Decision No: DEC-E/2013/199
(Represented by Diarmuid Murphy BL
Instructed by Maguire McClafferty – Solicitors)
Sheldon Park Hotel
(Represented by Michael McNamee BL
Instructed by DAS Group)
File No: EE/2011/004
Date of issue: 30 December, 2013
Headnotes: Employment Equality Acts 1998- 2008 - sections 6 and 14A – harassment – race- prima facie case – defence available to employer.
This dispute involves a claim by Ms. Jenita Nayaranasami (“the complainant”) that she was (i) discriminated against by the Sheldon Park Hotel (“the respondent”) on grounds of race, in terms of section 6(2) of the Employment Equality Acts 1998 - 2008 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 -2008 and contrary to section 14A of those Acts.
2.1 The complainant, who is Mauritian and dark skinned, commenced employment with the respondent as a Waitress in March, 2008. She states that from the outset of her employment she was harassed by the respondent on grounds of race - nationality and colour. She further states that when she brought these matters to the attention of Management it did not take appropriate action to address them. The respondent rejects the complainant’s assertions. It states that it had both Dignity at Work and Grievance Policies in operation at that time and that the complainant never invoked same other than in relation to the alleged incident on 15 October, 2010. The respondent adds that this alleged incident was investigated thoroughly by the respondent’s General Manager and was not upheld. In essence therefore, the respondent seeks to rely on the defence available to it at section 14A(2) of the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on 5 January, 2011. In accordance with his powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 2 May, 2013, the date on which it was delegated to me. Submissions were filed and exchanged and a Hearing on the complaint took place on 24 May, 2013 and 16 September, 2013. At the outset of the Hearing on 24 May, 2013 the complainant’s representative withdrew the discriminatory treatment element of the complaint. The general practice of the Tribunal is to anonymise the identities of witnesses involved in the complaint. However, having regard to the judgement in Sheehan v Director of the Equality Tribunal I sought the parties’ views on applying the general practice in the instant case and they agreed to do so.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant states that she commenced employment with the respondent as a waitress in March, 2008 and confirms that she received a copy of the Staff Handbook. She states that from the outset of her employment she was subjected to a campaign of racial harassment by the Head Chef, Mr. A; the most recent alleged incident of which occurred on 15 October, 2010. The complainant states that she reported for duty that morning at around 6am and proceeded to make the necessary preparations for the breakfast service. She adds that the trolley she used for breakfast was missing and she went to the kitchen to see if it was there. The complainant adds that Mr. A approached her and told her there was a guest for early breakfast. She adds that she misunderstood Mr. A – she thought he was asking her a question – and she replied that the guest could have an early breakfast and went about looking for her trolley and returned to the Breakfast Room.
3.2 The complainant states that a short while later she was in the Breakfast Room when Mr. A came in to get some coffee. She adds that he asked her if the “early guest” had arrived for breakfast to which she replied “No, not yet”. She further adds that Mr. A then told her there were sixty-nine guests for breakfast that morning, to which she relied “okay”. The complainant adds that Mr. A became angry with her and screamed at her “What have I done to you that you are not talking to me?” to which she replied “I did reply to you but you didn’t hear me” and he then walked out of the room. The complainant states that a couple of minutes later the Night Porter (Mr. B) came into the Breakfast Room and told her that a woman had contacted the reception desk enquiring why her breakfast had not been delivered to her room as requested. She states that Mr. B then told her the guest would have a late breakfast and asked her to remember this, although he did not give her any other details. The complainant adds she assumed that the guest both Mr. A and Mr. B were taking about was the same person and she went about her work. She states that a short while later she was going into the kitchen when Mr. B asked her why she had not told him about the guest for the early breakfast. She adds that a short, terse discussion ensued between them and as she entered the kitchen she said to herself “how is it my fault?”. The complainant states that Mr. A overheard this and said “It’s always somebody’s fault, it’s all about the black community, don’t mind me saying that”. The complainant’s states that she was shocked by this comment and believed that Mr. A was blaming her for the error because she is dark skinned. It is submitted that this comment amounts to harassment of the complainant contrary to the Acts.
