Complainant

Respondent

Anonymised Parties

An Operator

A Manufacturer of medical devices

Representatives

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-00058652-001

04/09/2023

The complainant commenced employment with the respondent on the 17th of August 2022 as PQS Operator (Process Quality Setter).   He resigned his employment on 17th  of November 2023.   

The complainant whose nationality is Irish but who is of mixed-race origin has submitted a claim of harassment on grounds of race as well as a claim of discrimination in respect of his conditions of employment.   He has also submitted a claim of victimisation under Section 74(2).

The complainant has submitted a further claim under the Industrial Relations act which is dealt with separately in a recommendation under a different reference number.  

These claims arise out of an incident on 19th of July 2023 following a conversation between colleagues in the workplace canteen during which the complainant alleges a colleague Ms. H made racist remarks about asylum seekers.  The complainant is not alleging that he is an asylum seeker or that the remarks were directed at him but submits that he found them offensive as a person of mixed-race origin.

The complainant submits that.

He was discriminated against on grounds of race in respect of his conditions of employment.

He also submits that he was harassed on grounds of race.   The complainant submits that he is an Irish citizen and that his Nationality is Irish but that he is of mixed-race origin as his father is of African descent.

The complainant  submits that from August 17th, 2022, until November 17th, 2023, he worked as a PQS Operator in the respondent organisation.

The complainant submits that the following incident occurred on Wednesday 19th July 2023:

“During breakfast that morning, a conversation was started around immigration, and refugees and their place in this country.

The complainant alleges that during this conversation, his Team Leader Ms. H made a malicious and hateful comment regarding immigrants, he alleges that the comment was as follows “what it used to be, was that the men from these countries would come over here and get jobs and send the money back to their families. Now they’re coming over here and they’re mixing with us. That’s the problem.”

The complainant submits that ‘this was such a devastating blow to my pride as a person from a mixed background. I felt shame and hurt that day, and I have carried that with me for almost 6 months. The impact that that conversation had on me goes far beyond what I have been able to express in words. Like many others who have experienced racism, I have suffered from severe stress and anxiety because of this situation.

 I initially raised an informal grievance under the advice of HR on July 21st and an investigation was opened. Because I was suffering from stress and periods of intense anxiety around the situation at work, I went to see my doctor on July 26th, and he recommended that I avoid any stress and advised me to take some time off work. He certified me unfit for work due to mental stress and I did not return to work for the remaining three days of that week.

The complainant submits that the following two weeks were scheduled mandatory holidays as part of the  company’s annual shutdown period.

He submits that his Team Leader Ms H was also interviewed about the incident on July 26th, three days before the shutdown.

The complainant submits that he was left in the dark for the two-week shutdown period, after having requested a phone call update on her response on the morning of July 27th.

The 2-week annual plant shutdown started on Monday, July 31st.    Upon returning to meet with HR on August 17th, it is submitted that the complainant was informed that his Team Leader Ms H did not recall making the comment.  The complainant submits that he then proceeded to raise a formal grievance as he was angry and disappointed that she had not been forthcoming and willing to apologise.

It us further submitted by the complainant that he has  been met with a lack of support since raising the issue with management and that he was not informed of the sick pay scheme for over two weeks after returning from shutdown until he asked the union representative about it.

It is also submitted by the complainant that the company HR representative Ms. D had put pressure on me to have a meeting with Ms H on July 27th to resolve the situation before shutdown, as this would've been “ideal”, despite the fact that the complainant had been declared unfit for work due to stress that morning.

 The complainant submits that he was hesitant, because he was distressed and had been told to avoid stress for a number of days, to which Ms. D responded, “to be frank…., this situation is stressful for everyone involved, including myself.”   The complainant submits that the HR representative repeated this comment to him when he decided to raise the formal grievance.

The complainant submits that during the course of the formal investigation, he was told that there would only be one person to rule over the final investigation report and that was to be, the department lead.   The complainant’s union representative requested that  HR  provide a second person to rule over the matter, to avoid bias.

The complainant submits that from August 14th to October 25th, throughout the entire formal grievance investigation, he repeatedly requested a transfer to another area in the plant and was either denied or told that there were no jobs.  He disputes this submitting that there were  many PQS Operator roles listed and available throughout this period.

The complainant submits that he was asked to return to the cleanroom after the shutdown, but he did not feel comfortable working under Ms H ’s supervision.  He submits that he  was then told by his manager that the only other option would be to get a sick note, which he did.  

