ADJ-00031340

Complainant

Respondent

Parties

Andrzej  Waszkiewicz

Allpro Services

Representatives

 HR World Partner

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-00041871-001

08/01/2021

The complainant submits that he was harassed on the religion ground as he is Catholic and on the ground of race as he is Polish.  The respondent rejects the complaints.

The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings.  The complainant used a translator provided by the WRC.

Parties in attendance were advised that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that this hearing before the Workplace Relations Commission would be held in public and that this decision would not be anonymised and there was no objection to same. 

Parties were also advised that an Adjudication Officer may take evidence under oath or affirmation and that cross examination is permitted.  Evidence was taken under oath/affirmation from the complainant Andrezi Waszkiewicz, Angelica Waszkiewicz and from the respondent’s witness Liz Cazabon.  On the first day of the hearing Rachel McHugh from the respondent was in attendance but did not attend the second day and did not give evidence.

The complainant submitted that he commenced employment in August 2020 and was happy at work for the first few weeks.  However, in the middle of September 2020, the complainant’s supervisor, Mr A told the complainant that Mr A wanted to extort money from the company by having an accident at work in order to obtain compensation.  The complainant told another supervisor Mr B about this and also emailed HR on 11th September 2020 about what he had heard.  

A few days later the complainant overheard colleagues including Mr A, and another employee Mr C laughing when the complainant approached them and saying “he’s (the complainant) coming” and calling the complainant a “rat” and a “snitch”.  The complainant submitted that the work environment became full of stress for him.  The complainant sent another email to HR on 17th September 2020 as the complainant had been sent home from work early on 9th, 15th and 16th September 2020 and the complainant was told that the area he was working in needed to be locked down for health and safety reasons to ensure air tightness in the building and no employees could be present.  The complainant submitted that this was just an excuse as the complainant checked and the construction site remained open for other employees.    

The complainant submitted that the respondent failed to respond appropriately to his complaints of bullying that took place.  The complainant submitted that it just became a worse situation for him and that on 6th October Mr A dirtied the windows that the complainant had cleaned and that on 8th October 2020 the complainant notified HR that someone tried to set him up for theft by placing a roll of bin bags into the complainant’s own rucksack which scared the complainant.  HR advised the complainant that Mr D the operations manager would talk to the complainant and Mr D offered to move the complainant to a different work site but failed to do so. 

The complainant submitted that Mr C made fun of the complainant’s religion and race between 12th October – 22nd October 2020 and that his supervisor Mr A did nothing to stop it.  The complainant gave evidence that he is Catholic and is from Poland.  When the complainant was changing his t-shirt, Mr C laughed at the tattoo of Jesus that the complainant has.  It was submitted that Mr C also laughed at the complainant’s religious traditions and questioned the credibility of the complainant’s religion and asked how the complainant knew that the Catholic faith was better than the Islamic faith.  Mr C also laughed at the complainant because in Poland they celebrate Christmas day on 24th December.  Mr C said that the Polish people were too religious and on another occasion when the complainant exclaimed “Oh my God!” when something happened at work, Mr C laughed at him for using the word God and on another occasion Mr C made derogatory comments about the Pope.  The complainant found it difficult to cope with this and went to his doctor who certified him sick from 11th of November 2020 and as result of the incidents he had to take anti-depressants.

The complainant gave evidence that he remained on certified sick leave until April 2021.  In evidence the complainant confirmed that he contacted the respondent when Mr A said he was looking for a wealthy company to sue and that his colleagues laughed at him when he walked near them after this incident.  After a result of the laughing he was subjected to, the complainant gave evidence that he felt so bad that he could not sleep or go out and his daughter would have to do the shopping for him.  The complainant gave evidence that nobody from the company contacted him when he was out sick and that he got a contract but no dignity at work policy. 

In cross examination the complainant confirmed that he never told the respondent he was laughed at because of his race or religion and advised that he did not think there was any point reporting the incidents where Mr C made fun of his religion and race as the respondent failed to respond to his previous complaints regarding the bullying including where binbags were placed in his rucksack.. He confirmed that he knew there are occasions where employees are sent home early as they cannot be present when areas are shut down but he thought it was weird that he was sent home so often following the allegations of bullying which he had made.  

