Complainant

Respondent

Parties

Alcenio  Augusto

Stillorgan Trading Post Ltd DMC Foods

Complainant

Respondent

Anonymised Parties

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Representatives

  Ann Campbell from the office of Ruari O’Murchu T.D.

John Barry Management Support Services (Ireland) Ltd

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-00070260-001

25/03/2025

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and another witness undertook to give evidence under affirmation, three witnesses for the respondent undertook to give their evidence under affirmation.  Cross examination was facilitated.

The hearing took place with the assistance of an interpreter provided by the WRC.

At the completion of the hearing, I took the time to review all the oral evidence together with the written submissions made by the parties. The respective positions of the parties are noted, and a broad outline of the evidence and cross examination is provided.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

The complainant submitted that he was working as a cleaner with the respondent.  He started work in May 2024 and his employment was terminated on 29 January 2025.  He submitted that he had difficulties with his employer and then a review was undertaken.  The complainant didn’t agree with the review and did not sign it.

He stated that on occasion his supervisor used racist language and phrases with him.  He submitted that he made a complaint to his employer, and his employment was terminated the same day.

The complainant submitted that although the employment relationship with his supervisor was good, from the first contact he would address the complainant with racist words.

He used phrases such as “it doesn’t open with black hands”, ‘You are black that’s why you need to do this job’ and on break times when he didn’t tell the complainant that it was time for a break, he would say when asked why they didn't tell him anything, he would say you are black and you don't need a break.  He also submitted that when he couldn't open something and asked for help, when the supervisor got it, he said that “the machine doesn't like black hands”.

The complainant submitted that when he told him that he didn't like those kinds of words with racial content, he said he was just joking, but then repeatedly would make that kind of pronouncement again and again and often in the presence of (named) co-workers.

The complainant submitted that in the December/January period, the volume of work increased considerably, mainly in the washroom and the number of bins that were being processed and so his manager decided to put him in that area during that period.  For example, the trolley numbers before this period were 16-25 during the week and 40-45 on Friday, while in this period it became 45-50 during the week and 65-80 on Friday.  The complainant submitted that he was put to work with a friend of the managers.  This person was not doing an equal amount of work, and he complained about his slacking off.

He stated that the manager felt challenged and told him that he would do an evaluation to see the points in which the complainant should improve.  The complainant submitted that he told him that he would not sign the evaluation, because he did not agree with those points and then the discussion extended until around 1:30 in the morning, after so much psychological pressure and the fatigue that the complainant already felt, the manager told him to sign and then he would correct the situation of his colleagues.

The complainant submitted that as soon as he finished signing it, the manager said right away: ‘I'll give you just a week of work then I'll fire you’.  The complainant submitted that he asked him “why are you going to fire me and is it because I complained about your friends?” He submitted that the manager couldn’t answer convincingly. The complainant submitted that he told him that his motivations are different, the manager himself told the complainant that it's not because of racism, he told the manager then “you also know that you've been racist with me” and promptly told him that I would file a complaint against him.

The complainant submitted that the situation left him completely shaken, because he had never experienced such a clear situation of racism as the one he was witnessing.  He walked away because psychologically he was weakened and had to pull the car over to a safe place in the early hours of January 29.  At 9 o'clock that morning he went to the HR manager at the factory.  He reported to her everything that happened, she made her notes and told me to leave my number, as she would be in urgent contact with the production manager and the complainants line manager.

The complainant submitted that he asked the HR manager if she advised him to simultaneously file a complaint with the competent authorities for racial abuse, she suggested that he first keep in touch with the managers.  She asked him if he could report everything that was said to her and he agreed to do so.

The complainant submitted that he didn't go home but waited until around the afternoon to seek advice.  He returned to the H.R manager's office accompanied by a colleague, but she instructed the colleague to leave and told him that there would be no more meetings with the manager as he had already authorised the termination letter.

The complainant submitted that he asked for the reasons, and she gave him the evaluation that he had signed under pressure, then he said it was not fair to fire him because he had gone to complain to his manager about the behaviour of his friends and also for not having given him prior notice. 

Oral evidence:

The complainant noted that his manager said to him on one occasion that the machine that he was working on doesn't work with “black hands".  He wasn’t aware of the exact dates relating to his allegations, but he stated that this was sometime in July or August.  He also stated that around this time he was trying to open machinery when he broke the screwdriver. His manager stated that the screwdriver only broke with him because he was black.  Additionally, sometime in December when he was working in the washroom, he forgot to take his break.  He stated that his manager noted that " he doesn't need to go for a break because he's black”.

The complainant stated that when he was being let go his manager used the following words: “I know that you think I am doing this for a racist reason, but it's not”.  He stated this because it shows that his manager knew he was using racist language.

