ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019651
A Night Porter
Complaint/Dispute 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: 15/10/2019
Workplace Relations Commission Adjudication Officer: Andrew Heavey
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 and to present to me any evidence relevant to the complaint.
The complainant was employed by the respondent as a Night Porter from 26th March 2018 until his dismissal on 16th November 2018. The complaint was submitted to the Workplace Relations Commission (WRC) on 5th February 2019. The complainant contends he was discriminated against on the grounds of race, in relation to training, in relation to his conditions of employment and in relation to “other.” The complainant also contends that was harassed and victimised and subject to a discriminatory dismissal for opposing discrimination.
Naming of the parties
I have decided to use my discretion and anonymise the parties to this decision. The respondent requested that the decision be anonymised. It stated that it is a good employer and is keen to have a diverse and multicultural workforce employed at the Hotel. The respondent outlined its lack of knowledge of the behaviour that was occurring on the night shift and that it would suffer serious reputational damage if its name was publicised in this decision. The complainant did not object to the request.
Summary of Complainant’s Case:
The complainant gave an oral presentation at the adjudication hearing and was assisted on occasion by an Interpreter provided by the WRC. The complainant outlined that he was a member of the Hotel’s night staff and was employed as a Night Porter in March 2018. The complainant stated that there were no issues in the workplace until a new employee joined the Hotel in July 2018. The complainant submits that the dynamic changed on the night shift thereafter and he and his other Polish colleagues were verbally abused and were called several abusive names and were not given the same level of shifts as Irish staff employed in the same role. The complainant stated that as well as being the subject of racial abuse, he was also personally threatened by some of his colleagues on the night shift.
The complainant outlined a number of the names that he had been called and it was intimated to him that he would be “visited” at his home by some of his colleague’s friends. The complainant said he was aware of the meaning of these threats and is claiming that he was discriminated against and harassed on the grounds of race, discriminated against in relation to training, conditions of employment and “other”. The complainant also states that he was dismissed for discriminatory reasons and for opposing discrimination. The complainant is seeking compensation in relation to his complaint.
Summary of Respondent’s Case:
The respondent refutes the complaints. The respondent outlined that it was unaware that the complainant was being treated in the way described. The respondent stated that once it became aware of the issues that existed with staff on the night shift, it immediately engaged the service of an external consultant to assist in improving relationships and to carry out an investigation in relation to the issues raised by all staff at the time. The respondent stated that the Investigation report highlighted a number of issues that existed in the workplace including verbal abuse, threats of violence and unfair work allocation as well as inappropriate management practices at the Hotel. The respondent stated that it met with the staff in question to discuss the Investigation Report and the recommendations to improve relationships in the workplace and to ensure that the policies and procedures of the employment were adhered to at all times.
The respondent stated that the complainant was not subject to unfavourable treatment compared to Irish staff on the basis that all staff involved received some form of sanction as a result of the Investigative process. The respondent also outlined that the complainant was not targeted for standing up for his friend and that the Porter who was alleged to have been promoted to Night Manager was not given the role and subsequently left the business. The respondent stated that the complainant was not dismissed from his employment following a campaign of bullying and harassment but was dismissed while on probation, having received a final written warning for a violent act and persisting in aggressive behaviour despite managements efforts to address the issues he complained of and the issues raised by other staff in relation to the complainant’s behaviour. The respondent contends that there is no merit in the complaint, and it should be dismissed.
Findings and Conclusions:
The complainant was employed from March 2018 until November 2018. All parties are in agreement that there were no issues of concern with the complainant’s performance or behaviour until July 2018 when a new Night Porter was employed.
It is clear from the respondent’s submissions and presentation at the adjudication hearing that it made every effort to improve relationships in the employment and to ensure that all staff adhered to the official policies and procedures of the workplace. In response to questioning at the adjudication hearing, it was accepted by the respondent that the allocation of work to the Night Porters favoured the Irish staff members (slightly) and that it was the Irish staff members who had initiated the remarks that were initially described as banter but quickly became more serious and racist towards the complainant and his fellow Polish Workers.
The complainant made a complaint in August 2018 in relation to how he was being treated in the workplace and an independent consultant carried out an investigation and issued findings and recommendations in relation to the issues raised, including counter complaints that were made against the complainant by Irish staff employed at the Hotel. The report was finalised in September 2018 and was discussed at a meeting with the staff in question at a meeting on 22nd October 2018. The complainant’s probation was extended by four months as part of that process.
The Applicable Law
Discrimination is defined under Section 6 of the Employment Equality Act, 1998 as follows:
6(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular 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,
(b) a person who is associated with another person —
(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and
(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.
