Complainant

Respondent

Anonymised Parties

A Process Executive

A Digital Services Provider

Representatives

Not represented

Ruth Mylotte BL

Act

Complaint Reference No.

Date of Receipt

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

CA-00058409-001

21/08/2023

The respondent is a business processing organization that focusses on outsourcing.  It acts as a processing agent for the ordering of software related services for clients, monitoring revenue from sales and reporting this information to its clients.

The complainant is from Latvia and he joined the company in March 2021 on a fixed-term contract.  In May that year, he was offered a permanent role and, on the date of this hearing, he was working as a senior process executive.  He works on a specific client account.  Almost 300 employees from 31 countries work on this account, nine of whom are from Latvia.

The complainant’s job is to validate client orders and to cross-check to ensure that orders are complaint with internal client rules based on market requirements.  He also conducts audits related to these tasks. 

On August 21st 2023, the complainant submitted this complaint to the WRC.  On his complaint form, he ticked the box beside the option to indicate that he was discriminated against on the race ground.  In the opening section of the narrative of his complaint he stated:

“I did not find a suitable section, so I am writing here….I think there is a human rights violation going on here, and this happens nowhere else…like all people are equal and you need to be tolerant, but in fact they staged a psychological hell.”

It is apparent from the remaining narrative that the complainant is concerned that the respondent’s management tolerates a certain supervisory style which he finds difficult to work with.  He complains about certain physical behavior of a co-worker and the interactions between co-workers who are gay.  He feels that, because he has a Slavic appearance, people think he is Russian and a supporter of the war against Ukraine.  He complained about the management decision to select a particular person as the employee of the month.  He complained that his manager had a mental illness and he said that he asked to be moved to a different team.  In the winter of 2023, the complainant said that he was admitted to hospital due to blood poisoning and constant stress and a problem with his immune system. 

From March 2023, the complainant said that he was given a lot of work, while people around him watched YouTube.  In May 2023, he was moved to a different team, but he claims that the manager on his former team is still behaving strangely and making life difficult at work for his team members.

In his evidence at the hearing, the complainant said that he has been “badly treated because of my face.”  He said that he is from Riga and he is partly Russian and partly Ukrainian and he claims that he has “a Slav face.”  He said that, when the war began in Ukraine in February 2022, he was reporting to a new manager and there was a perception that he was a supporter of Russia.  He claims that his manager was rude and he said he told him that he couldn’t work with him.  He said that, behind closed doors, his language skills were mocked and that he now has a complex about his ability to speak English.  His complaint is about why this was allowed to happen. 

Opening her submission, Ms Mylotte said that the respondent is an equal opportunities employer and proud of its diverse workforce.  Through the company’s training portal, employees are required to complete mandatory training in anti-sexual harassment, bullying, harassment and discrimination.  Refresher training must be undertaken on an annual basis.

Until he submitted this complaint to the WRC on August 21st 2023, the respondent was unaware that the complainant had concerns about discrimination and harassment at work.  When they received his complaint from the WRC, a member of the respondent’s HR team contacted the complainant to ask him to meet her to discuss his concerns.  The complainant refused to meet the HR officer, claiming that the company was trying to catch him out and to prepare for litigation.  He asked her to “please start cooperating with the WRC.”

On October 5th 2023, the complainant wrote to the HR manager alleging that his manager was under the influence of alcohol or drugs.  He was invited to a meeting on Tuesday, October 10th.  The minutes of this meeting were issued to the complainant and a copy was provided to me at the hearing.  It is apparent that the complainant was very exercised about his perception of the behaviour of his manager, but he refused to accept that it was a matter for the HR department to deal with.  He wanted to know if he would be punished if he called the Gardaí.

In November 2023, the complainant submitted a grievance regarding the conduct of his manager, related to an unsolicited hug.  In February 2024, his grievance was upheld.

On the form he submitted to the WRC, the complainant made allegations about the conduct of a co-worker and about what he considered to be the respondent’s failure to address his concerns about this conduct.  He also alleges that the co-worker engaged in unacceptable conduct towards other employees of different nationalities, which is unrelated to any allegation of racial bias on the part of this individual.  It is the respondent’s position that the complainant has failed to set out a claim of harassment and less favourable treatment for opposing harassment on the ground of race.  In accordance with s.77A of the Employment Equality Act, Ms Mylotte asked me to dismiss this claim on the basis that it is frivolous, vexatious and bound to fail.  She argued also that it is misconceived in law.

As this complaint was submitted to the WRC on August 21st 2023, the period for which I have jurisdiction to consider if the complainant was discriminated against is from February 22nd until August 21st 2023.  After August 2023, the complainant made further submissions to the WRC on October 6th and 11th 2023, November 8th and 17th, December 14th and 19th, January 19th 2024, February 9th, 14th, 15th 22nd, 27th and 28th and on March 5th 2024.

Many of the issues raised in the complainant’s submissions concerns matters that occurred after he submitted this complaint to the WRC, although there is a certain pattern to his concerns.  Unfortunately, as someone outside the environment in which the complainant works, his submissions are difficult to understand, and generally, they seem to be concerned with various workplace incidents and relationships that are causing him stress.

In my estimation, the complainant is committed to his job and likes working for the respondent, but he is upset at the outbreak of the war in Ukraine, and the impact that this has on people who might be of Russian or Slavic appearance.  It seems to me that he is also sensitive to the conduct of his co-workers and the challenges presented by working with a variety of cultures and personalities in an open-plan environment.  The complainant appears to be concerned that the HR department might not be positively disposed towards him if he made a complaint.  This concern should have been alleviated by the fact that, when he submitted a grievance in November 2023, his complaint was upheld. 

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“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 this section 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.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility is on the complainant to show that, based on the primary facts, he was treated less favourably than colleagues who are of a different race and that he was harassed because of he is of Slavic origin.  I have given serious consideration to the complainant’s submission of August 2023, and I have listened to what he said at the hearing on March 22nd 2024.  I can find no evidence that the complainant was singled out for unfair treatment because of his racial origin and it is my view that he was not treated unfairly at all by the respondent.  For this reason, I must conclude that the complainant has not discharged his initial responsibility to show that, on the primary facts, he was treated in a discriminatory manner.

I have concluded that the complainant has not set out any facts which lead to an assumption that he was discriminated against on the ground of his race and, for this reason, I decide that this complaint is not well founded.

Discrimination, race, misconceived