DEC-E2013-193

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2013

Decision DEC-E2013-193

PARTIES

Kristina Kukstaite

(Represented by David O’Neill B.L. instructed by James Watters & Co., Solicitors)

-v-

Shedan Limited

(Represented by Rita Kilroy B.L. instructed by Michael Keane & Co., Solicitors)

File Reference: EE/2010/893

Date of Issue: 30th December 2013

Keywords: Employment Equality Acts 1998-2008, Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 6(2)(h) – Race, Section 8- conditions and discriminatory dismissal, Section 14A – harassment and sexual harassment, prima facie case.

1. Dispute

This dispute concerns a claim by a complainant that she was discriminated against by the above named respondent on the race ground, in terms of Sections 6(1) and 6(2)(h) of the Employment Equality Acts 1998-2011 and contrary to section 8 in relation to her condition of employment and dismissal. She also claims that she was harassed contrary to Section 14A and victimised in terms of Section 74(2).

2. Background

2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 3rd of December 2010 alleging that the respondent discriminated against her contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 the Director delegated the case on 24th September 2013, to me, Marian Duffy, 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 the complainant on the 26th May 2011 and from the respondent on the 14th July 2011. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 1st of October 2013 and the final documentation was received on the 18th of October 2013.

3. Summary of the Complainant’s Case

3.1 The complainant is a Lithuanian national and was employed by the respondent from 16th January 2009 until June 2010 when her employment terminated. At first she was employed in the respondent’s Supermac’s franchise in Balindine. In January 2010, she was asked to move to another of the of the respondent’s businesses, a grocery shop and filling station called Costcutters which is also in Balindine beside the fast food restaurant. In or about the end of May 2010 she said that a customer was racially abusive to her. The female customer enquired about the price of sweets and the complainant said that she told her that they were €2.99 and the customer said “f****** Polish why are they working here they don’t understand English”. The complainant said that she spoke to another member of staff about the incident and after speaking to him she came to the conclusion that there was no point in speaking to management because she believe that there was a chance she would lose her job.

3.2 On the 3rd of June 2010 the complainant she said that the same woman entered the shop. The complainant was working on the till and the customer was looking for cigarettes and she gave them to her. She said that the customer was aggressive and shouted at her and spoke in a language she did not understand but she presumed it was Gaelic. She said that she then came face to face with her in an aggressive manner. The complainant said that she was afraid. She said that she spoke to a Polish member of staff and she told her that the customer always comes in angry and was not nice to staff. The complainant said that she was of the view that this customer did not like foreign workers. On her way home from work that evening she reported the matter to An Garda Síochána. She identified the customer’s car registration number to the Gardaí. She asked the Gardaí if they could find out why the woman was aggressive to her spoke to her like she did. She told the Garda she felt she was not safe in her work place. The Garda telephone the customer and he reported back to the complainant that the customer had denied that the incident had taken place. He asked if she wanted to make a complaint and she said that she didn’t. He told her if it happened again to come back to him.

3.3 The complainant said that she was called to a meeting the following morning and she was asked about the incident. The complainant said that she mentioned both incidents at the meeting. The respondent told her that he had been in touch with the customer and she denied that she said anything to the complainant. He seemed annoyed that she had gone to the Gardaí about the matter. He asked her why she had not come to him about her grievance instead of going to the Gardaí. He told her that the customer was a very nice woman and she would not talk like that. He said that he believed that the customer would not come back to the shop and he would lose in the region of €72 a week as a consequence of her actions. Following this meeting she was informed by the shop manager that she would be transferred to work in Supermac’s in Ballinrobe which the respondent also operated. The complainant said that this was much further away from her home. It was not convenient for her as she is a single parent of a young child and would cost her more in petrol. She said that she spoke to the respondent, explaining her reasons she did not want to move to Ballinrobe. He told her that he did not want to see her in the shop anymore as she would destroy his business. He told her that her concerns about caring for her small child were none of his business. She asked when she could come back to Balindine and he was not able to tell her. She then requested to work in the respondents business in Claremorris but he said he would not allow her because he did not want the same situation to happen again and the woman was also a customer there also.

