ADJUDICATION OFFICER DECISION & RECOMMENDATION
Adjudication Reference: ADJ-00013861
Parties:
| Complainant | Respondent |
Anonymised Parties | E-Commerce Product Manager | E-Commerce Company |
Representatives | Michael Dowling | Boyce Shubotham & Darran Brennan of William Fry Solicitors, Florian Buschlinger, Frank Stuber, Aoife Mulhaire |
Complaint:
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-00018065-001 | 21/03/2018 |
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Date of Adjudication Hearing: 18/09/2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant is employed as a Product and Content Manager – E-Commerce since 12th February 2016. He is paid €2,833.33 per month. He has claimed that he is discriminated against on grounds of his gender and race. He has sought compensation. He has also raised a complaint with his employer for their failure to address his grievances. He went out sick on 18th January 2018 and has not returned to work. |
1)Employment Equality Act 1998 CA 18065-001
Summary of Complainant’s Case:
The Complainant stated that unwelcome and degrading comments on the grounds of race and gender created an offensive working environment and violated his dignity. There was stereotyping and hostility on the basis of race was coming mainly from the Chief Executive (CEO). The hostility towards non-white nationalities created difficulties for him.
1)Discrimination on grounds of Race The Complainant stated that the CEO when in Dublin on 21st March 2018 stated, “you would not get this in Germany”, also “this is something the Irish would do”. In December 2017 a colleague told him that the CEO said work should be done “the German way”, In 2018 the CEO stated, “Irish people are not loyal to their companies”. In 2016 the CEO referred to “its the drunk Irish, they are always the drunk ones”. He referred to the Polish saying“ to push the Polish to get them to work”. In reference to Germany he stated that there are a lot of Turks there. He referred to the Africans as being very lazy. Male staff were treated poorly and he listed the number of Irish staff that were fired for poor performance. 2) Gender He stated that he was promised an increase in pay in 2016 but did not receive it, even though he had exceeded the targets. However, two named females got the increase, AM in October 2016 and LF in December 2016. In March 2017 he was given goals to achieve his increase in pay but the two named females were not given goals. Men were treated less favourably. The General Manager would speak more rudely to him and the males in the office. He would speak more pleasantly to the females. Male staff were treated poorly and publicly ridiculed and three men out of seven were fired for poor performance. The CEO always compared the staff to German staff. AK gave a written statement that the CEO was unreasonably tough on the males in the office. He stated that another male staff member commented to him that “men get treated terribly especially compared to women in the office. 3) Inappropriate Comments The CEO in Dublin told the females “not to forget to bring your bikinis to Germany”. He stated that he complained to the CEO by Skype about the swearing emojiis and racist comments he replied “don’t take these messages too seriously. The Managing Director tried to excuse the CEO saying he was “young”. The Managing Director did nothing and the CEO’s conduct continued. He then sent an email on 21st February 2018 which set out his grievances to the Managing Director in Germany. He did not respond. He ignored his follow up mail on 27th February and 7th March 2018. He also made complaints of bullying and harassment. He particularised aggressive behaviour, pay increases denied, bonus halved, denigration in front of others. When a staff member was fired he had to undertake half of that workload. His job was placed on-line the day he went out sick. He also complained about health and safety issues and that there was no PRSA scheme in existence. He believes that he has been discriminated upon on grounds of race and gender as set out briefly above. He is seeking compensation. |
Summary of Respondent’s Case:
The Claimant failed to provide an example of how a person that differs from him on any of the protected grounds would be treated more favourably and failed to provide a comparator in his claim form where he was invited to do so. The Claimant failed to identify how he was discriminated against by way of an occupational pension on any of the protected grounds under the Acts in his claim form. The Claimant in his written submission failed to identify how he was discriminated against by way of an occupational pension on any of the protected grounds under the Acts. The Claimant did not identify any comparators in his submission. The Respondent denied that the Claimant has been discriminated against, treated less favourably, victimised or other from joining an occupational pension scheme because of his gender or race. It is absolutely rejected that the Respondent discriminated against or treated the Claimant less favourably whether on grounds of his gender or race in this regard or in any regard. Furthermore, the Claimant has failed to make a prima facie case of discrimination in relation to his entry to an occupational pension scheme or otherwise. He raises further alleged incidents of wrongdoing by the Respondent, the majority of these incidents do not relate directly to the Claimant and none of the incidents, whether relating to him or not, are a form of discrimination based on race and/or gender grounds, neither do they relate to his entry to an occupational pension scheme. Again, he has shown a lack of understanding of the definition of discrimination and the importance of making a prima facie case of discrimination. He has failed to make such a case through his claim or written submission and has failed to shift the onus to the Respondent as is described as necessary by the Labour Court in Mitchell v Southern Health Board [2001] ELR 201: "The first requirement of Article 4 of the Directive is that the claimant 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 these 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 was no infringement of the principle of equal treatment." As the Claimant has not established a prima facie case as to discrimination, the Respondent has not responded to the alleged incidents claimed by the Claimant in his written submission, however, the Respondent denies the allegations of wrongdoing made and reserves the right to discuss reasons why in a hearing of the matter before an Adjudication Officer. |
Findings and Conclusions:
I find that Section 85A of the Employment Equality Acts 1998 – 2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination.
