EDA2336

1.Appeal Of Adjudication Officer Decision No(s)ADJ-00031340 CA-00041871-001

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 18 July 2022. Labour Court hearings took place on 16 March and 14 September 2023. The following is the Court's Determination:

DETERMINATION:

This is an appeal by Allpro Services of a decision of an Adjudicator Officer (ADJ-00031340, dated 10 June 2022) under the Employment Equality Acts 1998 – 2015 (“The Acts”). The Adjudicator upheld a complaint that Andrzej Waskiewicz was discriminated against under the Acts on the grounds of religion and race and made an award of €15,000 as compensation.

At a hearing of the Labour Court conducted in Galway on 16 March 2023, Mr Waszkiewicz submitted an application to adjourn proceedings as he was no longer represented by a solicitor, and he did not have a copy of the other party’s submission. He also stated that he wished to engage new legal representation. That application was granted. The hearing re-convened in Galway on 14 September 2023, where Mr Waszkiewicz confirmed that, notwithstanding his previous application, he would represent himself as a lay litigant. He availed of the services of a translator provided by the Labour Court during the hearing.

For ease of reference the parties are given the same designation as at first instance. Hence Andrzej Waskiewicz is referred to as “the Complainant” and Allpro Services is referred to as “the Respondent.”

Background

The Complainant is a member of the Catholic Church and a native of Poland. He submits that he was discriminated against when he was subject to harassment on the ground of his religion and on the ground of his race in his workplace.

The Respondent refutes those allegations and submits that the Complainant has not established facts from which a prima facie case of discrimination can be established.

Summary of Complainant’s Case:

The Complainant commenced employment as an industrial cleaner on a construction site in August 2020.

The Complainant was subject to bullying and harassment in the workplace after he became aware that a supervisor planned to extort money by having an accident at work to obtain compensation. He notified another supervisor and HR by email on 11 September 2020. After that he overheard the supervisor and another colleague – hereafter referred to as Mr X - laughing and calling him a “rat” and a “snitch.” He was sent home from work early on three occasions, when others were allowed remain on site. He complained to HR about the matter, but his employer failed to respond appropriately to his complaints of bullying. Thereafter the situation worsened. His supervisor dirtied windows that he had just cleaned. Then someone tried to set him up for theft by placing a roll of bin bags into his rucksack. He notified HR who advised that the Operations Manager would talk to him. The Operations Manager subsequently met with the Complainant and offered to move him to a different work site, but he failed to do so.

The Complainant was also subjected to harassment in his workplace on the grounds of his religion and his race by a colleague Mr X.

On a number of occasions between 12 and 22 October 2020 Mr X made fun of the Complainant’s religion and race. On one occasion when the Complainant was changing his t-shirt, Mr X laughed at his tattoo of Jesus on his chest. Mr X laughed at the Complainant’s religious traditions, questioned the credibility of his religion, and questioned how the Complainant knew that the Catholic faith was better than the Islamic faith. Mr X also laughed at the Complainant because in Poland they celebrate Christmas day on 24 December. Mr X said that the Polish people were too religious. On occasions when the Complainant exclaimed “Oh my God!” when something happened at work, Mr X laughed at him for using the word God. On another occasion Mr X made derogatory comments about the Pope. The Complainant’s supervisor was present when Mr X harassed him but did nothing to stop it.

The Complainant felt that it was futile to tell the employer that he was laughed at and harassed because of his race and religion in circumstances where that employer had failed to thoroughly investigate and effectively address his previous complaints of bullying.

The Complainant found it degrading and humiliating to be subject to unwanted comments about his race and religion while at work. He found it difficult to cope and had to take anti-depressants. He certified unfit for work from 11 November 2020 until April 2021, at which point he was laid off from work.

Summary of Respondent’s Case:

The Respondent rejects that the Complainant was harassed on the grounds of religion or race. The Respondent has a multicultural workforce employing more than 600 employees, the majority of whom are of non-Irish descent. The company does not differentiate or discriminate between workers based on their religious belief or any other grounds.

The Complainant has not provided a prima facie case of discrimination and harassment. He failed to bring to the attention of the company any allegations of racial or religious harassment and has produced no corroborative evidence to substantiate those allegations. Sweeping assumptions, unsupported by solid evidence, cannot provide a sufficient evidential basis upon which to raise a presumption of discrimination.

The Complainant was employed as an industrial cleaner on a construction site. He raised a number of workplace issues which were all addressed promptly by the HR Manager and the Operations Manager.