3.4 The complainant started work in Ballinrobe and the respondent attended there frequently. She believed that she was being watched and monitored. On the first day there she worked on the till, but within a very short time she was told by the manager she was being moved to the kitchen to cook burgers on the grill as she could not work with customers. The person working on the grill was moved to the cash register. She said that she was working alone in the kitchen and the respondent and his brother, who also works in the business, were both constantly watching her and checking out how she cooked the burgers. She said that she had never been trained on the grill. It was her understanding that certain staff were specially trained to work on the grill. She also said that she got less hours and given the longer distance she had to travel it cost her more in petrol. She said that she was very stressed out about her working conditions and she was the only employee assigned to the kitchen fulltime. She felt that she was given more menial jobs and working in the kitchen was much heavier work than working the tills. After about 2 weeks she decided that she could not work under these conditions and she gave a week’s notice and resigned.

3.5 The complainant said that she found it difficult to get another job. She then succeeded getting one in a pub. After about 2 weeks there she was asked by the owner if she had worked in the respondents business in Balindine and she confirmed she had. She said she got a text next day from her new employer to say he no longer had hours for her.

4. Summary of the Respondent’s case

4.1 The respondent denies that the complainant was discriminated against on the race ground or that she was racially abused by a customer. The respondent stated that he received a telephone from a member of the Gardaí to say that the complainant had called into the station complaining about being racial abused by a customer in the shop. He did not go into the details, but asked him to find out what happened. The Garda gave him the name of the customer (Ms. A). He said that he knew the customer and telephoned her. She was a bit frightened and agitated because the Gardaí had telephoned her to find out what happened in the shop. She told the respondent that she found that the complainant was rude to her when giving her change and she said sarcastically to her “you are welcome”. Ms. A told him that she did not racially abuse the complainant.

4.2 He called the complainant to a meeting the next day with himself and his brother who also works in the business. He said that he asked the complainant what had happened. The complainant told him that Ms. A had racially abused her. However he said that the complainant did not tell him how she was racially abused. She only mentioned one incident and said that the customer was shouting at her. He said that he was thinking about how he was going to handle the situation, and if this customer came into the shop again there would be a conflict, particularly given that the complainant had reported Ms. A to the Gardaí. He said that he had come to the conclusion from the meeting with the complainant that she was not racially abused and he believes that she accepted this at his meeting with her. He said it was not a disciplinary meeting but a fact finding meeting.

4.3 He decided to move the complainant to Ballinrobe because he knew that the customer came into his businesses both in Balindine and Claremorris. The next morning the complainant called into the shop and asked him about working in Claremorris. He told her that Ballinrobe was more suitable because Ms. A was also a customer in the business in Claremorris. He said that he would accept that the customer was a bit stroppy with the complainant but she did not racially abuse her. He said that the complainant only mentioned one incident with the customer. He said that he moved the complainant to Ballinrobe for a couple of weeks so that he could get the complainant and the customer together with a mediator to sort out their differences. However he said that he did not get an opportunity as the complainant gave a week’s notice about eight days later and finished working the following week. He denied that he used intemperate language to the complainant when she requested to work in Claremorris or that he disregarded her concerns. He accepted that Ballinrobe was further from her home but not as far as the complainant alleged. He conceded that it would cost her between €5 and €10 per week more in petrol.

4.4 The respondent said that he received a call from the manager of the Balinrobe Supermac’s on the same day the complainant commenced there to say that she had been rude to a customer. He told the manager to put the complainant on the grill. He accepts that the complainant was left on the grill the following week but that was a decision taken by the local management and his brother (Mr. B) who drew up the roster. He believes the decision to leave her on the grill related to the fact that there was another complaint about her. He said that he would not accept that working on the grill was a lower status job than working in the shop or on the till in the restaurant.

4.5 Ms A said in evidence that she knows the respondent and is a regular customer in the shop, she would shop there five to six times per week and she would also buy petrol. She said that on the evening in question, she was buying milk and a package of sweets and she enquired of the shop assistant (the complainant) the price of the sweets. She said that the complainant muttered something and she had to repeat the question and she muttered the price again. Ms. A said that she then handed the complainant €10 and the complainant threw the change back on the counter instead of handing it to her. She said the complainant was rude and made no eye contact with her. Ms A said that as she picked up the change she sarcastically said to her “your welcome”.

4.6 That evening she was taken aback to receive a telephone call from a member of the Gardaí enquiring if she had been in Costcutters that evening. The Garda told her that he had received a report about an incident and he asked her to describe what happened. Ms. A said that she confirmed that she had been in the shop and told him about the incident with the shop assistant with regard to the change. She said that she did not hear anything further from the Garda.

She got a telephone call from the respondent and they discussed the matter and she told him what happened. Ms A said that she was very upset about being contacted by the Gardaí. She said that did not racially abuse the complainant and had never seen the complainant in the shop before and would not have known her nationality. She said that she works in customer service and would never be abusive to customers. Ms. A said that as far as she could recollect there was only one incident with the complainant.