The test for applying that provision is well settled in a line of decisions of the Equality Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent.
I find that If the complainantdoes not discharge the initial probative burden required the case cannot succeed.
As stated above, it has been the well-established practice of the Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited.
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 complainant 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 other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”
It is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised.
Race & Gender I find that the Complainant has asserted that this Respondent company and its executives are racist in their conduct and behaviour. I note that the Complainant stated that the Respondent made racist remarks about the Irish, the Turks, Africans, Poles and by inference Italians, French and of course the Irish. To succeed with a complaint under this Act the Complaint has to establish a ‘prima facie ‘ case of discrimination on grounds of race. That is, he has to name a comparator who is treated more favourably than he is and the sole reason is because that person is not Irish. He must produce clear evidence to that effect. I find that he is in fact, asserting that this respondent is racist with all non-German people it would appear. Likewise with regard to gender grounds, I find that he has made sweeping statements about males being treated less favourable than females and yet one of his witness statements from a female, MP who is French stated, “ I think they paid me less because I was a girl and a foreigner”. I note that one of the witnesses, AM gave evidence that she had goals set for her in her role, which is contradicts the Complainant’s assertion that females had no goals set. I find that the Complainant has misunderstood the complaint that he has made. He has lodged a complaint under the Employment Equality Act for discrimination on grounds of race and gender and has gone on to make broad general statements that this Respondent was a racist, generally speaking and has produced no evidence to support his allegation that he was discriminated against on grounds of his race and his gender. He has gone on to raise safety & health issues and bullying and harassment which were not claimed in the first instance under the appropriate legislation. In fact as stated above one of his witnesses contradicts his own assertion. I find that his complaints are misconceived. I find that the Complainant has failed to establish a prima facie case of discrimination on grounds of gender and or race. |
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.
I have decided that the Complainant has failed to establish a prima facie case of discrimination on grounds of race and or gender.
I have decided that this complaint fails.
Discrimination on grounds of race and gender |
2)Industrial Relations Act CA 18065-002
Parties:
| Complainant | Respondent |
Anonymised Parties | E-Commerce Product Manager | E-Commerce Company |
Representatives | Michael Dowling | Did Not Attend |
Dispute:
Act | Complaint/Dispute Reference No. | Date of Receipt |
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Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00018065-002 | 21/03/2018 |
Date of Adjudication Hearing: 18/09/2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Preliminary Issue - Right to have IR case heard
Summary of Worker’s Case:
The Worker advised the hearing that there was a grievance procedure in the company and was confirmed in the contract of employment. He stated that he had raised grievances in conversations with the Chief Executive/Owner. He went out sick on 18th January 2018 and he was advised by the employer that they would not engage with him until he had returned from sick leave. On 21st February he submitted a detailed complaint /grievance indication that he was agreeable to have it heard before he returned to work. He also suggested that third party would investigate the grievance. He received no response from the employer. He accepted that the grievance was not heard nor the procedure exhausted before referring this dispute to the Workplace Relations Commission. |
Summary of Employer’s Case:
The Employer advised that the matters in dispute were also the matters under investigation under the Employment Equality Act. They stated that it is manifestly inappropriate for a decision maker that makes a legally binding determination to then give a non-legally binding recommendation concerned with the same factual matrix and -using the term in a flexible way- dispute. They do not object the WRC dealing with the complaint under the Industrial Relations Act after the conclusion of the proceedings under the Employment Equality Act. Following a separate hearing in respect of those complaints. They advised that they were withdrawing from the Industrial Relations claim for those reasons. |
Findings and Conclusions:
I note the matters under adjudication under the Employment Equality Act CA - 18065-001. |
I note that the matters raised in this claim under the Industrial Relations Act have a large degree of similarity to that raised under the Employment Equality Act.
I accept the Respondent’s position regarding the appropriateness of dealing with this claim at the same time as the Equality Act.
I also note that the Worker has advised that he raised grievances in conversations with the Chief Executive/Owner.
I note that he went out sick on 18th January 2018.
I note the employer’s position that they would not engage with him until he returned to work.
I note that on 21st February he submitted a detailed complaint /grievance indicating that he was agreeable to have it heard before he returned to work.
I note that he has not returned to work and the employer is not prepared to address his grievance until he returns to work.
I find that that is reasonable for the employer to adopt such a position.
I find that the Worker has not had his grievance heard and has not exhausted the grievance procedure.
I note the Labour Court decision in Rec INT 1014 stated, “The Court is not prepared to insert itself into the procedural process in a situation where the dispute resolution procedures have been bypassed”.
Therefore, I must find that I cannot insert myself in this procedural process as the dispute resolution procedure has been bypassed.
Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I have decided that I cannot insert myself in this procedural process as the dispute resolution procedure has been bypassed.
I have decided that it would be inappropriate for me to adjudicate on the Industrial Relations Act claim until the Employment Equality Act claim has been finalised.
I recommend accordingly.
Dated: November 27th 2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Failure to exhaust procedures |