3.3 The complainant states that she continued with her work and a short time later the Breakfast Manager (Mr. C), who she states was her immediate Line Manager, approached her in the Breakfast Room and said to her “What happened about early breakfast this morning? Mr. A is complaining about you”. The complainant further states that she told him what had occurred and he (Mr. C) seemed shocked and told her he would talk with Mr. A about the matter. In the course of the Hearing the complainant stated that she did not inform Mr. C that she was making a formal complaint about Mr. A’s behaviour. The complainant adds that she was quite upset at this time and Mr. B entered the room and noticed this. She states that she informed him what was happened and he too was surprised. The complainant states that when breakfast was over Mr. C approached her and told her he had spoken to Mr. A and had informed him he had to apologise to the complainant, but that Mr. A had denied making the comment, stating that she (the complainant) had been in a bad mood all morning. She adds that shortly after this Mr. C approached her and told her that Mr. A had asked him what she had said and he (Mr. C) had told him he had not spoken with the complainant. The complainant states that she was surprised that her Line Manager had misrepresented the entire issue and she decided that she wished to report the matter to the General Manager (Ms. X) and advised him of this. She states that it was agreed that they would speak with Ms. X together later that day and she continued with her duties.
3.4 The complainant states that later that morning (before 10am) she was walking past the bar in the hotel when she noticed Mr. A and Ms. X talking. She further states that Ms. X called her over and asked her what had happened that morning and she informed her what had occurred. She adds she had to recount the events as Mr. A stood there, smiling and shaking his head. She states that she felt intimidated by this entire situation, adding that she should not have been subjected to such treatment – Ms. X should have spoken with her privately about the matter. The complainant adds that Ms. X told her she (Ms. X) would talk to her later and the complainant returned to work. The complainant adds that later that morning Mr. C spoke with her and advised that Ms. X had informed him she would deal with the matter on Monday and that they would never speak of the matter again. The complainant states that this meeting never took place because she commenced sick leave and did not resume work. She resigned on 3 March, 2011.
3.5 The complainant accepts that she received three letters from the respondent between 22 October, 2010 and 9 December, 2010 seeking her attendance at the respondent’s Occupational Physician, but was unable to say why she had not responded to same. The complainant states that she formally invoked the respondent’s Dignity at Work Policy in respect of alleged harassment by Mr. A by e-mail dated 27 December, 2010. She cannot recall if she received the respondent’s letter of 5 January, 2011 but did receive its letter of 18 January, 2011. She confirms that she failed to engage with the respondent’s attempts to investigate the matter as she was undergoing counselling at the time and just wanted to forget about it and let her solicitor deal with matters. The complainant confirms that she received the respondent’s letter of 7 March, 2011 but did not recall issuing an e-mail of 29 March, 2011 in response to same.
3.6 The complainant detailed a number of alleged incidents of harassment dating back to July, 2008. The first of these involves an instruction from Mr. A that she clean a sink. The complainant states that this was not part of her duties. She confirms that in doing so Mr. A did not use any inappropriate language about her colour or nationality. She adds that she reported this to her Supervisor at the time (Ms. E) who told her she should not have to wash it but no further action was taken by her. The second incident occurred in September/October, 2008. The complainant states she was instructed by Mr. A that there was a change in procedure and that she should submit dockets for breakfasts one at a time and record the time the order was taken from the guest on the docket. The complainant states that she was the only one required to do this. She confirms that in issuing this instruction Mr. A did not use any inappropriate language about her colour or nationality. She adds that she reported this to her Supervisor at the time (Ms. E) who told her to discontinue the practice and the new procedure lasted a day and it then reverted to the previous practice.
3.7 The complainant states that on an occasion in March or May, 2009 (she cannot be more specific) she enquired of Mr. A if a breakfast was ready for service and he responded using foul and abusive language. In the course of the Hearing she stated this language did not include any reference to her colour or nationality. She adds that she reported the matter immediately to Ms. E who assigned her to different duties. She cannot remember what these duties were but confirmed they were appropriate to her grade. She states that this was the only remedial action taken at the time. The complainant further states that in July or August, 2009 (she cannot be more specific) she was working in the kitchen towards the end of a lunch shift when she was instructed by Ms. A to go home. The complainant states that he was not her Line Manager and was not entitled to instruct her to do so and she raised the matter with her then Line Manager (Mr. Z), who instructed her to go home. She states Mr. Z took issue with Mr. A about this matter and Ms. X became involved, although the complainant was unable to say what the outcome of her involvement was. In the course of the Hearing the complainant confirmed that Mr. A did not use any inappropriate language about her colour or nationality when issuing the instruction to her.
