DECISION NO: DEC-E/2012/201
PARTIES
An Employee
Vs
A Respondent
FILE NO: EE/2010/725
Date of issue: 28 December, 2012
1. Dispute
1.1 This dispute involves a claim by an Employee against a Respondent that he was discriminated against on grounds of race in relation to his conditions of employment and in relation to his dismissal. The complainant has also submitted claims of victimisation and harassment on grounds of race.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2008, to the Equality Tribunal, on the 1st of October, 2010 alleging that the respondent had discriminated against him, on grounds of race, when he was treated him less favourably than his Irish colleagues regarding unauthorised absences from work and in relation to his dismissal. The complainant also submits that he was harassed on grounds of race when he was called a 'gorilla' and that he was victimised contrary to section 74(2) of the Acts following a complaint about these matters to the Rights Commissioners.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated this case on 28th of September 2012 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to a Hearing on the 3rd of December, 2012.
3. Summary of complainant's case
3.1 The complainant submits that he was employed by the respondent as a Sports Centre Attendant from 16th of April 2008 to 15th of December 2010.
3.2 The complainant submits that on 13th of November, 2008 he received a letter from the respondent advising him that his contract was to end on 31 December, 2008 instead of 31 March, 2009 due to funding issues.
3.3 The complainant later received another letter on 1 December, 2008 advising him that he was to be kept on in employment and that the contract termination date was now 31st of March, 2009.
3.4 On 2nd March, 2009 the complainant received a letter indicating that new funding was being sourced which resulted in his contract being extended beyond the 31st of March, 2009. This letter indicated that funding from the Department of Education and Science had been discontinued but stated that the respondent was negotiating new funding which would be under different terms and conditions and which would result in a new salary and conditions. This letter asked that the complainant if agreeable, to sign and return an attached document to his manager. All employees received this letter.
3.5 It is submitted that the complainant was called a 'gorilla' by a senior manager in July 2008.
3.6 It is submitted that the complainant lodged a complaint with the Rights Commissioners on 9th of April, 2009 (regarding his suspension for a disciplinary matter) after which he received a letter from the respondent accompanied by his P45 (with a cessation date of 31st of March, 2009), it is submitted that this is victimisation following his complaint. The letter which accompanied the P45 is dated 21st of April, 2009. This letter did not have any effect on his employment and the complainant continued in his position.
3.7 The complainant submits that on the weekend of 15th and 16th of May 2010 he left the building without clocking out for a period of time and following an investigation into the matter the complainant received a written warning. It is submitted that other staff also leave the building without clocking out but that he was the only one given a written warning and that this amounts to less favourable treatment on grounds of race.
3.8 It is submitted that the complainant on 24th September, 2010 received a letter suspending him with pay until a matter was resolved. The complainant submits that the subject matter of this suspension was not revealed to him.
4. Summary of respondent's case
4.1 The respondent agrees that the complainant was employed by them from 16th of April 2008 to 15th of December 2010 as a Sports Centre Attendant. The respondent submits that his main role was to care for and maintain the facility while catering for the needs of user groups by preparing rooms and providing some sports coaching.
4.2 It is submitted that the letter of November 2008 was sent to all staff and refers to a possible change in funding. Contracts were subsequently not terminated as funding was acquired from other Government sources.
4.3 It is submitted that the accusation re the complainant being called a 'Gorilla' by a senior Manager, relates to a team building exercise where one of the games involved acing as an animal selected by the instructor. These were elephant, giraffe and gorilla and all staff took part in the activity including the complainant who made no complaint at the time.
4.4 It is submitted that the complainant did make a complaint to the Rights Commissioners which he later withdrew via his representative.
4.5 It is submitted that on 17th May 2009 it was reported to the manager of the centre Mr. B, that the complainant could not be found in the centre on 15th and 16th of May when sought to provide assistance. An investigation into this matter revealed that the complainant had left the building for long periods of time during these days and that he had claimed overtime for part of this. The complainant received a written warning for this. This was a final written warning as the complainant had already had a number of verbal and written warnings. The investigation revealed that other staff were also leaving the building for short periods though not leaving the centre unattended as the complainant had. All other staff received a verbal warning in this regard.
