Complainant

Respondent

Parties

Alan  Casey

Securitas Security Services Ireland

Representatives

IBEC

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-00045637-001

11/08/2021

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

CA-00045637-002

11/08/2021

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

CA-00045637-003

31/08/2021

The Complainant is employed by the respondent as a Security Officer.

On March 10th, 2021 the complainant made a formal complaint against a colleague. On March 12th, 2022, the colleague made a counter complaint against the complainant.

Both complaints related to an incident that took place on March 9th, 2021. Both employees alleged that the other had been abusive and threatening

At the outset of the hearing complaints 2 and 3 were withdrawn.

The complainant had a disagreement with a co-worker (PB) in early 2020 (unrelated to this incident) and they had not spoken since then, although still working together regularly on shift. The complainant was willing to tolerate this.

On the morning of March 9th, he says he was the subject of racial abuse by PB.

At 05.00. PB left the office to go out onsite, and from 06.00 approximately the complainant  was trying to contact him via the work radio/handset system. He would not respond and eventually the complainant had to leave the office unmanned to use the toilet.

This took him about five minutes, and although it is against procedure to leave the office unmanned, he had no alternative as PB was simply refusing to answer his attempts to make radio contact.

When PB returned to the office he asked in a quite firm and assertive manner why he had not answered the radio calls?

His reply was: "go [expletive] yourself". The complainant replied calling him an idiot and saying he did not care how long he was gone out of the office but when called he is expected to answer as per site procedure.

He again replied in similar vein and said the complainant was ‘only a traveller’ and if he wanted to ‘have a go’ he should approach him.  This was seen as an invitation to a physical engagement and this verbal exchange continued.

The complainant told him he ‘wasn't worth losing my job over’.

Within twenty-four hours of this incident the complainant sent a report to his branch manager, who handed it to the HR Department.

HR then started a full investigation; they gathered witness statements from three individuals but they were not interviewed. PB was never suspended through any of this, and the complainant had to keep seeing him on handovers in work.

After some months of HR seemingly slow playing things they eventually issued conclusions which was that both parties should enter into mediation.

This implied that racial slurs in the workplace were just being swept under the carpet. Np apology was received, PB has never admitted any wrongdoing and continues to work in the same office, (although not on the same shift) which the complainant finds really upsetting.

The complainant believes Securitas has let him down in this instance. He has repeatedly emailed the HR department asking for a copy of witness statements but has not received them.

He sees PB’s actions that day as gross misconduct, not only has he never apologized, admitted any wrongdoing, but still works in the same environment.

The complainant alleged that PB had used derogatory and discriminatory language towards him. Specifically, the complainant alleged that PB told him to; ‘go back to your halting site.’

Following receipt of these complaints the respondent’s manager on site attempted to resolve the matter through informal mediation. When this did not succeed the matter escalated to a formal investigation. The investigation was carried out under the company’s disciplinary policy by the Branch Manager.

He met with PB and the complainant to hear both versions of events. Both confirmed an argument had taken place but there was a dispute as to what precisely was said by each. The investigator then interviewed other employees including two who witnessed the altercation.

An investigation outcome report was issued on July 21, 2021. The key findings of the report were that an altercation did take place between the two employees, both employees had been shouting at each other, and PB did tell the complainant to; ‘go back to your halting site.’

On foot of this it was agreed that PB would be invited to a disciplinary hearing to answer for his conduct and mediation was recommended.

For the future both were asked to ‘give their full agreement to adhering to all policies contained within the Employee Handbook and in particular he policy on prevention of bullying and harassment in the workplace.’

A full copy of the report is submitted, and no further incidents have been reported since.  On August 11, 2021, the complainant lodged the instant case with the WRC.

The respondent accepts that the complainant was the victim of verbal harassment at the hands of PB. Indeed, the respondent determined as much in through investigation of the incident.

S14A(2) Employment Equality Act, provides.

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—

The Labour Court has considered the defence of ‘reasonably practicable steps’ in the case of McCamley v Dublin Bus [2016]27ELR81.

Here the court held that though the complainant had been ‘subjected to wholly unacceptable personalised abuse in the course of his employment that no worker should be expected to tolerate’, liability did not fall to the respondent as they had taken all ‘reasonably practicable steps’.

The ratio of the McCamley case is perfectly applicable to the instant complaint.

The respondent operates comprehensive policies to prevent all forms of harassment in the workplace. These policies are agreed collectively with SIPTU and provided to all employees at the commencement of their employment and readily available thereafter.

It is noteworthy that the complainant knew exactly how and to whom to make his complaint within twenty-four hours of the incident. The incident was investigated, and appropriate action taken.

No one in the respondent company has sought or would seek to defend or excuse PB behaviour. It is ultimately beyond the control of any employer to stop an employee using abusive, or in this case, discriminatory language. It is the requirement of the employer to take all ‘reasonably practicable steps’ to prevent harassment. As in the McCamley case the respondent has done just that and therefore cannot be held liable. As the court concluded:

the net question that arises for consideration by the Court is whether the Respondent can be held liable in law for what occurred. Having regard to all of the evidence before it, the Court has concluded that the Respondent can avail of the defence that the Act provides at s.14A(2). Accordingly, the Respondent cannot be fixed with liability.

For the reasons set out above we respectfully ask that the adjudicator hold that the Respondent can avail of the defence that the Act provides at s.14A(2). Accordingly, the complaint must fail.

The facts as set out above are common case.

What started out as a relatively minor matter became heated, and included a slur based that represents a breach of the Employment Equality Act.

It resulted in a complaint to the respondent which acted properly and diligently.

 It reached findings which are summarised above and which largely vindicated the complainant’s position although he made some contribution to the incident, as he acknowledges in his statement above.

The other party was the subject of disciplinary action and it may be the complainant’s sense this that was inadequate that is the real reason for the referral as he felt aggrieved that the sanction and follow up was inadequate, and this was still visible even at the hearing.

However, as the respondent submitted, a person in the situation of the complainant is on weak ground in demanding a more stringent response; they are hardly impartial for a start, and an employer must  both act, but act with due regard to fair procedure and proportionately.

I find that the respondent did so. Despite the complainant’s apparent dismissal of the idea of mediation it remains a very powerful means for actually resolving such disputes as these and it is never too late to repair a damaged relationship.

The complainant repeats a common misconception that mediation involves, or results in a lesser form of justice; on the contrary, to resolve a matter such as this to the parties’ mutual satisfaction is the best form of justice.

I also accept that it met the requirements of the McCamley decision above and that the complaint is not well-founded.

For the reasons set out above I find that complaint CA-00045637-001 is not well founded. Complaints CA-00045637-002 and 003 were withdrawn at the hearing.

Discrimination,