4.7 The shift manager (Ms B) in Ballinrobe said that it was not unusual to move staff between the restaurants and when the complainant arrived she presumed she came from another restaurant. She said that she put her working on the till. She got a complaint that day from a customer saying the complainant had been rude to her. She said that after a while she decided, without discussing the matter with the complainant, to put her on the grill. She then telephoned the respondent and told him about the incident with the customer. She said that she knew that the complainant was not happy on the grill. She accepted that all of the staff are rotated around and that working in the kitchen was heavier work because in addition to the grill the dishes had to be washed. She denied that she was told by the respondent to move the complainant to the kitchen.

4.8 The respondent’s brother, Mr. B, said that he works on the Supermac’s side of the business and one of his tasks is to draw up the staff rota for all of the restaurants. He would not accept that working on the grill was a more menial task than the cash register. He said that it was decided by management that the complainant would be rostered only on the grill because of a complaint from a customer. He said that there were two complaints about the complainant close together and it was better that she remained on the grill. He accepted that other staff were rostered between the grill and the cash register.

5. Conclusions of the Equality Officer

5.1 The issues for decision in this case is whether or not the respondent discriminated against the complainant on the grounds of race, in terms of section 6(1) and (h) of the Employment Equality Acts, 1998 to 2011 and contrary to section 8 and 14A and 74 of the Acts as regards her conditions of employment and dismissal and victimisation. Section 6 of the Acts inter alia provides:

6.—(1) "For the purposes of this Act and without prejudice to its

provisions relating to discrimination occurring in particular circumstances,

discrimination shall be taken to occur where—

(a) 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

Act referred to as the ‘‘discriminatory grounds’’) which—

……….

(h) that they are of different race, colour, nationality or ethnic

or national origins (in this Act referred to as ‘‘the ground

of race’’),"

and Section 85A of the Acts provides:

"(1) 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”.

In considering Section 85A, as amended, the Labour Court stated in the case of Cork City Council v Kieran McCarthy, Determination No. EDA0821, that:

"Section 85A of the Act, as amended now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination can be inferred it shall be for the Respondent to prove the absence of discrimination.

The Labour Court went on to say in that case:

"The type and range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may be appropriately be drawn to explain a particular set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can be drawn from those facts."

5.2 This requires the Complainants to prove the primary facts upon which she is relying upon in seeking to raise an inference of discrimination. It is only when she has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required of her the case cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

5.3 Harrassment

Firstly, I will consider the issues which have been raised by the complainant in relation to her conditions of employment which she contends constituted harassment and unlawful discrimination on the grounds of race contrary to the Acts. Section 14A provides inter alia (7)(a) "any form of unwanted conduct related to any of the discriminatory grounds, and........

(b) being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person."

The Act goes on to give examples of unwanted conduct and states:

(c) “Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material."

The Labour Court in the case of Nail Zone Ltd and A Worker Determination No. EDA1023, defined the law in relation to harassment as follows:

“The essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. This suggests a subjective test and if the impugned conduct had the effect referred to at paragraph (b) of the subsection, 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.”

5.4 The complainant states that the customer Ms. A harassed her on two occasions; the first which occurred in late May 2010 is set out above at 3.1 to 3.4, and the second incident which occurred in or about the 3rd of June is also set out above.

After the second incident the complainant said that she was afraid of the customer and she decided to report the matter the Gardaí. Ms A’s evidence in relation to the incident is likewise set out above at 4.5.

There is a conflict of evidence in relation to the number of incidents. The complainant says that there were two incidents, and it was on the first occasion Ms. A was buying the sweets when she made reference to “f……Polish”. On the second occasion this customer was buying cigarettes.

Ms. A said that there was only one incident and that she was buying milk and sweets. She said that she does not buy cigarettes as she had given them up. Ms. A accepted that she was sarcastic to the complainant because the complainant was rude to her and threw her change on the counter.

5.5 I have to accept that there was some interaction between the complainant and Ms A which upset the complainant to such an extent that she reported the behaviour as racial abuse to the Gardaí. I note that the complainant was working with the respondent for about 18 months at this stage without any previous difficulty. The complainant said in evidence that she was afraid of Ms. A and the reason she went to the Gardaí was to get them to ask Ms A to stop treating her in an aggressive manner.

I note the Labour Court stated in Nail Zone Ltd cited above that the test for harassment was a subjective test. I cannot accept that the complainant would suddenly decide to make a spurious and random complaint to the Gardaí about one of the respondent’s customers without having some reason for doing so.

