ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002040

Complaint for Resolution:

Date of Adjudication Hearing: 07/07/2016

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Preliminary issue

The respondent raised a preliminary issue in relation to time limits. It was submitted that as the complainant cited the latest date of the alleged discrimination was 20^th June 2015 and that the complaint had been received by the Workplace Relations Commission on 22^nd February 2016, it is outside the six month time limit and should be ruled out of time. It is further submitted that the complainant had the benefit of legal advice from 25^th September 2015 at the earliest and therefore there is no justification for a delay in her claim. It should also be noted that the complainant did not submit any formal complaint or provide written details until 29^th January 2016, despite at least two meetings being convened by the external investigator appointed to examine her complaints.

The complainant’s solicitor argued that reasonable cause existed to extend the time period due to the following reasons: The complainant has a poor command of English. She was out sick from shortly after she had a meeting with the respondent and was not in a position to pursue her issues. She did indicate that she wished to co-operate with the respondent and specifically the investigation being conducted by the external investigator. This she indicated in September 2015. However, when the investigator advised her that she would not be interviewing witnesses who the complainant believed were important to substantiate her claims, she was alarmed and at that point (February 2016) lodged her current complaint.  

Complainant’s Submission and Presentation:

Following this meeting, the complainant went on sick leave and has been out of work since. She attended the company doctor on 31^st August 2015 who summarised that the complainant was out of work as a result of a work related stress anxiety neurosis, and that she exhibited the symptoms in keeping with post traumatic stress disorder syndrome. She was certified as unfit for work and requiring intensive treatment with psychotherapy. The doctor summarised the complainant’s allegations which became the subject of the external investigation as follows: she did not feel safe at work, she was not respected and treated as other workers, racist comments were directed at her by the proprietor’s sister BG, and that she had been told repeatedly to leave and return to her own country. There were other issues outlined such as being pushed by BG, to the extent that on one occasion she fell to the ground, that she was told to hurry up, that she was too slow, and derisory comments made to her left her feeling anxious and stressed. .

It is submitted that the complainant was treated unfairly, was harassed and discriminated against on the grounds of her race and nationality and that the constant verbal and physical harassment she was subjected to was not meted out to other (Irish) workers. Specifically, the alleged perpetrator of the harassment referred to the complainant and her fellow nationals as “f…ing Polish” on numerous occasions.

Respondent’s Submission and Presentation:

The respondent made extensive written and oral submissions summarised as follows:

The Time Limit (Already referred to above in preliminary argument)

Appeal of Internal Investigation – It is submitted that the appeal process is still not exhausted.

The respondent contends that it has a number of relevant and appropriate policies in place which the complainant was aware of and that an extremely thorough and fair process has been pursued and no evidence of any such behaviour as the complainant has alleged has been found. The complainant has been furnished with all policies and procedures in relation to her employment, including Grievance Procedure, Equal Opportunities and Personal Harassment Policy & Procedure.   The complainant worked in the kitchen area, a small area measuring 13.6 ft by 27 ft. Her role was carrying out various general catering duties. Her day was generally from 8.am to 3pm. The respondent spent from 8am to 12.15pm approximately in the kitchen on the days that the complainant also worked in the kitchen.   The complainant never raised any issue with the respondent (IT) until she approached her (along with her daughter who was at that time an employee) on Saturday 20^th June 2015.   On this date, the complainant raised concerns informally, relating to allegations in relation to a colleague BG (who is a sister of IT)..   Up to 20^th June 2015, not only had the complainant never raised any issue with the respondent but the complainant, the respondent and the person against whom the allegations had been made had quite a good personal relationship, as well as a very good working relationship. The respondent undertook to contact and meet with the complainant again, which she did on 22^nd June 2015 to further discuss and explore her allegations / grievance on an informal level. After genuine attempts by the respondent to engage with the complainant, which included a request that the complainant meet with the person against whom her allegations were made, the respondent did two key things:

