EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-076
PARTIES
Ala Berghie
(Represented by Richard Grogan & Associated)
-v-
Johnstown Garden Centre
File reference: et-157629-ee-15
Date of issue: June 2016
HEADNOTES: Employment Equality Acts –Gender- Race-Age-Conditions of Employment
1. DISPUTE
1.1. This dispute concerns a claim by Ala Berghie that she was discriminated against by Johnstown Garden Centre on the grounds of her gender, race and age contrary to section 6 of the Employment Equality Acts in relation to conditions of employment in terms of section 8 of those Acts.
1.2. The complainant referred a claim to the Director of the Equality Tribunal on July 10th 2015 under the Employment Equality Acts. On March 15th, 2016 in accordance with his powersunder section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission referred the case to me, Pat Brady an Adjudication Officer/Equality Officer for investigation, hearing and decision and for the exercise of other relevant functions of the Director (General) 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 Employment Equality Acts and as part of my investigation I proceeded to a hearing on March 29th 2016.
1.3. 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.
2. Complainant’s Case
2.1. The complainant was employed by the respondent as a chef. She responded to what she considered offensive racist comment by a co-worker and in the course of the exchange compared it to the attitude of the Nazis.
2.2. Subsequent to this she was subjected to taunts such as to suggest that her co-workers were Nazis and that they would ‘f**k’ her up because they were “a Nazi family’ delivered in the style of the children’s rhyme “I love you, you love me, we are (normally) a happy family.
2.3. Other comments were made to suggest that they would wear her down; ‘she won’t last much longer, we are winning’, which she saw as a concerted effort by the Irish workers to force her out of the workplace. More directly offensive comments included ‘foreigners are lazy’ and that they should go back to ‘their own country’.
2.4. She brought these matters to the attention of her employer on June 15th 2015 referring to incidents on May 29th and June 1st 2015 and she was asked to put the complaint in writing.
2.5. The complainant went on sick leave on July 3rd 2015 and on July 8th she referred her complaint to the Equality Tribunal which included her constructive dismissal. She submits that the reason justifying the termination of her employment and giving rise to a claim of constructive dismissal was the failure of the respondent to undertake the investigation.
2.6. The complainant says that section 15(3) of the Employment Equality Act applies. That section renders an employer liable for the actions of any person in proceedings brought under the Act.
2.7. The complaint on the age ground was withdrawn at the hearing. The complaint on the race ground was identified as being the reference to Nazis. The complainant is a Moldovan citizen where memories of Nazi oppression remain vivid.
3. Respondent’s Case
3.1. The respondent outlined a background of issues involving the complainant which had been dealt with promptly by her employer.
3.2. It provided notes of the meeting of June 15th 2016 which, in addition to the race related complaints included some other complaints about conditions in the kitchen where she worked. The notes of the meeting indicate that, in response to a comment by the employer that there were many issues she said that there was ‘one issue’. On hearing this the respondent invited her to put it in writing and told her that it would be dealt with and fully investigated. The notes indicate that she said she would put it in writing.
3.3. Later that day the respondent decided to meet the complainant again to check when she would have the written complaint. Again, according to the note of the meeting she said she would do so the following day.
3.4. On June 17th the respondent approached the complainant again regarding the written complaint not having received it and she told him that she ‘needed a personal life as well as a work life’ and that she would not have the letter until June 26th, following two days off.
3.5. On June 26th the respondent again approached the complainant in person seeking the written complaint to be told that she found the situation very stressful and that her solicitor had told her it was not necessary to put the complaint in writing. The respondent suggested that her solicitor might draft the complaint. The respondent note of the meeting records the complainant as accepting that she had agreed on June 15th to put the complaint in writing.
3.6. The respondent wrote again to the complainant on June 27th summarising the position and emphasising that on account of the number of possible respondents (up to ten) and their seriousness a written complaint was needed. It continued;
‘The company takes all staff complaints seriously and will deal with complaints expediently through the proper procedures. To conduct any investigation it is important that the complaint is expressed as clearly as possible. It would therefore be helpful if you would document your complaint as agreed, in order that we can decide under which procedure these complaints fall, and move to investigation as soon as possible.’
