ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025202
Appletree Developments Limited
Charles Daly, Solicitor.
Jerry O Sullivan, Proprietor
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 29/09/2020
Workplace Relations Commission Adjudication Officer: Patsy Doyle
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following 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 at a face to face hearing and to present to me any evidence relevant to the complaint.
On 6 November 2019, the WRC received a complaint of Discrimination and Victimisation on race and religion grounds. The Complainant, a General Labourer, introduced his British nationality and Muslim faith. The complaint refers to a period of employment through September -October 2019 and the claims have been contested by the respondent, a building company.
At the time of the furnishing of the complaint, the complainant submitted that he did not have representation. This changed prior to hearing when a Legal submission was received and shared with the respondent. The Respondent did not have representation but told the hearing that they had taken legal advice prior to hearing. The respondent presented two witnesses to the hearing.
The complainant was represented at hearing by Charles Daly, Solicitor.
Summary of Complainant’s Case:
The Complainant is a British national of Muslim faith. At the commencement of the hearing, he amended his submitted commencement of employment date from 18 September 2019 to 25 September 2019.The complainant was 27 years of age during his employment.
The Complainants Solicitor outlined the background to the case. The Complainant was interested in pursuing his chosen field of gaining experience in excavator work on a building site to support a 2-year course he was undertaking. His goal was to secure a licence in that area. He had previous experience in the Transport Industry and this was a new venture for him.
The complainant approached the Foreman of a building site near his home and agreed that he would be accommodated in gaining experience on the excavator 1-2 days a week with the remainder working as a labourer. The Respondent did not provide him with a contract of employment, pay slips or staff handbook of employment policies.
His time on the excavator was short. He drove it on day 1 but on a negligible basis after that. He proceeded as a Labourer. His first week went well and he was paired with two labourers, Mr A and Mr B, long term employees of the company.
During the second week of employment, the environment changed from one of banter to one of verbal abuse. The complainant was met with daily racial torment by both Mr A and Mr B. He was asked where his parents originated from? to which he explained that his mother was from Ireland and his father from Pakistan. This resulted in his being called a “Paki”. What followed was” daily and continuous without any reprieve “and resulted in him being referred to as “Osama Bin Laden” “A Black B***** and a “stupid thick c*****” Mr A told him that he wasn’t wanted. This made his working life untenable.
He did raise the matter with the Foreman. The owner undertook to investigate the issue.
The Complainant resigned his position. The following day, the proprietor of the company contacted him and offered him his job back. He requested to meet with him and the parties met briefly, where the respondent apologised, and complainant was offered €1,500 to “let the matter go”. This offer was refused.
The Complainant was very troubled by his treatment at the site. He has experienced emotional distress in its wake causing him to seek medical attention for stress and anxiety with a commensurate anxiety in relation to taking new work.
The Complainant submitted that he suffered direct discrimination at the hands of his co -workers who were employees of the respondent. The Complainant was the sole recipient of this treatment as no other co-worker was subjected to this level of abuse or harassment. This treatment was directly due to his ethnicity, and religion and he was treated less favourably.
The Complainant contended that the facts submitted meet the prima facie test for discrimination as the respondent was on notice of his treatment and offered to pay him out to “drop the matter “. He relied on an extensive extract from Curran v Cadbury ( Ireland ) ltd which addressed the employers responsibility to protect an employee from physical and psychological injury which may result from negligence , harassment or bullying at work .He submitted that the respondent had failed to protect the complainant resulting in “severe and significant “ racial and religious abuse .This caused the complainant to suffer significant psychological damage .
The Complainants Solicitor placed a letter dated 29 October 2019 on record which carried a “strictly without prejudice “title which outlined the complainant’s resignation from his position because of “the manner and racial insults, on a continuous basis, hurled at him by your client’s employees and after time he just found it too much to take.” The letter sought a contribution to charity of €2,000
The Complainant explained that he was the sole British national of Muslim faith on the building site. He confirmed that he was never requested to sign in during his employment. He had not seen anti Bullying notices exhibited on site.
He had previously worked at a Transport Company.
He was placed primarily in a labouring role, cleaning out houses and worked alongside Mr A and Mr B as general Labourers, Mr C, a skilled labourer and Mr D, who was engaged in driving the mini excavator. He worked 7.30 am to 4.30pm daily.
