DECISION NO: DEC-E/2013/101
(REPRESENTED BY NIALL P. O'NEILL SOLICITORS)
Noxtad Limited t/a Carlton Abbey Hotel
FILE NO: EE/2011/353
Date of issue: 26th of August, 2013
1.1 This dispute involves a claim by Mr. Virgiliu Mihalas that he was discriminated against by Noxtad Limited t/a Carlton Abbey Hotel on grounds of race, in relation to his dismissal. The complainant has also submitted a claim of harassment on the ground of race.
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2008, to the Equality Tribunal, on the 23rd of March, 2011 alleging that the respondent had discriminated against him, on grounds of race, when he was subjected to bullying and harassment at work. The complainant also submits that he was forced to leave his employment due to this harassment and due to the fact that his employer failed to take any action to prevent or stop this harassment.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated this case on 24th of April, 2013 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. A written submission was received from the complainant. The respondent did not provide any submission and advised the Tribunal that the respondent company is now in liquidation. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to a Hearing on the 13th of June, 2013. The liquidator of the respondent company did not attend the hearing and advised the Tribunal of this fact, prior to the hearing.
3. Summary of complainant's case
3.1 The complainant submits that he is a Moldovian National and that he was employed by the respondent as a Breakfast Chef from 26th of March, 2008 until 25th of October, 2010 .
3.2 The complainant submits that he was subjected to bullying and harassment on grounds of his race by another Chef, Mr. B over a period of two and a half years during his employment with the respondent.
3.3 The complainant submits that Mr. B would constantly scream and shout at him and make remarks regarding his ethnicity and race. It is submitted that Mr. B was not abusive to Irish Staff.
3.4 The complainant was subjected to verbal abuse by Mr. B irrespective of who else was present and this was a constant source of humiliation and embarrassment for the complainant.
3.5 The complainant made a number of representations to his supervisor and to management regarding the bullying and harassment which he was being subjected to by Mr. B on grounds of his race. It is submitted that the manager Mr. R was on occasion present during the name calling and did not intervene.
3.6 It is submitted that despite numerous complainants to management no steps were taken to prevent or stop the harassment.
3.7 It is submitted that the respondent did not have any policies or procedures in place in respect of Harassment in the Workplace.
3.8 It is submitted that the harassment escalated to such extent that the complainant left his job on 25th of October, 2013 following an incident in the kitchen where Mr. B had challenged the complainant to a fight. It is submitted that this amounts to constructive discriminatory dismissal.
3.9 The complainant following his departure was not contacted by the respondent but was sent an unsolicited reference on 12th of November 2010 by the respondent.
4. Conclusions of the Equality Officer
4.1 The issues for decision by me now are, whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6(2) (h) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts, in relation to in relation to his dismissal. I must also make a decision on whether the complainant was harassed on grounds of his race pursuant to section 6(2) and contrary to Section 14A (7) 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 at the Hearing.
4.2 Section 6(1) of the Employment Equality Acts, 1998 and 2004 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 they are of different race, colour, nationality or ethnic or national origins... "
4.3 Thus the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because he is Moldovian. 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 stated in Melbury Developments Limited and Valpeters:
Section 85A of the Act provided for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to 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 speculation 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 establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule. 1
4.4.1 Section 14A (7) of the Act defines harassment as any form of unwanted conduct related to any of the discriminatory grounds and 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. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
4.4.2 The complainant advised the hearing that, during his employment with the respondent he was subjected to bullying and harassment by Mr. B due to his race. The complainant illustrated his claim with examples and stated that on one occasion Mr. B asked him to prepare a 'Caesar salad', the complainant advised him that he would make the salad when he was finished what he was doing, but that Mr. B then began shouting at the complainant and calling him a "F**king Foreigner" and a "F**king p***k". The complainant went on to state that Mr. B regularly called him such names. The complainant went on to state that Mr. B did not behave like this towards Irish employees and that this harassment of the complainant was due to his race.
4.4.3 The complainant advised the hearing that he had complained about Mr. B to his supervisor and to the Manager on several occasions. The complainant stated that he had initially complained to the Head Chef, Mr. C who advised the complainant that he would do his best to roster the complainant and Mr. B at different times in order to limit the complainant's contact with Mr. B. The complainant stated that this solution worked for a short time as he did not work the same hours as Mr. B, but that this was only a short term solution. The complainant advised the hearing that once the restaurant became busier he was again rostered to work with Mr. B and the harassment continued. The complainant stated that Mr. B shouted at him and called him names in the presence of other staff and management.
