EDA2470

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00035446 (CA-00046556-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 25 July 2023. A Labour Court hearing took place on 7 November 2024.

The following is the Decision of the Court:

DETERMINATION:

1  Background to the Appeal

 This is an appeal by Istvan Forro (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-0005446 CA00046556--001 dated 19th June 2023) under the Employment Equality Act 1998 (‘the Act’).  The Complainant’s Notice of Appeal was received in the Court on 25 July 2023. The Court heard the appeal in Waterford on 7 November 2024.

The complaint was lodged with the WRC on 6 October 2021. The cognisable period for the purpose of the Act is 7 April 2021 to 6 October 2021.  The Adjudication Officer held that the complaint failed and was dismissed.

2 Summary of Complainants submission

 Mr Joseph Bradley BL submitted that the Complainant is employed by the Respondent as a Security Guard on the site of a Pharma company since 1st April 2020 when the site was taken over by it.   Prior to the takeover the Complainant was employed by a different company on the same site.

 The Complainant is of Hungarian nationality. It is his complaint that he was discriminated on the ground of race. It is his submission that both himself and an Irish colleague were spoken to about feeding a fox on site. He was suspended on pay pending an investigation which resulted in him being given a verbal warning which was ultimately lifted following an appeal.  His Irish colleague had no action taken against him.  Mr Bradley BL submitted that both the Complainant and his comparator Mr A were accused of the same breach of procedure in terms of feeding the fox by Mr Nafi who identified both in his report.

 Action was only taken by the Respondent against the Complainant a Hungarian national. Mr A   an Irish national had no action taken against him and was not even spoken to about the issue.  Mr Bradley BL submitted that these facts alone meet the criteria of a prima facia case, and the burden of proof now shifts to the Respondent to show it was not a discriminatory act. 

The Complainant’s submission listed thirteen different legal cases but did not go on to identify the relevance of each of those cases to the issue before the Court, nor was the Court provided with copies of the cases.

3 Summary of Respondents submission

The Respondent disputes that the Complainant was discriminated against on the grounds of race. They submitted that the Complainant had not established a prima facie case of discrimination and therefore his complaint had to fail.  The Respondent stated that they received a request from the client a Pharma company, to investigate the matter and a report from another employee, Mr Nafi.  In that report Mr Nafi stated that he had advised the Complainant not to be leaving out food on numerous occasions.

 It was their submission that the other individual Mr A also named in Mr Nafi’s report, had not been trained in pest control operating procedures and that was the reason his actions were not investigated, and he was not spoken to or suspended.

The Respondent submitted that the Complainant was given fair procedures and that he was accompanied at the investigation meeting by his Union Official. The final decision was to issue a verbal warning, which was overturned on appeal as the person hearing the appeal accepted that the Complainant had not been signed off as being fully trained in all Standard Operating Procedures (SOP.)

The Respondent cited the case of Cork City council v McCarthy EDA21/2008 which indicates that the Complainant must “prove facts from which it may be presumed that there had been direct or indirect discrimination” and Melbury Developments Ltd v Valpeters [2010] 64 where the Court warns “mere speculation or assertions, unsupported by evidence cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The Respondent submitted that the clear reason why the Complainant was suspended and subject to an investigation and his comparator was not, was because the Complainant had been trained and the comparator had not.

4 Facts not in Dispute

 In early January the client company had raised concerns in respect of food dumping on the site and asked that it be investigated.

On 15 January 2021, a colleague of the Complainant Mr Nafi made a report about food dumping on the site.  In that report the Complainant along with another employee of Irish nationality were accused of bringing food onsite and feeding a fox contrary to the Respondent’s and client’s policies.

 While the Complainant was absent on Covid leave and due to return, he received a phone call from the contracts Manager Ms Krakowiak advising him that he was suspended with pay from work. This was then confirmed by letter of 28th January 2021 which stated that he was suspended on full pay to allow an investigation into;

1. a) Failure to follow Management instruction on more than one occasion
2. b) Failure to obey the sites Pest Control SOI
3. c) Breach of trust with Management and

(d putting the relationship with the client in jeopardy.

 The letter went on to say that “at this point that these allegations would be considered gross misconduct”.  The letter did not have a copy of Mr Nafi’s or the client company’s complaint attached to it, nor did it mention any specific incidents being relied on in respect of any of the four grounds set out in the letter.

