Complainant

Respondent

Parties

Syed  Baqur Hussain

OCS One Complete Solution Limited

Representatives

SIPTU

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-00056522-002

08/05/2023

The complainant contends that he was discriminated against and harassed on grounds of race contrary to the provisions of the Employment Equality Acts, 1998-2015, when he was issued with a final written warning and was demoted from the position of contract manager to the position of security guard on the 2/2/23.

The complainant is an l Indian.

He commenced employment as a retail security officer with the respondent in 22/3/2011, progressing to the position of Contract Manager with one of the respondent’s clients on 24/9/2018.

His annual salary is €38,500.

He submitted his complaint to the WRC on 8/5/2023.

It is the complainant’s contention that there is a culture of racism, fuelling acts of racial discrimination against employees.

The complainant was employed as a Contracts Manager, responsible for looking after security in twenty city centre Tesco supermarkets.

The complainant contends that he was discriminated against on grounds of race when he was issued with a final written warning and was demoted from the position of Contract Manager to a security guard on the 2/2/23, a sanction which was upheld upon appeal on 3/4/23.  This sanction issued on foot of a physical altercation he had had with a customer, Mr X, caught shoplifting on the 30/8/2022 in the Jervis St Tesco store. The complainant acted in self-defence in the face of a very aggressive and threatening customer.

The complainant contends that he was harassed on the grounds of race.

The respondent failed to take on board the threat facing him and failed to consider Mr X’s racial abuse of the complainant on 30/8/22.

The complainant gave evidence under Oath.

The complainant confirmed that he had withdrawn the complaint under the Industrial Relations Act,1969.

The complainant advised that he was called to assist a security officer who had stopped a customer in the Jervis St shopping Centre on 30/8/22, carrying €400 of unpaid- for meat in his bag.

The complainant asked Mr. X, the customer, to return the product which he did as did his wife. The company rule is that if the amount of goods apprehended exceeds a value of €30, the employee must bring the customer to the security room and call the Gardai, but the complainant decided to just recover the goods and let the customer go. He was scheduled to fly to India on leave within the following few hours. Mr. X started calling the complainant a “Paki paedo bastard”.

He told Mr X to leave the store. Mr X slapped the colleague- security officer, Mr I, who had stopped him and pushed him in the back. He, in turn, ricocheted off the head of the complainant injuring him. This shopper was a well-known shoplifter for whom gardai had been called two weeks previously. The customer struck Mr I and Mr M, the other Contract Manager.

 The complainant had never been in such a threatening situation before. The customer started to lunge at the complainant; he grabbed the customer’s hand. The customer punched him a few times and the customer’s wife kicked him in the face. He suffered serious facial injuries. The complainant called the Gardai who came an hour later by which time the customer and his wife had left.The complainant states that he acted in self-defence. The customer was over 6 ft tall.

He reported this incident to his contract manager who created an incident report.

The complainant went to his doctor who prescribed medication and referred him for skull and facial x-rays in Smithfield Clinic; they then referred him onward to Beaumont Hospital. He waited over 9 hours without being seen. He went home.

A few days after the incident, he went to India on pre-planned leave.

From 30 /8/- 20/12/2022 he was on certified sick leave.

He was suspended on 20/12/22. An investigative meeting took place on 6/1/23.

A disciplinary hearing followed on 24/1/2023 at which he was told that he had not followed procedures. A final written warning issued, and he was demoted from contract manager to security guard on 2/2/2023.

SIPTU advised that a security guard is on the SEO rate of €13 an hour, below what he had been earning as a manager.

The act of discrimination was that the comparator, another contract manager, Mr. M, a white European, also involved in the incident and who restrained the shopper, was not disciplined while he, and another Asian security officer, Mr I, were sanctioned. Mr. I got a final written warning. Mr M, a non- Asian, was not sanctioned. This is a clear case of less favourable treatment.

His response on the day to Mr. X was due to lack of training. He believed that his life and safety was at risk. The customer was coming for him. In the circumstances facing him he believes that he had made the right decision.

He made enquiries and was told that the respondent had no further training records of him having been trained in self-defence.

He told the respondent about the racial abuse meted out to him by the customer. He should have got a lesser sanction. When asked by the adjudicator, he stated that the respondent said nothing to him about the racist abuse hurled at him.

He asked to be placed on a performance improvement plan. This was rejected.

He received no response from the respondent about alternative work on offer in other sites. The employer did not offer him the role of auditor, a role identified by the complainant   and a role which carried the same or similar salary to that of a contract manager.

The complainant has not attended work since April 2022. The respondent never rang him after the incident to enquire about his health.

Other instances of discrimination:

The Director of Security refused to pass his probation on the 8th of July 2019. The Director of Security fabricated an allegation using Facebook material that he was neglecting his duties instead of concentrating on his work. The disciplinary hearing concluded without any findings of wrongdoing or sanction being imposed upon him. This was done to prevent non-Irish people having senior roles.

He was turned down for the role of operations manager in 2019.

The respondent hired new Irish contract managers in 2022 who were paid €40,000 per annum while the complainant who had more service was paid only €38,000 per annum. This was notified to him on 31/5/2022.

In the appeal hearing against the sanction on 27/3/2023, he raised the aforementioned matters believing them to be instances of discrimination. The manager conducting his appeal against the sanction failed to factor these matters into his deliberations and rejected the complainant’s appeal.