The complainant did not return to work in the cleanroom.  He submits that he was repeatedly told that “we’ll see what we can do,” with regards to a transfer, but always ended up being told that he would not be transferred.   During this period the complainant submits that he was certified as unfit for work due to work related stress by his doctor.

On October 25th, after the formal grievance investigation had concluded, the complainant had a meeting with the two adjudicators. The outcome of the formal investigation ruled that there was no evidence to support his claim, but that they were sorry for any feeling of frustration and the stress caused by the whole process.

It is submitted that the complainant had checked online that day and saw that there were currently two PQS Operator roles listed.  He submits that he asked them for a transfer for the final time and was told that there were no jobs available as far as they were aware.  The complainant then left the meeting and went home.

The complainant submits that he wrote a letter of resignation to the company on November 3rd, due to his frustration at the outcome of the investigation, but also due to the fact that he went through so much stress and hurt throughout the whole process and was not once offered a transfer. It is submitted that for these reasons listed above he decided to approach the WRC, as he felt as though his rights have been violated.

The complainant submitted his claims to the WRC on the 4th of September 2023, this was 7 weeks before the conclusion of the investigation process.

The Complainant commenced his employment on the 22nd of August 2022 and resigned effective the 17th of November 2023.

He was employed as a Process Quality Setter.    On the 20th of July, the Complainant contacted his manager Mr. M, Production Coordinator, stating that he was unable to attend work.

 Immediately following the call, the Complainant sent an email to Mr M alleging that he had experienced bullying from his Team Leader, Ms H.   The Complainant alleged that a racist comment was made and that it caused him distress.

 On the 20th of July, the Company invited the complainant  to attend a meeting on the following day (Friday the 21st of July) to discuss the matter with Mr M and Ms D , HR Business Partner

 The respondent submits that at this meeting on the 21st of July, the Complainant explained that there had been a conversation in the canteen at work on the 19th of July. The conversation had started about a refugee centre in the local area. The team were discussing protests that had been on-going.

The Complainant advised the respondent that the conversation had continued to discuss other refugee centres in the area. The Complainant took offence to a comment he alleges was made by Ms H.    The Company advised the Complainant that they would discuss the allegation with Ms H the following week and revert back to him with next steps as soon as possible.

 On the 25th of July, the Company met with Ms H to discuss the matter.   It is submitted that Ms H was surprised by the allegation and immediately refuted that she has made such a comment. The parties agreed to meet the following day to allow Ms H some time to digest the matter.

 On the 26th of July Ms H, having had time to reflect, met again with Ms D and Mr M.  Ms H expressed her concern at having unintentionally caused the complainant distress and wished to apologise to the complainant  if it was deemed appropriate.

 On the 26th of July, the complainant called Mr M to say that he would not be attending work. Later that day the complainant followed up with an email which included a medical certificate to say that he would not be returning to work for the remainder of the week and specifically requested to be “kept informed as to what happens next with regard to the current situation.”

 The Company operates a planned annual Summer Shutdown each year. The plant closed on Friday the 28th of July and did not re-open until Monday the 14th of August.    The vast majority of employees are on annual leave during this 2-week period.

 The respondent submits that on the 26th of July, following receipt of the Complainants medical certificate and email, and given the forthcoming shutdown commencing in 2 days, Ms D contacted the complainant  and offered him support.

It is submitted that the complainant was offered the opportunity to meet with Ms H  in a facilitated environment. Ms D explained that the meeting would take place in a mediative capacity and that the purpose of the meeting was to discuss the incident and attempt to resolve the workplace dispute locally and expediently.

The complainant expressed his apprehension at attending a meeting with Ms H and asked for some time to consider it. Ms D asked that the complainant contact Mr. M in the morning.

On the 27th of July, The complainant emailed Mr. M stating that he did not want to attend the meeting and that he felt under pressure to close the matter quickly.

 Ms. D wrote to the complainant in response to the email and confirmed that she would keep him informed as to next steps and explained that if he was not comfortable attending a meeting in person that week, the meeting could be scheduled to take place after the summer shutdown. Ms. D explained that should the complainant wish to have the matter addressed through a formal Grievance process, he could do so.    A copy of the Grievance policy and the Dignity at work policy  were attached to the email.

