Complainant

Respondent

Parties

Younis  Sarwari

Clancourt Management Unlimited Company T/AClancourt Management

Representatives

Sarah Walsh BL, instructed by Breen Geary McCarthy & Shee

Tiernan Lowey BL, instructed by Hayes Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00045242-001

16/07/2021

The Complainant commenced employment with the Respondent on 13 August 2018. On 16 July 2021 the Complainant referred his complaint to the Director General of the WRC alleging that he was discriminated against and harassed by the Respondent on 26 February 2021.

The Complainant was represented by Sarah Walsh BL, instructed by Breen Geary McCarthy & Shee Solicitors. The Complainant’s representative furnished their written submission on 28 October 2022.

The Respondent was represented by Tiernan Lowey BL, instructed by Hayes Solicitors. There was no submission furnished by the Respondent in advance of the hearing. The Respondent furnished its submission at the commencement of the adjudication hearing. The Complainant was offered an adjournment. However, Ms Walsh BL informed that a short recess would be sufficient for her to familiarise herself with the Respondent’s submission and prepare a response to same. Ms Walsh’s request for a recess was granted.

Ms Walsh BL, on behalf of the Complainant submits as follows.

BACKGROUND

The Complainant is a national of Afghanistan. The Complainant commenced employment with the Respondent on 13 August 2018. It is the Complainant’s case that he was subjected to discrimination by reason of his race on 26 February 2021 within the meaning of Section 6(2)(h) of the Employment Equality Acts, 1998 to 2021. It is the Complainant’s case that he was treated unlawfully by his employer in discriminating against him and harassing him.

Preliminary Issue

There is CCTV footage of the incident complained of. The Respondent has failed despite repeated requests made by the Complainant to provide him and his legal advisers with a copy of the said footage. Failure of the Respondent to do so amounts to a breach of the Complainant’s rights to fair procedures and natural and constitutional justice. The Complainant, and his legal team, are entitled to a reasonable opportunity to review the CCTV footage of the incident at the heart of this case. 

The Complainant seeks a copy of the CCTV footage and an adjournment of the hearing if necessary to allow same to be reviewed by the legal team for the Complainant. It is of note that this application could have been avoided if the Respondent had simply provided a copy when first sought initially by the Complainant in the early months following the incident and formally by the Solicitors for the Complainant on the 13 December 2021.

At the hearing, Ms Walsh BL said that CCTV footage was relied upon in Mr Brady’s report. She confirmed that the Complainant was given an opportunity to view the footage but he did not receive a copy. She said that the Complainant is disputing Mr Brady’s interpretation of the footage.

STATEMENT OF CASE

The Complainant submits that on the on 26 February 2021, the Complainant in the course of his employment with the Respondent as a security guard had commenced his shift at 10.00 a.m.  He was approached by a worker from the Subway outlet, Mr Joga Singh, who wished to speak to him about an alarm that had gone off in the unit a number of times. The Complainant and Mr Singh were walking down the Garryowen Mall in the Crescent Shopping Centre when Mr Davitt, Centre Manager and employee of the Respondent approached them, accompanied by another manager. Mr Davitt raised his voice at the Complainant saying “Take your hands out of your pockets, you look like a monkey who is not interested in work”. The Complainant was shocked and did not know what to do.  Mr Singh kept on walking. The Complainant protested to Mr Davitt that he could not talk to him like that. Mr Davitt mocked him and was aggressive and unprofessional.

The Complainant had had encounters with Mr Davitt previously and had been refused holiday leave for Ramadan. The Complainant had found this upsetting and distressing and had attended his GP but had got on with his work as he needed his job to support himself and his mother. He had not previously encountered overt racism in the workplace such as he did on 26 February 2021. The Complainant was horrified and embarrassed at what had happened on that day. He had been called a “monkey” by a manager as he went about his work and in front of other people. It is the Complainant’s case that Irish employees were not and would not be spoken to in this fashion by the Respondent manager and that he was discriminated against on the grounds of his race. The incident was witnessed by Mr Singh who will give evidence in support of the Complainant’s account.

The Complainant worked until his scheduled break. He then went to the security room and told the Security Manager that he had to go home. That night he could not sleep he was so distressed.  He worked the following day. The Complainant was humiliated and depressed and upset over the weekend and ultimately received a prescription for sleeping tablets from his doctor for the first time. The Complainant did not return to work. The Complainant made a complaint to his employer. The email sent to Mr Healy of the Respondent dated 15 March 2021 that he is “a good hard worker and not an animal to be treated like that and I want to be respected in job.  I am not here to get abused. As my job deals with a lot of criminals and I don’t need to be racially abused by my manager.” 

An investigation was carried out into the complaint by an investigator appointed by the Respondent. The Complainant was represented by SIPTU. The incident on 26 February 2021, was captured on CCTV footage. The Complainant and his previous representative repeatedly requested that they be provided with a copy of the CCTV footage which has never been forthcoming. 

The approach taken by the Respondent in relation to the appointment of investigator and the investigation was entirely inappropriate and in breach of the Complainant’s rights to fair procedures and nature and constitutional justice. In this regard the Adjudicator is referred to the email of SIPTU dated 22 March 2021 seeking documentation and the CCTV footage of the incident, email of Mr Healy dated 23 March 2021 and attached Protection of Dignity at Work Policy, emails of SIPTU dated the 25 and 26 March 2021 to Mr Healy detailing the reasons why the Complainant’s representative was of the view that the appointed investigator was not acting impartially. 

At no time was the Complainant provided with a copy of the CCTV footage held by the Respondent in respect of this incident. The Complainant was informed by email dated 5 May 2021, that his allegation had not been upheld. He was not provided with a copy of the report. The Complainant had to seek a copy of the report from the Director of the Respondent and under cover of letter dated the 11 May 2021, was informed that on receipt of confirmation from the Complainant’s GP that it was appropriate to do so would be sent a copy of the report. He eventually obtained a copy.

The approach taken to the investigation was in breach of the Complainant’s rights to fair procedures and natural and constitutional justice and did not accord with the Respondent’s purported Dignity at Work policy of “fostering and protecting a positive and enriching working environment.”

Mr Singh’s evidence will corroborate the Complainant’s account.

The Complainant has been discriminated by reason of his race and harassed by the Respondent.

LAW

Discrimination

Section 6 provides that for the purposes of the Acts discrimination shall be taken to occur where a person is treated less favourably than another person is, has been or would be treated in comparable situation on any of the grounds specified in subsection (2) which:

(i)                  Exist

(ii)                Existed but no longer exists,

(iii)               May exist in the future, or

(iv)               Is imputed to the person concerned,   

Pursuant to Section 6(2) “As between any two persons, the discriminatory grounds (and the descriptions of these grounds for the purposes of this Act) are-

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

Burden of Proof

The burden of proof is on the Complainant as per section 85A(1) of the Acts. In that regard, the Complainant relies on the Labour Court in Southern Health Board v. Mitchell [2001] ELR 201 where the Court considered the extent of the evidential burden imposed on a complainant by Section 85A(1).

In that case while the complainant was found to be an impressive witness the Labour Court noted that “These recollections and opinions were, however, unsupported by any evidence beyond that of the appellant herself. They were also hotly contested by equally impressive witnesses called by the respondent.” The complainant failed to discharge the evidential burden.

In Johnstown Garden Centre v. ALA Berghie EDA 1720, the Labour Court held that the complainant met the burden of proof and established a prima facie case of discrimination on the race grounds arising from the pernicious statements made to her by a number of her former co-workers. The Labour Court found that the Respondent did not have an adequate anti-discrimination policy and associated complaints procedure in place. It was not the Court’s view that “it is best practice for an employer to seek to deal with alleged infringements of the Employment Equality Act 1998 by directing employees to a basic Grievance policy or a general bullying policy.”

It is submitted that in this case the Complainant, whose evidence is supported by Mr Singh, has established a prima facie case of discrimination on the race ground. The Complainant while working was told by another employee in front of members of the public “Take your hands out of your pockets, you look like a monkey who is not interested in work”. The Complainant was referred to as a “monkey”. He was subject to racist abuse. This was witnessed by Mr Singh. The subsequent investigation carried out by the Respondent was not conducted in accordance with fair procedures.  Despite repeated requests the Complainant and his legal representatives have not been provided with CCTV footage of the incident.

It is submitted that the Complainant meets the burden of proof and the Respondent fails to rebut the prima facie case made out by the Complainant.  

In A Receptionist v Hostel ADJ-00023445 the Adjudication Office noted the wording of Section 6(1) of the Employment Equality Act and in particular the wording of Section 6 “would be treated” noting that this “allowsfor the use of hypothetical comparators in appropriate circumstances of alleged discriminatory treatment.” The Adjudication Officer found that the Respondent in that case took no steps to ascertain what had occurred in relation to the alleged racial slur made by the Respondent’s mother and had no policies or other measures in place to safeguard the dignity of their employees.   The Adjudication Officer was satisfied that the Respondent would not have treated an Irish person in such a manner and was satisfied that the Complainant’s case of discrimination on the grounds of race was well founded.  

It is submitted in this case that an Irish employee would not have been treated in the manner in which the Complainant was treated by Mr Davitt on the 26 February 2021.

Harassment

The Complainant relies on section 14A(1) and 14A(7)(a) of the Acts.