3.8 The complainant states that she was rostered for a shift on the evening of 26 December, 2009. She adds that Mr. A instructed her to wash dirty dishes using the dishwasher as there was no kitchen porter on duty and Mr. A and a colleague (also a chef) went for a cigarette. The complainant states that no other member of the waiting staff was required to perform such duties and that all she was previously required to do was stack the dirty delph in a designated area. She confirms that Mr. A did not use any inappropriate language about her colour or nationality in issuing this instruction. The complainant further states that in January, 2010 Mr. A accused her of stealing €300 from the till when she was operating the cash register at lunchtime. The complainant adds that when she asked him what he meant he replied that others also did this. The complainant initially stated (in her submission) that she reported the matter to the Restaurant Manager (Mr. K) who informed her not to mind him she later stated that there was no Manager or Supervisor on duty so she spoke to a colleague (details supplied). The complainant states that she confronted Mr. A about this matter the next day and he used foul language and told her she could not take a joke. She confirms that Mr. A did not use any inappropriate language about her colour or nationality when speaking with her at any stage during this incident. She also confirms that she was unaware (as stated by Mr. A subsequently) this this was a standing joke amongst staff.
3.9 The complainant states that around the same time as the previous incident Mr. A reprimanded her for not putting out the appropriate sauces for service at the carvery lunch. She states that this was part of her normal duties and confirms that Mr. A did not use any inappropriate language about her colour or nationality when speaking with her. The complainant states that whilst working on a function in July or August, 2010 (she cannot be more specific) Mr. A again instructed her to go home as she was not needed. The complainant states that she raised the matter with Ms. E who instructed her to remain at work. The complainant states that no further action was taken against Mr. A. She confirms that Mr. A did not use any inappropriate language about her colour or nationality when speaking with her. The complainant states that shortly thereafter Mr. A reprimanded her for drinking a glass of water whilst working on a function. She confirms that Mr. A did not use any inappropriate language about her colour or nationality in doing and she did not report this matter.
3.10 The complainant states that she was on breakfast shift one morning in September, 2010 when Mr. A confronted her about a bucket of rubbish left in the kitchen. The complainant states that she told him she had not left the rubbish there and suggested that it was perhaps Mr. C who had left it there. The complainant states that Mr. A replied “You are a cheeky bitch! You know that. But I like you”. Finally, the complainant states that Mr. C informed her that Mr. A accused her of breaking an unacceptable amount of crockery at a Manager’s Meeting in early October, 2010. In the course of the Hearing the complainant stated that Mr. A was a very rude man and shouted at staff, including chefs, although this behaviour was primarily focussed on staff who were not Irish.
3.11 It is submitted on behalf of the complainant that the alleged incidents from July, 2008 until the final incident on 15 October, 2010 form a continuous campaign of harassment of the complainant by Mr. A and this is premised on her colour or nationality when considered in light of his comment on 15 October, 2010. It is further submitted that the respondent was aware of this behaviour, was under an obligation to investigation same and paid little more than a cursory interest in the complaints and did little if anything to rectify or improve the matter. It states that the letters of October--December, 2009 should have sought furtherance of the complaint instead of waiting for the complainant’s letter of complaint on 27 December, 2010. It is further submitted that in the circumstances the respondent cannot avail of the defence available to it at section 14A(2) of the Acts.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent rejects the complainant's assertions in their entirety. It states that the alleged events of 15 October, 2010 were thoroughly investigated by Ms. X in accordance with its Dignity at Work and Grievance Policies on receipt of the complainant’s formal complaint and they were not upheld. The respondent therefore relies on the defence available at section 14A(2) of the Employment Equality Acts, 1998-2008. It adds that the other alleged incidents were not formally reported and they are therefore out of time and are not properly before the Tribunal for investigation.
4.2 The respondent (Mr. A) rejects the assertion that he used the phrase attributed to him by the complainant on 15 October, 2010. He states that there was an issue with a guest requiring an early breakfast and he spoke with the complainant about this matter. He adds that the guest required a particular breakfast cereal and he asked the complainant to telephone Mr. C to purchase some on his way to work. He further states that the complainant was looking for her trolley and told him she would do it when she was ready to which he requested her to do it now. He adds that later the complainant delayed bringing a tray to a guest’s room which resulted in the breakfast being cold and he had to prepare a fresh one. Mr. A states that later that morning Mr. C spoke with him – he cannot recall what he said but remembers is what something to do “with a breakfast thing”. In the course of the Hearing Mr. A stated that he was unable to remember if Ms. X spoke with him about the matter that day. He further stated that he provided the statement to Ms. X (which was furnished to the Tribunal) about three months after the alleged incident at her request.
