Complainant

Respondent

Parties

Czeslaw  Kaminski

Ballymaguire Foods Limited

Representatives

Marie Flynn BL                                              Tracy Brady Solicitor                                     McGuigan  Solicitors

Vincent Nolan BL                        James Staines                             Staines Law

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-00040134-001

29/09/2020

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021)  the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

I informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there is a serious and direct conflict in evidence between the parties to a complaint, that an oath or an affirmation would be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of a false statement or evidence is an offence.

In the interests of fairness, the WRC acquiesced to an application made for the provision of an interpreter. It is noted that the interpreter is provided to assist the Adjudicator to conduct an orderly and fair hearing of the Complaints being made by the Complainant in his/her preferred language.

The Complainant was fully represented. At the outset, the Complainant and the Interpreter were obliged to make the affirmation to tell the truth and so interpret. The Complainant brought a number of witnesses to provide evidence in support of his case. I was provided with a comprehensive submission dated the 8th day of January 2021. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form.  I was provided with supplemental documentary evidence in support of the Complainant’s case. The Evidence adduced by the complainant and his witnesses was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that he was discriminated against on the grounds of his race and age while employed in the Respondent food preparation facility.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent had representation at this hearing. The Respondent provided me with a written submission dated 25th of January 2022. I have additionally heard from a number of witnesses for the Respondent. All evidence was heard following an Affirmation. The Respondent witnesses were questioned by the Complainant representatives.

The Respondent rejects that there has been any unlawful discrimination and does not accept any contravention of Equality rights as protected by statute.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

With the assistance of the interpreter, the Complainant gave evidence on his own behalf. The Complainant is from Poland and came to Ireland in 2006. He has been with the Respondent since 2017 and works on a minimum wage. The Complainant worked at a general Operative level and in particular in the dispatch section of the Respondent facility. The Respondent is in food production and prepares foods for major retail and supermarket clients at considerable scale.

The Complainant described a pressurised workplace where there was an expectation of identifying, labelling (with stickers and sleeves) and packaging up of different foods and products for distribution and delivery. The Complainant felt that his placement on the production line was such that it was a two-person job and there was, he says, a certain amount of physical burden in terms of the weight that he might be expected to carry from the dispatch line to the loading pallets. The Respondent suggests that the area in which the Complainant worked was a “low care” area where the food was already sealed and simply needed to be sorted, stickered, racked, stacked and packaged. The Respondent maintains there were no safety issues in this end of production and employees were not expected to carry or manoeuvre large quantities of product.

It should be noted that I was shown some CCTV footage of the Complainant and his colleagues working on the production line so as to get some helpful context and understanding for the lay out of the workplace. I accept that the footage did not show a particularly busy pace of work, though I recognise that different days bring different demands and have no reason not to accept the proposition made by the Complainant that sometimes things can get hectic and pressurised.

The Complainant says his problems started when a Mr. B became his Line Supervisor. The Complainant said that Mr. B humiliated him and intimidated him. Mr. B appeared to have it in for the Complainant as a native polish person. He described the Complainant as an “old communist” and a stupid or blind communist. Mr B he says often described him as a Polish Alcoholic – an offensive stereotyping of the Polish race. It seems that there was this constant put down of the Complainant as a Polish person.

The Complainant says that describing him as a communist is particularly disparaging in the context of Polish self-identification and history.

Much of Mr. B’s ire seemed to be directed at the Complainant’s not being as fast in the workplace as he would have liked. The frequent suggestions by Mr. B that the Complainant was fat, old and blind appeared to be based on him being too old and too unfit to do the job.

The Complainant stated that all the other Polish workers in the plant tried to protect him by changing place with him on the production line so that the Complainant did not have to carry out the more onerous tasks. I understand that in June 2019 the Complainant had a knee injury and needed to avoid bending and that Mr. B simply laughed at him. It was all part the same abusive and derogatory behaviour. The Complainant says that Mr. B seemed disdainful of all races other than his own. Mr. B is Moldovan.

The Complainant accepted that he never raised any of the issues regarding the treatment by Mr. B with anybody higher up the Management chain. He understood that one or two of his colleagues might have said something to a Mr. McK on his behalf or on their own behalf. It is clear however that Mr. McK never sought out the Complainant to confirm any issues that might have been raised with him on the complainant’s behalf.

The Complainant says he was anxious and worried whenever he was assigned to a shift where Mr. B was the supervisor. Mr B arranged the Holidays, Leave, shifts and schedules and the Complainant was too afraid to ask him for any favours regarding these.

