The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998-2011
DECISION NO. DEC-E2013-191
(Represented by Mr Patrick O’Riordan B.L.
Instructed by Healy O’Connor Solicitors)
University College Cork
(Represented by Mr Eoin Clifford B.L. instructed by Ronan Daly Jermyn Solicitors)
File reference: EE/2011/777
Date of issue:18 December 2013
1.1. The case concerns a claim by Dr Konstantin Doulamis (hereinafter referred to as ‘the complainant’) that he was subject of discrimination by University College Cork (hereinafter referred to as ‘the Respondent’) on the grounds of race contrary to section 6 (2) (h) of the of the Employment Equality Acts (hereinafter referred to as ‘the Acts’) in terms of harassment in accordance with section 14 of the Acts, and conditions of employment in accordance with section 8 of the Acts. The complainant also claims that he was victimised by the respondent in terms of Section 74(2) of the Acts.
1.2. The complainant referred his claim to the Director of the Equality Tribunal on 23 November 2011 under the Acts. On 27 September 2013, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Peter Healy, 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. Submissions were received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 14 October 2013.
2. SUMMARY OF COMPLAINANT'S CASE
2.1. The complainant who was an academic in the Classics Department of UCC submits that he was subject to persistent harassment in the form of racist remarks and other offensive comments about his ethnic and religious background from Dr A, who was head of his department, for an extended period of time. The complainant submitted a list of detailed incidents as evidence of this harassment. These incidents are set out below.
2.2. Incident A. In his written submission the complaint submits that Dr A of the Department barged into his office without knocking and said “ Why do you call it Orthodox Easter when you should be calling it heretic Easter?” The complaint says that Dr A then started laughing and shut the door.
2.3. Incident B. The complainant submits that on one occasion when standing in the University grounds that Dr A approached him and started talking to him about the presence of Protestant English nationals at UCC in a manner that he found most offensive. The complaint says that at some point Dr A made the following remark, “ This University is full of English pagans. They all shop in the English market and dine at Café Paradiso.”
2.4. Incident C. The complainant submits that Dr A entered the complainants’ office uninvited on many occasions. On one such incident in February 2009, the complainant submits Dr A entered his office, started looking around inquisitively and upon noticing a framed picture on the floor remarked, “ This had better be a picture of the Pope”
2.5. Incident D. The complainant submits that on numerous occasions he caught Dr A staring at a gold chain with a small cross that the complainant usually wears around his neck.
2.6. Incident E. The complainant submits that Dr A was staring at a calendar with small icons of saints that he kept in his office.
2.7. Incident F. The complainant submits that in March 2009, Dr A remarked in the presence and one other colleague. “The climate in Greece is hot, just like in every third world country.
2.8. Incident G. The complainant submits that on at least three occasions remarked that another colleague “ was not really Irish just look at him”
2.9. Incident H. The complainant submits that that in January 2009, Dr A approached him and said “ Greece is about four decades behind, it’s like Belfast in the 80s.
2.10. Incident I. The complainant submits that in November 2008, Dr A remarked that there were to many foreigners in the University and that the University should really be employing Irish people who are going to be here for ever and that Irish Jobs are for Irish people.
2.11. Incindent J. In the course of the same conversation as at incident I. above, . The complainant submits that Dr A remarked in regard to that “ I can probably bully the guy into doing more work, but he already has a lot on his plate.”
2.12. Incident K. The complainant submits that on numerous occasions that Dr A has remarked that “ I have absolutely no interest in anything modern Greek or in Ancient Greek and Roman literature and history before Christianity”. The complaint submits he was offended by this comment as a classicist and as a Greek national.
2.13. Incident L. The complainant submits that in the course of a discussion with Dr A regarding the complainants probationary period that Dr A remarked “ I’m at UCC because I’m Irish and I’m in my own country. You’re here because you cannot get a job anywhere else.”
2.14. The complainant submits that the incidents A to E above constitute offensive remarks about religious beliefs and that the incidents F to L constitute racist remarks. He submits that these incidents combined with other personal insults and offensive behaviour have severely damaged his self-esteem, self-confidence and ability to function. He further states that has caused him an enormous amount of stress and left him feeling intimidated, humiliated and distraught.
