FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : DUNNES STORES (REPRESENTED BY BYRNE WALLACE SOLICITORS) - AND - JUN LIU (REPRESENTED BY CATHY MCGRADY B.L., INSTRUCTED BY FERAN & CO SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. An appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The Worker appealed the Decision of the Equality Officer to the Labour Court on the 26thMarch 2015. Two Labour Court hearings took place on the 4thSeptember 2015 and on the 18thNovember 2015. The following is the Court's Determination:
DETERMINATION:
This is an appeal against the decision of an Equality Officer in a claim by Mr Jun Liu against Dunnes Stores where he alleged that he was discriminated against contrary to Section 6(2) (h) of the Employment Equality Acts 1998 to 2011 (“the Acts”) when he was dismissed from his employment and was subjected to discrimination in terms of harassment in accordance with Section 14 of the Act, on the grounds of race. A claim of victimisation was withdrawn by Mr Liu at the outset of the first day of hearings at the Equality Tribunal on 30thSeptember 2013.By decision DEC-E2015-007 dated 23rdFebruary 2015 the Equality Tribunal found that he had failed to establish aprima faciecase of discrimination and held that his complaints under the Acts were not well founded.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Liu will be referred to as “the Complainant” and Dunnes Stores will be referred to as “the Respondent”.
The Complainant referred his claim under the Acts to the Equality Tribunal on 29thApril 2011. It was heard by an Equality Officer on 30thSeptember 2013 and 24thJuly 2014. The Decision was issued on 23rdFebruary 2015.
The Complainant appealed the Equality Officer’s decision in it’s entirely. Included in the grounds of appeal, the Complainant submitted that the Equality Officer’s decision failed to have regard for the admission by the Respondent that the Complainant made claims of harassment but no action was taken and that the Respondent’s dismissal process failed to take account of the Complainant being a non-national employee.
Background
The Complainant, who is Chinese, was employed as a retail assistant by the Respondent in its Drogheda, Scotch Hall store. He commenced employment with the Respondent in 2001 and was dismissed on 7thDecember 2010.
Summary of the Complainant’s Case
Ms Cathy McGrady, B.L. instructed by Feran & Company, Solicitors on behalf of the Complainantsubmitted thatthe Complainant had had a good working relationship with staff and managers until the appointment in 2008 of Mr. Cullen as his Manager at the deli counter.
The substance of the complaint is that the Complainant was the subject of racial harassment by Mr Cullen, on various occasions. The racial harassment referred to included beingcalleda"chink"or"f…ing Chinese";disparaging remarks of a racial nature about the Complainant’s intention to go to college and not providing him with flexible working hours in order to do so unlike the flexibility given to another employee. However, he did not make any complaint of bullying or harassment through the Respondent’s grievance procedure or it’s Dignity at Work Policy, for fear of retaliation in the workplace.
On the morning of 1stDecember 2010 an issue arose about the temperature of the deli counter. Mr. Cullen told the Complainant that as he had neglected to turn the deli counter fridge on, all the food therein would have to be discarded as waste. The Complainant said that when he protested against this Mr. Cullen made racial comments and when he asked him to explain what he had said; Mr. Cullen approached him with a raised fist. The Complainant said that he felt threatened and he instinctively reacted to defend himself resulting in a physical altercation with his Manager.
A disciplinary hearing was scheduled for the following day but was cancelled when the Complainant arrived with a Trade Union official. The Respondent does not recognise Trade Unions.
The meeting was rearranged for the 7thof December. The Complainant stated that he was not provided with an interpreter at that meeting, and was not allowed to bring his own choice of representative. After that meeting the Complainant was summarily dismissed for having assaulted the Manager. The Complainant was not given any minutes of the meeting until after his appeal failed. These actions he alleged were further evidence of discrimination on the grounds of race.
The Complainant denied the allegation of assaulting his Manager and claimed that he was provoked by racial comments made by the Manager and that such racial abuse had occurred in the past. He contended that his dismissal was influenced by his race. The Complainant says he raised the issue of racial abuse at the disciplinary meeting held on 7thDecember 2010 but his complaints were simply ignored, following which he was dismissed. He maintained that the Respondent continued to fail to observe its obligations towards him even after he put the allegations of harassment in writing in his letter of appeal of his dismissal dated 13thDecember 2010.