4.6 It is submitted that the letter of 24th of September, 2010 concerned a different matter and related the viewing of pornographic websites on a computer in the Sports Centre. It is submitted that these sites were viewed on the night of Friday 10th of September when the complainant was the only staff person on duty at the time. It is submitted that the computer was password protected and that an independent witness placed the complainant in the room with the computer at the time the sites were viewed.
4.7 The complainant was suspended with pay pending a full investigation in line with Child Protection Procedures for a school and youth service setting.
4.8 The respondent submits that the upon completion of the investigation and a hearing with the complainants union representative he was dismissed and the matter was referred to an Garda Siochana.
4.9 The complainant was unable to attend his appeal of the matter as he no longer resided in this country.
4.10 An Garda Siochana have taken statements and have taken possession of the computer and are continuing to investigate the matter.
5. Preliminary issue - Time Limit
5.1 The complainant in the EE01 form has given the last date of discrimination as the 3rd of June, 2010 and has given the date of his dismissal as 24th of September, 2010. The respondent, at the hearing, stated that the complaint form was submitted on 21st of February, 2011 and that this places the last date of discrimination outside of the 6 months timescale provided for in the Acts. However, the EE01 form submitted on 21st February, 2011 was a copy of the earlier EE01 form, which was first submitted to the Tribunal on 1st of October, 2010 and copied to the respondent on 8th of October, 2010. Thus I am satisfied that the complaint was submitted within the 6 month time limit set out in Section 77(5) of the Acts. In addition, the decision in County Louth VEC v The Equality Tribunal and Pearse Brannigan, Unreported, High Court, McGovern J. 24th July 2009, provides a clear authority to allow me to investigate additional acts which occurred prior to the initiation of the claim once the nature of the claim is the same.
In Brannigan McGovern, J said:
I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But under the legislation it is clear that the complaints, which are made within that expanded period, are not time-barred. That is not to say that complaints going back over a lengthy period would have to be considered as an issue of prejudice might arise. But this is something that would fall to be dealt with in the course of the hearing in any particular case.
Of course, it is necessary that insofar as the nature of the claim is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice
I am satisfied, that in the instant case, all of the incidents relate to allegations of discrimination on the grounds of race. I am also satisfied that the respondent was on notice of all matters referred therein having received a copy of the complaint form on 8th of October, 2010. I am thus satisfied that I have jurisdiction to investigate all matters referred therein.
6. Conclusions of the Equality Officer
6.1 The issues for decision by me now are, whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6(2) (h) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts, in relation to his conditions of employment and in relation to his dismissal. I must also make a decision on whether the complainant was victimized and harassed on grounds of 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 at the Hearing.
6.2 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)....."
Section 6(2) (h) 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... "
6.3 Thus the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because he is Zimbabwean. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:
Section 85A of the Act provided for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.1
6.4 Conditions of employment
6.4.1 On the day of the hearing the complainant indicated that he had been treated less favourably than his Irish colleagues regarding the issue of unauthorised absences from work for which he had received a written warning. The complainant in his initial statement to the Tribunal, gave reasons for his having to leave work for periods of time on the weekend of the 15th and 16th of May 2010. The complainant, at the hearing and in his response to the respondent's investigation into this matter did not give the exact same reasons for his absences on these 2 days. The respondent at the hearing stated that this raises a question regarding the complainant's credibility. The complainant at the hearing stated that he couldn't recall the exact circumstances regarding his absences from work on these days but stated that he had to attend a football match either to drop or collect someone as he trains a football team and his son also plays football. He stated that it is difficult to remember the exact circumstances as he is involved in and attends football matches most weekends in his capacity as a trainer. The complainant acknowledged that he had left the building on the days in question without authorisation but stated that this was something which everyone did and that it was never a problem. He added that the only reason there was a problem on this occasion was due to the fact that someone was looking for him in the building during his absence.
