EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2017-056
Ioan Florin Rusu
(Represented by Michael McCormack BL, instructed by Daly, Lynch, Crowe & Morris Solicitors)
Senture Security Limited
(Represented by Hennessy & Perozzi Solicitors)
File Reference: et-159283-ee-15
Date of Issue: 24th of July, 2017
This dispute involves claims by the complainant against the respondent that he was discriminated against on grounds of race in terms of section 6(2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2015, in relation to his conditions of employment as well as a claim of harassment and of discriminatory dismissal.
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2015, to the Equality Tribunal/Workplace Relations Commission on the 9th of September, 2015.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 the Director delegated the case on the 30th of January, 2017 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 24th of March, 2017.
3. Summary of complainant’s case
3.1 It is submitted that
· the complainant, is originally from Romania, and commenced employment with the Respondent on 29th of March 2015
· the complainant was employed as a Security guard by the respondent and was assigned to work on the front door of a city centre pub, B which was part of Hotel C,
· the complainant was working 45 hours a week for the respondent,
· the complainant was working on the door of B on the night of the 26th of June, 2015 when the owner of the hotel, Mr. A approached him and told him to go home. Mr. A racially harassed the complainant by saying “ All Romanians are thieves and liars. Romanian policemen are robbing bags and phones in B (the Hotel bar) “. Mr. A then told the complainant to go home,
· the complainant reported it to his supervisor who told the complainant to go home and to contact him tomorrow,
· the complainant contacted the respondent the next day who told him not to return to B but that he would be sent to work at another location,
· the complainant phoned the respondent on a number of occasions but was not given any work,
· the complainant received no work from the respondent for the next month and no pay after the date of the incident,
· the complainant eventually requested his p45 from the respondent as he had to find other work as he had received no work and no wages from the respondent,
· he obtained work with another company where he only received weekend work.
4. Summary of respondent’s case
· the complainant was employed by the respondent from 29th of March 2015 to 26th of June 2015 as a Security Guard,
· the respondent has contracts to provide security and door staff at a number of locations both within and outside the city centre,
· the respondent does not deny that the complainant was harassed by Mr. A who was the owner of a hotel with whom the respondent has a contract for provision of security and door staff,
· the respondent once notified that the complainant was harassed by Mr. A took immediate steps to protect the complainant,
· the complainant was offered alternative employment and was assigned work in a nightclub outside of the city centre as he had specified that he did not wish to take shifts in the City Centre,
· the complainant failed to show up for work at the new location and attempts to contact him by phone were unsuccessful,
· the complainant by email dated 28th of July, 2015 requested his p45,
· the complainant was not dismissed by the respondent.
5. Findings and Conclusions of the Equality Officer
5.1 The issues for decision by me now are, whether or not, the respondent discriminated against the complainant, on grounds of race in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2015, in relation to his conditions of employment and his dismissal by the respondent and whether he was subjected to harassment on the ground of race. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the hearings.
5.2 Discrimination and Harassment
5.2.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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".
5.2.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..” Sections 6(2)(h) of the Acts define the discriminatory grounds of race as follows – “as between any 2 persons, ...
(h) that they are of a different race, colour, nationality or ethnic or national origins”..
5.2.3 Harassment is defined in Section 14A(7) of the Acts as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
5.2.4 Section 14A (2) provides a defence for an employer if it can prove that it took reasonably practicable steps to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects [my emphasis].
5.3 Harassment and Conditions of employment
5.3.1 The complainant, advised the hearing, that he was subjected to racial harassment by Mr. A, a customer of the respondent and a person with whom the respondent had a contractual relationship to provide security services. The complainant advised the hearing that he had been working on the door of B at hotel C on the night of 26th of June, 2015 when Mr. A had approached him. The complainant advised the hearing that Mr. A had asked him where he was from and the complainant had replied that he was from Romania. The complainant told the hearing that Mr. A then stated “All Romanians are thieves and liars. Romanian policemen are robbing bags and phones in B’s (the Hotel bar) “ . The complainant stated that Mr. A then told the complainant to leave his radio and go home.
