ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000232

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 12/02/2016

Workplace Relations Commission Adjudication Officer: Marguerite Buckley

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, and Section 79 of the Employment Equality Act, 1998, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

1.1 The Complainant commenced working for the Respondent on the 15th of November 2004 as a shop assistant. He was paid a weekly wage of €350.00 gross, €336.00 net for a thirty seven and a half hour week.

1.2 The Complainant was a Lithuanian national.

1.3 He resigned from his employment on the 4th of October 2015. The Claimant stated that the reason for his resignation was because of the verbal abuse of a racial nature suffered by him “at the hands of an employee [named co-worker he had difficulty with] which abuse was made worse by the lack of response of my employer to whom I complained” and in particular the summer of 2015.

1.4 The complainant was rostered for the evening shifts. The Complainant stated that he was rostered to work with the named co-worker he had difficulty with five to six shifts per week however this was disputed by the Respondent. The Respondent stated that they only worked together a maximum of two to three shifts per week.

1.5 In the written submission from the Complainant he stated that he was “continually, up to the time of his resignation the subject of denigratory comments”. The claim was made that the comments were of a racial nature and on a continuous basis. These were:

1. You should be shipped home. You should have a free ticket to the airport.
2. What is the magic word for foreigners?
3. He doesn’t know English – don’t mind him.
4. Our manager is very good to me and nobody gives two fucks about you.
5. You are worse than Irish.

1.6 At the start of February 2015 the Complainant made a complaint to the store manager at the time, who made a note of the complaints in writing and the Complainant signed this. The complaints were in summary:

a) When serving customers, [named co-worker he had difficulty with] interrupted the Complainant to get change from his till and in doing so upsetting the service being provided to the customer

b) Making references about his wife which really upset him. This happened quite regularly and has been reported to the store manager previously.

c) He had a disagreement with [named co-worker he had difficulty with] in the storeroom. She threw three bottles of Lucozade on the ground nearly hitting him and also blocked his way from leaving the store room.

1.7 The Complainant wasn’t happy with the outcome of his complaints. No changes in rostering came about as a result of his complaints and he had to continue to work with [named co-worker he had difficulty with].

1.8 In July 2015 the Complainant made a complaint to a different store manager regarding the behaviour of [named co-worker he had difficulty with]. He set out his grievance on the 10th July 2015 by email. The content of the email was

“Dear Management, to work with [named co-worker he had difficulty with] five shifts of six, she has in two weeks is not OK. My best regards, [Complainant].

1.9 The Complainant alleged that the store manager made a comment to the effect that to change the rosters would involve a reduction in hours for the Complainant to a four day week. The Complainant alleged that no action was taken into his grievance because of the close friendship of the store manager with [named co-worker he had difficulty with]. He stated no effort was made to amend the rosters and as such reduce the incidents of their contact and verbal abuse from [named co-worker he had difficulty with]. The Complainant alleged that his complaints were not taken seriously and caused him “a serious amount of stress and upset”. The Complainant alleged that following bringing his grievance in February 2015 that the Complainant was working more often with [named co-worker he had difficulty with] than before.

1.10 In September 2015 there was another incident with [named co-worker he had difficulty with] as to whether she had taken Benson & Hedges cigarettes from the shop without payment. The Complainant believed that [named co-worker he had difficulty with] had brought a formal grievance against him and that this was being investigated by human resources. He believed that as a result of the investigation it was proposed that he would be moved to a different shop in the same town.

1.11 The Complainant believed that he was the only non-national employee working in the town for the Respondent. This was disputed by the Respondents employee relationship manager. It was confirmed he was the only non-national employee working in one particular store.

1.12 The Complainant gave evidence that at once stage a business rep called to collect boxes at the store. [The named co-worker he had a difficulty with] made the comment, “don’t mind him, he doesn’t understand English”.

1.13 The Complainant moved to the different store location in the town on the 27th September 2015. He gave evidence that this move did not work out for him. He was not given two days rest together. He agreed that he was on the same hours and the same pay. A few days after his move he contacted his manager at the new store. He told him he was going to resign. His new manager told him to email his previous site manager. The Complainant said he was going to give one week’s notice to the Respondent as the roster had been set.

