ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00007699

Parties:

Complaint(s):

Date of Adjudication Hearing: 11/01/2018

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

Summary of Complainant’s Case:

The case is referred under Section 77 of the Employment Equality Act, 1998.

The Complainant is employed in the Respondent since November 2007. He is originally from Pakistan and he is a member of the Muslim faith. He has over nine years’ service with the company. He is employed as a general assistant.

On the week commencing 2nd May 2016 the Complainant had just returned to work and was starting on a new department. He was working on the shop floor which is the same department as the other employee on the evening of 5th May 2016 there was an incident on the floor between the two colleagues.

The Complainant made a formal complaint through the company grievance procedure and the matter was investigated. The Complainant attended an investigation meeting on 24th June 2016. He received the outcome of the investigation into his grievance on 29th June 2016. He was informed that the conclusion by the investigating manager was that the Complainant had engaged in “Abusive, threatening and insubordinate behaviour towards management or the other staff” and based on this the decision was to send the matter forward to a disciplinary hearing. The Complainant was extremely distressed at the turn of events having articulated a grievance that he was being threatened and harassed in the workplace and he was now subject to the disciplinary process.

The Complainant believes he was purposely harassed on the night on three occasions, all of which were reported to the duty manager at the time.  The Complainant started work at 7:00pm that night. He was working on the cereal aisle and the other employee was packing by the fridge. The Complainant was approached by the other employee who was aggressive in his manner and said he wanted to talk and insisted that they meet outside to sort something out. The Complainant reported the incident to the duty manager and continued his work. The next incident occurred in between the swing doors of the warehouse. The Complainant was leaving the warehouse and the other employee was entering. The Complainant reported that the other employee continued to insist on meeting outside and was aggressive. The duty manager was coming out of the warehouse so the Complainant reported the incident to him. The other employee threatened he would kill the Complainant and the Complainant reported this to the duty Manager. The Duty Manager confirmed in his statement that the other employee was quite aggressive and that he was standing so close to the Complainant. The Duty Manager in his statement confirmed he asked the other employee what was going on and that the other employee denied that anything happened when asked. The next incident happened as the Complainant was packing the aisle. The other employee came up behind the Complainant with a product in his hand and pretended to be packing. He whispered into the Complainant’s ear that he would kill the Complainant if he went back to the manager again. His presence was threatening. Again, the Complainant reported the incident to management. The Duty Manager was speaking with the other employee on the mineral aisle when the Complainant approached to confirm whether the manager was actually dealing with the incidents reported. In the presence of the Duty Manager, the other employee states “oh now you want to complain to the manager and you want to cry, you are a pussy”. There was a level of frustration at this point and the Complainant was greatly offended by the comments and was trying to avoid further conflict and confrontation at work. He told the other employee that he was at work and not in a position to sort the matter out however he was willing to meet outside if the other employee so wished in anticipation of resolving the matter.

The Complainant asked to go home as he was feeling stressed and abused by the other employee. The Complainant was given permission to go home. The other employee confirmed in his interview that he was told to stay away from the Complainant by the manager and the other employee confirmed that he did not do as the manager requested and he continued to harass the Complainant. He also confirmed that he did call the Complainant “a pussy and a cry baby”.

As a direct result of the incident the Complainant was absent for a period of sick leave due to work related stress. He was certified by his GP from 5th May – 23rd June 2016. He provided a letter certifying him fit to attend work related meetings to try and promote recovery dated 15th June 2016.

He attended a meeting with the personnel manager of the store regarding the non-payment of his sick pay and was accompanied by his union official. It was requested at that time that the company consider a change of department so that there would be no further conflict and that his sick pay be paid to him. It was also requested that given the impact of the destructive behaviour towards the Complainant, given that he had highlighted his anxieties, that he be provided with counselling by the company. The company agreed to this request although he remained in the same department with other employee and was not paid his sick pay.

On 1st July the Complainant attended the disciplinary hearing. The outcome of the disciplinary hearing resulted in a written warning confirmed by letter dated 2nd August 2016. The union appealed the decision on behalf of the Complainant. The outcome of the appeal resulted in the warning being reduced to a verbal warning. The union highlighted concerns that the two individuals continued to work in close proximity on the same department and at the same rostered times.