3.7. A copy of the company handbook was included with the letter. The respondent asked that the complainant let him know by July 3rd 2015 if she was prepared to put her complaint in writing. On that day she submitted a medical certificate indicating that she was suffering from stress and would be on sick leave for one month. The employer responded that he would put the matters raised on June 15th on hold until her return to work. He also wished her a speedy recovery and provided his mobile telephone number with an invitation to ‘feel free’ to talk to him.
3.8. Shortly afterwards (on July 8th) the matter was referred to the Equality Tribunal, including a claim that the complainant had bee dismissed. On receiving notification of the complaint the respondent wrote on July 31st telling her that she had not been dismissed and invited her to return to work.
3.9. The respondent says it did not discriminate against the complainant on any of the grounds claimed and that she quit her employment of her own accord despite an expressed willingness to address her complaints.
3.10.The respondent also drew attention to inconsistencies in the dates in the complainant’s submission.
3.11. Finally, the company says it employs a range of nationalities and has in the past taken action up to the point of a dismissal to address unacceptable behaviour of this sort. It says that it was not given the opportunity to do so in this case. It says that to have acted in the absence of the written detailed complaint would have created greater difficulties.
4. Conclusions and findings.
4.1. I address first the complainant’s submission made under section 15(c) of the Employment Equality Act to the effect that;
‘Anything done by a person in the course of his or her employment shall, in any proceedings under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.
4.2. The sequence of events is set out above. This is also relevant to the complainant’s case on the alleged constructive dismissal.
o The employer was first appraised of the problem on June 15th 2015. The complainant gave certain undertakings that she would make a written complaint.
o The respondent confirmed these with her the same day,
o He did so again on June 17th and again on June 26th and on June 27th.
4.3. On June 17th the complainant’s response seemed to indicate something less than a sense of urgency about the matter. In any event she failed to provide the written complaint by the time she went on sick leave on July 3rd which was only one week after the June 27th request.
4.4. Two related questions arise here concerning the employer’s actions and a third concerning those of the complainant. The first is whether the respondent acted reasonably and with due dispatch in processing the matter. I find that he did. There is no hint in the evidence that he acted otherwise than with a sense of the seriousness of what was alleged, and the need to act on it without delay.
4.5. And this gives rise to the second issue arising for the employer. Can the provisions of section 15(c) be triggered by a mere allegation? The complainant alleges she was harassed, 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”.
4.6. The complainant referred to comments and treatment by colleagues which she contended were discriminatory. The employer’s actions in response are outlined above as is also the failure of the employee to provide a written statement of the complaint, identifying the alleged perpetrators, and such other details of incidents as may have been necessary to process the complaint. She was provided with a copy of the company Handbook (on June 27th).
4.7. Section 14A(2) of the Employment Equality acts gives an employer a defence against harassment if it can prove that it took such reasonable steps as are practicable to prevent the harassment or where the harassment took place to reverse its effects.
4.8. From the direct evidence given at the hearing I am satisfied that the complainant was aware of the respondent’s procedures but did not use them. Based on this, and the peremptory termination of her employment by the complainant I therefore conclude that the respondent can rely on the defence in section 14A (2) of the Acts and find that the complainant was not harassed by the respondent in accordance with the Employment Equality Acts.
4.9. Further the employer must surely have an initial opportunity to establish that something was, as a matter of fact ‘done’ as required by the Act. Only where he has delayed unreasonably might this be overturned. The facts outlined above indicate that he acted diligently in seeking to establish the facts of the matter which moves matters to the employee’s behaviour. In addition I take into account the respondent’s earlier dismissal of an employee previously found to have engaged in activity which was a breach of the Act.
4.10. It is hard to see what justification can be offered for the complainant’s unwillingness or refusal to put the complaint in writing. It was stated in evidence that she first consulted a solicitor on June 23rd 2015. By that stage she had been asked on three occasions to put the complaint in writing (twice on June 15th and on June 17th). She was asked again on June 26th and on the 27th in writing and to reply by July 3rd.
4.11. If indeed she was advised not to put the complaint in writing this was not communicated to the employer; she simply failed to do so. Whatever her reason for ultimately not doing so she had both been asked and had agreed to but had not done so.
