Complainant

Respondent

Anonymised Parties

A Complainant

A Meat   Factory

Representatives

Hamilton Sheahan &    Co. Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 77    of the Employment Equality Acts 1998 to 2015

CA-00005138-001    CA-00005726-001

08/06/2016 08/06/2016

The Complainant   claims that he has been subjected to discriminatory treatment by the   Respondent on the grounds of Race and Religion in relation to his   conditions of employment contrary to Section 8 of the Employment Equality   Acts. The Complainant also claims that he has been subjected to victimisation   by the Respondent contrary to Section 74 of the Employment Equality Acts.

The Respondent denies that the Complainant was subjected   to discriminatory treatment or victimisation on the grounds claimed. The Respondent contends that the present   complaint is inadmissible under the Employment Equality Acts on the basis   that it has been referred to the Director General under the wrong legislation   by using the incorrect Complaint Referral Form (i.e. it was submitted on an   ES.1 Form). Without prejudice to the foregoing, the Respondent denies that   the Complainant was subjected to victimisation or discriminatory treatment on   the grounds of Race and/or Religion in relation to his conditions of   employment. Furthermore, the Respondent also contends that the Director General   does not have jurisdiction to investigate certain elements of the present   complaint as they are outside the scope of the initial claim which was   referred to the WRC.

The Complainant is of Egyptian origin and has been employed   by the Respondent since June 2000. The   Complainant is one of a number of Egyptian nationals who work in the abattoir   of the Respondent’s meat factory.

The present complaint arises out of an incident that   occurred on 11^th May, 2016 whereby the General Manager approached   the Complainant and asked if he would accept an hourly rate of pay to   slaughter 240 sheep on the following day. The General Manager also asked the   Complainant to consult with the other Egyptian nationals to establish if they   would also be available to slaughter the sheep on that date. The Complainant   confirmed to the Respondent following consultation with the other Egyptian   workers that they would be available to slaughter the sheep on the 12^th   May, 2016 at the hourly rate proposed.

On the following day (i.e. 12^th May, 2016) the   Complainant together with all of the other Egyptian workers were asked by the   Respondent to sign what purported to be a training record in relation to   their work. The Complainant and the other Egyptian workers refused to sign   this training record on the basis that they had not been provided with the   training documented on the form. The   Complainant claims that this document was a false training record as it   purported to imply that they had received training which had never been   provided to them. The Complainant   claims that all other employees excluding the Egyptian workers were called   into work by the Respondent on 12^th May, 2016 to slaughter the   sheep.

The Complainant submitted that this is just one example of   the discriminatory treatment that he has received as an Egyptian national and   he claims that he has been treated less favourably than any other nationality   by the Respondent. He claims that the discrimination has been ongoing on a   daily basis since the appointment of Mr. P as their Supervisor approximately   six years ago. The Complainant submitted that none of the other nationalities   employed by the Respondent were asked to do the same and because they refused   to falsify a training record the Respondent took away the additional hours   which they normally worked as a group.   The Complainant claims that his hours of work have been reduced by the   Respondent to 27 hours (three days) per week having previously worked 45 hours   (five days) per week. He maintains that it was only the Egyptian workers who   had their hours reduced.

The Complainant claims that he is expected to do more work   in the three days than he had previously been expected to complete when   working five days per week. The Complainant claims that he is not permitted   to take any rest breaks during his working day. The Complainant claims that   he has not received any pay increase during the last six years and when he or   the other Egyptian workers try to raise this matter with the Respondent their   claims are dismissed immediately with disdain.

The Complainant also claims that a further example of the   less favourable treatment is that if   he is walking side by side with a Polish national that the Abattoir Manager,   Mr. P, would greet the Polish national and ignore him.

The Complainant also claims that his supervisor, Mr. A,   does not respect his religion as a Muslim, as he is never permitted to take a   one day holiday to celebrate a religious day which is called Qorbanday,   whereas the Respondent’s Polish employees are permitted to take leave from   work if Poland were playing a soccer game. He claims that this amounts to   discriminatory treatment on the grounds of his Religion.

The Complainant also claims that he was subjected to   discrimination on the grounds of race in relation to an incident that   occurred on 20^th September, 2016 when the Respondent refused to   allow him to leave work after he received a telephone call that his daughter   was extremely ill and had been taken to hospital by ambulance. The Complainant   claims that some three hours after the initial telephone call he was   permitted to leave work and was told to “f… off” by the Abattoir Manager, Mr.   P.

The Complainant also claims that he has been subjected to   victimisation by the Respondent contrary to Section 74 of the Employment   Equality Acts. The Complainant claims the he and other workers of Egyptian   nationality have been subjected to victimisation as a result of a personal   injuries claim having been initiated by another Egyptian national employed by   the Respondent. The Complainant claims   that he has been subjected to adverse treatment by the Respondent and his   conditions of employment have deteriorated as a result of this claim.