It is my view that something else happened, other than a sarcastic comment, otherwise the complainant would not have reported the matter. On the balance of probabilities I accept the complainant’s evidence that she was subject to treatment which she found both intimidating and offensive.

Therefore I find that the complainant has raised an inference of discrimination in relation to harassment. Accordingly, I find that the complainant has established a prima facie case of discrimination in relation to this aspect of her complaint.

Victimisation

5.6 The next matter I have to consider is the manner in which the respondent dealt with the complaint and whether the treatment of the complainant constituted victimisation. Section 74(2) provides:

For the purposes of this Part 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 by a complainant,

(c) an employee having represented or otherwise supported a

complainant,

(d) the work of an employee having been compared with that

of another employee for any of the purposes of this Act

or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under

this Act or the Equal Status Act 2000 or any such repealed

enactment,

(f) an employee having opposed by lawful means an act which

is unlawful under this Act or the said Act of 2000 or

which was unlawful under such repealed enactment, or

(g) an employee having given notice of an intention to take any

of the actions mentioned in the preceding paragraphs.

5.7 I note that the Gardaí contacted the respondent about the complaint they had received from the complainant and she was called to a meeting by the respondent. The complainant’s evidence in relation to this aspect of her complaint is set out above, and the respondent’s evidence in rebuttal is also set out above. I am satisfied from the evidence that the respondent knew from either the Gardaí or from the customer, Ms. A, that the complainant had complained about racial abuse. The respondent stated that the meeting was a fact finding mission, but I note that he came to the conclusion during this meeting that the treatment alleged by the complainant was not racially based. I am satisfied from the evidence that the respondent was annoyed that the complainant reported the matter to the Gardaí. I also note the respondent knew Ms. A., and in his evidence it was clear he was concerned about the fact that she had been reported to the Gardaí by the complainant, in consequence of which his fact finding enquiry transformed into a disciplinary meeting during which he decided that the complainant could no longer work in the shop, which appears to me to be a sanction under disciplinary procedures. The respondent stated that he had intended to bring in a mediator to resolve the issues between the complainant and Ms A. However he did not inform the complainant of his proposed course of action, and in fact transferred the complainant to the fast food restaurant in Ballinrobe. He also rejected the complainant’s request to work in Claremorris, because he knew Ms. A was a customer there also. I am satisfied that the transfer of the complainant without consultation from the shop in Balindine to the Supermac’s in Ballinrobe, a location which did not suit her, constituted adverse treatment of the complainant as a consequence of making a complaint.

5.8 In considering the complaint of victimisation, I have applied the reasoning in the case of Monaghan County Council and Roy Mackarel Det. No. EDA1213 where the Labour Court stated:

It is, in the Court’s view, sufficient if the making of the complaint was an operative factor, in the sense of being anything other than a trivial influence, operating on the mind of the decision maker (see by analogy the dictum of Peter Gibson LJ in Wong v Igen Limited and Ors. [2005] IRLR 258 in relation to the degree of connection required between race and an impugned act or omission necessary to make out a claim of discrimination).

Moreover, in a case such as the instant case, the Court must be alert to the possibility of subconscious or unrecognised influence by surrounding events operating on the mind of the decision maker (see Nevens, Murphy Flood v Portroe Stevedores [2005] 16 ELR 282). Hence seemingly honest evidence denying any connection between a protected act and the decision to impose a detriment must, in the absence of corroboration, be approached with caution.

In this case the burden of proving the absence of victimisation rests with the Respondent in accordance with s.85A of the Act. That burden can only be discharged if it is establish, on credible evidence, that the making of complaints by the Complainant was in no sense, beyond the trivial, an influencing or reactive factor in the decision leading to his dismissal.

Applying the above jurisprudence to the complaint herein, I am satisfied that the complaint of discriminatory treatment was more than a trivial influence on the respondent as regards the above matters which I have found to be adverse treatment of the complainant. In accordance with the Labour Court in the above cited case the burden of proving the absence of victimisation rests with the respondent, and I am not satisfied this was forthcoming. I have not been provided with any evidence by the respondent to disprove the complainant’s evidence. I note that in the complainant’s contract of employment, the respondent can transfer her between the shop and the fast food restaurants. However I am satisfied from the evidence that the complainant would not have been transferred at that time but for the complaint. Therefore I am satisfied that the complainant has established adverse treatment in the workplace as a result of taking a complaint of discriminatory treatment in the workplace to the Gardaí. Accordingly I find therefore that she has established a prima facie case of victimisation which the respondent has failed to rebut.

