EDA1720

This is Ms Berghie’s (“the Complainant”) appeal against a decision of an Adjudication Officer (DEC-E2016-076, dated 2 June 2016). The notice of appeal was received by the Court on 30 June 2016. The Adjudication Officer determined that the Complainant’s claims of age, racial and gender discrimination and discriminatory constructive dismissal under the Employment Equality Act 1998 (“the Act”) were not well-founded. The Complainant has confined her claim at the hearing of the appeal to discrimination and constructive discriminatory dismissal on the race ground only. She is of Moldovan nationality and holds both Moldovan and Irish citizenship.

The Complainant was employed as a member of the Respondent’s catering staff from 5 October 2010 until she took the view that her employment had been constructively terminated on or around 6 July 2015. The Complainant was on certified sick leave at that time. She was paid €10.50 per hour and worked 40 hours per week.

The Parties’ Submissions

The Complainant submits that she was subjected to a number of racial comments in the workplace. For example, she told the Court that on 4 June 2015 a colleague allegedly sang the following to her: “I love you. You love me. We are a Nazi family, and if you don’t fit in, we will f*** you up, because we are a Nazi family.” Other racial comments the Complaint submits were addressed to her in her place of work include: “Foreigners go back to your own country”; “Foreigners are lazy”; “Foreigners are stupid”. The Complainant also alleges that a colleague had suggested to her that houses in nearby Newbridge had been set on fire by foreigners. On cross-examination, the Complainant accepted that she had told her manager that a number of the comments had been made to her on 29 May 2015 and on 1 June 2015.

The Complainant told the Court that when she approached her manager, Mr Seán Clarke, on 15 June 2015 to complain about the above comments he told her that he needed to receive the complaints in writing before he could investigate them. She also complained to Mr Clarke about two other issues that occurred in the kitchen area where she worked: the first related to a window which some of her co-workers insisted on opening although it was known that the draught from the window was aggravating her headaches; the second related to the radio which was constantly being played too loudly although she had let it be known that she had an ear problem and had submitted a medical certificate confirming this. When she tried to close the window she says a named colleague shouted at her. Under cross-examination, the Complainant accepted that Mr Clarke had relocated her workstation away from the window.

The Complainant told the Court that she agreed to Mr Clarke’s request and undertook to put her complaint in writing. She initially agreed to do her best to furnish this to him the following day (i.e. 16 June 2015) as she had already done some work in this regard. Subsequently, the Complainant told Mr Clarke that she required until 26 June 2015 to formulate her complaint in writing. Under cross-examination from Mr Drumm BL, the Complainant accepted that when she hadn’t presented her complaint in writing to Mr Clarke by 26 June 2015 he wrote to her on 27 June 2015 and enclosed a copy of the Staff Handbook along with his letter. She further accepted that in his letter Mr Clarke stated the following:

• “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 very 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.”

The Complainant went on to tell the Court that she, in fact, didn’t submit a written complaint to Mr Clarke because she believed that her colleagues had become aware of what was going on, although Mr Clarke had promised to keep things confidential. It was at that stage that she decided to leave and to seek the assistance of a solicitor. This, she submits, was in early July 2015. Nevertheless, she submitted a medical certificate certifying her absence until 1 August 2015. She accepts that Mr Clarke acknowledged, by letter dated 6 July 2015, receipt of this medical certificate and that he also advised her in that letter that her complaint of 15 June 2015 would be put on hold until her return to work. In the course of cross-examination, the Complainant clarified that the second element of her claim is that she regards herself as having been constructively dismissed on 6 July 2015.

In summing up his client’s case, Mr Grogan submitted that she had complied fully with the Respondent’s Bullying Policy. That Policy makes no mention of a requirement that a complaint thereunder be put in writing. He further submitted that an employer is under an obligation to investigate any serious complaint notified to it whether this has been done in writing or not. The employer, he says, could have taken a statement of the complaints from the Complainant. He submits also that the complaints that his client had verbally communicated to Mr Clarke should have been kept confidential and should not have been disclosed by Mr Clarke to two of the Complainant’s co-workers. Finally, he told the Court that the employer’s breach of confidentiality left his client with no option but to resign.