4.3 The respondent (Mr. A) denies that he ever used abusive language to the complainant. He states that as Head Chef he is Head of Department (and has been so since 2003) and he has worked with a variety of nationalities at all levels of staff and he has never had any difficulties with them. He accepts that the complainant (as well as other staff) had been asked to submit breakfast orders one at a time, to put the time on them and to deliver them to the kitchen as soon as possible. He adds that this initiative was introduced because there were significant delays in preparing guests’ breakfasts because too many orders arrived at the same time. He states that this only lasted a day or so before the practice discontinued. Mr. A states that all staff wash dishes and cannot recall the incidents related by the complainant. He further states that he is unable to recall the specific incidents where he instructed the complainant to go home although he accepted that as Head Chef he would instruct staff in that manner if he was of the view there was no need for them in order to keep staff costs down. Mr. A states that staff know each other well and have a joke with each other during the day. He adds that as part of this there is an ongoing joke as regards the till on the carvery lunches. He states that he would regularly say to staff that the takings are short and that they should throw the balance in themselves. He accepts that he may have made such a comment to the complainant but that it was made in jest. He cannot recall the complainant raising the issue with him or him apologising for same and does not consider the joke inappropriate. He adds the complainant was not the only one he would have made this comment to and rejects that it amounts to harassment of her on grounds of race contrary to the Acts. Mr. A denies that (i) he called the complainant a “cheeky bitch” and (ii) that he accused her of breaking an excessive amount of crockery at a Manager’s Meeting. He adds that as Head Chef he is responsible for keeping the kitchen area clean and tidy and he speaks with all staff in that regard. It is possible therefore, that he could have spoken with the complainant about some rubbish. Finally, he states that a practice had developed that breakfast staff used a sink for straining syrup from tinned fruit provided at breakfast. He adds that he had issues with this practice and did on occasion speak with staff about it and accepts this may have included the complainant.
4.4 Mr. C attended at the Hearing. He stated that he commenced work with the respondent in June, 2010 as Breakfast Manager and shares this role with Ms. E. He states that on the morning of 15 October, 2010 he arrived at work at 7am – he had received a call from the complainant some time earlier asking him to buy a particular breakfast cereal. He adds that he went to the kitchen where Mr. A informed him there had been an issue earlier that morning with early breakfast for a guest which had involved the complainant. Mr. C added that he spoke with the complainant immediately and asked what happened. He stated that she informed him Mr. A had made a racist comment to her, but she did not elaborate on the content or nature of the comment and he rejected the complainant’s assertion that she made reference to the “black community”. Mr. C stated that he spoke with Mr. A a short while later but cannot remember what was said. He further stated that later that morning the complainant informed him she wished to report the matter to Ms. X and he agreed to accompany her to report the matter. He added that he later saw the complainant, Mr. A and Ms. X talking in the bar. He stated that Ms. X spoke with him shortly thereafter and told him they would discuss the matter on Monday, but this meeting never took place because the complainant went on sick leave. Mr. C further stated that it was a standing joke amongst staff about the till being short and Mr. A would frequently make that comment. He added that Mr. A had spoken with him about rubbish in the kitchen and he (Mr. C) had requested all staff to keep the area clean. He denied making the comment to the complainant about crockery breakages but confirmed that the issue of breakages had been discussed at a Manager’s meeting.
4.5 Ms. E, also attended the Hearing. She stated that she has been employed by the respondent since 2000 and at the time of the alleged treatment of the complainant she was Breakfast Manager (with Mr. C) She stated that part of her role is to delegate jobs in the Breakfast Room and whilst she did not specifically remember the alleged incident where the complainant reported Mr. A for using foul language to her, if the complainant was upset for any reason it would be her (Ms. E’s) response to assign her different duties which avoided contact between him and the complainant. She stated that she recalled the issue with putting times etc. on breakfast dockets and stated that it applied to other staff as well as the complainant. She confirmed that the practice only lasted one day and reverted to the old way. She stated that when things were busy waiting staff washed delph – she had performed this task herself – although it was not very often. She also stated that Mr. A had raised an issue with her about breakfast staff using a particular sink to strain tinned fruit provided at breakfast. She added that she never witnessed Mr. A behaving in the manner alleged by the complainant. Mr. B also attended the Hearing. He stated that he stood over the statement he gave Ms. X on 16 October, 2010. He added that he could not recall any incident in the Breakfast Room on the day in question.
