Complainant

Respondent

Parties

Janson  Kelebeng

Mitie Facilities Management Limited

Complainant

Respondent

Anonymised Parties

Representatives

  Self

Emily Maverley, Ibec

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-00064820-001

16/07/2024

The Complainant commenced employment with the Respondent on 16/01/2024.  He was employed as a Cleaning Operative and later promoted to the Industrial Cleaning Division (ICD) team.  He worked 40 hours per week and was paid €15.97 per hour.  The Complainant stated that he resigned his position on 19/06/2024 and the Respondent submits that he was dismissed during his probationary period for misconduct.  The Complainant submitted a complaint to the WRC on 16/07/2024 alleging that he was discriminated against on the ground of race and he was also subjected to harassment while employed by the Respondent.  The Respondent refutes those complaints.

The Complainant gave evidence on affirmation.  He commenced working for the Respondent on 16/01/2024 as a cleaning operative.  At the time he resigned he was paid €15.97 per hour and worked a 40-hour week.

The Complainant submits that he was discriminated against by the Respondent by reason of his race and this discrimination prevented him from applying for promotion and also discriminated against him in relation to these conditions of employment.  The Complainant also submits that he was harassed by the Respondent.

The Complainant gave evidence that on 20/01/2024 he was aware that there was a vacancy and he spoke to his manager, Ms A and asked if she would give his friend an opportunity to attend an interview as he had a lot of experience.  The Complainant outlined that he was told by Ms A that everyone should apply online.  His friend applied but was not called.  The Complainant gave evidence that about two weeks after this he was aware that another colleague asked Ms A if his girlfriend could attend an interview and Ms A agreed.  This person did not have to apply online and got the job without interview and without applying online.  The Complainant stated that he notified HR of this breach of company policy.

In response to a question from the Adjudication Officer the Complainant confirmed that this did not discriminate against him but it was the starting point for his submission that the Respondent was engaging in discriminating practices which subsequently did affect him.  The Complainant’s manager was the person responsible for most of the discrimination and harassment

The Complainant then gave evidence that his manager, Ms A, victimised him and put him into a state of stress.  This occurred when Ms A blamed him for not doing some of his cleaning duties properly and that the client was not happy with his work.  The Complainant stated that Ms A was angry and shouting at him.  The Complainant sought clarity form Ms A about which area was not properly cleaned as there were two employees assigned to clean the area.  Ms A did not clarify but a supervisor showed phone pictures which the Complainant submits confirmed that the area not properly cleaned was not his but was the responsibility of his colleague.  The Complainant stated that Ms A refused to apologise for her mistake and he notified HR of his concerns but they did not do anything to resolve the harassment he received from Ms A.

The Complainant gave evidence that on 07/03/2024 Ms A introduced a supervisor’s position and everyone was allowed to apply.  The Complainant gave evidence that he spoke to Ms A about the position and confirmed that he would like to apply as he had six years previous experience as a supervisor.  The Complainant stated that Ms A told him not to apply but refused to give him a reason why he should not.  He had clarified that he was available to work seven days per week if she thought that might be a problem.  The Complainant outlined in evidence that colleagues who were not available for weekend work applied and were interviewed.  He believes that Ms A favoured someone else and he did not apply.

The Complainant had an issue with a supervisor and he reported this to his manager, Ms A.  The Complainant gave evidence that Ms A Respondent by saying that the supervisor would not behave in the way outlined by the Complainant. 

The Complainant gave evidence that Ms A was responsible for everything on the site and when he got no response from HR in relation to his grievance he resigned.  The Complainant confirmed that he did not submit a letter or email of resignation but when he got a call from the Respondent’s People Director inquiring about his whereabouts he informed him that he would not be returning.

Cross examination of Complainant:

The Complainant was cross examined by Ms Maverely on behalf of the Respondent.

The Complainant agreed that his start date was 16/01/2024 and that he confirmed that he resigned on 19/06/2024.  The Complainant explained that he left the company of his own will and he confirmed this to the People Director the following day in a phone call.

The Complainant confirmed that he was initially employed as a Cleaning Operative and later transferred to the Industrial Cleaning Division (ICD).  The Complainant agreed that this move constituted a promotion in terms of pay and duties.  The Complainant confirmed that he had no issues in relation to equal opportunities at that time.  The Complainant confirmed that the copy of his contract of employment was signed by him and that he received this when he started working for the Respondent.  He agreed that he understood when he signed this contract he was agreeing to the terms outlined. The Complainant agreed that there was a probation clause contained in the contract.