Ms McGradysaid that the allegations against the Complainantwere extremely serious; resulted in the termination of his employment and District Court criminal proceedings being lodged against him. These proceedings were subsequently dismissed.
MsMcGradycontended the Respondent failed to take any or any adequate account of his lack of knowledge of the disciplinary procedure and his being a non-national employee whose language skills did not help him cope with a disciplinary meeting and failed to ensure that he was wellrepresented in the process.
The meeting scheduled for 2ndDecember 2010 was cancelled when a trade union official arrived to represent him on the day. Therefore,MsMcGradycontendedthe Complainant was not adequately represented. In support of this contention she cited the decision of the Employment Appeals Tribunal inYingLiu-v- Dunnes Store UD1751/2010where it was held that a reasonable employer would have offered the claimant the opportunity to be represented and assisted by a suitably capable representative. MsMcGradysaid that he was not supplied with copies of minutes of the meetings until after a decision on his appeal of the termination of his employment was made. This lack of transparency gave rise to an inference of discrimination on grounds of race.In this regard she placed reliance on the decision ofCampbell Catering Limited-v- Rasaq [2004] 50 E.L.R. 310where it was held that employers have a positive duty to ensure all workers fully understand the allegations made against them and the consequences of same. The Labour Court recognisedthat special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and held that applying the same procedural standards to a non-national worker as opposed to an Irish worker can of itself constitute discrimination.
Summary of the Respondent’s Position
Ms Michelle Ní Longáin, Solicitor, Byrne Wallace Solicitors on behalf of the Respondent denied the Complainant’s allegations and contended that the Complainant had failed to produce a prima facie case of discriminatory dismissal or of harassment. While the Respondent maintained that it took into consideration the Complainant's allegations that the physical confrontation was provoked by racial bullying, on consideration of all of the facts available to the decision maker, the Respondent decided to dismiss him based on his actions and the physical assault on his manager.
Ms Ní Longáin stated that the Complainant was dismissed as a consequence of acting in serious breach ofthe Respondent's policies and as he poseda health and safety threat to both himself and employees of the Respondent. His dismissal was in accordance with the disciplinary policy included in the Employee Handbook,which applies toall employees,regardless of race.
The racial bullying which allegedly took place over a two year period had never been raised and had not been brought to the Respondent’s attention until the disciplinary meeting on 7thDecember 2010 when the Complainant was facing dismissal for assaulting a manager.MsNí Longáin submitted that it was noteworthy that the Complainant had not provided any specifics in relation to any alleged discriminatory incident he complained of and he never raised them with any member of managementprior to 7thDecember 2010. She contended that hehad failed to prove facts upon which he is relying in seeking to raise a presumption of unlawful discrimination.In support of its contention, the Respondent relied upon a number of cases, including:-
Mokhtar Hbari v Noonan Services Limited(EE/2009/179, 423 and 475) where the Equality Officer held:-
"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. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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'."
MsNí Longáin stated that the Respondent does notrecognise trade unions for the purpose of representing its employees, and asserted that notrecognising a trade union and not permitting an unrecognised trade union representative to represent an employee during a disciplinary hearing doesnot ground a claim of discriminatory dismissal orharassment.In support of her position, she relied upon the case ofSharon O'Halloran v Dunnes Stores[2011] 2 JIEC0902 where the claimant, anIrish worker,contended that the Respondent breached her right to fair procedures, as she was not allowed to have her trade union official to represent her atdisciplinary hearings and she had not been afforded an opportunity to answer allegations made against her.The Tribunalrejected these contentions:-
- "The Respondent has a disciplinary and dismissal policyin place which isin general conformity with the guideline in 51 146/2000 - IndustrialRelations Act,1990 (Code of Practice on Grievance and Disciplinary Procedures).In affording the Claimant an opportunity to bring a colleague of her choice with her to the scheduled disciplinary meetings the Respondent was in compliance with his own policy and indeed with Clause 4of 51 146/2000 which defines"EmployerRepresentative"as including,inter alia,a colleague ofthe employee's choice".
