Employment Equality Acts 2000 to 2011
DECISION NO: DEC-E2013-167
Attila Marton Ajtai
(Represented by Ernest Cantillon & Co. Solicitors)
McDonnell Brothers Agricultural Suppliers Ltd.
(Represented by James Walsh and Son Solicitors)
Date of Issue: 16 December 2013
File No. EE/2011/635
Keywords: Employment Equality Acts - discriminatory treatment - race - working conditions - harassment - prima facie case - victimisation
1. Dispute and delegation
1.1 This dispute concerns a claim by Mr. Attila Marton Ajtai (hereafter "the complainant") that he was subjected to discriminatory treatment in his working conditions, in that he was harassed by work colleagues on grounds of race during the course of his employment with McDonnell Brothers Agricultural Supplier Ltd. (hereafter "the respondent"). He is also alleging that when he complained about the harassment, he was subjected to victimisation by the respondent.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 12 September 2011 under the Employment Equality Acts. On 27 September 2013, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 6 November 2013.
2. Summary of Complainant’s case
2.1 The complainant was employed as a general worker on 18 February 2008 by the respondent company which is involved in the supply of agricultural equipment and feed. The complainant is a Hungarian national of the Roma community. The complainant states that during the course of his employment and in particular over the course of 2010/2011, two Polish co-workers M and L engaged in a campaign of harassment against him. Over a number of months in 2010, racial slurs were made against the complainant and in particular M would comment “white power” when passing or working with the complainant and raise his fist in the Nazi salute. L also continually tried to boss the complainant and give him orders. The harassment continued and L and M made frequent racial slurs to the complainant. The complainant would try to ignore the comments and also on occasions pleaded with his colleagues to cease making such slurs. Matters deteriorated further over the course of 2010 and the complainant was tormented in work with continuous harassment.
2.2 On one occasion while he was eating his lunch, he received slaps to the nape of the neck by L and M. In addition, on three occasions in a particular week, the complainant tasted soap in his sandwiches and he believes that L and M put soap in his food. These incidents were submitted to the yard supervisor, N but nothing was done about the complaints. The complainant was on holidays during the month of November and M was on holidays in December 2010 and as a result, the complainant had some respite from the harassment. However, when M returned, he started making the “while power” comments to the complainant in passing and when working beside him. On 28 January 2011, a dispute arose in respect of the microwave. The complainant had heated some food in the microwave and then took his food out and unplugged the microwave. L came in and attacked the complainant for having unplugged the microwave. Words were exchanged between the two and L said to the complainant “if you are not happy here, you go downstairs and eat”. The complainant made a further complainant to his supervisor N but nothing was done.
2.3 The complainant became sick suffering from stress and made a verbal complaint to his manager, D around the 29 January. The complainant understands that later that day on 29 January, D spoke to the alleged perpetrators M & L, however this was never formally confirmed by his employer. About an hour after the complainant observed D speaking to M & L, M approached the complainant and stated to him “do you think we are racist ? In England, the niggers go on the bus and push the old white women, they say white bitch”. While saying these words to the complainant, M pushed the complainant with his left arm and shoved him. The complainant pleaded with him to desist such behaviour. The complainant felt very isolated after making the complaint to management. The complainant began to suffer from extreme stress and became anxious and terrified that L and M would cause him physical harm. Given the stress of the situation at the apathy on behalf of D (managing director) in dealing with the complaints, the complainant sought advice from the Citizens Advice Centre. He was furnished with information regarding bullying and harassment and grievance procedures and he gave these documents to D. Later that day, D spoke to the complainant and was irate that the complainant had attended the Citizens Advice Centre.
2.4 On 4 February 2011, D requested the complainant to put his complaints in writing and he did so and handed it to D on 8 February 2011. Having heard nothing further, the complainant approached D on 10 February and asked if an investigation had been instigated at which point D stated that he was “talking with three persons and they told him he doesn’t have to do it”. The complainant was anxious as to the lack of progress since submitting his complaint in writing and attended at the local Garda station to make a formal complaint of harassment against M & L. On 18 February, D approached the complainant in the yard in front of other employees and began to shout at the complainant. He told the complainant that he would not be doing any paperwork and if it did not suit him the complainant could go and find another job. He also shouted at him for going to the Citizens Advice Centre and the Gardai.
