DEC-E2016-125

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-125

PARTIES

Grzegorz Chwala

(Represented by MANDATE)

v

TESCO

(Represented by IBEC)

File reference: et-150203-ee-14

Date of issue: 12 September 2016

1. CLAIM

This dispute involves a claim by the complainant that he was (i) discriminated against by the respondent in respect of his race in relation to his working conditions, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2015 and contrary to section 8 of those Acts. The complainant alleges that he was subjected to harassment by a co-worker on grounds of his race.

2. BACKGROUND

2.1 The complainant referred a complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 30 October 2014. In accordance with his powers under the Acts the Director General of the Workplace Relations Commission delegated the complaint to me - Valerie Murtagh, an Adjudication Officer/Equality Officer on 2 December 2015, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Employment Equality Acts. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 23 February, 2016. 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.

3. SUMMARY OF COMPLAINANT’S CASE

3.1 The complainant, who is a Polish national, commenced employment with the respondent as a general operative in November 2007. He worked as a customer assistant on nights. He alleges that he was discriminated against on grounds of his race by a co-worker. In this regard, he submits that he was subjected to derogatory comments by a co-worker Mr. K and that although he reported various incidents to management no investigation was carried out and no remedial action was taken to resolve the matter. He also states that he was wrongly accused of harassing Mr. K and given a written warning for same. He alleges that on 6 November 2013 when he was passing by Mr. K, he heard Mr. K say ‘f****** Polish bastard’ to him. He states that he reported the incident to management but nothing was done about it. The complainant states that on 15 July 2014, Mr. K hit him by pushing a trolley against him purposely. With regard to this incident, the complainant states that Mr. K’s girlfriend Ms. F gave a false statement to management stating that the complainant said the words ‘f****** crazy Irish b*****d’ to Mr. K and that the complainant was extremely rude to her also. The complainant submits that as a result of this false statement he received an official warning regarding this incident. The complainant states that while he appealed this warning, the outcome was the same and the official warning letter remained on file. The complainant alleges that he was discriminated against on grounds of his race by the respondent company in relation to his conditions of employment.

4. SUMMARY OF RESPONDENT’S CASE

4.1 As a preliminary point, the respondent argues that the Tribunal has no jurisdiction to hear this complaint given the complainant’s acceptance of a “full and final settlement” with a substantial ex-gratia payment on his voluntary leaving the respondent company in circumstances where he had the option to remain in employment. The respondent contends that as part of the documentation, the complainant signed a disclaimer that the settlement was in full and final settlement of all matters outstanding and listed on the document was various pieces of legislation including the Employment Equality Acts. In relation to the substantive nature of the complaint regarding alleged discrimination on the race ground, the respondent submits that the complainant has not established a prima facie case of discrimination as required by the Employments Equality Acts. The respondent states that the complainant commenced employment in November 2007. It states that as part of a National Night Work restructuring programme in late 2014, the complainant requested the enhanced redundancy package on offer and left the company on 10 January 2015.

4.2 The respondent submits that the complainant has alleged that management failed to act on the complaints of 7 June 2013 and 6 November 2013. The respondent refutes this assertion and states that the store manager Mr. M commenced an investigation on 5 December 2013. Mr. M interviewed the relevant parties including any witnesses present at the time the incidents took place. The respondent submits that due to the fact that there was a huge divergence between both parties’ version of events and the fact there was no independent witness to substantiate either party, it was agreed with Mandate trade union that a meeting be arranged with both parties to sit down and try to resolve the issues. Neither party agreed to this and Mandate accepted that there was little else Mr. M could do apart from re-issue the Dignity at Work policy to all staff in the store. This was done via the Line Supervisors. The respondent states that Mr. M also tried to adjust the complainant and Mr. K’s working hours and assign them to different section areas of work in the store to minimise contact when working at the same time. The respondent submits that every effort was made to address the complainant’s issues.

4.3 The respondent submits that on 26 September 2014, the complainant was issued with a First Written Warning relating to an incident which occurred on 15 July 2014. The incident in question was between the complainant and Ms. F who witnessed the complainant call another colleague Mr. K a “f****** crazy Irish b*****d”. The respondent claims that Ms. F stated that the complainant was very aggressive and was also shouting at her during the incident. Arising from this incident, Ms. F made a formal complaint about the complainant to her Line Manager, Mr. M on 15 July 2014. Mr. M commenced an investigation and met Mr. K on 15 July and took a statement from him in which Mr. K also complained about his treatment and name calling by the complainant and lodged a formal complaint regarding the incident. Mr. K also made reference to the Night Manager, Mr. B and his involvement. As part of the investigation, Mr. M met with Mr. B on 19 July 2014. On 27 July 2014, the complainant raised a grievance against Mr. K regarding the alleged altercation on 15 July with Mr. K. Mr. M investigated this complaint by viewing cctv footage and reported back to the complainant that as there was no cctv evidence or indeed any witnesses to his complaint, it was a case of the complainant’s word against Mr. K’s that an incident took place. On 26 September 2014, the complainant was issued with a First Written Warning under the company’s misconduct policy for “abusive, threatening or in-subordinate behaviour towards management or other staff” and breach of the Dignity at Work policy. On 8 October 2014, the complainant appealed his first written warning stating he never used the words “f****** Irish b*****d” and that he was provoked on the day in question by Mr. K pushing a trolley into him. The complainant also made the point that Ms. F who witnessed the incident was biased as she was Mr. K’s girlfriend.

