A security guard who accused a shopping centre manager of racial abuse by telling him \u201cyou look like a monkey\u201d has lost his discrimination claim.<\/p>\n
The Workplace Relations Commission has rejected, in a decision published today, the evidence of the guard and a fellow worker who said he had heard the remark \u2013 and came down on the side of the manager, who said he had only asked the man to take his hands out of his pockets.<\/p>\n
Younis Sarwari, an Afghan national, took a complaint under the Employment Equality Act 1998 against the operators of Garryowen Mall in the Crescent Shopping Centre in Limerick City — Clancourt Management Unlimited, trading as Clancourt Management.<\/p>\n
Mr Sarwari said the shopping centre\u2019s general manager approached him while he was speaking with a shop worker and said to him in a raised voice: \u201cTake your hands out of your pockets, you look like a monkey who is not interested in work.\u201d<\/p>\n
He said the general manager \u201cmocked him\u201d when he protested and was \u201caggressive and unprofessional\u201d in the alleged incident on 26 February 2021.<\/p>\n
The manager\u2019s evidence to the tribunal was that his words were: \u201cCan I have a word, please? Can you please take hands out of your pockets, that\u2019s what you are trained.\u201d<\/p>\n
The manager said that in his 39-year career, there had \u201cnever been any complaints about him\u201d.<\/p>\n
He said matters like the use of mobile phones, staff appearance and customer service were on the agenda of staff meetings held every two months \u201cto ensure the centre is run properly\u201d \u2013 meetings which included the security staff.<\/p>\n
The manager said if he saw a worker not adhering to the rules he would \u201capproach them\u201d.<\/p>\n
He said had \u201cnever been a subject of a complaint\u201d and that the allegations had a \u201cterrible effect\u201d on him and his family.<\/p>\n
Another worker gave evidence that he was speaking to Mr Sarwari because an alarm had been going off in the Subway sandwich shop where he worked.<\/p>\n
He too stated that he heard the general manager shouting: \u201cTake your hands out of your pocket, you look like a monkey,\u201d but said he kept walking as he \u201cdid not want to get involved”.<\/p>\n
Asked under cross-examination whether he was a \u201cfriend\u201d of the complainant, the shop worker said he \u201cknew all the staff from staff parties\u201d.<\/p>\n
He denied that he had been showing the complainant something \u201cpersonal\u201d on his phone when the manager approached, and said he was looking to see what time the security company had phoned him.<\/p>\n
The complainant\u2019s evidence was that the shop worker had shown him a \u201clads\u2019 thing\u201d on the phone.<\/p>\n
The tribunal heard the security guard brought a complaint to the centre\u2019s management stating: \u201c[I am] a good hard worker and not an animal to be treated like that and I want to be respected in job. I am not here to get abused. As my job deals with a lot of criminals and I don\u2019t need to be racially abused by my manager.\u201d<\/p>\n
The employer appointed a barrister to investigate the matter, who ultimately found that \u201cnothing untoward occurred\u201d, said Tiernan Lowey BL, who appeared for the shopping centre instructed by Hayes Solicitors, adding that the finding was upheld on appeal.<\/p>\n
Mr Lowey said in submissions that it had been established during the investigation that the complainant and the sandwich shop worker were \u201cfriends who enjoyed an occasional social drink\u201d and that this \u201cundermined the credibility\u201d of both their evidence and the shop worker\u2019s independence as a witness.<\/p>\n
He said the general manager\u2019s position, denying any \u201caggressive manner\u201d in the interaction, was \u201csupported by a detailed review of the CCTV footage\u201d.<\/p>\n
This showed that none of three members of the public seen on CCTV between the manager and the two men \u201cpause or react in any way to what had been characterised as a loud and heated altercation\u201d.<\/p>\n
Sarah Walsh BL, instructed by Breen Geary McCarthy and Shee Solicitors for the complainant, argued that the company had \u201cfailed despite repeated requests\u201d to provide CCTV footage of what happened.<\/p>\n
The tribunal heard that complainant\u2019s trade union, Siptu, wrote seeking the investigation report and looking for a copy of the CCTV in May 2021.<\/p>\n
The employer replied it would facilitate this when the Subway worker, who was out on sick leave at the time, was certified fit to work by his GP, the tribunal heard.<\/p>\n
Ms Walsh argued that although her client had been allowed to view the footage, he had never been given a copy \u2013 and disputed the investigating barrister\u2019s \u201cinterpretation\u201d of the tape.<\/p>\n
She said the barrister who investigated \u201cwas not acting impartially\u201d and that the process was \u201centirely inappropriate and in breach of the complainant\u2019s rights to fair procedures\u201d.<\/p>\n
Her client only \u201ceventually\u201d got a copy of the investigation report, she added \u2013 arguing: \u201cAn Irish employee would not have been treated in the manner in which the complainant was.\u201d<\/p>\n
In her decision, adjudicating officer Ewa Sobanska wrote that the centre had been \u201cjustified\u201d in not providing the complainant and his trade union with a copy of the CCTV, as there were members of the public in the footage.<\/p>\n
She added that the CCTV was of \u201clittle or no evidential value\u201d as there was no audio track and people in it were wearing face coverings.<\/p>\n
Ms Sobanska wrote that the security guard\u2019s evidence was \u201cunreliable and unpersuasive\u201d, noting his \u201cimplausible\u201d evidence that \u201cnobody paid any attention\u201d when he claimed the general manager was screaming at him \u201cfrom distance\u201d.<\/p>\n
She added that the evidence of the sandwich shop worker and the complainant were \u201cconflicting\u201d on the question of why the worker had his phone out, which she said \u201craised a question mark over the credibility of the evidence\u201d.<\/p>\n
\u201cOn balance, I have found [the general manager\u2019s] evidence in relation to the interaction\u2026 to be more compelling, cogent and consistent,\u201d she concluded, finding that the security guard had failed to establish an inference of direct discrimination, and declaring the complaint \u201cnot well founded\u201d. <\/p>\n","protected":false},"excerpt":{"rendered":"
A security guard who accused a shopping centre manager of racial abuse by telling him \u201cyou look like a monkey\u201d has lost his discrimination claim.<\/p>\n
The Workplace Relations Commission has rejected, in a decision published today, the evidence of the guard and a fellow worker who said he had heard the remark \u2013 and came down on the side of the <\/p>\n","protected":false},"author":31,"featured_media":50067,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[34],"tags":[],"acf":[],"yoast_head":"\n