The Respondent operates a beef and lamb processing factory   and employs a workforce of approx. 130 employees which consists of a number   of different nationalities including Irish, Egyptian, Polish, Brazilian,   Latvian, Lithuanian and Slovakian nationals. The Complainant is one of a   number of Meat Processing Workers employed on its slaughter line having   commenced his employment in or around the year 2000.

The Respondent denies that the Complainant was subjected   to discriminatory treatment on the grounds of race and/or religion in   relation to the incidents claimed. The Respondent denies that the General   Manager had a conversation with the Complainant in or around the 11/12^th   May, 2016 in relation to the slaughtering of 240 sheep or training records.   The Respondent submitted that all discussions in relation to the slaughtering   of sheep and the organisational requirement to update training records in   respect of the Complainant took place with the Complainant’s fellow employee   and Egyptian national, Mr. E. The Respondent   submitted that training is an important part of its business and training   across the organisation, irrespective of race or religion, is reviewed on an   ongoing basis.

On or about 14^th March, 2016, following a   survey by the Department of Agriculture, Food and Marine, it became necessary   for the Respondent to certify that all abattoir operatives were correctly   trained to comply with relevant hygiene requirements. In the process of   reviewing the training records within the organisation the Respondent   discovered that it did not have up to date written training records for the   lamb abattoir. As a result the   Respondent set about drafting new records to reflect the level of training   each individual employee had and to reflect the position at that point in   time. The Respondent had been informed by its insurers and the Department of   Agriculture, Food and Marine that it should not be operating at all if   workers were not qualified to do the work they were carrying out and signed   off as such.

In or around this time the Respondent was also considering   ways in which it could expand its lamb business and an expansion into the   Halal market was being explored. From an early stage the Respondent involved   Mr. E (spokesperson for the Egyptian workers) in this project. The Respondent contacted a number of Halal   customers and an operational decision was made to slaughter 500/600 lambs on   the morning of 12^th May, 2016. During the weeks leading up to the   12^th May, 2016 the training records were drafted to reflect the   work in the lamb abattoir in general and this process was not carried out in   relation to that particular date in isolation.

On or about the 11^th May, 2016 the updated   training records were presented to all employees regardless of race and/or   religion who were working on the lamb slaughter line. Each employee was given   an opportunity to consider the contents of their respective records and asked   to sign them if satisfied with the content of same. If any employee was of   the view that the records did not reflect the training they had received or   the skill set they possessed they were free to discuss the matter with the   General Manager and the records would be amended accordingly. The Respondent   submitted that this practice applied to all employees regardless of race   and/or religion. Mr. E came back to the General Manager, on behalf of the   Complainant, and indicated that the employees he represented (i.e. the   Egyptian nationals) would not sign the records as they were not happy with   their content. The General Manager offered to amend the records in   consultation with the individual employees to reflect the precise position   but they declined.

As the slaughter of the 500/600 lambs on the 12^th   May, 2016 was to be only an experiment the Respondent decided to cancel the   slaughter on this date and to seek advice regarding the training records of   the seven employees, including the Complainant, who refused to sign them as   the Respondent understood as of 11^th May, 2016 that if the records   were not signed the employees could not work. Instead the Respondent   slaughtered approx. 216 lambs on 12^th May, 2016 which is the   normal workload for a week. The Respondent submitted that thirty three   employees, including one Egyptian, worked on that date on the basis that they   had returned their signed training records. Subsequently, the Respondent was   advised that if it was satisfied that an employee was competent to do the work   set out on the training records a qualified trainer could sign off on them   and the employees could resume work. The Respondent submitted that the   requirement to sign training records applied to all employees irrespective of   their race and/or religion and it denies that the Complainant was subjected   to discriminatory treatment as claimed in relation to this matter.

The Respondent also denies that the Complainant’s hours of   work have been reduced as alleged. The Respondent submitted that the   Complainant has worked 3-4 days per week on slaughter days since 2001. On   slaughter days the Complainant is guaranteed nine hours per day i.e. eight   hours at the flat rate of pay and one hour at an overtime rate of pay even if   those hours are not actually worked. These terms and conditions are more   favourable than other employees within the abattoir as they are paid for the   actual hours worked. The remaining days in the week are regarded as   non-slaughter days and the work carried out on those days involves other   operations such as loading, palletising, stripping freezers etc. Traditionally, it was open to employees to   request to work on the non-slaughter days, however, over the last number of   years it has become established as to who does and who does not want to work   on non-slaughter days (from across all nationalities and religious   backgrounds). The Respondent submitted that many employees do not want to   work on the non-slaughter days because hours are generally short and it can   affect their social welfare payments. The Respondent submitted that an   employee’s race or religion has no bearing on whether or not they work on   non-slaughter days which is supported by the fact that Mr. N, an Egyptian   national, works five days per week – three on slaughter days and two on   non-slaughter days.