2.15. The complainant submits that the complaint procedures at UCC were not fit for purpose. He says that he was victimised under the Acts because be raised his concerns with his employer who dissuaded him from lodging a formal complaint.
3. SUMMARY OF RESPONDENT’S CASE
3.1 The respondent rejects all aspects of the complaint. They submit that UCC is a university very proud of its’ diversity in relation to nationalities and religions.
3.2 The respondent states that UCC has developed extensive policies to ensure equal opportunities are available to potential and existing staff. The HR department was made aware of a poor working relationship between the complainant and Dr A and were working to resolve the problem.
3.3 They submit that most of the cited incidents are outside the six month time set out by the Acts. They also submit that the allegations set out by the complainant are all separate incidents and cannot be said to be connected events.
3.4 Incident A. Dr A has an interest Greek Orthodox religion and has had an article published in the Greek Orthodox Review. Dr A submits that he recalls that the complainant had said he was going home for Easter and that led him to remark that as in the middle ages, as Easter was two weeks previous, that the complainant would have been called a heretic. The respondent emphasises that Dr A has an on-going research interest in this area and the respondent submitted relevant documentation in this regard. The respondent submits that remarks made by Dr A about Easter should be seen in this context.
3.5 Incident B. The respondent points out that Dr A holds a U.K. passport and his father and grandfather were English. They submit that Dr A has never had an Irish Passport and is of a mixed Catholic-Methodist background. They submit that it was in this context that Dr A may recall saying something ironic about UCC being full of English people. The respondent submits that this comment would have been directed more at Dr A himself then at the complainant.
3.6 Incident C. The respondent completely denies this allegation.
3.7 Incident D. The respondent submits that Dr A is unaware of the cross in question.
3.8 Incident E. They state that Dr A looked at the calendar because of his research interest in major saints of the 4th century.
3.9 Incident F. The respondent submits that Dr A recalls a conversation he had with the complainant about how a former student of both was getting on during a visit to Greece. Dr A had received an e-mail and was relating the detail of that E-mail to the complainant. The respondent emphasises that at no time did Dr A himself compare Greece to a third world county. The e-mail in question was provided for consideration of the Tribunal.
3.10 Incident G. This allegation is denied in full by the respondent.
3.11 Incident H. The respondent submits that Dr A had received e-mails from students who were in Greece at that time and had experienced riots. They emphasise that at no time did Dr A say Greece was backwards in any way.
3.12 Incident I. The responded denies the allegation in full.
3.13 Incident J. The responded denies the allegation in full.
3.14 Incident K. The respondent submits that the complainants’ allegation is a misrepresentation of a simple statement by Dr A when talking about his areas of interest in regards to research. The respondent submits that the complainants’ allegation arises from a misguided belief that Dr As’ interests were being imposed on him and others in the Department. They state that this belief may be due to the fact that Dr A made a decision to discontinue Greek related subjects due to falling student numbers.
3.15 Incident L. The respondent submits that Dr A may have told the complainant that he was free to move on if he was unhappy.
4. FINDINGS & CONCLUSION
4.1. I have to decide if the complainant was harassed and victimised on the ground of race. In reaching my decisions 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.
4.2. Section 85A of the Act 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.
4.3. Section 14 of the Employment equality act sets out the conditions under which harassment in relation to access to employment can take place. It provides as follows: -
(7) (a) In this section—
(i) references to harassment are to any form of unwanted
conduct related to any of the discriminatory grounds,
(ii) references to ‘‘sexual harassment’’ are to any form of
unwanted verbal, non-verbal or physical conduct of
a sexual nature, 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.
(b) Without prejudice to the generality of paragraph (a), 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. In this case almost all of the alleged harassment relates to the spoken word and only two of the reported incidents had one witness. The complaint maintains that he has been subject to racist remarks and other offensive comments about his religion and national background. As evidence of this he has presented details a series of incidents. While he said that there were other incidents he was unable to present any detail or other evidence. I must therefore consider that the incidents presented are the most serious ones in the view of the complainant and decide if they individually or as a whole constitute harassment as set out in the Acts. At the hearing each of this incidents were examined in detail. No documentary evidence was presented by the complainant to support his account of these incidents.
4.5. A witness from the HR department of UCC gave evidence that the working relationship between the two academics had eventually broken down to the point where they were not talking on a day to day basis and that there were a number of heated arguments. The complainant gave evidence that had been attempting to avoid any contact with Dr A. I must consider accounts of the incidents in question in this context.