The Complainant believed that Mr. B had hoodwinked the Management into believing he was a worthy and dependable Supervisor. For this reason, he never made any complaint about Mr. B himself. His colleague Cristof gave evidence and confirmed that he had seen Mr. B picking on the Complainant. He would use abusive and humiliating language and said that Mr. B seemed to be criticising the Complainant’s pace of work. It happened often enough but Christof was personally disinclined to get involved. Cristof says he heard Mr B accuse the Complainant of having to take Mondays off because he was drinking so much at the weekends. Cristof said that there was a perception amongst the operatives that Mr. B had a problem with everyone who was not from Moldova. He acknowledged that the Complainant always expressed upset at the prospect of working shifts with Mr. B. Cristof expressly corroborated the evidence that the Complainant was being harassed by Mr. B

Cristof said that the job requires speed and dexterity, and all the employees have to keep their wits about them to keep the line moving. If there were more onerous jobs assigned to the Complainant Cristof would often swop with the Complainant, in ease of him. Cristof confirmed that whilst there were a group of them united in their belief that Mr. B treated the Complainant very badly, they did not approach Management about him per se.

Cristof did say that about 4 months prior to June 2020, he had gone to Mr.McK to raise concerns about how Mr. B was dealing with his team which included the Complainant and Cristof himself. The intervention was on behalf of everyone subordinate to Mr. B and it was not just about the Complainant. Cristof says that nothing changed in the aftermath of this intervention, which was disappointing. Cristof was very vague on what exactly he said to Mr.McK. It seems to have been a general complaint about the supervision style operated by Mr. B.

The Complainant says he and Mr. B clashed in the workplace on the 12th of June 2020 as the Complainant was having difficulty performing his job. The Complainant says Mr. B used offensive language in the usual way leaving him demeaned and upset. In fact, the Complainant’s health deteriorated significantly to the extent that the Complainant had to have a family member come in and bring the Complainant to the Hospital with suspected cardiac incident. I understand that the Complainant had a surgical by-pass.

Cristof confirmed that whatever was said by Mr B to the Complainant on the 12th day of June he could see that the Complainant had become visibly upset. The Complainant went home he believes after his next break. Mr. Cristof says that he told Management about what he had observed that day and he explained that he had seen Mr. B apparently speaking harshly to the Complainant who got visibly upset. Cristof says he did not see the Complainant get aggressive with the Mr. B on the 12th of June. Cristof stated that he was even asked to sign a statement of what he had witnesses.

The Complainant feels very strongly that Mr. B and the workplace are responsible for this health scare. The Complainant was deeply upset that his employer never contacted him during his period of recovery.

The Respondent’s evidence is that there was no issue on the production line and that the Complainant never raised an issue in any event. It was put to me in evidence offered by Mr. GC  for the Respondent that all appropriate policies were implemented and accessible in the workplace. In particular, I note that the workplace has produced a Group Staff Handbook which is in Polish. The Respondent presented the paperwork which appeared to confirm that the complainant got a copy of the said Polish Handbook. There can be no doubt that the Handbook does reference the Dignity in the workplace policy, as well as the Policy for non-discrimination. Also available to the Complainant was the more regularly utilised Grievance policy.

The Complainant it seems had formed the view that there was no point in coming forward and making a complaint about the treatment he was receiving at the hands of his line Manager Mr. B. However, the Respondent did point out that the complainant was able to approach Management when he needed to have a knee injury accommodated in the workplace. The Complainant agreed that he had gone to a Mr. GC on that occasion and that Mr. GC had gone over Mr. B’s head on that occasion to ensure that the Complainant would operate at a light pace for the time recommended by his Doctor. The Respondent argued that if the Complainant could come directly to a more senior Manager once what inhibited him from doing it again?

Mr. McK gave evidence on behalf of the Company. As Dispatch Operator Mr. B is answerable to him. McK denies any approach was made concerning Mr. B treatment of the Complainant or anyone else. He did recall Cristof making representation about a female worker on an unrelated issue and Mr. McK had escalated this matter up to HR which would be his default move when issues concerning interpersonal relationships were raised with him. He does not recall Cristof making a general complaint about the Mr. B’s treatment of the staff on the productions line. He denies that Mr. B is anything other than an excellent Team leader. He would, for example, always put new members of staff on to Mr. Bs team. He supervises up to 25 people regularly. He says that any employment issues raised with him, he sends them straight to HR. McK confirmed that both he and the Complainant had started at the same time and that he remained on good terms with him even as he moved on up through the ranks. He said that he and the Complainant could comfortably converse in English and that he would oblige the Complainant with shift changes from time to time as requested. He pointed out that there was never any issue concerning the Complainant’s work rate or productivity. He thinks it’s a non-issue – the Complainant worked as well as anyone on that line.