The WRC and the Labour Court have on a number of occasions considering the issue of harassment pointed out that it is the effect that the conduct has on the recipient rather than the intention of the perpetrator which matters. It is the Complainant’s case that the comments made to him by Mr Davitt were related to his race. The Complainant’s evidence is supported by that of Mr Singh. The Complainant was greatly distressed by the treatment meted out to him by Mr Davitt.

It is submitted that the claim of harassment is supported by the fact that the Complainant informed the Respondent of his complaint.  In Kukstaite v. Shedan Limited where a Lithuanian employee was so upset by comments made by a customer that she reported their behaviour as racial abuse to the Gardaí. The Equality Officer noted that the Complainant had previously worked for the Respondent for some eighteen months without difficulty and confirms the subjective nature of the test as “I cannot accept that the Complainant would suddenly decide to make a spurious random complaint to the Gardai about one of the Respondent’s customers without having some reason for doing so. It is my view that something else happened, other than a sarcastic comment, otherwise the Complainant would not have reported the matter. On the balance of probabilities, I accept the Complainant’s evidence that she was subjected to treatment which she found both intimidating and offensive.”

The Complainant seeks the maximum compensation permissible under the legislation for the discrimination and harassment suffered by him pursuant to Section 82. At the time of the incident he was earning a gross salary of approximately €570.00 per week.He has not returned to work with the Respondent company. He has attended with his GP (a copy of the report of Dr Ger Lane dated 7th September 2021 was exhibited at the hearing).

Summary of the direct evidence and cross-examination of the Complainant

The Complainant said in his sworn evidence that he came to Ireland in 2015. He started working in 2017 and, in August 2018, he secured a job with the Respondent.

He said that the Respondent operated a 6 week roster, subject to change. The Complainant was based in the Crescent Shopping Centre in Limerick and reported to the Security Manager and the Maintenance Manager.

The Complainant said that on 26 February 2021 he started work at 10am. He went to the Security Office to sign in. He then started walking towards Garryowen Mall, he was alone. He said that he saw a co-worker from one of the shops, Mr Singh and met him. Mr Singh was talking to him about an alarm issue, and they kept walking towards the direction where the Complainant’s duty was. The Complainant said that he was approached by Mr Davitt, Head Manager who was screaming and shouting. The Maintenance Manager was with Mr Davitt. The Complainant said that Mr Davitt was screaming from distance “take the hands out of your pockets”, and when he came closer to the Complainant he shouted in his face “you look like a monkey”.  The Complainant said that he was shocked and said, “you can’t talk to anyone like this, treat like that”. The Complainant said that he took a few steps and Mr Davitt shouted “hello, hello, I’m shouting at you”. The Complainant said that Mr Davitt was aggressive, and the Complainant told him that he could not talk to him like this. Mr Singh kept walking. It was around 10am-10.40am and there were customers around. The Complainant did not think that any of the customers paid any attention to the incident.

The Complainant said that he carried out his duties and did not report the incident to anyone. He said that he went to the camera room at his break time around 12pm and told the Security Manager that he had to go. He did not mention what had happened as he thought that there was no point in saying anything. Mr Davitt was the Head Manager; the Security Manager was his subordinate.  The Complainant thought that there was no one else he could report the matter to. The Complainant said that the Maintenance Manager was there at the time of the incident and did nothing.

The Complainant said that he did not feel well mentally and physically afterward, he went to his GP and was prescribed sleeping tablets.

The Complainant said that the did attend work the following day, he did not report the incident to his supervisor on duty. The Complainant said that after that day he did not want to go back to work. He said that it could happen again.

The Complainant said that before the incident on 26 February 2021 he was refused holidays for the period of Ramadan. He was given holidays during his first year in employment but not the next year. He also said that he was not paid for his sick leave in 2020. The Complainant said that Mr Davitt called him to his office at the time and told him that if he was thinking to take a personal injury claim, to think again. He was not sure if other staff were paid sick pay. The Complainant’s representative clarified that these events did not form part of the claim but were outlined to show that “things don’t happen in the vacuum”.

The Complainant said that he emailed the Respondent (Mr Healy) on 15 March 2021 reporting the incident.

The Complainant further said that SIPTU was representing him at the time. An investigation process was set up and he participated in the process. He gave his evidence and Mr Singh gave his account. The Investigator found against him. The Complainant said that SIPTU sought access to the CCTV and he saw the footage after the decision of the Investigator was issued. He appealed the decision but was unsuccessful. He never returned to work. He said that he could not go back to work as the abuse might happen again.

The Complainant said that he had never had equality, diversity and inclusion training but perhaps he did receive a Dignity at Work booklet.

In cross-examination, the Complainant confirmed that he was interviewed and recruited directly by the Security Manager and Mr Davitt. He confirmed that he received the Employee Handbook at the commencement of his employment and again in July 2020.

It was put to the Complainant that he attended a Dignity at Work training on 10th December 2018. The Complainant said that he only received the Handbook. It was put to the Complainant that he signed an acknowledgement that he received the Handbook following training regarding the Dignity at Work policy. He said that he remembers the book. He confirmed that it was his signature on the document.

The Complainant confirmed that he was initially on a fixed-term contract and was made permanent in August 2019. It was put to the Complainant that his contract stipulates that the Respondent does not pay employees while on sick leave.

The Complainant agreed that the Respondent has an active EDI policy, that there are employees of different nationalities, ethnicities, and religion working for the Respondent. He confirmed that he never had any experience of overt discrimination, that there is no culture of racism, that there is a diverse workforce and equal opportunities.

It was put to the Complainant that he said that he had no confidence to return to work but his evidence confirms the multicultural workforce, no culture of racism, etc. He said that it was his personal experience, he had no confidence that this would not happen again.

The Complainant confirmed that staff are encouraged to speak out, but he said he did not know who to speak to, he emailed the Respondent. He confirmed that he never raised the matter with his supervisor, the Security Manager, or other co-worker.

The Complainant confirmed that meetings were held with staff regarding the use of mobile phones and talking to other staff, he asserted that these took place after the incident. He confirmed that there were specific rules during Covid-19 pandemic and staff were required to be more vigilant and use a one-way system.

It was put to the Complainant that, when Mr Singh approached him, it was not in the context of talking with a co-worker as Mr Singh is not an employee of the Respondent. In reply to the Respondent’s question if Mr Singh was his friend, the Complainant asked, “what do you mean?”. He then confirmed that Mr Singh had his mobile number, but he said that it was for security purposes. He said that Mr Singh sought his attention in relation to an alarm, but he also confirmed that alarms are monitored by an external company. If an alarm goes off, it should be reported to the external company, not to the Respondent. The Complainant accepted that there was no record of an alarm issue reported to the security centre, he said he never reported it.

The Complainant disputed that the issue of keeping hands in pockets was discussed at bimonthly meetings. The Complainant recalled staff being told not to access their phones while at work.

The Complainant said that staff were encouraged to report any issues and agreed that the Security Manager reported their interaction by email. It was put to the Complainant that he spoke with the Security Manager on the phone and never said anything. He confirmed that he rang to say that he had a GP appointment at 12pm on the next day, his shift was starting at 9am, and the Manager asked him to come in for 9am.

It was put to the Complainant that the Security Manager was aware that the Complainant was unhappy and wanted to leave his job. The Complainant did not confirm or deny this, he said that he had been working in the job for three years.

It was put to the Complainant that he suggested that Mr Davitt would be monitoring him on CCTV, the Complainant replied that he did not say it was on camera.

It was put to the Complainant that he was asked to take his hands out of his pockets, and he took exception to being criticised. The Complainant said that Mr Davitt screamed and shouted at him. The Complainant confirmed that there were customers present and Mr Davitt did scream in front of members of the public.

The Complainant confirmed that the dates of Ramadan change every year. The Complainant accepted that the annual leave rules are applied to all staff across the board in the same manner. However, he said that he was given annual leave during the first year but was refused the next year.

The Complainant agreed that the Investigator, Mr Brady is an independent barrister and not an employee of the Respondent. He agreed that he had an opportunity to raise any issues he had at the appeal stage. He also confirmed that he had no objections in relation to the Appeal Officer. The Complainant also confirmed that he had an opportunity to view the CCTV footage on two occasions prior to the appeal.

The Complainant was asked by the Adjudication Officer to describe step-by-step what exactly happened on the day in question. He said that he met Mr Singh in the corridor, they walked towards the lift. He had his hands in his pockets but no phone in his hands. He said that Mr Singh was showing him something on Mr Singh’s phone, the Complainant said that he did not hold the phone. He said that it was something that was not work related, a “lads’ thing”. The Complainant said that he saw Mr Davitt approaching. Mr Singh kept walking. The Complainant said that Mr Davitt screamed at him, and then in his face, still screaming, he said “you look like a monkey”. The Complainant said that he told Mr Davitt that he could not speak to him like that. He said that he took a few steps and Mr Davitt said “hello hello, I’m screaming at you” pointing his finger at the Complainant. The Complainant said that Mr Davitt told him that he was watching him on cameras and would bring him upstairs to the office. The Complainant said that he walked away and kept walking. Mr Davitt just walked away. The Complainant said that the incident took approximately 5 minutes at maximum.

Summary of direct evidence and cross-examination of Mr Singh

Mr Singh said that he is Indian and has been living in Ireland for 10 years. In 2016 he commenced his employment at a sandwich shop in the shopping centre. His employment terminated in February 2022.

