DEC-E2017-040

EMPLOYMENT EQUALITY ACTS

Decision - DEC–E2017-040

PARTIES

Daniel Muresan

(represented by Mr. Adrian O’Higgins B.L.

on the instructions of Sean Ormonde & Co. Solicitors)

and

G&C Power Limited t/a Dominos Waterford

(represented by HD Keane Solicitors)

File Reference: et-155971-ee-15

Date of Issue: 31st May, 2017

Keywords: Employment Equality Acts, 1998 to 2015 – Race – Section 14A - Harassment – Section 74(2) - Victimization – Prima facie case established – Complaint upheld – Compensation awarded

1. Dispute

1.1 This case concerns a complaint by the complainant that he was subjected to harassment by the respondent on the grounds of race contrary to Section 14A of the Employment Equality Acts. The Complainant also claims that he was subjected to victimization contrary to Section 74(2) of the Acts.

2. Background

2.1 The complainant referred the present complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 6th May, 2015. In accordance with her powers under Section 75 of the Employment Equality Acts, the Director General delegated the case on 21st March, 2017 to me, Enda Murphy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts. This is the date I commenced my investigation. A written submission was received from the complainant on 1st November, 2016 and from the respondent on 2nd May, 2017. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 3rd May, 2017.

2.2 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 the Complainant's case

3.1 The complainant, who is a Romanian national, commenced employment with the respondent as a Pizza Chef at its take-away restaurant on 13th December, 2013. The complainant’s employment with the respondent terminated on 24th January, 2015 when his employment transferred to another entity following a transfer of undertakings. The complainant was tasked with the making of pizzas and reported to the Store Manager, Mr. A. The complainant submits that on a daily basis he worked alongside a number of other employees both Irish and non-Irish nationals.

3.2 The complainant claims that he was subjected to harassment by the respondent contrary to Section 14A of the Acts on the grounds of his race in relation to the following matters:

· On Monday, 9th June, 2014, Mr. A texted the complainant regarding a work request and the content of this message read: “Morning Gypsy I need you to work from 5-10 tomorrow”. The complainant submits that the term “Gypsy” was regularly used by Mr. A to describe the complainant and was used in all of his interactions with the complainant both in private and in the presence of his work colleagues. The complainant submits that this description refers to his nationality and is a derogatory term which was embarrassing and he believes that Mr. A used the term to demean and humiliate him.

· On the 12th July, 2014 at 16:03, the complainant received a text message from Mr. A detailing instructions for the running of the restaurant. In this text message Mr. A describes the complainant as “Danni … (AKA GYPSY) is running the shift tonight … ”. Later in the same text message Mr. A appears to confirm the complainant’s description as “Gypsy” alongside the abbreviation “LOL”. The complainant submits that this description was deeply hurtful and refers to his Romanian nationality.

· On 2nd September, 2014, the complainant engaged in a text with Mr. A. The complainant was ill and could not continue in work and requested that he be allowed to leave work early. In the course of this conversation the complainant highlights his frustration at being treated differently to other staff as follows: “Why u do like this? … everybody go home without reason always and I’m not ok and you don’t want to agree this …”. Later in the text conversation on two separate occasions the complainant is described by Mr. A as “pussy” and “ya pussy”. The complainant submits that these were derogatory terms used by Mr. A to demean and insult him.

· On the 18th November, 2014, the complainant received a text message from Mr. A saying “Sup Gypsy”. The complainant responded to this message by text stating: “I problem can I ring u” and thereafter “I’m not I’m Romanian“. The complainant submits that he was extremely upset by the continued use of the term “Gypsy” to describe him by Mr. A. The complainant submits that during this time he repeatedly raised the issue with Mr. A and Mr. B (Company Director) and requested that such derogatory terms not be used to describe him. The complainant submits, however, that Mr. A persisted in using such terms despite his complaints about the matter.

· On the 19th November, 2014, the complainant engaged in a conversation with Mr. A by text message. In this conversation Mr. A responded to the complainant in the following manner “Yea Romanian Gypsy”. The complainant submits that he felt insulted by this text.

· On the 5th January, 2015, the complainant submits that Mr. A came up to him in the presence of other staff members and asked him if it was raining outside. The complainant responded to Mr. A that it was raining and asked why he had enquired. The complainant submits that Mr. A responded “cos you smell like a dog” and that he called him “pussy boy” thereafter.

3.3 The complainant also claims that the he was subjected to victimization by the Respondent contrary to Section 74(2) of the Acts. The complainant submits that he informed the respondent in early December, 2014 of his intention to refer a complaint to the Equality Tribunal about the harassment if Mr. A did not desist from treating him in such a
manner. The complainant submits that he started to take contemporaneous notes of the incidents of harassment at that juncture to make a record of his treatment by Mr. A. The complainant submits that he had regularly worked between 40 to 60 hours per week up to that juncture but his hours were reduced to between 10 and 15 hours per week after he informed the respondent of his intention to refer a complaint to the Equality Tribunal in relation to the alleged harassment.

