Complainant

Respondent

Anonymised Parties

A network engineer

A telecoms & network solutions company.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00019790-001

14/06/2018

The Complainant is a self-employed network engineer engaged by an agency to carry out work for a company who are a sub-contractor to the main contractor who provides a managed IT service for the client who is the Respondent in this case.

The Complainant started working in the client’s premises on 05/02/2018 and finished on 05/03/2018.

This complaint, referred under section 21 of the Equal Status Act, 2000 was lodged with the Workplace Relations Commission on 14/06/2018.

For the sake of anonymity, I will refer to the various companies as follows:

Respondent as XXX: Main contractor as YYY: Sub-contractor as ZZZ: Agency as TTT.

Facilities Management Company as MMM.

The Complainant has requested that his name is redacted in the Decision and I have agreed to this request. The name of the Respondent will also be redacted.

This is a letter written by the Complainant to the Workplace Relations Commission outlining his complaint against the Respondent.

Dear Sir / Madam

This is an initial statement regarding the incident that happened at XXX. This explains certain aspects of the incident and shows how at every step XXX showed resentment and unwillingness to resolve the matter and behaved in a very unprofessional, discriminatory and racist manner.   Where shall I start? When we speak about the fact that the world has changed for the better? And you will be treated equally no matter where you are, no matter who you are and no matter who you work for, seems like an understatement in the case of XXX.

As you have seen the notes in my complaint letter that I started working at XXX on 5th February 2018. On 21st February 2018 I was given an XXX ID badge for building access and it had a Hitler moustache on it. Subsequently, I complained to my manager and matter was taken to the head of security guy who had initially handed out the badge to my manager. I personally think this head of security guy is responsible for this (I think his name is but I am not sure). When I asked for an investigation, nothing was done about it and there was no outcome days after the incident. When all they had to do was to check on the system who printed the badge? If guy printing the badge didn’t do it, then who handed out the badge? Nothing like that was done. In fact I was told to keep my head down and keep working as normal like nothing had happened. I decided to leave the job on 4th March 2018. I was asked by TTT partners that I can go back to work but no need to talk about the incident.

My question is how could I go back where I was discriminated and just keep working.   These people just need to ask themselves if someone drew this infamous moustache on their ID badge would they have continued working in that environment. I don’t think anyone can. Where are the rules, laws and policies that make sure I was given justice? I had to see my GP after the stress this incident caused me and was referred to a psychologist who diagnosed me with anxiety and depression. It affected my diet and close relationships.

In this case, it seems we are back into the dark ages. Even looking for a simple explanation or enquiry has broken the limits of discrimination, deceit and racism. When did we start thinking that an incident happening on your premises is not your responsibility, WHEN? If you own a property and your invited guests have an issue then it’s your responsibility to resolve it. Same way the incident happened on XXX premises and is therefore their responsibility.

But after the incident I was told to contact TTT Partners or YYY(the primary IT contractor) or ZZZ (the sub-contractor) like this was a musical chairs incident. XXX didn’t want anything to do with it. And they had cleared their hands from this incident like it had never happened. They had cleared their hands from this incident like I was born yesterday.   They had cleared their hands from this incident like sun doesn’t rise from the east.

But it was XXX logo on my badge wasn’t it? The badges are printed at XXX premises in Dublin, aren’t they? XXX head of security guy handed out the badge to my manager, didn’t he? The how can XXX say it’s not their matter and it doesn’t concern them?   If the logo was TTTpartners, or YYY tech’s or ZZZ tech’s then I would have gone back to them for investigation, but it was not.   It was XXX logo. Did XXX forget how their logo looks like? It was XXX building that the incident happened.   XXX are responsible for everything that happens in their house, right?

The fact head of security guy said to my manager before he handed him over the badge that I was rude to him confirms his guilt. He is saying I was rude, so he drew a moustache on my badge to get back at me.   He either drew the moustache himself or asked the guy printing the badge in Dublin to do it.

