Complainant

Respondent

Anonymised Parties

A Factory Operative

A Food Manufacturer

Representatives

Judy McNamara IBEC

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-00010584-001

02/04/2017

The complainant is alleging that he was discriminated against on grounds of race, in that, he was subjected to harassment in his employment on grounds of his nationality. While the complainant inadvertently lodged the complaint under the Equal Status Acts, it was clear from the body of the complaint form (which is not a statutory form) that the matter related to the Employment Equality Acts. In the circumstances, the respondent accepted I had jurisdiction on that basis to investigate the complaint.

1.1The complainant is a Romanian national. He moved to Ireland in September 2014. He commenced employment with the respondent in September 2014. He has a full-time contract with the company and his title is factory operative. The complainant states that on 12 December 2016, the sugar motor tripped out of the machine he was working with. He put a call in for a fitter and after a while his colleagues Mr. B and Mr. Mc showed up to fix the machine. The complainant submits that when the machine was repaired, Mr. Mc said to him “go back to your caravan now” and the complainant said “I’m sorry” and Mr. Mc said “you’re a Gypsy, go back to your caravan now”. Both Mr. B and Mr. Mc laughed cynically at him and Mr. B said “he’s not a Gypsy, he’s from Syria”. The complainant submits he was very hurt by the alleged remarks. The complainant states that there were other occasions he was subjected to bullying by Mr. B and Mr. Mc. In this regard, in mid-November 2016 when asked by Mr. B about his claim with the car insurance company, the complainant said “oh it’s not settled yet and Mr. B replied “you’re a Gypsy from Romania that’s why”. The complainant submits that he has been very stressed since. The complainant states that in mid October 2016, there was a discussion with his colleagues as to where Central Europe is located on the map and the complainant contends that Mr. B said to him “ you’re from Damascus, Syria” indicating he was from a third world country.

1.2 The complainant submits that while an investigation meeting took place on 16 December 2016, in relation to the alleged incident that occurred on 12 December, both Mr. B and Mr. Mc denied the allegations and the complainant was told by a member of HR that he is not to talk to any member of the fitter team except through his chargehand. The complainant states that the respondent did not seriously examine the incident of 12 December 2016 and he found the investigation process unsatisfactory and was very annoyed by the outcome of said investigation where it found that there was no evidence to substantiate his allegations.

1.3 The complainant asserts that the Awareness Programme carried out by HR was only a five minute exercise and was not fully attended by the company’s employees. The complainant stated that he made further complaints about Mr. Mc to HR on 15 August 2017 where Mr. Mc was making him feel uncomfortable, bumping into him on purpose, staring at him, banging doors closed in his face, and stamping loudly on the floor in his presence and requested CCTV footage be viewed by HR to back up his allegations. The complainant states that he requested that he and Mr. Mc be rostered on opposite shifts but that HR considered this option and stated that it was not feasible. The complainant submits that he sought to move to a different company site but again was told by HR that this was not a viable option.

1.4 The complainant made complaints of further allegations of discrimination on the day of hearing which occurred about a week or so prior to the hearing. The complainant reiterates that this is further evidence of the harassment and bullying behaviour he has been subjected to in his employment.  

2.1 The respondent states that in May 2015, the complainant was offered and accepted a full-time role as factory operative. The respondent states that Ms. M, factory manager was advised by Mr. C (Maintenance Manager) on 13 December 2016 of an alleged incident which had occurred the previous day involving the complainant and two of his colleagues. Mr. C advised Ms. M that the complainant had been in the office the previous evening and complained that he was “sick of the way he was being treated”. When Mr. C asked who he was referring to he said the complainant refused to answer. Mr. C then suggested that the complainant go to Mr. M, Factory Manager who was on site at the time and Mr. C offered to accompany him. The respondent states that the complainant refused this offer also and indicated that he intended to furnish his complaints in writing by e-mail to Ms. M. On 13 December 2016, the complainant made Ms. M aware of his grievances verbally and advised that he wished to make formal complaints against his two colleagues, Mr. B and Mr. Mc.