The Respondent also denies that the Complainant is not   permitted to take any rest breaks during his working day. The Respondent   submits that rest breaks are pre-determined in advance and work around   Department of Agriculture, Food and Marine veterinary cover. All employees on   the factory floor, including the Complainant, take their rest breaks at the   same time as each other, irrespective of race and/or religion during what is   known as the “can’t kill time”. During this period there is no veterinary   cover, and therefore, all slaughter line operations in the factory stop and   breaks are taken.

The Respondent also denies that it has failed to respect   the Complainant’s religion as a Muslim or that he is treated less favourably   as compared to employees of other nationalities, including Polish employees,   with regard to taking time off from work. The Respondent denies that the   Complainant requested, either directly or through a representative, a day’s   holidays to celebrate a religious day called “Qorbanday” or that he was   forbidden from celebrating the said religious day. The Respondent submitted   that on no occasion has it permitted employees, regardless of their   nationality, to take days off with pay or to leave work early because of a   sporting event. However, the Respondent has on a very limited number of   occasions organised its production schedule around significant sporting   events (such as the World Cup or the African Cup of Nations – when Egypt   reached the final of the competition) by re-arranging slaughter times and   slaughter days. The Respondent has also specifically facilitated the   Complainant as a Muslim with respect to religious celebrations and he has   been afforded annual leave and/or production has been re-arranged in order to   allow the Complainant time off around Ramadan.

The Respondent also denies that the Complainant has been   subjected to discriminatory treatment in relation to pay increases during the   last six years or that his requests for a pay increase have been dismissed   with disdain by Mr. P, Abattoir Manager, on the grounds of his Egyptian   nationality. The Respondent submitted that up until approx. two years ago all   of the Egyptian nationals were dealt with as a group in respect of all   matters relating to their terms and conditions of employment. They were   represented by Mr. E who negotiated with the Respondent on their behalf.   Since then all pay rises have been negotiated on a one to one basis as and   when it was appropriate and that two other Egyptian nationals have received   pay increases in the interim. The Respondent submitted that pay is not   reviewed on a yearly basis and the Complainant or the other Egyptian   nationals have not been treated any differently than employees of other   nationalities in this regard. The Respondent submitted that the Complainant’s   hourly rate of pay and that of his Egyptian colleagues is in excess of other   abattoir employees.

The Respondent also denies that the Complainant was   subjected to discrimination on the grounds of race in relation to an incident   in which it is alleged that he was refused permission to leave work after his   daughter had been taken ill. The Respondent does not have any recollection of   a conversation with the Complainant’s son wherein he requested that the   Complainant be permitted to go home from work immediately due to a family   emergency. The Respondent also vehemently refutes the claim that the   Complainant was told to “f… off” by Mr. P on this occasion.

The Respondent also denies that the Complainant has been   subjected to victimisation contrary to Section 74 of the Employment Equality   Acts. The Respondent submits that the first occasion it was made aware of the   claim of victimisation was at the oral hearing of the complaint and that this   claim was not raised in either the initial Complaint Referral Form or in the Complainant’s   written submissions which were forwarded to the WRC approx. eight months   after the referral of the initial complaint. Accordingly, the Respondent   submits that this claim is outside the scope of the present complaint and that   the Adjudication Officer does not have any jurisdiction to investigate the   matter. Without prejudice to the foregoing, the Respondent vehemently denies   that the Complainant was subjected to victimisation contrary to Section 74 of   the Acts as a result of a Personal Injuries claim having been initiated by a   fellow Egyptian worker.

Findings and   Conclusions on Jurisdictional Issues

The Respondent has raised a number of issues in relation   to the jurisdiction of the WRC to investigate the present complaints which   are set out hereunder.

Referral of   Complaint under the incorrect legislation

The first jurisdictional issue which I must address   relates to the Respondent’s contention that the present complaint is   inadmissible under the Employment Equality Acts on the basis that it has been   referred to the Director General of the WRC under the wrong legislation by   using the incorrect Complaint Referral Form.

The Complainant referred the present complaint to the   Director General on 8^th June, 2016 using an ES.1 Form which is the   form routinely used for referring a complaint of discrimination under the   Equal Status Acts. The Complainant indicated on the ES.1 Form that the   alleged discrimination occurred on 12^th May, 2016 and that he had   been treated less favourably on the grounds of race in the following ways:

“1. Try to inforce me to sign fake training record and other Egyptions and one alone;