4. Summary of the Respondent’s case

4.1 The respondent did not attend the oral hearing to give evidence in relation to the matter. However, the respondent’s legal representative forwarded a written statement on behalf of Mr. B, Company Director, in relation to the matter which was received by the Commission on the 2nd May, 2017 (i.e. the day prior to the oral hearing). In this statement, Mr. B, submits that the respondent was the owner and franchisee of the business and that the sale of the business was completed in or around December, 2014.

4.2 The respondent submits that Mr. A, Store Manager, was an employee of the company and was not a Company Director or shareholder. The respondent submits that at some point in 2014 the complainant approached him to complain about Mr. A’s behaviour towards him. In particular, the complainant was complaining about Mr. A using derogatory terms for him. The respondent submits that he immediately spoke to Mr. A and told him that this had to come to an end. The respondent submits that Mr. A informed him that he regarded these terms as being merely banter. The respondent submits that he told Mr. A that this was completely unacceptable and insisted that this behaviour end immediately. The respondent submits that he was extremely surprised to learn that this behaviour had been ongoing. The respondent submits that the company has policies in place which impressed upon all employees the necessity of not engaging in behaviour which was bullying or racist. The respondent submits that as far as he was aware this behaviour had come to an end once he spoke to Mr. A. The respondent rejects any suggestion that the complainant was treated in any way unfavourably by him or the Company or that he was discriminated against.

5. Conclusions of the Equality Officer/Adjudication Officer

Jurisdictional issue in relation to the Correct Respondent

5.1 In light of the transfer of undertakings that took place in relation to the complainant’s employment, I therefore need to be satisfied that the named respondent is the correct legal entity for the purposes of these proceedings and that I have jurisdiction to investigate the substantive claims of harassment and victimization against that entity. The complainant submits that he was employed by the named respondent in these proceedings from 13th December, 2013 until 24th January, 2015 when his employment was transferred to another entity following a transfer of undertakings. The complainant did not name the transferee as a party to the present proceedings.

5.2 In considering this issue I have taken cognizance of the Labour Court’s recommendation in the case of Grosvenor Cleaning Services Limited –v- SIPTU[1]. This case concerned a claim under the Organisation of Working Time Act 1997 that employees did not receive their annual leave entitlements in a particular leave year. It was argued by the transferor in that case that the cause of action for these breaches lay against the transferee. The Labour Court rejected this argument and found that where breaches of legislation occurred and “crystallised” when the employees were employed by the transferor (i.e. pre-transfer), that the liability for these breaches did not transfer to the transferee, but remained with the transferor. In applying this reasoning to the present case, I am satisfied that all of the alleged instances of harassment and victimization in the present complaint occurred during the complainant’s period of employment with the named respondent (i.e. the transferor). Accordingly, I am satisfied that the named respondent is the correct legal entity for the purposes of the present complaint and that I have jurisdiction to investigate the claims referred against that entity.

Jurisdictional issue in relation to time limits

5.3 I am also required to be satisfied that the alleged incidents of harassment and victimization occurred within the prescribed time limits provided for in Section 77 of the Acts. I note that the complainant has referred to a number of separate incidents of harassment which he claims occurred during his period of employment with the respondent. The first of these incidents of harassment is alleged to have occurred on the 9th June, 204 and the most recent incident occurred on 5th January, 2015. The complainant claims that the victimization (i.e. the reduction in his weekly working hours) occurred after he had informed Mr. A in early December, 2014 of his intention to refer a complaint to the Equality Tribunal if the alleged harassment did not cease. He claims that the victimization was ongoing thereafter until his employment was transferred to the transferor following the transfer of undertakings on 24th January, 2015. The present complaint was referred to the Equality Tribunal on the 6th May, 2015.

5.4 In considering the issue of whether the matters complained about constitute ongoing discrimination or a continuum of discrimination within the meaning of Section 77(5) of the Acts, I have taken cognisance of the Labour Court’s interpretation of that provision of the Acts in the case of County Cork VEC –v- Ann Hurley[2] case where it held that: “Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum ….. It is clear for the passage just quoted that in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit. There can be practical difficulties in applying that provision. There must be some reality in the claim that acts of victimisation actually occurred within the limitation period. Otherwise a complainant could revive a claim which had been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous, within the time limit”.