4.4.4 The complainant advised the hearing that he had arrived at work on one occasion to find that his locker and his personal belongings had been tampered with. He stated that he went upstairs to his locker to find that, it had been opened by someone, and that his uniform had been removed and left strewn across a chair and on the floor, his shoes had also been taken from the locker. The complainant stated that a number of empty beer bottles had also been placed in his locker. The complainant advised the hearing that his work colleagues had told him that it was Mr. B who had accessed his locker and interfered with it. The complainant stated that Mr. B treated him in this way due to his race.
4.4.5 The complainant advised the hearing that he complained about his treatment by Mr. B to the General Manager, Mr. E on at least two occasions and each time Mr. E advised him that he "would see what he could do". Mr. E took no action and Mr. B continued to harass the complaint. The complainant also spoke the respondent's internal accountant Mr. J about the matter. The complainant advised the hearing that following Mr. E's departure from the post of General Manager the complainant had made a complaint about Mr. B to the new General Manager, Mr. R. Mr. R's response was that he would ring the Head Chef about the matter. The complainant stated that nothing was done and the abuse continued. The complainant added that following his complaint to Mr. R, the new General Manager, the complainant had heard Mr. R refer to the complainant and a Polish staff member as 'f**king dopes' as Mr. R asked the Head Chef why he had left those two 'f**king dopes' alone in the kitchen.
4.4.6 The complainant at the hearing presented as a credible witness who gave his evidence in a clear manner, in response to the Tribunal's direct enquiries. The complainant advised the hearing that his treatment by Mr. B and by the respondent's management, on foot of his complainant caused him great upset and distress and caused him to lose confidence in himself. The complainant's evidence was consistent with the information provided by him prior to the hearing. In light of the foregoing I accept the complainant's version of events in this matter. As the respondent was not at the hearing, this evidence went unrebutted. Thus I am satisfied based on the evidence adduced in relation to this matter that the complainant was subjected to harassment by the respondent contrary to Section 14 A of the Acts.
4.4.7 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. The respondent in this case did not have any policies or procedures in place in respect of Bullying or Harassment in the workplace and thus falls at the first hurdle of failing to take 'reasonably practicable steps ' to prevent harassment. I am also satisfied based on the evidence adduced by the complainant that the respondent failed to take appropriate action to prevent or reverse the effects of such harassment despite receiving a number of complaints in respect of the matter. Thus I am satisfied from the evidence adduced that the respondent, in this case, is not entitled to avail of the defence provided in Section 14A(2) as it made no attempt to reverse the effects of harassment or to make sure it did not happen again but in fact instead contributed to it with further name calling.
4.5 Discriminatory Dismissal
4.5.1 Turning to the complaint of constructive discriminatory dismissal. At the hearing the complainant outlined his version of events surrounding his dismissal. He advised the hearing that on the day in question he was preparing food using a knife. He described how he had been standing in a narrow part of the Kitchen when a waiter came in and asked Mr. B for starters. This was Mr. B's section but Mr. B instead told the complainant to get the starters. The complainant advised the hearing that he was at this point due to finish his shift and stated that he told Mr. B, that he was due to finish and that he had to complete what he was doing first. The complainant stated that Mr, B then became abusive calling him a "F**king Foreigner" and "F**king p***k" and telling the complainant to "F**k off". The complainant stated that the General Manager, Mr. R was in the kitchen at this time but said nothing instead Mr. R turned and walked out of the kitchen. The complainant stated that Mr. B then approached him with a tray in his hands and challenged him to a fight. The complaint advised the hearing that he was still at this point standing at his workstation preparing food using a knife. He stated that Mr. B then came closer to him in what was a narrow space where two people couldn't pass and Mr. B began pushing the tray at the complainant. The complainant stated that he tried to move out of the way and turned sideways for fear of being hit by the tray but stated that Mr. B kept pushing closer into him with the tray and while motioning to the knife in the complainants hand said to the complainant "what are you going to do with it now," while pushing the tray aggressively into the complainant. The complainant put down the knife and walked out of the kitchen. The complainant stated that he was extremely upset by this physical confrontation together with the verbal abuse being shouted at him by Mr B. The complainant stated that he couldn't take anymore at this point and that he had to leave. The complaint advised the hearing that he told the Head Chef what had happened with Mr. B and stated that he couldn't handle it any more. The complainant stated that he also told Ms. S on reception that he couldn't take any more as he left the building.