5.3.2 The complainant stated that this was not the first time Mr. A had been abusive towards the respondent’s staff and stated that he had on another occasion told Mr. B another security guard to go home and had called him a ‘a donkey’. The complainant stated that Mr. A was often abusive and ‘giving out’ to people when he was “drunk”. The complainant stated that he left the premises as instructed and that he then phoned his supervisor Mr. E and told him what had happened with Mr. A. The complainant stated that Mr. E told him to go home and to call him tomorrow and that he would be given work at another location.
5.3.3 The complainant stated that he called Mr. E the next day but got no answer, the complainant stated that he also called Mr. M of the respondent and asked him to give him work. The complainant advised the hearing that neither Mr. E nor Mr. M returned his calls. The complainant advised the hearing that he even phoned a colleague of his who was employed by the respondent at a nightclub outside of the city centre, D’s to ask if there was work for him at that location. He stated that the colleague Mr. G stated that he would have to ask the respondent directly for work there. The complainant stated that he contacted the respondent looking for work on numerous occasions but was never given any work after the night of the 26th of June, 2015. The complainant stated that he had up to the 26th of June been working 45 hours a week for the respondent. He stated that he received no work and no pay after the incident on 26th of June.
5.3.4 The complainant advised the hearing that he could not afford to live without any work or pay and so he had no choice but to seek work with another employer. The complainant advised the hearing that he began working for another company four weeks later and that he requested his p45 from the respondent by email dated 28th of July, 2015. The complainant advised the hearing that he only received weekend work for the new company and that he had been getting 45 hours a week from the respondent.
5.3.5 The complainant added that he could no longer afford to stay in the country on such reduced hours and wages as he was only earning €200 a week in the new post and that he eventually had to go back to Romania where he now resides. The complainant advised the hearing that he had travelled back from Romania for the hearing of his case.
5.3.6 The respondent advised the hearing that it was not denying that the alleged statements were made by Mr. A to the complainant. The respondent told the hearing that the incident involving the complainant was the first such incident with Mr. A and that there was no precedence or forewarning. The respondent at the hearing did however concede that Mr. A was often under the influence of alcohol on the premises in question. Witness for the respondent Mr. F told the hearing that Mr. A was drunk most evenings. Mr. F went on to tell the hearing that he had witnessed the incident between the complainant and Mr. A on the night in question and that he had told the complainant to go home. Mr. F stated that he had left messages on the manager’s phone telling him what had happened with Mr. A and the complainant. The respondent advised the hearing that its contractual relationship with the respondent had ended on bad terms as Mr. A had refused to pay the increase in wages which had been brought in across the board for security workers. The respondent prior to the hearing had submitted that it had terminated its relationship with Mr. A following the incident of the 26th of June but it emerged at the hearing that the respondent only terminated the contract when Mr. A refused to pay the increased wages which happened in August 2015.
5.3.7 Witness for the complainant Mr. K advised the hearing that he had also been working for the respondent on the night of the 26th of June and stated that he had witnessed Mr. A talking to the complainant. Mr. K stated that the complainant had called him on the radio to come over to where he was and stated that he had heard Mr. A being abusive to the complainant and telling him to go home. Mr. K told the hearing that Mr. A was always being abusive and calling people names when he was drunk. Mr. K stated that he had also been sacked by Mr. A. on another occasion. Mr. K advised the hearing that the respondent was aware of Mr. A s behavior as he had been abusive to many staff members and had often sent people home.
5.3.8 The respondent submits that it took all immediate steps as were available to it following notification of the complainant’s racial harassment by Mr. A. The respondent advised the hearing that they removed the complainant from the situation by offering him work at alternative customer sites.