The complainant confirmed that Mr D had tried to move the complainant to another site but that this was not successful and that the complainant had to continue working where he was with the same people who were persecuting him.  He gave evidence that he had agreed to move but Mr D never gave him a formal confirmation of this move and it never happened.  The complainant confirmed that HR responded quickly to his emails but results and outcomes were not successful.  The complainant confirmed he was offered a role in Dublin but turned it down as he was be working with the same people and that Dublin was not suitable for him.  The complainant did not accept the respondent’s suggestion as to whether the complainant had heard of the Irish term of “slagging” and if teasing and slagging is what the complainant had received from his colleagues.  The complainant said what he had received was more than just teasing and that the black bags could not have fallen into the backpack as his backpack was closed. 

The complainant gave evidence that when he reported the bullying incidents he was only asked to explain what the incidents were and there was no mention about any formal investigation.  It was his evidence that he was never asked to give formal statements and never received formal statements from other employees.  He gave evidence that he did not look to move but when it was suggested to him about moving he did not have a problem with that but the move never happened.  The complainant denied that he was upset that Mr A came in as a supervisor, two weeks after the complainant joined the company.  The complainant said he was discriminated against on the ground of race because of the fun that was made about his country celebrating Christmas on 24th December and there was discrimination on the basis of his religion because of the laughing that occurred when he said “oh my God” when something happened on the building line and because of the comments about his tattoo which reflected his religion and that Polish people were too religious and derogatory comments about the Pope.

The complainant’s daughter Ms Angelica Waszkiewicz gave evidence that she was there when her dad came home upset and that he would not leave the house and that she had never seen him like that.  She said that he stopped talking to her and that she witnessed how badly these events impacted the complainant.  Under cross examination Ms Waszkiewicz said that since the complainant left the company his mood has improved and he can now go out.

The complainant commenced employment where his job was to clean a building under construction which was a project with an expected duration of 9 months.  The complainant underwent two virtual inductions prior to commencement of employment and a third induction on his first day on August 6th 2020.  The respondent was not the only service provider on the construction site.  The complainant’s normal working hours were Monday until Friday 07:30-16:00 with occasional weekend work.  On the first day of employment the on-site power failed and all operatives left the site for the day with full pay.

The respondent rejected that the worker had been harassed and it was submitted that the complainant had failed to provide a prima facie case of discrimination and harassment. It was submitted that on 11th September 2020 the complainant had sent a message through a recruitment website that the respondent uses, telling the respondent to

“watch out for your supervisor (Mr A) because he told me he is looking for a big company to prepare an accident at work in order to claim compensation.  I ask for discretion because I told Mr B about it and now everybody is whispering and laughing”. 

The respondent replied thanking the complainant and advising they would treat it with discretion.  A manager with the respondent, Mr D, visited the site and talked to Mr B who advised him that the complainant had not reported this incident to him.  Mr D asked the complainant when he had the conversation with the Mr B but the complainant advised he could not remember.  When the complainant was asked who had been laughing at him, he pointed to somebody who is not an employee of the respondent.

Again on September 11th 2020 the complainant contacted the respondent again through the recruitment website advising that Mr A was bullying him and had sent him home early.  The respondent contacted the complainant and advised that they take bullying seriously.  It was submitted that the complainant had been sent home early but this was owing to a health and safety procedure that requires airtightness and no operative are permitted in the area when this happens.  The complainant would have been told this at induction training and it was confirmed by email to him on 14th September 2020.  The respondent submitted that only employees working in that particular area would have been impacted.

On October 6th 2020 the complainant emailed the respondent to say that Mr A had dirtied a shower glass that the complainant had cleaned.  The respondent submitted that the complainant is required to do what the industry refers to as a “hard” clean and a “sparkle” clean.  The complainant would have conducted a “hard clean” and then further work might need to be done which would dirty the area and then a “sparkle clean” would need to be completed.

On October 8th 2020 the complainant advised the respondent that somebody had put black bags in the complainant’s rucksack and that as a result he would be looking for alternative employment as he felt he was being set up.  The complainant was advised that Mr D would attend the site and found that all workers had access to the area where personal items were stored and it would not be possible to ascertain who, if anyone, had put the black bags in the complainant’s rucksack.  It was also deemed possible that the black bags had fallen into the complainant’s rucksack.  Thereafter, a system was put in place so that only each contractor’s supervisor would have access to the area.  Mr D gave the complainant the option of working on another site where the complainant had worked before but the complainant declined this offer.  The complainant claims that he had to work additional hours on a Sunday without additional pay but there was only one occasion where he worked Sunday and he received time-in-lieu for this.  The complainant appeared to have a good working relationship with Mr D and asked for a permanent role and was often granted annual leave despite not giving much notice to the respondent.  He was refused on one occasion where he was out on certified leave.

