DECISION NO: DEC-E2013-25
PARTIES
Allen Hogan
(Represented by John Gerard Cullen Solicitors)
v
Vistamed Ltd.
(Represented by Callan Tansey Solicitors)
Date of Issue:27 March 2013
File No. EE/2012/424
Keywords
Employment Equality Acts - discriminatory treatment - race - religion - family status -disability - conditions of employment - harassment - prima facie case - victimisation
1. Dispute and delegation
1.1 This dispute concerns a claim by Mr. Allen Hogan (hereafter "the complainant") that he was subjected to discriminatory treatment in his working conditions on grounds of race, religion, family status and disability by Vistamed Ltd. (hereafter "the respondent"). He is also alleging that he was harassed by a work colleague on grounds of race religion and family status and that when he complained about the harassment he was subjected to associated victimisation by the respondent.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 7 August 2012 under the Employment Equality Acts. On 10 January 2013, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh - 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. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 13 February 2013.
2. Summary of Complainant's case
2.1 The complainant is from Northern Ireland and is of the protestant religion. He is employed as a warehouse operator with the respondent company since November 2003. The complainant alleges that he was referred to as an 'orange bastard' on a daily basis by his female colleague TM. He was the only employee with the company from Northern Ireland and he did not complain about the name calling as he did not want to cause trouble with local people. On 30 August 2011, the complainant walked off site without notifying his supervisor. He states that the reason he did so was because he had made numerous complaints to his supervisor about the mess in which he would find the warehouse on arrival in the mornings and nothing was done about same. Following this incident, the complainant was issued with a written warning from management. The complainant states that subsequently, on Thursday 26 April, 2012 he was called to a meeting with his manager and asked what he had said to TM that morning to upset her. The complainant stated that he had no recollection of saying anything that would have upset her. The complainant responded that TM had called him 'an orange bastard' on numerous occasions and that TM had introduced him to a new member of staff in those derogatory terms and also called him this name at coffee break.
2.2 Management met with TM and the complainant and invited them to resolve their differences. However, the following Monday the issue remained unresolved. On 2 May, 2012 the complainant was issued with a final written warning. The complainant enquired as to what sanction was given to TM and was advised by management that they do not discuss individual cases. On Monday 11 June 2012, the complainant made a complaint to his manager that TM threatened him that her husband 'will get him'. The complainant submits that this complaint was not taken seriously and was not addressed by management. The complainant also alleges an unsafe and discriminatory system of work involving lifting heavy bags of plastic without appropriate equipment or training. The complainant contends that unsafe pressure is put on employees to reach impossible targets. In this regard, the complainant states that he sustained an injury at work where he hurt his back on 22 October 2012 and he was out sick for 7 weeks. He attended physiotherapy during this time and was placed on light duties on his return to work for an initial period but argues that the unsafe system and practices at the plant adversely impacts on him. The complainant is also alleging that the respondent victimised him as a result of his complaint to management about the 'ob' comments made by TM, in that, he was issued with a final written warning on 2 May, 2012. In summary, the complainant is alleging that he was discriminated against in relation to his working conditions due to the unsafe system of work, the bullying and harassment of him, isolation, being called an 'ob' and the refusal of the respondent to investigate his complaints. He is also alleging that he was victimised by the respondent.
3. Summary of Respondent's case
3.1 The respondent states that the complainant commenced as a warehouse operative with the company in November 2003. The respondent states that on 30 August 2011, the complainant walked off-site without notifying his supervisor. In relation to this incident, the complainant was given a written warning (as he had already received a verbal warning previously over a different issue) as management viewed this incident as most serious. Subsequently, on morning of Friday 27 April 2012, a female colleague of TM, ML approached management who were all in a meeting and requested the complainant's manager to step out of the meeting to discuss an issue which had arisen. ML stated that TM was in a very distressed state as the complainant had been very abusive towards her that morning. The complainant's manager interviewed the complainant and when asked about what he had said to her that morning, he said that he had no recollection of what was said. The respondent states at that point, the complainant made a complaint to his manager that TM had referred to him as an 'ob' on a daily basis and when he was introduced by TM to a new member of staff and at coffee break. The manager then spoke with TM who confirmed and admitted that she had called the complainant an 'ob' in the past but said it was done so in jest and among friends and that the complainant had never taken offence over the comment. The respondent states that the complainant and TM were good friends up to this point and that she had assisted him in sourcing lodgings in the area when he got the job and with references in order to secure his accommodation.
