The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-007
PARTIES
Jun Liu
(Represented by Ms. Claire Bruton B.L.
instructed by Feran & Co. Solicitors)
AND
Dunnes Stores.
(Represented by Byrne Wallace.)
File reference: EE/2011/411
Date of issue: 23 February 2015
1. DISPUTE
1.1. The case concerns a claim by Mr Jun Lui (hereinafter referred to as ‘the complainant’) that he was subject of discrimination by Dunnes Stores (hereinafter referred to as ‘the Respondent’) on the grounds of race contrary to section 6 (2) (h) of the of the Employment Equality Acts (hereinafter referred to as ‘the Acts’) when he was dismissed from his employment. The complainant also claims that he was the subject of discrimination in terms of harassment in accordance with section 14 of the Acts and that he was victimised by the respondent in terms of Section 74(2) of the Acts.
1.2. The complainant referred his claim to the Director of the Equality Tribunal on 29 April 2011 under the Acts. On 21 June 2013, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Peter Healy, 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 September 2013 and on 24 July 2014. The complainant withdrew that allegation of victimisation at the outset of the hearing. Final correspondence was received on 25 November 2014.
2. SUMMARY OF COMPLAINANT'S CASE
2.1. The complainant, who is Chinese, was employed as a retail assistant by the respondent since 2001. The complainant submits that he had a good working relationship with staff and managers until the appointment in 2008 of Mr A as his manager at the deli counter.
2.2. The complainant submits that Mr A subjected him on various occasions to racial bullying in the following manner,
- · Mr A shouted racial insults at the complainant.
- · Mr refused to let the complainant go to the toilet while on duty
- · Mr A made the complainant repeat tasks that had already been completed.
The complainant submits that he complained directly to Mr A about these matters but did not raise them with other managers as he was afraid of being victimised by the respondent. The complainant also submits that Mr A made him work more anti-social hours then other employees and that Mr A made a disparaging remark about the complainant’s intention to go to college.
Incident leading to dismissal
2.3. The complainant was dismissed by the respondent following an incident on 1 December 2010 which occurred at the delicatessen counter while the complainant was setting up the hot and cold food counters. The complainant submits that Mr A complained that the as the counters had not been set at the correct temperature that all of the food would have to be thrown out. The complainant submits that he told Mr A that he disagreed, that he had been trained to set it at a particular level and that there was no need for the food to be thrown away. The complainant submits that at this point Mr A made a specific racial slur as well as another slur that the complainant could not understand, and began to walk away. The complainant submits that he asked Mr A to explain what he had said and that Mr A approached him with a raised fist. The complainant submits that he felt threatened and he instinctively reacted to defend himself resulting in a physical altercation.
2.4. The complainant submits that following the incident he was brought upstairs for a meeting with senior management following which he was suspended.
2.5. The complainant submits that the following day he refused to attend a further meeting as the respondent would not allow his chosen representative to attend. A further meeting was set for 7 December 2010. The complainant contests the written record of this meeting at which he says he was accused of assaulting Mr A and shown CCTV footage of the incident. The complainant says he raised the issue of racial abuse at the meeting but that Manager A laughed at him for this. The complainant says he was never offered the services of an interpreter.
3. SUMMARY OF RESPONDENT’S CASE
3.1 The respondent rejects all aspects of the complaint. The respondent submits that, as the complainant made no complaint about the incidents outlined at 2.2 before 1 December 2010, that I do not have jurisdiction to make a determination in relation to these incidents as they are outside the six month period for the referral of a complaint, pursuant to section 77(5) of the acts.
3.2 Mr A attended the hearing and denied all allegations made by the complainant. Mr A strenuously denied that he ever behaved in a discriminatory manner or bullied the complainant. He denies all of the actions attributed to him by the complainant at 2.2 above.
