Complainant

Respondent

Anonymised Parties

A Worker

A Subcontractor

Representatives

J.J. Fitzgerald, J.J. Fitzgerald & Co Solicitors

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-00068997-001

02/02/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00068997-002

02/02/2025

The Complainant who is black commenced employment with the Respondent on 20 August 2018. He stated in the first instance that he was subject to racial discrimination during his employment. He also asserted that he was left with no choice but to terminate his employment on 5 September 2024 as a result of the treatment he was subjected to by the Respondent.

The Complainant stated that the discrimination he endured was rooted in his race and colour. He explained that, as the only person of colour at the site where he worked, he was subjected to humiliating treatment, including being singled out when videos of monkeys were shown in a way that was clearly directed at him. Specifically, he stated that he was asked by another person on the client side if he knew what his uncle looked like, further to which he was shown a picture of a chimpanzee.

He further described how workplace rules were applied unequally. While all other employees were permitted to use their phones, he was explicitly denied this allowance. The hostile environment extended to his personal choices as well, with colleagues mocking his food to the point that he felt compelled to eat alone in his car to escape the bullying.

When it came to safety and uniform requirements, he was repeatedly disadvantaged and was only provided with boots by the Respondent. Despite numerous requests, he was never issued the essential new uniform provided to others, and in order to protect himself from injuries, he was left with no choice but to wear discarded items retrieved from a bin.

The unfair treatment also denied him opportunities for growth and security. Promises of training and renewal of certifications were made but never fulfilled, even as others received these benefits.

He also stated that he wasn’t paid expenses when he stayed away from home overnight and often had to stay in the car. He also alleged that he was frequently sent home early before the job finished if he was working away from home.

Ultimately, the ongoing discrimination and bullying became unbearable. He left his job on 5 September 2024, viewing his departure as constructive dismissal because the environment had become impossible to endure. He expressed disbelief that such practices could be allowed to continue unchecked by the Respondent which left him feeling powerless and caused a huge negative toll on his well-being.

The Complainant commenced employment with the Respondent in the capacity of fitter/welder, having previously sought employment following the completion of a welding course. He was thereafter assigned to various client sites where several subcontracted employees from other companies were also engaged.

(i)                  The Dismissal:

The Respondent denied that any resignation was communicated to them at any time and stated that the Complainant failed to notify them of his decision to terminate his employment. Notwithstanding the Complainant’s disputed assertions, the Respondent highlighted that they made repeated attempts to contact the Complainant to establish his whereabouts by way of text messages dated 6 September, 9 September and 4 October 2024, and by emails issued on 10 October and 28 November 2024, which they stated undermined the suggestion that he had resigned. These communications went unanswered.

The Respondent further stated that, on several occasions during the course of employment, the Complainant was not actively engaged in work and that, in such circumstances, letters were provided to him for the purpose of facilitating applications for social welfare assistance. The Respondent also stated that the Complainant failed on a number of occasions to attend for work without providing any prior notification.

The Respondent also highlighted that the Complainant failed to establish that the Respondent’s conduct constituted a fundamental breach of contract, and further that the Complainant did not raise any grievance or afford the Respondent a reasonable opportunity to address the alleged issues prior to resigning.

(ii)                 The Discrimination

The Respondent further denied that the Complainant was subjected to racial discrimination and stated that they cannot be held vicariously liable for the actions of employees of other companies operating on the site to which the Complainant was assigned, and that they had no actual or constructive knowledge of the alleged conduct. The Respondent also highlighted that the Complainant did not report any such allegations to them until 31 December 2024.

CA-00068997-001:

The Law

(i)                  Discrimination by the Respondent in relation to the failure to provide adequate PPE and the payment of expenses as well as being sent home early

Section 6 of the Act states as follows:

(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 insubsection (2)(in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

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

(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 85A (1) of the Act provides: -

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.

Findings:

It is clear from Section 85A (1) of the Act above that the burden of proof in this matter is on a Complainant. If the case meets the threshold set out above, then the burden of proof shifts and it is on the Respondent to rebut the presumption of discrimination.

This view is consistent with the decision of the Labour Court in Mitchell v. Southern Health Board [2001] ELR 201, where it was held thar:

“The first requirement […] is that the claimant must “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a claimant 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 is no infringement of the principle of equal treatment.”