On 11 September 2020, the Complainant notified HR about an allegation that a work colleague was planning to stage an accident at work in order to claim compensation.The Operations Manager investigated the matter. He spoke with a supervisor who advised that no such incident was reported to him. When asked about the matter, the Complainant could not remember.

On the same date, 11 September 2020, the Complainant notified HR of an allegation that he was bullied by a work colleague after he was sent home early. The Complainant was sent home as no operatives are permitted in an area during that particular health and safety procedure. This was explained to the Complainant at induction training and confirmed again by email to him on 14 September 2020. The Respondent further advised the Complainant that it takes bullying seriously.

On 6 October 2020, the Complainant notified HR of an incident about a work colleague who had deliberately dirtied a shower glass that he had cleaned. The Complainant is required to carry out a “hard” clean and a “sparkle” clean, as further work can dirty an area and require a “sparkle clean”.

On 8 October 2020, the Complainant notified HR that he felt that he was being set up as someone had put black bin bags in his rucksack. That matter was investigated. It was impossible to ascertain who, if anyone, put the bags into the rucksack as all workers had access to that area. The Operations Manager gave the Complainant the option of working on another site, which he declined.

The Complainant had a good working relationship with the Operations Manager. After these various matters were investigated, the Complainant insisted that everything was fine. As the project neared completion, the Respondent looked for alternative work for the complainant. He was offered a position in Dublin. The Complainant was absent on sick leave from November 2020.

The Complainant at no time reported any incidents of discriminative behaviour or mockery based on his religious beliefs or his race to any of his managers. The Respondent submits that it is unfair and illogical to fiscally punish an employer, after the fact, for allegations which were never communicated to any of its personnel and of which it had no knowledge. Following receipt of the WRC complaint form the matter was investigated and the company was unable to find any basis to the allegations.

Testimony of the Complainant

The Complainant told the Court that on the bus home from work a supervisor told him about a plan to fake a compensation claim. He informed another supervisor about it, but nothing happened. After that people started laughing and talking behind his back. Both the first supervisor and a colleague, Mr X, were laughing at him and told colleagues to be careful of him as he was a snitch. He emailed HR about it, and they said they would check it out.

Then he was sent home early three or four times over a ten-day period. Again, he notified HR. The Operations Manager came on site and asked him why he had contacted HR. He explained that he contacted HR because he informed a supervisor, but nothing had happened. The Operations Manager said that he would check it out. One day he found a bin bag roll in his bag. The Operations Manager came on site and told him that he would try to find him a job on another site. He was happy to be transferred, but a few days later he was told that the site no longer needed a placement. Another job was mentioned, but that was postponed to January and then cancelled. He was offered a job in Dublin, but that involved working with the same people.

One day when wiping his head with his T-shirt Mr X saw his tattoo of Jesus on his chest and laughed at him. He said that all Polish people are very religious. Every second day or so, Mr X said something to him about his religion. He was very arrogant and joking but it was not funny. One day Mr X went on for about 15 minutes and his supervisor Mr A told him to stop talking about religion and to change the topic.

The Complainant recorded two of the conversations with Mr X. On 16 October he recorded Mr X saying how do we know that our Catholic religion is the right one there are so many different religions everybody thinks their religion is right.

On 21 October he recorded Mr X laughing at him when the Complainant said: “God help me”. Mr X told him “…you are Polish, so you are fucking weird about Jesus…you probably have Pope John Paul fucking up above your mantelpiece in your house.”The Complainant said that he told Mr X that he did not want to talk about religion and did not want to have this conversation with him.

The Complainant said that Mr X kept saying to him “you don’t believe in God” and pushing him around. He was harassed day after day after day. Certain managers knew about this and did nothing about. The supervisor knew about it. He could not handle it and got depression. He did not work for a few months. He remained on certified sick leave until April 2021.

When asked under cross examination why he did not tell anyone about the allegations of harassment, the Complainant said that he did not report the matter because he had “lost faith”. At the beginning he had reported everything and had told his supervisor about the first incident with a colleague. He said that the Operation Manager told him that he would get him another job but kept postponing things.

When asked why he felt the need to record conversations, the Complainant said he had an issue in a previous job and knew that he needed to get proof. The Complainant accepted that he started the conversation about religion on 21 October when he said: “God help me we are always on the knees like a donkey” but said that he just making a statement and not starting a conversation.

