Complainant

Respondent

Parties

Victor Kings Oluebube

CPL Solutions Ltd T/A Flexsource Recruitment

Representatives

Hennessy & Perrozzi Solicitors.

Mr. Anthony Slein, B.L.

 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-00030884-001

12/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00030884-002

12/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00030885-001

12/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00030885-002

12/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00030886-001

12/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00030886-002

12/09/2019

The complainant , a Nigerian national, commenced employment with the respondent , a recruitment agency on 14 January 2019. He was assigned to work with one of the respondent’s clients as a warehouse operative. His complaint is that he was racially abused and discriminated against on the grounds of race. He claims that he was victimised for having made a complaint of discrimination.

The most recent act of discrimination occurred on 21 May 2019.

He worked 40 hours a week. His gross weekly salary was €480.

He submitted his complaints to the WRC on 12 September 2019.

The complainant’s barrister requested a postponement of the hearing as witnesses to the racial abuse are out of the country and the complainant will be hampered in their efforts to prove his complaint. The adjudicator decided to proceed as the requirement for a witness would manifest itself in the course of the hearing at which stage a postponement could be considered.

CA-00030884-001 Complaint under section 77 of the Employment Equality Act, 1998

The complainant provided a named comparator.

Witness 1 . The complainant gave evidence.

The witness works as warehouse operative.

The complainant gave   evidence that in In February 2019, the warehouse Team Leader imitated the sounds of a monkey in front of him and his colleagues. The team leader told the complainant that he” looked like a chimpanzee”. An Irish colleague said to the complainant that he would not have put up with such treatment. The complainant found the remarks to be highly degrading and humiliating but hoped it would be a one-off remark. He did not make a complaint about this incident as he had previously reported remarks made to him in another job to the agency. He felt intimidated.

On 21 May he was 2 minutes late returning from his break. The warehouse Team Leader said, “ you look like a chimpanzee.” Two colleagues heard the remark . The complainant objected to Team Leader 1. Thirty minutes later the team leader apologised to the complainant and said he did not mean to be racist. He asked the complainant to “let it rest here” and that” he had black friends.” The complainant’s colleagues encouraged him to report the incident.

He reported the statements made to him to the Warehouse Manager at a meeting on 22 May. The Warehouse Manager asked him what he wanted to do about it. The Warehouse Manager brought the complainant to his manager within the respondent’s agency. She advised the complainant that had she made such a remark to anybody she would have been fired. She undertook an investigation into the incident. The complainant provided a written statement on 24 May .

The complainant ‘s   barrister said that on 12 June, the respondent’s manager with the relevant   responsibility (light industry) attended the complainant’s workplace and told him that disciplinary action had been taken, but that she was not prepared to discuss the matter further. The respondent provided him on request with a copy of the conversation held with him in the 12 June. The respondent apologised to him. They did not condone the incident. The complainant asked for and was not informed of the outcome of his complaint . They didn’t specify the disciplinary sanction or on whom it was imposed .The respondent criticized the complainant for availing of a solicitor’s services.

The complainant stated that he was very fearful about having to continue to work with the team leader ; he feared retaliation and a threat to his safety. He suffered anxiety and sleeplessness. He   had to attend a doctor and to undertake a course of medication to deal with the anxiety arising from the incident.

He was therefore offered no satisfactory conclusion to his grievance. He had to continue to work with the team leader. He complained to the warehouse manager about having to continue to work with someone who had racially abused him . The manager told him to” let it go”.

The complainant had no involvement other that a written statement in the investigation. He was never given an opportunity to comment on the team leader’s account of the incident. In this way he was denied fair procedures and natural justice concerning the investigation of his complaint.

The complainant’s barrister objected to the respondent’s assertion that they encouraged the complainant to make a formal complaint as this was not was not put to him when he was giving his evidence. The respondent criticised him for seeking legal advice.

The complainant’s barrister stated that the respondent had failed to meet the requirements set out in the Employment Equality Act 1998 ( Code of Practice) Order 2012. It requires that the parties to the complaint should be informed of the time frame for dealing with the complaint and that both parties are entitled to be accompanied and represented at the investigative meeting .This did not happen. No follow-on support was provided to the complainant or counselling.

Complaint about discriminatory treatment regarding training.

The respondent refused to allow him to attend a first aid course, nominated another employee of a different race to the complainant and when that employee opted out still failed to send him on first aid course.

The complainant’s barrister refers to the case of Odion v Tecniform ( Waterford) Ltd., DEC -E2007-018, where the Equality officer found that the investigator’s failure   to properly identify the repeated instances of harassment as racial abuse and the respondent’s   failure to deal with the complainant’s isolation in the workplace amounted to discrimination on the grounds of race.