6.4.2 The respondent stated that it was the case that a leader of a group using the facilities on that weekend had been in need of assistance as and as the complainant was the only one working that day they had no one else to ask for assistance. The respondent submits that the customer/group leader complained that they couldn't find any staff member to assist them on the date in question and added that this then prompted the respondent to investigate why the staff rostered to work on that day were not available. This respondent advised the hearing that they then checked the clocking in and out times for that weekend and crossed this with the CCTV footage of persons entering and leaving the building and discovered that the complainant had been absent from the building on that weekend for long periods of time.
6.4.3 The complainant states that he was the only one punished for this matter eventhough all staff left the building when things were quiet. The respondent stated that it then carried out an investigation of all staff over a period of time and checked clocking's against CCTV footage and discovered that staff were in fact leaving the building for periods of time without clocking out. The respondent stated that these staff members had not however left the building completely unattended during these absences but that they were given a verbal warning in relation to this matter and that the practice has now stopped. The respondent advised the hearing that the complainant was given a written warning in relation to this matter as he had left the building completely unattended on the weekend in question. The respondent added that this was a final written warning as the complainant had previously received a number of verbal and written warnings in accordance with the employer's disciplinary procedures. Some of these incidents were outlined by both parties during the course of the hearing. The complainant acknowledged that he had received several warnings both verbal and written. It was submitted by the complainant that other staff also left the building without clocking out but that he was the only one given a written warning and that this amounts to less favourable treatment on grounds of race. The complainant, at the hearing acknowledged that he was the only staff member in the building on the occasion in question. Accordingly, based on the totality of the evidence given I do not find that the complainant has established a prima facie case of less favourable treatment on the ground of race in relation to this matter.
6.4.4 The complainant, at the hearing stated that he had received a number of warnings both written and oral during his employment with the respondent. He stated that he had also been told that his contract was finishing and then that it was not finishing and also that he had received his P45 at one stage. The complainant stated that this was further evidence of less favourable treatment and harassment and that such uncertainty was further evidence of the respondent's 'mind games'. The complainant advised the hearing that on 13th of November, 2008 he received a letter from the respondent advising him that his contract was to end on 31 December, 2008 instead of 31 March, 2009 due to funding issues. He stated that he received his P45 shortly after this letter. The respondent at the hearing stated that all staff had received this letter due to a change in funding and that it was thought at the time that contracts would have to be terminated. However the respondent stated that contracts were subsequently not terminated as funding was acquired from other Government sources. The respondent added that all staff were advised of this change by letter dated 1 December, 2008 and again by letter dated 2nd March, 2009 which advised that contracts were being extended but that certain changes in terms would have to be made to facilitate this. The complainant acknowledged that he had received these letters and that he had agreed to the new terms. Accordingly, based on the totality of the evidence given I do not find that the complainant has established a prima facie case of less favourable treatment or harassment on the ground of race in relation to this matter.
6.5 'Gorilla' Incident-Harassment
6.5.1 It is submitted that, in July 2008, the senior Manager Mr. M. called the complainant a 'Gorilla'. The respondent in its submission has submitted that this occurred during a team building exercise on 2nd of July, 2008, where one of the games involved acting as an animal selected by the instructor. The respondent's submission states that the animal names used were elephant, giraffe and gorilla and that all staff took part in the activity including the complainant who made no complaint at the time. At the hearing, the complainant stated that the name 'gorilla' was not one of the names suggested by the instructor as part of the game but rather that the instructor was about to suggest an animal name for the complainant to mimic, when Mr. M commented aloud saying 'he definitely has to be a Gorilla'. The complainant at the hearing stated that this comment embarrassed and humiliated him but that he did not make a big deal of it at the time as it was in front of other colleagues. He added that he was upset by it and that he went home and told his wife about the incident. The complainant also stated that he had told his line manager Ms. O about the incident at a later date but that she had been moved on shortly after this and that nothing was done about it.