The Complainant said that he was not treated badly by management but was bullied by employees in relation to his race and religion. His supervisor told Mr X to stop talking about religion.

Testimony of Ms Rachel McHugh - HR Manager

The Complainant worked for the Respondent on different sites, including two high-profile contracts. All workers must complete an online induction, which includes health and safety and manual handling training. An in-person induction is also conducted on site.

Ms McHugh sent the Complainant a digital copy of his statement of employment and handbook. She omitted to include the start-up form with his pack, which was an error on her part and resulted in the delay in his payments. The Complainant printed off and returned the relevant documents, signing the policies by initialling every page. He signed the dignity at work policy, the harassment policy, and the grievance policy. Employees are shown how to access the system online and the Complainant retained access to policy documents by email and via an online platform.

Ms McHugh said that she was proactive in addressing any matters raised by the Complainant. When he raised concerns about a work colleague, she contacted the Operations Manager who went on site the following day to investigate the matter. She herself was not allowed on site as she did not have a safe pass. When she received an email about the bin bags and Complainant being targeted, she arranged for the Operation Manager to investigate the matter.

When asked to explain the procedure for investigating complaints of bullying, Ms McHugh said that a fact find process is conducted initially to ascertain the details. When the Complainant alleged that he was bullied by a colleague, the matter was investigated informally because the Complainant had asked for discretion. The Operations Manager spoke with him and found the issues to be workplace matters. Ms McHugh could not say if there were written reports about the issues raised by the Complainant. She acknowledged that the investigations were “loose” with no-one overseeing them.

Testimony of Mr Gary McHugh - Operations Manager

Mr McHugh was the Operations Manager on site. The job commenced on site at the start of August. It was a multicultural site and working relations were very good. The site supervisor was Mr B, and in his absence Mr A acted as a deputy supervisor.

He was not aware of any workplace issues before the Complainant made a complaint about Mr A. He investigated that matter and spoke with the Complainant and site supervisor. He was asked to be discreet. The supervisor had no knowledge of the matter, or of the Complainant being called a “rat” or “snitch.” He told the Complainant to let him know if anything else arose. He reported back to HR.

Mr McHugh conducted investigations into the other issues raised by the Complainant. These matters related to (i) when the Complainant was sent home early, (ii) black bin bags, and (iii) the shower. Workers can be sent home during airtightness tests, as they are not allowed to be on that part of the site. Workers are told about such tests at the drop of a hat and are assigned to work elsewhere if possible, or else are sent home. Having investigated the bin bags incident he took the Complainant aside and told him to report anything further that arose. The Complainant assured him that he was happy. Mr McHugh said that contracts are priced for “hard” and “sparkle” cleans, as “hard clean” work may be undone when snag lists are completed. He knew there were difficulties with water supply during Covid, so it was possible that Mr A had splashed the shower when getting water.

Mr McHugh said that no issues relating to Mr X were ever raised with him. He worked closely on site and would have heard if there were any issues.

In his view, the Complainant was an excellent worker, who had worked on a number of sites. He wanted to keep the Complainant in employment and tried to get him an alternative role. He has no issue recommending him for employment elsewhere.

Under cross examination, Mr McHugh said that the investigations were conducted on an informal basis. He did not take statements or write up a report. He told the Complainant to let him know if there were any further issues. He acknowledged that when issues are raised by an employee, usually that employee is not removed from a site. Mr McHugh said that it was a challenging time with Covid restrictions in place. HR could not come on site. You could not bring people into an office. He was trying to make the Complainant happy.

Relevant Law

Section 85(A) of the Act places the burden on the Complainant of establishing a prima facia case (in this instance) that the impugned acts constitute harassment. That section provides:

• “85A.(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes—

• (a) indirect discrimination,

  (b) victimisation,

  (c) harassment or 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 during 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.

• (a) in a case wheresubsection (1)(a)applies (whether or notsubsection (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 wheresubsection (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.

(4) The reference insubsection (1)(a)(iii)to a client, customer or other business contact of the victim’s employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment.

(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.

  (b) 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.

• 
  (1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval.

  (2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

  (3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee —

  • (a) from doing that act, or
    (b) from doing in the course of his or her employment acts of that description.

The complaints before the Court relate to allegations of harassment on the ground of religion and on the ground of race.

The Complainant submits that as a Catholic Polish national he was subject to ongoing harassment by a colleague Mr X who made fun of his religion and race at various times between 12 October and 22 October 2020. He further asserts that his supervisor did nothing to stop it.