 The respondent submits that on the 14th of August (the first day back following the summer shutdown), the complainant contacted the Company via email to say that he would not be returning to work until the matter was resolved to his satisfaction. He requested that a meeting take place as soon as possible.

 The respondent submits that Mr. M called the Complainant following receipt of his email and told him that he would be in contact later in the week to organise a meeting. On the 16th of August (2 days later), Mr. M called the Complainant and invited him to attend a meeting on the 17th of August to discuss the matter.

 On the 17th of August, The complainant attended a meeting with Mr. M and Ms. D.    At said meeting, it was explained to the complainant that Ms H had refuted making the comment during the conversation in the canteen on the 19th of July. However, it was explained that Ms H  had expressed her willingness to meet with The complainant to apologise to him for causing him distress.

The respondent submits that the complainant expressed his dissatisfaction with this and said that he was no longer interested in an informal process. Ms. D proceeded to explain the formal process and asked that he submit his Grievance in writing with an much information as possible.

 On the 23rd of August the Complainant submitted his formal Grievance, (dated the 20th of August), to the HR Department .

 In his Grievance, The complainant alleged that he had experienced bullying from Ms H on a number of occasions. The Grievance also outlined the details of the conversation that had occurred on the 19th of July in the canteen at work.

 There were three other employees who were present for this conversation. Mr S, Mr A and Mr. C. (All three employees were employed as Process Quality Setters.)

 Mr C resigned his position with the Company effective the 11th of August so was not available to be called as a witness in the investigation.

 On the 24th of August the Company acknowledged receipt of the Grievance and notified the Complainant that they were working on the terms of reference for the investigation. In the meantime, the complainant was asked to provide more information on the other instances of bullying that he had alleged in his Grievance.

 On the 30th of August the Company had received no further information from the complainant. Ms. D emailed the complainant to confirm that as he had not been forthcoming with any further information, the Company would now be proceeding with the information that he provided in his original Grievance letter dated 20th of August.

 In Ms. D’s email, she invited the complainant to attend a meeting to finalise the terms of reference. The meeting was scheduled to take place on the 5th of September 2023.

 On the 4th of September the Complainant lodged his complaint with the WRC.

 The Investigation

 The respondent submits that the Company commenced a thorough investigation into the matter. The investigation timeline is outlined below:

On the 5th of September, Mr. M and Ms. D met with The complainant and Mr F, SIPTU representative wherein the terms of reference for the investigation were agreed. The complainant was invited to attend an investigation meeting on the 11th of September.

Between the 6th and 8th of September, Ms. D and Mr. M met with Ms H (the Respondent to the Complainants complaint) and the two available witnesses, Mr D and Mr S, to allow them to give their evidence to the investigation team.

The investigation team met with The complainant and his SIPTU representative, Mr. F on the 11th of September. During the investigation meeting, The complainant was asked to provide details of the other instances of bullying as mentioned in his Grievance letter.

The complainant advised that upon reflection that he wished to only focus on the conversation that occurred on the 19th of July in the canteen.

On the 18th & 19th of September, the investigation meeting minutes were shared with all parties for review and signature. The investigation team issued a deadline for the meeting minutes to be reviewed, confirmed and returned by the 21st of September.

On the 28th of September, the investigation report was shared with The complainant and Ms H for review and comment.   The investigation team requested that both parties review the report and revert with comments by the 2nd of October. 

 On the 2nd of October, The complainant emailed the investigation team with his comments.    These comments were included alongside the Final Investigation Report.

 Ms H made no comments.  The findings of the report are outlined below.

There is agreement between all parties that on the 19th of July, a conversation took place at the breakfast table in the canteen regarding an on-going protest about a facility that had been set up as a refugee centre.  It was acknowledged by all parties that there was a conversation about other refugee centres in the surrounding areas.    Not all parties remembered the conversations in the same way and there was disparity between what was remembered.  

 There was no evidence found of intent to cause distress, hurt or anxiety by any party.  The investigation found no evidence of bullying towards the complainant.

 The investigation report acknowledged that that the topics of conversation on the 19th of July at the breakfast table did not demonstrate an awareness or understanding of the importance of inclusivity in the workplace.

In line with the terms of reference, the finalised investigation report was sent to Ms R Operation Core Team Lead and Mr B, Senior Engineer to make recommendations and decide upon the appropriate next steps.