4.5.2 The complainant advised the hearing that he knew at this point that he was not going to get any support from management as Mr. R had been in the kitchen at the start of the incident and had walked out and ignored the situation. In addition the complainant had heard Mr. R's referring to the complainant and a Polish employee as "f**king dopes", so he saw no point in approaching him again. The complainant advised the hearing that he did not return to work following this incident and stated that the respondent made no attempt to contact him after that, other than to send him an unsolicited reference on 12th of November, 2010.
4.5.3 The complainant at the hearing presented as a credible witness who gave his evidence in a clear manner, in response to the Tribunal's direct enquiries. The complainant's evidence was consistent with the information provided by him prior to the hearing. In light of the foregoing I accept the complainant's version of events in this matter. As the respondent was not at the hearing, this evidence went unrebutted.
Section 2(1) of the Acts defines dismissal as including:
"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract, without giving such notice, or it was or would have been reasonable for the employee to do so ...."
4.5.4 In An Employer v A Worker (Mr. O No.2)2 the Labour Court comprehensively addressed the issue of constructive dismissal under employment equality legislation. It noted that the above definition was practically the same as the definition of "dismissal" contained in the unfair dismissals legislation and held that the tests for constructive dismissal developed under that legislation - the "contract" test and the "reasonableness" test - were applicable tests under the Employment Equality Acts.
4.5.5 The "contract" test is where the employee argues "entitlement" to terminate the contract. The "reasonableness" test applies where the employee asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.
4.5.6 The contract test was described by Lord Denning MR in Western Excavating (ECC) Ltd v Sharp  IRLR 332 as follows:
"If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance" This passage describes a situation in which an employer commits a repudiatory breach of contract. In such circumstances, the employee is entitled to accept the repudiation and consider him or herself dismissed. However, not every breach of contract will give rise to repudiation. It must be a breach of an essential term, which goes to the root of the contract. This is a stringent test, which is often difficult to invoke successfully.
4.5.7 There is, however, the additional reasonableness test, which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach going to the root of the contract but could, nonetheless, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation, but is so unreasonable as to justify the employee in resigning there and then. Finally, the authorities indicate that "what is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case."
4.5.8 Given the circumstances of the present case I am satisfied that the reasonableness test is most appropriate. It requires the complainant to satisfy the Tribunal that the behaviour of the respondent was so unreasonable that he could not fairly be expected to put up with it any longer and he was therefore entitled to resign from its employment. The employer in this case failed to take any action when it was brought to his attention, on a number of occasions, that the complainant was being harassed by another member of staff. The employer in this case was in no doubt that such harassment was taking place as the complainant has given evidence, that he made representations regarding this harassment, to his supervisor and to both General Managers, on several occasions. Furthermore it is the complainant's evidence that, the General Manager, Mr. R was in fact present in the kitchen while the complainant was being subjected to verbal abuse and name calling and instead of taking action turned and walked out of the kitchen. In addition, Mr. R instead of taking action to prevent the harassment of the complainant actually compounded the harassment by referring to the complainant as a "f**king dope".
4.5.9 The corpus of case law developed on this point requires the complainant, before taking the unilateral step of terminating his employment, to give the respondent the opportunity to address his grievance or complaint. Whilst the respondent had no formal bullying or harassment policy in place it did have a Statement of terms of Employment which indicates that "discrimination as set out in the Employment Equality Act 1998" constitutes gross misconduct for which an employee may ultimately be dismissed without notice. In addition, this statement of Terms of Employment sets out the Grievance Procedure to be followed by an employee with a grievance. The complainant in this case invoked the grievance procedure by raising his grievance with his supervisor and then with management on a number of occasions. The respondent took no action to prevent the further harassment of the complainant but instead compounded it through the General Manager's own actions. Despite the continuing harassment and despite the inaction of management to the matters raised by the complainant, the complainant continued to work. I am thus satisfied that the complainant in this case acted reasonably by continuing to attend work following his complaints of harassment on race grounds thus providing the respondent with an opportunity to address the issue. The respondent's failure to take action on foot of a grievance raised by the complainant, and their failure to prevent the harassment of the complainant on grounds of his race, despite several complaints and despite witnessing such harassment, was unreasonable in the circumstances.