2.5 At this stage, the complainant became very stressed, he attempted to reason with D and spoke to him on 10 March 2011 but to no avail. D stated to him “I have to protect my business”. The complainant attended his GP on 11 March and was certified as unfit for work due to stress. The complainant attended with solicitors who wrote to his employer on 15 March seeking an immediate investigation into the complaints. A response was received stating that an investigation was initiated and the employer could find no wrong-doing on the part of the complainant’s co-workers. The complainant alleges that he was discriminated on grounds of his race and his employer failed to protect him. The complainant is also alleging that he was subjected to victimisation after making a complaint, in that, he was ostracised by his colleagues and other employees would not use the canteen and this resulted in further isolation of him. The complainant submits that the respondent had no policies or procedures in place in respect of bullying/harassment in the workplace. The complainant submits ultimately, the failure of the respondent to initiate a formal investigation and deal with the complaints resulted in his constructive dismissal from the respondent company. The complainant also referred a complaint under the Unfair Dismissals Act.
3. Summary of Respondent’s case
3.1 The respondent states that its company is in the business of purchase and supply of agricultural products and supplies. It submits that it has a number of non-Irish nationals in its employment. The respondent contends that it was not aware of any harassment or bullying of the complainant by L and M. The respondent contends that the incident regarding the microwave has nothing to do with equality legislation but appears to have triggered a verbal complaint by the complaint to D in or about the 29 January, 2011. D did state that at one stage early in the complainant’s employment, there was some conflict over persons giving the orders regarding the work but that D said to the complainant “you take your orders from me”. The respondent stated that generally L is a bit bossy and tends to boss his co-workers around. D submits that as soon as he received the complaint on 29 January 2011, he spoke immediately to M and L and explained the seriousness of the allegations. The respondent states that the complainant subsequently attended the Citizens Advice Centre and presented D with a document on bullying and harassment.
3.2 The respondent contends that in order to assist it in investigating the claims, D requested the complainant to submit a written account of the complaints so that D could consider how to approach the complaint. The complainant submitted a written account of his complaints to D on 8 February. On 10 February, the complainant asked D if an investigation had been initiated at which time the respondent submits it was in the course of structuring its investigation. On 11 February the respondent contends that D commenced his investigation into the complaints and formally interviewed M & L. The respondent submits that there was a full and clear denial of any misbehaviour on the part of M & L but as an interim measure, M and L and the complainant were advised to stay out of each others way and to use separate canteens which were available to them. D states that he advised the complainant of the outcome of his investigation and requested the complainant to revert directly to him immediately if another incident occurred. The respondent refutes the incident in which D is alleged to have shouted at the complainant for attending the Citizens Advice Centre and the Gardaí to seek advice.
3.3 The respondent states that D was unaware of any instance of harassment that allegedly occurred about an hour after he initially spoke with L & M. D states that this was only brought to his attention when he requested the complainant to put his complaints down in writing to him on 8 February 2011. The respondent states M completely refutes that such an incident occurred. The respondent states that the alleged acts of harassment did not happen in the course of the employment and that the respondent cannot be vicariously liable for alleged acts he knew nothing about. In relation to the allegation of victimisation, the respondent submits that the complainant’s colleagues did not want to associate with the complainant because he had gone to the Gardaí and made formal statements. The respondent submits that D spoke to his employees and requested them to have their lunches in the canteen and not in their cars but he could not make them attend at the canteen. The respondent submits that it tried to deal with the issues in a low-key manner and tried to get the employees back on side and that is why initially D did not instigate a formal procedure.
4. Conclusions of Equality Officer
4.1.I have considered all the evidence both written and oral presented to me. 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 in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a recent Determination the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows –
"Section 85A of the Acts provides 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. 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 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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”
4.2 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.
4.3 The complainant stated that he was subjected to severe harassment by his co- workers L and M. Details of instances of the harassment were given to the Tribunal and the nature of the racial abuse involving elements of Nazism was severe in nature and appeared to be ongoing for some time. The complainant stated that he had reported some incidents to N (yard supervisor) including the allegations of his two co-workers putting soap in his sandwiches and getting slaps to the nape of his neck by them; however the respondent stated no such incidents were ever raised with management. Having taken witness testimony from all parties, I am satisfied that the complainant was subjected to racial slurs and degrading and humiliating treatment by his two co-workers such as making “white power” comments when passing the complainant and raising their fists in the Nazi salute. The complainant also alleges that they said to him “arbeit mac frei” on numerous occasions. The complainant had put up with the abuse for some time and then matters came to a head and he became very stressed and went to management about the harassment. I found the complainant to be a cogent witness and his testimony was consistent with the facts as presented in the case.
4.4 Where a person suffers unlawful harassment in the course of his/her employer employment by a fellow employee, the Acts provide that the employer is fixed with liability for the harassment. However, an employer can avoid liability by making out the defence provided for at section 15 (3) ‘that the employer took such steps as were reasonably practicable to prevent the employee (a) from doing that act, or (b) from doing in the course of his or her employment acts of that description. I find that when the complainant reported the harassment to management of the respondent company, it took a very informal approach and although the complainant requested a formal investigation be carried out, it was the complainant, at a later stage, who was requested to formally put down in writing an account and specific details of the harassment and bullying. However management appeared to take an informal approach to dealing with the complaints, in that, no formal notes were kept, no outcome of the enquiries, no sanctions given etc.