Section 14A (1) of the Employment Equality Act, 1998 states as follows:
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.
(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable —
(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and
(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.
(3) A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.
(4) The reference in subsection (1)(a)(iii) to a client, customer or other business contact of the victim s employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment.
(5) In this section ‘employee’ includes an individual who is —
(a) seeking or using any service provided by an employment agency, and
(b) participating in any course or facility referred to in paragraphs (a) to (c) of section 12(1),
and accordingly, any reference to the individual’s employer includes a reference to the employment agency providing the service or, as the case may be, the person offering or providing the course or facility.
(6) Where subsection (5) applies in relation to a victim, subsection (1) shall have effect as if for “in relation to the victim’s conditions of employment ’there were substituted ‘contrary to section 11’ or, as the case may be, section 12.
(7) (a) In this section —
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,
being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
Section 74(2) of the Employment Equality Act, 1998 states as follows:
(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 2000 or 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.
Section 15 of the Employment Equality Act, 1998 provides as follows:
15(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.
(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.
(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—
(a) from doing that act, or
(b) from doing in the course of his or her employment acts of that description.
Burden of Proof
Section 85A of the Act provides as follows in relation to the burden of proof which a complainant must satisfy:
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.
The complainant was involved in an incident in August 2018 whereby he was knocked backwards while carrying a jug in each hand. The complainant reacted by kicking the person who had accidentally knocked him down while coming through a door. This incident was the subject of a separate disciplinary process and the complainant was given a final written warning and a 3-day unpaid suspension. It appears that this disciplinary sanction was not appealed.
It is unclear what date this incident occurred although the disciplinary process had concluded, and the sanction was notified to the complainant on the 30th August 2018. It is clear however, that there were several other issues that had also occurred in and around August 2018, yet by the time the complainant’s initial complaint was investigated, he had been disciplined and was in receipt of a final written warning for an unfortunate incident that occurred at a time when the complainant was obviously aggravated and frustrated at his treatment in the workplace.
In relation to the complaints of discrimination and harassment on the race ground, I find that these complaints are well founded. Discrimination occurs when someone is treated less favourably than another on any of the grounds provided for in the legislation. It is clear that this occurred to the complainant on the grounds of his race. The complainant was in the minority group of the night staff and was subject to racial abuse which was instigated by his Irish colleagues. This was stated in evidence by the complainant and by a witness for the complainant and was also accepted by the respondent. I note the respondent’s “bona fides” that it was not aware of the situation amongst the night staff and that it went to great lengths to resolve matters once it became aware of the situation. However, having found that the discrimination and harassment did occur, the legislation deems the employer vicariously liable for the actions of its employees.
The complainant also contends that he was discriminated against in relation to training, conditions of employment and “other”. However, apart from asserting that he was not provided with training on the computer system, cards or reception duties, the complainant has not put forward any evidence to substantiate these claims of discrimination and has therefore not discharged the burden of proof on these issues.
I do not find that the complainant was victimised by the respondent in relation to the disciplinary process that followed the kicking incident of August 2018. The final written warning was given to the complainant solely for his behaviour during that incident. Notwithstanding the complainant’s obvious frustration in the workplace at that time, there is no excuse for kicking a colleague and the respondent showed leniency to the complainant by not dismissing him at that time.
In relation to the extension of the complainant’s probation, this occurred as part of the process addressing the complainant’s grievance. I am satisfied that the grievance submitted by the complainant constitutes a protected act within the meaning of Section 74(2) of the Employment Equality Act, 1998. However, there was no evidence put forward by the complainant that the extension of the probation was victimisation “as a reaction to” the complaints he submitted to the respondent. Accordingly, the complaints of victimisation are not well founded.
In relation to the alleged discriminatory dismissal and dismissal for opposing discrimination, I find that these complaints are not well founded as I accept the respondent’s position that the complainant was dismissed for unsuccessfully completing his probationary period in circumstances where he was in receipt of a final written warning and had subsequently engaged in an argument with a colleague on or about 12th November 2018 despite the instructions issued by Management as a result of the Investigation Recommendations issued in September 2018.
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.
Having considered the submissions of both parties and for the reasons stated, I find that the complaint is well founded in part. The complainant was discriminated against and harassed on the grounds of race. The respondent is directed to pay the complainant €5,000 in compensation. I find that the other complaints of discrimination, the complaints of victimisation and the complaints of discriminatory dismissal are not well founded.
Dated: 4th March 2020
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Discrimination, Harassment, Victimisation, Discriminatory Dismissal. Vicarious Liability