The complainant’s stated that a final written warning was not sufficient to meet the threshold required in this particular complaint

The complaint in the instant case has raised an inference e of discrimination. The burden must pass to the respondent to disprove the charge of discrimination by demonstrating that the respondent conducted an investigation into the complaint in accordance with the principles of natural justice. That did not happen.

CA-00030884-002. Complaint under section 77 of the Employment Equality Act, 1998

The complainant submits that he was victimised for having complained of racial abuse and for having indicated that he was considering taking action against the respondent.

After the complainant made the complaint of racial discrimination against the ream leader in May 2019 , he noticed a change on the part of two Team Leaders in the warehouse and the Warehouse Manager towards him . They were responsible for drawing up the rosters. From 5 August the team leader began scheduling him for the less favourable shift of 11.00-20.00. Previously he had alternated between a late and early shift on a weekly basis. This happened less, and he was placed on the late shift two weeks in a row in August which owing to transport meant he did not get home until 11pm. He was rostered to work weekends and scheduled for non- consecutive days off. He never got a weekend off after week 34 which was the week of the 19 -26 August which is after he had complained about the rosters and after he had complained in May about the racist abuse.

There was an incident with the warehouse manager concerning a change in the roster. He asked Team Leader 2 could he change his days off to Thursday and Saturday for 2 weeks so as to enable him to attend his son’s football match. Team leader 2 told him to tell Team Leader 3 as he was to be on leave. He told Team Leader 3 who made no issue of his request and the complaint changed the handwritten, provisional roster. It was a draft roster; hence it was handwritten. The complainant asked the relevant Leader to be advised of the change as she was off on that day. The complainant was off on Thursday15 August. The next day the warehouse manager reprimanded him for 45 minutes for having changed the roster even though he had asked the Team Leader for 2 specific days off as invited to do so and had notified relevant Team Leaders of his change to the roster.

The Team Leader and Warehouse Manager refused to accommodate him with earlier shifts even though he had a 2-hour commute .

The complainant went on sick leave on 28 August . He had hurt his knee when loading the truck Week commencing the 9 September, week 37 , the complainant asked a colleague to swap with him when he saw that he was scheduled for the 11-8 shift. He asked Team Leader 1 why the Warehouse Manager scheduled him like this. The Team Leader told the complainant that he had to follow the rosters. He considered this victimisation as it is a long wait for the bus and he does not have a car.

He went to work on 8 September at 11.00. He   rang the team leader to tell him of knee injury. He also informed the respondent who advised him to report the injury. The complainant felt there was no point in reporting the injury as he had previously reported an injury to his finger and nothing was done about it. The complainant got a cert on 9 September stating that he was fit to return to work on 23 September. He was also depressed as he believed that the problems with the roster resulted from his making a complaint of racial abuse in May.

On 16 September the respondent manager asked him if he was interested in a job in the town where he lives. But that job paid a lower rate €9.80 for 60 hours whereas the then, current hirer paid €12 for a 40-hour week. She asked the complaint to let her know by the 18 September. He messaged her to say he would not take the position because of the much-reduced pay. She called him on 18 September to say the Hirer no longer required him. He stated to her that she was letting him go because of the complaint of discrimination which he had submitted to the WRC on the 12 September.

The complainant challenges the respondent’s characterisation of the roster issue as a collective matter. It was peculiar to him.

CA-00030884-001. Complaint under section 77 of the Employment Equality Act, 1998

The respondent denies the charge of discrimination.

The respondent deplores any affront meted out to the complainant.

The only incident brought to the respondent’s attention was the 21 May incident.

The respondent recruitment agency encouraged him to make a formal complaint in the face of his initial, stated desire to make an informal complaint. The respondent manager met the perpetrator . He advised that he had apologised to the complainant and did so again , profusely. The respondent acted promptly and investigated the matter. The perpetrator admitted to the statements as reported to the respondent by the complainant. He was given a final written warning which is one step short of dismissal.

The respondent relies on section 14A(2) of the Acts which provides a defence to a complaint of harassment where the respondent takes steps to prevent a recurrence. They took measures to prevent a recurrence of such harassment. Training was provided to the perpetrator in addition to the final written warning . The respondent has robust policies in place protecting an employee’s right to work in in an atmosphere free of harassment and discrimination.

The respondent manager gave evidence. She told the complainant that they would be processing his complaint as formal complaint. She told him they would be activating the disciplinary procedure against the Team Leader.