4.4 On 26 November 2014, the complainant’s appeal was heard by the Managing Director of the Store, Mr. MM. He considered the appeal and various minutes of meetings held during the investigation. Mr. MM wrote to the complainant setting out each ground of his four grounds of appeal and his findings regarding same. In his conclusions, Mr. MM states“I can confirm that you acted in an aggressive manner without any evidence to support your claim as to what provoked you. It is my decision in this case to uphold the sanction of first written warning”. The respondent rejects the claim and submits that the complainant has adduced no evidence to establish a prima facie case of discrimination on grounds of race.

5. CONCLUSIONS OF EQUALITY OFFICER

Preliminary Issue - Jurisdiction

5.1 The first issue I must issue consider is the preliminary point made by the respondent that given the complainant accepted a full and final settlement with a substantial ex-gratia payment on his voluntary leaving the company that the Tribunal has no jurisdiction to hear the substantive complaint relating to alleged discrimination on the race ground. The respondent made the point that the complainant signed a disclaimer on his voluntary leaving of the company stating that the agreement was in full and final settlement of all matters outstanding and listed on the document were various pieces of legislation including the Employment Equality Acts. Before I can consider the substantive issue, I must consider whether this disclaimer amounts to a settlement agreement and whether I have jurisdiction to investigate this claim.

5.2 The Labour Court set out an approach to settlements in Sunday World Newspapers Ltd. and Stephen Kinsella & Luke Bradley, Determination No. FTD066 “It is clear from the authorities that a provision in a statute prohibiting contracting out does not prevent parties from lawfully agreeing to settle or compromise claims based on the statute. There is however often a subtle but substantial difference between a genuine bargain to settle or dispose of a claim, which is lawful and enforceable, and an attempt to exclude or limit the Act, which is void and of no effect. The case law indicates that the following considerations are relevant in distinguishing the former from the latter;

1. The terms of any waiver must be construed strictly against the party from whom it emanated. Where there is doubt the course of negotiations between the parties should be examined so as to ascertain what was intended.

2. An agreement to wave statutory rights must be supported by adequate consideration.

3. The waiver should normally arise from an agreement reached as a result of meaningful negotiations and professional advice having being sought and given.

4. The waiver should list the various Acts being taken into account.

5. The waiver is only valid if it is based on a free and informed consent given by a person with full knowledge of their legal rights.

6. It is for the employer to ensure that the worker is capable of giving an informed consent and the employer should normally advise the worker in writing to obtain professional advice before inviting him or her to sign a waiver.”

5.3 Firstly, I shall look at the issue of ‘adequate consideration’. I note that the complainant received a redundancy payment that was negotiated with management for Night Workers within the respondent company. The Agreement resulted in an enhanced redundancy package that incorporated statutory redundancy and an ex-gratia payment. The package was identical for all staff and the ex-gratia payment was not unique to the complainant. The respondent has claimed that the complainant had the opportunity of taking the Settlement Agreement away and taking independent advice on it. However, the complainant vigorously disputes this and states that on the day in question management handed him the Agreement and requested him to sign it without delay. The complainant claims that he was not advised that he could take the document away and get independent advice on it. The complainant at the time in question was not represented by a trade union and was not aware of the implications of signing such a document or that signing the waiver could have the effect of putting an end to his outstanding equality complaint.

5.4 I consider that the ex-gratia payment was not unique to the complainant and could not be construed to be a payment which would form the basis of a settlement of his outstanding equality claim. Accordingly, I do not find that there was any element of this agreement which would constitute “adequate consideration” for the purposes of the settlement agreement. Having considered the evidence taken at the hearing, I am satisfied that the complainant was not given time to take the agreement away and get independent advice on it and was under the impression that a failure to sign the disclaimer would result in a loss of the redundancy package. I find that the complainant’s signing of the disclaimer was not based on free and informed consent with the full knowledge of his legal rights and thus falls short of what is required at 5.2 above. In addition, I am satisfied that the complainant did not receive “adequate consideration” which could be construed as a settlement of his outstanding claim. Accordingly based on the totality of the evidence adduced on this matter, I find that the disclaimer signed by the complainant does not amount to “a genuine bargain to settle or dispose of a claim, which is lawful and enforceable” and thus the complainant is not prevented from pursuing his outstanding complaint to this Tribunal. I am thus satisfied that I have jurisdiction to investigate the complaint before me.

