Complainant

Respondent

Anonymised Parties

A Staff member

A Retailer

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00014488-001

26/Sep/2017

The complainant referred complaints against the above respondent under the Employment Equality Acts 1998 to 2015, to the Workplace Relations Commission on the 27th of September, 2017. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case to me, Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts.   As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 2nd of February, 2018.  

It is submitted that:

the complainant who is originally from Kenya has been employed by the respondent since 2nd of September, 2008,

the complainant during his employment was subjected to name calling by a colleague Mr. M who regularly called him a “black cunt”,

the same colleague Mr. M, on one occasion phoned the respondent customer service desk asking to speak to the complainant and posing as a GNIB official told the complainant that he was living and working in Ireland illegally and that he was to report immediately to Immigration head office in Dublin to answer questions about this,

The complainant sought permission from his manager to leave work to attend the meeting in relation to his emigration status at which point Mr. M laughed at him and told him that he had made the phone call and that it was an April fools prank,

The complainant was very distressed by the incident and reported it to his manager Mr. B on Monday who said that there was nothing he could do about it as it was a personal matter,

The complainant later lodged an official grievance which was investigated by the respondent and later appealed by the complainant.

It is submitted that:

the complainant who is originally from Kenya has been employed by the respondent since 2nd of September, 2008,

The complainant raised a formal grievance on 9th of April, 2017 which was investigated by Personnel Manager Ms. L,

Ms. L issued grievance outcome letters to the complainant on 13th of July, 2017,

The complainant appealed the outcome of the grievance and Mr. S carried out the grievance appeal investigation,

A grievance appeal outcome was issued on the 6th of November, 2017.

The issue for decision by me now is, whether or not, the complainant was harassed on grounds of race contrary to section 14 A of the Employment Equality Acts, 1998 to 2015.   In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.  

Harassment

Harassment is defined in Section 14A(7) of the Acts as any form of unwanted conduct related to any of the discriminatory grounds 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. Such unwanted 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) provides a defence for an employer if it can prove that it took reasonably practicable steps to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects [my emphasis].

The Complainant advised the hearing that he was regularly subjected to name calling by his colleague Mr. M.   The complainant told the hearing that Mr. M called him a “black cunt”.   The complainant advised the hearing that he tried to ignore it and continue with his work.   The complainant told the hearing that on the 1st of April, 2017 the complainant was paged over the intercom and asked to attend the respondent customer service desk to answer a phone call. The complainant stated that the phone call was from a man purporting to be a GNIB Immigration official who asked the complainant to confirm his name and then told the complainant that he was living and working in Ireland illegally and that his he was to report immediately to Immigration Head office in Dublin to answer questions about this. The complainant told the hearing that he had asked the person on the phone if he could wait until Monday to go in as he was working that day and as the next day was Sunday he asked if he could go to Head office on Monday. The complainant stated that the person on the phone told him that he had to come in straight away as this was a criminal matter that his documents had been forged.

The complainant told the hearing that he agreed to go to the meeting immediately and that he then approached the on-duty manager and asked for his permission to leave work to attend the meeting in relation to his emigration status.   The complainant stated that it was at this point that he noticed some colleagues at the customer service desk laughing at him and at this point Mr. M who was also laughing told him that it was he who he had made the phone call from his mobile phone and that it was an April fools prank. The complainant told the hearing that he was very distressed by the incident which had happened on a Saturday and he stated that he had spent the weekend upset and distressed by it. The complainant advised the hearing that he went to his manager Mr. B on the following Monday 3rd of April and complained about the incident which had taken place on Saturday when the manager was not in the shop.     The complainant told the hearing that Mr. B’s response was that there was nothing he could do about it as it was a personal matter as the phone call was made by Mr. M from his own mobile phone.