In response to the Complainant’s reliance on the case ofYing Liu v Dunnes Stores[2012] 3 JIEC2111 where in that case the Tribunal found that
- "in this instance weare dealing with an employee who faces clear language obstacles",
The Respondent submitted this was clearly not the position in the Complainant’s case, hewas sufficiently proficient in the English language to understand what was at issue, he had a good standard of English, was able to carry out his day to day duties and he had obtained third level qualifications through English while working with the Respondent for over a decade.
Witness Testimony
Summary of the Complainant’s Evidence
The Complainant told the Court that when he commenced employment with the Respondent in 2001 he was presented with an Employee Handbook in the English language outlining the Respondent’s policies and procedures. He told the Court that on one occasion Mr Cullen asked him to clean the health food oven and when he informed him that it had already been done, Mr Cullen responded by saying‘you are not in China now, just do it’. The Complainant said that on another occasion he spoke to his manager about the possibility of having flexibility in his hours of work as he was about to undertake a business course in College. He said that Mr Cullen responded by saying‘you are f…ing Chinese, you don’t need to go to College’. The Complainant said that when a work colleague, sought special arrangements to attend college he was facilitated. The Complainant could not be specific on the dates when these incidents occurred, however, he was clear that they occurred since Mr Cullen joined the Company as his manager.
The Complainant accepted that he did not report these incidents to the Respondent as he was of the view that his complaints would not be taken seriously as they were one-to-one incidents with no record of what happened.
He said that on the day of the incident on 1stDecember 2010 after Mr Cullen had told him to throw out the food as the counter fridge was not set at the right temperature, as he turned to walk away he called him a‘f…king Chink”…….oh the shy..He could not be specific about the latter words.In reaction to these insults he said that he came out from behind the counter and at that point he believed that Mr Cullen clenched his fist so in order to defend himself he had to block his left arm to protect himself.
After the incident he said that he was called upstairs to the office to explain what had happened. He said that he had not seen the CCTV at that point.
He said that at the meeting on 7thDecember 2010 the minutes of the 1stDecember meeting were read out to him, and that he did not agree with them. He said that at the meeting on 7thDecember he informed management of the racial abuse he was subjected to by his manager.
The Complainant accepted that he had received induction training at the commencement of his employment which included details of the Respondent’s policies. He denied seeing the Company policies which the Respondent said were posted on the Staff Notice Boards.
He accepted that he did not ask for an interpreter to be present at the disciplinary meetings held on 1stand 7thDecember 2010, nor did his trade union representative seek to have one present on 3rdDecember 2010 when a trade union official arrived at the workplace to represent him but was denied entry by management to the meeting.
Summary of the Evidence of Mr Cullen, Deli Manager
Mr Cullen gave evidence on behalf of the Respondent; he said that he no longer works for the Company. He denied that he behaved in a discriminatory manner or bullied the Complainant as alleged or at all. He denied calling him names. He denied ever harassing the Complainant or denying him access to the toilet as alleged or requesting him to complete cleaning tasks that had already been completed.Mr Cullen denied the allegations in respect of creating difficulties for the Complainant when he sought flexibility with his hours or ever making the comments as alleged in respect of the Complainant attending college.Furthermore, Mr Cullen said that the Complainant never raised an issue with him. He said that when he was asked by the Complainant for flexible hours in order to pursue a course in College, he said that he would need to get approval from a more senior manager as he did not have the authority to do so.
Mr Cullen said that on the morning of 1stDecember 2010 when he discovered that the deli fridge counter was not on, he informed the Complainant that the food would have to be thrown out as it was not at the correct temperature and that the matter of the Complainant’s breach of procedure would have to be brought to management’s attention. He said that as he walked away the Complainant called him back and as he was zipping up his jacket the Complainant came out from behind the counter and hit him and kicked out at him a number of times until a colleague pulled the Complainant off him. He said that he was zipping up his jacket as he was about to go outside and it was snowing at the time.
He went to Hospital where he was told not to return to work and not to drive. He pressed civil charges against the Complainant however due to procedural issues the case was dismissed in 2015.
Mr Cullen said that he was asked to give a statement to management about the incident and did so on 3rdDecember 2010. In response to questions from the Court Mr Cullen said that he was informed of the accusation of racial abuse following the meeting referred to above which was held on 7thDecember 2010. He said that he was not the subject of an investigation by the Respondent.