Cross examination of complainant.

He confirmed that security guards reported to him and that he was responsible for their training.

He agreed that it is expected that a risk assessment would be done when confronted with a Mr. X type. Usually, his advice would be to take the product back and let them go.

In relation to the company’s advice to de-escalate, the complainant stated that he had walked away from hundreds of incidents but on this occasion, he believed that his life was at risk. Mr X was also racially abusive towards him.

To the question as to why he hit Mr. X when Mr. X had not hit him, the complainant stated that Mr. I was dealing with him and he, the complainant, acted to protect himself. To the question as to why company processes were not used, he states that he acted to protect himself from injury. He stated that he believed that he had followed the respondent’s policy for such events.

He confirmed that he, Mr I and Mr M were investigated as to how they had responded to Mr. X’s aggression.

To the point that Mr M’s conduct throughout the incident conformed to company rules, the complainant stated that he needed more training. He had never met anyone so aggressive as Mr. X and had he had more training, he would have dealt with the situation in a better way.

To the point that his life was not at risk and that he should have acted within the bounds, he believes that his life was at risk at that point.

He confirmed that his line manager had dealt with his probation and face book incident. He accepted that probation was extended for all contract managers. The complainant disagrees with the statement that the Facebook incident was amicably settled.

He stated that he has been working as a part- time taxi driver for the past 3 month earning an average of €1100 a month as opposed to his monthly salary of €3166.

Witness evidence of Mr PIndel given under affirmation.

The respondent objected to this witnesses’ evidence as his complaints are outside the remit of this investigation and constitute a breach of the rules of evidence. He chose not to submit any complaints himself to the respondent or to the WRC. They repeated this request on the second day of the hearing. The SIPTU representative maintains that he is witness to a broad culture of racism as exemplified in racist statements made to him and colleagues and a culture disposed to more harsh treatment of Asian and non- Irish personnel.

I decided to hear the evidence and as it unfolded, to decide, then, on its relevance. The persons named by the witness were in the room and would have the opportunity to refute any claims which might be made,

He was employed as security guard from 2016-22. He resigned in Jan 2022.

He referred to his written statement of 14/4/2022.

The witness states that he heard a manager involved in the disciplinary process state on the telephone in March or April 2021 to a Pakistani employee, “Shut the fuck up you foreign c..t”, you are in my country!”

Cross examination of the witness.

The witness confirmed that he did not see who the manager was talking to in that phone call of March/April 2021, did not know the identity of the recipient and could not, therefore, confirm that the employee was Pakistani.

The SIPTU representative requested that I consider the evidence of 3 further witnesses- former employees.

The adjudicator advised that she would hear the evidence of Mr Kowalski, but not the two other witnesses, Mr A and Mr S. who could only describe conflicts which they had had with managers in the company as opposed to direct statements made to them.

Evidence of Mr Kowalski given under affirmation.

He referred to his written statement of 14/4/2022.

He was employed with the respondent from 2014 to 2021. He was promoted to a store detective’s position and then to one of the nine contract managers’ positions in 2020. His job entailed training and the performance management of staff.

The witness finished at the end of 2021 due to acts of bullying and discrimination by the respondent. When the witness did not reply to a text message sent after one of their monthly operation meetings, around 6 pm., the Director of  Security  reproved him for not replying to her text. When he replied that his shift was 9-5, she said

“ if you think this job is 9-5, you should go back foreign, where there may be a place for people like you. If you think this job is Monday to Friday., you’re in the wrong place.”

He believes he told HR about this latter statement. He went to HR about his treatment of him but chose not to put anything in writing. It was acknowledged, but he cannot remember what they said to him.

The Director of Security never said anything about Poland.

He never saw any anti-racism polices or posters displayed anywhere in the workplace.

Cross examination of the witness.

In relation to the timeline, the witness stated that he can’t really remember the dates.

When he put the complaint to HR he was told to go and have a coffee with the Director of Security, because it was his word against hers.

He stated that he filed a complaint under Bullying and Harassment, and nothing was done about it. He confirmed that he did not appeal HR’s inaction. He has a copy of his complaint to HR but forgot to submit it with his statement to the WRC.

Rather than submitting a complaint to the WRC, he sought a solicitor’s advice. The solicitor told him he’d have to have witnesses to stand up his complaint and because he did not want to endanger any colleague’s position in the company by asking them to give witness evidence, he submitted his resignation letter on 16/9/20. He left on 11/10/2020.

He needed a reference from the company. He did not take a complaint to the WRC

He declined to answer why he had stated in his resignation letter to the Director of Security and another manager, “it was a pleasure to work with you both”.

Again, in response to my question, witness could not remember if he put the statement, “ go back to your own country “ to HR.

Summary.

The SIPTU representative stated that the flaws in the conduct of the disciplinary procedure mean that it was tainted with bias. The investigator’s notes did not record the racial abuse. The investigator had investigated the other party, Mr I., in the incident, had sanctioned him, so her independence was compromised. The security officer did report racial abuse to the investigator.

The report of the Key Account Manager who conducted the disciplinary hearing was not provided to the complainant but is in the respondent’s submission. He did not record the racist abuse told to him by the complainant, nor did he call for first aid or an ambulance, though aware of a head injury to the complainant.

The findings of the appeal were not provided on foot of a DAR.

The respondent originally stated that there were no vacant Auditor positions and then accepted that there were, but none were offered to the complainant.