The complainant told the hearing that he left the manager’s office but after leaving he felt so upset that he decided to go to see his GP.   The complainant stated that he went back to tell Mr. B that he needed to leave work to go to his GP, he stated that   Mr. B had asked him whether it was it to do with what had been discussed earlier and when the complainant confirmed that this was so, Mr. B advised him that he would not be paid for any time he missed by leaving work early.   The complainant stated that he subsequently attended with his general practitioner who certified him as being unfit for work on medical grounds due to the stress he was experiencing.

The respondent at the hearing sought to invoke the defence provided in Section 14A (2) and states that it can prove that it took reasonably practicable steps to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects [my emphasis].

The respondent advised the hearing that the complainant submitted a formal complaint to the respondent’s personnel manager in writing on the 9th of April 2017.

It is agreed by both parties that an investigation was carried out by the said personnel manager and that the outcome of the investigation was notified to the complainant by letter dated the 13th of July 2017 signed by the   personnel manager, Ms. L .

In relation to his complaints, the first letter indicates that an extensive investigation was carried out in line with company procedures. lt indicates that the work colleague whom he alleged addressed him as a "black cunt" denied such an allegation and that the colleague in question had explained that there would be "banter" going on between himself and the complainant and that it was "friendly banter". The investigation concluded that the respondent could not find any evidence that the complainant was called a "black cunt" by Mr. M.   Ms. L in her report stated that this allegation was unsubstantiated due to a lack of evidence.

The complainant told the hearing that he had provided names of individuals who were witnesses to this name calling but it transpired that these individuals did not corroborate the complainant’s allegations when questioned by Ms. L. The complainant stated that it was not his fault if witnesses did not wish to give evidence against another colleague and stated that no one wanted to tell on another colleague but he stated that this does not mean that the offensive name calling did not take place.

Witness for the respondent Ms. L when asked about her conclusions in this regard stated that she found that there was no evidence to substantiate the complainant’s allegation.     When questioned as to whether she considered the complainant’s evidence of the allegations as evidence it emerged that she was only referring to the fact that she could not find any third-party evidence to substantiate the allegations.   The respondent provided notes of the investigation to the hearing and these contained records of interviews with relevant personnel which Ms. L had carried out in the course of her investigation. The notes of the interview with Mr. M indicate that he objected to being asked about the allegation in respect of the name calling and that he stated that wished to speak to his solicitor before answering any questions in respect of the allegation that he called the complainant “a black cunt” however, the investigation notes did not state that Mr. M had denied the allegation.     It is submitted on behalf of the complainant that the only evidence in respect of the allegation is the complainant’s own statement that Mr. M had called him “a black cunt” but there is no evidence that Mr. M denied that he had done so.   When questioned on this Ms. L stated that she was sure from memory that Mr. M had denied calling the complainant such a name but she conceded that there was no note or written record of any such denial.   It would thus seem to be the case that Ms. L reached a conclusion that the complainant’s allegation in respect of being called “a black cunt” which was not denied by Mr. M but that Ms. L concluded that it was unsubstantiated due to the fact that the named witnesses did not corroborate the complainant’s story even though she had received no evidence to contradict the allegations made by the complainant.

The complainant submits that he does not think that the investigation officer listened to him or was willing to give any weight to his evidence. The Investigation Officer Ms. L stated that as there was no corroborating evidence to support his claim as to racist remarks made then she concluded that it did not happen. The complainant states that it is not his fault that colleagues are not willing to corroborate his version of events but that it should not mean that Ms. L should automatically believe that it did not happen.   The complainant submits that Ms. L did not consider whether on balance it is likely to have happened given that the same perpetrator of harassment was behind the extremely inappropriate and racist joke played on the complainant on the 1st of April even though the investigation accepted that event had occurred.  The complainant states that Ms. L in her findings notes that colleagues and the alleged perpetrator of the harassment referred to "Banter" and there is no sign that she looked further to see what that meant.