Summary of the Evidence of Mr Byrne, General Sales Assistant
Mr Byrne was a colleague of the Complainant and he worked alongside him on the Deli Counter. He said that on the morning of 1stDecember 2010 he was in the kitchen area and he overheard the Complainant and Mr Cullen out in the shop discussing the temperature of the fridge counter and that the meat would have to be thrown out. He said that he then heard a bang and proceeded to check it out. When he came into the shop he saw both men grappling and Mr Cullen was covering his head, he proceeded to restrain the Complainant and as he was doing so the Complainant was kicking out and hitting Mr Cullen’s head and side. As he was doing so the Complainant was saying to Mr Cullen that this was not over and that he (Mr Cullen) was always cursing at him.
After the incident he was asked by management to give a statement of the incident he witnessed.
Mr Byrne told the Court that he was studying while he was working for the Respondent and that due to the timing of his course he did not require flexible working hours and did not seek any special arrangements from management.
Summary of the Evidence of Ms Davies, Grocery Assistant Manager
Ms Davies told the Court that following the incident on 1stDecember 2010, both she and the Personnel Office held a meeting with the Complainant to discuss what had happened. At the outset having ascertained that he required a representative, Ms Newton, a colleague of the Complainant for many years was invited to attend the meeting. Ms Davies said that he did not request to have an interpreter present. She asked the Complainant to explain what had happened that morning with Mr Cullen, the Deli Manager. The Complainant said that the incident occurred as Mr Cullen needed to be taught a lesson as Mr Cullen was shouting at him.
In her evidence Ms Davies says that while the Complainant told her about the incident he never mentioned any reference to alleged racial abuse or use of racially abusive words being used by Mr Cullen. At the end of the meeting Ms Davies. explained to the Complainant that this was now a serious matter and stressed the importance of having a safe and healthy work environment. Consequently he was being sent home and was informed that he was suspended while it carried out an investigation into the matter. The Complainant asked her to repeat that point as he did not understand the meaning of the word “suspension” due to his language difference.
Ms Davies said that she did not witness the incident herself, she did meet Mr Cullen following the incident and that he was badly bruised and was on his way to hospital. She said that she did not have an investigative meeting with Mr Cullen about the incident.
Ms Davies told the Court that she viewed the CCTV after the meeting with the Complainant and as the Personnel Manager had sought advice from Head Office, it was concluded that the next step required a disciplinary meeting with the Complainant.
Summary of the Evidence of Ms Clarke. HR Manager
Ms Clarke told the Court that she took the minutes at the meeting held on 1stDecember 2010 at which the Complainant, Ms Davies and she were present. Her evidence of the events of that meeting was similar to Ms Davies’s account above.
Ms Clarke was also present at the disciplinary meeting held on 7thDecember 2010. The Complainant was represented at that meeting by Ms O’R and he did not request an interpreter to be present. Mr Fitzpatrick the Store Manager was also present at that meeting. When the minutes of the previous meeting held on 1stDecember 2010 were read back to him, the Complainant objectedsaying that they did not reflect the points he made about being racially abused by Mr Cullen. She said that when he was asked to recount the details of the incident which occurred on 1stDecember, the Complainant said that he wanted to see the CCTV evidence. The CCTV evidence was then shown to him, however, he was concerned as there was no sound it could not be ascertained exactly what had transpired prior to the incident.
Ms Clarke said that having heard what the Complainant had to say and following a recess to consider the matter it was decided that as the incident was such a serious matter the Complainant was informed that his employment was being terminated with immediate effect.
When questioned about her reaction to the allegations of racial harassment which the Complainant made she said that no further action was taken on the issue, due to the seriousness of the incident which had transpired on 1stDecember. She told the Court that it was the first time the Complainant had ever raised an allegation of racial harassment and she said that she thought it was an opportunistic move to evade dismissal as it was only raised at the last minute. Ms Clarke said that she did not bring this matter to Mr Cullen’s attention and that he was never questioned about the allegation. She said that because of the state of Mr Cullen’s face after the incident that she believed Mr Cullen and while he was required to provide a statement of the events, he was not questioned and was not invited to a disciplinary hearing.
Ms Clarke accepted that witnesses’ statements and minutes of meetings were not provided to the Complainant as part of the investigation. She said that the decision to dismiss the Complainant was made jointly by the Store Manager and herself having consulted with HR in Head Office first.