2. Call everyone to come to work except me and other Egyptions; and

3. Pay less money to me and other Egyptions: less hours than other nationalities”.

The Respondent made submissions to the WRC by way of   letter dated 5^th August, 2016 to the effect that the present   complaint did not comply with the statutory requirements for the referral of   a complaint under the Equal Status Acts. Following the assignment of the   complaint to me for investigation and decision by the Director General, I   wrote to both parties on 12^th January, 2017 informing them of my   delegation by the Director General in relation to the matter. In the letter   to the Complainant, I noted that from an initial examination of the   documentation it appeared to me that the complaint related to an allegation   of discriminatory treatment concerning his conditions of employment and therefore,   it appeared that the matter may be more appropriate to the Employment   Equality Acts rather than the Equal Status Acts. The Complainant was   requested to confirm the relevant statute under which he had intended to   pursue the complaint upon referral and in this regard a response was received   from his legal representative on 1^st February, 2017 (which he had   engaged subsequent to the referral of the initial complaint) confirming that   he wished to pursue the matter under the Employment Equality Acts. The   Complainant’s correspondence was copied to the Respondent and it was afforded   the opportunity to make a written submission on the issue prior to the oral   hearing of the complaint. The Respondent did not forward a written submission   in relation to the matter prior to the oral hearing.

In considering this matter, I have noted the judgement of   McKechnie J. in the Supreme Court case involving County Louth VEC –v- The Equality Tribunal[1]   where it was held that: “As is evident from the aforegoing (para.   19 supra), the initiating step for engaging with the provisions of the 1998   Act is that an applicant “… seeks redress by referring the case to the   Director” (s.77 (1) of the 1998 Act). In the absence of any statutory rules   to facilitate such a process, the Tribunal itself, in the form of guidelines,   has drafted and published what is an appropriate form to use in this regard   …… I agree with the view that there is nothing sacrosanct about the use of an   EE1 Form to activate the jurisdiction of the Tribunal. I see no reason why   any method of written communication could not, in principle, serve the same   purpose; in fact the Tribunal itself has so held in A Female Employee v. A   Building Products Company DEC-E2007-036. Indeed, it is arguable that even a   verbalised complaint would be sufficient to this end.”

Having regard to the foregoing, it is clear that the EE.1   Form is not a statutory form and therefore, a Complainant is not legally   obliged to use this form when referring a complaint to the WRC. In the present case, I am satisfied that it   was perfectly clear from the information included in the Complaint Referral   Form which the Complainant submitted to the WRC on 8^th June, 2016,   albeit that this was contained on the ES.1 Form (which is the form used for   seeking redress under the Equal Status Acts), that the alleged discrimination   related to his employment with the Respondent. Furthermore, I am satisfied   that this matter was brought to the Respondent’s attention at an early   juncture in these proceedings and as a result the Respondent’s defence of the   claim has not been prejudiced as it was fully aware of the general nature of   the claim and the legislative basis underpinning the proceedings well in   advance of the oral hearing. In the circumstances, I am satisfied that the   present complaint is admissible in accordance with the provisions of Section   77 of the Employment Equality Acts.

Admissibility of   certain elements of the claim of Discriminatory Treatment

The next jurisdictional issue which I must address relates   to the Respondent’s contention that certain elements of the present claim are   inadmissible on the basis that they are outside of the scope of the initial   complaint which was referred to the Director General of the WRC. The Respondent contends that the   Complainant has raised a number of entirely new allegations of discriminatory   treatment in the written submission which he submitted to the WRC on 1^st   February, 2017 which were not included in the initial Complaint Referral Form   which was submitted on 8^th June, 2016. The specific elements of   the complaint which the Respondent contends are inadmissible relate to the   following claims:

a)      The   claim that the Complainant has been subjected to discrimination on a daily   basis for almost six years.

b)      The   claim that the Respondent refused to permit the Complainant to take rest   breaks.

c)       The   claim that he is ignored by the Abattoir Manager, Mr. P.

d)      The   claim that the Respondent has shown a lack of respect for the Complainant’s   Religion as a Muslim by failing to allow him leave from work to celebrate the   religious day called “Qorbanday”.

e)      The   claim that the Respondent refused to allow him to leave work when his   daughter was extremely ill.

In considering this issue, I note that the circumstances   in which a Complainant can subsequently amend an original claim were   considered by the High Court in the case of Clare County Council –v- The   Director of Equality Investigations and Others[2]. In this judgement Hedigan J. stated: “The respondent has drafted the EE.1 forms   for complaints. Complainant’s however are not obliged to use them. The   Minister has not issued directions regarding the form to be used and   applicants can submit complaints in any format they see fit. In the Louth VEC v. The Equality Tribunal   [2009] IEHC 370 McGovern J. observed as follows at paragraphs 6.2 and 6.3:-

“I accept the   submission on behalf of the respondent that the form EE1 was only intended to   set out, in broad outline, the nature of the complaint. If it is permissible   in court proceedings to amend pleadings where the justice of the case   requires it, then a fortiori, it should be permissible to amend a claim as   set out in a form such as the EE1, so long as the general nature of the   complaint ….. remains the same."

It is clear from the   foregoing that because the EE1 form is only designed to set out the   generality of a complaint, complainants should be allowed to expand on   matters not specified in the form. So long as respondents are not taken back   by surprise or alternatively given adequate time to answer there can be no   injustice therein”.