The comparator, a Polish man, was not sanctioned.

He was paid less than Irish contract managers, though the respondent states that market forces dictated this. His employer failed to train him adequately

Ethnicity and race were the reasons for the disciplinary sanction of a 3- steps down demotion.

The Director of Security lodged an unfounded complaint against the complainant in 2020.

He was not given a copy of the equality policy when he raised discrimination.

The respondent has not furnished their Equality Policy

The respondent failed to identify racism in work in their risk assessment policy drawn up in 2020.

He was subject to indirect discrimination in that he had to comply with standards not expected of another non- Asian employee.

The direct discrimination is that he was demoted 3 steps down. As a result, he has suffered a total salary drop of €62,000. He has worked as a part time taxi driver, thereafter, earning an average of €1100 a month

The complainant has raised a prima facie case which the respondent has failed to rebut.

Concerning the admissibility of incidents outside of the statutory time limits, SIPTU states that they rely on Co Cork VEC V Hurley, EDA 1124.

Legal submissions.

The complainant relies on Ntoko V Citibank, (2004) 15 E.L.R 116. It held:

 “a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the claimant’s power of procurement. Hence the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging claimants to prove something which is beyond their reach, and which may only be in the respondent’s capacity to prove.”

Dublin Corporation v. Gibney, EE5/1986 defined a prima facia case as:

“Evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred”

This is the case in the instant complaint.

Concerning the complaint of harassment on grounds of race, the Equality Officer held in  A Complainant v a Hospital,DEC-E2002-009

“where an employer is informed of the existence of harassment, it is the employers’ responsibility to put in place such procedures as would enable the appellant to avail of working conditions free from discrimination.”

Also, in Atkinson v Carty [2005] ELR 1, a Circuit Court decision, Delahunt J found that the plaintiff had suffered serious sexual harassment and indicated that it was for the employer to provide a safe place of work. In that matter there were no written procedures in place to provide the plaintiff with an avenue of redress. The court held that

"The failure of the Defendants to have in place adequate procedures renders them liable and by reason of their failure to fulfil their statutory obligations they are responsible and cannot plead immunity from same simply because the Plaintiff failed to make a complaint”.

The complainant is still unwell.

The respondent is vicariously liable for the discrimination suffered by the complainant.

The complainant asks the adjudicator to uphold his complaint.

Redress.

The complainant seeks compensation.

For compensation to have any chance of being dissuasive in a company of this size, it must be the maximum allowed and the complainant asks the adjudicator to so find.

The representative recommends training for staff in racial discrimination and for the equality policy to include specific recommendations in this matter.

The respondent denies that the complainant was discriminated against or harassed contrary to the race provisions of the Employment Equality Acts, 1998-2015.

The complainant at the time of the incident on 30/8/2022, held  the position of Contract Manager, responsible for the performance and training of security guards. It was an oversight position. His job was to keep people, property and other assets safe and secure.

Following an investigation, disciplinary process and appeal, the complainant was sanctioned for having failed to acknowledge that punching Mr X, a customer apprehended for shoplifting, was inappropriate behaviour, and for failing to follow agreed processes when confronted by an aggressive customer caught shoplifting.

The respondent advised that five witnesses would give evidence.

Ms Joan Murphy, Hold Baggage Screening Manager, gave evidence under oath on 11 /12/2023.

Ms Murphy was tasked with conducting the investigation on the 9/1/2023 into the complainant’s actions in the incident of 30/8/2022 in Tesco, Jervis St. Shopping Centre.

The respondent showed the video of the incident.

The witness’s investigation included a review of all statements made and CCTV footage.

The complainant told her he had acted in self-defence because he was provoked. She didn’t believe that he had followed policies. He did not reveal that he intended to de-escalate the situation as company processes and the task risk assessment protocol require, and as befits a person in a management position. The incident was witnessed by shoppers. The complainant should have allowed the shoplifter to go on his way having retrieved the stolen goods. He over reacted. She recommended that he should be put into a disciplinary process.

The complainant maintained that he had been 100% correct in his response to the incident. He did not refer to any racial abuse by the customer towards him.

A final written warning issued to his colleague, Mr. I, who was in a more junior position as there was no more junior position into which this colleague could be demoted.

Cross examination of Ms Murphy.

The witness confirmed that she had never been provided with any legal advice on self-defence.

She saw the video which showed the shop lifter striking the colleague security officer, Mr. I. She could not confirm if the shoplifter screamed racial abuse at the complainant as there was no audio on the CCTV, but HR advised her of comments made to the complainant.

When asked, she stated that she would have to check her minutes of the meeting of 9/1/2023 to see if she had recorded that there was racial abuse.  She did not ask the complainant for any examples of racial abuse.

She does not recall the complainant saying that had he received more training he might have acted differently.

Ms L O’Neill, Director of Security gave evidence under oath

The respondent submitted a copy of the OCS, Task Risk Assessment, dated 15/6/2021.

Shoplifting is covered by Standard Operating Procedures. The witness stated that the risk assessment process, as set out in page 6 of therespondent’s Standard Control Measures, identifies what is to be done when faced with the situation which arose with Mr X on 30/8/22. This process was known to the complainant. Staff have to undertake a dynamic risk assessment; what is the risk to you at that time.

