EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-001
PARTIES
Mr Pierre Toussaint
(represented by Ms Sarah Daly B.L., instructed by Taylors’ Solicitors)
V
Link Entertainment Ltd. t/a Il Padrino
(represented by Mr Brendan Kelly B.L., instructed by Frank Buttimer and Co Solicitors)
File Reference: EE/2014/261
Date of Issue: 6th January 2016
1 Dispute
This dispute concerns a claim by Mr. Toussaint that he was discriminated against by the company on the grounds of race contrary to section 6 (2) of the Employment Equality Acts and in relation to conditions of employment, in terms of sections 8 of the Acts, that he was harassed contrary to Section 14A and that he was victimised contrary to section 74 (2) of the Employment Equality Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 14 May 2014 under the Employment Equality Acts. On 12 August, 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Patsy Doyle, an Equality Officer/Adjudication 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. This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
Submissions were received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 1, September, 2015.
1.3 In advance of the hearing, the complainant’s representative submitted a copy of taped conversations which were accompanied by written transcripts. These referred to an incident at work on January 29th and Jan 30th and the complainant wished to submit them to the Tribunal. As these tapes were secured without the knowledge or permission of the subject, I heard submissions from both parties and while the respondent sought to take issue with one particular interpretation of a sentence, no objection was raised to my considering them in the course of my investigation. I will return to the nature of the objection raised later. The complainant’s representative played the audio tape on two occasions for the benefit of the Tribunal.
2 Complainant’s Case
2.1 The complainant is a French national of Bolivian, South American descent. He commenced work at the respondent’s restaurant on 26th July, 2010. He worked as a Sommelier. There were four managers and 15 staff members. Three of the four managers were Iranian and the remaining staff were a combination of Irish, Egyptian, Spanish, French (the complainant), Polish, Pakistan, Georgia, Turkish, Spain and Slovakia. He enjoyed his work and took an active role in the business expansion that occurred.
2.2 The complainant was dissatisfied at the administration of his terms and conditions of employment. He did not receive a contract at the commencement of his employment and he was left waiting for the payment of proper salary, annual leave and public holidays. He observed that the Iranian staff did not experience this treatment. In particular, he was troubled that he was being expected to put up with the poor treatment as a “way of the house”.
When he raised the issues, he believed that he got the run around treatment by being directed to a senior manager and a junior manager, where neither acted on his concerns. Instead, the senior Manager and the junior Managers would seek to belittle him by referring to him as “Mademoiselle” and “Napoleon” coupled with references to being overly “French”. The complainant found this offensive and insulting. The complainant submitted that he was merely seeking his statutory entitlements.
2.3 There had been a long standing issue on the allocation of the gratuity and service charge money to staff. In 2012, the management commenced a sub division of the “tips” by 10% to Management and 90% to staff. The 10% was to finance flowers, breakages and condiments. The staff were not happy with this and the issue was raised with the management at the time.
2.4 The matter came to a head on January 29th 2014 when the complainant learned that management intended to raise the management stake in the tips by 23%. He approached Mr. Nasser, the senior manager to explain the 33% management stake. At first, he was told that the manager would deal with the issue and then he observed Mr. Nasser demeanor changed to one where he was shouting at him. He recalled seeing customers who observed this behavior. Mr. Nasser invited the complainant to go upstairs to discuss the matter. The complainant was afraid so he took his phone and pressed the record button. The meeting lasted approximately 30 mins and Mr. Nasser relied on shouting, strong language and profanities to make his point throughout. He called the complainant a “Nigger” and blamed his French nationality as an irritant for the argument. The complainant was shaken and demeaned by his encounter.
2.5 The next day, Mr. Nasser sought an apology from the complainant, he denied calling him “a Nigger”. He held a meeting with the complainant and another manager Saied Kosher. The complainant sought an apology also. Mr. Nasser denied using the word “Nigger”. He told the complainant that he had a problem with him as he chased things that other nationalities did not. No progress was made at the meeting. The complainant was disappointed that no one from management helped him.
2.6 Immediately after these discussions, the complainant felt that he was being penalised by Mr. Nasser. He was sent home one day without an explanation and he believed that Mr. Nasser turned against him and watched his every move. His hours were cut and he was followed around the premises. Around that time CC TV was installed in the premises and the complainant understood that he was being watched.
2.7 In the wake of the altercation with Mr. Nasser, the complainant replayed his taped recordings for the staff.
2.8 The complainant went on leave for two weeks and on his return, he understood that his job may be at risk. On 3rd April, he was invited to another meeting, this time with three managers. He tried to bring a representative but was asked to refrain as the meeting was to be informal.