He confirmed that his first week in the job had gone well. This changed from the second week onwards, when Mr A and Mr B singled him out and referred to him as “Osama Bin Laden”. They addressed him as “Paki” and this daily approach became more frequent and lasted 20/30 mins. Mr A asked him if he knew Osama Bin Laden? He was also referred to in an offensive manner as a “Black B*****”
This treatment got worse and worse, he could not sleep, and he felt he had no option but to walk out. By then, he had not received a contract, pay slips or human resource details. He did report the treatment to the Site Foreman, but nobody intervened. He understood that he was not wanted at the site.
On Friday, September 25, his mother dragged him out of bed as he was so dejected by the treatment he had received. He denied having a mild temperament. The complainant confirmed that he was worried at the prospect of being without work as he had financial commitments. He communicated his decision to resign his position on that day.
The complainant said he felt trapped and felt powerless to stop the behaviour he experienced as there were no witnesses and labouring work was “tough enough “He had never witnessed this kind of behaviour in a long history of employment.
He believed that he may have told Mr A and Mr B to shut up but felt intimidated as they had served together in the Army. There were contractors, electricians, and plumbers on site also. He did not see anyone else picked on in this way and it had a devastating effect on him.
During cross examination, the complainant re-affirmed that while he had seen signs exhibited on site regarding “safety hats “he had not seen signs exhibited on Anti-Bullying. He reaffirmed that he was not asked to sign in on commencement of employment.
He refuted the statement made by the respondent which placed Mr A away from the complainant and engaged on driving the dumper during the last 3 weeks of employment, thus limiting their interaction to breaks. The complainant replied saying that he sat in his car during his breaks.
The complainant submitted that Mr D, the owner of the business had engaged with him post-employment and offered to move Mr A and Mr B to Limerick for work, to facilitate the complainants return. The respondent refuted this. He added that Mr D had also offered him work in Limerick, but it did not cover expenses. the parties agreed on this. The site foreman had not addressed him.
The complainant identified Mr A and not Mr B as the main protagonist.
The complainant recalled driving down to the site and approaching the site foreman the day he left. He told him that there was bullying and racism on site and that he couldn’t take anymore.
The respondent asked the complainant if he recalled Mr D seeking him out on Thursday, October 24 at approximately 15.50 hrs, where he asked him if “everything was okay”? The complainant had no recollection of that alleged encounter. the complainant believed that he had been victimised for making this complaint. He described the harassment as an everyday occurrence.
The complainant confirmed that he did remember a 10-minute meeting with Mr D a week after he left work. He had agreed to meet Mr D, who jumped into his car outside a local supermarket and told him that his complaint would be investigated but he did not receive an outcome of that process. He had no recall of the respondent advising him to contact the Gardai with his concerns of his experience at work.
The complainant confirmed that he had earned more working at the Transport company and he had hoped for two days excavator driving experience per week. He understood that his introduction to the company was casual, as he had walked onto the site enquiring about work, but he had really hoped that the experience would support his course work. He was only permitted 3-4 hrs on the excavator. He did ask the site foreman for more exposure to the excavator but was told “sorry, no time for that “. He felt that he had been lured into labouring when his main objective was the excavator experience.
The complainant confirmed that he had not sought to practice his religion at work and that he prayed at home. He confirmed that he had not retained any notes of his experiences at the building site. He also confirmed that he had not submitted any medical reports during his employment. He exhibited a medical report dated 17 February 2020 and confirmed that he had commenced new work in a Technical Role in March 2020.
The Complainants Solicitor denied that he was a “disappointed driver “and was instead subjected to grave bullying and racist remarks which caused him real fear. All of which has left a lasting negative impact on the complainant as referenced in the medical report dated February 2020.
The Complainants Solicitor received a copy of the contract relied on by the respondent for the first time at hearing and was displeased by this late submission.
The Respondent was requested to furnish this contract, pay slips, policies and the Sign In sheet post hearing and did so. The Complainant was invited to make a responding submission.
In this response, the complainants Solicitor disputed the respondent’s contention that the outcome of the hearing would have “dreadful repercussions for him” He also disputed the tardiness in the furnishing of the contract in the face of a formal request for the complainant’s employment file. There was no provision for Excavator Driver in the contract.