3.2 The manager met with both employees at lunchtime on Friday 27 April and invited them to try and resolve their difficulties over the weekend. They were advised that if this was not possible, the company would initiate a full investigation. The respondent states that neither the complainant nor TM approached management on Monday 30 April to advise that they had resolved their differences and the respondent proceeded to initiate a full investigation. On Tuesday 1 May, the manager met with TM and she confirmed that she did call the complainant an 'ob' in the past and agreed never to do so again. By way of mitigation, she said that the term was said in jest and that the complainant had never taken offence previously. The respondent submits that the company had no idea about the use of this term by TM in respect of the complainant prior to the events of 27 April 2012. The respondent submits that the use of the term by TM or indeed any employee is totally unacceptable. TM was issued with a verbal warning and she did not appeal this sanction. On Wednesday, 2 May the complainant's manager and the HR manager met with the complainant. When TM's complaint was put to him, the complainant replied that he could not recall what he said to her that morning. He later maintained that he did not call her any names and was unaware that TM was upset until his manager told him. The respondent having investigated the matter upheld the complaint by TM and issued the complainant with a written warning on 2 May 2012. The complainant did not appeal this sanction.
3.3 On Monday 11 June, 2012 the complainant made a complaint to his manager that following an exchange with TM that morning she had said to him '..wait until my husband gets his hands on you..' or words to that effect. The manager subsequently interviewed TM about her interaction with the complainant and she stated that she requested the complainant to assist her in carrying heavy boxes and when he would not do same, she replied to the him along the lines that '... her husband would not be impressed with that type of behaviour'. Following the investigation by management, the complaint was not upheld and this finding was communicated to the complainant and TM the following day, Tuesday 12 June. In relation to the allegations by the complainant regarding an unsafe discriminatory system of work involving lifting heavy bags of plastic without appropriate equipment or training; the respondent totally refutes these allegations. The respondent states that the complainant received manual handling training in November, 2010 and again in February 2012. It also submits that the complainant received fork-truck training on 2 March 2011 and signed for replacement safety shoes on 2 July, 2012. The respondent states that the issue regarding the complainant hurting his back on 22 October 2012 post dates this complaint; the EE1 form was received by the Tribunal on 7 August 2012 and this incident occurred subsequent to same. The respondent submits that this matter is not relevant to these proceedings and no complaint was submitted to the company or the Tribunal in relation to incident of 22 October, 2012 and therefore the complainant has no basis for an allegation of discrimination by the respondent on the grounds of disability.
3.4 The respondent rejects the allegations of discrimination against the complainant on any of the grounds alleged. It states that all reasonably practicable steps were taken by the company to prevent the acts complained of. The respondent states that it had no idea about the use of the derogatory terms used by TM and the complainant against each other prior to the events of 27 April, 2012. The respondent submits that as soon as it became aware of such incidents, it responded appropriately and in a timely manner by carrying out a full and fair investigation. The two complaints on behalf of the complainant and TM were upheld and proportionate sanctions were imposed on both employees and no appeals were lodged by either employee. A further investigation was carried out on foot of the complainant's grievance against TM (in relation to an alleged remark that her husband 'will get him') of 11 June but this complaint was not upheld and this finding was communicated to both parties in a timely manner. The respondent refutes the allegation of victimisation in its entirety and states that there is no basis for such an allegation. The respondent submits that the complainant was issued with a final written warning as a result of the outcome of the investigation by management into the incidents of the name calling and sanctions were placed on both TM and the complainant in accordance with the company's disciplinary procedure.
4. Conclusions of Equality Officer
4.1. I have considered all the evidence both written and oral presented to me. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a recent Determination the Labour Court1 , whilst examining the circumstances in which the probative burden of proof operates, held as follows -
"Section 85A of the Acts provides 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. What those facts are will vary from case to case 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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule."
Harassment on grounds of race, religion and family status
4.2 The main allegation in the complainant's initial EE1 form relates to being called an 'ob' by a female colleague. Section 14 (7) of the Acts outlines harassment as;
being conduct which has the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.