The meeting was held in the managers’ office and lasted 1 hr. 20 mins The complainant submitted a note he made of the meeting, where he recalled being told that following his recordings of the conversation with Mr. Nasser on 29th January, that his promotional opportunities at the restaurant were now compromised. Mr. Nasser told him that he “wanted to sue me for defamation” and that the complainant needed to be mindful that he had two children and would need references. The complainant formed the view that the purpose of the meeting was to secure an apology from the complainant and move on.
This did not follow and the complainant contended that Mr. Nasser maintained the position of being permitted to call him a Nigger if he wished, while he, himself maintained the position of calling on management to explain to staff if proposed changes were contemplated rather than imposing them. The complainant heard that unless he apologised for the recordings, then future requests for references would not be honoured.
2.9 The complainant sought legal advice. On April 24th, the complainant’s representative approached the company to address the behavior of the manager and seeking compensation.
On June 1th, 2014, a further letter was submitted to address the imposition of the new staff handbook, CCTV and the nonpayment of public holidays.
There was no formal answer to these letters. The complainant was clear that he was pressurized by his manager not to advance his case against the company, yet nothing was done locally to resolve the issues. The complainant resigned his position on 14th July having placed the respondent on notice that he had suffered stress and hardship in the employment since the complaint to the Equality Tribunal was made in May 2014.
On July 30th, the company agreed to pay €1,560 in respect of sums owing to the complainant. However, on September 8th, the complainant’s solicitor wrote again to the respondent citing victimization as the respondent had not paid the outstanding amounts. The complainant was informed by the respondent that they would withhold the amount unless the complaint before the Tribunal was withdrawn.
2.10 The complainants’ representative submitted that the respondent:
1 Used a highly offensive term repeatedly which amounted to harassment of the complainant during the meetings of January 29th and 30th and subsequently.
2 Intimidated and victimized the complainant following the discovery of the January recordings which in turn caused him extreme stress.
3 Deviated from their own staff handbook on Dignity at work charter.
4 Treated the complainant less favourably on grounds of race.
3 Summary of Respondents Case
3.1 The Respondent denied all complaints of discrimination, harassment and victimisation . It was common case that the complainant commenced work in July 2010. It was accepted that he had a very positive influence on the operation of the business. In turn, he benefitted from being the highest paid Front of house staff, who enjoyed significant flexibility with rosters.
3.2 The issue of the management of the gratuities was explained by the respondent. Up to 2011, the respondent described that the gratuities were counted at the end of each night of business: 90% was divided amongst the staff and 10% was returned to the House to cover incidentals and breakages. The cashier was responsible for dividing the tips and they were paid on a weekly basis. In 2011, the complainant led a protest against the practice, but this did not gain the support of the remainder of the employees.
3.3 The restaurant had a practice of charging 10% service charge for tables over 6 customers. This money was added to the” tip jar “at the end of business and distributed to the staff. In 2013, the Accountant advised that the business was sustaining a loss of eighteen thousand euro per annum through the practice of allowing the redistribution of the gratuity monies from the service charge on tables over 6. The business was paying tax on the €18,000, without retaining the income. This amounted to approximately €300-€330 per week. The respondent sought to realign the service charge monies from the previous method of staff distribution to one of retention by management to address the anomaly. The respondent was clear that the proposed practice had been discussed with staff.
3.4 The respondent detailed that the Managing Director had received feedback from the staff that the complainant was complaining regarding the changes. On January 29th 2014, at 7pm. The MD was approached by the complainant to discuss the “tips” and was accused of stealing his tips. He tried to explain about VAT, and taxes paid. He felt that the time was not right to discuss this issue at the restaurant reception area and asked to see the complainant in his office upstairs. He argued with the complainant and disputed his status as an employee representative.
Mr. Nasser confirmed that he had lost his temper and regretted this. In direct evidence, he explained that he had an awareness that France had a revolutionary history and that on a past visit, he had been shocked to see the power of a protest action on the Champs Elyesee. He denied calling the complainant a “nigger “but wanted the Tribunal to consider that he had been provoked and manipulated by the complainant. He believed that he accused the complainant of being the “legal representative of the staff “and not a “Nigger representative of the staff”, as alleged. He loved his staff and didn’t want conflict between the staff and management.