Mr Singh said that on 26th February 2021 he was due to start work at 11am but he entered the centre at approximately 10am. He said that he is the first respondent in the event that the security alarms go off in his place of work. As an alarm went off a few times he was looking for a security person to report it. He said that the security company had told him that “all is good” and to speak to the Respondent’s security. He was told that it could be kids messing. Mr Singh said that he wanted the Complainant to check CCTV to see was someone messing with the door.

Mr Singh said that he met the Complainant, he then was looking at his phone to check at what time did he get the call about the security alarm. He showed the call on his phone to the Complainant.

Mr Singh said that he heard Mr Davitt shouting “take your hands out of your pocket, you look like a monkey”. He said that he kept walking, he did not stop, he did not want to get involved.

In cross-examination Mr Singh was asked if he was the Complainant’s friend. Mr Singh said he knew all the staff from staff parties, social events, etc. He said that his girlfriend works in the shopping centre as well so they would have known the security staff.

Mr Singh was asked if he was showing something personal on the phone. He strongly disagreed and said that it was a call he had received from the security company.

It was put to Mr Singh that a reference was made that the event took a few minutes but in his interview with the Investigator he had said that it took 15 minutes. Mr Singh said that the report was incorrect, he never said 15 minutes. It was put to him that he accepted the investigator’s notes were a correct reflection of his evidence. Mr Singh repeated that he never said “15 minutes”, maybe he said “a few”.

It was put to Mr Singh that his evidence is inconsistent with the Complainant’s evidence where he said that Mr Singh showed him a personal thing on the phone, and never mentioned a security call. Mr Singh insisted it was a security call.

Mr Lowey BL, on behalf of the Respondent submits as follows.

In the details section of the complaint form, the Complainant asserts:

5.     His line manager racially abused him by calling him a monkey and treating him inappropriately at that time, in a public area while carrying out his duties;

6.     He reported the matter and it was investigated;

7.     The investigation did not uphold the allegations and confirmed that "nothing untoward occurred”; and

8.     An appeal from the investigation upheld the investigation outcome.

The Respondent denies the Complainant’s claims as without merit. Further, or in the alternative, the Respondent relies on the defence available to an employer pursuant to section 14A(2) and section 15(3) of the Employment Equality Acts.

The Respondent is a family business which owns and runs the Crescent Shopping Centre in Limerick (“the Centre”). Mr Davitt is the General Manager in the Centre and has worked for the Respondent for 39 years.

The Complainant is employed at the Centre as a Security / Maintenance Operative. Having commenced in a fixed-term capacity on 13 August 2018, he was made a permanent member of staff on or around 24 August 2019. The Complainant’s current rate of pay is €13.00 per hour and he normally works 39 hours a week. The Complainant’s normal duties are listed in his contract of employment, which was exhibited at the adjudication hearing.

In his complaint form, the Complainant refers to his nationality as Afghan.

Background facts to complaint

Initial allegation of harassment

The Respondent has approximately 94 retail units across four separate malls running from a central atrium.

On 26 February 2021, the Respondent’s General Manager, Mr Davitt, noticed the Complainant talking to an employee of Subway, one of the retail units within the Centre, and looking at a mobile phone. The Complainant was on duty at the time and the Respondent has strict rules for security staff engaging in conversation or using mobile phones during working hours. It is also important to remember that this incident occurred during a period of strict lockdown due to the Covid-19 pandemic. In a subsequent investigation, Mr Davitt stated that he approached the Complainant to raise a concern with him about his conduct. He said he asked the Complainant to remove his hands from his pockets, as it was not in line with the strict rules for security staff and reminded him that he was representing the Respondent.

Later at around 12pm, the Complainant approached the Respondent’s Head of Security, Mr Tuohy, and told him that he was not feeling well and had to go home. Mr Tuohy inquired as to what was wrong and the Complainant just stated that he was not feeling well, both mentally and physically. Mr Tuohy probed again and the Complainant repeated his stated reason. The Complainant made no reference of any kind either to Mr Davitt, to his being subjected to any mistreatment and certainly gave no impression of any kind that he had been subjected to any form of racial discrimination or harassment.

By email dated 26 February 2021 (12:14), Mr Tuohy wrote to Mr Davitt setting out the above sequence of events. By email dated 26 February 2021 (18:12), Mr Davitt in turn wrote to Mr Healy, the Respondent's Director of Property Management, forwarding Mr Tuohy’s email to him earlier that day. Mr Davitt set out his contemporaneous recollection of his interactions with the Complainant earlier that day, which record fully accords with the evidence he subsequently gave in the context of the related investigation.

It should be noted that in none of the communications between the Complainant and Mr Tuohy, Mr Tuohy and Mr Davitt or those between Mr Davitt and Mr Healy was there any mention of anything approximating racial discrimination or harassment or anything that could have been perceived or misconceived as such on the part of the Complainant.

The Complainant returned to work as normal the following day, 27 February 2021. On 28 February 2021, the Complainant telephoned to say that he would be attending his doctor at 12pm on the following day and would not be able to come into work. When asked if he would come in to start his shift at 9am, the Complainant said he would not and that he would talk to his doctor as he was suffering from work related stress. The Complainant did not and would not again return to work after this date.

On 9 March 2021, Mr Tuohy had separate discussions with two of the Complainant’s co- workers. Mr Tuohy was informed by one of the co-workers that he did not think the Complainant would be returning to the Centre. The other co-worker said he thought it was the end of the road for the Complainant working at the Centre. When asked what he meant, the second co-worker said that in recent weeks the Complainant told him that he was not happy working at the Centre and living in Ireland and that he was looking to relocate to England.

Subsequently, by email dated 10 March 2021 the Complainant emailed Mr Healy, the Respondent’s Director of Property Management, stating, without any detail, that he had been racially abused by Mr Davitt on 26 February 2021.

By letter dated 10 March 2021 Mr Healy wrote to the Complainant to acknowledge his complaint and to emphasise that the Complainant's wellbeing was "of paramount importance" to the Respondent. Mr Healy attached, for his reference, a copy of the Respondent's Dignity at Work policy, extracted from the Employee Handbook. He invited the Complainant to provide the details of the alleged incident, once he had reviewed the said policy and asked him to indicate his preference to have the matter investigated via the informal or formal procedures available. Mr Healy said that once he had his reply he would revert regarding the next steps to be taken. Mr Healy emphasised that the matter would be dealt with confidentially, seriously and promptly.

Subsequently, by email dated 15 March 2021, the Complainant emailed Mr Healy providing a different version of events to those described on the day in question by Mr Davitt. In summary, the Complainant alleged that “[a]t around 10.00 and between 10.40 one of the staff from subway was speaking to me about a work issue on the new garryowen mall. Cameras 22 and 23.” He then stated that “all of a sudden" Mr Davitt approached in an aggressive manner. He said Mr Davitt shouted at him saying “take your hands out of your pockets you look like a monkey who's not interested in work.”

The Complainant said that he then said to Mr Davitt that he would not be treated in that way to which Mr Davitt took a few steps to the side and started shouting “hello, hello, hello is there anybody here I’m shouting at Younis." In his complaint letter, the Complainant indicated that he was very shocked by the alleged incident and that he went and told Mr Tuohy about it after his break in the camera room on camera 39. Contrary to what the Complainant states in his complaint letter, in his contemporaneous email to Mr Davitt on that day, Mr Tuohy makes no reference whatsoever to any complaint by the Complainant about Mr Davitt and certainly made no mention of any kind about racial discrimination or harassment. The Complainant simply advised Mr Tuohy at the time that he was unwell and that he was going home.

Appointment of external investigator and related matters

On 16 March 2021, the Respondent appointed Mr Brady BL, to conduct an independent investigation into the Complainant’s allegation. Such an external appointment would by quite exceptional but it was considered the appropriate course because the complaint related to a senior member of the Respondent’s management team.

By letter dated 16 March 2021, Mr Healy wrote to the Complainant to advise him of Mr Brady's appointment to conduct the investigation and stating that Mr Brady would be in touch with him directly to arrange a meeting. Subsequently, Mr Brady wrote directly to the Complainant to confirm his appointment. He attached a copy of the proposed terms of reference for his investigation.

By email dated 22 March 2021, a SIPTU official, wrote to Mr Healy on behalf of the Complainant. SIPTU referred to the appointment of Mr Brady to conduct an independent investigation and sought to criticise Mr Brady for issuing terms of reference in relation to the investigation. SIPTU said “the scope of the investigation must be defined by the employer and not the investigator." She confirmed that the Complainant was not in a position to attend the investigation meeting, which had been scheduled to take place the following day, on 23 March 2022, and sought a number of documents on behalf of the Complainant that he would require before attending any investigation meeting. This included “a copy of the proposed Terms of Reference for the said process, to be agreed by the parties."

By email dated 22 March 2021, Mr Brady wrote to Mr Healy to advise that he was of the strong view that provision of the CCTV footage to the Complainant could seriously compromise the fairness of the procedure and that his preference was for the Complainant to give his evidence and for Mr Davitt to be provided with same along with the CCTV footage.

