Complainant

Respondent

Parties

Konsuela Daradics

James White & Company Unlimited Company t/a The King Thomond Hotel (Amended on consent)

Representatives

      Self-Represented

Kenneth Buchholtz Campbell International Human Resource Consultants

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00064895-001

22/07/2024

The Complainant gave evidence on affirmation. The Complainant’s husband and fellow employee, Durin Burlacu of the Complainant also gave evidence on affirmation.

The Respondent was represented at the hearing. Ms Megan White was present but did not give evidence.  Daniel Giblin, Duty Manager gave evidence on affirmation as did Jessica Bane, Assistant Manager. 

The correct the name of the Respondent Company was clarified at the outset of the hearing.

The parties agreed the Complainant earned €412.75 gross per week and worked 25 hours per week.

The Complainant was given time on two occasions to review the Respondent’s submissions which she availed of.

Preliminary Objection

It was the Complainant’s evidence that she as not a lawyer and just wanted her complaint of discrimination heard.

Substantive Matter

It was the Complainant’s evidence that she was discriminated against and was subjected to harassment on the grounds of her race, with the most recent on 2 July 2024.

The Complainant was Romanian. She lived in staff accommodation provided by the Respondent for over one year. She reported having a good relationship with the other residents, until another employee, Alan, an Irish man, moved in. She stated that he was intoxicated at least every second day, as he only worked two days a week, unlike the other housemates who worked five.

Around 30 June 2024, Alan allegedly shouted at her, saying, “Go back to your f**king country, you f**king Romanians.” The Complainant reported the incident to her manager, Mr Giblin, the following day, which she believed was 1 July 2024. It was her evidence that he responded, “If I do something, I will be fired.”

The following day, Assistant Manager, Jessica Bane spoke with her, and asked if she was sure she wanted to leave as she had handed in her notice. It was her evidence that Ms Bane did not know about what happened with Alan.

It was also her evidence that, during her notice period, she was asked to carry out new tasks, not included in her job description. When she refused, she was dismissed for not undertaking the additional duties.

Under cross-examination, the Complainant was asked why her resignation email stated that she was very happy in her role, and that it had been a “great pleasure” to work there. She was also questioned about why she gave two weeks’ notice if she was so unhappy in her employment.

When asked why she did not complete an SOP as requested, she stated that it was outside her job description, and she was not willing to do it. It was put to her that she had offered to help, but then refused when asked.

She was also questioned about discrepancies between the narrative in her Complaint Form and her oral evidence. She disagreed that there were any inconsistencies.

When asked whether she resigned on 27 June 2024, as stated in her letter, the Complainant said she could not remember.

She confirmed she “may have” received a copy of the Dignity at Work Policy but did reference her contract of employment in her evidence. It was her evidence that she did not receive any training on bullying, harassment, or discrimination from the Respondent nor were there any procedures in place for the employee accommodation.

The Complainant’s husband gave evidence. He was asked whether he had witnessed the incident involving Alan walking by, singing, and shouting outside their window.

During cross-examination, he was asked whether he had taken any action in response to the incident. He stated that he had complained to the hotel’s General Manager, Megan White, along with Olivia Bane.

When questioned further, the witness was given an opportunity to explain why his evidence differed from what was recorded in the complaint form. He was also asked how long he had spoken with Alan. He stated that he spoke with Alan for approximately three minutes before returning to his room, and that during those three minutes, Alan had been shouting at him.

He added that his wife had spoken to Alan both before and after he had spoken to him. He stated that he was not present during the discussion between his wife and Alan when the racist comments were allegedly made.

Preliminary Objection

The Respondent raised a preliminary objection that the complaint was referred to the Workplace Relations Commission under the Equal Status Act but as she was an employee of the Respondent, it was the incorrect legislation. It was submitted that it was a frivolous and vexatious complaint that was ill conceived.

The parties were given an opportunity to comment on the judgment in County Louth VEC v Equality Tribunal [2016] IESC 40. The Respondent replying with reliance on, Marin Glamuzina v MCR Outsourcing Limited ADJ-00050907 and John Meehan v St Laurence O’Toole Catholic Social Care Company Ltd, ADJ-00036131.

Substantive Matter

By way of opening, it was submitted on behalf of the Respondent that the situation was straightforward. It was described as a “minor infringement” and “nothing serious.” No official complaint was made, and it was submitted that there was no need for an investigation. It was also submitted that the Complainant’s account at hearing differed from what she had set out in her complaint form to the Workplace Relations Commission.

Mr David Giblin gave evidence that, on the night in question, he received a text message from Jessica Bane, about an incident in the staff accommodation. As a result, he became aware that something had happened. It was his evidence that the Complainant raised the matter to him the following day. He advised her that Ms Bane was handling the investigation. He explained that the Respondent hotel needed to speak to Alan to obtain his version of events.

Later that afternoon, at approximately 5:00 p.m., when the Complainant finished her shift, Alan appeared. Mr Giblin described that the two individuals would not look at each other. It was his evidence that he explained to both parties that they needed to respect each other, and that time was required to investigate the complaint. He further stated that the following day, or the day after, the Complainant handed in her resignation. When asked whether he had dismissed her complaint or acted aggressively towards her, he responded, “No.”

When asked if he had a good relationship with the Complainant, it was his evidence that he believed he did. He described her as “highly professional, very good at her job. I liked working with her.”

There were no questions put to Mr Giblin in cross-examination.

Mr Giblin further stated that he was aware of the complaint and had intended for both parties to sit down the following day to discuss the matter. He outlined that he spoke with the Complainant and heard her side of the story. When they encountered Alan at reception, neither party would look at or speak to the other. At this point, both were clocking off their shifts, and he required time to speak with Alan to hear his version of events. He reiterated that he specifically told both staff members that they needed to respect each other and remain cordial.

When asked about the SOP (Standard Operating Procedures), Mr Giblin stated that Megan White, the Managing Director/General Manager, had directed him to ask the Complainant to prepare an SOP of her work. She initially refused to do so, and when asked a second time, refused again.

Jessica Bane, the Assistant Manager, gave evidence that she had involvement in the  investigation. She stated that she received a call from Alan but had been out of work for a few days due to personal reasons.

When she returned to work, she spoke to the Complainant initially about her resignation. Ms Bane stated that the Complainant did raise the allegation during their conversation, and she advised she would speak with Alan. However, she was unable to complete the investigation as the Complainant left the accommodation before her notice period had expired.

When questioned, Ms Bane was asked whether she believed the Complainant had made a complaint. She agreed that she had but clarified that it was not a formal complaint. She explained that she had been in the process of speaking to both parties but was unable to formally begin the investigation because the Complainant had left.

Ms Bane gave evidence that racism would not be tolerated and that the matter was taken seriously. She accepted that she was concerned, which is why she had spoken to both parties.

Preliminary Matter

The Complainant referred a complaint under the Equal Status Act 2000 (as amended) to the Workplace Relations Commission. However, a review of the narrative in the Complaint Form makes it clear that this is, in fact, a claim for harassment and discrimination on the grounds of race under the Employment Equality Act where she was at the time an employee, living in accommodation provided for by the Respondent.

The Workplace Relations Commission Complaint Form is not a statutory document; it is intended to provide an outline of the complaints. In this case, the narrative clearly indicates that the Complainant is alleging harassment and discrimination.

Relying on the Supreme Court judgment in Louth/Meath ETB v. Equality Tribunal [2016] IESC 40, the Complaint Form is amended to a complaint under the Employment Equality Acts, 1998 – 2015.

Substantive Matter

Discrimination is defined in Section 6 (1) of the Employment Equality Act 1998-2015:-

“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”

Section 6 (2) provides:

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

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

Section 14 A defines harassment:

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,

or

(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,

(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.”

The Burden of Proof provided for under Section 85A of the Act:-

“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.”

There is very little in dispute between the parties. It is accepted that an incident occurred between the Complainant and her colleague, Alan. It is further agreed that the Complainant reported the incident to her line manager, Mr Giblin, and that upon Ms Bane’s return to work, she spoke with the Complainant on 2 July 2024. It is not contested that the Complainant chose not to work out her notice period and left her employment and staff-provided accommodation early. Finally, it is accepted that no formal investigation took place.

The Respondent did not dispute that the interaction between the Complainant and Alan occurred in staff-provided accommodation, which formed part of the Complainant’s terms and conditions of employment. I am therefore satisfied that the incident occurred in the course of the Complainant’s employment, pursuant to Section 14A(1) of the Employment Equality Act 1998.

It is accepted that Mr Giblin listened to the Complainant when she reported the incident, and that the Complainant did not challenge his version of events under cross-examination. It is also accepted that they had a positive working relationship; she was considered a trusted employee and was spoken of in supportive terms by her manager. In reaching this conclusion, I note the Complainant’s own letter of resignation, which is complimentary of her colleagues.

The evidence regarding the date of the Complainant’s resignation letter is unclear. On the balance of probabilities, I find that the resignation letter was considered and drafted in advance of the Complainant raising her complaint regarding Alan. However, there is no complaint that her resignation had anything to do with Alan.

It is not accepted that Mr Giblin told the Complainant he could not act on her complaint because he feared being “fired.” Rather, the evidence indicates that he had already been informed of the incident by Ms Bane on the evening in question and that he explained to the Complainant the need to speak to both parties involved. He reminded them of the need to respect each other while time was taken to address the matter.

It is further accepted that Ms Bane followed up on the complaint upon her return to work, queried the Complainant’s resignation in the hope that she would stay, and took the matter seriously. She expressed concern about the allegations of racism and harassment.

I find both Ms Bane and Mr Giblin to be credible witnesses.

The Respondent did not present any evidence to challenge or contradict the Complainant’s account of Alan’s comments. While the Complainant’s supporting evidence from Mr Burlacu was limited, it nonetheless supported her account. On this basis, I find that the Complainant has discharged the burden of proof and established a prima facie case of verbal harassment on the grounds of race by Alan.

Sections 14A(2) and 15(3) of the Employment Equality Act provide that where a Respondent can demonstrate that it took such steps as were reasonably practicable to prevent harassment by one employee against another, it may constitute a defence.

Upon inquiry, the Complainant gave evidence that she had not received training on bullying and harassment, nor were there any house rules or procedures in place in the staff accommodation provided by the Respondent.

The Complainant did have a contract of employment, although unsigned. She referred to her job description and duties during the course of her evidence. The contract included a brief clause on bullying, albeit outdated. There is no evidence that she received a staff handbook, nor is there any acknowledgment of receipt of the handbook in the contract. While she was aware of dignity at work procedures relating to guests, there is no evidence of any such procedures relating to staff interactions in the accommodation.

It is accepted that she reported the matter to her line manager, and that Ms Bane took informal steps to investigate the allegation, although this process was not concluded. It is not accepted that the Complainant’s early departure from her employment resolved the issue. Despite the seriousness of the allegation being acknowledged, there is no evidence of any follow-up action taken by the Respondent to ensure that all employees were made aware of their obligations under the Employment Equality legislation, regardless of the outcome of the complaint.

The Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002 emphasises that the purpose of a policy is to prevent harassment:

“Prevention by means of a comprehensive, effective and accessible policy, and a strong commitment to implementing it, is the best way to minimise sexual harassment and harassment in the workplace. The purpose of an effective policy is not simply to prevent unlawful behaviour but to encourage best practice and a safe and harmonious workplace where such behaviour is unlikely to occur. A policy is likely to be more effective if linked to a broader equality policy.”

It was the Complainant’s unchallenged evidence that the workplace and associated staff accommodation comprised individuals of various nationalities, and that relations among staff were generally positive. However, the incident of racial harassment experienced by the Complainant, in a setting where she was entitled to feel safe and secure, is unacceptable.

The Respondent failed to provide adequate training or to communicate effective policies and procedures in respect of bullying, harassment, and sexual harassment. This failure extended not only to the workplace but also to the staff accommodation, which was under the Respondent’s direct control and formed part of the Complainant’s terms and conditions of employment. In light of this, I find that the Respondent’s omissions contributed to the Complainant being subjected to discrimination on the grounds of race.

I further note with concern the submissions made at the commencement of the Respondent’s case, wherein it was asserted that the matter involved a “minor infringement,” was “nothing serious,” and amounted to a “frivolous and vexatious” complaint. These remarks are inappropriate, particularly given the undisputed evidence of racist comments having been made in accommodation provided by the Respondent as part of the Complainant’s employment package. It is incumbent upon representatives not to mislead or diminish the substance of a complaint, particularly where such assertions are not supported by their client’s own evidence. In this instance, the sworn evidence of the Respondent’s witnesses directly contradicted the initial submissions made on its behalf.

I find that the Complainant was discriminated against and subjected to harassment on the grounds of race by the Respondent.

Having regard to all of the circumstances of the case, I am satisfied that the appropriate form of redress is an award of compensation for the effects of the discrimination. I therefore order the Respondent to pay the Complainant the sum of €7,000 in compensation for the discriminatory treatment endured.

In determining the quantum of this award, I have taken into account the steps taken by Mr Giblin and Ms Bane in response to the complaint. 

Discrimination – Harassment - Race