As the project came near to completion the respondent looked for alternative work for the complainant and other employees impacted and the complainant was offered a position in Dublin.  The complainant submits that the last date of discrimination was 6th November 2020 but the complainant did not advise the respondent of any acts of discrimination at this time and the complainant requested annual leave between November 13th until November 26th 2020 when he was on certified leave.  The complainant declined initially to produce sick certs and advised the respondent to make contact with the doctor to get these if the respondent wanted them.

Ms Cazabon, a witness for the respondent, gave evidence that she became involved with the respondent as a HR consultant after the events occurred and was asked to draft a submission for the hearing by the respondent.  She answered questions regarding the policies and procedures in place and answered to what she had been told by the respondent including that she was told that the complainant did not furnish certs.  Ms Cazabon was not able to explain why no witnesses who had direct knowledge of the events were in attendance.  Under cross examination Ms Cazabon submitted that the complainant was not dismissed but was made redundant owing to no more work available and that he did not qualify for a redundancy payment owing to his length of service.  Ms Cazabon said that the email from the complainant where he refers to the incident with the bin bags would suggest that the complainant was worried about the incidents.  The respondent initially submitted that the complainant failed to provide an ES1 form to the respondent but withdrew this submission during the hearing.  Case law cited included Romera v Waterford Institute of Technology Adj 21581.

The Complainant must show that there was some link between any alleged harassment and the religion ground and the ground of race that he has cited under the Acts.

The applicable law the Employment Equality Acts 1998-2015 sets out that

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)(in this Act referred to as the ‘ discriminatory grounds ’ ) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

 (e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

 (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

Section 14A of the Act prohibits harassment on each of the nine grounds protected under the Act. Section 14A(7) provides:

“(7)(a) In this section—

(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,

(b) 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.

(c) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

The complainant submits and gave sworn evidence that he was harassed by the respondent on the religion ground and ground of race; a claim which the respondent denies.  It was not in dispute between the parties that the complainant had not reported these incidents of harassment to the respondent prior to the submission of his complaints the WRC.  It was not in dispute that the complainant had received a contract of employment.  It was disputed whether the complainant received a dignity at work policy during his employment.   The alleged acts of harassment which the complainant claims on the religion ground included Mr B making fun of the complainant’s tattoo of Jesus, making fun of the complainant when he exclaimed “oh my God”, laughing at the complainant’s belief in God as the one true God, making fun of the complainant because in his country Poland they celebrate Christmas on 24th December and making fun of the complainant by asking why so many people in Poland are Catholic, as well as comments about the pope.  The alleged incidents of harassment on the ground of race included making fun of the complainant because in his country Poland they celebrate Christmas on 24th December and making fun of the complainant by asking why so many people in Poland are Catholic. 

The respondent’s only witness gave sworn evidence that she arrived at the organisation after the alleged events and that her purpose at the hearing was to represent the respondent and that to her knowledge the events did not occur or were said to the complainant by way of a joke and she questioned the complainant on whether he understood the Irish way of ‘slagging’. 

Section 85A of the Acts provides for the allocation of the probative burden as between parties.

Subsection (1) of that section provides: -

 “(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The established test for deciding if the probative burden shifts by application of this subsection is that formulated by this Court in Southern Health Board v Mitchell [2001] E.L.R. 201. In that case the Court considered the extent of the evidential burden that a Complainant must discharge before the respondent is fixed with the burden of proof. The Court held: -

“The first requirement is that the claimant 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 claimant 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 these 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 a later decision the Court elaborated on the application of that test in EDA0821, Cork City Council v McCarthy and commented as follows:

 “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination.

The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts.

This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The complainant came across as a very credible witness who accepted he had not reported the alleged incidents of harassment on the religion ground and on the ground of race to the respondent because of his previous experience with reporting what he regarded as bullying.  It is surprising that the respondent did not have in attendance any witnesses were with the respondent at the time of the complainant’s employment.  Having heard the evidence and submissions, there did not appear to be any substantial investigation into the alleged bullying incidents, such as the incident with the bin bags which the complainant found in his rucksack and the name calling after the complainant advised the respondent that he believed an employee was going to take a fraud case against the respondent.  For completeness the complainant does not submit that these incidents were related to race or his religion. Ms  Cazabon for the respondent was not engaged by the respondent at the time of the alleged harassment and much of her evidence can be regarded as hearsay. 

