A Nigerian national who was allegedly called a chimpanzee and subjected to monkey noises by his team leader at work has been awarded €30,000 for racial discrimination.
Alan Haugh, deputy chairman of the Labour Court, ordered Dublin- based recruitment firm CPL Solutions Ltd, trading as Flexsource Recruitment, to pay the €30,000 to agency worker Victor Kings Oluebube for racial discrimination under the Employment Equality Act.
At the time of the two alleged racist incidents, Mr Kings Oluebube was assigned by CPL Solutions to Kuehne & Nagel as a warehouse operative.
Mr Haugh has ordered CPL Solutions to pay out the €30,000 after finding that the firm “is vicariously liable for the harassment in question”.
Mr Haugh stated that in regard to the serious nature of the harassment and the effects that it has had on Mr Kings Oluebube, the redress for Mr Kings Oluebube should be dissuasive and proportionate to the injury suffered by him.
The €30,000 award is equivalent to about 63 weeks’ gross pay.
Mr Haugh said CPL Solutions was not able to avail of legal defences to racial harassment under the Employment Equality Acts after evidence was heard that no steps had been taken to reverse the effects of the racial harassment experienced by Mr Kings Oluebube.
Mr Haugh also said CPL Solutions was not able to avail of a separate defence to the discrimination claim due to what the Labour Court described as the employer’s “very unsophisticated bullying and harassment policy” and to “the ad-hoc approach” adopted by a Flexsource staff member to the investigation of the Mr Kings Oluebube’s allegations.
The decision by the Labour Court reverses an earlier ruling by the Workplace Relations Commission (WRC), which dismissed Mr Kings Oluebube’s claim for racial discrimination.
The WRC adjudicator in June 2020 found that the CPL Solutions was able avail of a defence under the Employment Equality Acts by showing that it had taken steps to reverse the effects of the harassment and to prevent a recurrence.
As a result, the WRC stated that CPL Solutions did not harass Mr Kings Oluebube on the race grounds.
The case came before the Labour Court following an appeal by Mr Kings Oluebube against the WRC ruling.
The alleged racial harassment arose from two incidents.
Mr Kings Oluebube alleged that on a date in late February 2019 at the workplace, his team leader called him a chimpanzee and made monkey noises while imitating the gestures of a monkey in front of a number of co-workers. Mr Kings Oluebube did not report this incident at the time.
On May 21st, 2019, the team leader allegedly repeated the same racist abuse of Mr Kings Oluebube in the presence of other co-workers.
Mr Kings Oluebube notified the warehouse manager of the alleged racist abuse, who in turn notified CPL Solutions.
CPL Solutions investigated the alleged two racist incidents and the complaints of harassment on the race ground were upheld and the team leader was issued with a final written warning.
Mr Kings Oluebube requested in writing in the details of the outcome of the investigation.
In response, the CPL staff member who conducted the investigation said she would like to clarify that Flexsource did not in any way condone what had happened between Mr Kings Oluebube and his work colleague.
She stated Flexsource was very sorry that Mr Kings Oluebube had to bear “the brunt of that situation”.
She stated: “I would also like to add, at the start when this was first brought to the attention of Flexsource, you said you would like [the team leader] to receive a warning and you wanted it to stay informal. You then changed your mind as the investigation was midway to say you sought the advice of a solicitor.
She stated: “Flexsource went ahead with the formal investigation meeting and have followed all process.”
The CPL Solutions witness confirmed that neither Mr Kings Oluebube nor his co-workers had been provided with any training in relation to the prevention of bullying and harassment in the workplace.
Mr Haugh stated that the CPL Solutions investigator had failed to provide Mr Kings Oluebube with any terms of reference or timeline for her investigation.
Mr Haugh said she had not given Mr Kings Oluebube sight of any witness statements procured by her, nor had she given him the opportunity to respond to anything said by the perpetrator of the alleged harassment.
Mr Haugh said the CPL Solutions investigator simply informed Mr Kings Oluebube verbally in a general way that she had concluded her investigation, that she had upheld his complaints and the alleged perpetrator had been sanctioned.