ln relation to the incident which occurred on the 1st of April 2017, the investigation concluded that Mr. M confirmed that he had played the "April fool's joke" on the complainant but denied that he was impersonating a GNIB officer in the phonecall. He stated that the call was made via an "app" on Mr. M’s phone and that he did not see the contents of the app as being offensive. The report indicates that this version of events is contradicted by the complainant who has submitted that Mr. M in playing this prank impersonated a GNIB immigration officer.  The conclusion of the investigation was a finding that Mr. M acted "inappropriately by impersonating an officer of the GNIB'.   lt was also indicated that the matter would be "investigated further".   The respondent at the hearing did not provide any details as to what further investigation took place in this regard but advised the hearing that Mr. M was disciplined in accordance with the disciplinary procedure. The respondent when questioned stated that this disciplinary procedure was invoked in accordance with the Dignity at Work policy but could not state under what aspect of the Dignity at Work Policy Mr. M was being disciplined.   The respondent could not say if the disciplinary procedure was invoked against Mr. M due to a finding that he had bullied and or harassed the complainant and the respondent did not have a copy of its Dignity at Work Policy at the hearing but provided a copy some days later.       The respondent did not have anyone at the hearing who could provide evidence in respect of the alleged further investigation or disciplining of Mr. M.

The complainant at the hearing went on to state that he received a second letter from the respondent also dated the 13th of July which went on to deal with his complaint in relation to his inappropriate treatment by the store manager, Mr. B after he had approached him about the incident where Mr. M had impersonated a GNIB Officer. The conclusions of that investigation were that the manager "confirmed that he had overreacted" and "apologised for the fact that he overreacted".   The complainant told the hearing that he has not to date received any apology in person or in writing from Mr. B in respect of this treatment of him on the date in question.     There was a further indication in this letter that the store manager had stated that "it was not until he became aware of the full facts of the incident did he realise the seriousness of what had allegedly happened".   The investigation of this matter concluded that the store manager could have handled the conversation better.

The complainant advised the hearing that he appealed the outcome of the respondent’s findings and stated that the appeal was conducted by Mr. S who was a manager in another store. The complainant advised the hearing that he was interviewed by Mr. S on the 7th of September 2017 and again on 13th of October 2017.

The outcome of Mr. S’s investigation in to the appeal of the matter of how the complainant’s manager Mr. B had handled the situation after the April fool’s incident was that Mr. B could have handled the situation better.   As regards the allegation in respect of the complainant being called “a black cunt” by Mr. M, Mr. S concluded that there was no evidence to confirm that Mr. M made that comment to the complainant.     Mr. S was questioned on this finding at the hearing where it emerged that he, Mr. S had interviewed the complainant in respect of this matter but that he had not interviewed or had not sought to interview Mr. M in this regard.   When questioned on this Mr. S stated that his colleague had already investigated this matter and stated that it had not formed part of the basis of the complainant’s appeal with which he was tasked. Mr. S later stated that he had in any event decided to include this matter in his investigation as the complainant had added it in at a later stage. It emerged at the hearing that Mr. S did not however interview Mr. M as part of the appeal investigation despite his having made a decision to investigate this aspect of the complaint.

The respondent when questioned on its harassment policy told the hearing that they did have a Dignity at Work Policy but did not produce one. The complainant told the hearing that he had received a Handbook containing the Grievance Procedure and Dignity at Work Policy when he started work 9 years ago but he stated that he had received no training in these matters since then. The respondent at the hearing produced evidence that the complainant had attended training in these policies in 2014 and the complainant agreed that he did attend this training on the date in question.