Another important point that the badge with the moustache was in an unopen-able cover so the only person who could have drawn moustache on it was either the person who printed the badge or the person handing out the badge. Making sure I cannot take out the badge and notice the moustache.   On the contrary, when a replacement badge was given to me after a few days, that was in a cover which had an opening from one side and you can take out the badge from that side. This clearly shows the meticulous planning and thinking that went into this racist act.

It was printed and handed out by an employee of XXX so it was their responsibility to investigate this incident. But instead of investigating the way XXX reacted and treated me was discrimination on the highest level. This incident only exposes the discriminatory and racist policies in XXX.   And it only emphasises my argument of their discriminatory policies and racist elements within the organisation when I contacted the current CEO of the company to investigate this, all she said was I was not their employee. Instead of trying to find out the truth she totally denied doing anything about it. How unprofessional, lazy and callous acts by the CEO? This clearly shows she is part of these discriminatory and racist policies and totally supports them.

Can you believe this, if I was running a company and if someone pointed out to me that an incident had happened to him/her on the premises of my company then I would take it upon myself to investigate and make sure it doesn’t happen again.   Because you are there to serve customers and not cause trouble in their lives. This is how a company with values and principles would react.   But not XXX because they don’t follow the same principles and values as required by the Irish government and Employment Equality Acts 1998-2015.

I had my solicitors contact XXX on multiple occasions but XXX kept denying their involvement.   This process of looking for justice has caused me psychological and emotional stress. I have invested myself financially and emotionally into this but still there has been no outcome. That’s why I had decided to put this case forward to Workplace Relations Commission. A discriminatory and racist act has been committed on the premises of XXX by an employee of XXX (I suspect the head of security guy. I think his name is) so I expect full investigation and punishment for xxx for not been able to stop this. Below are the charges that I am presenting to Workplace Relations Commission against XXX:

·         Causing the mental, emotional and psychological stress for the past 8 months.

·         Failed to investigate the matter in hand.

·         Failed to exhibit the responsibility in the matter in hand.

·         Failed to empathise with my situation.

·         Failed to stop the discriminatory behaviour in the matter in hand.

·         Failed to stop a racist act on their premises.

·         Failed to follow Employment Equality Acts 1998-2015.

Per the Complainant’s own complaint form he was hired by TTT to work for ZZZ Technologies, an Irish Registered Limited Company with registered offices at Co Dublin. ZZZ is a subcontractor of YYY Limited, a multinational provider of information technology and networking services which provides, inter alia IT services to numerous clients, including XXX as part of XXX’s managed IT services. At no time material hereto was the Complainant an employee of XXX.

The Complainant had occasion to attend at the Respondent’s premises as part of the provision by him of managed IT services through ZZZ Technologies Limited / YYY Limited. The Complainant was not attending at XXX premises or availing of any XXX services as a member of the public.

Security services and facilities management, including the provision of ID badges to contractors and service providers attending at XXX premises is provided through a company called MMM. MMM Group PLC has several offices in Ireland and throughout the UK. MMM Facilities Management Ltd is an Irish registered company with registered offices in Dublin.

The Complainant commenced attending at XXX premises as part of his contractual duties with ZZZ on 5th February 2018 and was provided with access to XXX premises on that basis. Members of the public are not provided with such access or badges. The Complainant was initially provided with a temporary access badge and subsequently was provided with a photographic ID badge on 21st February 2018. These ID badges are printed off site and then sent to XXX HQ. The printing and provision of ID badges is done through MMM.

As the Complainant was not attending XXX as a visitor or member of the public he, in common with other service contractors and indeed XXX staff, was not allowed to park in the visitor car park at XXX HQ and was advised accordingly. There are separate parking facilities for XXX employees, service providers and contractors for which permits can be requested and obtained. Management of parking is part of the security and facility management provided to XXX byMMM.

THE CLAIM

On 14th June 2018 the Complainant submitted a complaint of alleged discrimination against him by the Respondent, “a person, organisation/company who provides goods, services or facilities” on the grounds of his race, contrary to the Equal Status Acts 2000 to 2014 (the “Acts”).

