FULL RECOMMENDATION
PARTIES : CPL SOLUTIONS LIMITED T/A FLEXSOURCE RECRUITMENT DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No:ADJ-00024254 CA-00030884-001, 002 This is an appeal by Mr Victor Kings Oluebube (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00024254, dated 30 June 2020) under the Employment Equality Act 1998 (‘the Act’). The Complainant was employed by CPL Solutions Limited T/A Flexsource Recruitment (‘the Respondent’) as an agency worker and assigned to Kuehne & Nagel as a Warehouse Operative. The Adjudication Officer held that the Complainant’s complaints of racial discrimination and victimisation under the Act were not well-founded. The Complainant’s Notice of Appeal was received by the Court on 6 August 2020. The Court heard the appeal in Dublin on 29 September 2021 in the course of which it received evidence from the Complainant and from Ms Kirsty McDonald on behalf of the Respondent. Complaint of Discrimination on the Race Ground The Complainant is a black Nigerian national. His assignment by the Respondent to Kuehne & Nagel commenced on 14 January 2019. He worked with a number of others, including his Team Leader, Mr AM, who were also employees of the Respondent. The Complainant was required to work five days over seven, Monday to Sunday. Two different shifts were operated in the warehouse at Kuehne & Nagel – 8.00 am to 5.00 pm and 11.00 am to 8.00 pm – and the Complainant could be assigned to either shift in any particular week. The responsibility for managing the roster lay with the Warehouse Manager (‘PS’) who was a direct employee of Kuehne & Nagel. It is common case that the Complainant was subject to racial harassment by his team leader, AM, on two occasions. On a date in late February 2019, AM called the Complainant a chimpanzee and made monkey noises while imitating the gestures of a monkey in front of a number of co-workers. The Complainant did not report this incident at the time. On 21 May 2019, AM repeated the same racist abuse of the Complainant in the presence of other co-workers. The Complainant reported the abuse to Mr PS, the Warehouse Manager, on 23 May 2019. He, in turn, reported the matter to the Respondent. Ms Kirsty McDonald contacted the Complainant by email later on 23 May 2019 and requested him to provide her with a written statement setting out his version of the interaction that he had had with AM. The Complainant replied by email on the following day and provided Ms McDonald with an account of both incidents of racial harassment he had been subjected to by AM. Ms McDonald told the Court that she then proceeded to carry out an investigation into the incidents reported by the Complainant in the course of which she interviewed, AM, two witnesses and two other co-workers. The complaints of harassment on the race ground were upheld and AM was subject to a disciplinary procedure the outcome of which was a final written warning. Ms McDonald had no further contact with the Complainant between 24 May 2019 – the date on which she received his written account of the incidents with AM – and 12 June 2019. On that date, Ms McDonald met with the Complainant to inform him that her investigation had concluded, his complaints had been upheld and a sanction had been administered. She gave no further details to the Complainant. He, therefore, emailed Ms McDonald the following day and requested her to set out the details of the outcome of her investigation in writing. Ms McDonald replied as follows on Monday 17 June 2019: “Hi Victor, I would like to clarify that Flexsource do not in any way condone what happened between yourself and [AM], we are very sorry that you had to bare (sic) the brunt of that situation. Flexsource went ahead and investigated this incident and have closed the investigation meeting with a disciplinary. All due process was followed by Flexsource and Kuehne & Nagel. I would also like to add, at the start when this was first brought to the attention of Flexsource, you said you would like [AM] to receive a warning and you wanted it to stay informal. You then changed your mind as the investigation was midway to say you sought the advice of a solicitor. Flexsource went ahead with the formal investigation meeting and have followed all process.” Under cross-examination by Counsel for the Complainant, Ms McDonald confirmed that neither the Complainant nor his co-workers had been provided with any training in relation to the prevention of bullying and harassment in the workplace. She confirmed that the only reference to these matters is to be found in a short section of some two paragraphs in the Employee Handbook, furnished to employees electronically at the commencement of their employment. Ms McDonald confirmed that the employees were not at any time furnished with details of a complaints and investigation procedure. In reply to a question from the Court, Ms McDonald said that she had relied on her experience as a Human Resources Practitioner when conducting her investigation into the Complainant’s allegations and did not follow any written protocol the Respondent had in place. Finally, Ms McDonald confirmed that she did not consider arranging counselling for the Complainant or referring him to the Respondent’s Employee Assistance Programme as this was referenced in the Employee Handbook and she assumed that he was, therefore, aware that it was available to him. Complaint of Victimisation The Complainant told the Court that he had no further problems in the workplace at Kuehne & Nagel until late August 2019 when PS rostered him for the 11.00 am to 8.00 shift for two weeks consecutively, including two Sundays, beginning 18 August 2019. According to the Complainant, PS knew that Sunday afternoons were inconvenient for the Complainant as he was reliant on public transport to travel to and from work and arrived home very late when rostered to work until 8.00 pm on a Sunday. As it transpired, the Complainant worked only the first week of that roster as he was unwell on the Monday of the second week and called in sick that day. He did not return to work at Kuehne & Nagel thereafter. The Complainant alleges that rostering him in the manner outlined above was an act of victimisation within the meaning of the Act. When pressed by the Court to explain why he believed this to be the case, the Complainant replied that he had a