The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998-2011
DECISION NO. DEC-E2015-082
PARTIES
Muhammed Waris Butt
AND
Ireland ROC Limited
(Represented by Ms. Mary Fay B.L.,
Instructed by Arthur Cox Solicitors.)
File reference: EE/2012/519 and Et-153136-ee-15
Date of issue: 11th September 2015
1. DISPUTE
1.1. The case concerns a claim by Muhanned Waris Butt (hereinafter referred to as (‘the complainant’) that he was subject of discrimination by Ireland ROC Limited (hereinafter referred to as ‘the respondent’) on the grounds of race and religion contrary to section 6 of the of the Employment Equality Acts (hereinafter referred to as ‘the Acts’) when he was subject to harassment. The complainant also claims that he was the subject of victimisation by the respondent in terms of Section 74(2) of the Acts.
1.2. The complainant referred a claim to the Director of the Equality Tribunal on 2 October 2012 under the Acts and a further claim on 26 January 2015. On 17 April 2015, 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 18 June 2015.
2. SUMMARY OF COMPLAINANT'S CASE
Incidents at Service Station A
2.1. The complainant, who is a Pakistani national, was employed as a retail assistant by the respondent since March 2009. In October 2010 be was assigned to work in Service Station A, in north Dublin. The complainant submits that he was bullied by three Lithuanian colleagues including store manager Manager A, during his time at that location. Specifically the complainant submits that the respondent disciplined him for not following the proper cash handling procedures his colleagues and that fabricated allegations against him for which he was disciplined by the respondent without being afforded the opportunity to put his side of the argument across.
2.2. The complainant submits that his was disciplined because his colleagues and manager did not like him and that they disrespected him by not speaking English when he was present. The complainant submits that his manager acted in an unprofessional manner.
2.3. The complainant submits that the disciplinary process was unfair because a report was compiled by a person unknown to him and then forwarded on to the chairman of an investigating committee. The complainant submits that this process is inherently flawed.
2.4. The complainant submitted photographic evidence of a notebook which he submits he purchased but was being used by the respondent company to give him instructions and that the respondent tore off a page in order to destroy evidence.
Incidents at Service Station B
2.5. The complainant submits that following a transfer to a Service Station B that he began to experience bullying from his new manager (Manager B). The complainant submits that on or about the 17th November 2014 he raised the issue of his managers bullying behaviour directly with a senior manager. The complainant submits that Manager B continued to bully him and that on the 27th November made him continue to attend the cash till even though he had already been at the cash till for two hours.
2.6. The complainant submits that he raised all of the above issues with the respondent’s HR section who failed to deal with his concerns.
2.7. The complainant submits that on one occasion a regional manager (Manager R) unknown to him entered the premises and failed to introduce himself properly and made a general instruction to “watch the forecourt”. The complainant submits that this was an act of extreme “disrespect” to him personally and amounts to an insulte to him by accusing him of not doing his job properly.
2.8. The complainant submits that all of the above alleged acts of discrimination were motivated on the ground of race and the religion ground.
3. SUMMARY OF RESPONDENT’S CASE
3.1 The respondent wholly rejects all aspects of the complaint. The respondent rejects the allegation by the complainant that incidents of disciplinary action against him where motivated by race or religion. The respondent submits that incidents when disciplinary action was implemented were in response to the poor behaviour of the complainant.
Incidents at Service Station A.
3.2 The respondent submits that complaints made by
(i) Manager A against the compainant for rude and aggressive behavior and failure to carry out instructions.
(ii) Manager B that the complainant engaged in aggressive behavior.
were bone fide and that no link to the cited grounds existed or can be established.
3.3 The respondent submits that, following an investigation of (i) above by a third store manager, the complainant was issued with a final written warning about his behaviour which he did not appeal. The respondent submits that the complainant states in a letter dated 28 November 2014 that he had never encountered discrimination in six years working for the respondent.
Incidents at Service Station B.
3.4 The respondent submits that the complainant received his full allocation of contracted hours per week and submitted rosters for consideration of this Tribunal that demonstrate that Manager B allocated hours in a professional manner and in line with company policy.
3.5 The respondent submits that the allegation by the complainant that Manager R engaged in inappropriate behavior (by failing to introduce himself and requesting that the complainant watch the forecourt when authorizing a pump) was independently investigated by a member of their HR department, who did not uphold the complainant’s grievance. The respondent states that the complainant appealed this finding and it was investigated by a person based in the respondent’s UK HR department (Ms. U) and was not upheld. The respondent says that the complainant initially denied that Manager R had shaken his hand and only conceded that a hand shake had happened when Ms. U showed him CCTV evidence. The respondent submits that it is unclear what link, if any exists between these events and the complainant’s race and religion.
