THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010-067
PARTIES
Mr. Iulian Baci
(represented by Ms. Eileen Molloy, BL acting on instruction from Muldowney Counihan& Co. Solicitors)
and
Wappinger Food Corporation T/A Roly's Bistro
(represented by Ms. Karen Talbot, BL, acting on instruction from
Kelly Noone & Co. Solicitors)
File Reference: EE/2007/011
Date of Issue: 7 May 2010
1 Claim
1.1 Mr. Iulian Baci claimed that he was discriminated against by his employer in relation to his conditions of employment, that he was harassed and that his dismissal was discriminatory on the race ground based on his nationality. He also claimed equal pay on the race ground based on his nationality. He also claimed, in the alternative, that his dismissal was victimisatory..
2 Background
2.1 The complainant claims that on 15 November 2006 he was rebuked in respect of his work relating to the preparation of fish and that the chef responsible used inappropriate language during that rebuke. The complainant left the respondent premises following the lunch service. He received a call from the chef telling him there was no point returning to work and to collect his P45 the following week. He contacted Mr. Cartwright, the head chef and director about the matter. After a meeting on 24 November 2006 the incident culminated in his dismissal. The complainant asserts that the treatment he received was based on his nationality.
2.2 The respondent stated that on 15 November 2006 the complainant's work was not up to standard and an issue was raised with him four or five times. The complainant left the premises on a very busy day even though he was scheduled to work until 11pm that evening. The chef spoke to Mr. Cartwright who said he would deal with the matter on his return the following week and in the meantime the complainant was to be given the weekend off and his shifts covered by others. The respondent denies that any treatment received by the complainant was motivated by his nationality.
2.3 The complainant referred a claim to the Director of the Equality Tribunal under the Employment Equality Acts 1998-2008 9 January 2007. In accordance with her powers under section 75 of the Act, the Director then delegated the case to me, Bernadette Treanor, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. I began my investigation on 16July 2009, the date the case was assigned to me and a hearing of the case took place on 8 March 2010. At the Hearing the complainant's representative stated that the dismissal had been dealt with before a Rights Commissioner under unfair dismissal legislation and in accordance with section 101 of the Employment Equality Acts the dismissal aspect of the claim would not proceed before the Tribunal.
2.4 The complainant, through his representative, stated that he intended to pursue the incidents leading up to his dismissal at the hearing . These had been referred to in the original complaint form. The respondent argued that the case they had prepared to answer was in relation to the matters raised in the submission and as the complainant had dealt with the dismissal and the incidents relative to it before a Rights Commissioner, the complainant was precluded from addressing those same incidents before the Tribunal.
2.5 In relation to the equal pay claim, the Tribunal pointed out to those attending the hearing that what may be awarded in respect of equal pay cases was redress going back three years from the date of the referral of the claim. It is the Tribunal's practice that valid equal pay claims are not referred until a comparator is named. In the instant case a comparator was named on 23 February 2010 while the complainant's employment terminated in November 2006.
2.6 At the opening of the hearing, and even though no interpreter had been requested, I asked the complainant if he could understand me in order to consider if his command of English was of a sufficiently good standard for the hearing. He did not respond and looked bemused. After some clarification he indicated that it was not a problem. While this occurred a small number of times during the hearing each time it was clarified and I am satisfied that the complainant's English was sufficient to enable him participate fully in the process. I also noted that his representatives did not have any difficulty with this situation.
3 Summary of the Complainant's Case
3.1 The complainant is a Romanian national who was employed by the respondent from 30 April 1998 until November 2006. He began working with the respondent as a kitchen porter and gradually worked his way to the position of chef which he held when his employment terminated. He stated that on 15 November 2006 he was shouted at and humiliated in front of other members of staff by another chef. He prepared a dish of prawns and rice twice and each time the chef had a difficulty with it. Ultimately, the chef shouted "I don't understand why I have to work with these f****** pricks and if you don't like it you can go home." The complainant continued his work until the lunch service was concluded. He then left the respondent premises to go home as he was angry, nervous and humiliated. The complainant stated that perhaps five people had seen the outburst.
3.2 The chef telephoned the complainant but the complainant did not take the call and later received a message saying there was no point in his returning to work, that he was fired and that he should collect his P45 the following week. The complainant contacted Mr. Cartwright, head chef, who was on annual leave at the time. Mr. Cartwright said that he would contact the chef to clarify matters and would call the complainant back the next day.