4.5 I am of the view given the serious nature of the racial abuse, a comprehensive thorough investigation was required. However, on examination of all the evidence, I am satisfied, that the respondent had no policy or procedure in the workplace to deal with an allegation of harassment. Management took a very informal approach to the complaints and spoke to the two co-workers in question but as they completely denied the harassment, no comprehensive action was taken. In addition, the measure taken by D (managing director) of instructing one of the alleged perpetrators to frequent the canteen not used by the complainant had the effect of isolating the complainant.
4.6 On hearing the testimony of various individuals on the day of the hearing, on balance, I prefer the testimony of the complainant and found him to be clear in his evidence and more convincing. The complainant stated that about an hour after he observed D speaking to L and M apparently about the abuse, M approached the complainant and stated to him “do you think we are racist ? In England, the niggers go on the bus and push the old white women, they say white bitch”. The complainant alleges that while saying these words to him, M pushed and shoved him with his left arm. The complainant stated that he did not report this to D as he was not present on the yard that day and he also felt D would not believe him. The complainant also alleges that D advised him “if he did not desist from pursuing his complaint of racism, he should seek employment elsewhere”. I am satisfied given the witness testimony I took on the day of the hearing that this comment was made by D to the complainant.
4.7 Given the sequence of events, I am satisfied that due to the informal approach taken by D in dealing with the complaints, despite the serious nature of the abuse and the fact the complainant continually requested that a formal investigation be carried out; the complainant felt that he had no other option but to seek advice from third parties including attending at the Citizens Advice Centre and the local Garda station. I am satisfied given the serious nature of the racial abuse and the substantial effect it was having on his health, as a last resort in order to find some way of effectively managing the situation, he needed to seek out the advice of third parties in order to deal with the matter. In the case of A Worker v A Hotel  E.L.R. 72, the Labour Court stated that an employer is obliged to take such steps as are reasonably practical to prevent harassment in the workplace, it is not sufficient to show that measures were taken to prevent a reoccurrence of harassment after it has taken place. The Court held that this approach requires the employer to show, at a minimum, that a clear anti-harassment or dignity at work policy was in place before the harassment occurred and that the policy was effectively communicated to all employees. Moreover, it was the Court’s opinion that management personnel should be trained to deal with incidents of harassment and to recognise its manifestations. Having examined all the evidence in relation to this complaint, I find that the complainant has established facts from which it may be inferred that he was subjected to harassment by his two co-workers on the basis of his race and the respondent cannot avail of the defence at section 15 (3) of the Acts as it had no policy/procedure in place to deal with a complaint of harassment and it did not take clear definitive action to deal with the complaint.
4.8 The complainant has also alleged that he was subjected to victimisation by the respondent for making a complaint about the harassment. In relation to the issue of victimisation, Section 74 (2) states:
…..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,
(b) any proceedings by a complainant, …….”
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 Acts 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. It is clear from the wording of victimisation in the Employment Equality Acts that a complaint of victimisation must relate to a complaint made under the Act and not a general complaint of victimisation.
4.9 The complainant is alleging that the respondent victimised him as a result of his complaint to management about the harassment, in that, he was isolated and ostracised by his colleagues. Having taken testimony of the parties, I am of the view that the other employees were aware that the complainant had gone to third parties including the Gardaí and made an official complaint of assault about his two co-workers and as a consequence, they were wary of attending at the canteen and associating with the complainant for that reason. I note that D did request employees to attend the canteen but they insisted on having their lunch breaks in their cars and he was not in a position to force them to attend at the canteen. Overall having assessed all of the evidence in relation to the claim of victimisation, I am satisfied that the complainant has failed to establish a prima facie case of victimisation against the respondent under the Acts.
5. Decision of the Equality Officer
5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that
(i) the complainant was discriminated against by the respondent in relation to harassment on grounds of race pursuant to section 6(2) of the Acts and contrary to section 8(1) of the Acts.
(ii) the complainant was not subjected to victimisation by the respondent in terms of section 74(2) of the Acts.
In accordance with my powers under section 82 of the Employment Equality Acts, 1998 – 2011, I hereby order that the respondent pay the complainant €20,000 by way of compensation for the distress suffered by him as a result of the harassment. This award is not in the form of remuneration and is therefore not subject to the PAYE/PRSI Code.
16 December, 2013
 Arturs Valpeters v Melbury Developments  21 E.L.R. 64.