3.5 The respondent detailed how the meeting of January 30th took place. The complainant accused him of calling him “a nigger”. The MD was clear that this had not happened and was shocked when approached. He said that the word was not one he used as he was not a racist person. The MD wanted the Tribunal to be aware that being accused of stealing by an employee hurt him greatly and focussed his mind far more than the discussion about gratuities or discrimination. He told the Tribunal that he felt that by approaching him in the middle of the restaurant the complainant had aggravated him. He was annoyed at his approach as “He expected a respect” The respondent accepted the veracity of the second tape, albeit that it was recorded against their client’s knowledge or permission.
3.6 The respondent learned from staff that the complainant had gone on to email the two taped conversations to all staff at the restaurant with an accompanying message of “enjoy “This distressed him and he admitted that he had lost a certain amount of trust in the complainant after this. He believed that he had been tricked.
3.7 The MD recalled being advised by another manager that in the absence of an apology that he ought to fire the complainant but decided against it. He took external advice and decided to hold an informal meeting where he understood that the complainant was coming to apologise and move forward. Both of his managers had advised him of this plan. This meeting occurred on 3 April, 2014. The MD recalled that the meeting lasted 5 mins and that the complainant did not engage. There were three managers in attendance.
3.8 Mr Nasser had no knowledge of subsequent correspondence from the complainants’ solicitors. He confirmed that all monies owed to the complainant were paid.
3.9 The respondent submits that they are an equal opportunities employer and have an anti-bullying and harassment policy in place, as well as a grievance procedure which the complainant did not utilize
4 Witnesses for The Respondent
Mr Shay Dagmar (Manager)
4.1 Mr Dagmar worked at the restaurant as a Manager. He recalled that the complainant had been well regarded at the restaurant as a good professional worker. When contracts were issued in 2012, the complainant did not sign the contract.
. He was familiar with the change in the tip regime in January,2014. He confirmed that he had heard of several complaints and he knew that staff were not happy. He was on annual leave at the time of January 29th and 30th discussions between the complainant and the respondent but was informed of all matters. He wanted things to run smoothly and in collaboration with his fellow manager they sought to organise a four-way discussion to iron out and settle the issues of conflict. This did not occur immediately. Mr Dagmar recalled the meeting of 3rd April and in particular that the MD didn’t say much apart from asking whether the conversation was recorded?
. He did have concerns for the complainant and together with Saied, a fellow manager, they tried to get him to come to his senses and focus on resolving matters but the complainant did not confide in them. He never heard the complainant called Napoleon at the restaurant but knew that Mr Nasser was known as the Revolutionary.
4.2 Mr Dagmar detailed the complainants’ 27 rostered weeks post the January 2014 discussions until the complainant’s departure in July. These weeks ranged from 36.25 hrs – 67.5 hrs with the majority of the weeks in the 40 – 50 hrs range.
4.3 Mr Dagmar confirmed that the complainants’ privilege card had been reduced and that his was the sole card affected, but denied that this could be viewed as punishment.
4.4 Mr Dagmar confirmed that the restaurant had received the solicitor’s letters and that he had responded to the complainant by email.
Mr John Nyman (Waiter)
4.4 Mr Nyman recalled working with the complainant over a number of years. He understood that the complainant enjoyed privileges and an elevated status at the restaurant. He recalled the complainant seeking staff support on 2 sheets of paper to address work related issues in 2011. He was not in favour of the approach as it was creating a bad atmosphere. The staff didn’t want to go on strike.
4,5 Mr Nyman told the Tribunal that most employees had nicknames and he knew that the complainant had been referred to as Mademoiselle.
4.6 Mr Nyman gave evidence that Mr Toussaint appeared to fall from grace following the “tips” episode and he knew that his privilege card was reduced and he told the Tribunal that “If things like that happen i.e. complaint, then you can expect these things to happen”.
5 Findings and Conclusions of the Equality Officer / Adjudication Officer
5.1 Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favorably than another is, has been or would be treated. The discriminatory ground in this case is race.Section 6(2) of the Acts defines the discriminatory ground of race as follows -"as between any two persons .... that they are of different race, color, nationality or ethnic or national origins.".
It follows therefore that the Complainant must be the subject of less favorable treatment in comparison to another person on grounds of nationality.
Therefore, the issue for me to decide is whether 1. the complainant was discriminated by the respondent in relation to conditions of work within the meaning of Section 8 (5) of the Acts. 2. In addition, I have been asked to examine the claim under Section 14(A) and Section 74 (2) of the Act for Harassment and Victimisation.