Having questioned both parties at length regarding this matter, while the complainant contends that he was called this name on a daily basis and was very offended by same, he only made a complaint to management about same when confronted by management with a complaint from TM about being called a 'c*nt'. When I asked the complainant about what happened on that morning, he states he had no recollection of same. There is a dispute between both parties as to the date this incident occurred, the complainant states that it happened on Thursday 26 April while the respondent insists that it was on Friday 27 April. The respondent is adamant that it occurred on the Friday as the respondent had regular management meetings on Friday mornings and the complainant's manager gave evidence that the management meeting was disrupted by ML a colleague of TM, who stated that TM was in a very distressed state. When the complainant was called to a meeting subsequently by his manager about the incident and confronted with the allegation of calling TM an abusive name, it was at this point that the complainant stated to his manager that he had been called an 'ob' by TM on numerous occasions, sometimes on a daily basis. Following an investigation by management, TM immediately admitted she did call him this name on a number of occasions but that it was said in jest and the complainant understood this and did not have any issue with same. TM was reprimanded and requested to desist from using such derogatory terms and was given a verbal warning which is the first stage of the disciplinary process. The complainant, as he already was on a written warning in relation to another matter, received a final written warning in relation to this issue in line with stage 3 of the disciplinary procedures.
4.3 Although there is a dispute in relation to the above incident as to whether it occurred on Thursday 26 April or Friday 27 April; given the sequence of events and the testimony of various individuals on the day of the hearing, it would appear to me that the incident did take place on the morning of Friday 27 April. Given the above evidence, I am satisfied that the complainant was called an 'ob' by his female colleague. In that regard, the complainant has established a prima facie case of discrimination in relation to harassment on grounds of race and religion and the burden of proof shifts to the respondent to rebut the inference. No evidence was adduced by the complainant in relation to harassment on grounds of family status and therefore I am satisfied that the complainant has not demonstrated a prima facie case on the family status ground. Where a person suffers unlawful harassment in the course of his/her employer employment by a fellow employee, the Acts provide that the employer is fixed with liability for the harassment. However, an employer can avoid liability by making out the defence provided for at section 15 (3) 'that the employer took such steps as were reasonably practicable to prevent the employee (a) from doing that act, or (b) from doing in the course of his or her employment acts of that description. On examination of all the evidence, I am satisfied, on balance, that when the complaint regarding the 'ob' comments were made to management, they conducted an investigation in line with their procedures into the matter and appropriate sanctions were put in place. On the day of the hearing, I asked the complainant about the incident which occurred on the morning where TM made a complaint to management about being subjected to abusive behaviour; the complainant stated that he had no recollection whatsoever of anything untoward happening that morning. Notwithstanding this, a management meeting was interrupted and ML stated to management that TM was in a very distressed state over something the complainant had said to her and required assistance to deal with the matter. On hearing the testimony of various individuals on the day of the hearing, on balance, I prefer the testimony of the witnesses for the respondent on this matter and found their testimony more convincing. I also find it lacking in credibility that the complainant if called an 'ob' as he states on a daily basis that he would not go to management to try and have the matter resolved at an earlier stage.
4.4 I am satisfied that when confronted with TM's complaint of being called an abusive name, the complainant then made a complaint to management that he was called an 'ob' by TM on numerous occasions and sometimes on a daily basis. The complainant stated at the hearing that he was unaware of the exact nature of the derogatory term purported to be used by him until the hearing, in that, management did not put the specific term to him only that he had upset TM by being abusive to her. I am satisfied, on balance, based on the testimony given that TM was called an abusive name as I found management's account of what happened frank and more credible and consistent than that of the testimony of the complainant. In that regard, when TM was advised of the complainant's complaint that she had called him an 'ob', she immediately admitted same but was of the view that the complainant had taken this in a light hearted manner. On the other hand, when the complainant was questioned in relation to TM's complaint of being subjected to abusive behaviour by the complainant, he insisted he had no recollection of any issues that arose that morning. Overall, in examining the evidence, I am satisfied that when confronted with the above incidents, management did investigate same in a timely fashion and in accordance with their grievance and disciplinary procedures as outlined in the Employee Handbook. Management upheld both complaints and issued both parties with sanctions. TM received a verbal warning as she was at stage 1 of the procedure and this was followed up by written confirmation of same and she was requested to sign the document. The complainant had already received a verbal and a written warning previously which were still active and therefore he was at stage 3 of the procedure and was given a final written warning in line with the company's grievance and disciplinary procedures. Given all of the above, I am satisfied that the respondent has rebutted the inference of discrimination in relation to harassment on grounds of race and religion and therefore can rely on the defence available at section 15 of the Acts.