Mr. GC gave his  evidence as the Health and Safety Officer on site. He confirmed the Handbook was available in up to five languages on this site. He oversaw the induction training with the complainant and is satisfied that he would have been given the Handbook – per the form provided. He recalled the Complainant coming forward with a return-to-work document asking that the complainant be given light duty while his knee recovered. He did recall that Mr. B had double checked with him that this had been sanctioned by him GC.

Mr. B gave evidence too. He speaks up to three languages and has he says a good attitude and relationship with all nationalities in the workplace. He rejected the notion that he favoured Moldovans over other nationalities. He denies he can even say the word Communist in Polish. There is a rotation system in place, and nobody gets one task assigned to them to the exclusion of others. Mr B accepted that people work at different rates when assigned different tasks. He needs to keep people moving and upskilled so that absentees can be covered at short notice. Mr B says he did not particularly note that colleagues were swopping out with the complainant. Of course, there was an expectation of teamwork so that everyone would be expected to assist if one link in the chain was falling behind. Mr B believes that MrK would have dealt with him swiftly had any issue ever been raised. No issue was ever raised he says because he never acted in a discriminatory way.

It became clear in the course of evidence that Mr. B would give his directions to the Complainant through either Polish or Russian. It is therefore understandable perhaps that those persons not familiar with either of those to languages might not have picked up on any tension or difficulty or, indeed, cruelty. I certainly cannot criticise Mr. McK or GC in this regard.

The Respondent makes the case that the complainant simply never brought any of these issues to the attention of the Respondent company. The Respondent maintains it has a zero tolerance to any and all discriminatory behaviour and given its diverse workforce that is the only way it can operate. The HR Manager says that no complaint had been made by anyone about Mr. B. The Company position is that the Complainant was treated no differently on the basis of his age or race than any of his other colleagues also working in what was described as the low care area of the facility.

However, on balance, I am inclined to accept that the Complainant was subjected to an ongoing campaign of unacceptable behaviour by his line manager Mr. B. I found his account of his treatment to be credible.  It is very upsetting to think that he was made to feel physically inadequate and ashamed of his age, weight and poor eyesight. It is not right that he was fearful within the workplace. That he was in essence being described as a lazy drunken Polish person is racist and unacceptable. I accept the Complainant’s very real sense of Grievance against the Respondent company for not better protecting him against this regime of subjugation. This was a sustained campaign of bullying and harassment with unacceptable racial and ageist overtones. I am inclined to accept that much of senior Management within the Respondent was unaware of the difficulties being experienced by the Complainant. However, it does not seem appropriate or fair to allow Management to rely on the fearful silence instilled in the Complainant as some sort of defence for it's inaction. Additionally, I believe Mr. B knew exactly what he was doing and (in this regard) it is an unavoidable fact that Mr. B represents the Respondent. He is the line Manager exerting control over the Complainant when it is manifestly clear that he was unsuited to do so. In making this finding I have regard to Section 15 of the Employment Equality Act which sets out the Employer’s Liability for such acts.

The company maintains that had there been any indication that this kind of behaviour and attitude was being conducted on any of its production lines then there would have been an immediate escalation. However, I did not get a sense that this Respondent was being in any way pro-active in ensuring that there was no discrimination in the workplace. There is no suggestion that staff were encouraged to come forward if they were being subjected to conduct which had the effect or purpose of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.  I did not hear evidence about how Mr. B came to be selected as a Line Manager and what training he was given in the area of discrimination when he was elevated. In fact, other than the fact that there is reference to a diversity policy in the handbook there is little evidence to suggest that this was a day-to-day consideration in this diverse workplace.  