1.14 At the time of his resignation the Complainant had secured employment with a competitor in the town. He worked for the competitor until the end of November 2015. He also resigned from that role because the rosters weren’t suiting him. He worked for three weeks with the competitor. When he took the position he was told it was a thirty five hour a week role however he was only working four hours per day for six days a week.

1.15 He was unemployed until February 2016 and is now working in another competitor in the town.

1.16 The reason for his resignation from the Respondent was that he had lost confidence in the company and he had no choice but to resign. He said he had brought a grievance on two occasions and he had lost confidence in the company’s procedures.

1.17 The Complainants representative submitted that it was agreed that there was banter between the staff members. That banter amounted to harassment. Harassment is defined in a subjective way under the Act and the Complainant had given evidence on that regard.

1.18 He submitted that the Complainant was entitled to walk away and that obviously something was “going on” in the organisation.

1.19 When asked to provide more specific details of the incidents of discrimination and harassment and not merely to give unsupported assertions, the Complainant stated that at one stage another Irish employee was not rostered with [the named co-worker he had a difficulty with]. He stated that this was for a period of eighteen months. He also stated he didn’t remember one of the store managers being on the roster with [the named co-worker he had a difficulty with].

1.20 Under cross examination, the Claimant stated that he felt that nobody was supporting him in the first store he was working in. Initially he didn’t want to move to the new store on the other side of the town. He agreed that he was not told specifically that he had to move, but was given the offer only. After the September incident, he agreed to move.

1.21 He stated that he worked a Monday in the new store and then by Wednesday had found a job with a competitor filling station.

1.22 He stated he didn’t remember being asked to take back his resignation.

1.23 The Complainant had no witnesses to corroborate his evidence as he worked alone with [the named co-worker he had a difficulty with].

1.24 The Complainant stated that the comments gave rise to untold stress and anxiety to him which extended to his family. The Complainant was puzzled with the fact that his complaints were not progressed any further. The speculation he made was that this was because [the named co-worker he had a difficulty with] was friendly with the store manager. He could only think that it was based on race grounds.

Respondent’s Submission and Presentation:

2.1 The store manager or the assistant store manager made out the rosters. [The named co-worker the Complainant had a difficulty with] worked less hours than the Complainant, working between 15 and 37.5 hours per week.

2.2 It was not unusual for the Complainant to be rostered for weekends and had 9 weekends off in the year to the termination of his employment.

2.3 It was agreed that [the named co-worker the Complainant had a difficulty with] did have a personality clash with an Irish co-worker a number of years ago. Both had strong personalities. After that incident the air was “cleared between them”. It was a once off incident. It was admitted that they were rostered separately for a week or two before they were rostered again together.

2.4 The Respondent’s representative made a submission that a prima facie claim of discrimination must be established and that there was no evidence that the Claimant was discriminated against or treated differently than others because of his race. He submitted that there was no evidence to support the claims being made. The Complainant brought no witnesses to corroborate his case. He may have had a grievance against the company but it was for reasons other than race and that there was no link with his race shown. He stated that the case was misconceived.

2.5 In the Respondents written submission, they asserted that the complaints were manifestly frivolous or misconceived and that the claims should be dismissed. The Respondent had a grievance procedure in place. This was given to the employee at the commencement of employment and also contained in the handbook on site. The Complainant acknowledged that he was aware of the existence of the grievance procedure.

2.6 Step 1 of the Grievance procedure states that

“any grievance or dispute which arises should in the first instance be discussed between the staff members and their manager”.

2.7 The Respondents evidence was that this informal procedure took place with regard to complaints by the Complainant in both February and July 2015.

2.8 At a meeting with the Complainant in July 2015 he advised the store manager that he had no issues with his co-worker and that his reason for the change in shift was what he would like variety in his working hours. However due to the number of staff available for rostering and the number of requests for holidays and time off, the Respondent was not able to facilitate a difference in rostering.

2.9 A review of the shifts worked by the Complainant and [the named co-worker he had a difficulty with] carried out by the Respondent revealed that they worked an average 2 shifts per week together and this did not change post the complaints raised by the Complainant.