feeling that attitudes in the workplace towards him were beginning to change at this point whereas he had been treated well in the intervening period following his complaints of racial harassment. In her evidence on this matter, Ms McDonald confirmed that the management of rosters was entirely a matter for Kuehne & Nagel and not something that the Respondent had any input into. She also suggested that the period in question was a one in which there was a high demand for annual leave from employees and that this was a possible explanation for the change in the Complainant’s work pattern at that time. The Law Section 14A of the Act provides both a definition of what constitutes harassment on the nine protected grounds – including race – and provides a defence for an employer in certain circumstances. The fact that the Complainant was the target of harassment on the race ground is admitted in this case by the Respondent. The Respondent, however, seeks to avail itself of the defence set out in section 14A(2) which provides: “(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.” Clearly there are two limbs to the defence set out in section 14A(2), both of which must be satisfied by a respondent who seeks to avail itself of that defence. In the first instance, a respondent must demonstrate that it took “such steps as are reasonably practicable …. to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim”. A respondent may be able to demonstrate that it has fulfilled the requirements of paragraph (a) where it has a comprehensive anti-harassment policy (including an appropriate investigation procedure) in place, has provided appropriate training to staff and, in particular, has trained managers in relation to accepting and investigating complaints of alleged harassment. Paragraph (b) requires a respondent to demonstrate that it has taken “reasonably practicable steps … to prevent the victim from being treated differently in the workplace … and, if and so far as any such treatment has occurred, to reverse its effects.” This paragraph is understood to comprehend initiatives such as the provision of counselling to an employee who has experienced harassment on any of the nine grounds, a referral of the employee to an Employee Assistance Programme and the provision of refresher training on diversity and equality to all employees and managers, as appropriate. Section 74(2) of the Act defines victimisation as follows: “(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to— (a) a complaint of discrimination made by the employee to the employer, (b) any proceedings by a complainant, (c) an employee having represented or otherwise supported a complainant, (d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act, (e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment, (f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or (g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.” Discussion and Decision Ms McDonald’s evidence to the Court is that the Respondent’s compliance with section 14A(2) in this case consists of a Bullying and Harassment policy of little over one page in the Employee Handbook supplied electronically to the Complainant and which includes references to “informal and formal procedures that are in place to deal with the issue of bullying/harassment at work”. Nowhere are those procedures set out in comprehensive manner for the Respondent’s employees. Ms McDonald proceeded to investigate the Complainant’s serious allegations of racial harassment by his Team Leader relying solely on her experience; she did not have regard to any documented procedure put in place by the Respondent. In doing so, Ms McDonald failed to provide the Complainant with any terms of reference or timeline for her investigation. She did not give him sight of any witness statements procured by her nor did she give him the opportunity to respond to anything said by the perpetrator of the harassment. She simply informed him verbally in a general way on 12 June 2019 that she had concluded her investigation, that she had upheld his complaints and the perpetrator had been sanctioned. Having regard to the Respondent’s very unsophisticated Bullying and Harassment policy and to thead hocapproach adopted by Ms McDonald to the investigation of the Complainant’s allegations, the Court finds that the Respondent has not satisfied the requirements of paragraph (a) of section 14A(2) of the Act. Furthermore, Ms McDonald’s evidence to the Court was that no steps were taken to reverse the effects of the racial harassment experienced by the Complainant. It follows, therefore, that the requirements of paragraph (b) likewise have not been fulfilled by the Respondent. The Respondent accepts that the Complainant was the victim of serious harassment in his place of work at the hands of his Team Leader. The Court, having found that the Respondent has not demonstrated compliance with both paragraph (a) and paragraph (b) of section 14(A)(2), determines that the Respondent is vicariously liable for the harassment in question. Having regard to the serious nature of that harassment and the effects that it has had on the Complainant, and the Court’s obligation to provide for redress under the Act that is dissuasive and proportionate to the injury suffered by the Complainant, the Court measures the appropriate compensation at €30,000.00, equivalent to approximately 63 weeks’ gross pay in the case of the Complainant. On the other hand, the Court determines that the complaint of victimisation is not well-founded. It is common case that the Warehouse Manager at Kuehne & Nagel had sole responsibility for the roster. The Respondent had no role whatsoever in the rostering of employees in the Complainant’s work location. Furthermore, there was no evidence before the Court from which it could be inferred that the change to the Complainant’s roster in late August 2019 was ‘in reaction to’ his complaints of racial harassment or the investigation into those complaints which had concluded on 12 June 2019, some two months earlier. The decision of the Adjudication Officer in relation to the racial harassment element of the Complainant’s case is accordingly set aside; the decision at first instance in relation to the victimisation element of the case is upheld. The Court so determines.
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