4.12. Her employer had made it clear to her, and quite reasonably, that he needed the complaint in writing and this was not disputed by her initially anyway. She ought to have been aware, especially having taken legal advice, that the conduct of an investigation required specific complaints against the respondents in that complaint to be in writing as a matter of fairness and respect for their rights.
4.13. The precise date of her claimed termination is not clear but her complaint was received by the Equality Tribunal on July 10th, dated two days earlier, and including the claim that she had been ‘dismissed for discriminatory reasons’. July 8th was a matter of two or three working days after she went sick. The respondent stated in evidence that he wrote to the complainant on July 6th on learning of her illness saying he would suspend the investigation of the complaint, wishing her well and giving her his mobile telephone number with an invitation ‘to feel free to phone me’. It appears that notwithstanding this invitation she decided to resign her position a day, or no more than two days later.
4.14. It is also worth noting that she raised an issue with the respondent on June 22nd regarding an aspect of her working conditions which was resolved promptly and to her satisfaction.
4.15.To deal more specifically with the complaint that the respondent was the victim of a constructive dismissal, a constructive dismissal takes place when an employer’s behaviour is so unreasonable that the employee is justified in unilaterally breaking the contract. The burden of proof is set high in such cases for the same reason that it is in unfair dismissals cases of the normal type. A breach of the employment contract sufficient to fall under the Unfair Dismissal Act must be very serious and well justified.
4.16.While the behaviour of the employer is critical, the employee’s behaviour must also be considered. Generally this is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment (by the employer).
4.17.The sequence of events outlined above and the employer’s handling of the matter falls considerably short of the circumstances which will justify any constructive dismissal let alone one based on a discriminatory act.
4.18.The Supreme Court has said that
‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’ Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61
4.19The complainant failed to take even elementary steps to let her employer know that matters had progressed to the level where she was contemplating resignation. On the contrary, on June 17th she appeared disinterested in progressing the matter.
4.20Her actions appear precipitate and ill-considered in that she resigned her employment, it would appear, on the day following, or very soon after receiving the employer’s letter of July 8th 2015. Rather than being an act of repudiation on the part of the respondent, it was amicable and sympathetic and the complainant’s reaction to it is quite without justification.
4.21Judged by the Berber test, and the general principles applicable to a constructive dismissal her case falls very far short of what is required both in respect of any failings in her employer’s actions and her own behaviour. A total of just over three weeks passed between the first report of the incident and the complainant’s decision to terminate her employment, to say nothing of the brief period which elapsed between receipt of the employer’s letter of July 6th and her referral to the Equality Tribunal on July 8th.
4.22Further I find that the employer acted diligently and reasonably in seeking to establish the facts of the matter and the complainant’s inaction and non-cooperation was the primary obstacle to progress to the investigation stage.
4.23The complainant has failed to establish liability on the part of the respondent for the alleged discriminatory actions on the grounds of race and gender.
4.24Her representative identified use of the phrase used by her co-workers that they would ‘f**k her up’ as evidence of discrimination on the gender ground. This was the only argument advanced on this matter. However, the respondent cannot on the facts above be held liable for these allegations which remain only that, in particular as the only evidence adduced at the hearing on the allegations was that of the complainant.
4.25The claim on nationality/race was even more tenuous; that the complainant’s nationality and the suffering of her country of origin at the hands of the Nazis during World War II elevated those comments to an act of discrimination. This was identified on the complaint form as the action which ‘forced me form the workplace’. The narrative above does not support such a claim.
4.26While the alleged comments, had they been proved, are unacceptable (and were accepted as being so by the respondent) they should have been processed under the respondent Dignity at Work and Harassment provisions. But as the narrative above confirms the complainant failed to process any aspect of her complaint at the level of the workplace.
5 DECISION
I have investigated the above complaints and make the following decision in accordance with section 79 of the Employment Equality Acts and section 41 (5) (a) (iii) of the Workplace Relations Act 2015 that:
· There has been no constructive dismissal and I dismiss that claim.
· I also dismiss the complaints of discrimination and harassment on the race and gender grounds.
· The claim on the age grounds was withdrawn.
____________________
Pat Brady
Adjudication Officer/Equality Officer
June 2016