The Control Measures state:

 “Security personnel to physically engage with persons who they feel may cause them or others harm only as a last resort. Gardai to be called as soon as situation escalates”.

A staff member cannot be the aggressor.  Reasonable force is only to be exercised by security personnel in conflict situations. All staff have a panic alarm on their person, linked to the Gardai. The store in which complainant worked was category 2 risk.

Contrary to what the complainant asserted the witness did not try to stop him passing his probation. All nine contract managers had their contracts extended. One Irish manager had his contract terminated; eight remained, including the complainant.

Concerning the complainant’s complaint about the witnesses’ involvement in the Facebook incident; the outcome of that was conveyed to complainant in 2019 and he never raised it again until his demotion.

He did not have the qualification for a promotion to operations manager in 2019 – which he cites as an example in a chain of discriminatory events. But he was given feedback from HR at the time and how they could assist him in terms of professional development. The decision was totally unconnected to his race.

Concerning Mr Kowalski’s complaint about his probation being extended, his probation was extended like all other contract managers– Irish and non -Irish alike.

The witness denies that she made the remark, “go back to your own country”, to Mr Kowalski .

She did not say that she wished to get rid of non-Irish managers.

Mr Kowalski never raised these issues with her prior to his resignation in 2021.

Cross examination of Ms O’Neill.

She is responsible for 750 managers. Each manager is responsible for training those who report to him/her.

She was not responsible for drawing up the risk assessment document. She signed off on it Concerning the complainant’s punch at Mr, X and why this could not be seen as “a last resort,” she saw the CCTV footage at the hearing yesterday, 28/2/2024. She saw that it was the security officer, Mr. I, not the complainant, who had been struck/assaulted and who was at risk.

The complainant’s line manager is responsible for violence awareness training and applying risk measures. The witness stated that training on racial abuse and provocation was included in training of security staff.

A 999 call is a choice for the individual security officer or manager.

The respondent advised that the witness was not involved in the disciplinary process which led to the complainant’s demotion so cannot be linked with earlier allegations of discrimination in 2019.

Ms McGrath Senior HR Advisor gave evidence under oath.

The witness advised that the Company has diversity and inclusion, anti-bullying and harassment policies, and Employee Assistance Policies.

The complaint of harassment on grounds of race.

The complainant did not make a formal complaint of bullying and harassment. After the incident he was liaising with his line manager.

OCS has posters in the canteen promoting trust and respect for colleagues. The respondent holds regular training with managers. All managers are issued with all HR policies. The complainant had training on these policies and the process to be used when raising a complaint.

The allegation of pay disparity between Irish and non-Irish contract managers.

The pay scale for contract managers ranges from €38,000 to €40,000.

The situation is more competitive now. In attracting new managers, the salary was increased to €40,000 for 2 non- nationals and for 3-4 newly recruited Irish managers. The complainant never raised the matter of pay disparity with her. Race plays no part in determining salaries.

Breakdown of Contract managers by race:

In 2021 there were 5 Irish and 3 non-national managers.

In 2023 there are 11 managers of whom 8 are Irish, and 3 are non-national.

The application of sanctions by race.

Upon questioning, the witness advised that 2 other demotions had occurred; one Irish person (on another occasion), in addition to the complainant had been demoted.

In the past 12 months, three non-nationals and two Irish employees were disciplined for violent assault. One Irish employee and one non- national were given final written warnings. One Irish employee and one non- national employee were dismissed.

Those decisions were taken on the basis of the evidence presented,

Cross examination of Ms. McGrath.

The witness confirmed that she is with the company since 2021.

She expects that the complainant received training in Bullying and Harassment and in the Equal Opportunities Policy but will check on this.

She has been advised that there is no record that the complainant received training in the SOPs created in 2019.

The witness disputes the veracity of the statements of Mr Pindel and Mr. Kowalski concerning an absence of anti – racism posters and she will provide copies of posters on display in the canteen.

When asked, the witness confirmed to the adjudicator that the complainant was not provided with the respondent’s policy on harassment when he advised the respondent of the harassment by Mr X on the 30/8/22.

The cross examination of the witness resumed on 8/4/2024.

She requested a statement from the line manager as why the disciplinary process was necessary. The Key Account Manager emailed her with this information.

The witness explained that her role in the whole case was to support and advise colleagues on the disciplinary process. If she had had a concern about a manager’s decision she would have readily asked /put that concern to them. The witness or a colleague chose who was to conduct each stage of the disciplinary process.

The witness didn’t submit any questions to be put to complainant during any stage of the disciplinary process. The data access request would have gone to their UK office.

The witness disputed the assertion that Ms Joan Murphy’s involvement in the investigation of the two other employees involved in the incident of 30/8/22 rendered her impartial. The respondent tends to use the same manager in these situations. She was impartial.

The witness confirmed that Mr I did report the racist abuse of the 31/8/2024 to Ms Murphy and that she, herself, provided Ms. Murphy with reports detailing racist abuse. The witness stated that she did not provide advice to managers on the subject of racial abuse.

The witness didn’t provide a copy of the Equal Opportunities Policy to the investigator because Ms Murphy, as a manager, already had a copy or had access to a copy.

The basis of the decision to sanction him was set out in the outcome to his appeal, provided to him on 3/4/2023, if not in the actual letter sanctioning him.