The Complainant alleges that he was “denied permission” to park in the Respondent’s car park by the “head of security (the guy I am accusing”) on 5th February 2018 and again on 12th February 2018. He notes that there was no argument on either occasion and does not appear to allege that he was being treated less favourably by the security guard on any discriminatory ground, nor does he cite either incident as acts of discrimination in his complaint form. The security guard in question is, and has at all material times, been an employee of MMM.

The Complainant goes on to allege that when he went with a colleague, W, to collect his security ID badge on 21st February 2018, he was told by the same security guard that his was not available as it had not arrived yet. The Complainant’s line manager (again, not an employee of XXX) collected the Complainant’s ID badge later that afternoon. On receipt the Complainant “had a look at my ID badge but didn’t notice anything”. However, he says that “later my colleague W came over to check my ID badge. He said to me I have a moustache like Hitler.   I thought he was joking. I took the badge and checked closely and there was a moustache like Hitler on my ID badge. I could not believe my eyes. I took the badge straight to his manager (name withheld) ….”.

The Complainant alleges that his line manager (not an XXX employee) told him he would look into it and that he took one of the managers from “YYY” with him to speak to the security guard and that the security guard allegedly replied that “he would fire the guy that did it”. It does not appear that the Complainant was present for this alleged conversation / confrontation with the security guard, nor is it clear how, by whom, or when he was made aware of what the security guard supposedly said in reply.   The Complainant however makes clear in his complaint that he is accusing the security guard of defacing his card as:

a) he appears to be citing the refusal to allow him to park in the visitor’s car park as evidence of motive “Head of security guy (the guy I am accusing) was the only guy I dealt with on both occasions and he is the only one who knows what I drive “,

b) he says that he thinks his ID badge was there when he went to collect it and that the security guard “made up a story that it hasn’t arrived yet… he was waiting for the perfect moment to do something to it and then give it to my manager and not directly to myself”.

c) he believes that the security guard “probably destroyed the badge”.

d) he believes that the security guard (purportedly saying he would fire whoever did it), “in a way him saying this shows his guilt”.

The Complainant says he made enquiries with his line manager, a few days later and again on 28th February 2018 about “if something had happened with it” and he says that his manager told him to “just keep working and forget about it”. The Complainant says he couldn’t believe this and “decided to leave the company”. He advised XX in TTT Partners on 5th March 2018 that he would not attend work until it was resolved. It appears that the Complainant was subsequently given 2 weeks’ notice through TTT Partners but that “he didn’t care at the time and that was the last of it”.

It does not appear that the Complainant made any complaint to XXX or XXX HR in February / March 2018.

The Respondent did subsequently receive a Solicitors letter on the Complainant’s behalf, undated, but received on 3rd April 2018 which referred to this incident and to the Complainant as “an employee of XXX”. The Respondent replied by letter dated 4th April 2018 advising that at no time was the Complainant an employee of XXX and that workplace matters should be referred to his employer. It is now accepted, as per the Complainant’s complaint form, that he is not an employee of XXX.

The Complainant seeks redress from XXX. It is unclear if the Complainant has sought redress from anyone else with whom he had a contractual relationship, or indeed MMM, who employed the security guard he is accusing of defacing his badge. It appears that the Complainant was in receipt of legal advice at the time of filing out his complaint from his solicitors.

PRELIMINARY OBJECTION

It is not clear precisely what section of the Equal Status Act the Complainant is bringing his claim under. The Respondent is clearly not disposing of premises or providing accommodation (section 6), is not an educational establishment (section 7) and is not a club (section 8). Based on the description of the Respondent in the claim form, the Complainant appears to be relying on section 5 which provides that:

“A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise, and whether the service provided can be availed of only by a section of the public”.

“Service” under the Act “means a service or facility or any nature which is available to the public generally or a section of the public”. The foregoing definition is in keeping with the stated purpose of the Act, which is “an Act to promote equality and prohibit certain types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access … “.

