Complainant

Respondent

Parties

Osemu Oigbochie

Apcoa Limited

Representatives

Represented himself

Peninsula Business Services Ireland

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00070609-001

07/04/2025

The complainant is a full-time student and he also worked as a car park attendant for the respondent, who operates a car park at Dublin Airport.  He is an Irish citizen of Nigerian heritage.  He started with the company on March 3rd 2025. 

On the evening of March 19th 2025, the complainant met with the company’s HR manager and complained that, on that day, his line manager had been racially abusive and that he had made offensive remarks about his race.  The HR manager was leaving work at the time and she asked the complainant to send her an email setting out what happened.  She said that she would deal with the issue the next day.  At 20.12, the complainant sent the HR manager an email and said that his line manager referred to his race in an inappropriate manner, that he was offensive and had called him a “black motherfucker.”

The complainant went to work the next day at 7.00am.  Mr Delaney gave evidence at the hearing that March 20th 2025 was his first day in the company and that, when he arrived, the HR manager told him about the complainant’s email.  He said that he and the HR manager had a meeting with the line manager at 10.00am.  He suggested that it might be possible to resolve the issue through mediation and the line manager agreed.  Mr Delaney and the HR manager then met the complainant and he agreed to meet with the line manager for the purpose of mediation.  At the mediation meeting, the line manager accepted that he referred to the complainant as “black” but he said that he didn’t make an offensive remark.  The complainant was unhappy with the mediation process and Mr Delaney said that he decided that he would deal with the conduct in accordance with the disciplinary procedure.  Around 12.00, he and the HR manager met the line manager again and explained that a disciplinary investigation would be carried out regarding his abusive conduct.  Mr Delany said that the line manager then resigned.  Mr Delaney said that he asked him to hand back his radio and his ID badge and, shortly afterwards, he observed him driving out of the car park.

The complainant’s claims that, by not suspending his line manager, he had to see him in the workplace the day after the abusive behaviour and that this caused him to feel anxious and vulnerable.  He claims that, by this failure, he was discriminated against at work.  For the respondent, Mr Dunlea said that the company accepts that the line manager may have used the offensive remark as alleged by the complainant and he said that this conduct is unacceptable.  He apologised to the complainant and he said that, if the line manager had not resigned, he may have been dismissed.  Mr Dunlea said that it is a defence to an allegation of discrimination for the employer to have taken steps to address the problem.  He said that the respondent acted reasonably in response to the complainant’s claims and that the allegation of racist conduct was treated seriously.

In his evidence at the hearing, the complainant said that he was treated disrespectfully and racially harassed by his line manager.  He said that, before the incident on March 19th 2025, he was shouted at in front of customers and, on one occasion, the line manager drove with him in a car at speed in the car park, risking an accident.  The complainant said that the conduct of his line manager resulted in him feeling so emotionally upset that he failed his college exams in the summer of 2025 and he had to repeat a year.  Apart from the delay in graduating, he had to pay college fees for another year.

In response to questions from Mr Dunlea, the complainant accepted that, around March 12th 2025, the operations manager on the site found him asleep on a bus.  He said that the reason for this was because of the cold weather and he hadn’t been issued with protective equipment.

Mr Dunlea said that the respondent doesn’t dispute that the racist comments were made by the line manager.  He reminded the complainant that, on March 15th, he brought his concerns about the conduct of his line manager to the attention of the operations manager.  The operations manager put a note on the complainant’s file and a copy was included in the respondent’s submission for the hearing.  It is apparent from the note that the complainant raised his concerns about the line manager driving at speed with him in a car and that another employee also made a complaint about the line manager.  At this point, the complainant and the other employee raised no concerns about racism or remarks about race.  The operations manager told the complainant that he would follow up with the line manager about his complaints. 

In response to Mr Dunlea, the complainant said that, on March 19th 2025, he spoke to the HR manager about his line manager’s abusive behaviour earlier that day.  The next day, he came to work and he had a meeting with Mr Delaney and the HR manager.  This was followed by a mediation meeting with all three and the line manager.  In this mediation meeting, the complainant said that his line manager accepted that he referred to him as “black.”  He did not admit to making any other racist remark.

The complainant said that he was informed that the mediation wasn’t successful and that an investigation would be carried out into the line manager’s conduct.  He said that he was able to see his line manager and that he didn’t want him on the premises.

The complainant said that no one came to check on him after the mediation meeting, although the HR manager had said that she would contact him after a week.  He said that no one offered him counselling or tried to reassure him.  He said that the line manager should have been trained not to act racially.

In response to Mr Dunlea’s questions, the complainant accepted that his performance “wasn’t the best,” but that it got worse after the incident on March 19th.  On April 7th, which was the day he was dismissed, he thought he was due at work at 12.00 midday, but he was due in at 12.00 midnight.  He accepted that it looked like he didn’t want to come to work, but he said that he was confused.

On Saturday, April 5th, the complainant had asked for time off to play in a football match, and the operations manager refused to allow him to take the time off.  The complainant agreed with Mr Dunlea that he left work and returned after three hours.  The complainant explained that he was suffering from mental fatigue and he thought that playing football would clear his head.  He said that he didn’t ask for time off because he didn’t want to be at a loss of wages.