On 8th September 2016 The Complainant reported to the store manager that he was still being intimidated by the other employee and he was continuously telling him to “go home”. He was told by the manager that it was very hard to prove intimidation by staring. The other employee was interviewed by the Manager also on 8th September 2016. The other employee confirmed that he did say something to the Complainant but he believed it was irrelevant as they were outside work, but in their employers’ uniform.

On 28th September both the Complainant and the other employee were working the same shift in the center aisle and the other employee started staring at the Complainant and calling him “a rat”. The Complainant saw one of the duty managers and a colleague coming towards him. He stayed there because he wanted the Manager to hear what the other employee was saying. The colleague asked the other employee “what did you call him, a rat.?” The colleague was upset and repeatedly said “Did you call him a rat?” The Manager believed it was aggressive from the colleague and the other employee replied “a rat. It’s none of your business”. To those of Muslim faith being called a rat is derogatory and a slur on an individual given the Muslim religious culture. This was an extremely heated encounter with both the Complainant and the colleague left feeling racially abused. The Manager had a conversation with both the Complainant and the colleague following the incident. He confirmed that he had observed the staring behaviour of other employee and reassured the parties that he would deal with it.

There was a further incident on 29th September. In a statement provided by the duty manager, he confirms that while the Complainant was packing his aisle he observed the other employee passing a comment to the Complainant as the Complainant walked past him on the aisle. He also confirms that he observed the other employee staring at the Complainant and he asked both of them what was going on. The other employee did not respond but The Complainant responded by saying “the man he is provoking me and staring at me”. The manager asked the other employee to not do anything silly as he did not want any trouble. The other employee avoided the duty manager but The Duty Manager repeated his request to ensure that the other employee heard him clearly. Later that night the Complainant went to pack and tidy. The Duty Manager followed and saw the parties standing face to face. The Duty Manager separated the parties and warned both that if there was a further incident that they would be sent home. The other employee continued to stare and intimidate the Complainant and completely ignored the duty manager and kept saying “it’s sorted”. This is confirmed by the duty manager’s statement and a statement from a colleague.

At 10:00pm as The Complainant was leaving the store he reported to the duty manager that the other employee was asking for the Complainant’s phone number as he wanted to sort it out in the car park after he finished work. The Duty Manager told the Complainant that he would speak to the store manager the following day. He confirmed in his statement that he believed that the other employee’s behaviour was aggressive and unacceptable.

On 30th September the store manager, the Manager, met with the Complainant and the colleague following the events of the previous two nights. The colleague confirmed that he witnessed the other employee staring / locking his eyes on The Complainant. He confirmed that he called both the Complainant and the colleague rats. He also confirmed during the meeting that he believed that the other employee had a problem with him as the name calling had happened previously “ye are all the same” and now he has called both men rats. the colleague confirmed that he was upset as a result. He confirmed that being called a rat was hatred towards him and also that the other employee was trying to provoke him. He confirmed that he was also aware that other employee had asked the other female where her husband is from and when she answered Nepal he replied that “she is the other one that is into coloured people”. The colleague also outlined that the other employee’s behaviour towards him makes him feel uncomfortable and he is constantly staring.

The store manager, later that day convened a meeting between the Complainant and the other employee to try and resolve the difficulties the parties were experiencing. Both men shook hands and the Store Manager told them that if there were further issues it would be viewed very seriously. The following day the other employee and the female colleague were in the canteen. The Complainant came in to have his break. He did not engage with the parties but later that day the female colleague told the Complainant that the other employee had made derogatory sexual comments about him. The Complainant was extremely upset as the meeting with the store manager had just concluded the day previously.

The remarks as outlined are considered unacceptable and described in the Complainant’s religious faith as being the “worst sin”. The Quran (7:80-84) . . . for ye practice your lusts on men in preference to women: ye are indeed a people transgressing beyond bounds . . . and we rained down on them a shower (of brimstone).