In cross -examination the manager accepted that she did not give the complainant a timeline for processing the complaint nor an opportunity to confront the perpetrator. She did not provide him with the statement of the perpetrator, did not offer the complainant counselling or support during the investigation, did not compile and give a report of their conclusions to the complainant and failed to advise the complainant of the actual sanction imposed on the perpetrator. The manager stated that the complainant never asked to move away from Team Leader 1.

The IBEC representative states that the complaint is against the recruitment agency. The respondent did initiate an investigation into the matter. The complainant’s barrister refers to the absence of involvement by the complainant in the investigation, but the statement of May 21 was not contested.

The respondent is entitled to rely thus on section 14A (2) as a defence to the charge of discrimination.

The respondent states that Odion v Tecniform( Waterford) Ltd., DEC -E2007-018 is distinguishable in that in the instant case, it was a once off statement , the perpetrator admitted he made the statement and he was sanctioned.

The respondent states that Hirer took adequate corrective action in relation to this complaint

Training

The respondent states that the complainant received the same training as all other warehouse staff of the respondent.

The respondent points to McCamley v Dublin Bus DEC E2015-100. where the defence of section 14A(2) was accepted in circumstances where that respondent implemented the terms of their procedure and the perpetrator was sanctioned for having made discriminatory remarks based on the race and religion of that complainant.

CA-00030884-002. Complaint under section 77 of the Employment Equality Act, 1998

The complainant refers to the change in the pattern of rostering him as evidence of victimisation for having made a complaint. The Hirer and not the respondent has full and complete control over the rosters. The respondent refers to the complainant’s evidence that all staff were perturbed about the behaviour of the warehouse manager towards them. The matter of rosters was not peculiar to the complainant. So therefore, the roster issue is not connected to race.

The respondent referred to the complainant’s statement that roster issue was more to do with victimisation – making him suffer -as opposed to his race.

The respondent states that the complainant informed the respondent that he was having difficulty getting to work as he no longer had transport. The respondent offered him an assignment nearer his home, but he declined that offer.

The ending of the assignment with the Hirer.

On 28 August the complainant did not attend work and made no contact with the respondent. He returned to work on 7 September. He told his team lead that he would not be back in work the following Monday unless the matter of the roster was resolved. He left work early on 7 September complaining of pain in his knee. He telephoned the respondent on the 9 September to report his absence. He was asked to provide a medical certificate. The complainant stated he was scheduled to attend his doctor on the 12 September after which he would submit a medical certificate. No certificate was received until the 20 September. The respondent contacted the complainant on the 13 September stating that a medical certificate was required to cover his absence which by now had extended from 28 August to 12 September with the exception of a part-day on 7 September. The complaint against stated that the late shifts did not suit him because of transport . The respondent contacted the complainant in the 18 September about his absence and failure to provide a medical certificate. The complainant stated he would not be returning to work after his sick leave due to transport difficulties. His friends would collect his items. The respondent offered him an alternative assignment, but he declined.

The complainant did submit a medical certificate on 20 September certifying him absent from 9 September to 20 September and certifying him fit to resume work on the 23 September.

The WRC notified the respondent on the 20 September of the instant complaint.

The complainant took up alternative employment on the 23 September.

On 19 September the respondent manager advised him that his assignment with the Hirer was ending but that they had another assignment for him . His assignment ended because of his unreliability in attendance and failure to comply with sick leave requirements.

The IBEC representative referred to the complaint form where the complainant refers to a “little disagreement” with one of the team leaders which led to the rosters being arranged as they were.

I have been asked to establish if the harassment of the complainant constitutes discrimination by the respondent in relation to the complainant’s conditions of employment

Section 14A7) ( a ) of Employment Equality Acts define harassment as

“(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person ’ s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.

The statements made to the complainant by the Hirer’s team lead in late February and on 21 May 2019 and uncontested are indicative of a reprehensible mindset and undoubtedly constitute harassment on the grounds of race. The comment could not be other than degrading , hostile and humiliating.

Section 14 A (2) offers a defence to an employer

“(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1) , it is a defence for the employer to prove that the employer took such steps as are reasonably practicable —

( a ) in a case where subsection (1)(a)   applies (whether or not subsection (1)(b)   also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

( b ) in a case where subsection (1)(b)   applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim ’ s employment and, if and so far as any such treatment has occurred, to reverse its effects.”

The complainant argues that section 14A (2) does not applyin the instant case because the procedure was wanting in terms of natural justice. But it is not contested that the statement was made and that the statement was the sum of the complainant’s complaint. The absence of the complainant’s involvement in the investigation did not result in anything other than the statement was readily admitted by the perpetrator so the complainant’s absence did not compromise a finding in his favour or the outcome. The respondent found in his favour. The complainant was advised that a sanction , unspecified, had been applied.