4.6. Incident A. I fully accept the respondents’ explanation in this instance. I am satisfied the comments made by Dr A were no more than an attempt to engage in conversation with a colleague in an area which was of interest to him professionally. I find that the complainant taking offence at this remark to be unreasonable as at the hearing he admitted to the wider context of the conversation related by Dr A. The failure of the complainant to acknowledge at the hearing that two academics working in the classics department of a University would discuss aspects of religion in a historical perspective is to me diminishes the credibility of the complainant regarding this incident. I find that this incident is not linked to the ground of race.
4.7. Incident B. I fully accept the explanation of the respondent that a comment of this nature would have been made in an ironic and self-deprecating manner. Dr A is English and that this was known to others. I find it again unreasonable on the part of the complainant that he, as a Greek and in this context, should take offense to such a remark. At the hearing the complaint stated that he took offence as it was known he was educated in England. I find this particular explanation (rather than being offended at the mere raising of nationality as a discussion topic) to be evidence of an over-sensitivity to remarks by Dr A.
4.8. Incident C. I accept the respondents assertion that this did not happen or that it may have been a misunderstanding on the part of the complainant.
4.9. Incident D. I accept the respondents’ assertion that he was unaware of the cross.
4.10. Incident E. I fully accept Dr As explanation of his reasons for examining the calendar. I accept that this was an instance of an academic with an interest in byzantine art examining a calendar of religious iconography. I find that to offer this as an instance of harassment is not reasonable and I find that it is not linked to the ground of race.
4.11. Incident F. I fully accept Dr As, explanation of a conversation he had with the complainant about how a former student of both was getting on during a visit to Greece. I again prefer Dr As’ account of the incident and having examined the E-mail from the student it’s evident that Dr A was quite tactful and moderate when relating the experiences of the student to the complainant.
4.12. Incident G. Given the manner in which the complainant has failed to apply the proper context or misinterpreted other incidents, I find his assertion not to be credible. In contrast, given the rational and reasonable nature of Dr As evidence as a whole, I believe his statement that he would not make such a comment.
4.13. Incident H. As with incident F . I fully accept Dr As explanation that the comments were made in the context of a conversation he had with the complainant about how a former student of both was getting on during a visit to Greece. Having questioned the complaint I believe he has taken comments out of context and that his account is a misrepresentation.
4.14. Incident I and J. I accept the respondents assertion that these incidents did not occur or that it may have been a misunderstanding on the part of the complainant. Again in the context of the alleged remarks I note that Dr A is not Irish.
4.15. Incident K. I accept the explanation that this comment was made at an administrative meeting and was a clear statement of his academic interests as a late Roman historian. Having heard the views of the complainant at the hearing it’s clear that the complaint does have an issue with Dr A personally and a legitimate decision to discontinue Greek related subjects due to falling student numbers. In relation to this incident, I find the fact that the complaint in his written submission has omitted the context of the remarks, which he later accepts at the hearing, to be unreasonable.
4.16. Incident L. Based on the direct evidence of both parties I again prefer Dr As’ version of events. I accept that even during a heated exchange with a colleague Dr A did not resort to the crude comments that the complainant has chosen to attribute to him. Also it must be noted that Dr A is not an Irish citizen.
4.17. In regard to the case of victimisation, the complainant claims that he was treated less favourable because he raised his concerns with his employer. There is no evidence that the complaint ever raised the issue of harassment on the ground of race during any engagement with his employer. In all correspondence with his employer regarding the difficulties he was having with Dr A there is no mention of such harassment.
4.18. At no point did the complainant make Dr A aware that the above incidents were making him uncomfortable.
4.19. Having examined all of the incidents in detail I find no evidence of harassment or of any unwanted behaviour linked to ground of race.
4.20. It is clear from the correspondence provided that the complaint never raised the issue of discrimination or harassment on the ground of race with his employer. I am satisfied that respondent was unaware of the complainants allegations in this regard and could not have subjected him to victimisation in terms of the Acts.
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 2011. I find that
(i) the complainant was not subject to discrimination or harassment on the race ground and his conditions of employment were not affected,
(ii) the complainant was not subject to victimisation in terms of section 74 (2) of the Employment Equality Acts.
18 December 2013