3.3 On 16 November 2006 the complainant was unwell and contacted the respondent to say he would not be attending for work that day. He waited for Mr. Cartwright's call and when the call did not occur he contacted Mr. Cartwright by text message. Mr. Cartwright stated that he had not yet been in touch with the respondent premises and would contact the complainant later that day.
3.4 On 17 November 2006 the complainant attended for work and was told by the chef that that he was no longer required and that he should go home. The chef confirmed that Mr. Cartwright would speak to the complainant on his return the following week. The complainant noticed that his name had been crossed off the roster and P45 written beside it.
3.5 On 20 November 2006 the complainant was contacted by Mr. Cartwright but the complainant did not take the call. The complainant contacted Mr. Cartwright on 22 November 2006 to arrange a meeting and this took place on 24 November 2006.
3.6 During the meeting Mr. Cartwright spoke about the prawn incident and would not allow the complainant to explain what had happened. The complainant's particular difficulty was focussed on the way the chef had shouted at him. Mr. Cartwright said that the complainant was not dismissed and then the complainant described what the chef had said to him about not being required and about the P45 note.
3.7 At the hearing the complainant stated that the chef, who is Irish, only behaved in this manner with non-national colleagues and that he was very nice and helpful with Irish colleagues. He stated that while there had been incidents prior to 15 November 2006 the chef had never spoken to him in this manner before. This incident was different because it occurred in front of other staff. The complainant stated that the chef argues with everyone in the kitchen and that he is never happy.
3.8 The complainant argues that words were spoken to him by the chef because of his race and they would not have been said to an Irish worker. The chef then proceeded to taunt the complainant with the P45 note. The respondent failed to deal with the matter appropriately, treating it 'softly' and not as a formal grievance by trying to brush over it.
4 Summary of the Respondent's case
4.1 The respondent has a staff of approximately 96 who, in the main, work fulltime. Approximately 35% of these are Irish. The remainder are from all over the world, including, though not limited to, England, Poland, Romania, France, Slovakia, China, Mauritius, USA, Italy and Malaysia.
4.2 Recruitment can take place through advertising or through recommendation of existing workers. The complainant recommended five other workers. Mr. Cartwright operates an open-door management style so that workers can approach him directly whenever they have a problem.
4.3 The complainant began as a kitchen porter, was promoted to vegetable chef and then to a main course chef. There were no difficulties with his performance.
4.4 Mr. Cartwright was on holidays on 15 November 2006 when he received the contact from the complainant. When he contacted the chef, the chef described what had happened including what had been said. He said he had "had a go" at the complainant. Mr. Cartwright told him that sort of behaviour was unacceptable and that he could not condone staff speaking to each other in that way. The chef was given a verbal warning for the incident. Another member of staff had witnessed the incident and said that the dishes went up twice and that the chef rebuked the complainant as stated by the complainant..
4.5 On 24 November 2006 the complainant arrived with his wife. Mr. Cartwright did not want to meet him in the nearby pub frequented by many of the respondent staff but preferred to meet in the private offices in the respondent premises. He wanted the complainant to come back to work and he was of the opinion that the chef would have apologised. The complainant explained that his difficulty was not with the prawn dish which caused the outburst but with the way the chef had behaved. He told the complainant that he would address the matter and that it would not happen again.
4.6 There was no formal grievance procedure at the time but everyone knew to go to Mr. Cartwright directly. Mr. Cartwright stated that whenever there were incidents in the
4.7 The matter would not have been handled any differently for any other person regardless of nationality. In October 2006 there were 26/27 chefs employed and seven of these were Romanian. Seven or eight of the 10 kitchen porters at the time were Romanian and some of these went on to be chefs in like manner to the complainant.
4.8 Mr. Cartwright spent about 80% of his time in the kitchens and he never heard any racial comments. He would not condone it. He stated that the respondent had no difficulty retaining chefs at a time when other restaurants could not.
4.9 The chef, who is Irish, is now head chef and in 2006 was senior chef. On 15 November 2006 it was a very busy lunchtime and the complainant was working on fish dishes. It was a busy and pressurised environment. Four or five times the chef had reason to talk to the complainant about the standard of his work that day. He admitted saying what the complainant attributed to him and stated that he should not have said it.
