Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00007930-001

02/11/2016

The case concerns a complaint by Mr A. that the catering company which employed him discriminated against him on the grounds of civil status, family status, religion, race, and membership of the Traveller Community pursuant to Section 6(2)(b),(c),(e), (h), and (i), in terms of access to employment, promotion, conditions of employment, harassment, and dismissal contrary to Section 8 of the Acts. The complainant also complains of victimisation and victimisatory dismissal contrary to S. 74(2) of the Acts.

The complainant referred a complaint to the Director General of the Workplace Relations Commission on 2 November 2016. No further written submission beyond the statement on his complaint form was received from him. On 14 June 2017, in accordance with her powers under S. 75 of the Acts, the Director General delegated the case to me for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 25 July 2017. The respondent submitted its written submission at the hearing of the complaint, and the complainant was given until 21 August 2017 to submit a written response. The last written communication in the case was received on 11 August 2017.

The substance of the complainant’s complaint, from his written submissions, was difficult to ascertain, partly because the complainant does not have a very good command of written English, as he himself acknowledges. His description of events in his original complaint form looked very much like a grievance, and indeed the reason he gave for complainant to the Commission was that he felt his employer had not followed up properly on the grievance he had raised.  There was no discernible connection to the discriminatory grounds he had identified in this text.

At the beginning of the hearing, I offered to the complainant to adjourn the matter in order to source an interpreter, should he feel the need to have one. He declined this offer.

In his oral evidence, he gave his civil status as married, his family status as being parent to two daughters, his religion as Muslim and his race or nationality as Bangladeshi.   His concurrent claim of membership of the Traveller community must therefore be a mistake, as I explained to at the outset of the hearing, given that the Traveller community is an indigenous Irish ethnic group.

The complainant also confirmed that he was employed by the respondent. He was dismissed, but not at the time of lodging his complaint.   He gave as his comparators a Bulgarian woman colleague who was not married and had no children, who was team leader, and a Croatian colleague who joined the team two years later than the complainant did, but was promoted to team leader over the complainant.   The complainant asserted that this colleague also had no children.  The complainant states that he applied for the position of team leader seven times in total, each time unsuccessfully.

The main issue in the complainant’s harassment complaint is that during an incident at work, his Croatian manager touched his hand by way of stopping the complainant carrying out a task, something the complainant took offense with. The manager was male. According to the complainant, the manager told him “Do the food run or go home”. The complainant then left the workplace.

Regarding his victimisation complaint, the complainant stated that he wrote a statement on Facebook and that his roster was subsequently changed.  He also alleged both in his oral evidence and in his subsequent written submissions, that the respondent does not follow its own procedures and that the respondent’s investigations into any grievance of his would be completely biased.

The respondent only submitted a written submission on the morning of the hearing. The gist of its argument is that the complainant has failed to establish a prima facie case of discrimination on any of the grounds cited. It states that the complainant had the same training and promotion opportunities as all other staff.   The respondent is a catering company, and the complainant has worked for it since 2013. On 24 November 2016, the complainant was dismissed following a disciplinary investigation into the complainant’s prolonged unauthorised absence from work, which had started on 18 October 2016. The complainant did not attend the disciplinary hearing and did not appeal the decision to dismiss him.

During the hearing of the complaint, the respondent’s representative stated that the respondent has 300 staff of about 30-40 different nationalities.   The complainant’s manager, for example, is an Indian Muslim.

As regards the complainant’s complaint of discrimination in relation to promotion, the respondent asserts that the complainant did not complete the online training course which was a precondition to being promoted to team leader.

Specifically on the complainant’s complaint that his superior touched his hand, the respondent stated in evidence that the complainant was originally rostered to work on the minibar. However, it was 5am, and there were no customers for the bar, so the shift runner reassigned the complainant to the task of food runner, which includes tasks like moving food from the kitchen to the tables, bringing empty plates back, and similar. According to the respondent, the complainant refused this instruction.   When the duty manager repeated it to him, the complainant still refused. The respondent states that this was a reasonable instruction to the complainant in circumstances where the minibar saw no business.   The complainant was subsequently suspended with pay, and an investigation meeting was called on 28 July 2016, at which the complainant did not appear.

On 6 September 2016, the complainant raised a grievance which was identical with his complaint to the commission.   The investigation of the complainant’s grievance and his disciplinary process where then followed up by different teams.   Neither the investigator nor the person who heard the complainant’s appeal found that the complainant had been harassed.

Unlike the investigation into his grievance, the respondent states that the complainant did not participate in the disciplinary process. Accordingly, the complainant’s pay was stopped, as his absence from work was deemed unauthorised from 18 October onwards. The complainant was invited to the disciplinary hearing, but did not attend and did not provide any reasons for not attending.   Accordingly, the disciplinary investigation never had an outcome.  After two warnings, the complainant was dismissed from his employment with the respondent on 24 November 2016.