2.2The respondent submits that in accordance with the company grievance procedure, Ms. M immediately instigated an investigation firstly notifying Mr. C (Maintenance Manager) and direct report of Mr. B and Mr. Mc of the allegations. Both Mr. B and Mr. Mc were requested to attend meetings on 16 December at 10.30 and 11.00 am respectively. The letters notifying them of the meetings outlined “alleged inappropriate comments made towards another employee” which raised serious concerns for the company. Both employees were advised of their right to be accompanied to the meeting and each contained a recommendation to have representation in light of the gravity of the situation. By letter of 15 December, the complainant was also invited to meet with Ms. M on 16 December at 10.00 am. The respondent submits that following the investigation into the alleged complaints, Ms. M’s findings were that there was insufficient evidence to support the claims against Mr. B and Mr. Mc. In the letter, it was further indicated that the respondent takes very seriously the right to dignity at work and has zero tolerance for any actions or behaviour that would directly or indirectly impact the dignity of any member of staff. In the letter, the respondent indicated its intention to run an awareness programme in January 2017 for all staff regarding the responsibility of employees to uphold the Dignity at Work policy. That intention was set out in the letter as was Ms. M’s intention to facilitate a meeting between the complainant and his two colleagues to discuss all concerns and examine a way forward. Details of the Employment Assistance Programme was also indicated in the correspondence.

2.3 The respondent states that by e-mail dated 1 February 2017, the complainant finally provided a written account of his complaints and allegations. In relation to the reference in the letters dated 22 December of the company’s intention to conduct Awareness programmes with employees regarding the Dignity at Work policy, a number of briefing meetings were held in this regard in early February 2017.

2.4 The respondent submits that the claims submitted to the WRC specifically related to incidents which allegedly occurred on 12 and 13 December 2016. The respondent on 21 December 2016 requested that the complainant put the allegations in writing which he failed to do until 1 February 2017. The respondent submits that it undertook a full investigation, conducted meetings with all parties concerned but ultimately the respondent was unable to find evidence to substantiate the complainant’s allegations. The respondent states that the findings of the investigation were issued to all parties concerned and in early February 2017, HR provided an Awareness Programme for all employees to ensure that all staff were fully briefed on their responsibilities to uphold the company Charter for Dignity at Work.

2.5 The respondent states that a further complaint by the complainant against Mr. Mc was received by HR on 15 August 2017 alleging Mr. Mc was making the complainant feel uncomfortable, bumping into him on purpose, staring at him and generally attempting to intimidate him. The respondent asserts that the complainant was clear when making these complaints that he did not want Mr. Mc to be made aware of the complaints and that he did not want a meeting with him. These complaints were provided verbally to Ms. M of HR on 15 August but the complainant declined to formalise these complaints despite requests from HR to do so. The complainant requested that the respondent review CCTV footage which he stated would substantiate his allegations against Mr. Mc. The respondent submits that it acceded to the complainant’s request but was unable to identify any actions of any employees which would constitute intimidation.

2.6 On 17 September, 2017 the complainant sent a further e-mail to Ms. M setting out additional allegations against Mr. Mc regarding “an angry attitude” by Mr. Mc and allegations that Mr. Mc was blocking the complainant’s path, closing doors in his face and stepping harder on the floor in the complainant’s presence to create noise etc. Following on from this, HR met with the complainant and it was outlined in the meeting that the respondent had concerns regarding what appeared to be a breakdown in the working relationship between the complainant and Mr. Mc. The respondent submits that the only option open to it at that juncture was to try and resolve the breakdown by way of mediation. This process was explained to the complainant at length and the complainant advised that he was agreeable to mediation. Mr. Mc also stated that he was agreeable to mediation. Following mediation discussions, while final agreement was not reached between the parties, some 80 % of agreement/resolution was attained. The matter was not fully closed but the Mediator pointed to “some good interaction and understandings” having developed regarding how the two individuals could relate to each other at work. However, the complainant did not respond to the Mediator until 15 November 2017 and in his correspondence, he advised that his issues had been scheduled for hearing at the WRC and he would await outcome of same before deciding on mediation.

2.7 The respondent states that it has taken every possible option open to it to try and address and resolve the complainant’s issues and it submits that the option of mediation is still on offer. It states that in the course of the extensive efforts which they have undertaken, the company has had to remain mindful of its duty of care to all employees. It is the company’s position that it has applied its duty of care to all concerned, fairly and reasonably and accordingly seeks to rely on the defence set out in Section 14 (2) of the Acts.

2.8 The respondent states that in relation to the claims made by the complainant of further allegations of discrimination on the day of hearing which occurred about a week or so prior to the hearing; the respondent states that this is the first it has heard of such matters and submitted that in the interests of fair procedures, natural justice and due process that it would require the complainant to formalise said alleged complaints to HR in the first instance so as they could investigate the claims in line with their grievance and disciplinary procedures.

3.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.

3.2 Section 14A(7) of the Acts defines harassment as any form of “unwanted conduct related to any of the discriminatory grounds being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person… 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 that it shall be a defence for an employer to show that it took such steps as are reasonably practicable to prevent harassment from occurring in the first place and in circumstances where such harassment has occurred that it took action to reverse its effect. The Labour Court has previously held that in order for an employer to avail of the first component of this defence it must show, at a minimum, that a clear anti-harassment or dignity at work policy was in place before the harassment occurred and that the policy was effectively communicated to staff. In the instant case, I note that the respondent had a Dignity at Work Policy in place to deal with harassment in the workplace. I am satisfied that this policy was effectively communicated by the respondent to employees of the company.