4.10 The chef described the racial profile in the respondent organisation. The difficulty with the complainant was not his race or nationality but was because he was not cooking properly. When told that the complainant said he argues with everyone and is never happy the chef stated that he got on well with all chefs.
4.11 The chef stated that the complainant left after lunchtime service without permission and that he had to make arrangements to cover the remainder of the complainant's shift which was to run until 11pm that evening. The restaurant had over 300 for dinner that evening. He called the complainant to see was he coming back but the call was not answered. He subsequently spoke to Mr. Cartwright who said he would sort things out on his return, that he should send the complainant home for the weekend and arrange cover for his shifts. He accepted what Mr. Cartwright said. He also agrees that he put the note on the roster about the complainant's P45. He stated that this was done in the heat of the moment. He was angry because the complainant went home in the middle of his shift on a very busy day, did not take the phone call about the rest of the day and when he had to arrange cover for him.
4.12 The chef stated that in general the complainant was a hard worker and quick to learn. He felt that they got along quite well. He stated that while he may not have handled the situation appropriately it had nothing to do with the complainant's race or nationality. The customer is most important and the cooking was not being done properly on the day.
4.13 The respondent argued, through its representative, that as the incidents leading up to the dismissal were dealt with under the unfair dismissal's legislation it could not be addressed by the Tribunal. Not withstanding that, most grievance procedures provide for an initial informal approach and since the complainant did not return to work the issue of formal procedures does not arise. It also stated that no case on the race ground had been made out.
5 Conclusions of the Equality Officer
5.1 What must be decided is whether (i) the Tribunal can address allegations of discrimination in respect of the incidents leading up to the termination of the complainant's employment when that termination was addressed before a Rights Commissioner, (ii) if so whether the complainant was discriminated against on the race ground in respect of his conditions of employment during the incidents leading up to the termination of his employment and (iii) if there is a valid equal pay claim before me for investigation and decision.
5.2 The burden of proof required from the complainant is detailed in section 85A of the Employment Equality Acts which provides that should a complainant establish facts from which it may be presumed that s/he suffered discrimination, it is for the respondent to prove the contrary. Detailed application of this approach may be found in Mitchell v Southern Health Board [2001] ELR201.
Equal Pay Claim
5.3 When the complainant originally lodged his complaint form, on 9 January 2007, he indicated that he wished to pursue an equal pay claim in addition to the equal treatment elements of his claim. However, no comparator was named until it was indicated to the complainant's representative on 28 January 2010 that if a comparator was not named that aspect of the claim would not be addressed further. A comparator's name was received by the Tribunal on 23 February 2010 and this was copied to the respondent's representative. Until that time the respondent did not know to whom the complainant was comparing himself and therefore could not address the claim. From a practical perspective it is not possible for a respondent to respond to such a referral in the absence of a named comparator. It is the Tribunal's practice, and a legal requirement, to take the date of referral of such a claim as the date when the claim is lodged with a named comparator. In that regard, I am satisfied that the date of referral of the equal pay claim in this case is 23 February 2010.
5.4 Section 82(1)(a) states:
an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral under section 77(1) which led to the decision;
5.5 In A Hotel and A Worker, EDA0915 the Labour Court considered, inter alia, an equal pay claim where the complainant had not been employed by the respondent during the three years prior to referral of the claim as in the instant case. The Court had the following comments in respect of redress:
"In an equal pay claim the Court can only award arrears in respect of the three years prior to the date on which the claim was presented. In the three years prior to the presentation of her claim the Complainant was not employed at the Respondent's hotel and had no earnings. Consequently this aspect of her claim is now moot and was not considered further by the Court."
I note in that case the Labour Court chose did not make an award in accordance with section 82(1)(c). On that basis I find that the equal pay aspect of the instant claim is now moot and will not be addressed further.
Equal Treatment Claim
5.6 The respondent argued that the termination of the complainant's employment and the incidents leading up to it were inextricably linked and once addressed before a Rights Commissioner they could not be heard before the Tribunal. The effect of section 101 in relation to the instant case is that the termination of the complainant's employment having been dealt with by the Rights Commissioner cannot be handled by the Tribunal. I am satisfied that the incidents before the termination of employment and whether or not they may have been discriminatory are matters open to the Tribunal to consider in relation to his claim that he was discriminated against in relation to his conditions of employment. The Rights Commissioner was addressing the complainant's termination of employment under the unfair dismissal's legislation and may have addressed the preceding incidents in order to consider the fairness or otherwise of any alleged dismissal but could not have addressed the incidents in the context of whether or not they were discriminatory. I find that it is appropriate to consider the incidents preceding the termination of the complainant's employment in respect of alleged discriminatory discriminatory treatment in respect of his conditions of employment.
