ADJ-00024277

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00024277

Parties:

	Complainant	Respondent
Parties	Muqeet Haider	Provincial Security Services Ltd

Representatives

Darragh Whelan & Helen Quinn of IBEC, Davina Lavin, Carmel Moran

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-00030987-001	18/09/2019

Date of Adjudication Hearing: 07/01/2020

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015following 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 Security Officer since 3rd December 2018. He is paid €1,600 per fortnight. He has claimed that he was discriminated against because of his race. The Respondent has rejected this complaint.

Summary of Complainant’s Case:

The Complainant stated that a work colleague made derogatory comments regarding his nationality and race in June /July 2019. He is the only Asian at work. The main comments were ~only white people sit at reception”. “you support terrorism back home and are in contact with Al Qaeda”. Other colleagues refused to shake his hand in front of colleagues. The Complainant asked him to stop but he replied that it was only a joke and “I don’t give f**k go and complain about me”. He then made a complaint to his manager and senior management about this individual. The company carried out an investigation. The alleged perpetrator still worked there after a few weeks after the investigation. They then offered mediation, which he found to be disrespectful. He replied that he didn’t want to work with this individual. Their work places were changed but he was still employed by the company. They told him that they couldn’t sack the alleged perpetrator. He became stressed and was certified unfit for work for 2.5 months. They refused to pay him for two weeks of his absence. The Respondent offered counselling, which he accepted and undertook 9 sessions. He discussed whether he would be entitled to compensation with his solicitor. The Respondent refused to give him compensation. He is seeking compensation, payment for the last 3 weeks of his absence and medical expenses incurred.

Summary of Respondent’s Case:

Upon commencement the Complainant undertook induction training on all company policies including grievance, disciplinary and anti-bullying policies. Induction training is further provided by the client company and a code of conduct is in operation. This code of conduct prohibits harassment. On 7th July 2019 the Complainant made a written complaint against a colleague. The Respondent immediately offered to change his work site or work pattern to avoid any further contact with the alleged perpetrator until the matter was investigated. He declined the offer of a change. He was asked to provide a written statement which he did on 11th July 2019. Meetings were held with the alleged perpetrator and witnesses. The alleged perpetrator stated that he made the comments in jest and no malice was intended. The outcome of the investigation was issued to the Complainant on 24th July advising that his complaint was upheld. The perpetrator wanted to apologise to the Complainant, and he was offered mediation which was declined. The Respondent progressed the matter to a disciplinary procedure and the outcome was that the perpetrator was dismissed from his employment on 7th August 2019. The Complainant went out sick on 26th July until 24th September. He availed of 9 counselling sessions paid for by the Respondent. The Respondent rolled out further bullying and harassment training across the organisation throughout September and October.

It is the Respondent’s position that he was discriminated against on grounds of race. It is their position that they acted reasonably and diligently in addressing his complaint once they were notified. They referred to Sec 14 A (2) of the Employment equality Act “it is a defence for the employer to prove that the employer took such steps as are reasonably practicable”. They cited Willam McCamley v Dublin Bus 9DEC-E2015-100 in support. It is their contention that all reasonable steps were taken to remedy the situation. They conducted a fair investigation and immediately provided the Complainant with an opportunity to work in a different site or alter his work pattern to avoid contact with the alleged perpetrator at the time. They upheld the complaint, offered mediation before proceeding to use the disciplinary procedure, which resulted in the perpetrator being dismissed. He was given paid counselling and they rolled out a refresher training on bullying and harassment. All efforts were made to reverse the effects of the harassment and to prevent future occurrences taking place. He continues to work for the Respondent and no further instances of harassment have occurred. They conducted a review of the sick pay and have now ensured that he received full pay for the period of his absence. The under payment was caused by the absence of a medical certificate. They also advised that any medical costs can be covered through the sick policy once medical bills are produced. They acted reasonably and quickly to address this matter. They reject this complaint.

Findings and Conclusions:

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 s/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 the case of Arturs Valpeters v Melbury Developments Ltd [2010] 21 E.L.R. 64 the court stated in respect of the provision in S 85A that; “This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they must be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

In this case I note that the Complainant encountered actions by a colleague, which he deemed to be harassment and discriminatory behaviour.

I find that an examination of these allegations clearly shows that the Complainant has established a prima facie case of discrimination by a colleague at work.

I regard these allegations as being of sufficient significance to raise a presumption of discrimination, and that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.

I note that following these actions by a colleague the Complainant made a formal complaint and the Respondent took immediate action to address this matter.

I note that they offered to move him away from the alleged perpetrator once they were made aware of the complaint.

I note that he was offered mediation, which he declined, as he was entitled to.

I note that the Respondent escalated the matter to a disciplinary investigation, and they applied the highest sanction of dismissal to the perpetrator.

I note that they paid for nine sessions of counselling.

I note that he was paid in full for the two and a half months medically certified absence.

I note that the Respondent has offered to reimburse medical expenses incurred during this incident upon the supply of medical bills.

I note that Sec 14 A (2) of the Employment Equality Act states, “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.”

I note that the Equality Tribunal has taken the view this section gives an employer a defence against harassment if it can prove that it took reasonable steps as are practicable to prevent the harassment or where the harassment took place, reasonable steps to reverse its effects, see Willam McCamley v Dublin Bus 9DEC-E2015-100.

I am satisfied that the Respondent provided Induction training which included harassment and this was reinforced by the client company’s induction training.

I find that they have policies and procedures, which are in place and acted upon to deal with this type of matter.

I find that the Respondent acted immediately once they became aware of the complaint.

I find that they offered to remove the Complainant from the then alleged perpetrator until such time as the matter was fully investigated.

I find that they carried out a fact- finding investigation and then escalated the matter to a disciplinary investigation.

I find that they upheld the complaint and the outcome was that the perpetrator was dismissed from the employment.

I find that they rolled out refresher training when this matter came to light.

I find that the Respondent acted quickly and reasonably to address this matter.

I find that in this case the Respondent may rely upon Sec 14A as set out above as a defence.

I find that the Respondent took every reasonable step to deal with this incident of unacceptable behaviour and to reverse its effects on the Complainant.

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.

For the above stated reasons, I have decided that the Respondent took all reasonable steps to address this matter once they were made aware of it and to reverse its effects.

I have decided that Sec 14A provides a defence for the allegation made against them.

ADJ-00024277

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00024277

Parties:

Dated: March 4th 2020

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words: