Complainant

Respondent

Anonymised Parties

A Baker

A Food and Drinks Company

Representatives

Ian Fitzharris B.L. instructed by  FX Rowan & Co Solicitors

 IBEC

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-00026997-001

12/03/2019

The complaint was submitted to the Workplace Relations Commission (WRC) on 12th March 2019 and concerns allegations of discrimination on the grounds of race and “other” in contravention of the provisions of the Employment Equality Acts, 1998-2015. The cognisable period of the complaint is six months prior to the referral (13/09/2018 - 12/03/2019). Incidents that are alleged to have occurred outside of the cognisable period are outside of the scope of this adjudication. Further incidents relating to the period commencing June 2019 are considered within the cognisable period of ADJ-00026226.

Note: The hearing of the within complaint has encountered significant delays since it was first scheduled for hearing in August 2019. The matter has been postponed on at least 12 occasions due to the unavailability of representatives on a number of occasions, the objection to a remote adjudication hearing, the Covid 19 pandemic, illness on both sides,  the association of the complaint with a second complaint submitted in December 2019 (ADJ-00026226) and on one occasion an objection from the respondent to the matter proceeding following the complainant’s counsel speaking to the WRC appointed interpreter prior to the commencement of a hearing.

The first hearing of the complaint took place on 4th November 2021 and the matter was concluded at an adjudication hearing on 26th November 2024.

Anonymisation:

The within complaint and the associated complaint (ADJ-00026226) contain information of a sensitive nature relating to the complainant which I believe deserves privacy. On that basis, I have decided to use my discretion and anonymise both adjudication decisions.

The complainant highlighted incidents of discriminatory treatment by his work colleagues who are almost exclusively Polish. The complainant describes himself as a Black French man and he does not speak Polish. The within complaints relate to his treatment while working as a Baker for the respondent during the months of February and March 2019. It is the complainant’s position that he was ignored, isolated, verbally and racially abused by his polish colleagues. The complainant contends that his health deteriorated following the incidents and he was certified unfit to attend work by his GP. The complainant stated that the respondent did not address his concerns and the efforts that were made to improve his working conditions such as an earlier starting time and having instructions translated into English were inadequate. The complainant alleges that the respondent did not follow its policies and handbook in relation to his complaints.

Evidence

The complainant gave sworn evidence at the adjudication hearings on 16th December 2021 and 16th January 2024. The complainant gave evidence in relation to incidents that led to a complaint being made against him which culminated in him being cleared of any wrongdoing on or about 10th May 2018. In respect of issues that occurred in February 2019, the complainant stated he felt threatened and isolated at work and that he was being discriminated against as he was black and did not speak polish. The complainant stated that he submitted his complaint to management on 9th February 2019 an when nothing was done to alleviate his concerns, he submitted his complaint to the WRC on 12th March 2019.

It was put to the complainant in cross examination that the respondent went to great lengths to address his concerns with a new starting time offered to him and a further instruction to his polish colleagues that all work-related Polish conversations be translated into English. It was also put to the complainant in cross examination that the substance of his email of 9th February 2019 related to communication issues and not complaints of discrimination as were the subject of the complaint to the WRC on 12th March 2019. It was also put to the complainant that he requested a transfer of work location on 21st March 2019 following his return from sick leave and that this was facilitated.

The complainant continued in his evidence at a reconvened hearing on 16th January 2024. The complainant’s evidence on his race discrimination claim was that he thought he was being told to “f..k off” by his colleague in and around February/ March 2019 and had no issue with this as all staff including himself used similar language. The complainant’s evidence was that he didn’t learn what the phrase meant until October 2019 when a driver clarified what was said to him was in fact a serious racial slur. The complainant stated that his wife, who is polish, also confirmed her understanding of the term to have the same meaning as expressed to the complainant by the driver.

The respondent refutes in the strongest possible terms that the complainant was discriminated against in any way during his employment. The respondent’s position is that the complainant raised communication issues in his email of 9th February 2019 at the same time he was informally spoken to in relation to performance issues. The complainant was subsequently absent on sick leave on numerous occasions and sought communication by email only. The complainant sought a transfer of work location on 20th March 2019 which was facilitated to support the complainant and assist him in his difficulties. The respondent contends that the complainant then began to mention discrimination and bullying and harassment in his correspondence and the respondent, by letter dated 4th April 2019, sought the specifics of these allegations which the complainant supplied in a formal complaint on 30th May 2019.

Evidence

The respondent’s witnesses gave evidence by oath/affirmation at the adjudication hearing on 16th January 2024.

