The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2014-044
PARTIES
Teresa Bilas
(Represented by Joanna Kwiatkowska)
AND
Campbell Catering Limited t/a ARAMARK Ireland
(Represented by IBEC)
File reference: EE/2012/491 & 492
Date of issue: 19 June 2014
HEADNOTES: Employment Equality Acts – Race – Conditions of Employment & Harassment
1. DISPUTE
1.1. This dispute concerns claims by Ms Teresa Bilas that she was discriminated against by Campbell Catering Limited t/a ARAMARK Ireland on the grounds of race contrary to section 6 of the Employment Equality Acts in relation to conditions of employment in terms of section 8 of those Acts and that she was harassed contrary to section 14A of the Acts.
1.2. The complainant referred two claims to the Director of the Equality Tribunal on 19 September 2012 under the Employment Equality Acts. On 12 March 2014, 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 4 April 2014.
2. COMPLAINANT'S SUBMISSION
2.1 The complainant started working for the respondent on 7 April 2005 and stopped working for them on 14 April 2012. She submits that in May 2011 the relationship between the team she was working in and their manager started worsening. In late 2011 the atmosphere at work became very bad.
2.2 The complainant submits that she became a victim of bullying and harassment. She contends the manager spoke to her in an arrogant and humiliating manner, she was mocked for her poor English, the manager held a grievance against her, she was told she was not handling her duties well, she was put under constant pressure to work quickly and accurately, she was constantly criticised and monitored, and changes were frequently made to her duties during a working day.
2.3 At the beginning of December 2011 the complainant was seconded to work in another company. She got lost on the premises that were unknown to her and she was extremely distressed by this and has been ever since.
2.4 The complainant submits that her employer abused her and insulted her in front of other employees and she felt degraded every day. She contends that she had to work 3 times harder than her Irish colleagues. She submits the bullying was repeated and amounted to psychological aggression.
2.5 The complainant submits that from 15 December 2011 to 14 April 2012 she was on sick leave because the stress had affected her health.
2.6 The complainant submits that she told the respondent about the bullying. She wanted to resolve the matter informally and she was asked for an explanation. She asked for co-operation to improve their teamwork. However, she was ignored and had to leave her work.
3. RESPONDENT’S SUBMISSION
3.1 The respondent rejects all the allegations made by the complainant. They contend she has failed to establish any facts which would infer that any form of discrimination or harassment on the grounds of race has occurred.
3.2 The respondent confirms that the complainant started working for them on 7 April 2005 as a Catering Assistant in Newbridge and she resigned voluntarily on 16 April 2012.
3.3 The respondent submits that they have a comprehensive Dignity at Work policy and a grievance procedure. These are available in the employee handbook, which was received by the complainant, and signed for, as part of her induction programme. The respondent submits that they have many nationalities in their work force and are an equal opportunities employer and they take all complaints of bullying and harassment seriously. The respondent contends that at no time during her employment with them did the complainant raise an internal complaint.
3.4 The respondent denies the complainant’s claims of bullying and harassment and submits that no evidence has been presented to support her claims. Also, the “Manager” has not been identified. The complainant has not referred to any specific incidents with details, times and dates. Nor has she submitted any facts or evidence which might infer that any alleged treatment was related to her race.
3.5 The respondent submits that the duties of the complainant were consistent with all other employees and she has given no evidence to the contrary.
3.6 The respondent submits that I have no jurisdiction to look at any allegations in relation to dismissal because the complainant has taken a claim under the Unfair Dismissals Acts to the Rights Commissioner.
3.7 In December 2011 there was a shortage of staff in a nearby site in Naas. On 8 December 2011 the complainant and a number of others were asked to report to the Naas site. They received a phone call from the Chef Manager on the site in Naas to say that the complainant had not reported for work. Later on they received a phone call from the complainant. She was told she could stay in Naas or return to Newbridge but the complainant went home and did not return.
