Worker

Employer

Anonymised Parties

A Cook

A Provider of Disability Services

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00024193-001

17/12/2018

The worker is employed by the employer as a grade II cook since the 1st of November 2015. He is disputing the issuing of a disciplinary sanction against him for an alleged racist remark he made to a customer.

On the 1st of June 2018, the worker was asked to comment on a written complaint from management concerning a staff member allegedly overhearing him making a racist comment to a customer at the food counter. The worker in response queried the delay in bringing the matter to his attention and queried the veracity of the complaint stating it was a malicious allegation made in response to him complaining about his manager in relation to racial harassment. The worker requested that his complaint about racial harassment should be investigated.

The worker said that the employer then wrote to him on the 22nd of June 2018 inviting him to a disciplinary hearing. The hearing took place and the 27th of June 2018 and following that he was issued with a stage 2 written warning under the disciplinary procedures. He appealed that decision, but his appeal was not upheld, and the warning was confirmed.

The Union submitted that the procedures followed by the employer in identifying the worker as the person who made the alleged racist remark was unfair

It is the worker's contention that the original allegation made by the staff member never named or identified him in her letter of complaint as the person who allegedly made the racist comment to the customer. The initial complaint made a reference to a second witness who allegedly heard the comment, but there is no indication that this witness was interviewed or if she ever identified the worker as the person responsible for the remark. The Union notes that from the 18th of April until 1st of June 2018 the employer sought to identify the person against whom the racial remark was made, and this person has not been identified. The failure of the employer to identify such a person can only be taken to indicate that such an incident did not actually take place or that at the very least there was no evidence that the worker was in any way involved in such an incident.

It was further submitted that the employer failed to provide to the worker a copy of the investigation they carried out in relation to identifying the person alleged to have been involved in the incident

The worker contends that the correct procedures were ignored throughout the investigation as the investigator failed to investigate disputed allegations in a fair and transparent way that ensures a fair hearing in accordance with natural Justice. Further to this he submitted that had natural justice been applied fairly, the failure to identify an actual victim let alone to identify the worker as the originator of any racist comment, would have led to the allegation being deemed below the standard of investigation. The worker’s local manager, who received the initial complaint failed to address the inadequacies of the initial complaints and assumed that the worker was the person referred to in the complaint.

The worker expressed his dissatisfaction with the process and disputed the allegations throughout the disciplinary process. The worker disputed the allegation from the outset and believes that the investigator did not fairly established that he was the person alleged to have made the racist remarks. The complaint was never properly investigated in accordance with the employer’s own procedures. A decision was taken to discipline him for a victimless crime because the victim was never identified despite the investigators assertion that she had made attempts to identify the victim.

It is the worker’s submission that he was unfairly treated by the employer in the process of addressing an allegation of a workplace incident. It was submitted that as investigation process was flawed the subsequent disciplinary process was unfair and therefore disciplinary sanction imposed on the Worker should be removed.

The employer submits that the sanction imposed in the worker was fair and reasonable. The worker moved from another work location to the current location in the very recent past and had only worked at this site for about 10 days before the incident occurred.

On the 18th of April 2018, a staff member brought an incident to the attention of the catering manager, which she said occurred the previous week, concerning an allegation that a member of the catering staff had made a racial comment to a female who was ordering food.

The staff member, who made the complaint, did not know the name but gave a description of a person involved and this identified the worker as neither of the other two staff on duty fitted that description. The matter was escalated and referred to the Head Manager. The employer wrote to the worker on the 1st of June 2018, after investigating and trying to identify the person to whom the comment was made, seeking his comments. 

In response the worker said that the person who made the complaint should mind their own business and he went on to say that anybody is free to say whatever he or she likes and indicated that he believed it was a malicious accusation. The worker was asked if he wished to add anything to his response and he did not reply. The employer then invited the worker to a disciplinary hearing which took place on the 27th of June 2018. He was informed of his right to be represented at this hearing. The worker got an opportunity to respond to the allegations and following the hearing he was giving a copy of the transcripts. It was decided to issue him with a stage 2 written warning.

The worker appealed that decision to issue him with a first written warning. He was invited to attend a formal appeal hearing on the Friday the 19th of November 2018 and he was also advised that he was entitled to bring representation with him. The appeal was heard by the Head of HR.

Following a full hearing of the issues the appeal was not upheld and the sanction of a first written warning was also upheld.

The respondent submitted that it is dedicated to ensuring that dignity in the workplace is upheld in accordance with the Dignity at Work Policy which has been regularly revised. Furthermore, the company's mission is to assist those who are often marginalized and who are most vulnerable in society. Discriminatory comments and racist name calling of any nature on any of the discriminatory grounds are not tolerated.

The employer states that it is secure in its position that the worker was correctly identified as the person who made the racial remark and used a word that is widely known as one of the most offensive terms to black people. The staff member who made the allegation was not known to the worker and had no reason to make an unfounded allegation against him. The descriptors used by her identified the worker as the member of staff who made the offensive remark and these descriptors could not be used to identify any of the other employees on duty at the time. The employer had no option but to act due to the seriousness of the allegations reported to them irrespective of the fact that the alleged victim could not be identified.

The employer referred to the Labour Court case of Zehnacker Healthcare v A Worker LCR2154. In that case the Labour Court found that management were justified in initiating an investigation process even in the absence of a formal complaint from the alleged victim, given the seriousness of the allegations that have been made against the worker. In common with the current case the allegations against the worker related to racist and culture-based comments. The Court found that once allegations of this nature are raised, it is incumbent on the company to act. The Court upheld the sanction of a final written warning in that case. It should be noted that in the current case, the relevant section is that of a first written warning. The employer is of the view that the process it followed was reasonable in the circumstances. 

The employer is a service provider for people with disabilities and it operates a canteen serving 250 meals per day which is open to staff, clients and members of the public. I note the worker had relocated to the centre shortly before the incident took place and he was one of only two staff in the canteen who wore black aprons, the other being a female staff member. Likewise, I note that the staff member who made the complaint about the racist comment did not know the worker or work with him. She gave 3 descriptors of the person who made the comment which enabled the employer to identify him and to conclude that the Worker was the person who she overheard making the racist comment. The employer carried out an investigation to identify the alleged victim but was unable to locate her given the large number of customers who use the canteen every day. The matter was then referred for investigation in accordance with the disciplinary procedures and the worker was given an opportunity to respond both at the investigation and disciplinary hearing stage. I note that the worker did not deny the comment but referred to a right of free speech. Having reviewed the evidence before the employer I am satisfied it was not unreasonable for the employer to conclude that the worker was the person who made the racist remarks to the female customer in the canteen.

When an employer receives a complaint about comments of this nature being made, there is an obligation on it, particularly in this employment which provides services to people with disabilities, to investigate and to ensure that the terms of the dignity at work policy are complied with and upheld by all staff and customers. In the circumstances, I am satisfied that the employer had every reason to believe that the comment was made by the worker and it was not unreasonable for the employer to invoke the disciplinary procedures and to impose a sanction in accordance with the procedures. I am recommending that the stage 2 written warning should not be withdrawn as it was a reasonable and proportionate sanction in the circumstances.

I do not recommend the withdrawal of the Stage 2 warning letter.

Industrial Relations, withdrawal of warning letter.