1. She advised the complainant that she would require her allegations/grievance in writing.

2. She engaged a HR professional to manage the matter going forward.

It is submitted that these actions clearly demonstrate the intention of the respondent to act as a fair, reasonable, responsible and compliant employer. The HR professional (SG) engaged commenced her work on 1^st July 2015. It is submitted that although numerous meetings were held with the assistance of Polish translators, the complainant never put her allegations in writing until January 2016. The complainant was out sick from the time she made her allegations to the respondent. Due to her ongoing sick leave, the respondent requested the complainant to attend for a medical review with a company appointed doctor. The respondent was shocked and disappointed upon receipt of the doctor’s report notably due to the fact that it contained numerous allegations in relation to the complainant’s grievance, the majority of which had neither been disclosed or raised by the complainant to the respondent directly either on 20^th or 22^nd June 2015 or to SG on 1^st July 2015.   The respondent extracted the numerous claims from the report and instigated the formal grievance procedure under the HR professional SG. A meeting took place on 1^st December 2015 but was abandoned after a short time when the complainant refused to engage or give details/dates/witnesses to her complaints. Correspondence following the meeting culminated in the complainant issuing a written account of dates, times and witnesses in support of her allegations and was received on 29^th January 2016. It should be noted that this was the first formal written account ever provided by the complainant since raising the matter with the respondent on 20^th June 2015. It should also be noted that whilst this written statement responded to a number of questions, for the large part no dates/times were confirmed but rather generic comments alleging that the behaviour had occurred on a “daily basis”.   In relation to witnesses, the same generic approach was given, such as “every staff knows without exception”. In February the complainant’s solicitors advised the respondent that the matter was being referred to the WRC because of possible delays in the process. The respondent refutes the assertion that the process was delayed.   The HR professional pursued the matter very thoroughly and a full account of all meetings, investigations and witness statements gathered was outlined. In the course of the investigation, it was established that no staff member witnessed any harassment of the complainant. In summary, the investigation report found no objective proof, data or evidence to substantiate or corroborate any of the complainant’s grievances/allegations.

It is argued that the respondent has policies and procedures which commits it to address any issues of grievance and/or alleged discrimination. It is argued that the allegations made by the complainant have been the subject of an extremely comprehensive investigation and 176 page report, all of which was conducted with fair procedures. In light of all the detailed, thorough, fair and impartial investigation carried out, the respondent submits that the complainant does not have any grounds for verbal bullying, physical bullying or harassment based on race/nationality or unfair treatment. The case law relied upon is Teresa Bilas v Campbell Catering t/a Aramark Ireland (EE/2012/491 & 492). In the findings and conclusion of this case, the Equality Officer quoted the Labour Court in Arturs Valpeters v Melbury Developments td Determination No. EDA0917 [2010] 21 E.L.R. that there has to be “evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence”.

The respondent argues that the respondent has not been in breach of the Employment Equality Act, that the complainant has failed to establish a prima facie case of harassment and that the complainant’s claim for verbal bullying, physical bullying, harassment and unfair treatment should be dismissed.

Findings

Preliminary Issue – Time limits

Section 41 (6) of the Workplace Relations Act 2016 provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Section 41 (8) provides:

“an adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”.

I have considered the arguments in relation to the time limits. I note the complainant had the benefit of professional / legal advice from September 2015, and that advice had been to partake in the company investigation into her complaints. I do not accept that her poor command of English contributed to the delay, in that she had the assistance of her professional and family advisors. However, I do note that the complainant was co-operating with the investigation into her complaints up to February 2016, when she was advised that some witnesses would not be interviewed. Whether these witnesses would have corroborated her position or not, the fact that the investigation chose to omit them (at a later stage some were included), led to the complainant’s belief (whether reasonable or not) that the investigation would be flawed. She then submitted her complaint to the Workplace Relations Commission.   I find that the complainant acted reasonably in relation to the investigation and that therefore failure to present the complaint within the time limit in section 41(6) was due to reasonable cause. I deem the complaint to be in time as outlined in section 41(8).

Substantive complaint

This dispute concerns a claim by the complainant that she was discriminated against by the respondent on the grounds of race, contrary to Section 6 (2) of the Employment Equality Acts. She contends that she was discriminated against in relation to conditions of employment as outlined in Section 8 (1) (b), that she was victimised as in Section 74 (2), and that she was harassed as prohibited by Section 14 (A).

The complainant, a Polish national, worked in a small restaurant which at the time of her complaint had in or around 15 staff – 10/12 Irish, 3 Polish and 1 Lithuanian. It is her contention that she was subjected to constant harassment by one of the Irish staff (a sister of the restaurant proprietor). She contends that the alleged perpetrator subjected her to physical and verbal harassment and specifically referred to her as “f…ing Polish”, and told her to go back to her own country.