The Respondent refutes those allegations and submits that sweeping assumptions, unsupported by solid evidence, cannot provide a sufficient evidential basis upon which to raise a presumption of discrimination. Its position is that the Complainant failed to bring to the attention of the company any allegations of racial or religious harassment and has produced no corroborative evidence to substantiate those allegations. The Respondent further asserts that all workplace matters raised by the Complainant were addressed promptly.

Burden of Proof

Section 85 of the Act sets out the burden of proof which applies in a claim of discrimination. It provides that where facts are established by or on behalf of the Complainant “from which it may be presumed that there has been discrimination in relation to him or her” it is for the employer to prove the contrary.

Therefore, the first matter for the Court to decide is whether the Complainant can establish a prima facie case that he was subject to harassment on the stated grounds within the meaning of the Act.

The Complainant’s evidence is that he was subject to harassment on several occasionsbetween 12 October and 22 October 2020.It is not disputed that the Complainant did not make his employer aware of allegations of harassmenton the ground of hisreligion or onthe ground of his race.

The Court found the Complainant’s evidence about the alleged exchanges with Mr X on 16 and 21 October to be credible. The Court was presented with no evidence by Mr X to counter the allegations made.The Respondent did not contest the veracity of the Complainant’s statements about what had occurred. Based on the uncontested evidence of the Complainant, the Court finds that the alleged exchanges with Mr Xon 16 and 21 Octoberabout race and religion did occur.

The Court heard extensive evidence about other workplace related issues raised by the Complainant. The Complainant does not in any way assert that those incidents were related to his race or his religion. While the Respondent asserts that all workplace issues raised by the Complainant were addressed promptly, both the HR Manager and Operations Manager acknowledged that the matters raised by the Complainant (a potential fraud plan by a colleague, allegations of name-calling and bullying by colleagues, and an incident where he found bin bags in his bag) were all dealt with on an informal basis, with no formal investigation or general oversight by management.

In the Court’s view, it was reasonable for the Complainant to lose confidence and conclude that his employer would not effectively address complaints of harassment on the grounds of race and religion in circumstances where that employer had failed to effectively investigate or adequately address other workplace issues that he had raised.

Having regard to the submissions and oral evidence presented to it, the Court concludes that, on the balance of probabilities, the Complainant has established sufficient facts from which an inference of discrimination can be drawn. Such an inference is not the only inference which can be drawn from the facts established by him, but it is, in the view of the Court, within the range of inferences which can reasonably be drawn.

As a result, the Court is satisfied that the factual matrix of this case is of sufficient significance to raise an inference of discrimination on the race ground and on the religion ground and so shift the burden of proving the absence of discrimination on to the Respondent in accordance with s.85A of the Act.

Once the Court has established facts from which it may be presumed that discrimination in relation to an employee has occurred, the burden of proof shifts to the employer to prove the contrary.

Was the Complainant subject to Harassment on the ground of race and religion?

The Act sets out that where anemployee (referred to as "the victim") is harassed in the workplace by a person employed by the same employer that the harassment constitutes discrimination by the employer in relation to the victim’s conditions of employment.

The Act ascribes a wide ambit to the concept of harassment and, in the Court’s view, name-calling of the type at issue in this case where someone is subject to derogatory comments about their race (“you are Polish so you are fucking weird about Jesus”)or religion(“you probably have Pope John Paul fucking up above your mantelpiece in your house”)clearly constitutesconduct which can have the effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

Harassment is defined in the Act as unwanted conduct, and the Complainant’s clear evidence was that he told Mr X that he did not want to engage in such conversations with him, but Mr X continued to harass him day after day. The Court heard no evidence from Mr X on that or any other matter. Whether Mr X believed that he was engaging in workplace banter or playful teasing is irrelevant to the impact of his behaviour on the Complainant, which had the effect of violating the Complainant’s dignity at work and creating a hostile and offensive environment for him.

On the facts as presented in this case, the Court is satisfied that the Complainant was subject to harassment, as defined at s.14(7)(a)(i) of the Act on the grounds of his religious belief and on the grounds of his race.

Employer Liability

The Respondent asserts that it cannot be held liable for the actions of an employee where it was not on notice of the alleged harassment. It submits that it is unfair and illogical to fiscally punish a company, after the fact, for allegations which were never communicated to any of its personnel, and of which it had no knowledge. It further submits that the Complainant cannot rely on the assertion that a deputy supervisor was on notice of the harassment, as he did not have any responsibility for HR issues and only carried out the duties of deputy supervisor occasionally when his supervisor was not available.