Given the nature of the comments and impact on the Complainant, he had no alternative, given the insincerity of the other employee following the meeting of 30th September but to raise the issues that spanned over a number of months from May to October 2016, particularly given the statement provided on 1st October by the female colleague.

The outcome of the grievance raised was again that the company could not substantiate the allegations The Complainant had raised. The Complainant was extremely disappointed by this outcome as he believed that he had provided adequate evidence to substantiate the inappropriate treatment he had experienced by his work colleague. He appealed the decision. The appeal was outlined by way of letter from Mandate on 16th December 2016.

The outcome of the appeal is outlined in a letter dated 6th April but received by Mandate on 18th April 2017. All of the appeal grounds were rejected by the company however they did concede that he was entitled to be paid the outstanding sick pay due albeit almost one year later. The matter was referred to the Workplace Relations Commission for adjudication.

Section 32(1) of the Act states: “If, at a place where C is employed (in this section referred to as “the workplace”) or the otherwise in the course of C’s employment, the other individual (E) harasses C by reference to the relevant characteristic of C and-

1. C and E are both employed at that place or by the same employer”.

Then, for the purpose of this Act, the harassment constitutes discrimination by C’s employer, in relation to C’s conditions of employment, on whichever discriminatory grounds is relevant to persons having the same relevant characteristics as C.

Section 32(5) states” For the purpose of this Act, any act or conduct of E (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or the other material) constitutes harassment of C by E if the action or the other conduct is un-welcome to C and could be reasonably be regarded in relation to the relevant characteristics of C as offensive, humiliating or intimidating to C.”

The Complainant was discriminated on the grounds of his religious beliefs and on the grounds of his race and we believe that the employer failed to act in a reasonable time to prevent the Complainant from suffering from further harassment.

The Complainant raised a grievance with his employer following the incidents on the evening of 5th May 2016 where he was continuously harassed by a colleague and called names “pussy” a name that the Complainant believed referred to him as weak and feminine. As a result of raising the grievance he suffered the punishment of a warning following on from the disciplinary hearing. He was denied his sick pay and when he requested to be removed from the same department as the other employee to avoid the other conflict, the request was refused and both parties continued to work the same shifts.

This was a crucial point in the sequence of events, as had the parties been separated at work further conflict could have been avoided.

Numerous further incidents occurred and yet the company failed to protect the Complainant from further harassment. The Complainant informed the company that he was suffering both mentally from the constant harassment and that he and his family had suffered hardship as a result of being denied his sick pay. The union requested that the company deal with the stress and provide counselling for the Complainant which was agreed yet the company failed to make provisions to protect the Complainant from the continuous harassment he endured while at work.

It was evident from the company investigation into the allegations made by the Complainant and the colleague regarding being called a “rat” that the term was one of a derogatory nature and that both parties were extremely affected and offended by the incident. In the colleagues’ interview he expressed how he believed the other employee had an attitude towards people of colour and this is evident given the Complainant, his colleague and the husband of an the other female colleague are all of Asian origin, as is the duty manager.

The Complainant expressed how this continuous harassment was affecting his “Center” and “Core Being” and that he was feeling humiliated.

Given that the company provided counselling they accepted that the Complainant was affected by the situation.

The company ignored the statement from the female colleague regarding the incident in the canteen where she was asked by the other employee a sexual question. The outcome of the investigation was that the conversation in the canteen was between the two parties and could not be substantiated because the other employee had denied the incident. It was the unions position at the appeal hearing that the female colleague had no connection to the Complainant, in fact she was a new employee that had no knowledge of previous events between the parties and given the aggressive behaviour that was acknowledged by management, on the balance of probabilities, the remarks were passed and the female colleague had nothing to gain by becoming involved. The female colleague provided a written statement and when interviewed confirmed the incident.  

The Quran is the central religious text of Islam, which Muslims consider the verbatim word of God and the final divine revelation. This particular incident given the reference in the Quran has a considerable impact on the Complainant. These comments were the final straw for him. Up to this point he had been called “a pussy”, “a rat”, and told to “go home” which he believed was Pakistan. He felt completely demeaned by the comments.