2.10 During September 2015 during an informal meeting arising from an informal grievance raised by [the co-worker the Complainant had a difficulty with]; the Complainant mentioned to the employee relations manager that he had “some concerns relating to the workplace and that was speaking to his solicitor about them”. The employee relations manager urged the Complainant to pursue a grievance internally and provided him with a copy of the grievance procedure. The Complainant notified employee relations manager that he wished to continue with the grievance and the Respondent’s Retail HR assistant was appointed to investigate the grievance. Before she had an opportunity of completing her investigation, on the 27th of September 2015 the Complainant resigned from his positon giving an end date of the 4th of October 2015. The Complainant was encouraged by the employee relations manager to reconsider his resignation and to pursue his grievance by giving full details to the investigator which he had not done at that stage. The Complainant advised that he would continue with his resignation but he would give some details of the events to the investigator.

2.11 By email the employee relations manager emailed the Complainant on the 1st of October asking him to reconsider his position and that given the opportunity to complete a thorough investigation, the company could resolve any concerns he had regarding a colleague or the workplace.

2.12 The Complainant replied on the same day:

Dear [employee relations manager]

Thank you for understanding my decision is final due to I starting new job and would like to move forward with this. But the same way I would like to give details on my account of events here in Topaz and explain my self for motivations what driven me to terminate my job after 10 years with the company. I have to say in enjoyed most of those years to work except last period. Its very said for myself and my colleagues I had to say that I leaving. Thank you again for support and understanding my situation.

Your professionalism inspiring me for my future. I would like to proceed with your colleague when its appropriate for meeting.

Best regards.

[The Complainant]

2.13 It was only post leaving the Respondents employment on the 6th of October 2015 that the Complainant submitted further details to the investigator. He sent a two page list of complaints a number of which were not mentioned in his written submission to the Workplace Relations Commission or raised at the hearing of the case.

Decision:

3. Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Issues for Decision:

4. This dispute involves a claim that the Complainant was harassed in accordance with section 14A of the Acts, suffered discriminatory constructive dismissal and victimised pursuant to section 74(2) of the Acts.

Decision:

5.1 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 as amended 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.”

5.3 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.

6.1 Harassment claim:

Section 14(A) of the Equality Acts broadly provides that harassment is any

“unwanted conduct related to any of the discriminatory grounds”.

6.2 The complainant outlined that one of his co-workers made a series of derogatory remarks some relating to race, others in relation to his wife, both to him and others at their place of work. These allegations were denied by the co-worker. This aspect of the claim is the most difficult to adjudicate upon due to the lack of corroborative evidence supportive of one side or the other.

6.3 Having assessed the parties giving evidence and taking account the length of service (11 years) of both the complainant and the co-worker working together, I found the Respondents evidence was more credible. I accept that there was some element of falling out between the two co-workers, but I have not been provided evidence to substantiate that it was in relation to the complainant’s race.

6.4 None of the complaints made by the Complainant to the Respondent during the period of his employment indicated that the difficulties between the two employees were race related. The written note of the 5th February 2015 and the email of the 10th July 2015 did not raise any issues linked to the complainant’s race. The Respondent was not aware of any racist element of any complaints until the claim was lodged by the complainant with Workplace Relations Commission. The co-worker admitted that there were issues about cigarettes and a chocolate bar, but she denied that she called him the names he alleged.

6.5 Arising from the above, I find that the Complainant has failed to establish a prima facie case of harassment under the Equality Acts.

7.1 Victimisation claim:

The complainant outlined that he was subjected to victimisation treatment in relation to rostering of shifts following the making of complaints to the respondent. This is denied by the respondent.

7.2 The complainant supplied four rosters to support his claim dating from August and September 2015. The Respondent supplied a report on the full year of 2015 to the date when the Respondent resigned in October 2015 and set out a breakdown of the weekends worked by the Respondent and the number of shifts worked by the complainant and his co-worker.

7.3 Section 74(2) of the Employment Equality Act provides:

(2)

For the purposes of this Part 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,

(c)

an employee having represented or otherwise supported a complainant,

(d)

the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e)

an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f)

an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g)

an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

7.4 Therefore the key elements of victimisation provided for in s.74 (2) of the Employment Equality Acts are as follows:

· The employee had taken action of a type referred to at s.74(2) of the Acts (a protected act),

· The employee was subjected to adverse treatment by the respondent, and

· The adverse treatment was in reaction to the protected action having been taken by the employee

7.5 In this case, I cannot find that the complainant raised any complaints with the Respondent linked to his race. His complaints to the Respondent on the 5th February 2015 and 10th July 2015 made no reference to his race and as such the complaints were not within the meaning of the Acts. Therefore the complainant’s actions are not protected for the purposes of Section 74(2) and the complainant does not meet the first part of the test. However in any event, the complainant worked one or two shifts per week with the co-worker he had a difficulty with both before and after he raised complaints with the Respondent and as such I cannot find that he was subjected to adverse treatment by the Respondent.