4.6 Ms. X attended at the Hearing. She stated that she became aware of the incident between the complainant and Mr. A on 15 October, 2010 - shortly after she arrived into work that morning. She added that she spoke with Mr. A later that morning, who confirmed an incident had occurred but did not provide details of it. She added that she later spoke with Mr. C who informed her that the complainant was accusing Mr. A of making a racist comment to her and when she asked him what this was he told her it was “go back to Africa” and that the incident had occurred in the Breakfast Room. Ms. X stated that she decided to deal with the incident the following Monday but the complainant went on sick leave and it never occurred. She further stated that she took statements from Mr. A, Mr. B and Mr. C within days of the alleged incident and confirmed that she did not seek a statement from the complainant at that time. She added that the first occasion the complainant raised the matter formally was in her e-mail of 27 December, 2010 and she investigated the matter in accordance with the respondent’s Harassment Policy immediately on receipt of same. She added that in the interim (between 16 October, 2010 and 9 December, 2010) she wrote to the complainant on three separate occasions requesting she contact her so that the complainant could be referred to its Occupational Physician, but she did not reply. Ms. X stated that the issue of breakages was discussed at a Manager’s Meeting and that she had raised the matter given the cost to the respondent and asked Manager’s to monitor the situation and ask staff to be careful.
4.7 It is submitted on behalf of the respondent that it knew (through Ms. X) that the complainant wished to file a complaint against Mr. A on 15 October, 2010. Counsel adds that the respondent expected engagement on the matter the following Monday but the complainant went on extended sick leave due to stress. Counsel adds that the Harassment Policy clearly envisages a written complaint – which it did not have - and in the circumstances of the complainant’s absence, it was faced with the question of disturbing the complainant whilst on sick leave. Counsel submits that the respondent attempted to monitor the situation by seeking to refer the complainant to its Occupational Physician but she failed to respond to any of the three letters issued to her. It is further submitted that when the complainant made a formal written complaint on 27 December, 2010 the respondent acted promptly: acknowledging same on 5 January, 2011 and advising the matter would be investigated under the Harassment Policy; furnishing the complainant (on 18 January, 2011) with the statements taken by Ms. X from Mr. A, Mr. B and Mr. C, asking her to revert to her (Ms. X) and inviting the complainant to a meeting to progress the investigation. Counsel states that the complainant failed to engage with this process, that her actions in that regard were unreasonable and therefore she not entitled to succeed with her complaint.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the respondent harassed the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts 1998 -2008 and contrary to section 14A of those Acts. In reaching my decision I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal as well as evidence advanced at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998-2008 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment on the ground specified. It is well settled in a line of decisions from both this Tribunal and the Labour Court that the type or range of facts which may be relied upon by a complainant can vary from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that discrimination has occurred. The language used indicates that where the primary facts alleged are proved it remains for this Tribunal to decide if the inference or presumption contended can be properly drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn from a fact, or range of facts, which have been proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Therefore it is not necessary for her to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts. If the complainant does not discharge the initial probative burden required her case cannot succeed.
5.3 The complainant advances her complaint on the ground of race, in particular, her Mauritian nationality and the fact that she is dark skinned. The most recent alleged incident of harassment of the complainant took place on 15 October, 2010. The complainant states that early that morning after some discussion and confusion about an early breakfast for a guest, there was an altercation of sorts between her and Mr. B after which Mr. A made the comment “It’s always somebody’s fault, it’s all about the black community, don’t mind me saying that”. The complainant is adamant this comment was made by Mr. A as she entered the kitchen. Mr. A denies making any such comment at all. Mr. B gave a statement to Ms. X some time subsequently – he cannot recall when – which was furnished to the Tribunal. Mr. B stands over this statement which states “When I was leaving the kitchen I heard them [the complainant and Mr. A] exchanging words and it sounded like an argument. However, I couldn’t specify what had been said”. Mr. B’s evidence is supportive of the complainant’s contention that words were exchanged between her and Mr. A in the kitchen. In the course of the Hearing Mr. C stated that during the morning of 15 October, 2010 the complainant informed him that Mr. A had made a racist comment to her, although she did not elaborate on the content of same. The Tribunal was furnished with a statement taken from Mr. C sometime after the incident, although he too is unsure when this was. In any event it can be no longer than three months from 15 October, 2010 as the complaint was furnished with the statement on 18 January, 2011. In this statement Mr. C states that the complainant told him (on 15 October, 2010) that Mr. A had told her “to go back to Africa”. Moreover, at the Hearing he recalled having a conversation with Mr. A that morning but was unable to recall what he said to him or vice versa. In the aforementioned statement Mr. C states that in the course of that conversation Mr. A denied making any comment to the complainant. This is consistent with the complainant’s evidence of what Mr. C said occurred. Ms. X also confirmed (at the Hearing) that she was aware on the day in question that the complainant had alleged Mr. A had made a racist comment to her.