It is clear from this judgement that a Complainant is not   precluded from amending his or her original claim so long as the general   nature of the complaint remains the same.   In the circumstances, the question that I must decide is whether the   additional claims of discriminatory treatment contained in the Complainant’s   written submission (which I have identified above at points a, b and c) which   were received by the Commission on 1^st February, 2017 were   properly made by way of an amendment to the initial complaint or whether   these incidences of alleged discrimination were properly admissible as a new   complaint.

In the present case, the initial complaint which was   referred to the Commission on 8^th June, 2016 related specifically   to the incidents of alleged discrimination identified above at points 1, 2   and 3). The additional claims made in   the written submission related to a number of incidents of discriminatory   treatment on the grounds of race and religion which the complainant alleged   to be still occurring on an ongoing basis.   I am satisfied that these additional claims of discriminatory   treatment which were outlined in the Complainant’s written submission   constitute entirely different complaints than that, which had been made in   the original complaint (on 8^th June, 2016). In the circumstances, I find that these   additional claims of discrimination go beyond the furnishing of further and   better particulars in relation to the Complainant’s initial claim.

The question then turns to the issue as to whether the   claims of discriminatory treatment outlined in the Complainant’s written   submission can be accepted as a valid claim in its own right which is   admissible under the Acts. In   considering this issue, and as I have already adverted to above, the EE.1   Form is not a statutory form and therefore, a Complainant is not legally   obliged to use this form when referring a complaint to the Director   General. I am satisfied that the   nature of the claims of discriminatory treatment are clearly set out by the   Complainant in this document and in the circumstances, I accept that these   claims constitute a new complaint within the meaning of the Employment   Equality Acts. However, in order for   these new claims to be deemed admissible they must comply with the time   limits provisions contained within section 77(5) of the Acts which provides:

“(5) Subject to   subsection (6), a claim for redress in respect of discrimination or   victimisation may not be referred under this section after the end of the   period of 6 months from the date of occurrence or, as the case may require,   the most recent occurrence of the act of discrimination or victimisation to which   the case relates”.

The effect of this provision is that the Complainant can   only seek redress in respect of occurrences during the six-month period prior   to the date on which the claim was received by the Director General unless   the discrimination is issue is part of a continuum of events.      

The additional claims of discriminatory were received by   the Director General of the WRC on 1^st February, 2017 and the   Complainant gave evidence that the alleged incidences of discriminatory   treatment in relation to being subjected to discrimination on a daily basis   and the failure to provide him with rest breaks (i.e. detailed above at   points (a), (b) and (c)) were occurring on an ongoing basis right up to the   referral of the written submissions in the present case and thereafter. The   most recent occurrence of the alleged discrimination on the grounds of   religion took place on 12^th September, 2016 (i.e. the date of   Qorbanday). The incident in relation   to the Respondent’s refusal to allow the Complainant leave work when is   daughter became extremely ill is alleged to have occurred on 20^th   September, 2016. In the circumstances, I am satisfied that the additional   claims of discriminatory treatment which were outlined in the Complainant’s   written submission comply with the provisions of section 77(5) of the   Employment Equality Acts. Accordingly,   I find that I do have jurisdiction to investigate these claims of   discriminatory treatment.

It should also be noted that the WRC copied the written   submission in which the additional claims of discriminatory treatment which   were outlined above to the Respondent on 15^th February, 2017. The   respondent was afforded the opportunity to forward a written submission in   reply to the additional claims of discriminatory treatment and both parties   were allowed to adduce evidence in relation to the matter at the oral   hearing. In the circumstances, I am   satisfied that the Respondent was not prejudiced in terms of the manner in   which the inquiry in relation to this matter was conducted.

Findings and   Conclusions on Substantive Issues

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 in relation to him. If he succeeds in doing so, then, and only   then, is it for the Respondent to prove the contrary. 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 deciding on this complaint, therefore, I   must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established   that the burden of proving there was no infringement of the principle of   equal treatment passes to the Respondent.   The Labour Court elaborated on the interpretation of Section 85A in   the case of Melbury v. Valpeters^[3]   where it held that Section 85A: "…. provides for the allocation of the probative burden in cases   within its ambit. This requires that the Complainant must first establish   facts from which discrimination may be inferred. What those facts are will   vary from case to case and there is no closed category of facts, which can be   relied upon. All that is required is that they be of sufficient significance   to raise a presumption of discrimination. However, 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.”

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)(e) of the   Acts defines the discriminatory ground of religion as follows – “as between any 2 persons, ... that one   has a different religious belief from the other, or that one has a religious   belief and the other has not" and Section 6(2)(h) of the Acts   defines the discriminatory ground of race as follows – “as between any 2 persons …. that they are of different race, colour,   nationality or ethnic or national origins”.