6.5.2 The respondent had submitted that the term 'Gorilla' had been used as part of a game. However, a statement from the course instructor, Ms. C indicated that the term 'Gorilla', was not mentioned in any of its games. Witness for the respondent Mr. B, at the hearing stated that the animals names used were elephant, giraffe and frog and that 'gorilla' was not included. At the hearing, I drew the respondent's attention to the fact that, in its submission, it had stated that a 'gorilla', was one of the animals suggested by the instructor as part of the game. Witness for the respondent Mr. M, about whom the allegation was made, stated that he had thought at the time of writing the submission that 'gorilla' was one of the animals in the game but that he now realised he was mistaken and that 'gorilla' had not been included. Mr. M was not very convincing regarding his evidence on this matter and he also repeated the phrase 'no one heard it' a number of times regarding the accusation. The complainant was very clear in his evidence on this matter and his repetition of the exact words used by Mr. M in relation to the matter was consistent throughout. The complainant took this reference to a 'gorilla' to be a derogatory comment relating to his racial origin as he is from Zimbabwe and he advised the hearing that he was upset and embarrassed by it. The complainant's evidence on this matter was consistent and convincing. The respondent's evidence, on the other hand, on this issue was inconsistent as it had initially said in its submission that the name 'gorilla' was mentioned as part of a game by the instructor but then a statement from the instructor and the evidence at the hearing was that 'gorilla' had not been a part of the game. I thus find that the complainant's version of events on this matter is more convincing and I am satisfied from the totality of the evidence adduced on this issue that the complainant has established a prima facie case of harassment on the ground of race in relation to this matter which the respondent has failed to rebut.
6.6 Victimisation
6.6.1 The complainant submitted that the respondent had tried to terminate his employment and that this is evident from the letter of 13th of November, 2008 advising him that his contract was to end on 31 December, 2008. It emerged at the hearing that all staff received this letter and that additional letters issued to staff on 1 December, 2008 and 2nd March, 2009 indicating that contracts were not being terminated as funding had been acquired from other Government sources.
6.6.2 The complainant has submitted that the respondent attempted to terminate his employment by sending him a letter accompanied by his P45 (with a cessation date of 31 March, 2009) and that this amounts to victimisation as a result of a complaint which he made to the Rights Commissioners. The complainant advised the hearing that he had made a complainant to the Rights Commissioners regarding his treatment by the respondent and that following this complaint the respondent attempted to terminate his employment by sending him his P45 and that this amounts to victimisation. It emerged at the hearing the complaint to the Rights Commissioners was made on 14th of April, 2009. The complainant had stated that the letters of 13 November 2008, 1 December, 2008 and 2 March 2009 regarding the termination of his contract were issued as a result of his complaint to the Rights Commissioners. However, as the complaint form to the Rights Commissioners indicates that it was submitted on 14th April, 2009 and as the complainant's P45 is dated 31st of March, 2010 i.e. before the complaint was submitted, it appeared that the earlier letters and P45 could not have been sent as a reaction to a complaint which had not yet been made.
6.6.3 At the hearing, it was brought to the complainant's attention that the complaint to the Rights Commissioners was made after the date of the earlier letters and after the cessation date on his P45 and he was asked if his claim re victimisation related to this complaint or whether he had made another complaint prior to that date. The complainant could not provide any details of any earlier complaint. However notwithstanding the fact that the P45 is dated 31st of March, 2009, the letter which accompanied the P45 is dated 21st of April, 2009 and so it is evident that this letter was sent to the complainant after the date on which his complaint was made to the Rights Commissioners.