5.3.9 The respondent advised the hearing that it had offered and assigned the complainant work in an alternative location outside of the city centre but that the complainant had failed to show up for work on the night in question, 3rd of July, 2015. The complainant at the hearing denied this and stated that the location named by the respondent, D’s was the location where he had specifically requested work as he had contacted a colleague of his who also worked there and he had asked him if he could also work there. The complainant advised the hearing that no offer of work was made to him and that he would have accepted any work offered by the respondent. There was some disagreement at the hearing as to whom the complainant had phoned immediately after the incident whether it was Mr. E or Mr. F. The complainant advised the hearing that he had phoned both as he had phoned every contact he had in the respondent company in the period after the incident on 26th of June 2015. The complainant advised the hearing that the respondent had told him immediately following the incident not to go back to the Hotel where the incident had taken place and when he asked if he could work somewhere else they told him that they needed time to work it out.
5.3.10 The respondent at the hearing stated that the complainant had failed to show up for work at the new location of D’s on 3rd of July 2016. The respondent at the hearing stated that it has a formal Grievance Procedure under which the complainant could have raised a grievance after the incident of the 26th of June, 2015 but stated that he failed to do so. The complainant when questioned conceded that he had not raised a formal grievance but stated that he had told the respondent what happened with Mr. A. The respondent agreed that the complainant had advised them of the incident with Mr. A. The respondent when questioned about the stages in the grievance procedure was not aware as to how the procedure could be invoked i.e. whether it was verbally or in writing.
5.3.11 The respondent then advised the hearing that the complainant had requested alternative work but that he had asked that he not be assigned work in city centre locations. The complainant in response to this advised the hearing that he had no problem with working in any location. He stated that he had up to the incident of 26th of June been working in a city centre Hotel and that was where the incident had occurred. The complainant also told the hearing that he had his own car and would have had no problem driving to any location where work was available inside or outside of the city centre. The complainant at the hearing was adamant that he had not been offered any alternative work by the respondent despite making numerous phone calls to the respondent seeking work.
5.3.12 The respondent when questioned as to what steps were taken following the incident of the complainant being harassed, advised the hearing that it held a meeting about it the following week. When asked if the complainant was called to the meeting the respondent replied that he wasn’t. The respondent when questioned as to what steps it took when the complainant failed to turn up at his alleged new assignment replied that they tried to phone him but didn’t manage to speak to him. The respondent advised the hearing that it keeps spreadsheets of its rosters but when questioned at the hearing was unable to produce the roster showing the complainant’s re assignment to another location at which it is alleged he failed to show up for work.
5.3.13 Witnesses for the respondent at the hearing seemed unsure as to who was responsible for providing the complainant with a new assignment following the incident of 26th of June 2015. Mr. F agreed that he had spoken to the complainant the day after the incident but stated that he didn’t know the details of any arrangements made to provide the complainant with work at another site.
5.3.14 It is submitted that the respondent has a number of policies and procedures which contain provisions in relation to Bullying and Harassment. The respondent advised the hearing that the contract which issued to the complainant contains a reference at pgh 22 to Bullying and Harassment where it states that the respondent ‘is committed to the prevention of any form of Bullying and harassment’. This paragraph also indicates that where complaints are reported they are immediately and properly investigated. It does not state how such complaints can be made or the procedures involved. The respondent when questioned at the hearing could not say how such complaints are made and or investigated.
5.3.15 The respondent also submits that it has a Grievance Procedure and an Equal Opportunities Policy which prohibit bullying and harassment. The respondent when questioned about the stages in the grievance procedure was not aware as to how the procedure could be invoked i.e. whether it was verbally or in writing. The procedure itself indicates that a grievance should be submitted to the immediate supervisor before being referred to a Line Manager and if not resolved here a meeting must be held with the employee within seven days. The respondent at the hearing stated that a meeting was held but conceded that the complainant was not invited to or present at the meeting.
5.3.16 The respondent at the hearing was unable to provide details of what took place at this meeting and had no record of such meeting. The respondent was unable to advise the hearing as to the outcome of the meeting. The respondent at the hearing seemed to be confusing the meeting required by the grievance procedure with a meeting it had attended with Mr. A which resulted in the termination of its business relationship with Mr. A. It emerged at the hearing that the meeting with Mr. A did not take place until August 2015 and that the subject matter of the meeting was to discuss an across the board increase in wages for those employed in the security sector which Mr. A refused to pay.