5.5 In applying this reasoning to the circumstances of the present case, I am satisfied that all of the alleged incidents of harassment and victimization are sufficiently connected so as to constitute a continuum within the meaning of Section 77(5) of the Acts. It is clear that the most recent occurrences of the alleged harassment and victimisation occurred within the six month time limit prior to the referral of the present complaint to the Tribunal. Accordingly, I find that the alleged incidents of harassment/victimisation comply with the relevant time limits provided for in Section 77 of the Acts.

Substantive issue

5.6 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.”

5.7 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 follows – “as between any 2 persons …. that they are of different race, colour, nationality or ethnic or national origins”.

5.8 The issues for consideration by me are (i) whether or not the Respondent subjected the complainant to harassment contrary to Section 14A of the Acts on the grounds of race and (ii) whether or not the respondent subjected the complainant to victimization contrary to Section 74(2) of the Acts. In reaching my decision I have taken into account all of the evidence, written and oral, submitted by the parties.

Harassment

5.9 The first issue that I must consider relates to the complainant’s claim that he was subjected to harassment contrary to Section 14A of the Acts. In relation to this, I need to consider three different aspects of the evidence:

(a) Whether the complainant has established on the balance of probability that he was harassed on the ground of his nationality. This includes an evaluation as to whether the events the complainant describes took place, and if so, were of sufficient significance to establish a prima facie case of harassment.

(b) Whether the respondent is vicariously liable for the harassment.

(c) Whether the respondent took reasonable action to prevent harassment occurring in the workplace. This includes considering the extent to which the respondent was aware of the complainant’s experiences, to enable it to deal with the complainant’s complaint of harassment, and if it was aware, whether it took appropriate action to enable it to rely on the defence.

5.10 “Harassment” is defined in Section 14A(7)(a) of the Acts as “any form of conduct related to any of the discriminatory grounds being conduct which … has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”. Section 14A(7)(b) further states that “such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material”.Section 14A(2) of the Acts states that it shall be a defence for an employer to prove that “the employer took such steps as are reasonably practicable … to prevent the person from harassing the victim or any class of persons including the victim”. In the case law that has developed on harassment, this is understood to include the development and implementation of a policy on dignity at work, bullying and harassment, and its implementation in accordance with the principles of natural justice and fair procedures.

5.11 In the present case, the complainant has adduced evidence in relation to the alleged comments and actions of Mr. A, Store Manager, towards him which he contends constitute harassment contrary to the Acts. The complainant gave very cogent and credible evidence in relation to several incidents where he claims that Mr. A used derogatory, humiliating and offensive terms and comments towards him including “Romanian Gypsy”, “Gypsy” and “Pussy”. The complainant also submitted screenshots of text messages exchanged between him and Mr. A which corroborate his evidence that the aforementioned derogatory terms were used towards him during the course of his employment. I have found the complainant to be a credible witness and I accept his uncontested evidence that he was, in fact, subjected to the alleged treatment on an ongoing basis at the hands of Mr. A during his period of employment. I have carefully considered the nature and content of the comments and behaviour attributed to Mr. A by the complainant and I am satisfied that that they constitute unlawful harassment on the grounds of his nationality in that they are undoubtedly offensive and humiliating to him as a Romanian national. Furthermore, I am satisfied that all of these incidents of harassment occurred in the course of the complainant’s employment at the hands of the Store Manager, Mr. A. It is clear that Section 14A(1) of the Acts fixes liability for any harassment of an employee in the workplace by a fellow employee with the employer. It follows therefore that the complainant has established a prima facie case of harassment contrary to Section 14A of the Acts.

5.12 Section 14A(2) of the Acts allow an employer a defence to a claim of harassment where the employer can show that it took steps as were reasonably practicable to prevent the employee from doing the act which is found to have constituted harassment or from doing in the course of his employment acts of that description. The Labour Court has in a number of determinations set out the minimum required of an employer to avail of the statutory defence. It has stated, inter alia, that it is essential for the respondent to show it had in place, at the time which the harassment occurred, a policy intended to prevent and deal with such conduct and that the policy was effectively communicated to the employee. In the case of An Employer –v- A Worker[4] the Labour Court held that: “In order to avoid liability it is essential for the Respondent to establish that it had in place, at the time at which the harassment occurred, arrangements intended to prevent and deal with the occurrence of such conduct. It is clear that no such arrangements were in place at the material time. Accordingly, the defence provided by S.14 (A)(2) of the Acts cannot avail the Respondent and it is therefore liable for the discrimination suffered by the Complainant”.