6.6.4 The respondent advised the hearing that it was not aware that the complainant had received his P45 and upon examination of the letter of 21st of April, 2009 issued with the P45, it emerged that it had been issued by the central HR unit without the respondent's knowledge. At the hearing, witness for the respondent, Mr. B advised the hearing that he had also received the same letter accompanied by his P45 but that he contacted the writer of same in order to rectify the error. He also added that he had been advised that it was sent in error, due to the fact that all contracts had been due to finish on 31st of March 2009, before the new funding and terms had been agreed. The complainant, when questioned as to whether the receipt of his P45 had resulted in the termination of his employment, acknowledged that it did not affect his employment. The complainant when questioned as to whether the receipt of the P45 had affected his pay or conditions, replied that it had not. The complainant, when questioned as to whether he raised the matter of his P45 with the respondent replied that he had not. Thus I am satisfied that the complainant did receive his P45 following his complaint to the Rights Commissioners, albeit in error, but as it had no effect whatsoever on his pay or conditions, there was no less favourable treatment. Also the complainant was not the only person to receive such a letter and P45 as the manager Mr. B also received the same letter. In addition I am satisfied from the evidence given that it was not intended to terminate the complainant's employment at this time. Accordingly based on the totality of the evidence adduced I do not find that the complainant has established a prima facie case of less favourable treatment or victimisation in relation to this matter.
6.7 Discriminatory Dismissal
6.7.1 The complainant submitted that he was dismissed on 24th of September 2010. The respondent submitted that the complainant was dismissed as a result of an investigation into the accessing of inappropriate pornographic websites. The complainant at the hearing denied the allegations and stated that he was treated less favourably on the grounds of his race regarding this matter. The respondent advised the hearing that it had discovered that pornographic websites had been accessed from the centre's computer on the night of Friday 10th of September when the complainant was the only staff person on duty at the time. The respondent stated that the computer was password protected and that an independent witness had placed the complainant in the room with the computer at the time the sites were viewed. The respondent advised the hearing that the complainant was suspended with pay pending a full investigation in line with Child Protection Procedures for a school and youth service setting. The respondent advised the hearing that upon completion of the investigation and a hearing with the complainant's union representative he was dismissed and the matter was referred to an Garda Siochana. Firstly I should say that it is not within my remit to investigate or make a decision in relation to these allegations but rather it is for me to decided whether the complainant was in the circumstances treated less favourably due to his race and whether his dismissal was discriminatory.
6.7.2 In making my decision I must bear in mind the circumstances of the allegations and the respondent's evidence that it must adhere to Child Protection Procedures as it is a school and Youth Service setting. The respondent gave evidence that it had, once the matter had come to its attention, carried out an investigation and following the outcome of its investigation made a decision to dismiss, in accordance with its Child Protection Procedures for a school and youth service setting, and that it had then passed the matter to the Gardaí for appropriate action. I am satisfied based on the totality of the evidence given on this matter that the respondent's decision to dismiss was based on the outcome of its investigations into this matter and that it was not influenced by the complainant's race. I am satisfied that the respondent would have acted in the same way irrespective of the race of the employee the subject of such allegations. Accordingly, based on the evidence given, I do not find that the complainant has established a prima facie case of less favourable treatment, or of discriminatory dismissal, on the ground of race in relation to this matter.
7. DECISION OF THE EQUALITY OFFICER.
7.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -
(i) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against him on the ground of race pursuant to section 6(2) of the Acts in terms of his conditions of employment contrary to section 8 of the Acts
(ii) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against him on the ground of race pursuant to section 6(2) regarding his dismissal
(iii) the complainant has established the facts from which it may be presumed that he was victimised contrary to section 74(2) of the Acts following a complaint to the Rights Commissioners.
(iv) that the complainant was harassed by the respondent on the ground of race pursuant to section 6(2) and contrary to Section 14A (7) of those Acts.
7.2 In making my award, I am mindful of the fact that the comment made was disrespectful and humiliating for the complainant especially coming from such a high level within the organisation. This comment was also made prior to any allegations being raised against the complainant. I must thus ensure that the award is effective, proportionate and dissuasive. Having regard to the circumstances of the instant case and the rate of remuneration which the complainant was in receipt of at the relevant time, as well as the fact that the harassment was not ongoing but relates to one specific incident, I consider an award of compensation in the sum of €2,000 to be just and equitable.
7.3 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2011 I hereby order that the respondent pay the complainant that sum by way of compensation for the distress suffered by him as a result of the harassment. This award is not in the form of remuneration and is therefore not subject to the PAYE/PRSI Code.
_____________________
Orla Jones
Equality Officer
28 December, 2012
1 Labour Court Determination No. EDA0917