainant contends that he did not volunteer for redundancy. He did enter into negotiations about a possible redundancy package when the respondent sent out a notice to all staff looking for voluntary redundancies but stated he only did this because he felt uncomfortable at work. The negotiations were unsuccessful and the complainant contends that soon after this he was made compulsorily redundant on 21 April 2009 because his solicitor wrote to the respondent on 16 April 2009. The respondent contends that the complainant volunteered for redundancy, subject to the right package being available for him, and they concur that there was no agreement on a package. Shortly after this they state that the complainant was made compulsorily redundant as a result of a review they undertook. This resulted in three other people being made redundant at the same time.
4.8 No evidence was put forward that the dismissal arose because of discrimination on any of the discriminatory grounds. The claim in relation to victimisation relates solely to the complainant stopping working for the respondent. Therefore I have to decide if the complainant was dismissed in a victimisatory manner. Section 74 (2) of the Acts states: ".....victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings [under this Act] by a complainant, ......." The complainant made his first complaint to the Equality Tribunal in November 2008 and his solicitor referred to this in his letter of 16 April 2011 and stated that the complainant was being made redundant because he made the complaint. The respondent contends that his dismissal had nothing to do with his complainant. Firstly the complainant came to them and volunteered for redundancy if a suitable package could be agreed. When no agreement was reached the complainant was made redundant as a result of a review of all sections of the workplace.
4.9 The proximity of the two events makes them appear connected. They are connected by the respondent's decision to reduce their workforce. They provided a copy of the review of four sections of the workforce (Junior Technician, Senior Technician, Junior Engineer and Senior Engineer) and the personnel in them. It shows the factors that were taken into account before decisions were made to make four staff redundant (one was voluntary) and to reduce the hours of other staff. The respondent also provided copies of the letters that were issued to all four, including the complainant, who were made redundant on 21 April 2009. Given the objective criteria used in the assessment I do not accept the complainant's contention that the decision to make him redundant was tainted by the involvement of Mr A. In accepting that the four redundancies were made at the same time and as a result of a review using objective criteria I conclude that the decision to make the complainant redundant was not victimisatory.
5. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the respondent:
did not harass the complainant in relation to his race and religion,
did not dismiss the complainant in discriminatory manner,
did not victimise the complainant or dismiss him in a victimisatory manner.
____________________
Hugh Lonsdale
Equality Officer
3 May 2011