In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties. I have also listened to the two tapes which were accompanied by transcripts. While a lot of the detail was inaudible and the manner in which the tapes were obtained was far from ideal, I am satisfied that it captured the broad outline of what occurred between the parties on January 29th and 30th, 2014 at the restaurant.
5.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent.
6 Discrimination
6.3 It was common case that the complainant enjoyed a certain privileged standing as a Sommelier in the restaurant. While there was mention of past discontent in relation to delayed payments, no evidence was submitted that complaints had been formalised outside the business
6.4. The complainant was clearly aggrieved at the turn of events in January 2014 in relation to the management of the gratuities. This prompted him to address matters with the respondent. He did not present this action as one officially mandated by the staff, instead, he spoke alone to the Managing Director during the course of business on January 29th. for a period of over 40 minutes.
1.The conversation was taped on a mobile phone without the knowledge or consent of the subject. As neither party objected to me considering the taped conversation outside the “central clarification “from the respondent on “nigger” vs “legal”, I gave the records my full attention. I found:
· The content of the taped conversation covering the first 5 minutes amounted to an eruption of anger and profanities from the respondent, which was solely directed at the complainant. It was a totally unreasonable and unjustifiable response from an employer to an employee. It is clear to me that working relations changed between the parties following this conversation.
· The staff handbook precluded usage of mobile phones outside break times.
· Given that the offensive statement was made two minutes into the first tape of January 29th, the complainant remained in conversation with the respondent a further 30 plus minutes wherein they discussed the background and operation of the tip system. The tone and backdrop to this subsequent conversation was even and controlled throughout.
· I note that in answer to the central alleged sentence of “Are you the Nigger representative of the staff?” the claimant said” yes” in the transcripts. I find it highly unlikely that the complainant would have answered yes to such a loaded question, if it had been tainted by a direct racial attack on him, that is why I prefer the respondents’ version of events in this regard.
· The tape contained a highly accented elevated voice which the respondent admitted was his voice. He used the word “legal “on a number of occasions on the tape. The transcript detailed this as “legal “and not “nigger”. Having listened closely to the tape on a number of occasions, I found that the accent taken in tandem with the raised voice and poor quality recording contributed to a certain in distinction and thus confusion. I am mindful of the one-day interlude before the word” nigger” was first introduced by the complainant, therefore, I find, on the balance of probabilities that the respondent directed the allegation to the complainant on the basis of “legal representative”.
· The workforce was of multi ethnic origin. There were four Irish employees. The complainant submitted that he was treated differently to the two Iranians, who did not experience the same delay in payments and were treated more favourably. The Iranians were managers at the restaurant. The period of my investigation covered November 2013 to May 2014 and no specific issues in support of this assertion were put to me. I am mindful of the Labour Court in Arturs Valpeters v Melbury Developments[1],where “ mere speculation” was insufficient to satisfy the burden of proof required under the Acts ..
The conflict that arose on January 29th between the respondent and the complainant was highly irregular and went far and beyond the parameters of an optimal employer/employee discussion . There was no recovery in the subsequent meetings of January 30th and April 3rd. The display of absolute managerial authority was very unsettling. The respondents’ management of the issue fell far short of being fair or reasonable, however, I must examine whether it was discriminatory in origin?
· In Ryanair ltd v Agnieszka Spyra [2],the Labour Court held that “ fairness” was not a predetermined criteria for deciding claims of discrimination :
“It is not for the Court to decide if this was a fair procedure. The only duty the Court has is to decide if it was discriminatory in design or outcome giving rise to discrimination on the grounds of national origin”.
6.6 I believe that the supervening event in this case was the management of the gratuities when the parties first engaged on January 29th and January 30th. The respondent clearly over reacted to the question posed by the complainant. In the course of the hearing, the respondent did display an impatience and incredulity with how he observed France ran its businesses. However, the language relied on by the respondent was largely one of dominance and business control rather than attacking the complainants’ race. In Darguzis v Lough Corrib Engineering[3]the Equality Officer found that in order for a complaint of discrimination to succeed in reaching the burden of proof, the complainant must demonstrate a “ difference in treatment” not simply treatment of a manner which is less than ideal.
On that basis, I find that the complainant has not established a sufficient link between his alleged treatment and his race I find that it is highly probable that given the spontaneity of the respondent’s outburst on January 29th that any employee who raised the same concerns regarding the tips would have received the same negative treatment irrespective of their race.
7 Harassment
7.1 The complainant alleges he was harassed on the ground of race and harassment is defined by section 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”.