3.6 The respondent rejects any allegation that Manager B harassed the complainant by issuing the complainant with a verbal warning for failing to carry out duties requested of him. The warning was appealed by the complainant, investigated by an independent store manager. The appeal was not upheld. The respondent submits that there is no link between the decision of the appeal and the complaints race or religion.
3.7 The respondent submits that the complainant has a history of being unable to carry out the most simple tasks required of a retail assistant without taking offence. Specifically, i.e. instructions to stock a shelf, watch the forecourt when authorizing a pump or attend the cash register.
3.8 The respondent submitted for the consideration of this tribunal, copies of written warnings, documentation relating to appeals and the disciplinary sanctions imposed on the complainant.
3.9 It is the respondent’s submission that the complainant’s complaints of discrimination are misconceived and are a knee-jerk reaction to disciplinary sanctions imposed on him.
4. FINDINGS & CONCLUSION
4.1. I have to decide if the complainant was harassed and victimised on the ground of race or the religion ground. 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. The complainant does not maintain that he has been subject to racist remarks and other offensive comments about his religion and national background. In this case almost all of the alleged harassment relates to:
a. the context in which two managers requested the complainant carry out to a number of mundane tasks.
b. the manner in which the respondent investigated various problems relating to the complaint.
c. the manner in which hours were allocated at service station B.
As evidence of the above he has presented details a series of incidents. While he 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.
Victimisation.
4.5 According to the complainant the only one instance when he ever raised concerns of being discriminated against on the ground of race or religion was on one occasion in 2012 when he says he “probably” mentioned it to Manager A. I do not find speculation by the complainant about his own behaviour sufficient to establish that he had placed the respondent on notice of his concerns about discrimination. There is no evidence that the respondent was on notice of the complaints concerns regarding the grounds under consideration and the issue of victimisation (as set out under section 74(2) of the Acts) does not arise in relation to the complaint referred this Tribunal in April 2011. I must however consider if any of the actions by the respondent following the complaint lodged on 26 January 2015 constitute victimisation under the Acts.
Incident of Cash handling procedures.
4.6 The complainant submits that all staff in Service Station A did not follow the required cash handling procedures and produced a fellow employee at the hearing who gave evidence that this was true, in that staff would leave small amounts of cash in envelopes in a drawer rather than the safe. The complainant submits he was the only one singled out for disciplinary action for following this common practice.
4.7 I find that the respondent was entirely justified in investigating the complainant’s failure to follow cash handling procedures for the sole reason that a member of the public handed in an envelope of cash which the complainant had been responsible for. I have examined the records of the investigation and been given first hand evidence by the chair of the investigation committee and taken account of the complainant’s account. I find that the respondent investigated this incident in a highly responsible, fair and efficient manner. There is no evidence that race or religion were an issue in regard to this incident.
Incidents at Service Station A.
4.8 I prefer the account put forward by the respondent in regards to the behaviour of the complainant and the disciplinary process he was subjected to.
Issue of working Hours at Service station B
4.9 The complainant submits that manager B did not assign him more than his contract required 40 hours because Manager B was from a different part of Pakistan, but instead that Manager B assigned hours to Employee C because Employee C was from the same part of Pakistan as Manager B and therefore culturally similar. Manager B disputes that he is culturally different from the complainant as they are the same religion, nationality and speak the same language. Regardless, details of rosters put forward by the complainant clearly demonstrate that he was not getting less hours then Employee C.
4.10 Having questioned Manger B and examined roster records I find that manager B acted in a reasonable manner when assigning hours to the roster and that the complainant did not received more hours for a range of reasons which are within the normal functions of a manger in his situation, including the limited availability of the complainant. I find no evidence whatsoever that race or religion were an issue in regards the matter of rostering hours.
4.11 The complainant has stated that all of the disciplinary processes where 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 all of the disciplinary processes, that the complainant was given every opportunity to put forward his version of events and I find no evidence of discrimination.
4.12 It is the complainant’s contention that has been the victim of harassment by no less then twelve individuals (of a wide range of nationalities) in two different locations. I have examined every allegation of discrimination put forward by the complainant and find there is no connection between any of the incidents put forward by the complainant to the grounds of race or religion. I find that the complainant has not established any inference of discrimination and in every instance I prefer the account put forward by the respondent.
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 was not subject to discrimination or harassment on the ground of race or the religion ground and his conditions of employment were not affected,
(ii) the complainant was not subject to victimisation in terms of section 74 (2) of the Employment Equality Acts.
____________________
Peter Healy
Equality Officer
11th September 2015