ADJ-00016164

Complainant

Respondent

Parties

Babatunde Beyioku

QED Recruitment

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-00021033-001

07/08/2018

The Complainant worked as a parcel sorter for the client from 04/07/2018 until 02/08/2018.

The Respondent is a recruitment agency who provide labour to a range of clients.

This complaint was received by the Workplace Relations Commission on 07/08/2018.

The complaint is false and utterly devoid of merit.

The timeline of the Claimant’s engagement with the Respondent and the events during his very short placement with client A who the Claimant has not brought a complaint against is set out below.

The Claimant registered with the Respondent, an employment agency, on 19th January 2018.

The Claimant was offered a placement in Client A on 4th July 2018 and commenced work on a night shift in accordance with his expressed wish.

On 13th July 2018 the Claimant alleges that he was involved in an incident with an employee of Client A, when a parcel was thrown at him which “hit him in the eye”.   He further states that he “nearly had a heart attack as a result”. The Claimant does not inform the Respondent of this allegation at this time however he did make an internal complaint in Client A.

On 16th July 2018 the nightshift supervisor, JD, investigates the Claimant’s complaint.   It is important to note that at no stage does the Claimant make reference to any racial discrimination.   JD speaks to the parties involved and views CCTV footage and determines that the incident alleged did not happen.

On 20th July 2018 the Claimant emails the Respondent requesting a letter for the Department of Social Protection. No reference to any difficulties within Client A is mentioned.

On 23rd July 2018 the Claimant calls in to the Respondent’s office with forms to be completed. Not alone did he make no mention whatsoever of any problems within Client A he was at great pains to inform ED of the Respondent, just how happy he was with the position and the fact that he turned down a better paying opportunity as a result. A note of this conversation was recorded by ED on the Claimant’s internal system.

The Claimant alleges that on 27th July 2018 another member of staff was telling the Claimant that he was “going to get” the Claimant sacked.

On 30th July 2018 the Claimant called into the Respondent’s office to make a complaint about the incidents that allegedly occurred on 13th July and 27th July 2018. The details of his complaint were recorded by ED. At no stage did the Claimant make any reference to any racial discrimination. At no stage did the Claimant advise that he had complained internally in relation to the 13th July incident. The Claimant specifically informed ED that he did not want the Respondent to investigate his complains because “he is really happy in Client A’s”.

On 2nd August 2018, the Claimant is advised by JD that he must return to his work station having been walking around the warehouse. JD advised the Claimant that if he wanted to do something other than scanning, he would organise same after he returned from his break. When JD returned to the warehouse floor, the Claimant had his jacket on and was making his way out of the premises. JD enquired what the problem was but the Claimant ignored him.

On 3rd August 2018 the Claimant contacted the Respondent to complain about the incident with JD the previous night. Irrespective of the factual dispute as to what occurred, the Claimant made no reference whatsoever to racial discrimination. The Claimant advises that he wants another placement but the pay rate for one role available was too low.

On 7th August 2018 the Claimant emails the Respondent to request his P45. Unbeknownst to the Respondent the Claimant also submits his complaint form to the Workplace Relations Commission.

On 13th August 2018 the Claimant telephones the Respondent and makes a number of complaints in relation to his placements with Client A including allegations of bullying and assault. He specifically states that he had no difficulty with the Respondent and acknowledges that he had told the Respondent not to investigate matters previously, however, he has now changed his mind. At no stage does the Respondent make any reference to racial discrimination.

On 14th August 2018 the Claimant meets with JK of the Respondent and sets out a chronology of his complaint. For the first time the Claimant alleges that one of the employees of Client A had referred to him as “a black man”.

On 11th September 2018 the Respondent meets with JD of Client A.

On 14th September 2018 the Respondent interviews the employee concerned who denies ever calling the Claimant “a black man” or making any racial comments to him.

On 23rd September 2018 the Respondent writes to the Claimant advising that the investigation was complete and there was no evidence to support his allegations.

It is abundantly clear from the above that the Claimant’s allegations of racial discrimination lack all credibility and should be dismissed. The Claimant’s complaint regarding victimisation is simply not understood at this juncture.

The Respondent respectfully reserves the right to make further oral submissions to supplement the matters outlined and the oral evidence that it intends to introduce during the course of the hearing.

The following statement was submitted to the WRC in advance of the hearing on 07/02/2019:

“I started working with the client on 4th July 2018 a week after I was assaulted by a colleague hit me with a parcel, I nearly had a heart attack because it was a huge shock and I did not expect such to happen in that kind of environment.

The following day I reported the incident to a morning shift supervisor and he said I should report it to the night supervisor, but I was scared of losing my job that’s the reason why I did not talk to the night supervisor about it, prior to that assault night I’ve been assaulted verbally by the same colleague saying black man need to work hard repeatedly even in front of a guy called JXX and he asked me , the reason why he kept on tagging ma a black man and I told him I have no idea, he went on saying because you are a black man and he laughed it off.