The company failed to recognise the ongoing harassment and the impact it has on the Complainant over the number of months. In the grievance outcome dated 4th December 2016 it states that due to the lack of facts and evidence and the fact it is more dependent on incidents in the past that have been dealt with in line with company policies the above mentioned, grievance grounds cannot be substantiated.

The company failed to take any action following this incident on 1st October and the parties remained on the same department bearing in mind the store manager had told the parties on 30th September that if there were any further incidents it would be considered extremely seriously. It was only in mid-December, approximately ten weeks later, that the company moved the parties to opposite shifts and day’s off.

From the first incident on 5th May 2016, to the last incident on 1st October 2016, the company failed to take action to protect the Complainant. In December 2016 the parties were given opposite shifts and days off.    

The company failed to implement their own Dignity in the Workplace Policy. The policy states that “every employee is treated in an equal and respectable manner in an environment that supports dignity, productivity, self-esteem and is free from any form of harassment”. This policy applies to all management and staff who work for the Respondent. The policy has a number of commitments, two of these commitments are as follows:

Ensure that all staff are aware that bullying or harassment of any sort will not be condoned or tolerated by the company. Any employee who is found guilty of harassment will be subject to disciplinary action up to and including dismissal in line with company policy and under the heading of serious misconduct.

Ensure that both management and staff are aware of their responsibilities with regard to combating prejudice, harassment and undignified behaviour within the workplace.

It continues to state that we all must comply with the dignity at work policy and take reasonable measures to ensure that bullying and harassment does not occur at work. Those in management must be seen as the role models of this policy. The policy outlines the meaning of bullying and harassment and provides examples of what constitutes bullying. Some of the examples are as follows:

Visible aggression, threats, shouting of abuse or obscenities.

Making persistent negative attacks, either physical or verbal.

Constant humiliation or hurtful ridicule belittling the others and/or influencing the other to behave in this way.

Subjecting someone to public humiliation and ridicule.

The policy also describes harassment within the Employment Equality Acts under the nine grounds.

The grounds relevant to the Complainant are:

Religion – Religious harassment is treatment which causes the recipient to feel upset, embarrassed or offended as a result of their religion or their religious beliefs.

Race – Racial harassment is behaviour which causes the recipient to feel threatened, disadvantaged, or humiliated because of their race, colour, nationality or ethnic origin.

The policy outlines harassment being any unwanted conduct related to any of the nine grounds covered by the Acts and which has the purpose of affect of violating a person’s dignity and creating an intimidating, hostile, degrading humiliating or offensive environment for the person. The unwanted conduct may consist of acts, requests, spoken words, gestures, or the production display or circulation of written words, pictures or the other material.

The policy also articulates the affects of harassment and states that harassment is a destructive behaviour which is damaging to individuals and teams in the workplace and is therefore damaging to the employees and employers. It can breed negative and unacceptable behaviour in the workplace which creates barriers to people achieving their potential.

A negative work environment like this could lead to:

Stress, anxiety, fear which can result in illness.

Reduction in personal and company performance leading to low motivation and commitment.

High absenteeism, low morale, reduced job satisfaction and a high staff turnover.

The Complainant raised his issues and concerns in line with the company procedures. The Complainant will provide evidence that the company failed to protect him from harassment in the workplace on the grounds of race and religion.

In conclusion we respectfully request that you find in favour of the Complainant’s claim in that he was discriminated against on the grounds of race and religion and contrary to the Employment Equality Acts 1998-2004. The Complainant is seeking compensation for the distress caused to him by his employer.

Summary of Respondent’s Case:

The Complainant alleges he was discriminated against on the grounds of Race and Religion by the Respondent.

The Complainant further alleges that he was subjected to victimisation and harassment in respect of certain incidents. Notwithstanding the Respondent’s rejection of these numerous allegations, the Respondent submits that the Complainant has not disclosed any prima facie case of discrimination under the Employment Equality Acts 1998 to 2015. In particular, he Complainant has not identified any comparator in relation to whom he was less favourably treated. It is the Respondent’s position that The Complainant’s case lacks any foundation or validity and, accordingly, must fail.