It was put to the Complainant that he submitted a grievance by email on 29/03/2024 and he received a response to acknowledge this on 02/04/2024.  The Complainant stated that he did not get an actual response to his grievance at that time.  It was put to the Complainant that he was offered an informal meeting with HR and also provided with details of the EAP service.  He agreed that was correct. 

It was put to the Complainant that all issues raised in his grievance of 29/03/2024 were fully investigated and the outcome notified to him on 24/06/2024.  The Complainant stated that he had resigned at that stage as he did not receive any assistance from HR.  It was put to the Complainant that there were other instances in relation his employment.  These consisted of him being uncontactable and being found in a stockroom.  The Complainant stated that he was never investigated for these and these were not relevant to his complaint.  It was put to the Complainant that the Respondent had received a complaint in relation to these instances on 16/04/2024 and a copy of this was included in the Respondent’s submission. 

It was put to the Complainant that his grievance and issues related to it were fully investigated and he stated that he was not happy with the delay and the outcome was only issued after he resigned.

The Complainant agreed he was advised that he could appeal the outcome and he confirmed that he did not do so as he had submitted his complaint to the WRC. 

Closing Submission – Complainant:

In a closing submission the Complainant outlined that he was treated unfairly by the Respondent and also harassed.  He has provided the names of the people involved and dates.  The Complainant stated that he wrote to HR in relation to the issues with Ms A and as nothing happened he left.  The Respondent also failed to apply their recruitment policy and he was not given a copy of this.  There was no evidence that the Respondent tried to resolve matters and he only received an outcome in relation to his grievance after he left the company.  In that context the Complainant believes that the outcome is unfair and the Respondent did not address his issues between him and his supervisor, Ms A.  The result of this is that he is out of work for five months and has experienced ill health due to these matters.

In response to a question from the Adjudication Officer the Complainant confirmed that he was happy that he was able to provide all his evidence and submissions at the hearing.

The Respondent provided a written submission and a number of legal submissions in advance of the hearing.   The Respondent made a preliminary point that the Complainant has failed in his duty to establish a prima facie case of discrimination as he has not defined any less favourable treatment, not provided any relevant comparator, and not established any causal link between any alleged mistreatment and his race. 

The Respondent is a total facilities management company and has operated in Ireland since 2010.  Currently the Respondent employs 47 different nationalities with an age range from19-70 and has approximately 108 female and 102 male employees. 

The Complainant commence employment as a Cleaning Operative on 16/01/2024 and subsequently joined the ICD team on 15/03/2024.  The Respondent submits that his contract was terminated during his probationary period for reasons of misconduct.

The Complainant submitted a grievance in relation to his manager, Ms A on 29/03/2024.  He provided details of a conversation he had with her and also claimed he was not getting his rosters.  The then HR People Partner emailed the Complainant on 02/04/2024 and invited him the office to speak about is grievance and to provide him with details of the EAP service.  An informal meeting took place on 04/04/2024 and the following day he was advised that a formal grievance procedure would commence and he was given a copy of the relevant policy.  He was also given details of his complaints and asked to confirm that these were correct.  The Complainant confirmed that the details outlined were correct.  The Complainant had a formal grievance meeting on 10/04/2024 and minutes were later provided.  The Complainant made some amendments.

The Respondent provided details of incidents involving the Complainant’s behaviour from 15/04/2024 until 20/05/2024 when he was placed off duty pending investigation.  However, at the hearing the Complainant submitted that these were not relevant to his complaint of discrimination as he submitted that he resigned on 19/06/2024 and no witness evidence was taken in relation to this.

It is the Respondent’s position while the complaint submitted by the Complainant under Section 77 of the Employment Equality Acts alleging discrimination on the grounds of his race they refute this claim in its entirety.

The Respondent notes that Section 84A of the Act provided that:  “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 explanation provided by the Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 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.”

It was submitted on behalf of the Respondent that the case of ICON Clinical Research and Tsourova [EDA 071] is also very relevant.  The Labour Court stated:  “The Court is satisfied that if the Complainant can establish facts from which discrimination can be inferred the onus of proving the absence of discrimination shifts to the Respondent.  The test normally applied by the Court to determine if any probative burden shifts to the Respondent is that formulated in Southern Health Board v  Mitchell [2001] E.L.R. 201.  This requires the Complainant to prove the primary facts upon which he or she relies and to satisfy the Court that those facts are of sufficient significance to raise a presumption of discrimination”.

The Respondent also notes the case of Southern Health Board v  Mitchell, DEE011, [2001] E.L.R. 201 and Margetts v Graham Anthony & Company Limited, ED038.