 Mr A who was of Irish nationality and also identified in Mr Nafi’s complaint was not suspended, did not receive a letter similar to the Complainant and was not spoken to or subjected to an investigation.

 The Complainant was invited to an investigation meeting on 9 April 2021. The minutes taken at that meeting show that this was the first time the Complainant was asked if he knew the pest control procedures, he responded that he didn’t and that he did not believe it was in respect of foxes. In the course of the meeting, he was asked on a further two occasions if he was familiar with the pest control procedures and on both occasions, he confirmed that he was not.

 At a further meeting on 28 April 2021 the Complainant identified people on his shift who were not feeding the fox and stated that everyone else was. However, this information was not followed up on by the Respondent.  No action was taken against any other member of staff.

 By letter of 14th May 2021, the Complainant was advised that “based on the balance of probabilities I have come to the conclusion that you breached policies and attempted to deceive the Company which amounts to serious/gross misconduct. This conduct is in excusable”. The letter advised that he was being issued with a verbal warning, which would remain in force for six months from 14 May 2021. At this point the Complainant had been on suspension for 14 weeks.

The Complaint appealed the decision. The appeal was upheld as the Respondent accepted at the appeal stage that the Complainant had not been signed off as being fully trained in all Standard Operating Procedures (SOP).  The verbal warning was removed.

 5 Complainants evidence

The Complainant in his evidence confirmed that he had worked on the same site for a number of years prior to the Respondent taking over. It was his submission that a group of workers had fed the fox, and he felt that the client company were aware of it. The Complainant stated that on 10 January 2021 Mr Nafi raised an issue with him and said that nobody was to feed the fox because the client did not want it. This was the first time it was raised with him that there was a problem with feeding the fox. He stopped feeding the fox and made a point of telling other staff that they were not to feed the fox.

The Complainant stated that the fox was on the site before the Respondent took over and staff on the night shift tended to feed it.  The Complainant confirmed that Mr A identified in Mr Nafi’s letter to the Respondent was one of the people that fed the fox. Shortly after this conversation with Mr Nafi on 10 January 2021 the Complainant was absent from work because of Covid.

 It was the Complainant’s evidence that as he was about to return to work, he got a phone call to say he was suspended with pay and not to go on site or make contact with anyone on site. The phone call was from Ms Krakowiak on 28 January 2021. He asked why he was being suspended and she said it was something about a fox. He received a letter of suspension dated 28 January 2021 but then heard nothing for weeks. When he read the letter, he did not really understand it.

 After a few weeks he received an email to say there would be a meeting, but it did not contain any details of what the meeting was about. The information was only supplied after he requested same. The meeting was on the 9 April 2021 and at the meeting he confirmed to the Respondent that he never had pest control training and could not remember training on pest control. At the next meeting on the 28 April 2021 he was asked if the client company were aware that he was feeding foxes and he stated that as far as he knew they were.

It was his evidence that the only difference between himself and Mr A was that he was Hungarian and Mr A was Irish. They were both accused of leaving food out and feeding the fox, but he was the only one suspended and put through an investigation procedure. It was his evidence that the photo of food produced at the meeting was not the type of food that they would leave for the fox. He also confirmed that he was not in work the day that photo was taken.

 It was his evidence that the outcome of the investigation and disciplinary process, was that he was given a verbal warning which he appealed, and the warning was ultimately withdrawn as he had not been signed off as having completed all his training.

 Under cross examination the Complainant confirmed that he liked the fox and that he had admitted to feeding same. He stated that he believed himself and Mr A started work with the Respondent at the same time. The Complainant stated that he was the only Hungarian member of staff, and the only person suspended and investigated. He confirmed he did not see the email from the client company until the first meeting in April 2021. Under re-direct the Complainant confirmed that he was never told to stop feeding the fox until January 2021.

6 Evidence of Ms Krakowiak for the Respondent.

Ms Krakowiak stated that she is currently an associate Director with the Respondent and at the relevant time was contracts manager with responsibility for overseeing the contract on the relevant client site. In January 2021 she received an email from the client about food being dumped on the site and was asked by the client to investigate same. She spoke to the security supervisor Mr Nafi asking if he knew anything and he wrote the report dated 15 January 2021. She reviewed the CCTV footage and saw the Complainant and Mr A feeding the fox. It was her evidence that she reviewed the training records for security staff, and it was clear that Mr A had not received pest control training. It was her evidence that while feeding foxes might not be covered by the training the dumping of food was.