Moreover, the complaint in this case is manifestly frivolous, vexatious and / or misconceived within the meaning of section 77A(1) of the Employment Equality Acts 1998 to 2015 and should be dismissed.

The Complainant commenced employment with the Respondent on 5th of November 2007 in the role of Customer Assistant.

Previous Warnings:

Although these warnings have expired, the Respondent seeks to refer to them to evidence a pattern of behaviour on the part of the Complainant which is wholly relevant to the defence of the within claims.

In December 2012, the Complainant was issued with a Written Warning for aggressive behaviour towards the other colleague.

In July 2014, the Complainant was issued with a Verbal Warning for breaching the absence policy and not following correct procedures.

In October 2014, the Complainant was issued with a Final Written Warning for abuse of the privilege card scheme and his card was revoked for 6 months.

In February 2016, the Complainant was suspended pending investigation following alleged falsification of documentation. Following an investigation, the Complainant was issued with a Final Written Warning for serious misconduct in May 2016, to stay on file for a period of 12 months. This was appealed by the Complainant but later upheld.

The Complainant returned to work following his suspension on 2nd May 2016. Immediately on his return the Complainant was involved in an altercation with a colleague, on 5th May 2016.

Following this altercation, the Complainant absented himself from work citing work-related stress from 6 May 2016 until 23rd June 2016. Counselling sessions were organised for the Complainant and he attended four sessions. After a request by the Complainant for more sessions, a further four sessions were approved. Despite having been previously sanctioned in relation to his failure to follow the correct absence notification procedures the Complainant again failed to follow the correct absence notification procedure and was therefore not paid for four weeks of his absence.

When the Complainant returned from sick leave an investigation was carried out in relation to the incident between the Complainant and the other employee. Minutes of the meeting with the Complainant and the Deputy Manager at that time were taken and submitted. It should be noted and will again be referenced later in the submission that nowhere in these minutes does the Complainant reference any racial abuse or abuse based on his religious beliefs. He refers to aggressive behaviour and bad language in general but the language does not allude to any form of discrimination.

After a thorough investigation it was found that both the Complainant and the other employee had acted inappropriately and both were issued with Written Warnings for breaching the Dignity at Work policy. (More specifically, “abusive, threatening, insubordinate behaviour towards management or staff.”) Again, it should be noted that the Complainant had been issued with a warning previously in relation to aggressive behaviour towards a colleague in December 2012. The Complainant had also received training in relation to Dignity at Work in March 2014.

The Complainant subsequently appealed this written warning and it was reduced to a verbal warning on appeal as it was felt that on that occasion the other employee was the instigator.

After this there continued to be incidents between the Complainant and the other employee. All incidents were investigated however the outcomes were consistently inconclusive due to lack of evidence.

It should also be noted that the other employee was also disciplined in relation to altercations between him and the Complainant and there was absolutely no difference in the treatment applied to both individuals.

The other issue arose in September 2016 whereby the Complainant alleged that the other employee was staring at him and that he felt intimidated as a result. Nothing came of these allegations as there was a lack of evidence or substantiating witness reports.

The events which immediately preceded the matter being referred to the WRC occurred on 28th and 29th September 2016.

As per the various witness statements and meeting minutes were provided, the Complainant alleged that the other employee called himself and the other employee “rats” and there were also allegations that the other employee was staring at the Complainant. The matter was investigated, and a number of statements gathered however the results were inconclusive as there was lack of witnesses to corroborate either version of events.

In a futile attempt to resolve the matter informally in light of the ongoing and constant issues between the two individuals, the Store Manager called both the Complainant and the other employee into the office. At this meeting both the other employee and The Complainant agreed to shake hands and move on.