Mr Seán Clarke gave evidence for the Respondent. He confirmed that he had initially been approached by the Complainant at 8.15 a.m. on 16 June 2015, following his return from annual leave. He arranged to meet her later that day which he did. During the course of that meeting (which he says last 20 to 25 minutes) she listed a number of complaints and he undertook to investigate these but required her to submit them in writing. Mr Clarke told the Court that he made a contemporaneous note of this meeting which he later typed out. He confirmed that the Complainant had initially promised that she would furnish him with a written complaint on 16 June 2015 and that she subsequently told him she would not have this until 26 June 2015. He told the Court that he met with the Complainant again on 26 June 2015 when she told him that she couldn’t put her complaints in writing because she was too stressed out. He also said in evidence that the Complainant had told him that she had been advised by her solicitor that she need not put her complaints in writing. Mr Clarke confirmed that the Complainant notified the company on 3 July 2015 of her medically certified absence for one month. He also told the Court that the first indication he had that the Complainant would not be returning to work came when he received a copy of her Workplace Relations Commission form.

Mr Clarke went on to explain to the Court that he did not investigate the complaints made verbally to him by the Complainant on 15 June 2015. He had understood that she had complained about up to 10 staff members but had provided him with very scant details such that he didn’t know who had allegedly said what to the Complainant.

Under cross-examination from Mr Grogan, Mr Clarke confirmed that he made handwritten notes of his meetings with the Complainant within 15 minutes or so of each of three meetings. He later typed these up in one document and shredded his original hand-written notes. He accepted that he had never sent any version of his notes to the Complainant. Mr Clarke was unsure as to whether or not he had replied to the Form EE2 sent to him by the Complainant’s solicitor. When referred by Mr Grogan to the company’s Complaints Procedure as set out in the Staff Handbook, Mr Clarke accepted that step 1 of the process does not specify that an employee must set out their complaint in writing at that (informal) stage. He also accepted that he did not inform the Complainant that he was moving directly to the formal stage of the process.

Mr Drumm BL submitted that the Respondent had acted reasonably in responding to the Complainant’s allegations. He requested the Court to find that she had failed to stand up those allegations and to note in particular that she hadn’t exhausted the internal procedures, although, it appears she had the benefit of legal advice before she took the decision to leave her employment. Finally, he asked the Court to find that she had failed to establish that the Respondent was in any liable for the alleged discriminatory comments or for her constructive dismissal.

Discussion and Decision

Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

• “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 first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

  It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

• “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

The Court is of the view that the Complainant in this case meets the burden of proof required by section 85A(1) of the Act in relation to the first element of her complaint but not the second. That is to say, she has established a prima facie case of discrimination on the race ground arising from the pernicious statements made to her by a number of her former co-workers. The Respondent has failed to rebut the prima facie case made out by the Complainant. The Court finds the defence of this aspect of the claim advanced on behalf of the Respondent as formalistic at best. The Court finds that the Respondent did not have an adequate anti-discrimination policy and associated complaints procedure in place. It is not, in the Court’s view, best practice for an employer to seek to deal with alleged infringements of the Employment Equality Act 1998 by directing employees to a basic Grievance Policy or a general Bullying Policy. Furthermore, it is no defence for an employer who has failed to investigate complaints of the magnitude raised by the Complainant in this case to seek to justify their inaction on the basis that the complaints were not presented to them in written format. The Court expects an employer to be proactive and, if necessary, to take a statement of the complaint(s) from the alleged target of the discriminatory behaviour.

Nevertheless, the Court does not accept that the Complainant was entitled to regard herself as constructively dismissed in the circumstances in which she found herself. This aspect of her complaint is not well-founded. The events complained of occurred over a very short space of time. The Complainant had been employed for some four-and-a-half years without any similar incident having occurred. She effectively left her employment less than three weeks after first notifying her employer of the alleged discriminatory remarks that had been made to her. Although the Court had found fault with the Respondent’s general approach to dealing with the Complainant, nevertheless it is clear to the Court that the Complainant had undertaken on at least three occasions to furnish a written statement of her complaints to her employer and that Mr Clarke had reassured her both verbally and in writing that those complaints would be investigated and addressed once he received that written statement.

Accordingly, the Court awards the Complainant €4,000.00 for the effects of discrimination. This is not by way of compensation for loss of earnings and is not, therefore, subject to tax. The Decision of the Adjudication Officer is varied accordingly.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
10 July, 2017Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.