Much was made about the fact that the Complainant’s oral evidence did not line up exactly with what was detailed in the pre-hearing submission. Issues of dates and exact terminology and shift patterns were all called into question by the Respondent. I appreciate this can be frustrating for the party expecting to defend the claim, but I am not inclined to disregard the Complainant’s oral evidence on the grounds of credibility. The Complainant had to accept that he had not complained three time to Mr. McK as was suggested in the written submission. Instead, in the course of oral evidence, he relied on one complaint he believed  had been made by Mr. Cristof (The Line Supervisor Substitute) in possibly the Spring of 2020. The Complainant does not and cannot know the content of that complaint made by Mr. Cristof (and it is noted Mr. McK denies it was made at all).

On balance, I found the Complainant’s evidence to be both compelling and heart felt. This is a man who I accept came into work with some trepidation and not a small amount of fear. The Complainant did not want to lose his job and Mr. B became emboldened by the Complainant’s timidity.  It is regrettable that the Complainant did not keep an exact diary, but this does not mean these things did not happen. For the avoidance of doubt, I am finding that this was a sustained campaign of discriminatory harassment - instances of which most certainly occurred in the six-month period prior to the Complaint.

The Complainant’s son gave evidence on behalf of the Complainant. Whilst the son was not a party to what went on in the workplace, he was aware of how disrespected his father felt in the workplace and he too was very upset that Mr. B was making allegations of his Father being an alcoholic unable to function in the workplace.

Mr. B said that on the 12th of June he had asked that the Complainant add promotional stickers to packages as they were being taken off the line. It was a task that had to be done and he says the Complainant refused to do it. In fact, Mr. B says he (the Complainant) argued with him about it. Mr. B told him to calm down. The Complainant he says disappeared later that day. Mr. B said that, if anything, the aggression that day was directed by the Complainant towards him. The Complainant’s son phoned him and shouted at him about what he had done to his Dad. Mr. B says the son was threatening him with a Solicitor. To cover himself Mr. B wrote a letter to Management about what had happened on the 12th of June.

I’m not sure why so much time was spent on trying to define the type of work being carried out. Whether it was two man work or one man work. I am not going to make a call on this issue as it falls outside the remit of the case being made which I note is concerned with Age. There is nothing to suggest that the Complainant’s age (assuming him to be in reasonably good health) precluded him from performing the tasks set herein. The Respondent witnesses all accepted that there was no issue with the Complainant’s performance as a General Operative. I am satisfied that there was appropriate safety equipment on site for any heavy work.

The HR Manger also gave evidence as to what happened after the 12th of June. He says that any Unlawful Discrimination would be subject to Disciplinary Investigation and sanction if found out to have taken place. He noted that Mr B is a popular member of staff and that the Complainant’s allegations against him had come out of the blue. In the immediate aftermath of the Complainant’s departure from the workplace, he was given Mr. B’s version of events and that this had triggered a Disciplinary investigation. He says he had initiated a disciplinary investigation because the complainant had walked off site with no apparent explanation.  However there followed a period of ill health on the part of the Complainant. It was appropriate therefore not to communicate with the complainant whilst out on sick leave. The HR Manager agreed that at that point in time, al he had was the line Manger describing a subordinate refusing to take instruction and walking out. He had no reason to believe something other than those facts were at play here. I note that even after receiving the Complainant’s complaint form from the Workplace Relations Commission the Respondent did not pause to consider and/or otherwise look into the issues raised therein.  The Respondent simply went into defence mode, which is their prerogative.

I accept that the Complainant was subjected to discriminatory treatment by his Line Manager. This was borne by the Complainant until such time as he was forced to leave the workplace by reason of a medical condition. It is not clear to me whether or not the Employment relationship has been terminated. The Complainant’s health may not allow him return to work in a meaningful way. This was a sustained Harassment of the Complainant which was not picked up on by more senior Management.

It is open to me to make an award for the effects of the acts of discrimination. In making this assessment I am mindful of two issues. Firstly, that the Complainant did not give the Respondent (at the senior Management level) an opportunity to put its house in order while he was still in the workplace. There is nothing to suggest (from the demeanour of the Respondent witnesses) that the Complainant would not have been listened to had he gone over the head of his line Manager and raised the issue of the racial and ageist comments being made. It was the Complainant who chose to stay silent on this issue when he clearly was well able to talk to Management on the issue of return-to-work medical accommodation previously needed. Secondly, I do not accept that the Complainant’s multiplicity of medical complaints have been caused by the workplace discrimination he was subjected to. This has not been established as a matter of fact. Any remunerative loss is therefore not attributable to the discriminatory treatment in the workplace.

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

CA-00040134-001 – The Complainant was discriminated against in the course of his employment and I award the sum of €8,000.00 compensation.