Complainant

Respondent

Anonymised Parties

An Employee

An Employer

Representatives

  Self-Represented

 The Respondent’s Trustees

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-00064747-002

12/07/2024

The Complainant referred a complaint to the WRC on the 12th July 2024 wherein she claimed that she was discriminated against on the grounds of her nationality. The Respondent denied the complaint in its entirety.

Direct Evidence of the Complainant

The Complainant claimed that she was discriminated against because she is Portuguese. She gave evidence that she attended a meeting with the Trustees of the Respondent on the 1st July 2024. During the meeting different subjects were discussed.  One of the subjects was how the Complainant was speaking to her colleagues. The First Trustee said that the Complainant was not allowed to say what she thought of people to their faces. According to the Complainant the First Trustee stated “in this country we don’t treat people like that”. The Complainant stated that she replied “so that means that in this country we don’t say things to people’s face” and the First Trustee responded “yes in this country we don’t behave like that”.

Cross-examination of the Complainant

When it was put to the Complainant that the word “country” was not used the Complainant accepted that the First Trustee used the word “culture” not “country”.  

While she accepted that the First Trust informed her that it was not acceptable to say to a person’s face “I do not like you” and “it is not part of the culture”, the Complainant denied that it was the Respondent’s culture being referred. According to the Complainant the First Trustee was referring to Portuguese culture versus Irish culture and that the words used by the First Trustee were racist comments about the Complainant’s Portuguese culture.

Direct Evidence of the First Trustee

The First Trustee stated that the Respondent is a registered charity and that she is involved with the charity in a voluntary capacity. She outlined the nature of the charitable work carried out by the Respondent and stated that caring for the animals and humans was at the core of its being.

The Complainant, along with a number of other employees, was called to a meeting with the three Trustees, including the First Trustee, on the 1st July 2024. The meetings were individual meetings. At the time there had been a lot of unrest in the Respondent amongst the staff. The Trustees agreed they would try and rejuvenate the morale of the employees and meetings were arranged for the 1st July 2024 so that the Trustees could remind the employees of the ethos of the Respondent and give the employees an opportunity to be heard.

The First Trustee stated that in the interest of good employee relations the Respondent wanted people to respect and be nice to each other and that she informed the Complainant that “in our culture it is not acceptable to go up to people and say I don’t like you”. The Complainant tried to argue and say, “so I can’t be myself or use my mannerisms”. The First Trustee stated that she qualified her comments by advising the Complainant that it was not conducive to good employee relations to be mean to a colleague’s face and that she informed the Complainant - “we must season our words with good manners”.

The First Trustee denied that she used the word “country”. The First Trustee stated that any reference to culture was to the culture within the Respondent. The culture the Respondent was striving for was one of kindness and compassion and that was the message she was seeking to communicate to the Complainant. She stated that an employee’s nationality was irrelevant.  

Cross-examination of the First Trustee  

The First Trustee accepted that she did not mention the Respondent by name when she used the word “culture” but stated that the use of the word was in the context of the culture and ethos of the Respondent which is what was being discussed at the meeting on the 1st July 2024. The meeting took place in the Respondent’s registered office and all matters discussed at the meeting related to the Respondent.

The First Trustee was unaware of which country the Complainant was a native of.  At no stage was Portugal, Ireland or “country” mentioned during the meeting. The reference to “culture” was the culture within the Respondent organisation. 

In response to questions from the Adjudication Officer the First Trustee stated that the conversation would have been no different if it had been the First Trustee’s own son or daughter she was speaking to and that the same words would have been used irrespective of an individual’s race or nationality because the Respondent promoted a culture of inclusion and kindness and that was the message the Trustees were conveying to the Complainant on the 1st July 2024.

Direct Evidence of the Third Trustee/Secretary

The Third Trustee attended the meeting on the 1st July 2024 remotely. He stated that it was a calm and civilised meeting with no raised voices and that all participants got an opportunity to speak. The purpose of the meeting was to discuss in-house issues.  He stated that during the meeting the First Trustee was trying to communicate to the Complainant that the environment in the Respondent was for employees to be respectful to one another as it was a demanding job caring for animals. The conversation with the Complainant was not about anything other than the Respondent and the culture and ethos within the Respondent.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

Discrimination for the purposes of this Act

Section 6 (1) of the Employment Equality Acts 1998 (as amended) (hereinafter referred to as “the 1998 Act”) states:

For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated.

Section 6 (2) provides that: as between any two persons, the discriminatory grounds are inter alia:

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

The Burden of Proof

Section 85A of the 1998 Act provides as follows:

“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.”