By letter dated 23 March 2021, Mr Healy wrote to the Complainant referring to SIPTU’s email. It was confirmed that the Terms of Reference, that had been furnished by Mr Brady, had been determined by the Respondent. Mr Healy stated that the Complainant's complaint was "of a serious nature" and that it was being investigated on behalf of the Respondent. Mr Healy made it clear in the said letter that it was a matter for the independent investigator as to how he wished or proposed to conduct the investigation, provided it was “in line with the Terms of Reference." Mr Healy emphasised the importance of the Complainant's input into the investigation and encouraged him to engage with the process without the imposition of any unnecessary impediments.

By email dated 24 March 2021 (09:35), Mr Brady wrote to the Complainant suggesting two alternative dates on which to meet with him to provide evidence in support of his complaint, namely 25 or 26 March 2021.

By email dated 24 March 2021 (16:58), SIPTU wrote to Mr Brady to advise that it had sought information from Mr Healy in relation to the investigation. The email confirmed that the Complainant would be attending the meeting the following day at 2.30pm and sought CCTV evidence before the meeting. The email asked Mr Brady to amend the Terms of Reference such that a draft report would be issued to the Complainant before it was finalised. The email made reference to the principles of fair procedures and natural justice.

By email dated 24 March 2021 (17.40) Mr Brady wrote to the Complainant confirming that he had not yet met any other parties in the context of his investigation and that he had no further documentation. Mr Brady made it clear that he wanted to hear the Complainant's evidence before he made any decision in relation to sharing the related CCTV footage with him.

By email dated 25 March 2021, SIPTU wrote to Mr Healy calling for the removal of Mr Brady from the role of investigator. Without any details, SIPTU asserted in relation to Mr Brady that “it is our position that he is not conducting a fair and impartial investigation to date.”

By email dated 26 March 2021 (10:34), Mr Healy wrote to the Complainant asking him to set out the basis for his contention that the investigation was not being conducted in a fair and impartial manner.

By email dated 26 March 2021 (16:16), SIPTU wrote to Mr Healy setting out purported reasons in support of its allegation that Mr Brady was not an impartial investigator.

By email dated 29 March 2021, Mr Healy wrote to SIPTU referring to its request for Mr Brady’s removal as investigator. Mr Healy stated that having considered the matter, he was “fully satisfied that Mr Brady is conducting the investigation in a fair and impartial manner, in line with appropriate procedures.”

By email dated 30 March 2021, SIPTU wrote to Mr Healy expressing disappointment with Mr Healy’s refusal to remove Mr Brady as investigator and stating that the Complainant “has no choice other than to participate in this process as you totally disregard our genuine concerns surrounding the fairness and impartiality of the process."

By email dated 31 March 2021, Mr Healy wrote directly to the Complainant seeking to assure him that the Respondent was treating the complaint seriously. Mr Healy referred to the fact that Mr Brady was “not only an experienced lawyer in this field, but someone who adheres to the highest professional standards.” Mr Healy referred again to the grounds advanced by SIPTU for Mr Brady's removal and confirmed that he was satisfied that Mr Brady was “not influenced in any way by the company or any extraneous matter." Mr Healy emphasised that the Complainant was “a valued member of staff and that his welfare and his rights would be fully respected by any person conducting work for the company.”

Mr Healy reminded the Complainant that, in addition to his rights as an employee, the person who was the subject of his complaint also had rights to fair treatment as a person accused of a serious wrongdoing.

Following the conclusion of the Investigation, the Respondent made extensive efforts to engage with the Complainant to facilitate a smooth return to work, notwithstanding the findings of the investigation.

The independent investigation

A review of the investigation report shows Mr Brady's efforts to ensure a thorough, fair and efficient investigation process was carried out taking into the account the rights of all parties.

Terms of Reference issued on 16 March 2021 confirming that Mr Brady had been appointed to conduct an independent investigation into the context of the Complainant's email dated 15 March 2021 in respect of Mr Davitt (as respondent). The Terms of Reference made it clear that based on the evidence gathered during tine course of the investigation, the Investigator would “form preliminary conclusions” and produce a written report to the company Respondent containing the findings of the investigation.

The Terms of Reference also confirm that the Investigator “will be in sole control of the procedures/process and shall be the final arbitrator on all matters of procedure relating to the investigation."

During the course of his investigation, Mr Brady met with the Complainant (25 March 2021), Mr Cusack (29 March 2021), Mr Singh (9 April 2021), and, finally, Mr Davitt (12 April 2021). Mr Brady also conducted a detailed analysis of the relevant CCTV footage.

The investigation outcome

By an investigation report dated 30 April 2021, Mr Brady confirmed that the Complainant’s complaint was not upheld. Citing the appropriate standard of proof as on the balance of probabilities, Mr Brady provided detailed and cogent reasoning for forming his findings in relation to the allegation.

Amongst his findings, the Investigator did not accept that the Complainant and Mr Singh had met by accident. This finding undermined the credibility of the Complainant’s evidence and that of Mr Singh and called into question Mr Singh's independence as a witness. It was confirmed during the investigation that the Complainant and Mr Singh were friends who enjoyed an occasional social drink.

The Investigator did not accept the Complainant’s evidence that he heard the Respondent before he saw him. The report contains a detailed summary of the evidence gathered. Both the Complainant and Mr Singh said that Mr Davitt had shouted the disputed words at the Complainant and both said he had done so in an aggressive manner. Mr Cusack and Mr Davitt, on the other hand, denied that any such disputed words were used and that Mr Davitt had not conducted himself either in a loud or aggressive manner. This position was supported by a detailed review of the CCTV footage, which did not show any members of the public pause or react in any way to what had been characterised as a loud and heated altercation. Given the nature of the allegation, the Investigator said it would be very surprising if one person out of three positioned between the Complainant and Mr Davitt or, indeed Mr Singh himself, would not have reacted to what was alleged to have been shouted at this time.

Coincidentally, by email dated 30 April 2021 (17:50), SIPTU wrote to Mr Healy seeking an update in relation to the investigation. By email dated 30 April 2021 (19:27), Mr Healy wrote to the Complainant to advise that he would revert the following week in relation to the investigation.

By letter dated 5 May 2021, Mr Healy wrote to the Complainant to advise that the investigation had completed, and the outcome was that the allegation had not been upheld. Mr Healy stated that once the Complainant was well enough, he would engage with him to facilitate his smooth return to work.

By email dated 6 May 2021, SIPTU wrote to Mr Healy seeking a copy of the investigation report. SIPTU also requested to view the CCTV evidence.

By letter dated 11 May 2021, Mr Healy wrote to the Complainant to advise that he would be issued with a copy of the Brady report on receipt of confirmation from his GP that it was appropriate to do so. In the same email, Mr Healy confirmed that he could make arrangements to facilitate his confidentially viewing the CCTV footage referred to in the said report at the Centre.

By email dated 14 May 2021, the Complainant wrote to Mr Healy to say that his GP said he could view the investigation report and the CCTV footage.

By email dated 17 May 2021, Mr Healy wrote to the Complainant providing Mr Brady's report and offered to make arrangements to facilitate his viewing of the CCTV footage referred to in the said report.

On 26 May 2021, the Complainant attended the Centre's security room with SIPTU to view the CCTV footage. Later that day, by email dated 26 May 2021, SIPTU wrote to Mr Healy confirming that SIPTU and the Complainant had attended at the Centre to view the CCTV footage. SIPTU asked Mr Healy to facilitate their return to the Centre to see additional CCTV footage from two other cameras at his earliest convenience. On 4 June 2021, the Complainant and SIPTU returned to view the said CCTV footage.

By email dated 10 June 2021, SIPTU wrote to Mr Healy to advise that the Complainant was not accepting the findings in the Brady report setting out three reasons, which reasons would form the Complainant's later grounds of appeal.

The Appeal Process

By email dated 18 June 2021, SIPTU wrote to Mr Healy seeking a response to its previous email and seeking confirmation that “the appeals process for our member Mr Younis Sarwari to commence."

By email dated 21 June 2021, the Respondent’s HR adviser, Ms Talbot, wrote to the Complainant referring to correspondence from the Complainant to Mr Healy. Ms Talbot confirmed that she was responding to same on Mr Healy’s behalf, who was on leave at the time. Ms Talbot advised the Complainant that if he wished to appeal Mr Healy’s decision accepting the findings of the Brady report, he could do so in writing addressing same to Mr Healy within 10 working days. Ms Talbot confirmed that Mr Healy would make appropriate arrangements for any such appeal.

By email dated 24 June 2021, SIPTU wrote to Ms Talbot confirming that the Union had already issued grounds of appeal to Mr Healy by email dated 10 June 2021. The grounds of appeal were confined to the following three points:

·         The CCTV evidence contradicts the findings of the investigation;

·         The investigation process was flawed; and

·         The investigation was biased and unfair.

By letter dated 25 June 2021, the Respondent’s Joint Chief Executive Officer, Mr Kenny, wrote to the Complainant to confirm that he would hold an appeal hearing remotely into the Complainant's appeal. He confirmed that the appeals hearing would take place on 1 July 2021 at which the Complainant could make submissions into his grounds of appeal. Mr Kenny indicated he was happy also to facilitate an in-person appeals hearing at the Centre if that was preferred by the Complainant. The Complainant was advised that he could be accompanied at the appeals hearing. By subsequent letter dated 28 June 2021, Mr Kenny wrote to the Complainant to change the date of the appeals hearing to 9 July 2021 and confirmed that it would take place at the Centre.

By email dated 29 June 2021, the Complainant wrote to Mr Kenny to advise that he was not available on 9 July 2021.