5.3.17 The respondent at the hearing conceded that the complainant was subjected to abuse and racial harassment by Mr. A as submitted by the complainant. The respondent has submitted that it could not have taken any action to prevent the harassment of the complainant by Mr. A and that it had no previous knowledge of abusive behavior by Mr. A towards its staff members. The evidence adduced at the hearing clearly indicates that Mr. A had on numerous occasions been abusive towards staff members of the respondent and that it was not the first time Mr. A had sent someone home for no good reason. The respondent also submitted that once it became aware of the harassment of the complainant by Mr. A that it took “reasonably practicable steps to prevent the harassment and to reverse its effects” by offering the complainant work in another location and removing form the site of the abuse. The complainant has submitted that the respondent following his reporting of the incident to them did advise him not to return to the site but failed to offer him and further work at any other location despite repeated requests from the complainant for other work. The complainant submits that the respondent failed to offer him any work after the date of the incident which took place on the 26th of June, 2016 and that he was then forced to seek work elsewhere and so requested his P45 from the respondent on the 28th of July, 2016.
5.3.18 The complainant at the hearing presented as a credible witness who gave his evidence in a clear manner, in response to the Tribunal's direct enquiries. The complainant's evidence was consistent with the information provided by him prior to the hearing. In light of the foregoing I accept the complainant's version of events in relation to this matter and I am satisfied from the totality of the evidence adduced that he was not offered any further work by the respondent after the incident of the 26th of June, 2015.
5.3.19 I am satisfied from the totality of the evidence adduced that the complainant has raised a case of harassment on grounds of his race. I am also satisfied from the totality of the evidence adduced that the respondent has not taken appropriate action to deal with the complaint of harassment. The Employment Equality Acts provide that an employer can avail of the Section 14(2) defence where it can show that it took reasonably practicable steps to prevent the harassment and to reverse its effects” . It is clear from the totality of the evidence adduced that the respondent cannot avail of the Section 14 (2) defence in circumstances where it failed to take any action to prevent or remedy the effects of the harassment. I am thus satisfied from the totality of the evidence adduced that the complainant was harassed on grounds of his race.
5.4 Discriminatory Dismissal
5.4.1 The next matter I have to consider is whether the complainant was dismissed. It is submitted that the complainant requested his P45 from the respondent on the 28th of July, 2016 over a month after he was subjected to harassment on the ground of race. The complainant at the hearing gave evidence that he had following the incident of the 26th of June, 2016 reported the harassment to his employer who told him not to return to the site and that he would be provided with work in another location. The complainant advised the hearing that he made repeated attempts to contact the respondent and agents of the respondent seeking work at an alternative location to that where the incident took place. The complainant advised the hearing that he had received no work from the respondent for over a month and that he was forced to seek alternative employment as he had bills to pay and no wages coming in.
5.4.2 The respondent failed to offer the complainant any work after the 26th of June, 2016 and the complainant submits that this amounts to discriminatory treatment for reasons connected with his race. The respondent concedes that the complainant was subjected to harassment on grounds of his race by Mr. A the owner of the Hotel with which the respondent had a contractual relationship. The respondent at the hearing conceded that it had told the complainant following the incident of the 26th of June, 2016 that he should not return to work in that location but that he would be given work elsewhere. This happened following an incident where the complainant was harassed by the owner of the hotel due to his race a fact which the respondent accepts. I have found above that the respondent by failing to take any steps to prevent or remedy the harassment of the complainant cannot avail of the Section 14(2) defence and so has directly discriminated against the complainant on grounds of his race.