The effect of section 85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.

The WRC and the Labour Court’s approach to this issue and the test for applying section 85A of the 1998 Act is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v. Southern Health Board [2001] 12 E.L.R. 201 wherein the Labour Court stated:

“the claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only where these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

In Minaguchi v. Wineport Lakeshore Restaurant No. EDA034 “the primary facts” were defined as follows:

“It appears to me that the three key elements which need to be established by a claimant to show that a prima facie case exists are:

(i)                  that she/he is covered by the relevant discriminatory ground(s)

(ii)                that she/he has been subjected to specific treatment and

(iii)               that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.

In Mary Margetts v. Graham Anthony & Company Limited EDA038 the Labour Court stated that “[t]he mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The Labour Court, in its decision in Arturs Valpeters v. Melbury Developments Ltd [2010] 21 E.L.R. 64, addressed the onerous nature of the burden of proof:

“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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Labour Court has also consistently stated that:

“The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of  discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts”: Kieran McCarthy v. Cork City Council EDA082

In respect of the complaint alleging discrimination, the Complainant bears the burden of proof in establishing facts from which an inference of discrimination can be drawn. If the Complainant establishes a prima facia case of discrimination, the burden of proof shifts to the Respondent to rebut the prima facie case. This will require cogent evidence.

The basis of the complaint was that during the course of a meeting with members of the Respondent’s Board of Trustees on the 1st July 2024 the Complainant was informed by the First Trustee that she was not allowed to say what she thought of people to their faces. In particular, she stated that she was informed by the First Trustee that she was not allowed to say to her colleagues “I don’t like you”. While the Complainant initially contended in her direct evidence that the First Trustee also stated that “we don’t do that in our country”, under cross-examination she accepted that the First Trustee used the words “our culture” not “our country”. The Complainant stated that the words used by the First Trustee were racist comments about the Complainant’s Portuguese culture and that any reference to culture was Portuguese culture versus Irish culture.

On this issue I note that the evidence of the Respondent witnesses was that the reference to culture was the culture of the Respondent and that the Complainant was treated the same as everyone else and that the Complainant was not subjected to less favourable treatment during the course of her employment with the Respondent on the ground of race.

According to the Respondent’s witnesses caring for animals and humans was at the core of the Respondent’s being and that morale within the Respondent had deteriorated since January 2024. Three members of the Respondent’s Board of Trustees met with employees of the Respondent on an individual basis, including the Complainant, on the 1st July 2024. The Trustees wanted to hear from the employees and see how their working environment could be improved and how morale could be rejuvenated in order to encourage them to keep going and adhere to the ethos of the Respondent.

While the First Trustee accepted that she used the words “our culture” she stated that the use of the words “our culture” was entirely within the context of the conversation regarding the Complainant’s working environment with the Respondent and the complaints from colleagues regarding the manner in which the Complainant spoke to and behaved towards them and that having addressed the work related issues the First Trustee stated that “in our culture it’s not acceptable to go up to people and say to them ‘I don’t like you’” and that “we must season are words with good manners”.

The First Trustee gave evidence that she was not aware that the Complainant was Portuguese and that irrespective of an employee’s race, colour, nationality or ethnic or national origins, any employee, whether Irish, Portuguese or otherwise, who spoke to a colleague the way the Complainant spoke to her colleagues, which I note the Complainant did not deny, would be informed by management and the Trustees that saying such things was not in accordance with the culture and ethos of the Respondent organisation as the culture and ethos of the Respondent was to be caring and compassionate.

I found the Complainant’s evidence that the First Trustee was comparing Irish culture to Portuguese culture lacked credibility. Conversely, I found the Respondent’s witness evidence to be credible and on the balance of probabilities I resolve the conflict in the evidence in favour of the Respondent and find that the reference to “our culture” was to the culture of the Respondent and not Irish culture as contended for by the Complainant.

Taking into consideration the case law referred to above and having regard to the evidence presented at the hearing I find that the Complainant has not demonstrated sufficient facts and there was no relevant evidence presented by her from which it may be inferred on the balance of probabilities that the Respondent discriminated against her on the race ground. The Complainant’s mere speculation and assertions that the reference to culture was to her Portuguese culture was unsupported by credible evidence and therefore I find that she has not discharge the burden of proof in relation to her complaint of discrimination on the race ground and has therefore not established a prima facie case of discrimination.

As I have found that the Complainant has failed to establish a prima facie case of discrimination, I find that her complaint is not well founded.