Dismissal
3.3 Mr A's account of the incident on 1 December 2010 is completely at odds with the account of the complainant. Mr A says he raised the issue of why the temperature for the cooked meats counter was not turned on, to which the complainant replied he thought, he had turned it on. Mr A says that after instructing the complainant to verify the temperature with a probe that he instructed the complainant to remove the affected stock from the counter and discard it as wastage. Mr A says he then told the complainant that this was unacceptable and issue would be dealt with later and proceeded to walk away. Mr A says that the called him and come back. Mr A says as he was returning the complainant came out from behind the counter swinging his right fist which connected with the side of his head. Mr A submitted that the complainant then continued to throw punches and kick at him as he put his hands up to his face to try and protect himself.
3.4 The respondent submits that another member of staff Mr B had to intervene and physically pulled the complainant away from Mr A. Mr B attended the hearing and submitted that he found that the complainant repeatedly hitting Mr A who was reacting in a defensive manner only, i.e. holding his arms around his head in a protective manner.
3.5 The respondent rejects allegations that the dismissal procedure was influenced in any way by discrimination.
3.6 The respondent company submits that it has always operated a strict no tolerance policy in respect of assault in the course of employment as outlined in a company handbook available to all employees.
4. FINDINGS & CONCLUSION
4.1. I have to decide if the complainant was harassed and victimised on the ground of race. In reaching my decisions 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.
4.2. Section 85A of the Act 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.
4.3. Section 14 of the Employment equality act sets out the conditions under which harassment in relation to access to employment can take place. It provides as follows: -
(7) (a) In this section—
(i) references to harassment are to any form of unwanted
conduct related to any of the discriminatory grounds,
and
(b) 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.
4.4. In this case almost all of the alleged harassment relates to the spoken word and only two of the reported incidents had one witness. The complainant maintains that he has been subject to racist remarks and other offensive comments about his religion and national background. As evidence of this he has presented details a series of incidents. At the hearing I allowed the complaint to put forward details of incidents that predate the six month time limit set out by the Acts in order to establish if a continuum of harassment could be established. While the complainant said that there were other incidents he was unable to present any detail or other evidence. I must therefore consider that the incidents presented are the most serious ones in the view of the complainant and decide if they individually or as a whole constitute harassment as set out in the Acts. At the hearing each of these incidents were examined in detail. No co oberative evidence was presented by the complainant to support his account of these incidents.
4.5 Taking into account only the complainants version of events it is clear that he only raised the issue of the incidents of harassment when he believed he was to be dismissed from his employment. I find that the complainants timing in this regard undermines his credibility. In addition, given the complainants 10 year history of employment with the respondent I find it reasonable that respondent expected that the complainant was aware of their procedures regarding harassment. I accept Mr A’s version of events and find that the complainant has not presented evidence sufficient to establish harassment.
4.6 In relation to the incident of the physical altercation, I find that the video evidence presented at the hearing, while inconclusive, is more supportive of Mr A’s version of events than the complainants. There is certainly no evidence of aggressive behaviour by Mr A, as alleged by the complainant. On that basis complainant has failed to establish that the incident was evidence of discrimination.
4.7 I note zero tolerance policy in relation to the manner of the dismissal. Taking into account the account put forward by Mr B and severe injuries to Mr A I find that respondent reasonably believed that it was required to investigate if the complainant had assaulted Mr A and acting accordingly. I am satisfied that had any other employee presented in the same circumstances that they would also have been treated in the same manner as the complainant.
4.8 Having heard all details of the long service of the complainant and his working relationship with numerous witnesses who gave evidence at the hearing, I find that it was reasonable for the respondent to assume that the complainant did not need the services of an interpreter during the disciplinary process.
4.9 The complainant has stated that the disciplinary process was tainted by discrimination. Having heard direct evidence from HR personnel present for the relevant meetings and having reviewed the minutes of those meetings supplied by the respondent I accept the version of events put forward by the respondent and find that they acted professionally and reasonably during the disciplinary process, that the complainant was given every opportunity to put forward his version of events and I find no evidence of discrimination.
5. DECISION
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 2011. I find that
(i) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against him by dismissing him on the grounds of race.
(ii) the complainant has failed to establish the facts from which it may be presumed that he was harassed by the respondent on the grounds of race.
____________________
Peter Healy
Equality Officer
23 February 2015