Summary of the Evidence of Mr Fitzpatrick, Store Manager
Mr Fitzpatrick was not on duty on 1stor 2ndDecember 2010 and learnt of the incident on his return to work on 3rdDecember. He said that a disciplinary meeting was due to take place on that day with the Complainant, however, the latter arrived accompanied by a trade union official who was refused access, therefore the meeting did not go ahead and was rescheduled for 7thDecember 2010. Mr Fitzpatrick stated that the Company’s disciplinary policy does not provide for an employee to be represented by a trade union official. He said that no interpreter was brought to the meeting or sought by the Complainant and that in his view the Complainant had no difficulty understanding English, he had worked for the Company for ten years and dealt with customers on a daly basis.
Mr Fitzpatrick’s evidence of the events of that meeting was similar to that of Ms Clarke’s account above. Mr Fitzpatrick said that he put it to the Complainant that what happened was not a physical altercation between two people but it was an assault by the Complainant on a manager. When he questioned the Complainant about the incident, Mr Fitzpatrick said that the Complainant shrugged his shoulders and was un-cooperative in his answers and denied that he had assaulted Mr Cullen.
He told the Court that he did not believe the Complainant when he said that he was racially abused by Mr Cullen and decided not to investigate it. He said that even if it did happen the assault on his manager was considered as such a serious breach that it was still a valid reason to dismiss the Complainant for gross misconduct.
Burden of Proof
It is now well settled that in cases of discrimination it is for the Complainants to prove the primary facts upon which they rely in asserting that they have suffered discrimination. If those facts are proved and they are regarded as sufficient to raise an inference of discrimination, the onus shifts to the Respondent to prove the absence of discrimination. In all cases the standard of proof is the normal civil standard; that is to say the balance of probabilities.The test for applying this provision is well-settled in a line of decisions of this Court starting with the determination inMitchell v Southern Health Board [2001] E.L.R. 201where the Court adopted the provisions of Article 2 of the Burden of Proof Directive, upon which Section 85A is now based
Conclusions of the Court
The Court must in the first instance consider the question of whether or not the Complainant has established aprima faciecase of race discrimination and if so found whether or not the Respondent must be held liable for that discrimination and if such discrimination was a contributing factor in his dismissal. The Court must also examine the alleged discriminatory nature of his dismissal.
Allegations of Racial Harassment/Discrimination
Having considered all of the evidence tendered by the Complainant and that tendered on behalf of the Respondent, while there is a conflict of evidence, the Court has concluded as a matter of probability that the Complainant’s version of the alleged harassment is substantially correct and should be preferred. Therefore, the Court finds that the Complainant has raised an inference of discrimination.
In reaching this conclusion the Court has had regard to the following:-
- •The Complainant gave evidence that he had been subjected to racial harassment from his manager Mr Cullen. ever since the manager had joined the company two years previously whereas prior to that he had had five different managers and never had similar problems;
•He referred to a number of ongoing incidents of alleged harassment - not being allowed to go to the toilet while on duty; repeat tasks that had already been completed and when he objected his manager made racial comments to him and told him just to do it; made him work more anti-social hours then other employees ; made disparaging remark of a racial nature about his intention to go to college and not providing him with flexible working hours in order to do so unlike the flexibility given to another employee;
•He told the Court the reason for his reaction on 1stDecember 2010 was because he was provoked by racial comments made by Mr Cullen;
•He said that he did not make complaints of racial harassment to management for two years as he was not familiar with a culture where such complaints could be taken seriously and he said that he feared for his job if he made complaints;
•He raised a complaint of racial harassment at a meeting with management on 7thDecember 2010, which was not investigated;
•A disciplinary investigation took place into his actions on 1stDecember 2010; however, Mr Cullen was not requested to attend to a similar investigation.
While the Court has not been provided with specific dates, it is not disputed that a number of the above alleged incidents occurred outside the time limits for submitting such claims under Section 77(5) of the Acts. In certain circumstances, the Court may take into consideration previous occasions in which a Complainant was allegedly discriminated against on the same ground, i.e. where the alleged acts can be considered as separate manifestations of the same disposition to discriminate and the most recent occurrence was within the time period specified in the Acts,County Louth VEC v Don Johnson EDA 0714.Therefore the Court has looked at the totality of the evidence given in reaching its decision on the question of the burden of proof.