5.4.3 Dismissal is defined in Section 2 of the Acts as follows:
‘‘dismissal’’ includes the termination of a contract of employment by
the employee (whether prior notice of termination was or was not
given to the employer) in circumstances in which, because of the
conduct of the employer, the employee was or would have been
entitled to terminate the contract without giving such notice, or it
was or would have been reasonable for the employee to do so, and
‘‘dismissed’’ shall be construed accordingly;
5.4.4 In the case of An Employer v A Worker DET. No. EED053 the Labour Court defined constructive dismissal as follows:
“This definition is practically the same as that contained at section 1 of the Unfair Dismissals Acts 1977 –2001 and the authorities on its application in cases under that Act are apposite in the instant case. It provides two tests, either or both of which may be invoked by an employee. The first test is generally referred to as the “contract” test where the employee argues “entitlement” to terminate the contract. The second or “reasonableness” test applies where the employee asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.
5.4.5 The contract test was described by Lord Denning MR in Western Excavating (ECC) Ltd v Sharp  IRLR 332 as follows:
“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance”
This passage describes a situation in which an employer commits a repudiatory breach of contract. In such circumstances, the employee is entitled to accept the repudiation and consider him or herself dismissed. However, not every breach of contract will give rise to repudiation. It must be a breach of an essential term, which goes to the root of the contract. This is a stringent test, which is often difficult to invoke successfully.
5.4.6 There is, however, the additional reasonableness test, which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer’s conduct may not amount to a breach going to the root of the contract but could, nonetheless, be regarded as so unreasonable as to justify the employee in leaving. Finally, the authorities indicate that what is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case.”
5.4.7 There are two tests set out by the Labour Court to establish constructive dismissal (i) entitlement to terminate the contract and (ii) reasonableness. I shall look at the circumstances of the instant case in terms of the “contract” test firstly.
5.4.8 The complainant in the present case made a complaint about harassment on the ground of race and following this there was a fundamental change in his contract of employment; the respondent instructed him not to return to the site of the harassment with the promise of work at another location. The respondent then failed to offer him any further work despite the fact that his contract specified that he was to be provided with at least 4 hours work and given that he had prior to the incident been working 45 hours a week for the respondent it was reasonable to assume that he would be getting a similar number of hours at another location. The respondent at the hearing stated that the complainant had been offered work at an alternative location which he failed to show up for but had no evidence of any offer of such work and no evidence of rosters indicating that the complainant had been rostered for that work. In addition, the respondent could not provide any evidence that such an offer of work was made or that the respondent sought any explanation from the complainant when he failed to show up following the alleged offer of work at a new location. The complainant at the hearing presented as a credible and honest witness and was consistent in his version of events and was adamant and persistent in his claim that he was available for work and actively seeking work from the respondent but that he was not offered any work after the incident on 26th of June, 2016. I prefer the evidence of the complainant in respect of this matter and am satisfied that the complainant was not offered any work by the respondent after the 26th of June, 2015. I find that the complainant’s contract was frustrated as the respondent failed to honour a term of the contract by failing to offer the complainant employment following the 26th of June 2015 and by failing to pay the complainant. I am thus satisfied that the complainant had no option but to consider himself dismissed.
5.4.9 The second test is the “reasonableness” test which can be relied upon as an alternative or in combination with the "contract test". It requires the complainant to satisfy the Tribunal that the behaviour of the respondent was so unreasonable that he could not fairly be expected to put up with it any longer and he was therefore entitled to resign from its employment. The corpus of caselaw developed on this point requires the complainant, before taking the unilateral step of terminating his employment, to give the respondent the opportunity to address his grievance or complaint.
5.4.10 The complainant in this case reported the incident of harassment to the respondent. The complainant was then instructed not to return to the site but that he would be given work in another location. The complainant was not provided with any work by the respondent after this date. The complainant advised the hearing that he made several attempts to contact the respondent seeking work following the incident but was not given any further work nor did he receive and response to his requests.