The issues for consideration by me are (i) whether or not the   Respondent discriminated against the Complainant on the grounds of religion   and/or race contrary to Section 8 of the Acts in relation to his conditions   of employment (ii) and whether or not the Respondent subjected the   Complainant to victimisation contrary to Section 74 of the Acts. In reaching my decision I have taken into   account all of the evidence, written and oral, submitted by the parties.

Discriminatory   Treatment in relation to Conditions of Employment

The first element of the complaint which I must consider   relates to the claim that the Complainant was subjected to discriminatory   treatment by the Respondent in relation to his conditions of employment. The Complainant gave evidence in relation   to a number of different incidents during his period of employment which he   contends were discriminatory against him on the grounds of his race and/or   religion, namely:

1. Incidents   on 11/12^th May, 2016 relating to the slaughter of sheep and the   signing of falsified training records.
2. A   reduction in his normal weekly working hours.
3. A   refusal by the Respondent to grant him any pay increases during the last six   years.
4. The   Respondent refused to permit the Complainant to take rest breaks.
5. That   he is ignored by the Abattoir Manager, Mr. P.
6. The   Respondent has shown a lack of respect for the Complainant’s Religion as a   Muslim by failing to allow him leave from work to celebrate the religious day   called “Qorbanday”.
7. Incident   in relation to daughter’s illness.
8. He   has been subjected to discrimination on a daily basis for almost six years.

Incident   relating to the slaughter of sheep and signing of falsified training records

The Complainant has claimed that both he and the other   Egyptian employees were excluded from working on the slaughter of 500/600   lambs on 12^th May, 2016 on the basis that they refused to sign   falsified training records. Having considered the evidence, I am satisfied   that the Complainant has failed to establish facts from which it could be   inferred that persons of a different nationality were treated more favourably   than him in relation to this matter.   The Complainant has failed to adduce any significant evidence to   support his claims that the alleged treatment was discriminatory on the   grounds of his nationality but rather has essentially relied upon supposition   and assertion, unsupported by evidence, in support of these claims.

In coming to this conclusion, I have found the   Respondent’s evidence in relation to this matter to be more compelling and I   accept its evidence that there were genuine reasons, wholly unrelated to the   discriminatory ground claimed, for the treatment afforded to the Complainant   in relation to these matters. In this   regard, I fully accept the Respondent’s evidence that the reason why the   Complainant was requested to sign the training documentation in or around the   11^th May, 2016 arose as a result of the Respondent’s requirement   to update the training records of all employees working in the lamb abattoir,   regardless of their nationality, in order to comply with the legal   requirements of its insurers and the Department of Agriculture, Food and   Marine.

I accept the evidence of the Respondent’s General Manager   and Abattoir Manager that efforts were made to address the concerns raised by   the Complainant and his fellow Egyptian nationals in relation to the training   records as soon as they came to light but despite these efforts it was not possible   to resolve the issues prior to the proposed slaughter of 500/600 lambs on 12^th   May, 2016. I accept the Respondent’s evidence that a decision was taken by   management that it would only allow the abattoir workers who had signed the   training documentation prior to the 12^th May, 2016 to work on that   date. I am fully satisfied that this decision was in no way influenced by the   nationality of the individual workers. In the circumstances, I am satisfied   that the reason why the Complainant was not allowed to work on that   particular date was wholly attributable to the issue surrounding the   completion of the training records and was totally unrelated to his   nationality. In coming to this conclusion I have also taken cognisance of the   fact that another Egyptian employee worked on 12^th May, 2016 on   the basis that he had signed off on the updated training record. Having regard to the foregoing, I find that   the Complainant has failed to establish a prima   facie case of discrimination on the grounds of race in relation to this   element of his complaint.

Reduction in   weekly working hours

The next element of the Complainant’s claim which I must   consider relates to the claim that the Respondent reduced his normal weekly   working hours from 45 hours per week to 27 hours per week. The Complainant   contends that the reason for the reduction in his weekly hours and those of a   number of his fellow Egyptian nationals was directly related to the   initiation of a personal injuries claim by another Egyptian colleague during   2015. The Respondent completely refutes this allegation and gave evidence   that the Complainant normally works 3-4 days per week on slaughter days in   accordance with the terms of his contract and that all abattoir workers,   including those of Egyptian nationality, are treated in the same manner in   relation to the allocation of work on non-slaughter days.

In considering this matter, I have found the Respondent’s   evidence to be more compelling and I am satisfied that the allocation of work   on non-slaughter days was in no way influenced by the nationality of the   individual workers. I have also taken cognisance of the Respondent’s   uncontested evidence that the first occasion it was made aware of the   Complainant’s grievance in relation to his hours of work was when it received   notification of the present claim. I have found the Complainant’s evidence on   this issue to be totally unconvincing and that he has essentially relied upon   supposition and assertion, unsupported by evidence, in support of this   element of his claim. The Complainant   has failed to adduce any significant evidence to support his claims that the   manner in which work was allocated on non-slaughter days was discriminatory   on the grounds of his nationality or was influenced by virtue of a personal   injuries claim initiated by a fellow Egyptian worker in 2015. Accordingly,   I find that the Complainant has failed to establish a prima facie case of discrimination on the grounds of race in   relation to this element of his complaint.      