Having heard all the submissions and evidence I find the complainant’s evidence that the incidents of harassment occurred more credible.  I furthermore find it reasonable that the complainant did not believe that the respondent would appropriately investigate Mr C when he made fun of the  complainant’s tattoo of Jesus, when the complainant said “oh my God”, the complainant’s belief in God as the one true God, making fun of the complainant because in his country Poland they celebrate Christmas on 24th December and making fun of the complainant by asking why so many people in Poland are Catholic.  I find that the complainant has established a prima facie case of discrimination which amounted to harassment on the religion ground and the ground of race.  The burden of proof therefore, falls to the respondent.

The respondent submits that the complainant received a copy of their Dignity at Work Policy. I note that I was provided with two different versions of the respondent’s Dignity at Work Policy but the respondent had no record that the complainant had ever received any such policy, no explanation as to why there were two different policies or when these policies actually were developed as there were no dates of origin of the policies.  I believe it is further telling that when the complainant complained of bullying, the respondent failed to remind employees of their obligations under the respondent’s purported policies.  The complainant also had to engage with the respondent through a recruitment website to report the first complaint which suggests he did not know what the procedure was.  As set out in A Hotel V A Worker (EDA0915) the “need for coherent policies and procedures to prevent harassment from occurring is self-evident”.  The Labour Court also set out in this same decision, albeit a case of sexual harassment, that the respondent must be

 “conscious of the possibility of ….. harassment occurring and have in place reasonable measures to prevent its occurrence as well as policies and procedures to deal with such harassment where it is found to have taken place”. 

The complainant submitted his complaints on 8 January 2021 and was laid off in April 2021 and the respondent made no efforts to contact the complainant regarding his specific complaints despite being on notice of them during the time of lay—off.  Under Tipperary Education Training Board V Fachtna Roe EDA2124 the court set out that

 “it is clear that in order to come within the class of conduct that is prohibited by section 14A (harassment), such conduct must be both “unwanted” and “related to any of the discriminatory grounds”.

I find that the conduct were unwanted and related to the discriminatory ground of race and on the religion ground.  In order to come within the statutory definition, the conduct complained of must, in the words of the statute, have: “the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.  The test is a subjective one in that the impugned conduct need not be directed at having the purpose described by the statute. It is sufficient if it has that effect on the victim as I find it has in this instant case.  I find that the complainant has established a prima facie case of harassment on the religion ground and the ground of race and that the respondent has failed to rebut this and the complainant was discriminated against. 

In accordance with Section 82(1)(e) of the Act of 1998, I order the Respondent to take the following courses of action:

Develop a workplace anti-harassment policy that complies with the relevant statutory Code of Practice;

Develop a workplace anti-bullying policy that complies with the relevant statutory Code of Practice;

Take the necessary steps to ensure such policies are verifiably communicated to, and understood by, all employees

In assessing the compensation to be awarded to the Complainant, and having regard to the observations in Von Colson and Kamann (1984) ECR 1891, that awards should be effective, proportionate and dissuasive and that they should act as a disincentive against future infractions by the employer, I award the complainant €10,000 for the complaint of harassment on the religion ground and €5,000 for the complaint of harassment on the ground of race.  The total award is therefore, €15,000.

I find that the complainant has established a prima facie case of harassment on the religion ground and the ground of race and that the respondent has failed to rebut this and that the complainant was discriminated against. 

I order the Respondent to take the following courses of action:

Develop a workplace anti-harassment policy that complies with the relevant statutory Code of Practice;

Develop a workplace anti-bullying policy that complies with the relevant statutory Code of Practice;

Take the necessary steps to ensure such policies are verifiably communicated to, and understood by, all employees

In assessing the compensation to be awarded to the Complainant, and having regard to the observations in Von Colson and Kamann (1984) ECR 1891, that awards should be effective, proportionate and dissuasive and that they should act as a disincentive against future infractions by the employer, I award the complainant €10,000 for the complaint of harassment on the religion ground and €5,000 for the complaint of harassment on the ground of race.  The total award is therefore, €15,000.

Religion, race, harassment, employment equality