From various written and oral statements received from the complainant, it is clear that he laboured under various misunderstandings regarding the Commission’s adjudication process, especially as regards the word “investigation” commonly used in equality complaints. It is clear that the complainant expected me to investigate his grievances as he did not trust the respondent to do so properly. To give but one example from the complainant’s second written submission:   “My every single word is truth or not you can identify if you investigate”.   The complainant clearly did not understand, as I attempted to explain to him during the hearing of the matter, that it was for him to establish a prima facie case, and that the complaints process was essentially a litigation process.

That said, I cannot step outside of the legal confines of my adjudicator role to fulfil the complainant’s mistaken expectations. Therefore, in evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.

In its leading decision EDA0917 Melbury v Valpeters, the Labour Court has further clarified that

they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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.

It is clear that the complainant’s case of access to employment cannot succeed because he was actually in the respondent’s employment when the events of which he complains happened.   Likewise, it is clear that the complainant is not a member of the Traveller community, so this complaint cannot succeed either.  

With regard to the complainant’s complaint of discrimination in his terms and conditions of employment, which encompasses harassment, I first want to note that outside of harassment, the complainant adduced no evidence at all that his terms and conditions of employment were less favourable than those of his co-workers.  

As regards Mr A.s complaint of harassment, I am unable to accept that the physical touch of someone’s hand, in the context of stopping that person from carrying out a certain task, as the complainant himself confirmed, can constitute harassment within the meaning of S. 14(7) of the Acts. I can think of possible exceptions in a very narrow set of circumstances, which I will detail below, but which I am satisfied do not apply in the within case.  

It is important to note that S. 14(7)(a)(i) defines harassment as “any form of unwanted conduct related to any of the discriminatory grounds” [emphasis added].   The complainant did not make any argument how this gesture was related to any of the grounds he cited. Given that he did cite discrimination on the ground of religion, I might briefly note that I am well aware that in some religious traditions, physical contact that would be seen as harmless in other cultures, such as touching hands, is frowned upon when it happens between persons of different genders who are not related. Such a scenario, if it arose in a complaint before the Commission, would need to be closely examined, because extenuating circumstances could well exist to make such touch necessary, for example relating to issues of health and safety.   At any rate, an employer would need adequate notice of such a religious requirement, so it can instruct its staff accordingly and thus prevent uncomfortable situations for the worker.

However, I am satisfied that this element does not come into the situation described by the complainant, as his superior was also male.   Accordingly, I am satisfied that he has not established harassment within the meaning of S. 14(7) of the Acts and that this part of his complaint must fail.

As regards the complainant’s complaint of his unsuccessful promotion attempts, I find that even if I take his allegations at their height, they only speak to a certain arbitrariness in terms of how the respondent promotes its staff.   Apart from that the complainant did not have his comparators with him as witnesses in the hearing (which could be due to his misunderstanding of the process described above) he did not adduce any evidence on how his lack of success is linked to the discriminatory grounds.     The grounds which “other” the complainant the most in the context of the within complaint are his race and religion, since many people in the workforce are married with two children.   As regards race and religion, I am satisfied that the fact that the complainant’s manager is like him a South Asian Muslim, rebuts the notion that he was discriminated against on those grounds. Accordingly, this part of his complaint must also fail.

Given that the complainant was only dismissed from the respondent’s employment after he filed the within complaint – although it is possible that he may have perceived himself dismissed at an earlier date – it is difficult to see how his dismissal could be discriminatory. I therefore propose to examine his dismissal as a possible victimisatory dismissal, which he also complains of, along with victimisation.

For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

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

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

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

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

It is also important to have regard to the principle stated by the Labour Court in EDA1017, Department of Defence v. Tom Barrett, that while

It is well settled that the protection against victimisation is not limited to situations in which a complaint of discrimination is subsequently upheld. However, the catalyst alleged for the adverse treatment complained of must, in some sense, come within the ambit of one of the protected acts referred to at s.74(2) of the Acts.

Given the respondent’s evidence that the complainant’s grievance was identical with the text on his complaint form, it is clear that the complainant did complain about discrimination in relation to promotion.   However, his victimisation complaint, which he did not substantiate, appears to be about his Facebook post and that he was put on a different roster subsequently. The documentation which the complainant submitted post-hearing does not show a screenshot or similar of this Facebook status, and hence it is impossible to say whether it covered a protected act. Neither did he have any evidence of the changed roster.     He did not link any adverse treatment to the raising of his grievance.  In such circumstances, his victimisation complaint must fail for lack of evidence.

As regards his complaint of victimisatory dismissal, the complainant did not really state any case at all, even in the simplest terms, such as “I was fired because I raised a grievance”. While I noted above that the grievance does contain a protected act, it would still be for the complainant to demonstrate, or at least claim, a link to his dismissal, which he did not do. In those circumstances, I prefer the respondent’s evidence as to the chain of events which led to the complainant’s dismissal.   The complainant’s complaint of victimisatory dismissal must therefore also fail.

I find that the catering company who is the respondent in this case did not discriminate against, discriminatorily dismiss, victimise or victimisatorily dismiss, the within complainant on the grounds of civil status, family status, race, religion or membership of the Traveller community, contrary to the provisions of Sections 8, 14 and 74(2) of the Employment Equality Acts 1998-2015.