Refusal to grant pay increases

The next element   of the Complainant’s complaint that I must consider relates to the claim that   he has not received any pay increase during the last six years and when he or   the other Egyptian workers try to raise this matter with the Respondent their   claims are dismissed immediately with disdain. In considering this matter, I   note that the Respondent provided extensive evidence in relation to the   manner in which pay increases are negotiated with its employees and that the   current average hourly rates of pay for the Complainant and other Egyptian   workers are in excess of the rates paid to the abattoir workers of different   nationalities. The Respondent gave evidence that rates of pay and pay   increases are determined in accordance with the skill levels of the   individual worker and that this method of determining pay is applied   uniformly to all abattoir workers regardless of their nationality. I have found the Complainant’s evidence on   this issue to be totally unconvincing and that he has essentially relied upon   supposition and assertion, unsupported by evidence, in support of this   element of his claim.

Having regard to   the evidence adduced, I have found the Respondent’s evidence to be more   compelling on this issue and I accept that the manner in which the   Complainant’s pay has been determined is in no way related to his   nationality. Accordingly, I find that   the Complainant has failed to establish a prima   facie case of discrimination on the grounds of race in relation to this   element of his complaint.    

Refusal to take Rest Breaks

The next element   of the Complainant’s complaint that I must consider relates to the claim that   the Respondent has refused to allow him to take rest breaks during his   working day on the grounds of his Egyptian nationality. In considering this   matter, I am satisfied that the Respondent provided clear and cogent evidence   regarding the arrangements which are in place within the abattoir to   facilitate all workers, regardless of nationality, to take breaks during the   working day. I accept the Respondent’s evidence that all workers including   the Complainant take their breaks during what is known as the “can’t kill   period” i.e. during the period when there is no Department of Agriculture,   Food and Marine veterinary cover which results in the temporary stoppage of   all kill line operations. I have found the Complainant’s evidence on this   issue to be totally unconvincing and that he has essentially relied upon   supposition and assertion, unsupported by evidence, in support of this   element of his claim. Accordingly, I   find that the Complainant has failed to establish a prima facie case of discrimination on the grounds of race in   relation to this element of his complaint.

Ignored by the Abattoir Manager  

The next element   of the Complainant’s complaint which I must consider relates to the claim   that if he is walking side by side with a Polish national that the Abattoir   Manager, Mr. P, would greet the Polish nationals and ignore him. Mr.P in his   evidence denies that he ignores the Complainant or the other Egyptians   nationals in the workplace and stated that he treats all of the different   nationalities employed by the Respondent in the same manner. Having regard to   the evidence adduced, I have found the Respondent’s evidence on this issue to   be more compelling and I accept that Mr. P does not treat the Complainant   less favourably than other nationalities in terms of the manner in which he   interacts with him on the factory floor. Accordingly, I find that the Complainant has   failed to establish a prima facie   case of discrimination on the grounds of race in relation to this element of   his complaint.

Lack of Respect for Religion

The next element   of the Complainant’s complaint that I must consider relates to the claim that   the Respondent has shown a   lack of respect for the Complainant’s Religion as a Muslim by failing to   allow him leave from work to celebrate the religious day called Qorbanday.   The Complainant gave evidence that the religious day called Qorbanday takes   place on 12^th September each year and that the Respondent refused   to allow him or the other Egyptian nationals to take time off work to   celebrate this day. The Complainant gave evidence that other nationalities   are treated more favourably in this regard and by way of example he claimed   that the Polish nationals are allowed to take a day off work or leave early   if Poland were playing a soccer match.   The Respondent gave evidence that the Complainant and other Egyptian   nationals have been facilitated in taking time off and that slaughter days   have been re-arranged to allow them to celebrate religious events such as   Ramadan. The Respondent denies that the Complainant was refused leave from   work to celebrate the religious day called Qorbanday. Having regard to the   evidence adduced, I have found the Respondent’s evidence on this issue to be   more compelling and I accept its evidence that the Complainant and other   Egyptian nationals are not treated any less favourably than workers of different   nationalities in relation to being facilitated with time off to celebrate   religious days.

At the oral   hearing the Complainant also raised a further claim of discriminatory   treatment on the grounds of religion on the basis that the Respondent has failed   to provide him with a prayer room or Mosque on the work premises. The   Respondent refutes this claim and gave evidence that workers of the Muslim   faith have been provided with a prayer room within the factory building. I   accept the Respondent’s evidence on this issue and I find that the   Complainant has not been subjected to less favourable treatment on the   grounds of his religion in relation to this matter.  

Accordingly, I   find that the Complainant has failed to establish a prima facie case of discrimination of the grounds of religion in   relation to this element of his complaint.