The witness stated that she conducted a trawl looking for alternative roles available in 2023. The Operation Manager and the Key Account Manager identified the appropriate position into which the complainant could be demoted. To the point as to why he was not placed in an Auditor’s position, available in April 2023, the witness stated that there were no vacant auditors’ positions prior to the completion of the appeal stage of the disciplinary process. The witness confirmed that the salary of an Auditor would be above that of a security guard, (the hourly SEO rate is €12.90 an hour for a security guard).

The witness stated that when asked, she provided guidance on racial discrimination.

She didn’t send the complainant a copy of the Equality Policy but did send him the respondent’s Global Code of Conduct, 2020, after the incident of the 30/8/2022. Employees go into the QR barcode to access policies.

The complainant participated in toolbox talk training on dealing with a physical assault in February 2021.

IBEC reiterated that an employee should only restrain a violent aggressive person if they pose a serious threat to the guard, colleague and customers.

Evidence of Key Account Manager Mr Vincent Galvin, given under oath.

The witness is the complainant’s line manager since April 2022, and he received the report of the incident on 30/8/2022. He had previously been a Contract Manager.

Contract Managers look after a set region. The complainant had the Tesco contract with 50-60 security officers working to him. The complainant is required to upskill staff by way of providing toolbox talks.

The complainant is tasked with managing underperformance should it arise.  For this he needs knowledge of company policy and procedures. He does risk assessments. His job is to identify how to measure risk if confronted with verbal or physical assaults or racial abuse and to reduce the risk level. A Contract Manager is not supposed to respond to aggression with aggression. As a Contract Manager, the complainant would complete a report of an incident involving a security officer and would establish that the security officer had followed the correct process. The violence risk management training would have prepared him for attacks. The complainant should have called for support.

The witness compiled a report of the incident of  30/8/22.

In doing this, he reviewed CCTV footage. He cannot remember if the complainant mentioned racial abuse.

He expected de-escalation when they had recovered the stock from the shoplifter. The witness stated that it didn’t matter what kind of abuse was levelled at the complainant, he should have stepped away.

He confirmed that it was the complainant’s first offence.

Thereafter, the witness ceased involvement with the process other than for receipt of sick cert.

Cross Examination of Mr. Galvin.

The witness denied the truth of Mr. Pindel’s statements on his alleged comments. He denied that he used any racist language.

It is the first time he recalls being called to an incident with a Contract Manager.

He told the Director of Security of the assault. She told him to investigate and see that everyone was ok. He submitted a report. He didn’t discuss the report with anyone other than the three security operatives present at the incident.

The witness saw the complainant’s injuries. The witness stated that he did not call anybody who is first aid trained. The complainant told him he was waiting for the Gardai and was going to his own doctor. Three staff were injured. To the question as to how he looked after the complainant’s welfare at that time, the witness stated that he asked another employee to take the complainant to the hospital.

The witness stated that Mr I reported the racist comment which had been made to them. To the question as to why he did not record the racist comments in the incident report when the complainant and Mr I informed him of them, the witness questioned the relevance of such abuse to his investigation and responded that the complainant should have stepped away. The witness cannot remember if the comparator, Mr M, or the complainant mentioned racial abuse.

When asked if the risk assessment template is up to date if racial abuse is not mentioned, the witness stated that they do not differentiate between one type of abuse and another.

Having reviewed the CCTV footage of the incident on the 30/8/2022, he did not know if the complainant felt endangered. The complainant never told him that either he or his staff required training.

Evidence of Mr Jason Cremin, Contract Manager, Cleaning, given under oath.

The witness conducted the disciplinary hearing on the 24/1/2023.

The witness considered the complainant’s actions to be gross misconduct. He took no accountability for his actions. He confirmed at the disciplinary hearing, but not beforehand, that he had received training in how to deal with violent, aggressive customers and that he, himself, provides such training for security guards. This persuaded the witness that the complainant had, in fact, received adequate training to deal with such incidents. The witness did consider dismissal, but the complainant was a long serving employee, so he opted for demotion. Had he issued him with a final written warning, it could have happened again.

The witness stated that he did not speak to the Director of Security about the disciplinary process.

The complainant didn’t mention racial abuse; he did mention verbal abuse.

Cross examination of Mr Cremin.

The witness accepted that there was no express reference to the possibility of dismissal in the invitation of the 19/1/2023 to the disciplinary hearing scheduled for 24/1/1023 but stated that the disciplinary policy incorporating such an outcome was furnished to the complainant.

The witness confirmed that he did not ask the complainant to relay the specifics of the abuse suffered by him on 30/8/2022.

The complainant should have pulled back from the aggressor.

Evidence of Mr Murphy, the then Director of Aviation given under affirmation on 7/10/2024.

 The witness attended on foot of a subpoena.

He conducted the complainant’s appeal against the disciplinary sanctions on 27/3/2023.

At the material time, he occupied the position of Director of Aviation within the suite of services on offer to clients.

The complainant based his appeal on what he considered to be the unfairness of the sanction.

The witness had access to the investigation and disciplinary reports prior to the appeal.

The witness confirmed that the Director of Security had no involvement in his decision or in how he chose to conduct the appeal.

One of the pillars of the appeal was the absence of training for dealing with violent assaults. The witness understood that the complainant had received training for the scenario which had faced him on the 30/8/2022. This would have emphasised the importance of diffusing the situation, and to lead staff by example and not to exacerbate the situation. The complainant made no effort at conflict management.