On the 20th of October Ms R emailed The complainant and invited him to a meeting on the 25th of October to discuss the outcome. Following due consideration Ms R and Mr B issued the following recommendations:

 They acknowledged the importance of addressing the distress caused to the complainant  whilst acknowledging that there was no intent to cause the distress. They also set out the importance of addressing workplace issues as they arise with an open mind and working together to move forward to address said issue.

 As the head of department, Ms R undertook the following actions:

a. Adress the matter directly with Ms H, Mr A and Mr S.

 b. To conduct a refresher training of the Company values with a particular focus on Team Players and being authentic and inclusive.

c. A refresher code of conduct training via the Company’s online training tool to be completed within 12 weeks.

d. To organise a team Dynamics workshop with a focus on how the team interact, communicate cooperate as a whole, incorporating the Company’s dignity at work policy and ensuring a culture of inclusion and diversity.

On the 25th of October, The complainant and Mr. F attended a meeting with Ms R and Mr B. The purpose of the meeting was to discuss the recommendations and obtain feedback from the complainant.    At the end of this meeting, Ms R explained the appeals process to The complainant.

 Ms R asked The complainant to take some time to digest the information and to come back to her with any further comments.  The complainant did not provide any further comments or appeal the findings and or recommendations.    On the 3rd of November the complainant tendered his resignation with the Company via email.

 On the 8th of November, Ms H, Global HR Director, emailed The complainant to enquire if he would be willing to give Ms H and Ms R an opportunity to meet with them to attempt to find an amicable solution.

 On the 15th of November the complainant responded to say that he was resigning, and he wished the Company to respect that.   On the 16th of November, Ms H acknowledged The complainant’s email and offered the Company’s ongoing support and willingness to come to an amicable solution.    On the 20th of November, Ms S, HR administrator emailed the complainant confirming the details of his Final Payment.   On the 28th of November, Ms R again reached out to The complainant via email and conveyed her regret at his decision to leave and reconfirmed her position on addressing racism in the workplace.

 Accommodation during the investigation

The Complainant has made a complaint that the Company did not accommodate his request to be transferred to another area of the business whist the investigation was ongoing.

 The respondent submits that the Department in which the Complainant was employed, is a separate Business Unit which differs greatly from other units.

The respondent submits that the Company gave due consideration to the Complainants request however, similar jobs at a similar grade , require an extensive 6-week training programme (for technical and safety reasons). Therefore, it is not practical or reasonable for the Company to provide a transfer of this nature for the duration of the investigation.

 The complainant spoke to Mr. M during a phone call on the 5th of September and Mr. M explained to The complainant that a transfer was not practical for reasons as outlined above.

 Mr. M explained to the complainant that whist the Company was unable to facilitate a transfer for the duration of the investigation, the Company could offer an alternative for The complainant working on the offline tasks located separately to the main operation line within his existing Department.    The complainant refused this option.

The respondent submits that that following a rigorous investigation meeting, where a number of witnesses to the incident were available to provide evidence, the facts of the incident are in dispute.

All parties accept that a conversation took place at break in the canteen concerning the protesters in a local area. However, the alleged statement that caused offence to the Complainant cannot be substantiated.

 The respondent submits that it is a proud equal opportunities employer, and the Company takes its responsibility in this regard very seriously.   The respondent submits that it does not discriminate against employees or potential employees with regard to access to employment, conditions of employment, work experience, and/or promotion. The respondent submits that it is  proud that slightly over 23% of our workforce are non-Irish.

 The respondent submits that it has 5 dedicated employee led groups which focus on WIN/STEM, LGBTQ+, Wellbeing, Culture and Recognition. All employees are encouraged to bring their best and authentic selves to work each day and work together to actively challenge traditional ideas and thought patterns which may be a barrier to inclusivity.

These groups are each lead by a member of the Leadership Team.  The respondent submits that it has best practice policies and procedures in place prohibiting race discrimination, which emphasise to our workforce that discrimination will not be tolerated.

The respondent submits that the Company also has an effective complaints mechanism in place,  which the Complainant successfully utilised. All new employees receive a three-day induction where these policies are explained in detail and follow up training is allocated via the Company’s online training portal.   All Company policies are easily accessible to all employees via the Company’s Intranet page.

