EQUALITY OFFICER'S DECISION NO: DEC-E/2010/131
File No: EE/2008/027
Date of issue 13 July, 2010
Headnotes: Employment Equality Acts, 1998- 2007 - sections 6,8 & 14A - race- discriminatory treatment - conditions of employment - harassment - prima facie case
This dispute involves a claim by Mr. Krzysztof Kluczynski, who is a Polish national, that he was (i) discriminated against by the respondent in respect of his conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts and (ii) harassed by the respondent on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 14A of those Acts.
2.1 The complainant was employed by the respondent as a IT Engineer between September, 2006 and September, 2007. He contends that during his period of employment he was treated less favourably as regards his conditions of employment and was subjected to a campaign of harassment by the respondent on grounds of race (Polish nationality) contrary to the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998- 2007 to the Equality Tribunal on 21 January, 2008. In accordance with her powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 13 November, 2009 the date the complaint was delegated to me. Submissions were received from both parties and a Hearing of the complaint took place on 10 February, 2010. A small number of issues arose at the Hearing which required further clarification and gave rise to subsequent correspondence between the Equality Officer and the parties. This process concluded in mid-April, 2010.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is a Polish national, commenced employment as an IT Engineer with the respondent on 19 September, 2006. He states that in December, 2006 one of his colleagues (Mr. R) called him "A Polish C **t". He adds that this incident was witnessed by the three other employees employed by the respondent at that time. The complainant states that he did not respond to the alleged comment and walked away. The complainant states that Mr. R continued to use this term both directly to him and when talking about him to other employees from then on - sometimes several times a week - although he never used it in front of customers or clients. He adds that the owner of the company (Mr. W) was present on many occasions and did nothing about it. The complainant states that he spoke with Mr. R in March/April, 2007 and asked him to stop behaving the way he was but Mr. R ignored him.
3.2 The complainant states that shortly after he confronted Mr. R about his behaviour, both Mr. R and Mr. W commenced mispronouncing his name (although Mr. R was more likely to engage in the behaviour) and making sounds which the complainant believed were meant to mock the Polish language. He asserts that this occurred several times a week and continued until the end of his employment and when he asked them to desist they just ignored him. The complainant also contends that in July/August, 2007 Mr. R made derogatory comments (on 2/3 occasions) about the food he brought for lunch. The complainant states that he was not aware of any harassment policy in the respondent company but had received a copy of the respondent's Grievance Policy. He adds that he never used the process because he felt it was pointless.
3.3 The complainant states that he did not receive any payslips until after the respondent had been the subject of an inspection by NERA in March, 2007. In the course of the Hearing he was unable to say whether or not any of the other employees received payslips. The complainant adds that he accessed his revenue-on-line account (ros.ie) after he left the respondent's employment in September, 2007 and he was unable to clarify whether or not he had been registered as an employee by the respondent during his period of employment. He states that he did not receive either a P60 for 2006 or a P45 on cessation of his employment. The complainant adds that his contract of employment provided that the he could use his own personal car for official use and the respondent would reimburse him certain costs connected with road tax, insurance and petrol. The complainant states that he received a "petrol card" in February, 2007 but that he never received any payment in respect of the road tax and insurance - adding that he did not approach Mr. W about the matter until shortly before he left the respondent's employment. He rejects the respondent's assertion that he was involved in an incident which caused €1,500 worth of damage to the respondent's car. He submits that the aforementioned treatment constitutes discrimination of him on grounds of race contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions in their entirety. It states that it is a small enterprise and during the period of the complainant's employment it employed 3 other personnel - Mr. W and Mr. R (who are co-Directors of the company) and Mr. O. It states that the premises it occupies comprise two rooms with an interconnecting door. Part of one of the rooms is sublet to Mr. B - who operates his own business from the location. Mr. W states denies that he ever used the language attributed to him by the complainant. He further rejects the assertion that he mispronounced the complainant's name - adding that he called him Kris - or that he made noises mimicking the Polish language. Mr. W states that he was present in the Office 90% of the normal working week and he never witnessed Mr. R behave in the manner attributed to him by the complainant. The respondent states that he had a Grievance Procedure in place at the time - a copy of which was given to the complainant - and he never availed of it. It states that the first time it became aware of any issues in this regard was after the complainant resigned.
4.2 Mr. R gave evidence at the Hearing and states that he would have had daily contact with the complainant in the workplace. He denies in the strongest terms that he behaved in the manner asserted by the complainant. He said that he thought they had a good working relationship with the complainant adding that he made efforts to organise an apartment for the complainant when his (the complainant's) girlfriend had arrived from Poland. Mr. R states that he got some payslips, but it was not a regular occurrence and he had to request them from the respondent's accountant - adding that they were provided on request without difficulty.
4.3 Mr. B attended the Hearing and gave evidence. He confirms that he leases a section of one of the Offices from the respondent. He clarifies the layout of the Offices and confirms that from his location - where he estimates he spends at least 70% of his working week - he could hear everything that happens in the respondent's premises. He states that he never heard either Mr. W or Mr. R behave in the manner attributed to them by the complainant - adding that he only ever hear them address the complainant by his first name.