The video footage of the incident had no audio. The witness stated that he does not believe that the complainant reported any racist remarks on the part of Mr X.

There was no reference in the appeal hearing to a complaint of constructive dismissal or discrimination. The witness did not engage with matters extraneous to the incident such as failure to secure promotion.

He understood the complainant’s reference to salary loss to mean his failure to be promoted in 2019.

He did not discuss alterative roles for the complainant. He states that he does not recall the complainant raising alternative roles such as an auditor’s position. Had he done so he would have looked at other available positions in the suite of the respondent’s services.

When the witness asked the complainant at the appeal hearing if he would do anything different, the complainant stated he would follow his training and wanted to receive more training.

The witness agreed with the sanction in place on the basis of the evidence.

Cross examination of Witness.

The witness is not sure if the training provided to the complainant dealt with the issue of protecting him from racial abuse. He was not responsible for training.

The witness refutes the suggestion that the initial investigation was biased because the investigator had already seen CCTV footage in her investigation of the other parties and had issued a sanction in respect of one; she was professional to the core.

The witness confirmed that HR did not provide him with a copy of the code of conduct on self-defence.

The witness agreed that the complainant was entitled to a workplace free from racial abuse. HR did not ask him to consider racial harassment and abuse when they assigned him to hear the appeal.

Concerning the complainant’s claim of self-defence and of being in imminent danger, the witness does not accept that the next punch was coming for the complainant. The CCTV footage showed that the complainant came from behind Mr X. and struck him in the first instance. He did not de-escalate and his response to Mr X was not self-defence. He accepts that the complainant was injured in the incident.

He did not receive a risk assessment document from HR.

The report of the appeal hearing records the complainant acknowledging “that he should never get involved in fights “.

He stands over his conclusion that it was reasonable to expect a manager to handle a conflictual situation.

When asked, the witness stated that he would have to review which of the company’s policies was breached.

He concluded that the complainant’s behaviour amounted to gross misconduct. He did not consider the complainant’s request to be placed on a performance improvement programme as this would have seen him staying in a manager’s role. Demotion was the correct sanction. The witness stated that he did not know the salary reduction facing the complainant attendant on this demotion. He stated that he did not know who decided to put the complainant down three steps nor did he query why he was demoted down three rungs.

The witness confirmed that he had previously demoted an employee resulting in that employee’s hourly rate reducing by a €1 when he was transferred from driver duties to customer care duties.

Concerning the complainant’s reporting of racial abuse, he may have advised him to take the matter up under the appropriate code but accepts that the minutes of the appeal meeting do not record this.

Concerning the absence of the findings of the appeal in the respondent’s submission, he sent the findings of his appeal in an email to the HR Senior Advisor.

He accepts that the complainant was injured in the incident.

Conclusion

IBEC stated that the incidents cited as evidence of discrimination by witnesses called by the complainant are outside of the cognisable period which is 9/11/22 - 8/5/2023.

In order to establish the admissibility of incidents outside of the period, the complainant must establish a link between incidents put forward as evidence of a culture of discrimination and the sanctioning of the complainant.

Furthermore, the Supreme Court in   Co Louth Vocational Education Committee v The Equality Tribunal 336/2009, established that it is not permissible to go on a wide-ranging enquiry, but rather a complainant must confine himself/ herself to the complaint lodged.

The allegations from the witnesses are denied and are not within the cognisable period. One of the witness, Mr Kowalski, gave glowing accounts in his resignation letter of his relationships with the very people about whom he is now complaining.

The complainant was aware of the need to deescalate.

All three involved in the incident of 30/8/2022 were subject to disciplinary proceedings. The complainant and Mr I had a case to answer. Mr M did not. The complainant saw what Mr X was doing to his colleague. There was no direct threat to the complainant. The sanction was reasonable. Simply put, he was proven to have been guilty of misconduct.

There were no auditor roles at the time of his demotion.

The respondent argues that the exercise is not one of deciding whether the sanction imposed was the correct one but rather the adjudicator’s task is to establish if the complainant was treated less favourably. In this regard the respondent points to Southern Health Board v Mitchell, 2001, DEE011 which requires the complainant to establish facts from which it may be presumed  that equal treatment was not applied to them.

The respondent relies also on Margetts v Graham Anthony and Company Ltd, EDA038 ,  which held as follows,

“ the mere fact that the complainant falls within one of the discriminatory grounds laid down in the act  is not sufficient to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The respondent contends that the complainant has failed to establish a prima facie case of discrimination and his claim is unfounded.

I must decide whether the complainant was

(1)subjected to discriminatory treatment on the grounds of his  race in relation to his conditions of employment and when compared with a non – Asian, European employee in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to section 8 of that Act,  and

 (ii) if the complainant was harassed on grounds of race, in terms of section 14 A of the Employment Equality Act, 1998.

The complainant is an Indian and sustained injuries in a physical attack on  him on 30/8/2022.

But first I must identify the range of admissible complaints. Thereafter I must consider if the complainant has established facts from which discrimination may be inferred.

Time Limits.

Section 77(5)(a) of the Acts stipulates that the only admissible incidents grounding the complaint of discrimination are those that occurred in the six months prior to the submission of the complaint, that period being the 9/11/22-8/5/2023. However, in Hurley v County Cork VEC, EDA 1124, the Labour Court noted that Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation and held that

 “Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum.”