While XXX undoubtedly does provide services to the public, such as telephone, mobile and broadband, as well as networking solutions, it cannot be said that the provision of an ID badge to the Complainant to facilitate access to XXX HQ for the performance of his contractual duties to ZZZ Limited / YYY as part of a managed IT service was a service available to the public or part thereof.

Further, and without prejudice to the foregoing, if it was a service provided to the public or part thereof, it was a service provided by MMM, not the Respondent.

It is submitted that the only thing approaching a service available to the public by the Respondent identified in the complaint form, is that of public visitor parking provided at XXX HQ, which the complainant himself has not submitted amount to discrimination. In this regard, as already submitted, the Complainant was not allowed park in visitor parking because he was not a visitor (and not attending as a member of the public) but was attending on a different basis and did not have a permit.   He appears to have been aware of this on the second occasion as he says that he only tried to park there because he was late for work and that he intended to move his car after a while.   Therefore, he was treated no differently to anyone else in the same circumstances. Further, even if he was treated less favourably (which is denied for the reasons stated) he was not so treated on any of the discriminatory grounds but for the reasons already outlined. The Complainant himself does not cite these interactions as discrimination and notes that there was no argument on these occasions. Finally, the security guard in question is not an employee of the Respondent or someone for whom it is vicariously liable.

Section 11 of the Act deals with sexual harassment and harassment. Section 11 provides that

“a person shall not sexually harass or harass (within the meaning of subsection (4) or (5) another person (“the victim”) where the victim –

a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods disposed of by the person ….”

… (5) (a) In this section –

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

Being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.

The observations about the provision of a service within the meaning of the Act are repeated here.   Further, and without prejudice to all of the foregoing, the service in question was provided by MMM, not the Respondent.

In the circumstances, it is submitted that the Complainant has failed to discharge the initial burden of proof as required by section 38A of the Acts or established any facts against the Respondent from which “it may be resumed that prohibited conduct has occurred”.

THE ALLEGED DISCRIMINATION EXAMINED

Without prejudice to the foregoing, and to the Respondent’s submission that it is stranger to the incidents complained of and is not liable or vicariously liable for same, the Respondent submits that none of the actions complained of, properly viewed, amount to either discrimination or harassment.

The Respondent provided copies of the original photo that was printed onto his ID card; a photo of his “defaced” ID card in a case and a photo of his “defaced” ID card out of the case. The Respondent submits that a number of things can be observed from these photos:

a) the original photo shows a clear shadow about the Complainant’s lip in similar shape to the “moustache” later complained of.

b) the case cover is clearly not marked.

c) the photos show two different case covers.

d) the “moustache” appears to be a darker smudge / printer error similar to the shadow that appears in the original photo.

Further, to satisfy itself, the Respondent made enquiries with MMM prior to this hearing and it was confirmed that:

a) ID badges are printed off site, the printer is old and smudges or similar are not uncommon.

b) poorly printed badges are returned with a request for a re-issue and then a new one is printed.

c) in response to the Complainant’s allegations about the security guard in question, he replied:

• That the mark complained of was clearly a smudge / printer issue (he rubbed it with his finger and it appeared to be printed on the card).
• He denied ever having said “I will fire the guy that did it” as it was not a defaced card but clearly a printing issue.
• The card was not destroyed, it was returned with a request for a new card in the usual way.
• ID cards come over to XXX HQ every afternoon. The Complainant’s colleague’s card (W) had arrived on 20th February 2018 and was therefore available on the morning of the 21st. The Complainant’s did not come in until the afternoon of 21st February 2018. The card was not retained “to do something to it” and was made available as soon as possible.
• The Complainant could have requested a parking permit but appears not to have done so. The Complainant was not entitled to park in Car Park 1 (of 2) at XXX HQ in these circumstances and these rules apply to all employees of XXX as well as contractors and service providers and the Complainant was not singled out by XXX staff in this regard.

CONCLUSION

In conclusion, the Respondent submits that the Complainant’s complaints against XXX are unfounded and outside the remit of the Act. Further and in the alternative, the Complainant has not discharged the initial burden of proof against XXX. Further and in the alternative and without prejudice to the foregoing, the Respondent has at all times treated the Complainant lawfully and in accordance with its statutory obligations.