A defence exists for the respondent in S14(A)2 if they can prove that they took reasonably practicable steps to prevent the harassment.
7.2 In this case, it is of note that it was accepted that most staff had a nick name in the normal course of business at the restaurant. The reference to mademoiselle was not raised by the complainant before the hearing. I must assume that it was accepted by him.
7.3 I am satisfied that the complainants’ sole intention on January 29th was to address the issue of the diverted service charge from the staff. I accept that he believed he was addressed as “a Nigger”, notwithstanding my earlier finding. What happened to the complainant in the context of that meeting served to create an intimidating, hostile, degrading humiliating and offensive working environment up until he left the employment in July 2014. The reference to race was found most pronounced in the encounter of January 30th which was witnessed by another manager. It prompted the second complaint of discrimination.
7.4 This completely disregarded the spirit and intention of the staff handbook circulated in January 2014 on “Personal Harassment” It warrants a complete quote:
“We deplore all forms of personal harassment and bullying and seek to ensure that the working environment is sympathetic to our employees”.
The behavior of the respondent on both January 29th, 30th and subsequently served to fit the outline of behaviour prohibited under both the staff handbook and the Sec 14 (A) of the Acts. The employer did not investigate the complaint, nobody, outside the complainant challenged the respondent. Too much time was wasted in adopting a “hurt” disposition by the respondent and not enough time spent on resolution. There was a clear road map available in the staff handbook. There were no supports available to the complainant, just a slow sliding fall from grace at the restaurant.
7.5 In Sheffield City Council v Narouzi [4] The UK EAT found that an Iranian Social worker was harassed as not enough was done to protect him by his employer in the face of racially motivated behaviour . In my opinion, this case is analogous to the present case. I am satisfied that a climate of fear was generated for the complainant in the January 29th and subsequently. I accept that he prompted the discussion and it may well have been advisable not to have taken on the task of challenging the tips alone and without a visible mandate, no employee anywhere should have to tolerate the tirade of abuse directed at the complainant by the respondent
7.6 S.I 208, 2012, Employment Equality Act, (Harassment Order)[5] states that the intention of the perpetrator of harassment is irrelevant, therefore the fact that the respondent did not intend to harass the complainant is no defence. What matters is the effect of the behaviour on the complainant. On that basis, the complainant gave very credible and cogent evidence that he was afraid of the respondent following submission of his complaints. The respondent denied using the word” nigger” in conversation on January 29th, yet on January 30th he used it liberally in a statement of intent and by way of wielding power over the complainant. The respondent wanted the complainant to realise that while he did not refer to him as a “Nigger”, he intended to retain the discretion to address him as such if he decided to, such was the extent of his perceived power over the complainant. This, in my opinion constituted an abuse of his position of authority as an employer and goes to the root of this case.
7.7 The Harassment Order in S.I.208 provides that a Tribunal may examine the comprehensive nature, accessibility and effectiveness of the employment policies which serve as a back drop to a complaint such as this. This is important to explore whether the defence allowed to the respondent under S. 14(2) A is open to him.
I examined the staff handbook, dated January 2014.At face value, it is a laudable, comprehensive document which any workplace would benefit from. In this case, it is just of “cut and paste “status as it does not in my view serve as a document remotely relied on by the respondent and indeed in some instances by the complainant, (mobile phone) as the intended road map to resolve the conflict of the “frustrating event” of the issue of the management of gratuities. No notes were retained of meetings, no investigation of any of the complaints occurred, the strict liability in relation to interpersonal misdemeanours was disregarded and instead I found an autocratic workplace where the power appeared to rest solely with the MD. The staff handbook or policies therein had no real applicability in this case. Therefore, the respondent may not rely on it as a defence
.In a Worker v an Engineering Co [6] The Equality Officer found that harassment followed a significant series of incidents which served to undermine the complainants nationality. In this case, I find that the complainant was the subject of repeated criticisms for being French and an agitator by the respondent, which created an environment of fear and anxiety for the complainant. In O Brien Persian Properties trading as O’Callaghan Hotels [7]the respondent in this case threatened the livelihood of the complainant. I find that in the instant case, the complainant was threatened regarding his future employment prospects by the respondent
I find that the complainant has satisfied the burden of proof necessary to establish that he was harassed under S14(A) of the Acts and the respondent cannot rebut the claim.
8 Victimisation:
8.1 Section 74 (2) of the Act states victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant, the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.