The complainant requests that the activation of the disciplinary process against him in 2019, the failure to promote him in 2021, and the preferential salary scales on offer to Irish recruits in April 22 should be considered as part of a continuum of discriminatory behaviour. He also requested that the alleged racial slurs directed against other employees be factored into my deliberations. 

In order to accept that these complaints are part of a continuum, the complainant must satisfy an additional requirement, set out in Cork County VEC v. Hurley EDA 24/2011and County Dublin VEC v. Dodo EDA1327/2013), both of which held that a discriminatory act must have occurred within the limitation period in order to consider those acts occurring outside of the statutory period. Therefore, I must decide if the acts of alleged discrimination occurring between 9/11/2022 -8/5/2023 constitute discrimination on the grounds of race and enable, as a consequence, consideration of acts occurring outside of the statutory period.

Relevant Law.

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where

“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) ...”.

Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows:

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

The first obligation which the complainant must meet is compliance with section 85A of the Employment Equality Acts 1998-2015. It lays the onus of proof with the complainant to establish a prima face case of discriminatory treatment contrary to the Acts. Section 85A (1) of the Acts states that 

“In any proceedings where facts are established by or on behalf of a complainant from which it may be presumed that discrimination has occurred in relation to him/her, it is for the respondent to prove the contrary”.

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201, the Labour Court concluded that:

“a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

The complainant must discharge this evidential burden. If he does, the respondent must prove that he was not discriminated against on grounds of his race. If he does not, his case cannot succeed.

 In order to achieve compliance with section 85(A) of the Act- the first step- he must satisfy three elements of a test laid out in Minaguchi v Mr. Ray Byrne, T/A Wine port Lakeshore Restaurant DEC-E/2002/20. The three requirements necessary to establish that a prima facie case exists are:

- That s/he is covered by the relevant discriminatory ground(s),

- That s/he has been subjected to specific treatments; and

- That this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.”

Application of the above preconditions to the circumstances of the instant complaint:

The complainant has a protected status by virtue of his ethnicity as an Indian person.

The disciplinary sanctions of a final written warning and demotion with a loss of €11,168 per annum amount to specific treatment.

No sanction was applied to a non- Asian employee involved in the incident of 30/8/ 2022,

The Labour Court in Darguzis v Lough Corrib Engineering Ltd, DEC-E2009-038, referencing the decision of Glasgow City Council v Zafar (1998) 2 All ER 953, held that where there is a difference in treatment and a difference in race there is prima facie evidence of discrimination, and it is for the respondent to prove a non- discriminatory explanation.

I find that the complainant has raised a presumption of discrimination and the onus now shifts to the respondent to rebut the inference of discrimination.

Rebuttal of discrimination.

The Labour Court in Intesa Sanpaola Life Ltd. v Nowak (EDA 1840) stated:

“It is settled law that, in circumstances such as this, the mere coincidence of nationality and a perceived detriment is not sufficient to ground a complaint of discrimination. Something more must be established that would suggest the possibility that there is a relationship between the two facts.”

The respondent must substantiate the reasons for imposing a more severe sanction on the complainant than that imposed on the employee of a different race or ethnicity who was involved in the incident of 30/8/2022 with Mr X, and must demonstrate that it was unrelated to his ethnicity.

The respondent’s defence of less favourable treatment in sanctioning the complainant and not Mr M, the European contract manager, is that they did not view the complainant’s actions to be self-defence. He struck Mr X though he himself had not been struck. The company rule found in the The Control Measures states

“Security personnel to physically engage with persons who they feel may cause them or others harm only as a last resort. Gardai to be called as soon as situation escalates”.

A security officer may only restrain a violent aggressive person if they pose a serious threat to the security guard, colleagues and customers and if help is available. The complainant did not comply with this protocol. This breach was considered to be gross misconduct. He had been accused of dangerous behaviour and failure to follow company procedures.  If this was an excessive or less favourable response on the respondent’s part, the complainant must be able to show that the respondent required him to act with more restraint than that expected of employees of a different ethnicity faced with the same level of aggression. Was its harshness unknown to persons of European descent or was its very harshness evidence, per se, of discrimination?

It was the complainant’s colleague, Mr I, who was the target of Mr. X’s attack, yet he, the complainant, punched Mr. X, whereas the uncontested evidence shows that Mr M tried to restrain Mr. X and had open hands unlike the complainant whose fists were clenched and originally refused to accept that he had failed to comply with company procedures. These procedures, more in the line of guidance than iron - clad procedures -require the security personnel to de-escalate the situation, to move back from the aggressor, to desist from counter aggression, to call the Gardai and certainly not to engage in punch for punch. The complainant’s representative submitted legal authorities on what self- defence is, but the remit of the WRC does not extend to assessing whether the complainant’s actions met the legal definition of self – defence.

The respondent supplied evidence of material for a training session in these procedures, (toolbox talk) on handling aggression delivered to the complainant on September 2020 and in February 2021 which the complainant was to use in training security officers within his remit.

The witness evidence submitted in support of the complainant’s contention that a racist culture fuelled the respondent’s decision to demote him refers to incidents unconnected to the demotion of the complainant, are outside of the statutory time limit, were  contested, contradictory and therefore unreliable, particularly concerning the remarks attributed to the Key Account Manager and the Director of Security, and concerned the conflicts that  some white European employees  experienced with the respondent, an ethnic  group with whom the complainant states that he was treated less favourably. This evidence aside from being time barred does not support a climate reportedly disposed to less favourable treatment of Asian employees over Non-Asian or European employees.