Incident in relation to daughter’s illness

The next element   of the Complainant’s complaint that I must consider relates to the claim that   the Respondent initially refused him permission to leave work on 20^th   September, 2016 after his daughter had become extremely ill and that the   Abattoir Manager, Mr. P, told him to “F… off” some three hours later when he   was eventually allowed leave work to tend to his daughter. There was a complete   conflict in evidence between the parties in relation to this matter. The   Respondent refutes the claim and Mr. P gave evidence that he had no   recollection of this incident and vehemently denies the claim that he told   the Complainant to "f… off" or that he would use such an expletive   to any of the Respondent’s employees.   On balance, I have found the Respondent’s evidence on this issue to be   more compelling and I have taken account of its evidence that the Complainant   was paid for a full day’s work and that records show he clocked out of work   at 5 pm on the date in question. Accordingly, I find that the Complainant has   failed to establish a prima facie   case of discrimination of the grounds of race in relation to this element of   his complaint.

Discriminatory treatment on a daily basis for almost   six years

The final element   of the Complainant’s complaint that I must consider relates to the claim that   he has been subjected to discrimination on a daily basis for almost six   years. The Complainant failed to provide any specific examples of alleged   discriminatory treatment (other than the alleged discriminatory treatment   referred to above) in support of his claim that he is being subjected to less   favourable treatment on a daily basis by the Respondent on the grounds of his   race and/or religion. Again, I have found the Complainant’s evidence on this   issue to be totally unconvincing and that he has essentially relied upon   supposition and assertion, unsupported by evidence, in support of this   element of his claim. Accordingly, I   find that the Complainant has failed to establish a prima facie of discrimination on the grounds of race and/or   religion in relation to this element of his complaint.

Victimisation

The final element of the Complainant’s complaint   which I must consider relates to the claim that he was subjected to   victimisation contrary to the Acts. Section 74(2) of the Acts defines   victimisation as follows:

“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 the 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)      and 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 that is unlawful   under this Act….or,

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

In the case of Tom   Barrett v Department of Defence^[4]   the Labour Court set out the three components which must be present for a   claim of victimisation under Section 74(2) of the Acts to be made out. It stated that (i) the Complainant must   have taken action of a type referred to at paragraphs (a)-(g) of Section   74(2) – what it terms a “protected act” (ii) the Complainant must be   subjected to adverse treatment by his/her employer and (iii) the adverse   treatment must be in reaction to the protected act having been taken by the   Complainant.

In the present case I must decide, in the first instance, whether or   not the Complainant took action that could be regarded as a “protected act”   within the meaning of Section 74(2) of the Acts. The Complainant has claimed that he was   subjected to victimisation by the Respondent as a result of a personal injuries claim having been initiated by   another Egyptian national employed by the Respondent. The Complainant claims that he has been   subjected to adverse treatment by the Respondent and his conditions of   employment have deteriorated as a result of this claim. The Complainant submitted that the   initiation of the personal injuries claim by another Egyptian national   employed by the Respondent comes within the definition of a “protected act”   contained in Section 74(2)(b) of the Act i.e. “any proceedings by a   complainant”.

In the case of the   Public Appointments Service –v-   Kevin Roddy[5]   the Labour Court held that: “To   be encompassed within the ambit of section 74(2)(b)“proceedings” must come   within the definition as defined by Section 2 under Interpretations:

                “proceedings”   means—

                (a)   proceedings before the person, body or court dealing with a                                                                request or reference under   this Act by or on behalf of a person, and

                (b)   any subsequent proceedings, including proceedings on appeal, arising                           from   the request or reference,

                but does not include   proceedings for an offence under this Act ;”

             Under the Act the Complainant   must prove that the catalyst alleged for the adverse treatment

             complained of came within the   ambit of one of the protected acts referred to at Section 74(2)

               of the Acts.”

Therefore,   in order to maintain a claim of victimisation within the meaning of the   Employment Equality Acts it is necessary that a Complainant demonstrate the   connection between his or her actions in relation to defending entitlements   under the Act and the adverse treatment complained of. I am satisfied that the initiation of   personal injury proceedings by another employee does not constitute a   “protected act” for the purposes of Section 74(2)(b) of the Acts.   Accordingly, I find that the facts as presented by the Complainant do not   come within the ambit of a protected act within the meaning of Section 74(2)   of the Acts and accordingly, the claim of victimization cannot succeed.

I find that:

(i) The Complainant has failed to establish a prima facie case of discrimination on the grounds   of race and/or religion contrary to Section 8 of the Acts in relation to his   conditions of employment;

(ii) The Complainant as failed to establish a prima facie case   of victimisation contrary to Section 74 of the Acts.

Accordingly, I find   in favour of the Respondent in this case.

Employment Equality Acts – Discriminatory Treatment -   Conditions of Employment – Race and Religion Grounds – Victimisation - No   prima facie case