The Complainant disputed his signature on the proffered Induction sheet and sent in supporting documentation from his driving licence and passport where he signed his name with a capital “A” where the respondent pro-offered an induction sheet where a “small a” was recorded.
The Complainant reflected that the Investigation had not been committed to writing.
Summary of Respondent’s Case:
The Respondent operates a Building company in several geographical locations and has denied all claims against the company.
The Respondent furnished a written submission date 24 September 2020.
The complainant approached the site Foreman on an impromptu basis and mentioned that he had completed a course in machine driving and was interested in work. He was hired to undertake machine driving and labouring. It was an informal application process.
The site was home to 10 staff who were engaged in excavating, concrete and dumping and staff were paired in units of 2/3.
The Complainant was furnished with a contract of employment which issued on 16 September 2019 which remained unsigned by the complainant.
The digger which the complainant had observed prior to his employment had broken down and the complainant was started on the mini digger. He was found in need of more experience on the main digger to “break him in “.
Pay slips were generated electronically and emailed and if not collected, were placed in a drawer.
The respondent outlined that the complainant was inducted on his first day at work. He was provided with goggles and gloves and his terms and conditions of employment. He was assigned to a Housing development in an urban setting.
On Friday 25 October 2019, the owner received a call from the foreman that the complainant was not going to be at work that day as he had been bullied and racially abused on site.
The owner was confused as the previous day at around 4 pm, the owner had passed a couple of minutes on site with the complainant and had asked him how he was getting on.? The complainant had not shared his dissatisfaction at that time. The owner had gone on to complement him on his BMW car.
On foot of the Foreman’s phone call, he undertook to make his own investigation. The respondent engaged with Mr A and Mr B, who both denied racially abusing the complainant. He went on to speak to other parties and found no evidence of racial abuse or bullying on site.
He met with the complainant on the following Thursday/Friday and expressed an empathy with him but informed him that while he had raised an allegation, there was no evidence of bullying on site. He had spoken with the Foreman, Mr A and Mr B and advised the complainant to go to the Gardai.
The complainant requested €6,000 from the respondent or he would pursue the matter through the courts. The respondent refused this payment. He had also refused to pay a €2,000 sum requested through the complainants Solicitor. The respondent denied offering a compensatory sum of €1,500.
The Respondent outlined that Mr A had not worked directly with the complainant during the last three weeks of his employment as he was operating the Dumper. He understood that they shared breaks.
The respondent denied telling the complainant that he offered to relocate Mr A and Mr B to Limerick and clarified that he had offered the complainant work in Limerick.
Evidence of Mr A
Mr A recalled the complainant starting work and he showed him what to do. He recalled an early banter with him as he showed him what to do on site. Mr A told the hearing that he had been negatively affected by the allegations raised by the complainant against him, he believed that he had treated the complainant well.
Mr A took over Dumper duties for 2.5 -3 weeks. This work was separate to the houses on a higher part of the site. He recalled that the complainant used to have tea in his car near one of the houses. Mr A said that he only met the complainant during break times.
The complainant vaped and asked Mr A for cigarettes which he gave him but joked that “he should buy his own.” He recalled that he borrowed a JP Red 100 cigarette daily after lunch break outside a house.
During cross examination,
Mr A identified that the Personnel Management role was carried out by either the Foreman or the Administrator in the office.
He confirmed that he had signed a contract and he had observed signs about bullying on the canteen door He was not acquainted with work policies. He had since left the employment.
Mr A submitted that the complainant had worked more frequently with Mr C. He denied orchestrating racial abuse against the complainant and had not witnessed racial abuse directed towards him. He had participated in the investigation at work and denied racial abuse.
Mr A denied having a short fuse. He recalled conversations he had had with the complainant had centred on sport/GAA.
He knew that the complainant visited the UK every two weeks and he recalled him telling him that every time he went, he was searched and harassed by Authorities. Taking his side, Mr A inquired whether they thought he was a “suicide bomber “?
Evidence of Mr C
Mr C had worked as a General Operative and Finishing Foreman. He outlined that he got on well with the complainant as they had shared a similar background in London. Mr C did not engage in banter.