The respondent notwithstanding its position that the complainant was not discriminated against or harassed on grounds of race seeks to rely on the defence set out in Section 14A (b)(iii) ‘’(1) it is a defence for the employer to prove that the employer took such steps as are reasonably practicable to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects 

The respondent submits that it took immediate action once the matter came to their attention and followed both their policy and good practice in terms of initially trying to mediate the matter between the two employees concerned.   When the Complainant made it known that he preferred to utilise the formal process, an investigation ensued wherein recommendations were implemented and actioned by the Company.

The respondent submits that it also paid the complainant an additional 2 weeks’ pay following his decision to resign. All of which was done to support the complainant during this difficult time.

The issue for decision by me now is whether or not the complainant was subjected to harassment  on grounds of his race contrary to section 14A (7)  of the Acts and whether he was  discriminated against by the respondent on grounds of race, in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 in relation to his conditions of employment.   The complainant has also submitted a claim of victimisation in accordance with Section 74(2) of the Acts.

In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.

Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) …..”

Section 6(2) (h) of the Acts defines the discriminatory ground of race as follows – “as between any two persons that ..(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”), 

Thus, the complainant must be the subject of less favourable treatment in comparison to another person on grounds of race. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.   It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary.   The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: “places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

Harassment

Harassment is defined in Section 14A (7) of the Acts as 

‘any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. 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 (2) provides a defence for an employer if it can prove that it took. 

reasonably practicable steps to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects [my emphasis].

The respondent advised the hearing that it has mature policies and practices in place which set out the expectations of the organisation with regard to dignity in the workplace and discrimination. The respondent advised the hearing that these policies are accessible to all employees and all managers are trained on their responsibility as a people managers.  It further stated that all employees receive training, and refresher training where necessary, on the relevant policies  and that the Company is committed to ensuring a workplace of inclusivity.

The respondent  advised the hearing that the complainant’s complaint was managed appropriately, reasonably, in line with Company policy and best practice.

The respondent submits that it took immediate action once the matter came to their attention and followed both their policy and good practice in terms of initially trying to mediate the matter between the two employees concerned.  The respondent added that once it became clear that the complainant preferred to utilise the formal process, an investigation ensued wherein recommendations were implemented and actioned by the Company.

 Furthermore, the respondent advised the hearing that it offered continued support to the complainant and ensured that the investigation process was managed expediently. The respondent advised the hearing that it also paid the complainant while he was out of work on sick leave in excess of his entitlement under the Company’s Attendance and Sick Pay policy.  In addition, the respondent advised the hearing that it also paid the complainant an additional 2 weeks’ pay following his decision to resign.   The respondent stated that all of this was done to support The complainant during this difficult time.

The respondent advised the hearing that following the investigation it took immediate staps to try and prevent any recurrence and to reverse the effects of the harassment .  The respondent  outlined that it had conducted refresher training of the Company values with a particular focus on Team Players and being authentic and inclusive.    The respondent stated that it also provided  A refresher in code of conduct training via the Company’s online training tool which was to be completed by staff within 12 weeks.

In addition, the respondent advised the hearing that it organised a team Dynamics workshop with a focus on how the team interact, communicate cooperate as a whole, incorporating the Company’s dignity at work policy and ensuring a culture of inclusion and diversity.

I am satisfied from the evidence adduced that the company had appropriate policies and procedures in place  and once notified of the incident of the 19th of July  immediately took steps to deal with the situation firstly via the informal process as requested by the complainant initially and later via the formal investigation route which the complainant later indicated he wished to pursue.

I note that the complainant initially advised the respondent that he wanted an apology and that Ms H although she disputed the exact comments, she had indicated that she was willing to apologise for any offence she had caused.  The complainant then indicated that he wished to pursue the formal route.   Evidence was adduced at the hearing outlining the investigation process and the steps taken by the respondent to reverse the effects of the harassment.

The respondent advised the hearing that it had interviewed all of those involved in the conversation in the canteen on  19th of July  and while staff members gave slightly differing accounts of the conversation no one was able to confirm that the comments alleged to have been made by Ms H had in fact been made by her.     The investigation outcome did not make any finding of fact on this and could not confirm or deny that the comments were made.  The notes of interview with Ms. H indicate that she denied making the comments in that context but stated that she had made some reference to it in a previous conversation in a different context.

Ms. H herself did not attend the hearing and so was unable to confirm or deny the comments attributed to her.   I note that it was asserted by the respondent that Ms. H was not fit to attend the hearing however I also note that the respondent did not seek an adjournment of the hearing to facilitate Ms. H’s attendance.  The investigation notes for the most part confirm the subject matter of the conversation but not the exact comments alleged to have been made by Ms. H.