By further letter dated 2 July 2021, Mr Kenny replied to the Complainant to advise that he could only meet in person on the week commencing 26 July 2021 and confirmed that the appeals hearing would otherwise take virtually on 6 July 2021. The Complainant was given the option of the earlier virtual hearing or the later in person meeting.

During the course of the appeal process, by letter dated 6 July 2021, Breen Geary McCarthy and Shee Solicitors wrote to the Respondent to advise that they were now representing the Complainant. The letter referred to the Complainant's allegation of harassment against Mr Davitt on 26 February 2021 and characterised the alleged incident as "considerable bullying, harassment and indeed racism by the centre manager.” Erroneously, the letter referred to the incident as having been the subject of “an internal investigation” and then asserted that the Complainant had “suffered quite considerable injury, stress and loss" as a result and called on the Respondent to admit full responsibility for the matter and that it was the Complainant’s intention to proceed further.

The Appeals hearing.

On 8 July 2021, an appeal meeting took place. It was chaired by Mr Kenny who was accompanied by HR adviser, Ms Talbot. Amongst the matters raised during the appeal, SIPTU criticised the Investigator for not furnishing the Complainant with the CCTV footage until after his report had issued. The Complainant disputed the findings made by the Investigator and his reference to the CCTV footage in support of same. When asked by Mr Kenny to specify how the CCTV footage contradicted the report’s findings, SIPTU said it contradicted everything.

Mr Kenny confirmed with SIPTU that they had viewed the CCTV footage after the investigation report had issued. When Mr Kenny invited SIPTU to specify how in the official’s view, the CCTV footage contradicting the investigation findings, the official would not do so preferring instead to say ‘Everything’ and later restating ‘The CCTV evidence doesn’t add up in the report’. Despite the general assertions in this regard, SIPTU failed to provide any specific examples of where findings of the report were inconsistent or incorrect based on any piece of the CCTV footage that had been made available to the Complainant.

SIPTU then asked what provisions were being put in place before the Complainant returned to work and what provisions would be put in place to protect the Complainant against Mr Davitt. SIPTU repeatedly expressed the view that the purpose of the meeting was to deal with the Complainant’s return to work as opposed to it being an appeal hearing.

Mr Kenny invited the Complainant to make out his appeal in written submissions to which SIPTU stated, “we have put forward what we wanted to put forward.”

By letter dated 13 July 2021, Mr Kenny wrote to the Complainant to advise that he concurred with the findings in the investigation report and thus upheld Mr Healy’s decision to accept the said report and its findings. In confirming his position, Mr Kenny provided a detailed summary of the issues that had arisen during the appeal and his responses and reasoned findings in respect of same.

Mr Kenny confirmed that when the Complainant was medically fit to return to work, all appropriate discussions would take place to facilitate his smooth return. The Complainant was also advised that if he had any new allegations to make, he should do so in writing and without delay.

Post-complaint developments

By a WRC complaint form dated 16 July 2021, the Complainant lodged the within complaint. The Respondent received notice of the said WRC complaint on 20 August 2021.

Also, on 16 July 2021, the Complainant attended Dr Sasha Hennessy, an independent occupational health physician at MedWise, for the purposes of an assessment in relation to his fitness for work. By a report issuing that day, Dr Hennessy stated that she did not believe the Complainant's perception of ‘stress’ had concerning detrimental effects on his physical fitness for work. She said that, in her opinion, whilst she could find no definitive medical reason to recommend that the Complainant was unfit for work, he maintained that he was subjectively unfit for work. Dr Hennessy concluded that the issue appeared to be an employee relations one rather than a medical one.

By letter dated 3 August 2021, Mr Healy wrote to the Complainant enclosing a copy of Dr Hennessy’s report and referring to the fact that she did not believe he was unfit for work. Mr Healy referred to the fact that the Complainant was not willing to permit Dr Hennessy made contact with his GP and asked him to reconsider his position in that regard in order for the doctors to be in a position to reach consensus in relation to the Complainant. In the absence of same, Mr Healy advised that the Respondent would have to rely on the independent medical opinion of Dr Hennessy. Mr Healy sought to reassure the Complainant about his returning to work.

By email dated 10 August 2021, the Complainant confirmed that he was not willing to give his consent to Dr Hennessy making contact with his GP or to have access to his medical history. The Complainant then sought to query Dr Hennessy’s reports as inconsistent.

By email dated 11 August 2021, Mr Healy wrote to the Complainant explaining the reasons for the Respondent’s request concerning contacting his GP and reiterated his preference to obtain a consensus between the two medical professionals.

By email dated 20 August 2021, the Complainant wrote to Mr Healy declining to meet with him on 24 August 2021. By letter dated 26 August 2021, Mr Healy wrote to the Complainant expressing his regret that the Complainant was unwilling to meet with him. Mr Healy referred to the findings of the MedWise report and confirmed that performance, where fit, of his contract of employment required his attendance at work, unless authorised otherwise by the Respondent. The letter confirmed that the Complainant's absence at the material time was unauthorised. Mr Healy expressed the view that the Complainant’s failure to attend a meeting about his return to work was not reasonable and stated that he had sought the Complainant's input to facilitate his smooth return to work.

Mr Healy once again invited the Complainant to attend a meeting with him to discuss any issues he may have regarding his return to work and indicated that a further failure to engage may be considered a repudiation or non-performance of his contract of employment. Finally, the letter referred to the Respondent’s concerns about the Complainant’s breach of confidentiality of matters and referred to it as something that would be treated very seriously.

By email dated 30 August 2021, the Complainant wrote to Mr Healy criticising what he referred to as “threats or false accusations regarding your comments on me discussing things with someone outside the company.” The Complainant called on Mr Healy to withdraw the comment stating that it was causing him more stress. The Complainant reiterated his view regarding the MedWise report’s findings and again confirmed that he was unwilling to consent to the sharing of his medical history. The Complainant stated that his GP had deemed him “not fit to return to work” and that he would be taking his doctor’s opinion rather than that of MedWise.

The Complainant stated that he had no confidence in the Respondent resolving his complaint.

By email dated 27 September 2021, the Complainant wrote to Mr Healy to advise that he was handing in his notice of termination of his employment and giving four weeks' notice pursuant to his contract of employment. He said he had been left with no choice.

Respondent's 'Protection of Dignity at Work’ policy

Contract of employment

The Complainant’s terms and conditions of employment are contained in his contract of employment, which refers, inter alia, to the Respondent’s ‘Dignity at Work' policy. The contract confirms that the Respondent is:

“committed to providing a positive working environment in which all members of staff carry out their work in a collegiate and encouraging and constructive atmosphere.”

Reference to the policy continues:

“All staff are required to act in a respectful and polite manner in their interaction with other staff and any other person with whom they come into contact in the course of their work, treating them with dignity and respect. It is important to be aware of our behaviour on others and that appropriate language is used at all times.”

The contract makes explicit reference to the Employee Handbook and the relevant policy contained therein to enable employees to raise any related concerns. A copy of the said Employee Handbook is furnished to all staff, including the Complainant and Mr Davitt.

In addition, staff are on notice that a communal copy of the Employee Handbook is available to all in the staff room. It contains all relevant policies, including the Respondent's Protection of Dignity at Work policy.

Protection of Dignity at Work policy

By signed confirmation dated 7 July 2020, the Complainant confirmed receipt of the Respondent’s Employee Handbook, which document contained the Respondent’s Protection of Dignity at Work policy.

In the Introduction to the Employee Handbook, the Respondent expressly asserts that it is “committed to principles and practices of equality regardless of any factor." The handbook refers to the induction and training provided to all employees and emphasises the importance of staff taking a careful note of policies and procedures.

Under the detailed ‘Protection of Dignity at Work’ policy, the Respondent confirms that “[a]ny form of inappropriate behaviour will not be tolerated."

It is designed not only to educate staff in relation to what constitutes bullying, harassment and sexual harassment so as to prevent deliberate or unintended instances of same but also to provide a speedy and comprehensive investigative process which protects the separate rights of both the complainant and the subject of the complaint. The policy makes it clear that harassment will not be tolerated by the Respondent.

Induction training is provided to all staff on joining by the Respondent’s Management team. This includes training on race-related harassment by reference to the Respondent’s policy. Like all members of staff, Mr Davitt and the Complainant received training and ongoing training. Staff were informed at all times of any changes or updates to policies contained in the Respondent's employee handbook.

In addition, during December 2018, when the Respondent rolled out its revised Employee Handbook, the Respondent’s HR adviser conducted training exercises, initially with members of management and then separately with the rest of the Respondent's employees, which training focused on bullying, harassment and sexual harassment. All members of management, including Mr Davitt, attended these sessions. The Complainant attended the training for staff at this time.

The policy's purpose is to:

·         provide clear definitions of bullying, harassment and sexual harassment;

·         outline the policy of the Respondent Centre regarding bullying, harassment and sexual harassment;

·         help promote an environment free from bullying, harassment and sexual harassment; and

·         outline the procedure to be followed in the event that an employee considers that he/she has/is experiencing bullying, harassment and sexual harassment.

In relation to harassment, the policy refers staff to a series of acts, including “offensive language, ridicule, gossip, slander, insulting someone's appearance or name-calling, impugning a person's good name."

Codifying the duties of care owed by the employer to both employees, the policy expressly provides that “[management is required to set appropriate standards of behaviour by their own example. They are responsible for ensuring that any harassment or bullying of which they are aware is eliminated.”

