EDA1820

This appeal is brought on behalf of J&M Golfing Cuisine Limited (‘the Respondent’) against a decision of an Adjudication Officer (DEC-2017-075, dated 25 October 2017). The Notice of Appeal was received by the Court on 16 November 2017. The Court heard the appeal in Dublin on 13 March 2018.

Mr Curtis’s (‘the Complainant’) original complaint – referred to the then Equality Tribunal on 17 December 2014 – consisted of three elements: he alleged that (i) he had been discriminated against by the Respondent in relation to his conditions of employment on the grounds of race; (ii) he had been constructively discriminatorily dismissed; and (iii) he had been harassed in the course of his employment. The Adjudication Officer decided that claims (i) and (ii) were not well-founded but upheld claim (iii) and awarded the Complainant compensation of €8,500.00. The Respondent’s appeal herein is confined to claim (iii) only. The Complainant did not appeal or cross-appeal. Mr Curtis gave evidence on his own behalf to the Court. A former colleague of his, Mr Mark Heeney, also gave evidence in support of the Complainant. Mr Mijan Rahman gave evidence on behalf of the Respondent.

The Complainant worked for the Respondent between October 2012 and 14 August 2014 as a catering assistant/bar man. The Respondent company provides catering services to a number of golf clubs. The Complainant was employed at all material times at Edmonstown Golf Club. As the Complainant’s original complaint form was received by the Equality Tribunal on 17 December 2014 and he resigned his employment with effect from 14 August 2014, the relevant period that falls to be considered by the Court for the purposes of the appeal is 18 June to 14 August 2014.

During the aforementioned period, the Complainant alleges that he was the subject of unwelcome racist remarks on at least a weekly basis from Mr Rahman. According to the Complainant, Mr Rahman regularly said to him that he didn’t want ‘Irish boys’ working for him as they are not good workers. He also said that Mr Rahman accused him of being a thief and an alcoholic ‘like all the Irish’. The Complainant’s evidence was corroborated by Mr Heeney although neither the Complainant nor Mr Heeney were able to recall any specific dates on which the alleged remarks were made. Mr Rahman denied making any such comments to the Complainant. He told the Court that he himself is an Irish citizen as are his children. In cross-examination, Mr Rahman accepted that the Respondent did not have a written Dignity at Work/Anti-Discrimination Policy in place during the material time. Mr Rahman’s representative directed the Court to a copy of the Complainant’s letter of resignation dated 14 August 2014 in which the Complainant wrote: “My reason for leaving is purely financial as you cannot guarantee me the full time (sic) hours as quoted in my contract.” It was submitted on behalf of the Respondent that the Complainant’s failure to make reference to the alleged discrimination and harassment he had suffered undermines the credibility of the case he was seeking to advance in the course of the within appeal.

The Complainant told the Court that he had complained on a number of occasions to the General Manager of Edmonstown Golf Club about the racist remarks made by Mr Rahman to him. However, he was informed that such matters were between the Complainant and his direct employer. Nevertheless, Mr Rahman told the Court that the General Manager had spoken to him on a number of occasions about issues that had been raised with him by the Complainant but that such discussions were confined to the availability of work for the Complainant and matters related to payment of the Complainant.

Discussion and Decision

As is apparent from the foregoing summary of the evidence before it, the Court was essentially presented with two diametrically opposed versions of events. The Complainant’s version was corroborated by his former colleague – now also a former employee of the Respondent’s. Mr Rahman’s evidence was uncorroborated. It is unfortunate that neither party chose to call or subpoena the General Manager as a witness.

The Court is of the view that the Complainant has established a prima facie case from which an inference of harassment on the race ground can be inferred. The Respondent failed to rebut that prima facie case. In arriving at this conclusion, the Court places particular emphasis on the Respondent’s admission that it did not have a written Dignity at Work/Anti-Discrimination Policy in place, setting out an appropriate procedure which the Complainant could avail himself of for the purposes of having his complaints of harassment on the race ground against Mr Rahman properly investigated.

Award

In all the circumstances, the Court measures the appropriate compensation at €3,500.00. As this is not in the way of compensation for loss of earnings, it is not subject to income tax.

The decision of the Adjudication Officer is varied accordingly.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
MK______________________
20 March 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.