Disability
4.5 The complainant adduced no evidence to the Tribunal that he suffered from a disability within the meaning of the definition as outlined in the Acts at the time of referral of his complaint. Disability" is defined in Section 2 of the Acts as meaning -
"(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person".
However, during the course of the hearing, the complainant alleged that he suffered a back injury with the respondent on 22 October, 2012 and was out on sick leave for 7 weeks. While the complainant alleges that he sustained a work related injury at that time, no evidence was adduced to the Tribunal that this incident led to a disability as defined above under Section 2 of the Acts. In any event, the incident which occurred on 22 October took place a number of months after the initial EE1 complaint form was lodged with the Tribunal. Having examined the complainant's allegation of discriminatory treatment on grounds of disability, I am satisfied that the complainant has adduced no evidence to demonstrate a prima facie case of discriminatory treatment on grounds of disability.
Conditions of employment
4.6 The complainant alleges that there is an unsafe and discriminatory system of work involving lifting heavy bags of plastic without appropriate equipment or training. The complainant also submits that unsafe pressure is put on employees to reach impossible targets. The complainant argues that the respondent did not provide adequate training or equipment and that there were health and safety issues within the company. The respondent states that the complainant received manual handling training in November, 2010 and again in February 2012. It also submits that the complainant received fork-truck training on 2 March 2011 and signed for replacement safety shoes on 2 July, 2012. The respondent denies the allegation of discrimination in relation to the complainant's working conditions and states that it has a health and safety policy in place and is subject to inspection by the Health and Safety Authority on an annual basis. It also states that the health and safety issues apply in the same way to other staff and in that way, there was no discrimination against the complainant. Having examined the allegation in relation to discriminatory working conditions, I am satisfied that the complainant has not demonstrated a prima facie case on this issue as he has adduced no evidence to demonstrate that he was treated less favourably than any other employee on grounds of race, religion or family status.
Victimisation
4.7 The complainant has also alleged that he was subjected to victimisation by the respondent for making a complaint about the harassment. In relation to the issue of victimisation, Section 74 (2) 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 by a complainant, ......."
In Tom Barrett v Department of Defence2 the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) - what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant. It is clear from the wording of victimisation in the Employment Equality Acts that a complaint of victimisation must relate to a complaint made under the Act and not a general complaint of victimisation. The complainant is alleging that the respondent victimised him as a result of his complaint to management about the 'ob' comments made by TM, in that, he was issued with a final written warning on 2 May, 2012. I am satisfied based on an examination of all the evidence that the respondent did not victimise the complainant. Following the investigation by management into the name calling complaints, the findings showed that both TM and the complainant were found to have committed wrongdoing in relation to offensive behaviour. The complainant was issued with a final written warning and TM was issued with a verbal warning as a result of the outcome of the investigation in accordance with the company's disciplinary procedure. I find that the sanctions proposed were not disproportionate and were not linked to discrimination on any of the grounds cited. Therefore, I am satisfied that the complainant has failed to establish a prima facie case of victimisation under the Acts.
5. Decision of the Equality Officer
5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that
(i) the complainant was not discriminated against by the respondent in relation to harassment on grounds of race, religion or family status pursuant to section 6(2) of the Acts and contrary to section 8(1) of the Acts.
(ii) the complainant was not discriminated against by the respondent in relation to his working conditions on grounds of race, religion, disability or family status pursuant to section 6(2) of the Acts and contrary to section 8(1) of the Acts.
(iii) the complainant was not subjected to victimisation by the respondent in terms of section 74(2) of the Acts.
________________
Valerie Murtagh
Equality Officer
27 March, 2013
1 Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64
2 EDA1017