The absence of a written report, the absence of counselling for the complainant as recommended in the Employment Equality Act 1998 ( Code of Practice) Order 2012, though imperfect aspects of the process, are not sufficient to deprive the respondent of the right to plead the defence of section 14 A(2) of the Acts. The steps taken by the respondent to prevent a recurrence entailed an apology from the author of the statement, the respondent’s encouragement of the complainant to proceed with a formal complaint, the respondent’s investigation of the complaint, their apology for the statement and affront, the application of the penultimate sanction in their armoury to the perpetrator and the requirement for the perpetrator to undertake training .

I cannot say as asked that the sanction was inadequate.

The complainant did not ask to be moved to a different section. There was no further incident. The complainant’s own evidence was that he engaged with the offending Team Leader in August concerning his rosters.

The complainant’s barrister refers to Odion v Tecniform ( Waterford) Ltd., DEC -E2007-018. This involved repeated instances of harassment against the complainant, a black, Nigerian and a finding by a respondent- commissioned investigator of cultural differences. as opposed to evidence of discrimination on race grounds. The Equality officer found that he had been discriminated against. But in the instant case, the respondent apologised to the complainant and applied a sanction to the perpetrator. I do not find that the latter decision assists the complainant. I cannot say that the sanction was inadequate.

On the basis of the evidence and for the above reasons, I find the respondent is entitled to avail of the defence of section 14 A(2). I find that the respondent took steps to reverse the effect of the harassment and to prevent a recurrence. I find that the respondent did not harass the complainant on the race grounds in contravention of the Employment Equality Acts.

Complaint about discriminatory treatment regarding training.

No evidence was presented of difference in treatment between the complainant and other agency workers of a different nationality or colour in relation to training for the job.

CA-00030884-002. Complaint under section 77 of the Employment Equality Act, 1998.

The complainant contends that he was victimised

“as a reaction to a complaint of discrimination made by the employee to the employer”,

and contrary to section 74(2) of the Act of 1998 as amended. The act of victimisation was the provision of less favourable rosters in August 2019 and after he had made the complaint to the employer and after he had indicated to the employer that he was considering proceedings against the respondent. This was one element in a chain of events prompted by his complaint of harassment on grounds of race. The less favourable rosters included less weekends off, fewer consecutive days off and later 11-8pm shifts as opposed to the previous pattern of alternating early and late shifts and which the respondent knew were awkward as bus transport meant he could not get home until after 10 pm.

Section 74(2) states that victimisation occurs where “dismissal or other adverse treatment of an employee by his or her employer occurs

The Hirer and not the respondent, the employer, had complete control over the rosters. Copies of rosters reveal that all on the shift worked at the weekend.

I do not find that the failure to tailor shifts to the personal circumstances of the complainant constitutes penalisation. Other agency workers worked similar shift patterns. The complainant did not bring the problematic shifts to the respondent’s attention until September after which he only worked part of a day.

As this complaint of victimisation is made against the respondent and as the Hirer and not the respondent is responsible for the shift allocation I do not find that the complainant was victimised by the respondent contrary to the provisions of the Employment Equality Acts in the changed rosters.

The complainant’s assignment with the Hirer came to an end. His employment with the respondent did not end. I have considered of the offer of a different assignment at a lower pay rate. This came about because the complainant wanted to work nearer his home or have improved transport facilities and the alternative job offered to him was in the town in which he lived. I accept the evidence that he did not meet the Hirer’s expectations in terms of reliable attendance.

His contract provided for different assignments.

I do not find that the respondent , the employer, victimised the complainant contrary to section 74(2) of the Employment Equality Act 1998.

CA-00030884-001. Complaint under section 77 of the Employment Equality Act, 1998.

I do not find that the complainant was discriminated against on the grounds of race.

CA-00030884-002. Complaint under section 77 of the Employment Equality Act, 1998.

I do not find that the complainant was victimised contrary to section 74(2) of the Employment Equality Act, 1998.

CA-00030885-001.   Complaint under section 77 of the Employment Equality Act, 1998. This is a duplicate of CA -00030884-001 above.

CA-00030885-002. Complaint under section 77 of the Employment Equality Act, 1998. .This is a duplicate of CA -00030884-002.

CA-00030885-003. Complaint under section 77 of the Employment Equality Act, 1998. .This is a duplicate of CA -00030884-001

CA-00030886-001. Complaint under section 77 of the Employment Equality Act, 1998. This is a duplicate of CA-00030885-001.