It is the Respondent’s contention that it in no way refused or omitted to offer or afford the Complainant with opportunities and notes that the Complainant did not apply for the post he complained about.  The Respondent operates a clear and transparent recruitment process for any vacancy.

The Respondent also notes that the Complainant alleges discrimination in relation to his conditions of employment but he has not substantiated or specified what conditions of employment in terms of his race he is referring to.  This claim should fail.

The Complainant has also provided limited details in relation to his complaint of harassment.  The Respondent submits that they investigated his formal  grievance against his manager in line with their grievance policy and this found that the grievance could not be upheld.  The Complainant did not appeal this finding despite being advised that he could do so.

Evidence of Mr Paul O’Donovan – HR Business Partner:

Mr Paul O’Donovan gave evidence on behalf of the Respondent.  He confirmed that he is the HR Business Partner with the Respondent and his role involves advising managers in relation to various aspects of their work.  Mr O’Donovan confirmed that he had no working relationship with the Complainant.  He described the Respondent’s working environment as very busy and one where people of all  backgrounds work.  Mr O’Donovan provided details of the breakdown of the Respondent’s workforce which was included in the Respondent’s submission and described this as a “snapshot of the workforce”.  This provided details of age, nationality and gender.

Mr O’Donovan gave evidence that the Respondent has a well-established inclusion policy and this is provided to all employees when they commence working.  This is done via an email link to the policy. Mr O’Donovan also outlined that training is provided in relation to inclusion and everyone has access to this training module.

Mr O’Donovan clarified that he became involved in the Complainant’s grievance after the initial HR Business Partner who was dealing with it left the organisation.  He took up the investigation which was flagged to him as an employee grievance and he examined all the evidence gathered.  There were no witnesses identified in this grievance.  Mr O’Donovan gave evidence that there was a delay in completing the outcome due to the change of HR Business Partners and which did not have a handover.  Mr O’Donovan confirmed that he issued the outcome on 24/06/2024 which was about six weeks after he commenced employment with the Respondent.  Mr O’Donovan confirmed that the grievance outcome dealt with all three aspects of the Complainant’s grievance.  The Complainant was also advised at that time that he had a right to appeal but he did not exercise this option.

Mr O’Donovan gave evidence in relation to how the Respondent manages probation.  The main emphasis is on an informal feedback process and a formal meeting to conclude.  Managers provide regular feedback during probation.  HR is only involved by providing templates or providing advice if any issue arises.

Mr O’Donovan gave evidence that the Complainant was not treated any differently to any other employee during his probation and the same process was applied.  Mr O’Donovan also gave evidence in relation to the recruitment process.  All vacancies are notified and all applicants have to apply online.  There is a recruitment team in place and they undertake the initial process.  Interviews are conducted by two people and the successful candidates are notified to the recruitment team in order to complete the process.  Mr O’Donovan gave evidence that the Respondent did trial “walk-in” interviews but this was discontinued as it was not successful.  Mr O’Donovan confirmed that line managers do not have the authority to directly employee anyone.  All promotional opportunities are notified to all employees.

Cross examination – Mr Paul O’Donovan:

Mr O’Donovan was cross examined by the Complainant.  It was put to Mr O’Donovan that Ms A did give a job to a person who was recommended.  Mr O’Donovan stated that he did not believe this could happen.  He confirmed that all applications must be made online and that there are now no walk-in interviews.

It was put to Mr O’Donovan that he gave evidence that the Complainant was treated fairly.  He was asked how he came to this conclusion.  Mr O’Donovan stated that the same policies and procedures were applied to the Complainant as any other employee and examples included, invitation to meetings and provision of notes from any meetings.

Mr O’Donovan was asked if he believed that the Respondent followed their policy in relation to recruitment and he confirmed that they do.  Mr O’Donovan was asked if there was a specific policy in relation to recruitment and he confirmed that there was not.  Mr O’Donovan was asked about the “walk-in” interviews and he clarified that this was done on a trial basis but discontinued mainly due to the fact that managers were not always available for interviews.

Mr O’Donovan was asked if he believed he followed the correct steps in relation to his handling of the grievance after the previous HR Business Partner left.  Mr O’Donovan stated that he was satisfied that he did.  Mr O’Donovan explained that he was recruited in mid May 2024 and he had a period of induction.  Following this he then took up the Complainant’s grievance and issued the outcome on 24/06/2024.

It was put to Mr O’Donovan that the Complainant was given an opportunity to appeal and he was asked why the Complainant did not do so.  Mr O’Donovan stated that he had no view on this.