Conditions of Employment - Harassment

5.5 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts and contrary to section 8 of those Acts, in relation to his conditions of employment. 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. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule".

5.6 Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..”. ". Section 6(2)(h) of the Acts defines the discriminatory ground of race “as between any 2 persons…that they are of different race, colour, nationality or ethnic or national origins”. The complainant has made an allegation that he was subjected to harassment by a work colleague in the course of his employment on grounds of race. For a complaint of discrimination under the Employment Equality Acts to be made out, the complainant must demonstrate a nexus between the alleged discriminatory treatment and his race. Harassment is defined bysection 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”.

5.7 The complainant has stated that he was verbally abused by a co-worker Mr. K. He raised complaints to management regarding incidents that took place on 7 June 2013 and 6 November 2013. He submits that although he reported the concerns to management, no action was taken by the respondent to deal with the incidents. Having carefully considered all the documentary evidence and testimony taken at the hearing, I note that the store manager Mr. M did carry out an investigation and interviewed relevant parties regarding the complainant’s claims. Detailed notes were submitted regarding statements taken and minutes of meetings held in line with procedures as outlined in the company’s Dignity at Work policy. In relation to the alleged incidents, I note that following management’s investigation regarding this incident, there was a complete divergence between the complainant and his co-worker in relation to events which happened at that juncture and in the absence of any corroborating evidence, it was a case of one word against the other. I note that at the time in question management discussed the matter with the trade union official Mr. P and it was arranged that a meeting would be held with the two parties to try and resolve matters. However, neither party would agree to same and Mr. M took the remedial action of re-issuing a copy of the Dignity at Work policy to all staff in the store. I consider that management made efforts to adjust the complainant and his co-worker Mr. K’s hours and assign them different sections so as to minimise contact between the two individuals, however it was proving a difficult balance to try and achieve.

5.8 I note that an incident occurred on 15 July 2014 where another colleague Ms. F made a complaint about the complainant being threatening and abusive both to herself and Mr. K where she alleges that the complainant called Mr. K a “f****** crazy Irish b*****d”. She made a formal complaint to Mr. M regarding same. Mr. M instituted an investigation and met with various parties including Mr. K who also made a formal complaint about the complainant regarding abusive language and name calling. Following Mr. M’s investigation into the matter, he was satisfied that a first written warning was warranted and on 26 September 2014 issued same to the complainant under the company’s misconduct policy. The complainant appealed same and the Managing Director of the Store, Mr MM reviewed all the evidence and upheld the sanction of the first written warning.

5.9 Section 14A (2) of the 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 to reverse its effects where it has taken place. Having carefully examined all the evidence relating to the complainant’s claims, I am satisfied that the respondent did carry out an investigation into the incidents raised by the complainant and acted in accordance with its Dignity at Work code. Relevant witnesses were interviewed. Copies of witness statements and relevant minutes of meetings were taken at the material time and were submitted in evidence to the Commission. The Manager Mr. M contacted the union official in Mandate and arranged a meeting between the complainant and Mr. K to try and resolve matters but neither party would attend. Mr. M then took remedial action in the form of re-issuing the Dignity at Work policy to each member of staff and trying to adjust the hours of work and areas of work of the complainant and Mr. K. From the evidence, I am satisfied that the complaint made by the complainant under the Dignity and Respect policy was dealt with in accordance with the respondent’s policy. Accordingly from the totality of the evidence adduced on this matter, I am satisfied that the respondent can rely on the defence in section 14A (2) of the Acts.

5.10 Following two formal complaints made by Ms. F and Mr. K about threatening and abusive behaviour, an investigation ensued including witness statements taken from relevant parties. As a result of the investigation, Mr. M found that a sanction of a first written warning was appropriate in the circumstances and the complainant was issued with same. The complainant appealed this sanction to the Managing Director of the Store. The Managing Director reviewed all the evidence and was satisfied that the complainant’s behaviour was abusive and threatening towards another member of staff and felt that the first written warning was warranted and advised the complainant that the sanction was being upheld. I find that the respondent followed the procedures as outlined in its code of practice on disciplinary matters and having carefully reviewed the totality of the evidence on this matter, I am satisfied that the complainant has not established a prima facie case of discrimination on grounds of race in relation to his conditions of employment and therefore find against the complainant.

6. DECISION OF THE EQUALITY OFFICER

6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, I find that:

(i) the complainant has failed to establish a prima facie case of harassment on the race ground pursuant to section 6(2) of the Acts and contrary to section 8 of those Acts.

Therefore, the complainant’s case fails.

_____________________

Valerie Murtagh

Adjudication Officer/Equality Officer

12 September, 2016