In all of the circumstances, the Complainant’s claim should be dismissed.

The Respondent reserves the right to make further written and/or oral submissions at the hearing.

As the Adjudication Officer I must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts 2000 to 2004sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

In relation to facts the Complainant makes many allegations that are opinions he may have, they are not however facts.

The Respondent raises a preliminary objection in relation to precisely what section of the Equal Status Act the Complainant is bringing his claim under.

The Respondent is clearly not disposing of premises or providing accommodation (section 6), is not an educational establishment (section 7) and is not a club (section 8).   Based on the description of the Respondent in the claim form, the Complainant appears to be relying on section 5 which provides that:

“A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise, and whether the service provided can be availed of only by a section of the public”.

“Service” under the Act “means a service or facility or any nature which is available to the public generally or a section of the public”. The foregoing definition is in keeping with the stated purpose of the Act, which is “an Act to promote equality and prohibit certain types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access … “.

While XXX undoubtedly does provide services to the public, such as telephone, mobile and broadband, as well as networking solutions, it cannot be said that the provision of an ID badge to the Complainant to facilitate access to XXX HQ for the performance of his contractual duties to ZZZ Limited / YYY as part of a managed IT service was a service available to the public or part thereof.

Further, and without prejudice to the foregoing, if it was a service provided to the public or part thereof, it was a service provided by MMM, not the Respondent.

It is submitted that the only thing approaching a service available to the public by the Respondent identified in the complaint form, is that of public visitor parking provided at XXX HQ, which the complainant himself has not submitted amount to discrimination. In this regard, as already submitted, the Complainant was not allowed park in visitor parking because he was not a visitor (and not attending as a member of the public) but was attending on a different basis and did not have a permit.   He appears to have been aware of this on the second occasion as he says that he only tried to park there because he was late for work and that he intended to move his car after a while.   Therefore, he was treated no differently to anyone else in the same circumstances. Further, even if he was treated less favourably (which is denied for the reasons stated) he was not so treated on any of the discriminatory grounds but for the reasons already outlined. The Complainant himself does not cite these interactions as discrimination and notes that there was no argument on these occasions. Finally, the security guard in question is not an employee of the Respondent or someone for whom it is vicariously liable.

This is a very strong argument presented by the Respondent and it is one that cannot be overlooked.

Further, to satisfy itself, the Respondent made enquiries with MMM prior to this hearing and it was confirmed that:

a) ID badges are printed off site, the printer is old and smudges or similar are not uncommon.

b) poorly printed badges are returned with a request for a re-issue and then a new one is printed.

c) in response to the Complainant’s allegations about the security guard in question, he replied:

• That the mark complained of was clearly a smudge / printer issue (he rubbed it with his finger and it appeared to be printed on the card).
• He denied ever having said “I will fire the guy that did it” as it was not a defaced card but clearly a printing issue.
• The card was not destroyed, it was returned with a request for a new card in the usual way.
• ID cards come over to XXX HQ every afternoon. The Complainant’s colleague’s card (W) had arrived on 20th February 2018 and was therefore available on the morning of the 21st. The Complainant’s did not come in until the afternoon of 21st February 2018. The card was not retained “to do something to it” and was made available as soon as possible.
• The Complainant could have requested a parking permit but appears not to have done so. The Complainant was not entitled to park in Car Park 1 (of 2) at XXX HQ in these circumstances and these rules apply to all employees of XXX as well as contractors and service providers and the Complainant was not singled out by XXX staff in this regard.

This may well explain the mark on the id badge, it was a printing smudge, no more, no less.

In conclusion I must agree with the Respondent and my decision is that the Respondent has failed to discharge the initial burden of proof which applies in a claim of discrimination. Opinions and Facts are not always the same and in this instant case I believe some of the Complainants opinions are very far off being facts.

For this reason, the complaint is not well found and therefore fails.

For the reasons outlined the complaint fails.