Complainant

Respondent

Parties

Jan  Dirda

Lily's Limited trading as Lily O'Brien’s

Complainant

Respondent

Anonymised Parties

Representatives

 Karl Shirran B.L., instructed by Coughlan White & Partners

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-00056620-001

12/05/2023

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

CA-00056620-002

12/05/2023

The complainant has made two claims under the Employment Equality Acts on the grounds of race and membership of the travelling community that he was harassed and constructively dismissed

The complainant made a request for the hearing to be conducted in private and for the decision to be anonomised. The respondent had no objection to this.

The procedures for adjudication hearings is that the hearings are held in public and the parties are to be named in decisions when they are published on the WRC website. I can decide that the hearing should be held in private and the names of the parties to be anonomised where there are “special circumstances”. In this particular case the complainant gave me no “special circumstances” and I decide that I cannot accede to his request. The hearing was held in public and the parties are name in this decision.

The complainant started working for the respondent on 13 October 2021 as a General Operative. He is a Slovak and a member of the Roma community. He submits that from June 2022 he was subjected to bullying and harassment by a colleague. He was subjected to constant shouting, sneering, swearing and unnecessary work interference and intimidation since that time. He says he has been choked and physically assaulted by this colleague. He has been called a “cigan” or “gypsy” repeatedly.

The complainant submits he invoked the respondent’s grievance procedure on two occasions by raising the matter with two separate supervisors. He says his complaints were ignored and the bullying and harassment intensified.

He says he first mentioned the abuse to a Production Manager (DK) soon after it started but nothing was done.

The colleague gave him extra work that he was not trained to do. At the hearing the complainant showed a video showing the colleague and his brother-in-law talking about the complainant in his presence, which was disrespectful.

5 or 6 months later, before Christmas 2022, the complainant was told to swap positions, and then told to swap again. As a result of this the colleague shouted at him again and made racist comments.

The complainant submits that he stopped going to work in January 2023. He was offered a new contract but decided not to take it. He was contacted by the Operations Manager (JK). He told him what had happened and JK said it had been sorted out and offered him work. He declined the work as he had bad feelings about the workplace.

The complainant submits he suffered harassment and the respondent failed to investigate his complaints. This led to him resigning which amounts to constructive discriminatory dismissal.

The respondent submits the ground of membership of the traveller community is defined as “the community of people commonly so called who are identified (both by themselves and others) as people with a shared history, culture and tradition including, historically, a nomadic way of life on the island of Ireland” and the complainant does not fall within that definition.

The respondent submits the complainant’s evidence was limited to his oral testimony attesting to the alleged behaviour the subject of his complaint and one video demonstrating what might loosely come within the terms “horseplay” or “high jinks”. Whilst the behaviour on the video might be unacceptable it does nothing to corroborate the complaint of discrimination.

The complaints of discriminatory treatment are against one individual. The complainant claims this discriminatory treatment was witnessed by fellow workers but no witnesses were produced to give evidence.

The respondent also raises concerns by the inconsistency of the allegations and/or claims made by the complainant, as well as the generality of same. The respondent submits this makes it difficult to investigate the allegations where it cannot seek verification of the alleged occurrences.

The complainant’s resignation letter of 3 January 2023 makes various allegations of harassment but these allegations are inconsistent with those made in a letter sent by a solicitor on behalf of the complainant and the WRC complaint form. The resignation letter contains no reference to any verbal complaints being raised with any co-worker, supervisor or superior.

There is also uncertainty around when the complainant alleges the harassment began. In the solicitor’s letter and the WRC complaint form the complainant says the alleged discriminatory behaviour began around June 2022. In oral evidence he suggests it began when the Production Manager (DK) left the factory, which was at the end of August 2022.

The respondent says the complainant did not make complaints to the Production Manager and Operations Manager. They submit the complainant was aware of their procedures but failed to properly make a complaint prior to his letter of resignation dated 3 January, at which point they initiated a formal investigation. A first investigative meeting took place on 13 January 2023. The complainant engaged with the process and attended meetings on 13 January and 16 March 2023. A final investigative meeting was arranged for 28 March 2023 but the complainant failed to attend and gave no reason or explanation for his non-attendance. By letter dated 29 March 2023 the complainant was informed the formal investigation was completed, that the colleague against whom the complaints were made was no longer employed by them, and suggested a phased return to employment. This suggestion was not taken up by the complainant.