5.4 I have carefully considered all of the evidence detailed in the preceding paragraph. Firstly, let me say that given the inconsistencies in Mr. C’s evidence I do not find him to be a particularly reliable witness and I have placed little probative value on his evidence. In light of the test set out at paragraph 5.2 above I am satisfied, on balance, that Mr. A made a comment to the complainant on the morning of 15 October, 2010, that this comment was made in the kitchen and that the content of the comment was as stated by the complainant “It’s always somebody’s fault, it’s all about the black community, don’t mind me saying that”.
5.5 Section 14A of the Acts defines harassment as follows:
"(i) ...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.".
I am satisfied that the comment made by Mr. A was unwanted and whilst it may not have necessarily had the purpose of violating the complainant’s dignity, it clearly had the effect of doing so, and in the process created a degrading and humiliating environment for her on grounds of race, in particular her skin colour. I therefore find that the complainant has established a prima facie case of harassment contrary to the Acts as regards this incident.
5.6 The complainant submits that a number of previous incidents involving Mr. A, dating back over two years from October, 2010 and I shall examine them briefly. Having carefully considered the evidence it is clear that Mr. A may behave in a brusque manner towards staff. This may, on occasion, result in behaviour which might be considered inappropriate, sometimes involving foul or abusive language. It has been suggested that such behaviour can regularly occur in a pressurised environment of a busy kitchen. This may be the case but behaviour of that nature can never be excused and should be discouraged in the strongest terms. I note that on the occasion the complainant informed Ms. E that Mr. A had used foul and abusive language to her, Ms. E assigned her alternative duties which were appropriate to her grade. As regards the complainant’s allegation that she was instructed to go home by Mr. A, I accept that he has a role to play in in terms of minimising costs to the respondent and in that regard has some authority over staffing levels. I note that the two occasions mentioned by the complainant when she was instructed to go home by Mr. A were shifts other than breakfast shifts, which are the shifts she generally worked. In those circumstances it appears to me that Mr. A believed it was permissible and reasonable for him to instruct staff to go home. The complainant alleges she was singled out for particular treatment as regards the new practice as regards the breakfast dockets. However, after evaluating the evidence adduced on this matter, I am satisfied that this practice applied to all staff and only lasted one day.
5.7 I note Mr. A accepts he might have made a comment to the complainant about the till being short when she was responsible for operating it on one occasion. He adds that there was a standing joke amongst staff on this matter and any such comment was made in that context. Whilst I accept Mr. A’s explanation I consider his comment to be ill advised, particularly in circumstances where the employee’s first language is not English. In such circumstances it is easy for the employee to believe that a member of Management is accusing them of stealing. If this practice has not already ceased Mr. A should desist from such comments immediately. The complainant states that she was requested to wash delph and clean a sink. The request to wash delph was made on St. Stephen’s Day 2009 and was a once off. I note Ms. E states staff, including herself, have washed delph on occasion and I do not accept that Mr. A’s request of the complainant is this regard was unreasonable. Both Mr. A and Ms. E recall an issue about breakfast staff using a sink to strain tinned fruit and that Mr. A had an issue with the practice. I accept that any discussion he had with the complainant about this matter could not amount to harassment of her contrary to the Acts. I have reached a similar conclusion as regards the issue involving the rubbish bin – clearly as Head Chef Mr. A is responsible for hygiene standards in the kitchen. I would add that if Mr. A called the complainant a “cheeky bitch” the phrase was again ill advised and he should refrain from using language of this nature, whatever the context. Finally, I note the complainant confirmed at the Hearing that in each and every one of the aforementioned incidents Mr. A did not make any reference to, or use any language that could be construed as, a comment about her nationality or skin colour. Whilst these alleged incidents were clearly the source of some angst to the complainant I cannot accept, even taken at their height, that they, individually or collectively, amount to harassment of her on the ground of race (nationality and skin colour) contrary to the Acts. Consequently, I find that the complainant has failed to establish a prima facie case that any of these incidents amount to harassment of her on grounds of race contrary to the Employment Equality Acts, 1998-2008.
