The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2013-121
PARTIES
Ofome Ughwubrusi
(Represented by SIPTU)
AND
Acquired Brain Injury Ireland
(Represented by IBEC)
File reference: EE/2010/921
Date of issue: 27 September 2013
HEADNOTES: Employment Equality Acts - Race - Victimisation - Harassment - Prima Facie Case
1. DISPUTE
1.1. This dispute concerns a claim by Ms Ofome Ughwubrusi that she was victimised contrary to section 74 (2) of the Acts by Acquired Brain Injury Ireland on the grounds of race contrary to section 6 of the Employment Equality Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 23 December 2010 under the Employment Equality Acts. On 23 January 2013, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 30 April 2013.
2. COMPLAINANT'S SUBMISSION
2.1 The complainant started work for the respondent on 22 May 2006 as a rehabilitation assistant.
2.2 She submits her manager (Mr A) said she worked like a 'bull' and she found this demeaning and amounted to bullying and racial abuse. She was the only African lady working there. Also her manager consistently called the complainant to his office and bullied her verbally and asked why she took time off sick.
2.3 She submits that Mr A and two colleagues teamed up and made false accusations against her. The first was that on 7 July 2010 she left work without permission for three hours and twenty minutes. These false allegations were not mentioned to the complainant until four weeks after the alleged incident. Secondly, it was alleged she left the premises on 20 July 2010, when she had in fact just popped out for two minutes to collect keys from her husband.
2.4 She was put through an investigation and appeal process and the allegations were rejected after she provided proof that she was in the workplace. Despite this she received a formal warning.
RESPONDENT'S SUBMISSION
3.1 The respondent confirmed that the complainant started work on 22 May 2006 as a rehabilitation assistant.
3.2 The respondent submits that in December 2008, during a supervision meeting, the Local Service Manager (Mr A) told the complainant that from time-to-time she interrupts people when they are talking. This was acknowledged by the complainant, who said she would work on it.
3.3 In January 2009 two residents raised an issue and said they felt they were being 'bossed' by the complainant. This was addressed by management with the complainant and it was agreed with her that she would not help one of the residents with his exercise programme or showering. The complainant was concerned that the resident might stir up negative atmosphere towards her. Management noted that this resident had previously taken a dislike to another employee who was African. The complainant was asked to relax her style with residents and this was noted on her file on 21 January 2009.
3.4 In May 2010 the respondent submits that the complainant left the residential facility unattended and during this period a resident had to answer the phone for another resident. Mr A told the complainant that if she had to leave the facility she must inform another member of staff.
3.5 In June 2010 a resident was verbally abusive to the complainant who reported the incident to management. Several meetings were held with the resident and he apologised to the complainant who confirmed she was happy with the outcome. During this meeting the complainant alleges that Mr A told her to change her personality or he would write a report but this is denied by Mr A.
3.6 On 7 July 2010 the complainant was seen by a colleague (Ms B) walking away from the residential facility at 18.45 and she was not seen again until 22.00. Ms B was the only witness. The complainant provided evidence asserting she had not left. Given the contradictory evidence the respondent was not able to come to a definite conclusion about the incident and no disciplinary action was taken.
3.7 On 20 July 2010 at 15.00 Ms B and another colleague (Mr C) could not find the complainant. She returned 20 minutes later and she had been seen outside talking to husband and children by another colleague Ms D. When he was made aware of the incident Mr A informed the Regional Manager and a formal disciplinary investigation was started. The complainant was informed of the investigation by letter from HR on 17 August 2010. The complainant provided a written response and a disciplinary meeting was held on 9 September 2010 to look into the incidents on 7 July and 20 July. The minutes of the disciplinary meeting also refer to a debriefing meeting between the complainant and Mr A in which the comment about the complainant working like a bull was alleged to have been said. Mr A submits he stated that staff in dealing with certain residents must not act 'like a bull in a china shop'. During this debriefing meeting the complainant admitted she still engaged with the resident she had agreed not to engage with.
3.8 On 15 October 2010 Mr D met with the complainant to discuss the outcome of the disciplinary process and it was decided that her absence from work on 20 July warranted a formal warning. On 12 November 2010 the complainant appealed this decision. The appeal hearing was on 7 December 2010 and the original decision was upheld.
3.9 At the complainant's annual team based performance management review on 22 December 2010 with (Mr A) and the Team Leader (Ms E), Mr A noted that the complainant had been seen using her mobile phone during a recent team meeting. The complainant became agitated and called Mr A 'a liar' and said she would not listen to any feedback. She was shouting and was asked to calm down. When she would not stop the meeting was brought to a close. At a follow up meeting on 17 January 2011 follow up meeting the complainant was uncommunicative until she engaged in a verbal outburst against both managers and the meeting was concluded.
FINDINGS & CONCLUSIONS
4.1 The complainant made her claim that she was victimized by the respondent on the grounds of race. Section 74 (2) of the Acts states: "victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to
(a) a complaint of discrimination made by the employee to the employer", or in a number of other situations. The complainant did not make a complainant of discrimination before the incidents she has referred to in her claim. At the hearing I clarified that the allegations made by the complainant do not fall within the definition of victimisation but fall within the definition of harassment in section 14A of the Acts which states: "references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, ...... 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.
4.2 Therefore I have to decide if the complainant was harassed by the respondent on the 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 presented at the hearing.
4.3 In the first incident the complainant contends that Mr A referred to her as working 'like a bull' whilst Mr A gave evidence he said she should not act like a 'bull in a china shop'. In considering the direct evidence of the complainant and Mr A at the hearing I accept that Mr A used the expression 'bull in a china shop', however I also accept that the complainant did not understand the expression and this led to a misunderstanding of what was said. I can find no other evidence in relation to Mr A's management of the complainant that substantiates her allegations that he bullied her. Section 85A (1) of the Employment Equality Acts states: "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. I therefore find the complainant has failed to establish a prima facie case of discrimination in relation to this part of the claim.
4.4 The complainant has also alleged that Mr A and two colleagues made false accusations that she had left the building during working hours on two occasions. The respondent did receive complaints that the complainant had left the premises on two occasions and investigated both incidents. Because of contradictory evidence the first incident on 7 July 2010 was not pursued. The investigation concluded that the complainant had left the premises in the second incident on 20 July 2010 for twenty minutes and received a written warning.
4.5 Section 14A(2) gives an employer a defence against harassment if it can prove that it took such reasonable steps as are practicable to prevent the harassment. The complainant was given an employment contract and received a copy of the respondent's employment policies; Disciplinary Procedures, Grievance Policy and Procedure, Preventing & Dealing with Bullying and Harassment and Equal Opportunities Policy. Having considered all the evidence I conclude that the respondent dealt with the incidents in accordance with their procedures. Furthermore, the complainant has produced no evidence to substantiate her claims that the accusations were falsified. The complainant was not happy with the outcome but I can find nothing in the evidence provided which leads me to question the integrity of the procedure followed. I am therefore satisfied that the respondent can rely on the defence in section 14A (2) of the Acts and find that the complainant has failed to establish a prima facie case of harassment in relation to these two incidents.
4. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts, that the complainant has failed to establish a prima facie case of harassment on the race ground and the complaint fails.
____________________
Hugh Lonsdale
Equality Officer
27 September 2013