He outlined the diversity on site where the electrician was from Northern Ireland and the Plasterer was from Donegal. Both he and the complainant were the only local lads and he tried to take him under his wing for the 2-3 weeks.
He recalled that the complainant did not have an interest in basic tasks of labouring and was disappointed when Mr A was called up to operate the Dumper. He recalled hearing him on the phone applying for a job in a Bus Company. The complainant told Mr C that he had not been brought onto the site to just labour.
During cross examination:
Mr C confirmed that the site was a good site. He recalled being approached by Mr D and the Foreman as to whether he had witnessed discrimination or racial abuse involving the complainant? He strongly denied witnessing this behaviour and qualified that he wouldn’t stand for it as he had a family member who was mixed race.
He submitted that Mr A was not an imposing figure on site. He clarified that Building sites had changed since 2008 and were not toxic workplaces.
The Respondent concluded by submitting that the complainant was primarily focussed on securing money from his company. The respondent had taken the complainant seriously and had investigated the complainant’s allegations of racial abuse and bullying and found no evidence of these. He had met with him and offered him a return to work but the complainant asked for €6,000 to drop the case, to which he informed him he would defend the case at hearing. He confirmed that he had not compiled a written report of his findings.
He confirmed that he did not have a designated Human Resource Officer as mentioned on the contract, but he visited the site weekly. He stood over that it was a safe place to work and the complainant was fully ware of avenues open to him to resolve his concerns.
He concluded that the complainant was disappointed that his aspirations to gain experience on the Digger had not materialised.
Findings and Conclusions:
I have been requested to investigate this case, where the complainant has submitted that he experienced Discrimination, Harassment and Victimisation on grounds of race and religion, during his work which had a detrimental impact of him. The claims have been rejected by the respondent.
My jurisdiction in the case is governed by the Employment Equality Act 1998 -2015. I must decide whether the complainant was discriminated against in terms of Section 6(2)(e) and Section 6(2)(h) of the Act and contrary to Section 8, during his work on the respondent building site. The complainant has relied on a hypothetical comparator.
In arriving at my decision, I have taken account of all submissions, both written and oral and evidence adduced by witnesses.
Both parties filed written submissions to accompany their oral presentations. However, neither party had submitted the contract prior to hearing. I appreciate that the complainant had sought access to his employment file, what was not forthcoming. However, the opportunity open to the complainant under Section 76 of the act remained unexplored.
The Respondent had informed the WRC that he intended to lead with 4 witnesses. I explained at the outset of the hearing that we were operating under Covid guidelines and witnesses could be rotated. The respondent presented two witnesses, Mr A and Mr C in addition to his own evidence.
The Complainant expressed a certain uncertainty on his start date. The complaint form stated 18 September 2019. He amended this to 25 September 2019 at hearing to which the respondent initially agreed. I asked for employment records.
The rosters/sign in sheets recorded two weeks from calendar year 2020, a year in which both parties had agreed the complainant did not work. The contract of employment of two months duration, which the complainant disputes receiving was signed by the respondent on 16 September 2019. The Induction sheet again disputed by the complainant is dated 11 September 2019. However, it was from the pay slips that I found a clear lead. The complainant told me that he had been paid in full for his work. The pay slips place him as commencing on September 16 ,2019. there is no dispute on the end date of 24 October 2019.
The Complainant also clarified that his most recent experience of discrimination occurred on 24 October 2019 and not the date initially inserted on the complaint form of 23 September 2019.
I was unsettled by this amount of uncertainty and by both parties overly casual approach to the entrance to and egress from employment.
Discrimination for the purposes of this Act.is outlined in Section 6.
6.— [ (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring circumstances discrimination shall be taken to occur where —
(a) 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) (in this Act referred to as the ‘discriminatory grounds’) which —
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
Section 85A of the Act outlines the burden of proof necessary in this case.
Burden of proof.
85A. — (1) Where in any proceeding’s facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.
(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.
(4) In this section ‘discrimination’ includes —
(a) indirect discrimination,
(c) harassment or sexual harassment,
(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.
Harassment and sexual harassment.
Harassment is defined in section 14(1) of the Act .