5.7 It is common case that the incident took place on 15 November 2006. The parties are also agreed in respect of what was said. Further, there is also agreement in respect of the dishes being cold or otherwise unacceptable although there is a dispute as to why. The complainant asserts that the reason for the behaviour of the chef was his, the complainant's, nationality. The respondent accepts that the behaviour was unacceptable but was not racially motivated.
5.8 The complainant has not presented evidence to show that a person of a different nationality was treated differently in circumstances where their work was not of an acceptable standard. He asserted that the chef was always pleasant to Irish workers but produced no evidence to support this. Overall, in relation to why the chef behaved as he did to the complainant, I find the respondent's version of events more compelling and find that the chef had raised issues with the complainant on four or five occasions leading to the ultimate outburst. I am not satisfied, based on the evidence presented, that this was because of the complainant's nationality.
5.9 The complainant left the respondent premises when the lunchtime service was complete. He did not tell anyone that he intended to leave although he stated in evidence that he had been distressed by the incident. When the chef subsequently called the complainant to ascertain what the complainant's intentions were in respect of the rest of the evening the complainant did not take the call. The chef admitted that in the heat of the moment he felt that someone who could simply walk out of his workplace and leave it in difficulties like that should be dismissed. He admits that he put the reference to P45 beside the complainant's name on the roster even though ultimately such a decision would not be within his authority. However, this was in response to the complainant's behaviour. I am satisfied that while this may be considered inappropriate behaviour it was not based on the complainant's nationality. It was therefore not discriminatory on the race ground.
5.10 On 17 November the complainant returned to work and two hours after he started he states that the chef took him aside to a table in the restaurant area and told him to go home. The chef confirmed that Mr. Cartwright would speak to the complainant on his return. In that regard the chef did what Mr. Cartwright asked him to do, according to their evidence. The complainant also stated that the chef told him he was no longer required. The next interaction attempted between the parties, on 20 November 2006, when Mr. Cartwright called the complainant failed as the complainant declined to take the call. Again, no evidence was presented that would indicate that persons of a different nationality were, or would have been, treated differently. I find that there is no evidence to support the allegation that the treatment received by the complainant at the meeting on 17 November 2006, where he was told to go home and that the matter would be sorted on Mr. Cartwright's return, was because of his nationality and therefore I find that it was not discriminatory on the race ground.
5.11 While not directly relevant it is also noteworthy that the complainant, by that time, had refused to accept two calls from the respondent and was therefore not fully engaging with his employer or facilitating his employer to deal with the situation.
5.12 Finally, the complainant asserted that Mr. Cartwright colluded with the alleged discrimination by treating his complaint 'softly'. When the initial incident happened on 15 November 2006 Mr. Cartwright was away from the workplace on holidays. His instructions to the chef on how the matter should be progressed until his return were that an employee who had behaved inappropriately to a colleague was told it was unacceptable. Both Mr. Cartwright and the chef independently presented evidence in this regard. The recipient of the inappropriate behaviour who, (i) had allegedly not been working to normal standards on the relevant day, (ii) had walked out of the workplace, and (iii) had refused to take a call, was placed on leave until he, Mr. Cartwright, could return on the following Monday to resolve the matter. No evidence has been presented that suggests that Mr. Cartwright's response was motivated by the complainant's nationality.
5.13 I find that the complainant has failed to establish a prima facie case of discrimination on the race ground based on his nationality in connection with the incidents preceding the termination of his employment with the respondent in November 2006.
5.14 The evidence presented is that the complainant was discussing the matters with the respondent at the final meeting. No evidence was presented that might suggest that Mr. Cartwright told the complainant he was dismissed. Based on the evidence presented I am satisfied that Mr. Baci was not dismissed and therefore the question of whether his dismissal was discriminatory or victimisatory does not arise.
6 Decision
6.1 Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts.
6.2 I find that the complainant has failed to establish a prima facia case of less favourable treatment on the race ground based on his nationality in relation to the incidents between 15 November 2006 and 24 November 2006.
Bernadette Treanor
Equality Officer
7 May 2010