The witnesses’ focus on the Director of Security as a major if not the most influential player in the development of a racist culture undermined the complainant’s complaint as she was entirely unconnected to the disciplinary process. 

The application of disciplinary sanctions by race.

Notwithstanding the unacceptable aggression of Mr X, the central task in a complaint of discrimination as opposed to a complaint under another statute is to determine if the complainant received less favourable treatment in the form of more harsh sanctions than a person of a different ethnicity received or would have received at the end of a disciplinary process resulting from the same or a similar situation.

The HR Senior Advisor’s uncontested evidence was that two demotions had occurred in the previous year; one was Irish and the other was the complainant. Again, in the past 12 months, 3 non-nationals and one Irish employee were disciplined for violent assault. One Irish employee and one non- national were given final written warnings. In another disciplinary process, one Irish employee and one non- national employee were dismissed. The evidence of how sanctions were applied does not support the proposition that it was the complainant’s ethnicity that led to this disciplinary sanction.

Firstly, he acted in a different way to his comparator, albeit feeling threatened, and the data furnished by the respondent shows that Irish and non- Irish employees have been demoted and have received final written warnings. The rebuttal tells us that the other security guard, Mr I, was given a final written warning, and there was no lower position to which he could be demoted. Mr M, the comparator, a white European who was investigated was found to have complied with procedures, and there was no evidence before me to contradict that Mr M did not retaliate; he tried to de-escalate. The complainant did not.

That is the barrier that the complainant had to overcome.

I accept that there were flaws in the disciplinary process; failure to provide hm with notes of meetings, failure to expressly notify him of the possibility of dismissal prior to the disciplinary hearing , respondent staff who conducted the disciplinary process and appeal displaying an ignorance or disregard for the significant financial consequences of his demotion which resulted in a drop of €11,168 per annum based on the then hourly rate of €12.90, and  failing to offer him the position of auditor, which was in the offing in January 2023 and was filled in March -April 2023.

No mitigating factor such as provocation was factored into the respondent’s decision making, but again, it’s the less favourable treatment which is determinative in a claim of discrimination.

The complainant was unable to demonstrate that a disciplinary process more compliant with S.I 146/2000 was employed with the two other colleagues taken through the process because of the incident of 30/8/2022.

However, it is not the harshness of the sanction, the unacceptable injuries sustained by the complainant as a result of the viciousness of Mr X which is determinative of a finding of discrimination, but whether it is was less favourable than sanctions meted out at the end of a disciplinary process to non- Asians.  It is whether he had to demonstrate a higher standard of response / a higher level of restraint when faced with A Mr X type than a non- Asian employee.

It has been accepted that employers may act unfairly but the consequential deduction is not that its very unfairness was an act of discrimination, per se, as opposed to being unfair. The complainant must put forward a comparator of a different race, who engaged in the same type of behaviours yet received no sanction or a lighter sanction. The complainant was unable to submit this link in the chain.

Based on the totality of the evidence, I find that the respondent has rebutted the inference of discrimination.

 I must find that the complainant was not discriminated against in the sanction applied to him, and in accordance with case law, I am unable to consider instances of alleged discrimination occurring outside of the cognisable period which is 9/11/2022– 8/5/2023

Complaint of harassment on grounds of race

The next issue that I must address is whether or not the complainant was subjected to harassment pursuant to Section 14A of the Acts.

The utterance, “Paki, paedo bastard,” a degrading, demeaning racial slur, was hurled at the complainant on 30/8/2022 by Mr X.

The complaint was lodged with the WRC on 8/5/2023, over two months outside of the statutory time limit. The complainant argued that Hurley permitted consideration of incidents of alleged discrimination, such as this act of discrimination, occurring outside of the statutory time limits. However as noted earlier, both Hurley and Dodo stipulated that an act of discrimination must have occurred within the statutory period to permit consideration of acts outside of the statutory time limit.

I have not found that an act of discrimination occurred within the statutory time limits, and I therefore lack jurisdiction to consider this complaint of harassment.

The respondent’s Bullying and Harassment at Work Policy is short on how the policy should be implemented.

I recommend that that the policy should be aligned with the recommendations contained in PART 4, S.I. No. 208 of 2012, Employment Equality Act 1998 (Code Of Practice), (Harassment) Order 2012, and specifically with section 7, Communication Policy which provides

  “The policy should include a commitment to effective communication of the policy. The policy should be communicated effectively to all those potentially affected by it including management, employees, customers, clients and other business contacts, including those who supply and receive goods and services. This effective means of communicating a policy could include for example, newsletters, training manuals, training courses, leaflets, websites, emails and notice boards”.

The copies of posters displayed in the respondent’s canteen contain proclamations. I recommend that the respondent amends them to remind staff that they are entitled to work in an environment free of racial harassment and in the event of being harassed, to set out the steps available to the employee to remedy these infringements.

 Conclusion:

Based on the evidence and the authorities, I do not find that the sanction applied to the complainant on 2/2/2023 amounted to discrimination contrary to the race provisions of the Employment Equality Acts 1998- 2015

I decide that the complainant was not discriminated against by the respondent on grounds of race in his conditions of employment contrary to the Employment Equality Acts, 1998-2015

Rebuttal of presumption of discrimination