5.13 The complainant gave evidence that he was not aware as to whether or not the respondent had a written policy in place to deal with harassment in the workplace and that the existence of any such policy had not been brought to his attention by the respondent during his period of employment. The complainant contends that he attempted to bring the alleged harassment to the attention of the owner of the business and Company Director, Mr. B, on a number of different occasions but the situation was not addressed or resolved by the respondent. I note that Mr. B, in his written statement to the Commission, accepts that the complainant made a complaint to him about the harassment and contends that he raised this matter with the alleged harasser, Mr, A, and insisted to him that the behaviour should end. However, the respondent failed to attend the oral hearing and therefore, has not adduced any oral evidence to corroborate the contents of this written statement or to confirm if any meaningful investigation was conducted in relation to the alleged harassment. In the circumstances, I can attribute very little, if any, evidential weight to the assertions made by Mr. B in his written statement on this matter.

5.14 I have found the complainant to be a very credible witness and based on his uncontested evidence, I accept that the alleged harassment at the hands of Mr. A continued despite the fact that he made a number of complaints to the respondent about this treatment. Furthermore, I am satisfied that the respondent failed to take appropriate measures or put in place a proper process or procedures to address his complaint of harassment when this matter was brought to the attention of Mr. B. Accordingly, I find that the respondent cannot avail of the defence provided for in Section 14A (2) of the Acts and it is therefore liable for the harassment suffered by the complainant.

Victimisation

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

“victimization 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

….. ….. …..

(f) an employee having opposed by lawful means an act that is unlawful under this Act….

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

5.16 In the case of Tom Barrett v Department of Defence[5] the Labour Court set out the three components which must be present for a claim of victimization 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 instant case I must decide, in the first instance, whether or not the complainant took action that could be regarded as a “protected act”. The complainant has claimed that he was subjected to victimization by the respondent after he had informed Mr. A of his intention to refer a complaint to the Equality Tribunal about the harassment if Mr. A did not desist from treating him in such a manner. I therefore find that this fact satisfies the requirement outlined in (i) above.

5.17 In considering whether the complainant has satisfied parts (ii) and (iii) of the test outlined above, I have taken cognizance of the case of Roy Mackarel –v- Monaghan County Council[6] where the Labour Court held that: “Both the Act and the Directive provide that victimization occurs where a detriment is imposed on a worker‘as a reaction to’ a complaint or other protected act. The use of the expression ‘as a reaction to’ connotes that the making of a complaint, or other protected act, must be an influencing factor in the decision to impose the impugned detriment although it need not be the only or indeed the principal reason for the decision. It is, in the Court’s view, sufficient if the making of the complaint was an operative factor, in the sense of being anything other than a trivial influence, operating on the mind of the decision maker (see by analogy the dictum of Peter Gibson LJ in Wong v Igen Limited and Ors. [2005] IRLR 258 in relation to the degree of connection required between race and an impugned act or omission necessary to make out a claim of discrimination).”

5.18 The adverse treatment contended by the complainant in the present case relates to the reduction in his normal weekly working hours after he had informed the Store Manager, Mr. A, in early December, 2014 of his intention to refer a complaint to the Equality Tribunal if the alleged harassment did not cease. The complainant gave cogent and credible evidence that he normally worked between 40 and 60 hours per week up to that juncture but his hours were reduced to between 10 and 15 hours per week thereafter for the remaining period of his employment with the respondent after he raised this matter with Mr. A. The complainant’s oral evidence on this matter was corroborated by way of documentary evidence in the form of copies of pay slips which were submitted in support of his complaint.

5.19 As mentioned previously, I have found the complainant to be a credible witness and I accept his uncontested evidence that the alleged adverse treatment actually occurred and I therefore find that this satisfies the requirement outlined in (ii) above. I am also satisfied, based on the uncontested evidence of the complainant that the actions of Mr. A in terms of the reduction in his weekly working hours were in direct response to the complainant having indicated his intention to take a protected act within the meaning of section 74(2). Consequently, I find that the respondent victimized the complainant in terms of section 74(2) of the Acts in respect of this element of his complaint. Accordingly, I find that the complainant is entitled to succeed in respect of this element of his complaint.

6. Decision

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 was subjected to harassment by the respondent on the grounds of his race contrary to Section 14A of the Acts; and

(ii) The complainant was subjected to victimisation by the respondent contrary to Section 74(2) of the Acts.

6.2 It is well established that the redress ordered must be effective, proportionate and dissuasive. I therefore order, in accordance with my powers under Section 82 of the Acts that the respondent pays the complainant:

(i) the sum of €7,500 by way of compensation for the distress suffered and the effects of the harassment, and;

(ii) the sum of €5,000 in compensation for the effects of the victimisation.

This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.

______________

Enda Murphy

Equality Officer/Adjudication Officer

31st May, 2017

Footnotes

[1] DWT0440

[2] EDA1124

[3] EDA0917

[4] EDA0916

[5] EDA1017

[6] EDA1213