Mr Dunlea asked the complainant why he didn’t talk to his employer about his mental health issues.  He replied that no one checked on him after the incident with his line manager.  He accepted that he could have talked to the operations manager, but he said, “no one came to me.” Mr Dunlea said that about two weeks previously, the complainant spoke to the operations manager about the conduct of his line manager, and then, a couple of weeks later, he didn’t speak to him about how he was feeling.  The complainant replied, “people have different ways of dealing with things.”

For the respondent, Mr Dunlea accepted that the remarks that the complainant alleges were made by his line manager could constitute harassment on the race ground.  He said that the behaviour is unacceptable and was dealt with very quickly.

Accepting that the conduct that the complainant alleges occurred probably did occur, Mr Dunlea referred to s.14A(2) of the Employment Equality 1998, a section inserted by the Equality Act 2004:

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.

Subsection 1(a) is intended to incorporate the possibility of harassment by a co-worker, the employer or a client of the employer.  Subsection 1(b) is intended to deal with a situation in which a victim of harassment may have been treated differently in the workplace as a result of the harassment.

Mr Dunlea said that the respondent has a robust policy in place to inform employees that harassment on any ground is unacceptable.  He said that training is provided to employees at induction and the complainant and the line manager were trained in the company’s policy.  It is the respondent’s position that, following the complainant’s allegations of abuse, efforts were made to address the issue through mediation.  When the outcome of this endeavour was unsatisfactory, the line manager was informed that a disciplinary investigation would be carried out.  This approach is in accordance with the respondent’s zero tolerance policy on harassment or abuse of employees. 

The Legal Framework

The legal framework prohibiting discrimination on nine specific grounds is set out at section 6(1) of the Employment Equality Act 1998 – 2015 (“the Act”). 

“…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 sub-section (2), in this Act, referred to as the ‘discriminatory grounds’…”

At sub-section (2)(h), the “the race ground” islisted as one of the nine discriminatory grounds.  The complainant alleges that he was discriminated on the race ground when, on March 19th 2025, his line manager wasn’t suspended before a disciplinary investigation was carried out into the complainant’s report that he had been racially harassed by him the previous day.

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“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.”

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility is on the complainant to show that, based on the primary facts, he has been treated less favourably than a person who is not of Nigerian heritage.

The onerous nature of the burden of proof to be established by these primary facts was clearly set out in the decision of the Labour Court in ArtursValpeters v Melbury Developments Limited[1],which was cited by Mr Dunlea at the hearing:

“This requires that the complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Primary Facts

I have considered the evidence of the complainant and the evidence of the contract operations manager, Mr Delaney, and I am satisfied that, on the balance of probabilities, the conduct that the complainant complained about did occur and that he was racially abused by his line manager on March 19th 2025.  Having reached this conclusion, the responsibility shifts to the respondent to prove that discrimination did not occur.

The Respondent’s Defence to the Allegation of Discrimination

The respondent’s position is that the complainant’s allegation of discrimination was dealt with promptly and that the line manager was called to a disciplinary meeting.  Their position is that the conduct complained about is unacceptable in their workplace and, if the line manager had not resigned, it is likely that he would have been dismissed.  The contract operations manager, Mr Delaney disagreed with the complainant’s evidence that he had to work with the line manager after the mediation meeting.  He said that, after this meeting, the line manager did not go back on duty, but waited in a corridor before he was called in to a disciplinary meeting, at which he resigned.  Mr Delaney said that he had left the workplace by around 12.00 midday.

Findings

I accept entirely the evidence of the complainant that he was emotionally upset when he was harassed by his line manager on March 19th 2025.  At the hearing, Mr Dunlea apologised sincerely on behalf of the company about this conduct and he reiterated that behaviour such as this is not acceptable in any workplace.

Despite the fact that March 20th 2025 was Mr Delaney’s first day in his job, he dealt with the complaint before the morning was out.  He spoke firstly to the complainant and the line manager separately, and then he attempted to mediate between them, an effort that turned out to be unsuccessful.  He then moved to deal with the issue through the disciplinary procedure and the line manager resigned.

It is my view that, in accordance with s.14A(2) of the Employment Equality Act, the respondent took reasonable steps to address the unacceptable conduct and to ensure that it would not be repeated.  While the complainant was upset that the line manager remained on the premises until 12.00 midday, it must have been clear to him that the management were considerate of his complaint and that they were attempting to deal with the matter quickly.  I do not accept his evidence that he had to work with his line manager after the mediation meeting.  I find it more credible that the line manager didn’t return to work but that, at short notice, he was informed that a disciplinary investigation would be carried out and that he then decided to resign.

I am satisfied that, in they way they dealt with this matter, the respondent acted reasonably and without delay and that they have provided an adequate defence to the complainant’s allegation of discrimination.

While the complainant established the primary facts that showed that he was discriminated against by the treatment of a line manager, the respondent has established that appropriate action was taken to address that conduct.  For this reason, I decide that this complaint is not well founded.

Discrimination on the race ground, defence at s.14A(2) of the Employment Equality Act 1998