Section 15 of the Act fixes an employer with vicarious liability foracts of discrimination carried out by employees during the course of their employment, whether those acts are carried out with the employer’s knowledge or approval. As a result, it isclear thatthe Respondent cannot rely on its assertion that it is not liable for the actions of employees simply because it was not on notice of such matters.

Defence

An employer can avoid liability for the harassment of an employee committed by another employee in the course of employment,by making outadefence provided for at Section 14(2), if it can establish that it took reasonably practicablestepsto prevent the harassment, or where harassmenttookplace, to prevent the victim from being treated differently and to reverse its effects.The Act clearly requires an employer to take steps to prevent harassment from occurring in the first instance.

As a defence in this case, the Respondent submits that it has a comprehensive employee handbook which all employees can access via an online employee portal, which contains a “robust” Dignity at Work policy and Grievance Policy. Ms Hugh’s evidence was that the Complainant was provided with a digital copy of the handbook and was briefed on its content at induction. The Complainant’s evidence wasthat he attended a virtual induction but had no recollection of an on-site induction day, nor had he any recollection of being shown any of the policies referred to by the company. On balance, the Court preferred Ms McHugh’s evidence on that matter. She gave precise recollections about issuing the Complainant with a digital copy of the handbook and receiving printed documents initialled by the Complainant in return. By contrast, the Court found the Complainant’s evidence to be vague and less credible. As a result, the Court finds that, on the balance of probabilities, the Complainant was issued with an employee handbook containing details ofthe Respondent’s Dignity at Work Policy, Harassment Policy, and Grievance Policy.

As copies of these documents were not provided to the Court with the Respondent’s submission, the Court makes no comment on the content or adequacy of any policies and procedure in place to prevent or to address the harassment of employees during their employment.

In order to avail of the defence available under the Act, an employer must establish that it took reasonably practicable steps to prevent harassment, or where harassment has taken place, to prevent the victim from being treated differently and to reverse its effects. This Court has consistently found that the mere existence of a policy relating to harassment is insufficient to avoid liability for the harassment of one employee by another.

In addition to satisfying the Court that it had clear policies and procedures in place, an employer must demonstrate that it took it took reasonably practical steps to communicate the content of policies and procedures to all employees to ensure an awareness and understanding thatharassment on any of the nine discriminatory grounds is unacceptable and will not be tolerated.

Addressing this matter in Determination EDA0915 A Hotel and a Worker, which was a case relating to sexual harassment, this Court stated as follows: -

• “The obligation is preventative in nature and it is not sufficient for an employer to show that measures were taken to prevent a reoccurrence of harassment after it had taken place.

  This suggests that an employer must be conscious of the possibility of sexual harassment occurring and have in place reasonable measures to prevent its occurrence as well as policies and procedures to deal with such harassment where it is found to have taken place. This requires the employer to show, at a minimum, that a clear anti-harassment or dignity at work policy was in place before the harassment occurred and that the policy was effectively communicated to all employees. Moreover, management personnel should be trained to deal with incidents of harassment and to recognise its manifestations.”

Accordingly, the Respondent is liable in law for the harassment suffered by the Complainant.

Decision

For all the reasons referred to above the Court is satisfied that the Respondent is liable for the harassment suffered by the Complainant on grounds of his race and on the grounds of his religion, contrary to the Act.

The Court finds that the Complainant was harassed on grounds of his religion and his race contrary to Section 14 of the Act. The Court is further satisfied that the said harassment must be regarded as discrimination by the Respondent against the Complainant in relation to his conditions of employment.

The Court considers that the appropriate redress is an award of compensation.Having carefully considered the submissions and the evidence of both parties, the Court orders that the Respondent pay to the Complainant the amount of €5,000 for the effects of the harassment which he was subject to on the ground of religion, and a further €5,000 for the effects of the harassment which he was subject to on the ground of race. The total compensation award is therefore €10,000.

In addition, the Court, orders the Respondent to review the operation of its Dignity and Works policy and in particular the effectiveness of arrangements in place to communicate the policy to management and employees, and as part of those arrangements, to communicate the Respondent’s intolerance of harassment on the grounds of religion and nationality.

The decision of the Adjudication Officer is varied accordingly.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
DC	______________________
17 October 2023	Deputy Chairman