The complainant stated that in December and January he was asked to work in the washroom and in the low-risk areas, where most of the employees do not like to be there because the work has increased too much in that area. He stated that he was put to work in an area with a friend of his managers but that this friend went out to the toilet to smoke too often and did not carry his weight. He stated that he said to his manager that it was not right to put him with this man when he only does 10 to 15 of the bins and that the complainant ended up doing 80 to 90 trolleys.  He stated that he complained about this as did others but that the manager did nothing in relation to this colleague.

The witness stated that he didn't want to sign the assessment, but he was told that if you don't sign the assessment you are going to be dismissed and that this argument went on for more than two hours.

It was put to the complainant that he was dismissed and only complained about discrimination after he was dismissed. He confirmed that he was given an invitation to return to the company but did not do so.

Under cross examination, the complainant noted that he never got a negative assessment, and he had not received any warning notes. When it was put to him that safety related issues were mentioned, he confirmed that they were mentioned but he did not agree that they were safety issues. He stated that there was no meeting regarding safety in December and that this alleged meeting did not happen. He said no meeting took place and that there was just an informal conversation where he said safety issues were raised but he didn't agree with them.

As regards the comments of a racist nature the complainant stated that they started as soon as he started work. He noted that he said to his manager that he did not like those words, but when he was asked when he said that he could not remember any dates but noted that it happened a few times. He confirmed that it was upsetting when someone refers to the colour of your skin. He was asked why he did not go to HR to report the matters but noted that he was afraid of losing his job and that he saw the way that the manager dealt with other people who faced him, they were sacked.

He confirmed that when he stepped down from the role with greater responsibility, he maintained the pay rise he had received, keeping the higher rate of pay. He confirmed this but noted that this was not a promotion, simply a pay increase.

The complainant noted that he was made to keep working until bins were all clean and that this meant working overtime but not being paid for those hours. He was asked whether he clocked for the hours of overtime and confirmed that sometimes he did but that he was not paid for the extra time. He stated that in the beginning they were asked to cut down on the hours that they were doing. He said that sometimes they were paid and sometimes they were not.

He was asked about the times they were not paid and was asked whether he went to HR, but he said that he did not go to HR.  It was put to him that the company will say that whatever hours he claimed for, he was paid for.

The complainant was asked about the night of the 28th of January, he was asked whether he was threatened with dismissal for not signing the document and he said that this was correct. It was put to him that the dismissal was not mentioned in this conversation, and that the first-time dismissal was mentioned was when he met with the person from Human Resources, he said that that was correct that dismissal was mentioned at that point.

The complainant then mentioned that his boss told him that he would have to work for a further month and reduce pay before being dismissed but he confirmed that he did not mention this to the person from HR and only told her that he didn't want to go back to work until things were sorted.

The person from HR called him to confirm that he was being dismissed for safety reasons. The witness confirmed that he was advised that he could appeal. He confirmed that he received an offer of reinstatement but did not reply to that offer.

Another witness for the complainant gave evidence that he worked for three weeks on the team cleaning the machinery on the night shift and that he worked on the same team as the complainant along with the supervisor who had been previously mentioned. He confirmed that he never really saw anything happening between them because he was in his workplace. He stated that during their break the complainant would come and tell him what had happened. No cross examination took place.

The respondent submitted that it made a decision in 2024 to employ cleaning staff directly, the complainant initially started working for the respondent directly and was given a position as a senior cleaner.  However, he found the job too onerous and as to be returned to cleaning duties only.  However, he received a pay rise in September.  The respondent submitted that safety issues arose with the complainant, and these were raised with him in December 2024.  The complainant’s manager in the case without the December meeting that he expected to see an improvement from the complainant, however this never happened.

In January 2025 manager initiated the formal probation evaluation of the complainant. During this review it was noted that the complainant’s performance had not improved and furthermore that there was serious concern regarding the complainant’s failure to work safely, which could compromise not only safety within the factory itself but also the safety of the products being produced by the factory. The complainant was advised that he was not going to pass his probation period and was given one week's notice, which was paid in lieu.

The complainant approached staff member in the HR on January 29 regarding the decision to give him his notice. At this time, he also made allegations that he was being discriminated against and was being subjected to racist comments. He was advised of the procedures to follow if he felt he was being discriminated against and asked to provide full details in writing. The complainant was also informed that she would contact the manager to see if he was aware of any such issues.

The HR staff member contacted the manager who indicated that there were performance issues with the complainant and that is why he received a poor evaluation. His manager did not accept the allegation that he was treating certain people more favorably.

The respondent submitted that they did not receive any details of the complaints of discrimination from the complainant but rather received copy of the WRC complaint form.

The respondent submitted that it was a supportive employer and that the behavior alleged by the complainant would not be indicative of company who wanted to support and develop its people. The respondent submitted that the complainant did not bring any evidence to anyone’s attention until after he had left the company's employment and then, when offered reinstatement, did not accept the offer to allow his allegations to be fully investigated.