It is clear from the evidence adduced that the complainant in this case was subjected to a ‘prank’ which caused him great distress and upset at the time as it led him to believe that he had been living and working in the country illegally. Such a prank was clearly designed to upset the complainant and to give him cause to worry about his immigration status. I am satisfied that such a prank was racially motivated and that the complainant was singled out for this prank due to the fact that the complainant is of a different race than his colleagues. In addition, I am satisfied that such a prank would not have been played on an Irish colleague as it would not have had the desired effect had it been played on an Irish colleague. I am satisfied from the evidence adduced that this ”prank” caused the complainant great distress and upset as it called into question the legality of the complainant’s working and living in this country and his immigration status.   In addition, the negative effect which this ‘prank’ had on the complainant was compounded by the fact that his manager Mr. B was unsympathetic when he reported it to him and when he advised him that it had caused him so much distress and upset.   According to the complainant not only was Mr. B unsympathetic but he also told the complainant that his wages would be docked if he were to leave work early to go to his GP as a consequence of the effects of this ‘prank’.   The investigation into this matter indicates that Mr. B said that he did not recall telling the complainant that he would not be paid but he added that in any event he could not change the sick pay scheme.   Accordingly, on balance of probabilities I prefer the complainant’s version of events in relation to these matters and I am satisfied that Mr. B did advise the complainant that he would not be paid if he were to leave work to attend his doctor due to the distress he was experiencing as a result of the ‘prank’.

In addition, it is also clear from the evidence adduced that the complainant lodged a complaint in respect of being called a “black cunt “ by Mr. M and that a finding was made against the complainant in respect of this matter due to the fact that there was no evidence to support the allegation made, despite the fact that this allegation was made in respect of Mr. M the same person whom the respondent had found was responsible for playing a racially motivated prank on the complainant. In addition, it is clear from the interview notes of the investigation that Mr. M during the investigation did not deny the allegations made in this regard, he merely stated that he wished to speak to his solicitor if such allegations were being made against him.   Mr. S the appeals officer who investigated the complainant’s appeal made a finding against the complainant in respect of the “black cunt “ allegation stating that there was no supporting evidence to confirm that Mr. M had made this comment. It emerged at the hearing that Mr. S had not even interviewed Mr. M is respect of this matter so was not able to determine if Mr. M could confirm or deny that he made such a comment, but Mr. S still found against the complainant in this matter.

Accordingly, having examined the totality of the evidence adduced I am satisfied that the complainant in this case has raised a prima case of harassment on grounds of his race.  

The respondent in this matter seeks to rely on the Section 14A (2) defence and submits that they conducted a thorough investigation and appeal process into the complaints of harassment made by the complainant.   It is clear from the totality of the evidence adduced that the respondent does have a procedure in place for investigating such incidents and that the incidents when reported by the complainant were investigated.     However, it is also clear from the totality of the evidence adduced that the investigation into the complainant’s grievance and the appeal procedures applied were flawed and were not applied fairly and consistently and that findings were made against the complainant on the basis that supporting evidence was not available even though the accused person did not even dispute the allegations made. In addition, it is clear that findings were made as part of the appeal process without relevant parties even being interviewed. I am thus satisfied from the totality of the evidence adduced that the respondent in this case cannot avail of the Section 14A (2) defence as the respondent has not shown that it took “reasonably practicable steps to prevent the harassment (of the complainant) and to reverse its effects”. Accordingly, I am satisfied from the totality of the evidence adduced that the complainant was harassed on grounds of race contrary to Section 14A of the Acts.

I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015 I issue the following decision. I find –

   that the complainant was harassed by the respondent on grounds of race contrary to Section 14 A of the Acts.

In making my award, I must ensure that the award is effective, proportionate and dissuasive.   I am satisfied from the totality of the evidence adduced in this case that the complainant was subjected to harassment and that such harassment was connected to his race.   I am also satisfied that the respondent in this case once notified of the harassment failed to take reasonably practicable steps to prevent the harassment (of the complainant) and to reverse its effects”.   Having regard to the circumstances of the instant case, I consider an award of compensation in the sum of €10,000 to be just and equitable in the present case.  

In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2015 I hereby order that the respondent pay the complainant that sum by way of compensation for the distress suffered by him as a result of the Harassment.   This award is not in the form of remuneration and is therefore not subject to the PAYE/PRSI Code.