On 2 November 2016 however, the Complainant raised a grievance against the other employee and alleged there were still issues between them and he felt the Respondent was not protecting him. In his complaint the Complainant alleged that the other employee would stand outside the door when the Complainant had finished his shift and stare at him aggressively. The Complainant alleged that the other employee told him he wanted to “sort him out”. The Complainant also alleged that the other employee had called him a “rat” and stated he wanted to meet the Complainant in town and “deal with him”. The Complainant also alleges that on one occasion when he entered the canteen for his break the other employee muttered an explicit comment to a colleague, in Polish. The Complainant included a statement from the colleague confirming that the other employee had made an explicit comment about the Complainant to her in the canteen. Nowhere in his carefully typed grievance does the Complainant make any reference whatsoever to his subsequent assertion that this alleged behaviour by the other employee and alleged failure to protect him by the Respondent is linked to his race or religion. He refers only to stress at work. None of the alleged comments he refers to have a racial or religious undertone.

On 18 November 2016, a Grievance meeting was chaired by the store Deputy Manager, with the Personnel Manager, as note taker, and the Complainant and his Mandate representative, in attendance.

On 21 November, an investigation meeting was chaired by X with Y as note taker, and the other employee and his representative were in attendance.

A detailed Grievance Outcome was issued on 14 December 2016. He issued separate findings in relation to each individual grievance raised. Overall it was found that the allegations made by the Complainant could not be substantiated and were largely based on hearsay with a lack of substantiating evidence. It was also decided to place the Complainant and the other employee on alternative shifts where possible so that their encounters could be minimised.

On 16 December The Complainant appealed this Grievance Outcome through his representative Ms Wall.

On 10 March 2017, an Appeal meeting was held. An outcome to the Appeal was issued on 6 April 2017. The majority of the original outcome was upheld; however it was clarified that the Complainant would receive the sick pay he had not received when he was out with work related stress. This was despite not complying with the absence notification procedure.

The Complainant then referred the matter to the WRC.

The burden of proof rests with the Complainant in the first instance to show that he was discriminated against on the grounds of race and religion and that he was harassed and/or victimised within the meaning of the Employment Equality Acts 1998-2015 as alleged and it is the Respondent’s position that the Complainant has not established a prima facie case of discrimination, harassment or victimisation in respect of the incidents referred to which would allow that burden of proof to be shifted to the Respondent.

The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis

in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated:

“The first requirement is that The Complainant 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 those 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”.

In Margetts v Graham Anthony & Company Limited, EDA038,the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows:

“The mere fact that The Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce the other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

Notwithstanding that, the particular circumstances of each case are different, the respondent submits that it is only when the Complainant has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.

In this instance the Respondent submits that the Complainant has failed to establish any facts on the balance of probabilities from which it may be presumed that he was treated unequally. In fact, the Complainant’s submission is extremely vague and lacks detail around specific dates, references or appendices. The Adjudicator’s attention is drawn in particular to:

the lack of precise explanations of what is being alleged or how they are linked to his race or religion

the fact that dates and times are missing from many of the alleged incidents

the fact that the Complainant makes assertions that are not backed up by any facts or corroboratory evidence.

In the alternative, if the Adjudicator finds that the Complainant has discharged the evidential burden required to raise a presumption of discrimination, the Respondent respectfully submits that the Complainant has failed to prove that he has been treated any less favourably than the other person is, has or would be treated in a comparable situation on the ground specified in section 6(2)(c) or section 6(2)(h) of the Employment Equality Acts 1998to 2015 and, consequently, the claim must fail. The Respondent further submits that the Complainant has failed to show that he was victimised or harassed within the meaning of the Employment Equality Acts 1998 to 2015.

The direct discrimination as alleged consists of two elements. The first is the less favourable treatment of the Complainant and the second is the existence of racial and religious grounds for such treatment. Both elements must be satisfied for a claim of discrimination on the grounds of race and religion to succeed. It is respectfully submitted by the Respondent that the Complainant has provided no evidence of less favourable treatment on either of the grounds put forward. These grounds were never once mentioned in the minutes of any of the several meetings held with the Respondent and appear only in the context of the claim referred to the WRC.

The Respondent’s workforce is comprised of a very large proportion of non-national employees of various different nationalities as set out below yet The Complainant has not identified any the other employee of a different race, colour, nationality or ethnic or national origin or religion in respect of whom he was or has been treated less favourably. The varied racial, and by extension religious profile of the Respondent’s store workforce is, the Respondent would contend evidence of the complete lack of racism in their work practices. It should be noted also that the other employee has not had any issues with any the other work colleagues of similar race to the Complainant (Pakistani) or of any the other race and the issues arose only as between the other employee and the Complainant. Details of ten nationalities employed and the numbers from each were supplied.

