ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008313
Parties:
| Complainant | Respondent |
Anonymised Parties | Warehouse Operative | Distribution Company |
Representatives | Richard Grogan of Richard Grogan & Associates | Brian Dolan of Peninsula BS, |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00011030-001 | 24/04/2017 |
Date of Adjudication Hearing: 19/12/2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant has been employed as a warehouse operative since 12th March 2007. He is paid €2,208.33 per month. He has claimed that he was discriminated against on grounds of race and sexual orientation. He has sought that the Respondent takes corrective measures to deal with the implications of this allegation and to pay compensation. ADJ 8317 was withdrawn. At this hearing the parties agreed to engage on whether a settlement was possible and 15th January was the deadline. On 15th January, the Complainant’s representative wrote to advise that no approach was made regarding a settlement. On 20th February 2018, the Respondent’s representative advised to no progress was made. It was decided that a decision would issue. |
Summary of Complainant’s Case:
The Complainant stated that there were three incidents of discrimination. 1st Incident; Racial discrimination 9th December 2014. He stated that there was graffiti placed on a wall about the Asian race. There was no proper investigation. The Complainant is the only Asian in the company. 2nd Incident: Sexual Orientation 10th December 2015 There was graffiti on the wall with the Complainant’s name on it. He made a complaint but no investigation has been carried out by management. 3rd Incident: Racial Abuse 11th January 2017 An employee made comments to him in a Chinese style “yingyingyandyang” talk. He confronted the employee and accused him of being a racist. He reported the incident to his Supervisor. |
The Complainant’s representative is seeking that training be provided. He is seeking that the Respondent provide training for both racial and sexual discrimination on what is and is not appropriate. Management should be trained how to carry out investigations. He is seeking that this decision is anonymised. There was an investigation and the matter was referred to a disciplinary investigation but no outcome was known. Because an employee thinks they are being funny doesn’t excuse their behaviour. There was an admission by the employee but the manager in the investigation found no evidence. A good employer would investigate and take action and that action would be known to the employee who was ill-treated.
Summary of Respondent’s Case:
Preliminary The Respondent stated that the Complainant made three separate claims of discrimination. 1st related to race on 9th December 2014, 2nd on sexual orientation on 10th December 2015 3rd on race on 11th January 2017. The first two allegations occurred over twelve months prior to the lodgement of these complaints they are statute barred for the purposes of the Employment Equality Act. There is no evidence of a continuum. They referred to County Cork VEC v Ann Hurley EDA 1124. There are two methods of establishing a continuum; i) the maintenance of a “discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant “and ii) a “separate series of acts or omissions which are sufficiently connected so as to form a continuum of discrimination”. These complaints do not relate to any regime, rule, practice or principle The claims are not sufficiently connected so as to establish a continuum. The three acts are unconnected once-off incidents. The only claim is the third which involves a personal dispute between the Complainant and another member of staff. This is unrelated to the others. There are separate grounds of discrimination alleged, that of race and sexual orientation. Therefore, the first two are statute barred. 1st Allegation This allegation is denied that no action was taken. Once the graffiti was discovered management had it removed and painted over. A meeting of all warehouse staff was convened reminding them that any form of graffiti or racial discrimination would be subject to disciplinary action and may be classed as gross misconduct. The investigation was unable to identify the graffiti perpetrator. No further complaint was issued. 2nd Incident; |
It is denied that no action took place.
Once reported the offending graffiti was removed and painted over. The comments in question could have related to three staff in total, two male and one female. A meeting was held of all supervisors and management. They were reminded of the relevant sections of the handbook and warned that such conduct could be deemed gross misconduct.
3rd;
On 12th January, the Complainant lodged a complaint of alleged harassment. The allegation was put to the alleged perpetrator and he gave a response. Two witnesses were identified and they made statements. On 10th February, a draft report as put to the Complainant. The conclusion was that the matter would be referred to a disciplinary officer against the perpetrator. The Complainant raised queries with the draft report but did not wish to appeal it. In the light of the Complainant’s concerns the subject of the complaint was interviewed again. Then a final report was issued.
It is the Respondent’s position that they took all reasonable steps to prevent the harassment. The staff handbook contains a clear personal harassment policy and procedure. This policy contains the Respondent’s dignity at work charter. Abuse of the harassment policy is deemed gross misconduct. Regarding the 3rd incident they conducted a thorough investigation and invoked the disciplinary procedure against the perpetrator and issued him with an informal warning. . These complaints should be rejected.
Findings and Conclusions:
Preliminary Issue Time limit I find that the 1st and 3rd incidents were related to racism. Therefore, I accept that there was a continuum and so the 1st incident may be investigated along with the 3rd one, which occurred on 11th January 2017. This complaint was received on 24th April 2017 so both incidents are within the time limit allowed. I find that the 2nd incident concerned sexual orientation and so was not connected with the other two. It occurred on 10th December 2015 and this complaint was presented to the Commission on 24th April 2017 and so is out of time and may not be investigated. Complaints 1st Incident I find that once the Respondent was made aware of the graffiti they took proactive action. They had the offending graffiti removed and painted over. They called a meeting of all management and staff and set out their standards regarding such behaviour. They referred all staff to the policy in the staff handbook. I note that they were unable to identify who had painted the graffiti. I am satisfied that they acted reasonably in that situation. 3rd Incident I note that they carried out an investigation into this complaint. The investigation was escalated to a disciplinary investigation and it was found that the employee had committed a racist act. I note that a disciplinary sanction of an informal warning was issued. I note that they did not advise the Complainant of the outcome of the disciplinary investigation, either general or specific. I note that this was the second act of racism by an employee that the company had to deal with. I note that they did not convene a general meeting of staff as they had done in respect of the 1st incident. I note in respect of the second incident they convened a meeting of supervisors and managers only. In the circumstances, I find that an informal warning was not a sufficient response to the act of racism. I find that the Complainant has established that he was discriminated against on grounds of race. I find that the Respondent did not take sufficient action to deal with this incident. I find that the Respondent failed to convene a general meeting of all staff and explain their concerns about this behaviour. I find that they did not refer to their existing policy. I find that they did not review their policy in the light of a recurrence of racism. I find that they did not undertake an awareness programme concerning racism and their attitude towards it. Therefore, I find that the Complainant has established a prima facie case of discrimination. I find that the Respondent did not take sufficient reasonable steps to ensure that it did not reoccur. I find that It is not sufficient to have a policy, it is necessary to ensure that this policy is properly disseminated and the required standards of conduct and behaviour are conveyed to all management and staff. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
For the above stated reasons, I have decided that the Complainant has established a prima facie case of discrimination.
I have decided that the Respondent should pay the Complainant compensation of €7,000 within six weeks of the date below.
I have also decided that the Respondent should provide training on discrimination in the workplace concerning race and sexual orientation. It is preferable that this training is provided by an external independent body.
Dated: 5th April 2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Discrimination on grounds of race and sexual orientation |