 Ms Krakowiak confirmed that it was her decision to suspend the Complainant for non-compliance with procedures. She stated that she had to take action, as at the time there were rodents on the site and the client was holding the Respondent responsible for this.

 In respect of the four charges set out in the letter of suspension she wrote that because his supervisor stated that he was not following instructions. She confirmed that she attended all the meetings but had no other role in the process.

 Ms Krakowiak stated that both the Respondent and the client have a liability to train staff.  The client provides training for pest control. The Respondent’s role is to make sure the employees read the documents and attend the training course. She relied on the spreadsheet that was provided to her by the client showing training courses attended.

 In respect of the report submitted by Mr Nafi, it was her evidence that she asked him about the Complainant, and he said he had a report. She confirmed that she did not ask him about Mr A. Ms Krakowiak confirmed that both the CCTV and the statement of Mr Nafi identified both the Complainant and Mr A.

Ms Krakowiak confirmed that prior to taking the decision to suspend that she did not discuss the issue with the Complainant or afford him an opportunity to put his side forward. She stated that she left that to the investigator.  She disputed telling him in the course of the phone call that he was being suspended because of something about a fox.

Under cross examination she confirmed that she had not spoken to Mr A about feeding the fox and was not aware if anyone else had. The spreadsheet showed n/a after Mr A’s name, so she took it to mean he had not received the training. She did not enquire any further.

Mr Bradley BL for the Complainant put it to Ms Krakowiak that the Respondent needed a scapegoat for the client, and they chose the Hungarian rather than the Irish national. The issue should have come to an end on the 9 April 2021, when he confirmed he had not received training about not feeding the fox.

Ms Krakowiak confirmed that the client was aware that the Complainant had been suspended but she did not discuss the outcome of the disciplinary or appeal process with them. She confirmed that nothing at all had happened to Mr A but that the Respondent later held a toolbox talk for all staff on the hazards of feeding birds or foxes and the need to keep food in containers.

 Under redirect Ms Krakowiak stated that the complaint from the client about food dumping had a date and that was why they reviewed the CCTV footage. She accepted that his appeal had been upheld as the Respondent accepted at that point that he had not been signed off as being fully trained on the standard operating procedures.

7 The Burden of Proof

Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

“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.”

This Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a 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 if 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.”

It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard:

“The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. 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.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

8 Discussion and Decision

The Court finds, based on the following facts, that the Complainant has established a prima facie case which has not been rebutted by the Respondent.  It is not disputed that two members of staff were alleged to have put food out and fed the fox.  This was considered as being contrary to the Respondent’s policies and client’s requirements. One member of staff is Irish, and the Complainant is Hungarian. The Complainant was suspended with pay for 14 weeks and subjected to an investigation and disciplinary hearing. He received a sanction of a verbal warning which he appealed. His appeal was upheld, and the sanction was withdrawn.  The comparator the Irish national was not spoken to by the Respondent or penalised in any way for the same actions. The Court is satisfied that these facts are sufficient to raise a presumption of discrimination.

 The burden therefore shifts to the Respondent to prove that there is no infringement of the principle of equal treatment. The Respondent in their submission and by way of the evidence of Ms Krakowiak submitted that the reason for the different treatment was that the Complainant had received training in pest control and Mr A had not.  However, the notes of the meetings held with the Complainant in April 2021 clearly show that the Complainant stated on each occasion that he had not received training and  this position was upheld by the person who heard the appeal of his disciplinary sanction, where it was noted that his appeal was upheld because the Complainant had not been signed off as being fully trained in all SOP’s.  No explanation was put forward as to why when the Complainant stated that he had not been trained that this was not investigated further, or when he identified other staff apart from the comparator who were of nationalities other than Hungarian, the Respondent did not follow up with any of these staff members. The Court finds based on the submissions made and evidence adduced, that the Respondent has failed to rebut the presumption of unlawful discrimination.

 Having regard to the foregoing, the Court determines that the appropriate redress due to the Complainant is compensation of €6,000.

The appeal is upheld. The decision of the Adjudication Officer is set aside.

 The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
CC	______________________
19th December 2024	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.