5.9 Dismissal

The next matter I have to consider is whether the complainant was constructively dismissed. The complainant resigned having worked in the kitchen for about two weeks following her transfer there. She said that she felt stressed out and she believed that she was treated in a discriminatory manner for reasons connected with her race. She said that she was sent to work in the grill without any contact with customers and she felt pressure from the management. The respondent denies that there was any pressure put on the complainant. I note in evidence that both the respondent and Mr. B said that they took into consideration, in deciding to assign the complainant permanently to the grill, the fact that this was the second complaint from a customer. The respondent submitted that it was his intention to carry out an investigation and set up a mediation between the parties and the complainant’s transfer to Ballinrobe was only temporary measure to allow him to do this. However he never informed the complainant even when she complained about the transfer and later when she handed in her notice he had an opportunity to discuss it with her but choose not to do so. I note that there was a decision taken by management to keep the complainant on the grill the only staff member not rotated between the grill and the cash register.

5.10 Dismissal is defined in Section 2 of the Acts as follows:

‘‘dismissal’’ includes the 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, and

‘‘dismissed’’ shall be construed accordingly;

In the case of An Employer v A Worker DET. No. EED053 the Labour Court defined the definition of constructive dismissal as follows:

“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 employee 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 in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 332 as 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”

This passage describes a situation in which an employer commits a repudiatory breach of contract. In such circumstances, the employee is entitled to accept the repudiation and consider him or herself dismissed. However, not every breach of contract will give rise to repudiation. It must be a breach of an essential term, which goes to the root of the contract. This is a stringent test, which is often difficult to invoke successfully.

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 his 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 going to the root of the contract but could, nonetheless, be regarded as so unreasonable as to justify the employee in leaving.

Finally, the authorities indicate that what is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case.”

5.11 There are two tests set out by the Labour Court to establish constructive dismissal (i) entitlement to terminate the contract and (ii) reasonableness. Having considered the evidence I am satisfied that the complainant was entitled to terminate the contract given the treatment following her complaint. The second test is the “reasonableness” test. Given the complainant’s transfer to the fast food restaurant and then a further transfer to working on the grill for the foreseeable future, I am satisfied that it was reasonable for the complainant to resign.

5.12 I have also applied the Supreme Court Judgment in Berber v Dunnes Stores [2009]IESC 10 where Finnegan J stated that:

There is implied in a contract of employment a mutual obligation that the employer and the employee will not, without reasonable and proper cause, conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.”

5.13 I am satisfied that the actions of the respondent damaged the relationship of trust and confidence between himself and the complainant. She made a complaint about discriminatory treatment which she is entitled to do and as a result there was a fundament change in her contract of employment; the complaint resulted in her being moved from being a shop assistant to working in a very different working environment on a hot grill in a fast food restaurant. The respondent stated that her contract of employment stated she could be assigned to either the fast food restaurant or the shop. However I am satisfied this move would not have occurred if the complaint to the Gardaí had not been made. The complainant’s in evidence stated that the job was more menial, the travel distance greater, that she was the only person assigned to the grill fulltime and she was stressed by the situation. I am satisfied given the conduct of the employer that the complainant was entitled to resign. Therefore, the complainant is entitled to claim constructive discriminatory dismissal on the race ground and I find also that the respondent has failed to rebut the case. Accordingly, I find that the complainant has established a prima facie case of discriminatory dismissal on the grounds of her race.

6. Decision

6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find that:

(i) the respondent did discriminate against the complainant on the race ground pursuant to sections 6(1) and 6(2)(h) of the Acts in terms of her conditions of employment in relation to harassment and contrary to Section 14A of the Acts;

(ii) the respondent victimised the complainant on the race ground pursuant to section 74(2) of the Acts,

(iii) the complainant is entitled to claim constructive discriminatory dismissal pursuant to Section 2 of the Acts on the race ground.

6.2 Section 82-(i)(c) of the Act provides that I can make an order for the effects of the discrimination. The maximum award I can make under Section 82(4) is two years pay in relation to discriminatory treatment and dismissal and another two years pay in relation to victimisation. According to the figures I was provided with by the respondent the complainant’s yearly pay was €20,548. The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate.

In accordance with Section 82 of the Act, I order the respondent pay the complainant:

(a) €14,,000 in compensation for the distress caused by the discrimination and constructive dismissal,

(b) €20,000 in compensation for the distress caused by victimisation.

The total award is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).

________________________________

Marian Duffy

Equality Officer

30th December 2013