Complainant

Respondent

Parties

Ogungbemi Omojola Dada David  Yewande

G4S Secure Solutions

Complainant

Respondent

Anonymised Parties

Representatives

Barry Kelly , HR Director of G4S Secure Solutions Ireland Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00049295-001

23/03/2022

The complainant made claims under the Employment Equality Act on the grounds of gender, civil status and race of harassment, victimization and constructive dismissal. The respondent denies all the allegations.

The complainant was working as a Security Officer for the respondent. He submits that on 26 February 2022 he saw a directive from the clinic where he was working stating that no visitor was to be allowed into the premises after 9.00 pm. He says that on 27 February he had locked the front door at 9.00pm and was waiting for a delivery at 9.30pm. At 9.14 he heard 2 people knocking. The couple said the man had an appointment so he let them in and told them he had to make a call, to see if he could let them in. There was no reply, so he went to the lift to go and ask someone. The woman tried to come into the lift with him. He told her that no one should come in after 9pm and asked her to stay downstairs until he had spoken to someone.

He spoke to a doctor who told him he had done the right thing. The man did have an appointment and he was to let them in. He went to tell the couple and she told him she was going to complain about him and he would not be working there the next day.

The next day he was told not to go back to the clinic and all his shifts at that site had been cancelled. The complainant was told the client did not want him there anymore. He disputes this and says he is still in contact with the client. He also alleges the woman who complained about him, or her husband is a top manager for the respondent.

He asked for the reasons for his removal from the respondent in writing and told the respondent he would not take shifts on any other site until he was given the reasons.

To support his claims of discrimination the complainant gave evidence of incidents at other sites prior to February 2022:

a)       In March 2020 he was coughing so after opening the premises he left the key and went home. When he was fit to return to work he had been removed from the roster and transferred to another site, which involved a lot of travel.

b)      In 2021 the site where he was working were looking to place someone there permanently. He said he was interested but someone else was hired and he was removed. Then he got a call that he was needed urgently on the site. He submits he was unable to come that day and this resulted in increased victimisation.

c)       In December 2021 he was interviewed for a position on a new site, and then he went through an induction and was told he would be starting in January 2022. But he got no letter from the respondent and he did not start on the new site. He later heard that the respondent wanted a white person on the site. He wrote to HR asking why he had not been started on the new site but got no reply.

d)      In early 2022 he was told by a manager on another site that he ‘did not want to work with a black man’. He reported this to one of the respondent’s managers but nothing happened. The complainant also submitted that the respondent had given his details to external bodies.

The respondent submits that at approximately 9pm on 27 February 2022 the complainant asked the clinic staff to confirm if a patient, who had just arrived, had an appointment. He then admitted the patient and his wife. The client advised the respondent that when she arrived at reception the patient’s wife was distressed and crying. The patient and his wife alleged the complainant spoke to them in a rude, aggressive and derogatory manner. The respondent was contacted by the client the following day and they requested that the complainant not return to the site. In accordance with the client’s contract with the respondent they have the right to ask G4S for any employee to be removed from working on their site for any or no reason. The complainant was duly informed. The complainant contacted the Senior Operations Manager (SOM) and was told the respondent had requested more information from the client but in the meantime alternative work would be offered.

On 3 March 2022 the complainant emailed the respondent’s Scheduler and HR stating that he did not wish to be scheduled for any shifts and would not honour any scheduled shifts until he received an explanation as to why he had been removed from the client’s site. The SOM told him they were awaiting further information from the client but in the meantime, work would be available to him.

The respondent submits they continued to offer the complainant work for approximately three months but he refused all offers of work and expressly told the respondent not to contact him.

In relation to the earlier incidents the respondent made the following submissions:

a)       The complainant was on the site to temporarily cover the client’s own staff. The temporary cover had finished when he came back to work.

b)      No submission

c)       The respondent submits that someone else was chosen for the position and anything else was merely the complainant’s interpretation of events

d)      The respondent submits that there was shouting involving the complainant but it had nothing to do with race.

The respondent denies they discriminated against the complainant and submits he has failed to establish a prima facie case of discrimination in relation to harassment, victimisation or constructive dismissal on any of the grounds.

I have to decide if the complainant was harassed, victimised and constructively dismissed on the grounds of gender, civil status and race. The complainant has detailed a number of incidents in which he claims he was discriminated by the respondent. The respondent had put forward their explanation of events, which they say have no connection with discrimination.

Harassment

Having considered the complainant’s evidence I consider the complainant has given details of two alleged incidents of harassment.

The first is incident d) above when, in direct evidence at the hearing, he alleges a manager of the client made a racist comment. He says he reported this to the respondent. However, the correspondence provided shows the email sent by the complainant makes no reference to any racist comments. He says he has difficulties working on the site and asked to be moved. The respondent did this.

The second is the incident on 27 February 2022 when there was an interaction with a patient attending the clinic and his wife. Following this he was moved from the site and the complainant alleges he was never given an explanation for this.

The definition of Harassment in the Employment Equality Acts is given in section 14A (7):

(a)    “(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.”

In the first incident the complainant made no reference to a racist element of his interaction with the manager when he reported this to the respondent. This was a fundamental part of his direct evidence. However, I do not find this credible, given the earlier correspondence. I therefore find this incident does not fall within the definition of harassment.

In the second incident the complainant had made no reference to any of the discriminatory grounds, in his interactions with the respondent or in the evidence, written and oral, given to the WRC. I therefore find this incident does not fall within the definition of harassment.

Victimisation

Section 74(2) of the Acts defines victimisation as follows: -

“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to— (a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant, (c) an employee having represented or otherwise supported a complainant, (d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act, (e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment, (f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or (g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution.

In this claim I conclude that the complainant did not made a complaint of discrimination to the respondent. The only complaint of discrimination he made is this complaint to the WRC. He made this complaint after his employment with the respondent ceased. I therefore conclude that it was not possible for the complainant to have suffered dismissal or any adverse treatment as a result of making a claim of discrimination.

Discriminatory Constructive Dismissal

Following the incident on 27 February 2023 the complainant was removed from the site at the client’s request. He was offered alternative work but refused to take up any work with the respondent until he had been given reasons for his removal from that site. The respondent continued to offer work for three months but the complainant continued to refuse it. The respondent said it was a clause in their contracts that clients can request the removal of any of the respondent’s employees without having to give a reason.

The complainant was removed after the specific incident. Therefore, he knew the reason; the incident on 27 February. The respondent did only what they could do; offer alternative employment.

The Employment Equality Acts prohibit discriminatory dismissal. Dismissal is defined in a way that includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly.

In the circumstances of this complaint, where he had access to alternative employment and could have taken a grievance, I do not find the respondent’s conduct to have been such that the complainant was entitled to terminate his employment and his leaving their employment had no link to any of the discriminatory grounds.

For the reasons given above I find that the complainant has not established a prima facie claim of harassment, victimisation or constructive discriminatory dismissal on any of the cited grounds.

No prima facie case