8.2 As set out by the Labour Court in Dept of Defense v Tom Barratt[8] in 2010 and 2015,[9] the definition of victimisation contained in Section 74 of the Acts contains essentially three ingredients, all of which must be present for a claim under the Acts to succeed. It requires that: -
1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),
2. The Complainant was subjected to adverse treatment by the Respondent, and,
3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.
8.3 In this case, the complainant initially made a complaint on the unilateral change in the distribution of tips at the restaurant. An altercation followed of seismic proportions, the taping of which caused the complainant to return the next day to lodge a complaint with the respondent that he had been discriminated against. This was denied by the respondent. However, the respondent freely admitted that relations between him and the complainant dissolved post the encounters of January 29th, 30th and April 3rd. No attempt was made to investigate the complaint of discrimination by the respondent. The complaint lay unaddressed until the hearing. Instead, the respondent sought to rely on his interpretation that being accused of stealing by an employee was a much worse deed than an allegation of discrimination. He believed this justified his omission to act. The staff hand book precluded this level of omission.
I am mindful of the corroborated evidence of the complainant that his privilege card was reduced after the January 30th discussion where he put the employer on notice of his allegation of discrimination, and that his was the sole card affected. This was the protected Act. The complainants’ hours were reduced during this period. It was uncontested that his status at the restaurant lessened after January 30th and April 3rd 2014.
However, it is the evidence submitted by John Nyhan which leads me to conclude that the complainant did in fact suffer adverse treatment following his complaint of discrimination . Mr Nyhan pointed to certain consequences which were to be expected following a complaint to the respondent. While the complainant did in fact make two complaints, one on gratuities and the second on discrimination in January 2014, He was not heard on either. There was sufficient capacity in the staff hand book for the respondent to address these matters.
I found the respondent unacceptably vague and evasive when questioned on whether the complainant was threatened to withdraw his complaint from the Tribunal. Therefore, on the facts, I find that the complainant has satisfied the test set down by the Labour Court in Barratt. I find that he experienced adverse treatment directly as a consequence of raising a complaint of discrimination and has succeeded in establishing a prime facie case of victimisation which the respondent cannot rebut.
9 DECISION
9.1 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 s.79(6) of the Employment Equality Acts 1998 to 2008. I find that the complainant:
1. Was not discriminated against by the respondent in relation to his conditions of employment on grounds of race, in terms of s.6(2) the Acts and contrary to s.8 of the Acts.
2. Was harassed at his place of work by the respondent, within the meaning of s.14A (1) of the Acts; and
3. Was victimised by the respondent (within the meaning of s.74(2) of the Acts) by receiving adverse treatment from them as a reaction to complaints of discrimination made by the complainant to the respondent.
9.2 In deciding appropriate redress, I am mindful of the Labour Courts finding in Natoko v Citibank[10] where the Court found :
“Persons who discriminate unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the claimant’s power of procurement, normal rules of evidence must be adapted in such cases to avoid protection of anti-Discrimination laws being rendered nugatory by obliging claimants to prove something which is beyond their reach and which may only be in the respondent’s capacity of proof”
10 REDRESS
10.1 In accordance with S.82 of the Acts, I order the respondent to pay the complainant
(a) €17,290 (the approximate equivalent to seven months’ salary) in compensation for the harassment endured and the respondent’s failure to reverse the effects.
(b) €7,410 (the approximate equivalent of three months’ salary) for the victimisation of the complainant.
These awards represent compensation for infringement of the complainants’ rights under employment equality legislation in relation to discrimination and does not include any element relating to remuneration and is therefore not taxable.
(c) I further order that the respondent amend its employment policies and procedures to make them actually operational and relevant . Notes should be kept from all meetings with staff to inspire confidence and trust between Management and their staff in the interests of good business practice .
(d) A clause should be inserted in the staff handbook to provide for a clearly identifiable course of action to address the situation where the subject of a potential grievance is the most senior manager ie external mediation/conciliation.
__________________________
Patsy Doyle
Adjudication Officer/Equality Officer
Date: 6th January 2016
[1] Valpeters V Melbury Developments Ltd ,EDA 0917 , 2010
[2] EDA 1428 Labour Court , July 2014, Ryanair ltd v Agnieszka Spyra
[3] DEC –E2009-038
[4] Sheffield City Council v Narouzi [2011]UKEAT/0497/10 and IRLR 897
[5] S.I 208,2012
[6] DEC –E2008 038
[7] 2012.23(4)ELR 211
[8] Labour Court Recommendation ,2010, EDA, 1017
[9] EDA 1516
[10] Natoko v Citibank [2004]ELR 116