3.8 The respondent submits that on 9 January 2012 they received a letter from the complainant dated 23 December 2011 to explain her absence and that she was on ‘stress/medical’ leave. It appeared to them that the complainant was stressed by her inability to find the canteen on the site in Naas. The respondent replied on 13 January 2012 and invited the complainant to discuss any issues she may have. It was noted that the complainant was under no pressure to attend a meeting until she was ready. The respondent had no further contact from complainant until she tendered her resignation on 15 March 2012. They attempted to engage with the complainant on a number of occasions but received no response to their letters. On 14 April 2012 the complainant confirmed her resignation in writing.
3.9 The respondent submits that the complainant suffered no less favourable treatment than any other employee and that they acted reasonably and appropriately in attempting to resolve any outstanding issues which may have existed.
4 TIME LIMITS
4.1 The complainant referred her claims to the Equality Tribunal on 19 September 2012 and stated that the last date of discrimination was 14 April 2012, which was the date she confirmed her resignation. I am not investigating the end of the complainant’s employment but if the complainant was discriminated against in relation to conditions of employment and if she was harassed. The incidents and events referred to by the complainant in furtherance of her claims relate to events whilst she was working for the respondent. Her last day at work was 14 December 2011.
4.2 Section 77 (5) (a) states: “a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.” It is possible to refer to a number of events in the same claim of which only the most recent is within the six month time frame where it can be shown that the events create a chain of related events. Also this period may be extended to twelve months if there is reasonable cause for a delay in submitting a claim.
4.3 At the hearing the respondent submitted that the complainant was clearly outside of the six month time limit. She had legal advice and there was no reason for the delay in submitting the claims. The complainant submitted that from December 2011 to April 2012 the complainant was sick and therefore sought an extension of time on that basis. Section 77 (5) (b) states:
“On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.”
4.4 In the circumstances where the complainant was sick from December 2011 until April 2012 I consider that to be reasonable cause for a delay in making these claims. As the claims were made within twelve months of 14 December 2011 I find that they are in time in accordance with section 77 (5) (b) of the Employment Equality Acts.
5 FINDINGS & CONCLUSIONS
5.1 I have to decide if the complainant was discriminated against in relation to conditions of employment and if she was harassed. 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.
5.2 Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.. Furthermore, the Labour Court in Arturs Valpeters v Melbury Developments Ltd, Determination No. EDA0917 [2010] 21 E.L.R said there has to be ”evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
5.3 The complainant alleges she was harassed and harassment is defined bysection 14A (7) 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”.
5.4 The complainant contends that she was subjected to ongoing harassment from a manager who she identified at the hearing as Ms A. Also, she related a number of instances where she alleges Ms A treated her in a manner that amounts to harassment and that she treated Irish workers differently. Ms A gave evidence that she was a General Catering Manager and denies all the allegations. She also gave evidence that she would have had little direct contact with the complainant. The final incident relates to the complainant being asked to work for the respondent at another location. I accept that the complainant was upset when she was unable to locate the correct canteen, however I can find no evidence that the complainant was treated any differently than any other member of staff of any nationality.
5.5 The complainant contends she made complaints about the harassment but there is no evidence that she made these complaints whilst she was at work. When she made allegations after she went on sick leave and then when she resigned the respondent gave the complainant an opportunity to address her concerns. She chose not to give the respondent details of her allegations.
5.6 Having considered all the evidence I conclude that the allegations made by the complainant amount “mere assertion unsupported by any evidence” and find that the complainant has failed to establish a prima facie case of harassment.
5.7 Regarding the claim of discrimination in relation to conditions of employment I can find no evidence that she was treated any differently than any other member of staff.
6 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 discrimination in relation to conditions of employment on the race ground, and
- the complainant has failed to establish a prima facie case of harassment on the race ground.
____________________
Hugh Lonsdale
Equality Officer
19 June 2014