4.4 The respondent states that the complainant was paid monthly by electronic transfer to his bank account. It adds that all matters connected with salary were handled by its Accountant and accepts that it was not the practice to issue regular payslips - adding that an employee could request one and it would be provided. It states that copies of all payslips were furnished to the complainant as part of the NERA inspection in March, 2007. The respondent can offer no explanation as to why the complainant was unable to access certain of his details in his ros.ie account. It adds that its tax affairs are in order for both years - 2006 and 2007, that the complainant was returned as an employee on the P35 for both years, that he received a P60 at the end of 2006 and it also issued his P45 when the complainant terminated it employment with it. The respondent accepts that the complainant's contract contain the provision in respect of road tax, insurance and petrol. It states that it issued the complainant with a petrol card when it became evident that he required same and that he continued to use this card without permission after he had terminated his employment until such time as the respondent cancelled same. It accepts that it did not make good on the other aspects of the contractual provision stating that the complainant had caused €1,500 worth of damage to Mr. W's car and it withheld payment of these amount on the basis that the complainant was "working off the debt" as agreed between them. The respondent states that this issue has been the subject of separate proceedings under the Payment of Wages legislation at the Rights Commissioner. It concludes by (i) rejecting the complainant's assertions that he was harassed and/or discriminated against on grounds of race contrary to the Acts and (ii) stating that the complainant never informed Mr. W of the alleged harassment of him by Mr. R despite his contention that it was on-going consistently for nine months.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts as regards his conditions of and (ii) harassed the complainant on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 77 of those 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 presented at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998 - 2007 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the Complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of him his case cannot succeed.
5.3 I propose to examine the discriminatory treatment aspect of the complainant's claim in the first instance. Section 6(1) of the Employment Equality Acts, 1998 - 2007 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) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins... " It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because his is Polish. The first element of this part of the complainant's claim concerns the alleged treatment of him as regards the provision of payslips and the alleged failure of the respondent to return him as an employee to the Revenue Commissioners. I am satisfied that the complainant did not receive a copy of his payslip(s) until after March, 2007 - when the respondent was inspected by NERA. However, on the basis of the evidence adduced by Mr. W and Mr. R, along with the written statement of the respondent's accountant as to the practice regarding the issue of payslips, I am satisfied, on balance, that the complainant was not treated in a different manner to any other employee and consequently this aspect of his complaint cannot succeed. The respondent furnished me with copies of the P35 for each of the tax-years 2006 and 2007 and the complainant is included on both documents. It also furnished copies of receipts from the Revenue Commissioners in respect of the outstanding amounts of liability for each of the tax years concerned - which reconcile with the P35's - and I am therefore satisfied that it returned the complainant as an employee for each year to the Revenue Commissioners. In addition, it furnished a copy of the complainant's P60 for 2006 - which reconciles with the details recorded on the P35 for him. Finally, it furnished a copy of a P45 for the complainant, dated shortly after the complainant states he terminated his employment with the respondent, the details in which are consistent with those recorded for him on the P35 for 2007. In light of the foregoing, I find that the complainant has failed to establish a prima facie case of discrimination in respect of these aspects of his complaint
5.4 It is accepted by the respondent that (i) the complainant's contract of employment provided it would reimburse him certain expenses for the use of his private car for official purposes and (ii) it did not honour this provision of the contract. The respondent states that it failed to operate this provision because the complainant had been involved in an incident that resulted in €1,500 worth of damage to Mr. W's car and it was agreed between the parties to offset this liability over time with the non-payment of the expenses. I note that this arrangement was disputed by the complainant and that the matter has been concluded through the Rights Commissioner Service - which is the appropriate forum for disputes under the Payment of Wages legislation. The complainant has failed to establish any facts in the course of my investigation which would enable me conclude that the actions of the respondent on this issue were connected to his nationality or that it would have treated any other employee differently in similar circumstances. Consequently, I find that this aspect of his complaint cannot succeed.
5.5 I shall now examine the second element of the complainant's claim - that he was harassed on grounds of race contrary to the Acts. Section 14A of the Employment Equality Acts, 1998 - 2007 defines harassment as follows - "any form of unwanted conduct related to any of the discriminatory grounds ... being conduct 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.". As stated at paragraph 5.2 above the initial burden of establishing facts from which it can be inferred by an Equality Officer that harassment occurred rests with the complainant. The complainant asserts that the derogatory comments were made by Mr. W and Mr R - the latter on a far more frequent basis that the former - that these comments commenced around three months into his employment and continued several times a week until his employment ceased. Both Mr. W and Mr. R vehemently denied making these comments and Mr. B - who was not an employee of the respondent - gave evidence (which was taken without him having heard the responses of either Mr. W or Mr. R) that he never heard them make these comments or behave in the manner alleged by the complainant. Having considered the evidence as a whole I find that the uncorroborated evidence of the complainant does not go far to discharge the initial probative burden required of him. In reaching this conclusion I have had regard to the fact that the complainant failed to utilise the Grievance Procedure available. I note his comment that he considered using this process "pointless". I accept that it is natural to have such concerns, particularly in a small organisation and in circumstances where one of the alleged harassers would normally be the person who might investigate such a complaint. However, the Grievance Procedure provided for an appeal mechanism which would be undertaken by an Independent External Consultant. In light of the foregoing I find that the complainant has failed to establish a prima facie case of harassment on grounds of race contrary to the Acts and this element of his complaint must fail.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find -
(i) that the complainant has failed to establish a prima facie case of discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998- 2007 and contrary to section 8 of those Acts in respect of those aspects of his conditions of employment.
(ii) that the complainant has failed to establish a prima facie case of harassment on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998- 2007 and contrary to section 14A of those Acts
and his compliant fails in its entirety.
13 July, 2010