In relation to the requirements of the Act the respondent submitted that the complainant has failed to raise the inference necessary that he was discriminated against. The respondent submitted that the complainant has not raised a prima facie case of discrimination such as would place the burden of proof onto the respondent.

Oral Evidence:

The first witness was the complainants line manager. He noted that the complainant had previously worked with a contractor who was providing staff to the respondent. The witness noted that he offered a direct role to the complainant in cleaning postproduction areas, tools and boxes. He stated that his working relationship with the complainant was very positive and that he had given him additional responsibilities, effectively giving him a supervisor role without the title. He moved him onto a Monday to Friday rota. He confirmed that the complainant subsequently received a pay rise. He noted that he was happy enough with the performance of the complainant but that ultimately the complainant sought to move away from those responsibilities.

The witness stated that there were no real issues with the complainant’s performance up until the end of September he had requested holidays and parental leave and on his return to work there were five serious difficulties outlined. In essence there had been breaches of the Health and Safety protocols and as they were dealing with the food chain this was an important issue for the respondent. He stated that chemicals had been left in food drums.

He had a meeting with the complainant on 17 December 2024, and he noted that there were issues arising over the previous five weeks. He stated to the complainant that he had to be mindful as he was still on probation. He stated there was no noticeable improvement and that daily issues began to arise. He raised these again with the complainant but there were ongoing issues with the complainant’s performance. The complainant’s employment was terminated on 28 January 2025. He stated that the complainant only raised issues of racism after his termination.

The witness stated that the complainant never raised anyone else’s behaviour or lack of work with him, and he had never complained about doing a larger share of the work. He was asked whether he was aware that the complainant had been left to do all the cleaning, but he responded that he wasn't.

The witness noted that there was a whole system of clocking in for overtime and that the complainant never raised any issues with him regarding not being paid for overtime.

Under cross examination the witness stated that he had to hold a meeting with the complainant to stop the issues as there were serious concerns regarding his performance. He was asked whether he consulted with anyone else but stated that he didn't. He confirmed that he had been trained in how to raise issues but noted that different rules applied for probationary employees and that the first step was to have a counselling meeting with them.

The witness was asked when he required the complainant to take on Sunday duties and noted that it was at the beginning of June and that in July, he asked to be removed from those Sunday duties.

The witness stated that the decision to give the complainant a pay rise was as a result of the commercial manager not he himself who made the decision. He stated that the pay rise was afforded to the complainant on the basis of his skills and that there were no major complaints about his performance.

The witness was asked whether he kept notes, and he stated that he did keep records of his interactions with the complainant.

The witness confirmed that the probation review meeting took place around midnight after the completion of the shift. He noted that it was not disciplinary in nature and that the performance outcome was that he no longer had a job. He stated that there was too much risk in keeping the complainant on that He had failed his probation.  The witness clarified that things did not improve in relation to the complainant’s performance from time he spoke to him on 16 December 2024.

The witness denied using racist language in his interactions with the complainant. Each of the assertions were put to him and each time he stated that the assertions were not true.  He also stated that these issues were never raised with him at any stage. 

The second witness for the respondent was another employee who worked alongside the complainant. He stated that he never witnessed any racist comments, and he never heard anything along those lines from the manager.  He also stated he didn't recall any reference to people who are not carrying their weight in work terms. He was asked whether he had ever experienced his boss being racist and he said no. Cross examination was not availed of.

The third witness for the respondent was the Human Resources manager. She stated that the probation process for the complainant was the normal process.  She confirmed that the supervisor would manage the situation and usually there was no input from HR other than occasional advice. She confirmed that human resource is section were not normally involved in probation meetings about noted that her only advice in relation to this complaint was to the manager to make sure that he filled out the probation review notes.

The witness stated that on the morning the 29th the complainant arrived and was told that his employment had been terminated. He then told her about the racist remarks, but she knows that she had not been made aware of any of it previously and that she would have to talk to the manager. She stated that her understanding was that it was a termination due to performance reasons, specifically in relation to Health and Safety aspects of the job.

The witness confirmed that the complainant appeared with another person who was not an employee, she provided the complainant with a termination letter and advised him of the appeal details. She confirmed that she never received an appeal from the complaint.

The witness stated that she couldn't confirm if the complainant had received an employee handbook or not as they were distributed before she began with the company. She stated that she would have expected the complainant to come to the Human Resources section or another manager if he had a difficulty with a colleague but noted that he never raised any matters either formally or informally. She stated that the first time she saw anything in writing was when the WRC papers were issued.

She stated that the respondent offered to reinstate the complainant on an extended probation period, reporting to a different manager, while it investigated the matter. She stated that she never received any further communication from the complainant.