14A. — (1) For the purposes of this Act, where —
( a ) an employee (in this section referred to as ‘ the victim ’ ) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘ the workplace ’ ) or otherwise in the course of his or her employment by a person who is —
(i) employed at that place or by the same employer,
(ii) the victim ’ s employer, or
(iii) a client, customer or other business contact of the victim ’ s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,
( b ) without prejudice to the generality of paragraph (a) —
(i) such harassment has occurred, and
(ii) either —
(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or
(II) it could reasonably be anticipated that he or she would be so treated,
the harassment or sexual harassment constitutes discrimination by the victim ’ s employer in relation to the victim ’ s conditions of employment.
Section 14(2) carries a defence for the respondent if it can be shown that they took steps to prevent its occurrence or reverse its impact . The Statutory Code of Conduct on Harassment SI 208/2012 applies.
I must first establish if this specific treatment occurred.
Victimisation is a retaliatory action and is provided for in Section 74(2) of the Act.
(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to —
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
( e ) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000or any such repealed enactment,
( f ) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
( g ) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
The Complainant has submitted that he gave the Foreman his resignation on the morning of October 24, 2019. He was not required to work notice, detailed in the contract as one month.
The Labour Court considered the Burden of Proof under the Employment Equality Legislation in Teresa Mitchell and Southern Health Board,  ELR 201. The burden rests on the complainant to establish facts which presumes that equal treatment did not apply to them and once satisfied, it is for the respondent to disprove.
Articles 8 of the Race Directive and Article 10 of Directive 2000/78(Framework Directive) provide:
Member States shall take such measures as are necessary , in accordance with their national justice systems, to ensure that ,when persons who consider themselves wronged because the principle of equal treatment has not been applied to them, establish before a court or other competent authority , facts from which it may be presumed that there has been direct or indirect discrimination , it shall be for the respondent to prove that there has been no breach of the principle of equal treatment “
I must consider whether the complainant has established primary facts of enough significance to raise an inference of discrimination, Ntoko v Citibank 15 ELR 116
In exploring whether the complainant has met the prima facie test in the case, I must be satisfied that he is covered by the relevant ground, that he has been subjected to specific treatment and that this was less favourable than treatment to others not covered by the grounds submitted. Minaguchi and Ray Byrne, T/A Wine port Lakeshore Restaurant DEC-E-2002/20
I am satisfied that the complainant is covered on grounds of race as a British National. He presented a UK passport. I am also satisfied that he is covered by the ground of Religion through his declared Muslim faith.
I now wish to explore the specific treatment which the complainant described and the respondent’s response.
I listened very carefully as the complainant outlined his case. It was clear to me that he had a very strong expectation of securing valuable experience on the Digger which would propel him forward in his chosen field. He was animated as he discussed this topic and the opposite as he discussed his recollection of his interaction with Mr A and Mr B. When he discussed the latter experience, he seemed distant and had little recollection of specific events. He was, however certain that Mr A was the main protagonist of the direct discrimination and harassment. While he targeted the respondent as the initiator of Victimisation.
He went as far as to say that had he been accommodated on the Digger, he may not have had cause to attend the hearing. He did seek to amend that statement on my probing, but the animation and sense of purpose regarding the Digger remained. It was of note that he had not formally pursued an early return to the digger.
I listened as the complainant repeatedly told the hearing that he had no recollection of the owner arriving to site on the Thursday evening before his date of resignation. However, he was very clear on his recollection of the circumstances which preceded his resignation on the following morning.
I was troubled by this uncertainty and inconsistency and probed both parties further. While the respondent expressed an enduring anger with the complainant, I found him to be a cogent witness on his recollection of the sequence of events. I accept his evidence that he approached the complainant on site on the Thursday evening and enquired into his progress. I accept that the complainant did not share the details of his experiences on site at that time.
The Complainant went on to resign the next day directly with the Foreman citing bullying and racial abuse on site. It was a missed opportunity when neither party sought to capture this engagement in print format. I did not have sight of a complaint, letter of resignation or indeed the completed investigation. I did not have the benefit of meeting the Foreman of the Site.
The Complainant had not retained any notes of his experiences and had not been absent from work. I did not have the benefit of a medical report reflective of the symptoms described by the complainant. The medical report of February 2020 had no probative value and was submitted many months post termination of employment. The respondent said he conducted an oral investigation and did not link this to any procedural framework in the Safety Statement. The Policy presented post hearing on Bullying and Harassment was undated and it did not demonstrate that the complainant had been appraised of its existence.