5.8 Once a prima facie case of harassment is made out by a complainant, the respondent is fixed with liability for the unlawful behaviour unless it can avail of the defence provided at section 14(A)(2) of the Acts. The Labour Court has previously held that in order for an employer to avail of this defence it must 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 staff. It is also incumbent on the respondent to act in a reasonable manner once the policy is invoked by an employee and this involves, at a minimum, that it investigate the complaint in a prompt fashion. I am satisfied that the respondent had a Harassment at Work Policy in existence at the time – it formed part of the Employee Handbook ; that the complainant had received a copy of same and that it was communicated to other staff. This document provides for both an informal and formal process for dealing with a complaint and it clearly states that for a “formal complaint” to be triggered an employee is required to file a complaint in writing providing as much detail as possible and that a full investigation of the allegation will ensue. It is common case that the respondent was aware the complainant had an issue in respect of the incident with Mr. A (on the day of the incident) and that it was intended to progress the matter further the following Monday. However, the complainant went on sick leave the next day due to stress and remained certified unfit for duty due to stress for the remainder of her employment with the respondent.
5.9 The respondent submits that it was inappropriate for it to pursue the complaint with the complainant whilst she was on sick leave. I am satisfied it was clear to the respondent that the complainant was distressed by the events of the morning of 15 October, 2010. Given the nexus of the complainant’s absence due to stress with those events it was reasonable and prudent, in my view, for the respondent to exercise caution, in the immediate term, as regards pursuing the complainant for details of the incident for fear of exacerbating the situation for her. Indeed the complainant states that from 15 October, 2010 onwards she was under medical care and counselling and just wanted to forget about it and let her solicitor deal with matters. However, no evidence was adduced to the Tribunal that her solicitor engaged in such a process. I note that the respondent wrote to the complainant on three occasions during this period – 22 October, 2010, 12 November, 2010 and 9 December, 2010 – asking her to attend at its Occupational Physician but she failed to do so – she offered no explanation for this but I believe it is reasonable to assume that the aforementioned reasons mentioned by her would still apply. In the circumstances it is difficult to see what else the respondent could have done that would not have potentially exposed it to further litigation.
5.10 It is common case that the first occasion the complainant registered her complainant formally in writing was her e-mail of 27 December, 2010. The respondent states that it acted promptly on receipt of same – (i) acknowledging same on 5 January, 2011 and advising the matter would be investigated under the Harassment Policy, and (ii) furnishing the complainant (on 18 January, 2011) with the statements taken by Ms. X from Mr. A, Mr. B and Mr. C, asking her to revert to her (Ms. X) and inviting the complainant to a meeting to progress the investigation. In my view this is a reasonable response from the respondent. It is common case that the complainant failed to engage with the respondent, again for the reasons set out above. Her actions therefore, deprived the respondent of the opportunity to fully investigate her allegations. Such a refusal cannot be permitted to avail the complainant to the extent that the respondent cannot now seek to invoke the defence available to it at section 14(A)2 of the Acts. In light of my comments in this and the preceding paragraph I find the actions of the respondent to be reasonable in the particular circumstances of this case and are sufficient to enable it avail of the defence at section 14(A)2 of the Employment Equality Acts, 1998-2008.
6. DECISION OF THE EQUALITY OFFICER.
I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2011. I find that -
(i) the respondent harassed the complainant on grounds of race in terms of section 6(2) of the Employment Equality Acts 1998 -2011 and contrary to section 14A of those Acts in respect of the incident on 15 October, 2010.
(ii) the actions of the respondent enable it to avail of the defence available at section 14(A)2 of the Employment Equality Acts, 1998-2008
(iii) 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 1998-2008 and contrary to section14A of those Acts in respect of the alleged incidents which pre-date 15 October, 2010
and her complaint fails in its entirety.
30 December, 2013
 Unreported Kearns J 11 June, 2012
 See for example A Hotel v A Worker (EDA0915) and An Employer v A Worker (EDA0916)