The respondent submits the complainant has failed to discharge the burden of proof required of him under Section 85A of the Employment equality Acts in relation to his complaint of harassment and further rely of section 14A of the Employment Equality as a defence; in that they “took such steps as are reasonably practicable” to prevent harassment.

The respondent submits that the complainant has failed to demonstrate that it was reasonable in all the circumstances for him to terminate his employment.

I have to decide if the complainant was harassed and constructively dismissed on the grounds of race and Membership of the Traveller Community.

The respondent submits the ground of membership of the traveller community is defined as “the community of people commonly so called who are identified (both by themselves and others) as people with a shared history, culture and tradition including, historically, a nomadic way of life on the island of Ireland” and the complainant does not fall within that definition. I agree with respondent on this matter and find that I cannot investigate the complaint on the grounds of Membership of the Traveller Community. I am therefore only investigating the complainant on the grounds of race.

Harassment

The complainant says he was subject to bullying and harassment on many occasions by a colleague. He says he verbally reported incidents to a Production Manager (DK) and the Operations Manager (JK) but his complaints were ignored. In direct evidence at the hearing both the Production Manager and Operations Manager deny that any complaints were made to them.

The respondent says they initiated an investigation, in accordance with their procedures, as soon as they were aware of any possible acts of discriminatory behaviour. These were contained in the complainant’s resignation letter.

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.”

Section 14A of the Employment Equality Act states:

“(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 in the course of his or her employment by a person who is —

(i) employed at that place or by the same employer, …

and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it

(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.

(2) 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 —

(a) in a case where subsection (1)(a) applies (whether or not subsection (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 where subsection (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.”

Firstly, I conclude that the complainant did not report any incidents that could fall within the definition of harassment before the allegations he made in his resignation letter.

Secondly, I accept that when they received the complainant’s resignation letter the respondent initiated an investigation into the complaints made. Initially the complainant participated in the investigation. I also note that the respondent made the complainant aware of benefits they would make available to him and asked him to re-consider his resignation. He was advised that the colleague against whom he had made the allegations had left the respondent’s employment. The respondent asked the complainant to consider returning to work, and was offered his preferred shift, half day shifts and a shorter working week.

The complainant chose not to take up any of the respondent’s offers, including not to return to work. I conclude these were genuine offers made by the respondent.

The respondent advised the complainant the investigation was concluded but did not advise him of the outcome. My conclusion is that the respondent concluded the investigation as the colleague had left their employment and the complainant was no longer engaging with them. I consider they should have completed the investigation by informing the complainant of the outcome. However, in all the circumstances I accept they acted reasonably by concluding the investigation, albeit without a substantive conclusion on the allegations made. I find the respondent can avail of the defence under section 14A.

Discriminatory Constructive Dismissal

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 this case the complainant did not use the respondent’s Bullying and Harassment procedures. These were in their Employee Handbook. The respondent provided written evidence the complainant had signed to say he had “received and read a copy of the Company Employee Handbook” on13 October 2021 and that he had attended a HR policy update workshop in September 2022. The complainant said he did not understand but provided no reason why he did not ask for assistance which would have been available if required.

In these circumstances I am satisfied that before he resigned the complainant did not make a complaint in accordance with the respondent’s procedures but he was aware of the procedures. Accordingly, I find he did not exhaust, or even commence, internal procedure before resigning. I conclude the initiation of the investigation on receiving the complainant’s resignation letter demonstrates that any grievance raised in accordance with their procedures whilst he was still working there would have been taken seriously. Therefore, I find his decision to resign was unreasonable and his complaint of constructive discriminatory dismissal fails.

For the reasons given above I find that the complainant has not established a prima facie claim of harassment on the grounds of race. I also find that the complaint was not constructively dismissed in a discriminatory manner.

Harassment – no prima facie case. Constructive discriminatory dismissal unreasonable