The policy provides that where allegations are made under the policy they “will be dealt with promptly” and in a manner that ensures confidentiality and “full regard to the dignity of all concerned.” The policy safeguards the rights of the accused providing that “regard will be given to the wishes of the complainant and the rights of the person against whom the allegations are made.” To bolster the rights of subjects of complaints, the policy also provides that “[i]f it emerges that a complaint was malicious it will be viewed as serious misconduct and appropriate disciplinary action may be taken."

Dedicated complaints procedure

The procedures provide for a two-stage process, covering both informal and formal avenues of redress and staff are invited to raise any concern they may have through these procedures. In circumstances where the informal route is not considered appropriate, an employee may invoke his right to have the matter formally investigated.

The policy provides that the services of an external independent investigator/adviser may be engaged for the purposes of conducting the investigation where “terms of reference will be put in place."

At all material times, the Respondent applied these procedures to the letter.

Complainant’s written submissions

The Respondent makes the following observations:

·         The Complainant sought in his submissions to raise for the first time entirely new complaints about Mr Davitt. These were never put to Mr Davitt, whether in MrBrady’s formal investigation or in the context of any other complaint, formal or informal;

·         The Complainant attempts to admit certain medical evidence that was never before furnished to the Respondent or Mr Brady in the context of his investigation (and which evidence is not admitted);

·         The Complainant seeks to advance an argument that he was treated unfairly because he was not provided with copies of CCTV footage during the investigation. In making this point, the Complainant omits to mention that he was provided with the said CCTV footage in the context of the appeal and given an opportunity to identify his specific concerns about the CCTV and Mr Brady’s findings in respect of same. He failed to do so and in his appeal outcome letter, Mr Kenny confirmed that he was satisfied with Mr Brady's findings in respect of same;

·         And the Complainant seeks to argue that Mr Brady acted not impartially in his investigation. This is a serious allegation to make about an independent member of the Bar and the Complainant provides no reasonable evidence to support it;

·         The Complainant complains that he was not provided with a copy of a draft report before it was finalised. This was not a feature of the Terms of Reference and an employee has no right to such a draft before finalisation of a report. The Complainant was provided with a copy of the report before his appeal.

Bound by investigator’s findings

The Respondent repeats its earlier submissions that its policy not only recognises the rights of a complainant to make allegations but is also bound to protect and safeguard the rights of a person who finds themselves accused of a complaint of harassment, the implications of which can be life altering.

Indeed, the Respondent submits that it is bound to act, and thus be judged, only on the basis of the information before it at the material time. The Respondent submits that the reasonableness of its response can only be based on that information and that it is not a function of an Adjudication Officer or the Labour Court on appeal to ask whether it would have taken the same steps in the circumstances or to substitute its view for the employer's view. Its function, it is submitted, is to ask was it reasonable for the Respondent, based on the information before it, to act as it did rather than necessarily the acts or views of a particular adjudication officer or division of the Labour Court would have taken. See, by way of analogy, albeit in the context of an unfair dismissal claim, the judgment of Linnane J in AIB v Purcell [2012] 23 E.L.R. 189, where she held: “It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer's view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken”.

Indeed, it is common, as here, for an investigator to be faced with conflicting accounts in such matters. In such cases, the case will rest upon which version of events the investigator considers the most credible. To this end, the Respondent submits that the Respondent commissioned an independent barrister with specific expertise in this field to investigate and make preliminary findings in relation to the Complainant's allegations. In the absence of any legitimate basis, the Respondent and the Adjudication Officer, should not effectively overturn the findings of an investigation carried out in accordance with the parties’ contracts at the material time. This is particularly the case when asked to do so based on any alleged facts and/or submissions that were not available or canvassed at the material time.

On the balance of the evidence before him, the investigator could not uphold the Complainant’s allegations. To consider new evidence not put before the investigator would not only be inappropriate but could potentially effect a real and grave injustice to the subject of the complaint, both in terms of his contractual rights to fair procedures and his constitutional rights to due process and his right to maintain his good name.

The law

Burden of proof

Under the Employment Equality Acts, the burden of proof rests with the Respondent once the Complainant has proved a prima facie case.

In that regard, the Respondent relies on EDA0416 DPP v Sheehan, EE5/1986 Dublin Corporation v. Gibney's, AEE/99/8 Southern Health Board v. Mitchell, and Melbury Developments Limited -v- Valpeters EDA 17/2009 [2010] ELR, where the Labour Court made it clear that:

“Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn."

Race discrimination

As with all equality claims, the onus begins with the Complainant who must first establish a prima facie case of discrimination. If a prima facie case is made out, the evidential burden shifts to the Respondent who must then seek with evidence to rebut the existing presumption of discrimination.

The burden of proof borne by the parties in a case of this kind is regulated by the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (SI No. 337 of 2001). Regulation 3(1) of which provides:

"where in any proceedings facts are established by or on behalf of a person from whom ft may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other persons to prove to the contrary. “

Once an employee therefore adduces a sufficient factual matrix in respect of which discrimination may be presumed to have taken place, it is then a matter for the employer to prove that the treatment being challenged was not in fact on grounds of race but on other non-discriminatory grounds.

The law regarding harassment

Before considering the specific instance of alleged harassment contained in the Complainant’s written complaint, it is necessary to understand the legal definitions of these terms. Section 14A(7) of the Employment Equality Acts 1998-2015 which defines harassment and sexual harassment as follows:

“14A.— (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,

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.

(a)    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." [emphasis added]

The definition is thus broad in scope and permits a range of acts that are capable of falling within its parameters. While these acts may be capable of falling with the definition provided each individual act can differ significantly from the next, both in terms of gravity and their effect on the alleged victim.

The legislation provides that harassment is any form of unwanted conduct related to any of the nine statutory discriminatory grounds. The unwanted conduct must have “the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.” (section 14A(7)(a) of the Act.)

The Labour Court in the case of Nail Zone Ltd, v A Worker EDA1023 defined the law in relation to harassment as follows:

“The essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”

In the instant case, the Investigation Report found that Mr Davitt did not utter the words he was accused of by the Complainant. The findings of the Investigation Report were upheld on appeal. On that basis alone, it is submitted that the behaviour complained of does not and cannot amount to harassment contrary to the Acts.

Further or in the alternative, the Respondent submits that if the Complainant was subject to harassment by Mr Davitt (which is denied), the Respondent is not liable for the treatment because it took such steps as were reasonably practicable to prevent any such treatment and/or to reverse the effects of any such treatment.

Defences to harassment and sexual harassment

Sections 14A(2) and 15(3) of the Acts provide an employer with potential defences to a claim of harassment and/or sexual harassment where the employer can show that it took such steps as were reasonably practicable to prevent the employee from doing in the course of his or her employment acts of that description. Guidance as to what constitutes steps that are “reasonably practicable” is provided by the Recast Equal Treatment Directive (Council Directive 2006/54), the related Code of Practice and the decided case law.

Recital 5 of the said Directive provides that employers are encouraged to take measures to combat all forms of discrimination on grounds of sex and, in particular, to take preventative measures against harassment and sexual harassment in the workplace and in access to employment, training and promotion, in accordance with national law and practice.

The Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002 (SI No. 78 of 2002 places a significant emphasis on employers having a policy in place and gives practical assistance to an employer on how the policy should be drawn up, implemented and communicated to employees. The Code even provides key elements for a code to be implemented by employers. The Code emphasises that the purpose of the policy is to prevent harassment.

The Code emphasises effective communication to employees of any such policy and makes particular mention of “those in management and all other positions of responsibility.” Communication of the policy should take place as part of any formal induction process whereby new employees become familiar with their job and their working environment and rules and regulations that apply such as health and safety.

The Code states that the Policy should include a commitment to monitoring incidents of sexual harassment and harassment. “This monitoring information should be used to evaluate the policy and procedures at regular intervals, with changes recommended when something is not working well."

The Code provides that a dedicated complaints procedure should exist specifically designed to deal with harassment complaints. It is clear from that a general grievance procedure does not conform to the Code’s recommendations. The Code stipulates as of great importance that the harassment policy should be provide "clear and precise procedures to deal with sexual harassment and harassment once it has occurred."

The Respondent cited the following case law in relation to harassment policies: Limerick City Council v Martin Mannering EDA1210, A Worker v A Hotel [2010] ELR 72, Bains v Maotham Ltd t/a Moa DEC-E2015-030, AWorker v Engineering Company DEC-E2008-03,S v A Named Organisation DEC-E2006-025, Atkinson v Carty [2005] ELR 1, Gabriele Piazza v The Clarion Hotel DEC-E-2004-033.

Application of the law to the facts of this case

These submissions have already provided details in relation to the Respondent’s specific protection of Dignity at Work policy, a copy of which is issued to every member of staff on joining and details of which are provided where updated.

The policy is clear and detailed, explaining the impact of harassment, the sort of conduct that amounts to harassment, the fact that such conduct will not be tolerated by the Respondent and the procedures to use should an individual wish to complain.

The policy was effectively communicated to all staff by giving it to them on joining and providing training on it during induction training.

All staff (including Mr Davitt) received appropriate training in relation to the policy and procedure.