The Complainants Solicitor emphasised that there was no dedicated Human Resource function at the Plant and I accept that the reference to this function in the contract was not properly defined. However, I also note that the complainant had worked for some time in a large Transport Company where Dispute Resolution mechanisms would have been widely available, to give him an understanding at least of a starting position in another setting.
The Complainant was unclear when he first raised his racial and religious discrimination with the Foreman. His earlier written submissions refer to the Foreman witnessing this behaviour, but this was not contained in the evidence adduced by the complainant.
I move now to the evidence adduced by Mr A and Mr C in the case. Mr A presented initially as taking the allegations against him very personally and wanted me to know that his own family had a multi-cultural component. I asked Mr A to share facts as he remembered, and I was struck by his positive description of helping the complainant to fit in.
I was also struck by the described daily ritual where the complainant asked him to borrow a cigarette. This was not disputed by the complainant. From my questioning of Mr, A, I am satisfied that this ritual occurred as he named the brand of cigarettes he used in a natural manner. This was not disputed by the complainant and stood in conflict to the complainant’s own evidence where he submitted that he stayed in his car alone during breaks. Mr A’s evidence on his location and that of the complainant on site was very precise.
I found it hard to reconcile the treatment which the complainant had tendered in evidence with this apparent act of kindness. Given the nature of the treatment reported, it seemed unusual that the complainant would request a cigarette daily from the main protagonist in his claim, yet he did not dispute this evidence in cross examination or re-examination.
I found Mr C to be a very clear witness and the complainant, in turn acknowledged his honesty. Mr C did seem most proximate to the complainant in his working life and was adamant that he had not witnessed any adverse treatment of the complainant. I accepted that both he and the complainant had a shared knowledge of London locations and were now the sole two” Local lads” on site. I was struck by his analysis of the complainant’s lack of interest in the minor tasks of labouring and his exploration of leaving the job.
The Complainant told me that he had not attempted to manifest his religion in the workplace and confined his religious expression to home prayer. Tipperary Co Council V Mc Ameer, EDA 153, Achbita and G4S Secure Solutions C-157/15, Mc Camley and Dublin Bus 27 ELR 81.
The Complainant was clearly negatively affected by his experiences during his working time at the respondent building site. I could see that he carried a burden in that regard and genuinely believed that he had been singled out and treated less favourably. However, I find that his very early requests for financial compensation firstly through a request for donation to charity and latterly in direct engagement with the respondent were opportunistic and lacking in pursuance of a proper procedural framework. I found the respondents version of events more credible in that regard. I note that when faced with a request for €6,000, he told the complainant he was going to” take his chances” at a full hearing.
Taking everything into account, I find that the complainant had an unhappy work experience at the respondent business. It did not turn out to manifest as the real opportunity that he had been assured of and he was deeply disappointed with the fall-back work when the Digger was withheld.
However, I am not satisfied on the case presented to me that the complainant has raised facts of enough significance for me to infer discrimination, harassment or victimisation.
I have not established that he suffered specific treatment in accordance with Section 6 and prohibited by Section 8 of the Employment Equality Act 1998-2015.
As already stated, I remain completely dissatisfied at the lack of employment records generated in real time from the respondent’s point of view. I find that the casualisation and absence of employment records was careless, unhelpful in the context of my investigation and something I hope the respondent will address immediately.
I find that the complainant has not satisfied the burden of proof required in this case and has not raised a prima facie case of direct discrimination on race or religious grounds.
I also find that the complainant has not satisfied the burden of proof required to establish that he was harassed on race and religious grounds in the course of his work.
Finally, I find that the complainant has not satisfied the burden of proof required to establish that he was Victimised by the respondent on race or religious grounds.
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.
I have concluded my investigation in this case.
I have not established a prima facie case of direct discrimination on race or religious grounds in accordance with section 6 of the Act and in contravention of section 8.
I have not established a prima facie case of Harassment on race or religious grounds in accordance with section 14(1) of the Act.
I have not established a prima face case of Victimisation on race or religious grounds in accordance with section 74(2) of the Act.
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Burden of Proof, Direct Discrimination, Harassment and Victimisation.