Mr O’Donovan was asked if the client site was initially involved in the recruitment of if the Respondent was involved.  Mr O’Donovan explained that the Respondent was responsible for recruitment.

Closing submission:

It was submitted on behalf of the Respondent that the Complainant was not treated less favourably due to his race in relation to promotional opportunities and conditions of employment.  He was not harassed or victimised.  All the Complainant’s grievances were investigated in full and he has given evidence at the hearing that he resigned before the outcome was communicated to him.  It was submitted on behalf of the Respondent that the Complainant stated that he requested a copy of the Respondent’s recruitment policy and the Respondent submits that there is no statutory requirement to have such a policy. The Complainant has not raised a prima facie case and therefore the burden does not shift to the Respondent.

The Complainant submitted a complaint to the Workplace Relations Commission on 16/07/2024 that he was discriminated against by the Respondent  on the ground of race and this resulted in him resigning his position.  He has also alleged that he was subjected to harassment by the Respondent.

The Respondent submits that the complaint is not well founded as no discrimination took place and that it had complied with its obligations under the Employment Equality Acts and its obligations as set out in the Supreme Court case of Nano Nagle v Marie Daly [2019] IESC 63.

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. The Labour Court has consistently held that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.

Section 6 of the Employment Equality Act states:

“6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) 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) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

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

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”)”.

This complaint is made pursuant to the Employment Equality Acts on the basis that the Complainant was discriminated by the Respondent because of his race. 

The onus of proof is on the Complainant to first establish a prima facie case of discrimination of, in this case, race, before the burden shifts to the Respondent to set out its defence. The principles were set out by the Labour Court in Southern Health Board v Mitchell(2001) DEE 011:

“(2) 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.

(3) Only if these primary facts are established to the satisfaction of the Court, and they are regarded as being of sufficient significance to raise a presumption of discrimination, does the onus shift to the Respondent to prove that there was no infringement of the principle of equal treatment Wallace v. South-Eastern Education and Library Board[1980] NI 38; [1980] IRLR 193 followed”.

Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 at para 2-207 commenting on Mitchell:

“This test requires that facts relied upon by a Complainant must be proved by them to the satisfaction of the Tribunal or Court at the level of balance of probabilities and if proven, must be of sufficient significance as to raise an inference of discrimination. In the case before it, the Labour Court found, on the facts of the case, that the Complainant could not demonstrate superior qualifications and experience than the successful appointee and that she therefore failed to discharge the burden of proof that rested on her”.

Section 85A of the Acts states that where 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. 

I find that the Complainant has not made out a prima facie case that the Respondent did discriminate against him on the  ground of race within the meaning of section 16 of the Acts. 

Claim of Harassment:

The next element of the Complainant’s complaint that I must address relates to the claim that he was subjected to harassment by the Respondent within the meaning of Section 14A of the Acts.

“Harassment” is defined by section 14A(7) of the Acts which states:

“references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds …. 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”.

Section 14A(7)(b) further states that "such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material".  

For a complaint of harassment under the Employment Equality Acts to be made out, the Complainant must demonstrate a nexus between the alleged treatment and the discriminatory ground. 

The Complainant submits that following acts constitute harassment within the meaning of Section 14A of the Acts, namely: being spoken to by his line manager in relation to an area which it was alleged he did not properly clean and a recruitment process which did not consider a friend of his for employment.

The Respondent disputes the claim of harassment contrary to Section 14A of the Employment Equality Acts and submits that the Complainant has failed to identify which conduct is alleged to have had the purpose of violating his dignity. However, it is submitted that no actions on the part of the Respondent had such purpose or effect. 

It is clear from the evidence that the Complainant had issues in relation to how he was spoken to on occasions.  It was the Complainant’s evidence that his manager acknowledged this on one occasion.  The Respondent investigated the Complainant’s grievance in relation to this matter and his complaint was not upheld.   The Complainant did not provide any evidence or explanation that would link any of the concerns outlined to his race.

Having regard to the evidence adduced, I am satisfied that the Complainant has not presented any evidence from which I could reasonably conclude that he was subjected to harassment on the ground of his race contrary to Section 14A of the Acts. 

Having considered the submissions of both parties and the evidence put forward at the hearing of this complaint, I find that the Complainant has not raised a prima facie (upon initial examination) case of discrimination on the grounds of race contrary to the Employment Equality Acts, 1998 – 2015.

I find that the Complainant has not succeeded in discharging the burden of proof required to establish that he was discriminated against and subjected to harassment by the Respondent on the race ground and therefore I find that the Respondent did not discriminate against or harass the Complainant on the ground of race.

Race discrimination.  harassment