For all of these reasons, the Respondent contends that this claim is completely unfounded and must fail. Furthermore, the Respondent respectfully submits that this claim is manifestly frivolous, vexatious or misconceived within the meaning of section 77A(1) of the Employment Equality Acts 1998to 2008 and should be dismissed.

In S v A Named Organisation, the EO rejected the Complainant’s claim of sexual harassment and found that the employer had responded properly to the complaints made by her. The decision sets out a summary of what the law requires from an employer once a complaint has been made to it:

“I am satisfied that the internal investigation carried out by the investigator appointed by the respondent was conducted in an appropriate manner. The formal process was agreed by the parties to the complaint and the investigator conducted his investigation to the best of his ability thereafter. In terms of a complaint of this nature the respondent organisation should have personnel who are trained in the Employment Equality legislation and in the process to be followed in carrying out such an investigation. Ideally two persons should conduct the investigation. There should be a formally agreed procedure for the investigation and a timeframe by which the investigation should be completed. Where possible witnesses should be consulted but the onus should be on the parties to the complaint to have these witnesses make a written statement and/or be available for questioning by the investigators at an agreed time and venue. This would form part of the agreed process. There should also be a mechanism for appealing the findings of an internal investigation to a more senior level appeal body in the respondent organisation.”

In O’Sullivan v Volkswagan Bank GMBH Ireland, although the EO found that the policy of the employer did not confirm strictly with the Code of Practice (as no designated contact personnel were provided in the policy and personnel were not trained to deal with incidents of harassment), the shortcomings were not significant and the employer had ensured that the appropriate training was received after the Complainant had ceased employment. The company was, and remains to be, very committed to protecting the welfare and well-being of all employees. The company conducted the grievance investigation in line with its own policies and procedures, incorporating all the core elements of the Code of Practice, and as agreed with the union.

In March 2014, all employees received Training in the Dignity at Work policy and procedures and was signed and acknowledged by the Complainant on 18 March 2014, confirming his attendance to the training course and his understanding of its contents and responsibilities and the documents attached. Further to this the Complainant had previously received a warning for breaching the Dignity at Work policy after behaving aggressively towards a colleague and was then reminded of the policies and procedures involved in a Dignity at Work procedure.

It is important to note that at all grievances raised by the Complainant were and will continue to be taken seriously. In respect of the final grievance of 2nd November 2016 even after the subsequent investigation, and appeal of the investigation proved the allegations could not be upheld, the Respondent at no point made a finding that the allegations were made in bad faith.

The Complainant was at all times informed of his right to representation, kept informed of updates in the investigations, made aware of the alleged perpetrators responses to his allegations, given a fair and impartial decision and was allowed the right to appeal the outcome of the investigation to an independent person unconnected to the initial investigation.

n conclusion, based on the foregoing arguments, the Respondent respectfully requests that the Officer find that the Complainant’s claim under the Employment Equality Acts 1998-2015, fails.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

The Complainant alleged he had been discriminated against due to his race, religion and he was victimised by the Respondent by them failing to act in a reasonable time to prevent the Complainant suffering further harassment. In order to establish discrimination a direct comparison must be made to another person of a different race or religion.

Section 28 of the Act requires that a person who is claiming discrimination must identify a person who

28. d “in relation to the religion ground C and D have different beliefs or C has a religious belief and C does not, or vice versa”

And

28.g. States” in relation to the grounds of race, C and D differ as to race, colour, nationality or ethnic or natural origins or any combinations of these factors”.

It is slightly unclear from the Complainants case what exactly he is alleging is the discrimination.

He does not state whether he was discriminated against the “other” employee who he alleges made discriminatory remarks and he was not “protected” by the Company when these remarks were made or whether he is alleging that he was discriminated against by the disciplinary action taken against him, or both.