The witness confirmed that racism would be covered under the Bullying & Harassment Policy but could not confirm whether the complainant received the policies as there was no permanent HR function for four months and there was nothing on file. However, she noted that all managers have access to the policy and there are notices around the building. She confirmed that there was somebody in Human Resources and Health & Safety Manager who were involved in onboarding the complainant.

The witness confirmed that a review/appeal of the decision to terminate his employment was offered to the complainant and she provided him with the e-mail address to make that appeal. Under redirection she confirmed that handbooks have since been issued to all staff.

The complainant was not entirely credible as a witness, changing his story at times while at times avoiding answering questions and giving vague answers. He provided no concrete dates to support his contentions.  However, he was consistent in the detail that he related regarding the comments made to him and to the racist remarks that were directed at him.

For his part the complainant’s supervisor/manager did not come across as entirely credible either.  He noted that he kept records, but these were not produced.  His answers to some questions regarding specific details provided by the complainant appeared both vague and contrived.  He did not produce his notes in support of his evidence.

It was suggested by the respondent that the complainant was not consistent in his remarks regarding his manager but from the evidence presented, he was consistent across his written submissions and oral evidence.

The respondent raised the issue of the complainant establishing a prima facie case.  The Employment Equality Act states at Section 85A (1) that

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.

In summarising his case, the representative for the complainant noted that in the nature of the allegations of racism, there are not always witnesses to the racism and I accept that this is a possibility.  It was further noted that the complainant was a good worker at the start of his employment, this fact is not in contention.  It was also noted that the complainant was consistent in his allegations throughout the process.  The respondent summarised the case in that there is an allegation that he was terminated for a discriminatory reason. It further submitted that it falls upon the complainant to prove this and that a mere assertion does not establish this as fact.

As regards the evidence of the two main witnesses – the complainant and his manager, on balance, I prefer the witness evidence of the complainant which, although having gaps in his dateline, was more likely than not to have been the case.

Accordingly, I am satisfied that the complainant has established a prima facie case such that it may be presumed that there was discrimination against him.

It was also proposed that the complainant was subjected to abuse by a supervisor, but that the complainant was not clear how he was to raise anything further regarding this.  This is not entirely borne out by the facts.  The witness for the respondent from the Human Resources section came across as completely credible, outlining her involvement while noting certain facts that served to undermine the respondent’s case, i.e. that she was not sure whether he had received an employee handbook or as to what induction procedures he underwent when starting.

What was not challenged by the complainant was the fact that this witness outlined the options for appeal by the complainant, including providing an email address for him to send the appeal to.  He did not pursue this avenue.

Another fact outlined by the witness from HR, and not challenged by the complainant, was the offer of reinstatement, which included an offer to work to another manager, while they investigated his allegations.  The complainant did not avail of this option of reinstatement and did not provide written details of his complaint of racism as requested upon his termination.

The Act, at Section 15 notes the liability of employers and principals and states as follows:

15.—(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—

(a) from doing that act, or

(b) from doing in the course of his or her employment acts of that description.

Having regard to all the foregoing, although I am prepared to believe the complainant in relation to the suggestion that he was racially abused, I do not find the assertion that he did not know where to go with his complaints is borne out by the facts.  He was provided with an appeal but chose not to do so.  Following his termination he was offered reinstatement, working to another manager while the matter was investigated. 

It might have been a better option for the respondent to suspend the termination of the complainant’s employment as soon as the complaints were raised, and to reassign him to work for another manager and to investigate the complaints.  The termination appears to have been pushed through with undue haste.  However, on the other hand, it would have been a better option for the complainant to put his assertions of racism in writing to the employer.

Notwithstanding the foregoing, both of the options open to the complainant would have addressed his complaints and having regard to the provisions of Section 15, I am satisfied that the respondent has taken some such steps as were practicable in the circumstances to address the assertions of discrimination.  The complainant did not avail of any of the options afforded to him.

Accordingly, I find that although the complainant has established facts from which if may be inferred that he was discriminated against.  I consider that an award of compensation in the region of €5000 is appropriate, however, I also note that the has also that the respondent provided certain options to the complainant to try to address the discrimination allegations raised.  The complainant chose not to avail of either the appeal or the reinstatement options offered to him.

Accordingly, I consider that a reduction of any award, by 40% is appropriate having regard to all of the circumstances of this complaint.  There I award the complainant compensation of €3000 in respect of the discrimination he suffered.

Having regard to all the written and oral submissions presented in relation to this complaint, my decision is that the complainant was discriminated against in accordance with the provisions of the Employment Equality Acts, 1998 – 2015.  I award the complainant compensation of €3000 for the effects of the discrimination he suffered.

Employment Equality Act – discrimination of grounds of Race – prima facie case established – respondent raised partial defences  – award of compensation reduced as complainant did not avail of options provided to address issues raised