Witness 1

The respondent’s HR Business Partner stated in evidence that he has been employed since September 2018 and provides support to General Managers on the retail network in respect of HR issues. The witness stated that an email had been sent by the complainant on 25th February 2019 in respect of concerns the complainant had. The witness stated that the issue related to bullying by exclusion and the stress that this was causing the complainant. The witness stated that he sought the complainant’s mobile phone number so that he could assist him. In respect of the difficulties being experienced, the witness stated that measures were put in place that would assist the complainant. Specifically, the measures were that the complainant would have translation provided for him from one of his colleagues and if the complainant wished for a different starting time, this could be facilitated. The witness stated that the complainant was notified by email (his preferred communication method) on 7th March 2019 that measures had been put in place to assist in his difficulties and as the complainant was feeling stressed, he was referred to occupational health and was provided with the details for the Employee Assistance Programme. The witness stated that he was trying to meet with the complainant to be supportive in respect of the issues that were causing him difficulties. It was put to the witness in cross examination that the respondent failed in its duty of care to the worker as it did not act in relation to the issues raised by the complainant and had not provided the required level of support to him based on the difficulties he was encountering in the workplace and the treatment he was receiving by multiple colleagues.

Witness 2

A Head Chef of the respondent gave evidence in respect of the issues that occurred in February 2019. The witness stated that the complainant and a colleague were spoken to informally in relation to performance issues and in respect of delays that were occurring in the kitchen. The witness stated that the complainant was not happy to receive the informal feedback on the performance issues. In respect of the bakers, the witness confirmed that most of the staff were polish, and that polish was mostly spoken but that nobody was subject to racial abuse. The witness stated that bullying and harassment training was provided on a yearly basis. The witness further stated that there was a zero-tolerance policy in respect of bullying and harassment and that all staff were aware of this. The witness confirmed in cross examination that although he was a Head Chef, he also worked as a baker but never witnessed any of the alleged incidents or had any email contact with the alleged perpetrator of the alleged behaviour towards the complainant. The witness also stated in cross examination that in respect of the investigation commenced in relation to the racial slur that three people who were interviewed were all shocked at the allegations and that the interviews in question found nothing to substantiate the complainant’s allegations.

The complaint relates to allegations of discrimination on the grounds of race and “other”.

Discrimination

Sections 6 (1) and (2) of the Employment Equality Act, 1998 at relevant parts state:

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—

(i) exists,

(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.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) - (g) not relevant……

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”), 

Burden of Proof

Section 85A of the Employment Equality Act 1998 provides as follows:

85A (1) Where in any proceedings 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,

(b) victimisation,

(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.

Conclusions

I have considered the complaints submitted by the complainant. There are separate decisions in respect of the within complaint; ADJ-00020627 and the associated complaint; ADJ-00026226. The within complaint relates to a situation where the complainant contends, he was discriminated against on the grounds of race and “other”. The email of 9th February 2019 outlines communication issues relating to his colleagues because the complainant does not speak polish which requires translation. The complainant subsequently alleges that he is being discriminated against and bullied by his polish colleagues, because he does not speak polish, yet he has not shown that he was subject to less favourable treatment during the cognisable period of the complaint. He also states that he was subjected to racial abuse in the form of a racial slur although he is not aware what the words mean until October 2019 which is not within the cognisable period of this complaint. The claim surrounding the racial slur is not referred to by the complainant in his complaint to management or in the complaint narrative submitted to the WRC in March 2019. The issue of the racial slur is therefore properly addressed in ADJ-00026226 which does specify the racial slur and relates to a period that includes October 2019.

Having reviewed the significant level of documentation submitted by both parties to the complaint, I note that the respondent went to great lengths to address the issues raised by the complainant throughout his employment and that proposals were put in place to address the issues raised and which the complainant deemed to have been inadequate. I accept that it would be difficult to address complaints immediately given the complainant’s sick leave absence and his request to be communicated with by email only. I further note that performance issues were also being addressed at the same time the complainant states that he was being racially abused and discriminated against.

In all the circumstance of the within complaint, I find that the complainant has not established that he was treated less favourably on the grounds of race within the cognisable period of the complaint and accordingly his complaint of discrimination on the race ground is not well founded. The complaint relating to discrimination on the ground of “other” which relates to the respondent’s failure to address his complaints is also not well founded as I am of the view, having reviewed the documentation submitted, that the respondent did its utmost to assist the complainant in resolving issues of dissatisfaction to him.

Having considered the submissions and evidence of both parties to the within dispute, I find that the complainant has not established that he was treated less favourably by the respondent within the cognisable period of the complaint. Accordingly, the complaint is not well founded.

Racial Discrimination