I was assaulted on 13th July by a colleague called C XXXXX physically and verbally, he went to have a smoke while we are working and we can’t wait for him I was told to take the scan he was working with he came back expecting me to leave for him and I said no, he got so angry and hit me with a parcel from the back. A colleague asked me why I can’t beat him up and I said I’m not allowed to put my hand on anyone.

I never knew the brother of this man was a supervisor at a time he came back from holiday a week after the younger brother assaulted me, that was 16th July and he came to me where I was working and said to me we need to be following the roster because scanning is very hard and I said fine.

The same day he came back saying his brother said I was lying that I was doing anything that I only walk around, and I replied to him ok.

Four days later when we only had one supervisor on site that night who is the brother of my assaulter because the main supervisor does not work on Friday. We are done that morning and I was walking down to the restroom when I heard someone screaming in a loud voice hey hey hey until I heard junior and I went to him and he asked me to help another colleague to sort out the last cages, after sorting out the cage I went back to him and said he should call me by my name and not hey hey hey and his response was are you fucking deaf, he continued yelling and screaming saying I will sack you and I’ll get rid of you and I said you do not hire me you cannot sack me. A week after this I went to my employer to make a complaint about what happened, they suggested that I stop going there and I said I done nothing wrong, ever since I have been put on hard labour they do not follow roster anymore and I even complaint to him that I had a back pain, he went on to   report me to the main supervisor and he came to me saying I’m only working around that I should leave, that’s how I lost the job on 2nd August”.

From submission and what was stated at hearing the following is a summary of events as I understand them:

On 13th July 2018 the Complainant alleges that he was struck by a parcel from behind and the parcel nearly hit him in the eye. The Complainant reports this to the client but does not report it to his employer, the Respondent.

On 16th July 2018 the client’s nightshift supervisor investigates the complaint by speaking to the parties named and also from studying CCTV footage from 13th July 2018, his determination in relation to the alleged incident was that it did not happen.

On 20th July 2018 the Complainant emails his employer (the Respondent) looking for a letter in relation to an unrelated matter.

On 23rd July the Complainant calls to the offices of the Respondent with forms to be completed. He was speaking to Ms ED in the office and mentioned how happy he was working in the client’s premises and also mentioned that he had turned down a better paid job offer because he was so happy with the current client.

On 30th July 2018 the Complainant called to the Respondent’s offices and made a complaint in relation to the alleged incidents on 13th July and 27th July 2018. During this interaction with Ms ED the Complainant informed that he had reported the incident of 13th July to the client. The Complainant was quite emphatic that he did not want the Respondent to investigate the incidents as he was very happy working in the client’s premises.

On 2nd August the Complainant was at work when the nightshift supervisor approached him and told him to return to his workstation as he had been walking around the warehouse. The nightshift supervisor informed the Complainant that if wished a different job away from the scanning he would arrange this after the break. When the nightshift supervisor returned to the work area the Complainant had his jacket on and was making his way out of the premises. When approached by the nightshift supervisor who wanted to enquire what was going on he was simply ignored by the Complainant.

On 3rd August the Complainant contacted the Respondent to complain about the incident with the nightshift supervisor and also advised that he wanted another placement.

On 7th August the Complainant emails the Respondent requesting his P45. It should be noted this is the same date as the Complainant lodged his complaint to the Workplace Relations Commission.

On 13th August the Complainant telephoned the Respondent and makes a number of complaints in relation to his placement with the client, these included allegations in relation to bullying and assault.

On 14th August the Complainant met with the Respondent and sets out a chronology of his complaints. For the first time the Complainant alleges that one of the client’s employees referred to him as “a black man”.

The Respondent commenced an investigation that included interviewing the client’s nightshift supervisor and the alleged perpetrator.

On 23rd September the Respondent writes to the Complainant informing him that after investigation there was no evidence to support his allegations.

In trying to reach a conclusion in this matter I find it strange that there was no complaint about any racist comments / behaviour until after the Complainant had left employment.

When a complaint was eventually made it was investigated and the outcome was communicated to the Complainant on 23rd September 2018. This outcome was that there was no evidence to support any allegations of discrimination and/or victimisation.

The initial burden of proof in cases such as this it is for the Complainant to establish the facts from which it can be presumed that there has been discrimination under any of the grounds set out in the Employment Equality Acts, then it is for the employer to prove otherwise.

In this instant case the Complainant has failed to establish any facts and therefore I have no alternative but to find that the complaint is not well found and therefore fails.

The Complainant failed to establish a prima facia case of discrimination and/or victimisation, the complaint fails.

Employment Equality Act.