The Respondent further submits that as soon as the Complainant made his complaint, swift and appropriate action was taken by the Respondent as outlined above when it:

·         Met with the Complainant to discuss his complaint and took a note of it;

·         Reminded the Complainant of his rights pursuant to its Protection of Dignity at Work policy;

·         Agreed to consider his complaint under the formal procedure;

·         Appointed an independent external investigator; and

·         Formally commenced an independent investigation just days after the Complainant had confirmed that he wished to pursue the matter via the formal complaint procedures.

In taking these steps the Respondent sought to reverse the effects of any harassment (which was not subsequently proven or upheld in any event).

It is submitted that the Respondent's policy meets these requirements and the Respondent took swift and appropriate action in line with policy. The defence under sections 14A(2) and 15(3) of the Acts is therefore available to the Respondent who is entitled to rely upon it.

Conclusions

For the reasons set out above, the Respondent submits that the Complainant's complaint should be dismissed in its entirety.

Summary of direct evidence and cross-examination of Mr Davitt, the General Manager

Mr Davitt said that he was involved in the recruitment of the Complainant. He said that at the interview they talked about what the Respondent expects and what the employee can expect, they went through details of the Handbook which, in his view, is the gospel for the centre in relation to how people should be treated and could expect to be treated. He said that the employees are asked to go through the Handbook before they sign anything.

Mr Davitt said that anyone is welcome to speak to him or any other manager.

Mr Davitt said that there is an induction training conducted by the Security Manager and a supervisor in relation to all aspects of the centre, including health & safety, on call duties, alarms, etc. He said that it takes approximately 6 months to fully train a staff member.

Mr Davitt further said that the Respondent has a very diverse workforce. The Respondent sets standards and expects people to adhere in terms of harassment, sexual harassment, etc. The Respondent has a ‘lead by example’ approach. Mr Davitt confirmed that two sessions of dignity at work training were held in December 2018.

Mr Davitt said that he has a lot of experience in dealing with people. He described the approach he took on two occasions when incidents arose. He said that there is zero tolerance for inappropriate behaviour and anything brought to the Respondent’s attention would be dealt with appropriately.

Mr Davitt said that he has 39 years of experience and there had never been any complaints about him. He said that there are staff meetings every two months to ensure that the centre is run properly. Matters such as mobile phone usage, customer service, appearance, etc. are discussed at these meetings which are attended by all security staff.

Mr Davitt said that, if he sees a staff member not adhering to the rules, he would approach them.

Mr Davitt said that he would not monitor staff by using the CCTV system.

Mr Davitt said that he was contacted by one of the shops in relation to an issue with a leaking roof causing damage. He called the Maintenance Manager who joined him to investigate the reported issue. Mr Davitt said that as they were walking, he saw the Complainant and Mr Singh. They did not see him as they were both concentrated on a phone. The Complainant had his hands in his pockets. Mr Davitt said that he asked “Can I have a word, please? Can you please take hands out of your pockets, that’s what you are trained”. Mr Davitt said that at the time there were customers around, staff in the nearby shops, he absolutely did not shout. Mr Davitt said that the Complainant told him “if you wish to speak to me, you can take me to your office”, to which he replied that he could because the Complainant was not carrying out his duties.

Mr Davitt said that security staff are responsible for common areas. Every unit has an internal alarm connected to a panel. External units don’t have alarm system within the shopping centre, they are connected directly to their external security company. The Respondent’s Security Operative would never be asked to view CCTV, they have no access to CCTV. There is only limited number of staff at managerial level that have access to CCTV. Nobody would contact a Security Operative to look at the cameras.

Regarding the matter of leave for Ramadan, Mr Davitt clarified that the Respondent’s annual leave year runs from 1st January to 31st December. Staff take 2 weeks in the summer, one week in the winter and one floating week. All employees receive a letter outlining annual leave arrangements at the start of the year. He said that that year Ramadan fell in May. The Respondent wouldn’t accommodate anyone with that amount of leave. The Respondent reverted to the Complainant saying that one week would be ok. The Complainant said that he would come back but he did not.

Mr Davitt informed the hearing that the Respondent does not pay sick pay. In relation to the alleged warning regarding a personal injury claim, Mr Davitt said that the Complainant came to his office and said that if the Respondent paid him, he would not take a case against the Respondent.

Mr Davitt said that he had never been a subject of a complaint. He said that it had a terrible effect on him and his family.

In cross-examination, Mr Davitt confirmed that he was satisfied with the Complainant’s work and the Complainant was made a permanent employee.

Mr Davitt said that the Respondent does not have a separate EDI policy in place.

Ms Walsh BL asked Mr Davitt some questions about an incident that he had raised in relation to a WhatsApp group where allegedly employees exchanged “racial slur” messages about family members of the Respondent’s employee. Mr Davitt said that the individual in question did not provide any proof and was not willing to come forward. He said that it was not a work WhatsApp group. The Respondent asked for the group to be disbanded. He said that he did not know who was sending / receiving the messages. He had two meetings in or around September 2020 with staff and made it clear that what is expected from them inside the company, is also expected outside.

Mr Davitt described another incident where an individual made inappropriate advances to an employee. Mr Davitt said that he approached this individual, but he resigned and left the Respondent.

It was put to Mr Davitt that there is nothing in the Handbook about hands in pockets. He agreed but said that it shows disinterest, that appearance is important. The Respondent provides shirts and ties, employees are expected to be presentable.

Mr Davitt said that the policy on the use of mobile phones in outlined in the Handbook, they are only permitted in emergency situations. Mr Davitt confirmed that he kept a log of conversations he had with the Complainant about the mobile phone usage. He said that a log was kept of all employees that were caught on the phone.

Mr Davitt confirmed that he did not know Mr Singh at the time.

Mr Davitt said that there is a screen in his office where CCTV is available. He did not recall if he looked at the CCTV after the Complainant had made his complaint and before meeting with the Investigator.

In re-examination it was highlighted that the Respondent’s Handbook addresses the matter of dress code, and under the heading ‘Equality’ it addresses he Respondent’s decision to articulate its position on the matter.

It was also clarified that Mr Davitt saw the CCTV footage of the incident on 12th April 2021.

Summary of direct evidence and cross-examination of Ms Talbot, HR Adviser

Ms Talbot said that the Respondent outsourced the HR function, and she has been approximately 5 years with the Respondent.  She said that updating the Handbook was probably one of the first things she did.

Ms Talbot said that a number of training sessions were arranged in December 2018 to ensure that all staff attended training on the Dignity at Work. Ms Talbot said that the sessions were designed to provoke conversation and make it as interactive as possible.

Ms Talbot said that the management are required to set standards of behaviour by their own example. She said that any complaint made is managed appropriately. Ms Talbot said that there had been no previous complaints.

Ms Talbot said that the Complainant had every opportunity to raise anything and it would be considered. She said that her role was around ensuring that the process was fair. The Complainant had ample opportunity to clarify in particular what was of issue. He claimed that it was “everything”.

Ms Talbot said that she dealt with Mr Davitt only in the context of work and had never seen him angry, annoyed or raising his voice.

In cross-examination, it was put to Ms Talbot that the fact that something is out of character, does not mean that someone would not lose their temper, it does not mean that it did not happen. Ms Talbot said that she was asked her opinion of Mr Davitt and she gave it. She said she would have to give some thought to the assertion that on occasion people do things that are out of character.

Ms Talbot confirmed that Mr Brady BL was engaged by the Respondent to investigate and that the CEO conducted the appeal.

It was put to Ms Talbot that the Complainant said that Mr Brady was not impartial and the CEO hearing the appeal was fundamentally wrong. Ms Talbot noted that, in terms of the CEO hearing the appeal there are two principles to consider. Firstly, he was not connected in any way. Secondly, he was more senior than Mr Healy. Ms Talbot said that this is a standard practice.

Ms Talbot was asked whether it would be more appropriate to have someone from outside to hear the appeal Ms Talbot said that it is extremely unusual to have an appeal heard by an external person, perhaps in circumstances where there is no one more senior or not involved in the process. She noted that while there is no separate appeal provided for in the DAW, but the Complainant was afforded an opportunity to appeal the findings and the same standard applied as per the grievance and disciplinary process. The Respondent was dealing with his complaint in a fair way and afforded him opportunity to say what he wanted to say, the process was thorough and fair.

Preliminary issue

Ms Walsh BL, on behalf of the Complainant, submitted that the Respondent has failed to provide the Complainant and his legal advisers with a copy of the CCTV footage. She asserted that failure of the Respondent to do so amounts to a breach of the Complainant’s rights to fair procedures and natural and constitutional justice, and that the Complainant, and his legal team, are entitled to a reasonable opportunity to review the CCTV footage of the incident.

The Respondent explained that for data protection reasons a copy of the CCTV footage could not be released.

I note that the Complainant’s representative requested a copy of the footage to be furnished rather than giving her an opportunity to view it.  In that regard, I am cognisant of the concerns the Respondent had regarding providing the Complainant with a copy of the footage given that members of the public were captured by the footage. There was no dispute that the Complainant and his SIPTU representative had the opportunity to review the CCTV footage on 26 May 2021 and 4 June 2021. In the circumstances, I cannot conclude that the fact that the Complainant was not provided with a copy of the footage amounted to any lack of procedural fairness which would imperil his rights to fair procedures and natural justice.