3.3 The second element of the defence at Section 14A(2) is where harassment has occurred that the employer took action to reverse its effect. This involves an evaluation of what action the respondent took once it became aware that an employee was making a complaint of harassment under the Acts (or Policy) and how promptly it took those actions. The complainant contends that his complaints of harassment were not taken seriously by the respondent and that it failed to take all reasonable steps to ensure his workplace was free from harassment. It is clear that when HR were informed about the alleged harassment, it engaged with the complainant with a view to taking appropriate steps to address his complaint. Ms. M (Manager) immediately instigated an investigation and meetings were held with the appropriate employees named in the complaints. On 22 December 2016, letters containing the outcome of the investigation were issued to the complainant and his two colleagues. Ms M’s findings were that there was insufficient evidence to support the complaints against Mr. B and Mr. Mc. I note that it was a case of the complainant’s word against that of his two colleagues and there were no witnesses to substantiate the allegations of the complainant.

3.4 The letter by Ms. M of 22 December further stated that the respondent takes very seriously the right to dignity at work and has zero tolerance for any actions or behaviour that would directly or indirectly impact the dignity of any member of staff. In the letter, the respondent also indicated its intention to run an Awareness Programme in January 2017 for all its employees regarding the respondent’s Charter for Dignity at Work. The letter also set out Ms. M’s intention to facilitate a meeting between the complainant and his two colleagues to discuss all concerns and see if a way forward could be agreed. Details of the Employment Assistance Programme was also included in the correspondence. I note that due to rostering arrangements and the fact a number of employees were on annual leave in January, the briefing meetings relating to the Awareness Programme on Dignity at Work were conducted in early February so as to ensure as many employees as possible were in attendance. The respondent stated that relevant documentation on employees’ rights and entitlements was disseminated at these training programmes.

3.5 The complainant made further complaints on 17 September 2017 in relation to “an angry attitude” by Mr. Mc as well as attempts to intimidate the complainant by blocking his path, slamming doors in his face and stamping his foot on the floor deliberately in the complainant’s presence. The respondent stated that while it viewed CCTV footage at this juncture, it found no evidence to support the allegations of the complainant in this regard. A meeting with the complainant was held with HR on 20 September 2017. It was outlined in the meeting that the respondent had concerns regarding what appeared to be a breakdown in the working relationship between the complainant and Mr. Mc. The respondent submits that the only option open to it at that juncture was to try and resolve that breakdown by way of mediation. The respondent submits that it appointed an experienced independent Mediator to try and resolve the issues. The respondent contends that the mediator had a number of productive meetings with the parties and pointed to “some good interaction and understandings” but ultimately the complainant stated that he did not wish to respond to the Mediator as he had been scheduled a hearing date with the WRC and would await that outcome before deciding on mediation.

3.6 Having adduced the totality of the evidence in the instant complaint, I am satisfied that the respondent treated the complainant’s claims seriously. I am satisfied that the measures which were put in place by the respondent at the material time following the initial alleged incident was a reasonable response to try and address the matter. I note that the respondent carried out a thorough investigation but there was no evidence to substantiate the complainant’s claims.   Based on the evidence adduced, I am satisfied that the respondent ran an Awareness Programme with staff highlighting the importance of upholding the Dignity at Work Charter. In addition, at a later stage, the respondent sought the services of an independent Mediator to try and resolve the issues arising between the complainant and Mr. Mc which was a proactive response but ultimately this process was suspended as the complainant had proceeded with his case to the WRC. For the sake of completeness, I note that the complainant made further allegations of discrimination on the day of hearing which allegedly occurred the previous week; however the respondent put on record that it had no notice of such complaints and in the interests of fair procedures and due process, it requested that said claims be formalised to HR and the respondent would investigate the complaints in line with their grievance and disciplinary procedures. Given that these complaints were not properly before me at hearing, I am not in a position to investigate said claims.  

3.7 Having regard to the totality of the evidence adduced in the instant case, I find the respondent took all reasonably practical steps to deal with the complainant’s complaint. Accordingly, I find that the respondent is entitled to avail of the defence at Section 14A(2) of the Acts.

I find that

(i)                  the complainant has not established a prima facie case of harassment contrary to Section 14A of the Employment Equality Acts

(ii)                the respondent took such steps as are reasonably practicable to enable it rely on the defence at Section 14A(2) of the Employment Equality Acts.

Accordingly, his complaint fails.

Prima facie case, harassment, race, dignity at work policy, Section 14A(2)