I note that the complainant asserted that the conversation was not just between himself and Ms, H but that there was a group of people involved in the conversation and that the topic of discussion centred around refugee centres and protests in the local community.  I note from the evidence adduced by the complainant himself that comments were also made by others on the same topic but that the complainant did not take issue with others notwithstanding the fact that he stated that another individual had said that he did not want to be ‘bumping into a bunch of foreigners.  The complainant at the hearing stated that this individual had only made the comments to be funny in front of the group.   The complainant also stated that this individual later apologised to him for making the comments.  

It appears from the evidence adduced that the complainant seemed to take particular issue with Ms. H despite the fact that she was only one of a number of people engaged in the conversation.   In addition, I note that the complainant had initially advised the respondent that he wanted an apology from Ms. H and that Ms H had offered/agreed to apologise but the complainant then changed his mind and opted to go the formal investigation route instead.   

I note that the complainant advised the hearing that the Company did not accommodate his request to be transferred to another area of the business whist the investigation was ongoing.    The respondent in reply to this at the hearing stated that it did consider this but stated that any move to a similar job at the same grade would have required an extensive 6-week training programme (for technical and safety reasons).  The respondent added that it was thus not practical or reasonable for the Company to provide a transfer of this nature for the duration of the investigation.

The complainant at the hearing stated that he had wished to be transferred away from Ms. H and not just for the period of the investigation.  The respondent stated that it had offered him a move to offline tasks within the same Department to reduce contact with Ms. H.  The complainant acknowledged that this offer had been made but he stated that this would still have meant working in in close proximity to Ms. H and that he would still have had dealings with her.

The Respondent in its submissions and in its evidence to the hearing maintained that it could not offer the complainant a temporary transfer due to the 6 weeks training period required but the complainant advised the hearing that he had not specified that it was a temporary transfer which he was requesting as he wished to be removed from working with Ms. H.

The complainant advised the hearing that he had clarified this to the respondent that it was not just a temporary transfer which was being sought but a permanent transfer.

While I note the respondent’s position that a temporary transfer could not be provided for the duration of the investigation due to the training period required, I find it unsatisfactory that the respondent did not engage further with the complainant regarding the possibility of a transfer and did not make an effort to establish whether it was in fact a temporary or permanent transfer that was being sought by the complainant.

In circumstances where the complainant had made a formal complaint containing allegations of racism against his team leader and where the complainant had expressed a wish to be transferred to another Department, I am satisfied that the respondent should have explored this option instead of discounting it due to the training time needed and having made an assumption that the transfer was only being sought for the duration of the investigation.   In addition,  I am satisfied that the complainant later clarified that it was a permanent transfer he was seeking but I note that the respondent still did not facilitate this request or at least explore the possibility of transferring him to a different department.

In such circumstances and having regard to the totality of the evidence adduced I am satisfied that the respondent did not do all that was necessary to reverse the effects of the harassment and thus cannot completely rely on the defence allowed under Section 14 A .   While I note that the alleged comments were not directed at the complainant personally,  I am satisfied from the evidence adduced that the comments made in the course of the conversation in the canteen on 19th of July had the effect of ‘creating an intimidating, hostile, degrading, humiliating or offensive environment’ for the complainant and although the respondent conducted an investigation and took remedial action the actions taken having regard to the particular circumstances fell short of what is required to reverse the effects of such harassment.   

Accordingly, I declare this aspect of the claim to be well founded and I direct the respondent to pay the complainant €5,000 in compensation for the effects of the harassment.

Discrimination in condition of employment

The complainant in his claim form had submitted that he was discriminated against in respect of his  conditions of employment. 

The complainant in outlining this claim referred to the respondent’s refusal to give him a transfer to a different department away from Ms H following his complaint.

I find that the failure to facilitate the complainant with a transfer during the investigation process is more appropriately dealt with under the harassment claim as it arose out of a complaint in respect of harassment and how the respondent dealt with that complaint as opposed to being an issue which could be said to amount to less favourable treatment in respect of his working conditions.    I am satisfied that the issue of a transfer only arose in the context of the investigation which was triggered by the complaint of harassment.

In addition, I have already dealt with this matter under the harassment heading and made a finding in favour of the complainant in that regard.