4.5.10 As outlined earlier in this decision, the complainant in this instance made several representations to the respondent about the fact that he was being bullied and harassed in the workplace, on grounds of his race, and he still continued to attend for work despite such treatment. It was not until the complainant felt physically threatened in an incident where he was being subjected to verbal abuse on grounds of his race, and which was in part witnessed by management, that the complainant decided that he "couldn't take anymore".
4.5.11 In light of the foregoing I am satisfied that the complainant was constructively dismissed from his employment. Now I must examine whether or not the dismissal and the events surrounding his dismissal amount to discrimination on the basis of his race.
4.5.12 It is submitted that the respondent did not treat Irish staff in a similar manner. The complainant has given evidence that Mr. B did not treat Irish staff in the same way as the complainant, and was not abusive towards them. The complainant has given evidence that Mr. B called him "F**king Foreigner" on several occasions and "F**king p***k" thus making reference to the fact that the complainant was of a different nationality. The complainant submitted that each time he complained to management about this harassment he was told that "he would see what he could do". The complainant has given evidence that General Manager, Mr. R did nothing to prevent the harassment of the complainant but that he contributed to it by referring to the complainant as a "f**king dope" as well as turning and walking out of the kitchen when Mr. B was being racially abusive towards the complainant. In addition the complainant, despite management not taking any action on foot of his grievance, continued to attend for work and continued to work with a colleague who was subjecting him to harassment on the grounds of his race.
4.5.13 It is settled law of this Tribunal and the Labour Court that the prohibition of discrimination means there shall be no discrimination whatsoever on the ground of race. In Wong v Igen Ltd and others Peter Gibson LJ considered the scope which should be ascribed to the notion of "no discrimination whatsoever". He held that if the protected factor or characteristic is more than a "trivial influence" in the impugned decision, a claim of discrimination will have been made out.
4.5.14 Given the evidence adduced in this case, I am satisfied that Irish employees were not subjected to the same harassment as the complainant was and that this harassment was related to the complainant's race. In addition I am satisfied that an Irish employee would not have been treated in the same way as the complainant in relation to the non pursuit of his grievance by management and in relation to management's inaction on foot of his numerous complaints of harassment. The harassment suffered by the complainant was in fact compounded by management following his complaint to Mr. R where the complainant heard Mr. R refer to him as a "f**king dope". In this instance the respondent took advantage of the fact that the complainant was a non Irish worker and I am satisfied that this behaviour on the part of the respondent amounts to more than a "trivial influence" in relation to the complainant's race.
4.5.15 Accordingly, I am satisfied that the complainant has established facts from which it may be inferred that the events surrounding his dismissal amount to discrimination on the basis of his race. The complainant has established a prima facie case and, accordingly, the onus shifts onto the respondent to rebut the inference of discrimination raised. As the respondent did not attend the hearing, the inference of discrimination raised by the complainant has not been rebutted and the complainant succeeds in his complaint.
5. DECISION OF THE EQUALITY OFFICER.
5.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -
(i) the complainant has established the facts from which it may be presumed that the respondent subjected him to harassment contrary to Section 14 A of the Acts
(iii) the complainant was discriminated against by the respondent when he was subjected to constructive discriminatory dismissal on the race ground
5.2 In making my award, I am mindful of the fact that the complainant made several complaints to management about the harassment and that it was managements failure to take any action to prevent or reverse such harassment which contributed to the complainants constructive discriminatory dismissal. In addition I must ensure that the award is effective, proportionate and dissuasive. Having regard to the circumstances of the instant case and the rate of remuneration which the complainant was in receipt of at the relevant time, I consider an award of compensation in the sum of €20,000 to be just and equitable.
5.3 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2011 I hereby order that the respondent pay the complainant that sum by way of compensation for the distress suffered by him as a result of the harassment and ensuing constructive discriminatory dismissal. This award is not in the form of remuneration and is therefore not subject to the PAYE/PRSI Code.
26 August, 2013
1 Labour Court Determination No. EDA0917