He mentioned constantly a “Polish National” in his submission and evidence but never stated or inferred the race or religion of the “Polish National”. By all means the “Polish National” and the Complainant are of different Nationalities. He must establish that the Person of the other race and/or religion were treated more favourably than he was. This is the key issue and whether the Respondent “contributed” to the alleged discrimination by its actions, lack of action or delay in acting.

The statements attributed to the “Polish National” are not in themselves statements of a race or religious nature. The Complainant, by his own race and religion, took offence to the remarks and understandably so. None of the remarks quoted as being stated by the “Polish National” to the Complainant were specifically of a race or religious nature. The statements attributed to the “Polish National” are unsavoury but could have been said to a person of any race or religion without them being specific to that race or religion. It is how the Complainant interpreted them from his race and religion perspective which caused the offence to him.

There was obviously an interpersonal conflict, for whatever reason, between the Complainant and the “Polish National”.

The Respondent intervened at all times when it became aware of conflicts, but was never able to establish or substantiate, any race or religious statements by the “Polish National” against the Complainant. The Managers took a very active role in trying to deal with the conflict and to resolve it, and on some occasions, felt through the actions of the Complainant and the “Polish National” by them shaking hands, allowing the Complainant to go home on one occasion, providing counselling etc. that the issues had been resolved. It also took action to investigate any allegations brought to its attention, including the use of the disciplinary process against both people. It is hard to see what else the Respondent could have done to intervene, investigate and try resolve the issues and in the absence of any specific race or religious comments or formal grievance that they could substantiate it would seem they had no other action which they could have taken. The Respondent separated the two parties on separate shifts but on one occasion due to an overtime situation they met, unfortunately, on the same shift. The action of the Respondent in this instance was both decisive and proportional to the situation. It is also impossible to prove intimidation by “staring” as alleged.

Both parties played a role in the conflict and the Complainants prior disciplinary history, while not key to this decision, cannot be ignored.

It is also hard to see what the Respondent did that was discriminatory to the Complainant. If the case is that he was penalised by the Respondent by receiving a warning, that issue was dealt with through the internal disciplinary process and included an appeal by the Complainant where the written warning was reduced to a verbal warning. The Complainant received the warning for “Abusive, threatening and insubordinate behaviour towards management or other staff”. This was not refuted by the Complainant in his evidence or submission so therefore the ground that he was discriminated on by the Respondent by giving him a warning does not stack up.

Some comments attributed to the “Polish National” which were allegedly made to a third party, but denied by the Complainant, were of a discriminatory nature. However, the Respondent investigated these allegations fully and could not establish any independent witness to the allegations. Both people were entitled to fair process in this investigation, not just the Complainant.

It is also important that the Respondent acted by providing Counselling sessions to the Complainant.

Some of the incidents which the Complainant states were aggressive towards him by the “Polish National” had no witnesses so were hard to substantiate once denied by the “Polish National”.

It is also critical to note that the Complainant seems to have never raised a formal grievance internally that he was being harassed by the “Polish National” on the grounds of race and religion. Given the Respondents response to the issues it would appear that, if the Complainant had done so, it would have been dealt with swiftly.

My conclusion and decision having considered all the evidence is that the Complainant has not established what actual discrimination to a person of another religion or race took place, if any, and that the Respondent when issues were brought to its attention, did everything a reasonable employer could do in a very timely manner , both within the investigation and disciplinary processes and by the immediate and detailed actions by local management to investigate any issues brought to their attention and address them immediately in a fair way. No evidence was actually specifically proffered, other than there was a delay agreeing to a request to change departments, by the Complainant as to when the Respondent “failed to act in a reasonable time” as alleged other than also the suggested delay in changing the two party’s shifts. While these actions could have been taken quicker it has to be taken into the context of the Respondents numerous attempts informally and informally to investigate and resolve the issues between the two staff. In itself, the suggested delay in the Respondent acting to change the two staff’s departments is not significant enough to get the Complainant across the line to prove discrimination by the Respondent. The claim fails accordingly.

Dated:   17th July 2018

Workplace Relations Commission Adjudication Officer: Peter O'Brien

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