Furthermore, in Melbury Developments Ltd. v. Valpeters [2010] 21 ELR 64, the Labour Court found that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Although the Complainant in this case alleged that he was subjected to discrimination on the ground of race, I note that he was unable to identify a comparator—namely, an employee of a different race—who was given the PPE that he believed he should have received from the Respondent. He was also unable to identify a comparator who was paid more expenses than he received or who was not sent home early before the job finished if they were working away from home.

Considering the foregoing, I find that the Complainant has not established a prima facie case of discrimination in relation to this aspect of his complaint.

(ii)Harassment

Section 14A of the Act defines harassment on the nine protected grounds – including race – and sets out a potential defence for employers in certain circumstances.

To avail of the defence under section 14A (2), which provides:

“(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonablypracticable— (a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), toprevent 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.”

the Respondent must first demonstrate that they took “such steps as are reasonably practicable … to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim.

Compliance with paragraph (a) may be demonstrated, for example, by having a comprehensive anti-harassment policy in place (including an appropriate investigation procedure), providing training to staff, and ensuring that managers are properly trained in handling and investigating complaints of alleged harassment.

Paragraph (b) requires the Respondent to show that it has taken reasonably practicable steps to prevent the victim from being treated differently in the workplace, and where such treatment has occurred, to reverse its effects. Measures under this paragraph may include providing counselling to an employee who has experienced harassment, referring the employee to an Employee Assistance Programme, or delivering refresher training on diversity and equality to all staff and managers.

In this case, even if I accept the Respondent’s evidence that no complaint of harassment had been made to them until 31 December 2024 after the Complainant had left his employment, I note that no bullying or harassment policy was provided to the Complainant, nor was any evidence presented to show that the Respondent had taken steps to prevent bullying and harassment in compliance with section 14A(2). I therefore find that the Respondent has not satisfied the requirements of either paragraph (a) or (b) of section 14A(2).

Section 77(5)(a) of the Acts provides that a claim for redress in respect of discrimination may not be referred after the end of the period of 6 months from the date of occurrence of the discrimination to which the case relates or, as the case may be, the date of its most recent occurrence.

The Complainant referred the complaint under the Acts to the WRC on 2 February 2025, and therefore the cognisable period in relation to the complaint is 3 August 2024 to 2 February 2025.

In examining if there was any incident of harassment during his period of employment in the six month period prior to the referral of the complaint, I noted that while I found the Complainant’s evidence to be credible in relation to the harassment he was subjected to, he was unable to pinpoint specifically either which, if any, of the instances of racial harassment, he gave evidence of, occurred in the cognisable period.

I am therefore unable to establish if any of the alleged acts of discrimination occurred either during his period of employment from 3 August 2024 to 5 September 2024 or in the period prior to this.

Accordingly, I find that he has failed to establish a prima facie case of discrimination in relation to this aspect of his complaint.

CA-00068997-002:

The Law:

Section 1 of the Act states as follows:

“dismissal”, in relation to an employee, means— (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer

The Complainant asserted that he was constructively dismissed. However, based on the evidence before me, I am satisfied that while the Complainant informed a site supervisor at the work location where he was engaged, who was not an employee or an agent of the Respondent, that he was leaving his employment, he did not notify “his employer”, namely the Respondent, that he was resigning from his employment on 5 September 2024.

I further note that the Respondent made several attempts to contact the Complainant after 5 September 2024 to ascertain his whereabouts and his expected return to work. The Complainant inexplicably did not respond to these communications.

I am also at a loss to understand why, if the Complainant resigned on 5 September 2024 as he claims, he subsequently telephoned the Respondent on 31 December 2024 to complain about the alleged abuse by his supervisor on the site where he had been engaged, yet made no such complaint at any time prior to his purported resignation.

Considering all of the foregoing, I find that the no dismissal, whether actual or constructive, occurred on 5 September 2024 as alleged by the Complainant. I therefore find that I do not have jurisdiction to hear this complaint.

CA-00068997-001:

As he failed to establish a prima facie case of discrimination, I find that the Complainant was not discriminated against.

CA-00068997-002:

I find that I do not have jurisdiction to hear this complaint for the reasons set out above.