No evidence or submission was made by the complainant to make out a prima facie case for discrimination in relation to specific conditions of employment save that of discrimination in the form of harassment.  I do not uphold her complaint under Section 8 (1) (b).

The complainant did not make a submission in relation to victimisation. In Department of Defence v Barrett, EDA 1017, the Labour Court found that in order to succeed in a claim of victimisation under Section 74 (2) of the Act, a complainant must have

1. Taken an action referred to in S.74 (2) (the protected act)

2. Been subject to adverse treatment and

3. The adverse treatment was in reaction to the protected action having been taken.

   I find that in this case, the complainant uses the term victimisation in the colloquial sense rather than within the meaning of the Acts. I do not uphold her complaint under Section 74 (2).

Harassment

The complainant gave clear and cogent evidence in relation to the treatment she received during the course of her work day by the alleged perpetrator of the harassment. She outlined the initial response she received from the respondent when she first raised her complaint. I find her evidence credible that initially the respondent gave her a sympathetic hearing but changed her approach when next they met.   I note the swift response by the respondent to engage a HR professional to investigate matters. I also note the hostile and unproductive nature of the first meeting(s) between the investigator and the complainant.  

Section 85A provides :

“85A. – (1) 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”.

The facts are in dispute here. The complainant’s evidence is that she was harassed daily by the respondent’s employee. The respondent’s evidence is that having investigated the allegations, the complainant’s allegations were unfounded.   I conclude that the complainant has established the fact that she was harassed. I base my conclusion on the clear and credible evidence given by the complainant.  

Having concluded that the complainant has established a prima facie case, I now turn to whether the respondent has discharged the burden of proof that there was no discrimination.

The respondent submitted that as a responsible employer, it engaged the services of a HR professional to investigate the complainant’s allegations. Further it pointed to the existence of company policies on dignity at work.   Section 14 (2) provides a defence for an employer where it can be proven that that it “took such steps as are reasonably practicable” to prevent the harassment.

In this case, I am mindful of the evidence of the complainant that the respondent initially appeared to believe the complainant and would put a stop to the behaviour of the employee who was harassing the complainant. While the respondent can rely on a partial defence in having the appropriate policies and in conducting the investigation, I find that the full defence cannot be relied upon.

Definition

Section 14A (7) provides :

“(7) (a) In this section –

1. References to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

2. References to “sexual harassment” are to any form of unwanted verbal, non verbal or physical conduct of a sexual nature,

    

   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.

(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.”

In Nailzone Ltd and A Worker, EDA 1023, the Labour Court has pointed out that the essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. This suggests a subjective test and if the impugned conduct had the effect, “whether or not the conduct would have produced the same result in a person of greater fortitude than the complainant, it constitutes harassment for the purpose of the Acts”.

Section 14A provides:

“14A. – (1) For the purposes of this Act, where –

1. An employee (in this section referred to as “the victim”) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as “the workplace” or otherwise in the course of his or her employment by a person who is-

1. Employed at that place or by the same employer,

2. The victim’s employer, or

3. A client, customer, or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,

Or

1. Without prejudice to the generality of paragraph (a) –

1. Such harassment has occurred, and

2. Either –

1. The victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

2. It could reasonably be anticipated that he or she would be so treated,

   The harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment”

   I conclude that the harassment endured by the complainant on the ground of race, being a Polish national constituted discrimination by her employer and I uphold her complaint.

Decision:

Having investigated the above complaint, I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts, 1998-2008:

I find that the complainant

1. Was not discriminated against by the respondent in relation to he conditions of employment on grounds of race, contrary to section 8 of the Acts.

2. Was not victimised by the respondent within the meaning of section 74 (2) of the Acts.

3. Was harassed at her place of work within the meaning of section 14A of the Acts.

Redress:

In accordance with the relevant redress provisions under section 82 of the Act, I order the respondent to pay to the complainant €8,528 (the equivalent of 52 weeks pay) in compensation for the harassment endured.

The total award is redress of the complainant’s statutory rights and therefore not subject to income tax as per S.7 of the Finance Act 2004.

Dated:   27^th September 2016