5.4.11 I am satisfied from the totality of the evidence adduced that the complainant in this case acted reasonably by reporting the incident and by agreeing not to return to the site but to move to another location to be provided by the respondent. I have found the complainant’s allegations of harassment to be well founded and that his treatment by the respondent in failing to offer him work following this incident to be unreasonable. Given the respondents failure to respond to or provide the complainant with work following the incident of the 26th of June, 2016 I am satisfied that it was reasonable for the complainant to consider himself dismissed.
5.4.12 I have also applied the Supreme Court Judgment in Berber v Dunnes Stores IESC 10 where Finnegan J stated that:
There is implied in a contract of employment a mutual obligation that the employer and the employee will not, without reasonable and proper cause, conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.”
I am satisfied that the actions of the respondent in this case damaged the relationship of trust and confidence between themselves and the complainant. I am satisfied given the conduct of the employer that the complainant was entitled to consider himself dismissed.
5.4.13 It is settled law of this Tribunal/Commission and the Labour Court that the prohibition of discrimination means there shall be no discrimination whatsoever on the ground of race. In Wong v Igen Ltd and others Peter Gibson LJ considered the scope which should be ascribed to the notion of "no discrimination whatsoever". He held that if the protected factor or characteristic is more than a "trivial influence" in the impugned decision, a claim of discrimination will have been made out.
5.4.14 Given the evidence adduced in this case, I am satisfied that the complainant was harassed on the ground of his race. In addition I am satisfied that the respondent failed to take any action on foot of his complaint of harassment. The complainant gave evidence that he had made several attempts to contact the respondent to secure work at an alternative location and it appears that he was ‘given the run around’ by the respondent who failed to offer him work in an alternative location and failed to return his calls in this respect. The respondent at the hearing also appeared to be unclear as regards who was responsible for providing the complainant with work or for following up on his complaint of harassment. I am satisfied that the treatment of the complainant by the respondent amounts to more than a "trivial influence" in relation to the complainant's race.
5.4.15 In addition, given that the breach of contract occurred following a complaint of harassment on the ground of race in respect of which I have found in favour of the complainant I find that the complainant’s constructive dismissal is inextricably linked to his complaint of harassment and to his race. I am also satisfied from the totality of the evidence adduced that the respondent would not have treated an Irish employee in the same way in these circumstances and that its failure to contact the complainant or to provide him with any information in respect of alternative work locations following his complaint of harassment amounts to less favourable treatment on the ground of race.
5.4.16 Accordingly, I am satisfied that the complainant has established facts from which it may be inferred that the events surrounding his dismissal amount to discrimination on the basis of his race. Therefore, the complainant is entitled to claim constructive discriminatory dismissal on the race ground and I find also that the respondent has failed to rebut the case. Accordingly, I find that the complainant was subjected to a constructive discriminatory dismissal on the grounds of his race.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015 I issue the following decision. I find –
(i) that the complainant was discriminated against by the respondent on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 -2015 and contrary to section 8 of those Acts in respect of his conditions of employment in relation to harassment and contrary to Section 14A of the Acts, and
(ii) that the complainant was discriminated against by the respondent when he was subjected to constructive discriminatory dismissal on the race ground
6.2 In making my award, I am mindful of the fact that the complainant following the incident of 26th of June 2015 where he was subjected to racial harassment by Mr. A, notified the respondent about the incident who instructed the complainant not to return to that site but that they would give him work in another location. The respondent following the complainant’s complaint of harassment failed to take any action to prevent or reverse such harassment and instead instructed the complainant not to return to work on that site and failed to provide him with work at an alternative location which resulted in the complainant’s constructive discriminatory dismissal. In addition, I must ensure that the award is effective, proportionate and dissuasive. Having regard to the circumstances of the instant case and the rate of remuneration which the complainant was in receipt of at the relevant time, I consider an award of compensation in the sum of €20,000 to be just and equitable.
6.3 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2015. I hereby order that the respondent pay the complainant that sum by way of compensation for the distress suffered by him as a result of the harassment and ensuing constructive discriminatory dismissal. This award is not in the form of remuneration and is therefore not subject to the PAYE/PRSI Code.
24th of July, 2017