The Complainant’s representative also suggested that the Adjudication Officer would benefit from viewing the CCTV and should request the Respondent to present the footage at the hearing. I note that the footage does not contain any audio recording. Consequently, it could not be determined what was said during the interaction in question. I further note that all individuals captured by the CCTV at the time of the incident wore face masks and no facial expressions would have been visible. These factors, in my opinion, limit the evidential value of the footage.

My view on the matter is reinforced by further consideration given to the Complainant’s assertion that he disputed the Investigator’s interpretation of the footage. The Respondent in its submissions included a document entitled Summary of CCTV. The Complainant received a copy of the document together with the Investigation Report. The document was prepared by the Investigator and details what can be seen in the video. To be clear, the document in question does not appear to be the Investigator’s interpretation of what he sees on the screen. Rather it is a detailed description what is on the screen, e.g.,

“10:12:00Mr Sarwari accompanied by another party seen entering footage from top of screen.”

“10:12:21 Mr Davitt and Mr Cusack appear on Camera walking in the opposite direction to Mr Sarwari and Mr Singh. There are three people directly in front of them, one pushing a trolley.”

The Complainant was invited to indicate which part or parts of the Summary of CCTV he disputed. The Complainant was unable to point to any inaccuracies within the document. He repeated that he disagreed with the Investigator’s interpretation of the footage, albeit he was unable to provide any specifics when prompted by the Adjudication Officer.

Furthermore, the Complainant, Mr Davitt and Mr Singh were present and gave sworn evidence at the hearing. Having the benefit of sworn evidence of the parties involved outweighs, in the circumstances, the evidential value of the CCTV footage available.

Having considered the submissions of the parties, in the absence of any inaccuracies identified by the Complainant, and having the benefit of sworn evidence of Mr Sarwari, Mr Singh, and Mr Davitt, I conclude that the CCTV footage is of little or no evidential value.

Substantive matter

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.  It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him.  If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary.  The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. 

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. The Labour Court elaborated on the interpretation of Section 85A in the case of Melbury v Valpeters EDA0917where it held that Section 85A:

"…. provides for the allocation of the probative burden in cases within its ambit. 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 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.”

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “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) …..”. 

Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows – (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 8(6) of the Acts provide as follows:

“(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”

Section 14A. deal with harassment and sexual harassment

(1) For the purposes of this Act, where—

(a) an employee (in this section referred to as “the victim”) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as “the workplace”) or otherwise in the course of his or her employment by a person who is—

(i) employed at that place or by the same employer,

(ii) the victim's employer, or

(iii) a client, customer or other business contact of the victim's employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or

(b) without prejudice to the generality of paragraph (a)—

(i) such harassment has occurred, and

(ii) either—

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim's employer in relation to the victim's conditions of employment.

(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 issue for consideration by me is whether or not the Complainant was subjected to discriminatory treatment and harassment on the grounds of race.

To determine whether the complainant has established a prima facie case a three-tier test is employed: (1) the Complainant must establish that he is covered by the relevant discriminatory ground; (2) he must establish that the specific treatment alleged has actually occurred; and (3) it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

In summary, the Complainant claims that on 26 February 2021, Mr Davitt, Centre Manager approached him “screaming and shouting”. The Complainant asserted that Mr Davitt was screaming from a distance “take the hands out of your pockets”, and when he came closer to the Complainant he shouted, “you look like a monkey”.  The Complainant said that he was shocked and said, “you can’t talk to anyone like this, treat like that”. The Complainant said that he took a few steps and Mr Davitt shouted “hello, hello, I’m shouting at you”. The Complainant said that Mr Davitt was aggressive, and the Complainant told him that he could not talk to him like this. Mr Singh, who accompanied the Complainant kept walking. The Complainant asserted that there were customers around but he did not think that any of the customers paid any attention to the incident.

The Respondent disputes the claim. Mr Davitt, in his evidence said that he approached the Complainant and asked him “Can I have a word, please? Can you please take hands out of your pockets, that’s what you are trained”. Mr Davitt said that he did not shout. He said that there were customers and staff around.  Mr Davitt said that the Complainant told him “if you wish to speak to me, you can take me to your office”, to which he replied that he could because the Complainant was not carrying out his duties.

I find the Complainant’s evidence unreliable and unpersuasive for the following reasons. The Complainant asserted that Mr Davitt shouted and screamed at him from distance, while walking towards him, and in his face when he told the Complainant that he looked like “a monkey”. The Complainant in his evidence stated that nobody paid any attention to the alleged behaviour. Given the positioning of members of the public, as described in the Summary of CCTV in which the Complainant did not identify any inaccuracies, I find it implausible that Mr Davitt’s alleged behaviour would not draw attention to by at least the persons positioned in the immediate vicinity of the Complainant and Mr Davitt, such as the person between the Complainant and Mr Davitt. 

Furthermore, I find that the Complainant’s and his witness, Mr Singh’s evidence was conflicting. The Complainant asserted that what Mr Singh showed him on his phone was not work related, it was as he called it a “lads’ thing”. Mr Singh having heard the Complainant’s evidence and cross-examination contradicted it and insisted that what he showed to the Complainant was the record of the security company call on his phone. He vehemently denied that he showed the Complainant something that was not a work-related matter. Both the Complainant and Mr Singh were offered an opportunity to revisit their evidence, and both insisted on their respective version. While the case would not turn on the matter of what was shown to the Complainant in itself, it raised a question mark over the credibility of the evidence and limits the weight that can be placed on the evidence given.

The Complainant’s evidence was also inconsistent.  The Complainant said that he was told by Mr Davitt that he was “watching you on cameras”, only to deny this statement by saying that he never said Mr Davitt was watching him on cameras.

I note the Complainant’s assertion that claim is supported by the fact that he lodged a complaint with the Respondent.  In that regard Kukstaite v Shedan DEC-E2013-193 was relied upon. In the cited case, the complainant spoke with to a staff member about the incident and reported it to Gardaí on her way home. I note that in the within case the Complainant did not report the alleged discrimination to the Security Manager on the day in question or to his supervisor on the next day, or indeed to any other member of the management or a work colleague. It was not until 10th March 2021, some two weeks later that he emailed the Respondent’s Director of Property Management informing the Respondent that his SIPTU rep would be dealing with the matter and not until 15th March 2021 that he emailed his formal complaint. The Complainant said that he was in shock, he did not see any point in reporting the incident, and that he had no one to report it to.

I accept that it is quite a step for someone to lodge an official complaint of racism with their employer and many non-Irish employees who are not in secure employment could be hesitant to do so. However, I note that on the Complainant’s own evidence, he challenged Mr Davitt and told him that he could not “talk to anyone like this, treat like that”.  The Investigator’s report shows that the Complainant said to Mr Davitt that “you can’t treat any human being like that, and this is not the way to talk to somebody and I am not accepting it. You can’t shout at me on the mall.”  I would be reluctant to accept that the Complainant was unable to communicate the incident to his co-workers, supervisor or manager in light of the evidence showing that the Complainant was well able to immediately challenge Mr Davitt at the time of the incident.  

Furthermore, the Complainant denied that he had ever attended equality, diversity and inclusion training, however, the Respondent’s records show that he did attend the session on 14 December 2018. The Complainant confirmed that it is his signature on the document that stated:

“I refer to our recent staff meeting, where we conducted training on the Dignity at Work policy and advised that the full policy, as part of the Employee Handbook would be made available. I now have the pleasure in providing your copy of the Handbook to you.”

While the Complainant’s representative clarified that the matter of the Complainant’s annual leave request for Ramadan and the sick leave were raised only to show that “things don’t happen in the vacuum”, I will address them briefly for the completeness’ sake.  The Complainant asserted before the incident on 26 February 2021 he was refused holidays for the period of Ramadan and he was not paid for his sick leave in 2020. The Complainant somewhat alluded that it was a discriminatory treatment he suffered. 

At the adjudication hearing, the Complainant accepted that the same rules regarding annual leave apply to all security staff across the board and he was treated no differently to other staff members. In fact, it appears that an exception was made in his first year of employment and he was allowed time off for the period of Ramadan.

In relation to sick leave, the Complainant asserted that he was not sure if other staff were paid for sick absences. However, the documents outlining the Complainant’s terms of employment which he signed and dated on 14 August 2018 and 24 August 2019 state as follows:

“It is the policy of the company not to pay while on sick leave, however, you may be entitled to a social welfare payment.”

Furthermore, the Complainant confirmed that the Respondent has a diverse workforce, there is no culture of racism, and staff are encouraged to speak out and report issues. At the same time, he suggested that he could not return to work as he had no confidence that “it wouldn’t happen again”.

On balance, I have found Mr Davitt’s evidence in relation to the interaction that took place between the Complainant and Mr Davitt to be more compelling, cogent and consistent. I accept the Respondent’s submission that the Complainant was not subjected to any less favourable treatment in relation to the matters complained of on account of his race. Having regard to the foregoing, I find that the Complainant has failed to establish a prima facie case of direct discrimination on the grounds of race in relation to the incident of 26 February 2021.

The obligation rests with the Complainant to provide credible evidence to raise the allegations to meet the standard of “established facts.” As set out in Melbury Developments Ltd. V Valpeters EDA cited above “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”  In the instant case the Complainant made a number of allegations relating to the behaviour of the Respondent. However, I am not satisfied that I have been presented with evidence from which I could reasonably conclude that the Complainant was discriminated against and/or harassed by the Respondent on the ground of race.

I declare this complaint to be not well founded.

Race discrimination – no prima facie case