Based on the evidence given as the Court is satisfied that the burden of proof has shifted to the Respondent, the Court must now examine whether the Respondent has rebutted that inference.
In these circumstances the case turns on whether or not the Respondent, as the employer of the perpetrator of the alleged harassment in issue, can be fixed with liability for that harassment. Section 14A (2) (a) provides a defence for an employer. Therefore, unless the Respondent can avail of the defence provided by section 14A (2) of the Act it is liable to the Complainant by operation of the Act. What is required is that the Respondent proves that it took steps which were reasonably practicalable to prevent a perpetrator from harassing his victim. The defence will normally succeed or fail on the adequacy of the Respondent’s response to any complaint made by the Complainant. In this case no complaints were made until the Complainant was faced with imminent dismissal for alleged gross misconduct. In such circumstances, as the Respondent was not aware of these allegations prior to the disciplinary meeting on 7thDecember 2010, the Act requires that the Respondent must prove that it took steps that could have prevented the harassment from occurring. The Court must therefore examine whether or not the Respondent had in place adequate policies and procedures intended to make all employees aware that harassment on any of the discriminatory grounds is unacceptable and will not be tolerated by the Respondent.
From the submissions made and the evidence provided the Court is satisfied that the Respondent tooksuch steps as were reasonably practicable to preventharassment in the workplace. The Court did not accept the Complainant's suggestion that his employment would have been in been in jeopardy if he brought the matter to managment's attention. He was highly regarded employee, had been with the Company for ten years and had been allocated responsibility for the Deli Counter. The Company had a dignity at workpolicy in place which provided a forum for employees to raise anyissues regarding their employment with HR or management. The policy was brought to employees’ attention and a notice was displayed on the Staff Notice Boards. TheComplainant confirmed that he had received induction training at the commencement of his employment which included details of the Respondent’s policies; however, he denied seeing the Dignity at Work policy posted on the Staff Notice Boards.The Respondent gave details of training sessions given to management on dealing with complainants of harassment and communication meetings given to staff on its policies.
In these circumstances the Court is satisfied that the Respondent had in place adequate policies to deal with any alleged incidents of racial harassment and therefore had taken such steps as were reasonably practicable to prevent the harassment of the Complainant.
Allegation of Discriminatory Dismissal
In this aspect of the claim the Court is not required to decide if the Complainant was unfairly dismissed, but to consider whether his dismissal was in any way tainted by discrimination on the grounds of, or related to, his race.
The Court must examine the reason why he was dismissed and whether that reason was related to his race. Counsel for the Respondent asserted that due to the severity of the incident on 1stDecember 2010 when he assaulted his manager any person, regardless of their race would be treated in the same manner, therefore he was dismissed for gross misconduct.
In so far as the Complainant contends that his race was connected with his dismissal, the Court can see no evidence whatever to sustain that assertion. The Court is satisfied that in this case, unlike the circumstances prevailing inYing Liu v Dunnes Stores,the Respondent was notdealing withan employee who faced clear language obstacles.
The Court is not satisfied that there was any evidential basis upon which it could be concluded that an Irish national would have been treated differently in similar circumstances to this case. No such evidence was adduced and it would clearly be impermissible for the Court to reach conclusions of fact based upon mere supposition or speculation. The Respondent’s case was that a decision was taken to dismiss the Complainant for assaulting a manager. It was viewed as a very serious disciplinary issue warranting summary dismissal. In that regard the Court is not satisfied that the Complainant was treated any differently than another employee, whom management decided was guilty of such an offence. Therefore the Court does not accept that the standard set for the Complainant was any different to the standard set for others.
In all the circumstance of the case the Court has concluded that there is no reliable evidence upon which the Court could infer that the Complainant’s dismissal was on grounds of his race and the sole reason for the dismissal was a finding of gross misconduct, the Court is satisfied that it was not tainted by discrimination.
Determination
For the reasons referred to the Court is satisfied that the Respondent is not liable for the harassment of the Complainant on grounds of his race and there is no evidence upon which the Court could find that his dismissal was on grounds of his race.
Accordingly, the Complainant cannot succeed. Therefore, the Complainant’s appeal is disallowed and the decision of the Equality Tribunal is affirmed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CO'R______________________
22nd December 2015Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.