7.6 Therefore the complainant’s complaint under this heading also fails.

8.1 Discriminatory constructive dismissal

The definition of dismissal within the Employment Equality Acts covers constructive dismissal. Section 2(1) of the Employment Equality Acts provides that dismissal, includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly.

8.2 To meet the burden of proof on the complainant, he must demonstrate that he was entitled to resign from his employment due to a fundamental breach of contract or in all of the circumstances, it was reasonable for him to resign.

8.3 In this case, the complainant is relying on the second test of reasonableness which is a wider test and looks at all of the circumstances in place at the time of the complainant’s resignation.

8.4 The authorities indicate that what is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case and except in exceptional circumstances, prior to resigning, the complainant is expected to seek to have formally invoked and worked through his employer’s grievance procedure.

8.5 I accept that the complainant did make two complaints against the co-worker he was having difficulties with in February and July 2015. However, having made the complaints, I accept that the complainant did not follow up with them when asked by the respondent.

8.6 During an informal meeting on the 25th September 2015, the complainant mentioned to the Employee Relations Manager that he had some concerns relating to the workplace and that he was speaking to his solicitor about them. The Employee Relations Manager noted the complaints to him in an email of the 25th September 2015 namely

- A comment that [the co-worker he had a difficulty with] made with reference to your wife, which you found inappropriate and insulting

- Comments that you made towards [the co-worker he had a difficulty with] regarding payment for a snack bar, which [the co-worker he had a difficulty with] felt implied that she was stealing

and set out what she did to resolve the issues between the two co-workers informally. She noted that the complainant had said to her at the meeting that he had no interest in resolving the issues or trying to re-establish the good working relationship he had with the co-worker in the past. She advised him to pursue his grievance internally and attached a copy of the Respondents grievance procedure. An internal investigator was appointed to investigate the complainant’s complaints namely the Retail HR assistant manager.

8.7 The complainant sent an email to the Employee Relations Manager on the 26th September 2015.

Dear [Employee Relations Manager]

I would like to proceed further with my concerns about work place and issues with [co-worker that he had an issue with]. Based on open door policy those grievances hopefully could be solved in good faith and objectivity.

Kind regards

[complainant]

8.8 Despite this email same, the complainant resigned from his position on the 27th September 2015 some two days after making reference to his concerns and despite being asked to reconsider his resignation on at least one occasion by his employee relations manager, he proceeded with his resignation and same took place on the 4th October 2015. It was only after his employment had ended did he supply the Retail HR assistant manager with the details of his complaints which included a list of names the complainant is alleged to have been called by [the co-worker he had a difficulty with]. I note from the list of complaints there is no reference to the comments [the co-worker the complainant had a difficulty with] was alleged to have called his wife.

8.9 I am satisfied that the respondent conducted itself in relation to the complainant in a manner which was conducive of maintaining a relationship of mutual trust and confidence. I found the management staff of the Respondent to be professional and credible. When a complaint was made, the appropriate member of staff instigated the grievance procedure at the required stage to meet the complaint.

8.10 I find that the complainant resigned without giving the Respondent an opportunity to investigate the grievances he raised on the 25th September 2015. The respondent continued with the investigation and the investigator did not find in the complainant’s favour.

8.11 I find that the email from the complainant of the 1st October 2015 which is set out above at paragraph 2.12 very insightful. As I have found before, I find that there was possibly other grounds for the complainant resigning from his employment with the respondent, but these were not related to any of the grounds protected by the Employment Equality Acts. The complainant had secured alternative employment. The complainant was then working in a different location to the employee he had a difficulty with. Despite the above, he proceeded with his resignation.

8.12 There is a high onus of proof on complainants in making a discriminatory constructive dismissal claim and I find that the complainant did not meet the onus of proof in this case.

8.13 According all of the claims brought by the complainant fail.

Marguerite Buckley

Adjudication officer

Dated: 7 April 2016