The complainant in his evidence to the hearing also stated that Ms. H was given time to reflect after her initial interview following the incident that she was given a couple of days to reflect and that this amounts to more favourable treatment due to her race.

I am satisfied that the complainant has failed to establish that this amounts to less favourable treatment on ground of race in relation to this matter.

Having considered the totality of the evidence adduced in respect of this claim I can find no evidence of less favourable treatment on grounds of race in respect of his conditions of employment outside of matters which have already been dealt with under the claim of harassment.

Victimisation

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

“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………….

(f)       an employee having opposed by lawful means and act which is unlawful under this Act…….

(g)      an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs”

In Tom Barrett v Department of Defence, the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Act to be made out.   It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.

The Complainant in outlining his claim of victimisation asserts that the adverse treatment to which he was subjected was that the HR manager Ms. D had urged him to try and resolve the matter prior to the 2 weeks shutdown.  The complainant stated that Ms. D had told him that the situation was stressful for everyone including herself.   The complainant added that this was unacceptable in circumstances where he had  advised the respondent that he had been certified sick and unable to attend work.  

 The respondent in reply to this stated that the complainant had initially indicated that he wished to resolve the matter informally and had asked for an apology from Ms. H .   The respondent advised the hearing that the timing of the matter was unfortunate as the plant was about to go into a 2-week planned shutdown and stated that they had sought to have to matter resolved before the shutdown rather than having it left hanging over the complainant for the next 2 weeks until the plant reopened.

 The respondent re iterated that the complainant at that point had indicated that he wanted the matter resolved informally and that it was only after the 2-week shut down that he decided to pursue the formal route.

I find the complainants evidence on this point to be somewhat contradictory.  I note that on the one hand the complainant in his submissions states that he was left in the dark as to what was happening for 2 weeks during the shutdown period but on the other hand, he declined an offer to meet with Ms. H to try and resolve matters informally prior to the shutdown.   The complainant asserts that the reason for this was due to the stress he was suffering as a result of the incident, and he advised the hearing that he had attended his doctor on the 26th of July and was certified as unfit for work due to stress.

Having heard the evidence of both parties on this matter I am satisfied that the comments made by Ms. D could not be construed as a retaliatory action amounting to victimisation.  Accordingly based on the totality of the evidence adduced, I find that the complainant was not victimised by the respondent in terms of section 74(2) of the Act in terms of alleged adverse treatment.  

For the sake of completeness, it is also worth mentioning that the complainant in this case did not submit any claim of discriminatory dismissal or of constructive dismissal and although he stated at the hearing that he resigned due to the fact that he was unhappy with the way in which the respondent dealt with his complaint he has not asserted that he was forced to resign as a result of same.  He has also not made any claim that the respondent breached his contract.  It is also noteworthy that the complainant submitted his claim to the WRC on the 4th of September 2023 which was 7 weeks before the investigation of his complaint had been concluded by the respondent.

However, for the sake of completeness it should be noted that no evidence was adduced which would support a claim of constructive dismissal and I am satisfied from the evidence adduced that the complainant has not established the existence of a breach of his contract, nor has he established that the respondent’s behaviour was so unreasonable as to leave him with no option but to resign his position.    I also note that the complainant resigned his position on the 3rd of November  via email.  I note that following this Ms. H  Global HR Director, emailed the complainant  to enquire if he would be willing to avail of the opportunity to meet with them to attempt to find an amicable solution.   The complainant responded saying that he was resigning, and he wished the Company to respect that. The respondent acknowledged this but again offered the Company’s ongoing support and willingness to come to an amicable solution. The company  later reached out to the complainant and conveyed  regret at his decision to leave and reconfirmed the company position on addressing racism in the workplace.  Thus, it is clear that despite the respondents attempts to discuss matters further with him the complainant was adamant that his decision to resign was final.    

Having considered all of the evidence, both written and oral, adduced at the hearing of this complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Act, 1998, as amended. I find that:　

(i)   the Complainant was subjected to harassment on grounds of race in terms of section 14A of the Act.    Accordingly, I direct the respondent to pay the complainant €5,000 in compensation in respect of the harassment.

(ii)   the Complainant was not discriminated against by the respondent  on grounds of race in terms of section 6(2) of the Act, in respect of his conditions of employment contrary to section 8 of those Act. 

(iii)   the Complainant was not victimised by the Respondent in terms of section 74(2) of the Act.