The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2011-176
PARTIES
Gregorz Urbanczyk
(Represented by Maguire McClafferty Solicitors)
AND
Proptel Limited t/a Bettystown Court Hotel
(Represented by IBEC)
File reference: EE/2008/419
Date of issue: 20 September 2011
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6, 14A & 74 - Disability - Race - Training, Conditions of Employment, Discriminatory Dismissal
1. DISPUTE
1.1. This dispute concerns a claim by Mr Gregorz Urbanczyk that he was discriminated against by Proptel Limited t/a Bettystown Court Hotel on the grounds of disability and race contrary to section 6 of the Employment Equality Acts in relation to training, conditions of employment and dismissal in a discriminatory manner contrary to section 8 of the Acts and he made a claim for equal pay in terms of section 29 of the Acts.
1.2. The complainant referred his claim to the Director of the Equality Tribunal on 20 June 2008 under the Employment Equality Acts. On 9 March 2011, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both complainants. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 8 June 2011 and final information was received on 29 July 2011.
2. COMPLAINANT'S SUBMISSION
2.1. At the start of the hearing the complainant withdrew his claim in relation to equal pay.
2.2. The complainant is Polish and started working for the respondent on 22 May 2006 as a bar-tender. He submits that on about July or August 2007 the Head Chef, Mr A, verbally abused him on a number of occasions with reference to his nationality and he related two specific incidents. On the first occasion he reported the incident to a Manager (Mr B). Mr B told him that he had spoken to Mr A and another chef and he was satisfied that nothing had happened.
2.3. The complainant submits that on the second occasion Mr A verbally abused him with reference to his nationality, this time in the presence of the Restaurant Manager (Mr C). When the complainant spoke to him about the abuse Mr C said it was not his business. He also spoke to the Shift Manager (Ms D) who said it was probably a joke.
2.4. The complainant submits that in 2006 he was required to work both Christmas Day and New Year's Eve. So in 2007 he spoke to the Bar Manager (Mr E) and asked to be rostered as he requested; which was to not work on Christmas Day and to work on New Year's Eve. Mr E rostered him according to his wishes. On New Year's Eve he suffered a back injury at work and he spoke to the Duty Manager (Mr F) telling him he would have to get treatment for his back but Mr F refused to call him a taxi or an ambulance, saying he did not deal with such matters. The complainant got a lift home from a colleague.
2.5. The complainant submits that he was fit to return to work on 4 January 2008 but when he went to work he was not on the roster. He went to one of the Managers (Ms G) who told him it was a consequence of his refusal to work during on Christmas Day. He then spoke to the Bar Manager (Mr E) who told him he was not rostered because of his refusal to work on Christmas Day. When he asked him when he would get rostered some hours he was told "about May".
2.6. The complainant submits that he was not rostered for a single day in January 2008 and he submits that this happened because of his injury and amounts to discrimination on the grounds of disability. The complainant resigned because of the lack of hours and submits that this amounts to constructive dismissal.
2.7. The complainant submits that he was the only non-national working in the bar area and was one of only two non-nationals working in the public area and therefore submits that his race was a factor in his treatment.
3. RESPONDENT'S SUBMISSION
3.1. The respondent submits that the Bettystown Court Hotel opened in May 2006 and the complainant started working for them in May 2006 as a Bar Person. He was on a part-time contract which stated that his hours could be varied according to the needs of the hotel. In the summer of 2006 the Hotel was very busy and the complainant worked lots of hours. After the summer the Hotel was moderately busy for the remainder of 2006. In 2007 business declined and the summer hours dropped. The respondent submits that the complainant terminated his own employment because of a decline in hours.
3.2. The respondent submits that they have a Bullying and Harassment Policy and this is outlined in the Employee Handbook which was issued to the complainant when he started work. They submit that the complainant did not make a formal complaint in accordance with their procedures.
3.3. The respondent, in relation to the first incident of alleged abuse, submits that Mr B is no longer working for them but when consulted said he had no recollection of any particular incident and nothing had been reported to him by the complainant.
3.4. In relation to the second incident the respondent submits that the Restaurant Manager (Mr C) confirmed that he witnessed an incident between the complainant and the Head Chef. However, he did not hear what was said. The complainant was agitated and the Restaurant Manager asked the complainant to put his complaint in writing and it would then be dealt with. The complainant did not put his complaint in writing.
3.5. The respondent submits that in relation to Christmas and New Year they make efforts to distribute work fairly with most staff working either Christmas or New Year's Eve. Staff at the hotel were expected to work Christmas if possible. In order to encourage them an incentive was offered in the form of triple pay plus favourable treatment in relation to the allocation of work in the new year to anyone who worked on Christmas Day. The complainant chose not to work on Christmas Day 2007 and was rostered to work on New Year's Eve from 6pm to finish.
3.6. In relation to the complainant's injury on New Year's Eve the respondent submits that it was the busiest night of the year in the Hotel and Mr F told the complainant to get a taxi or ambulance himself and there was nothing to stop him from doing this. The respondent also submits that a number of members of staff told them that the complainant said he had received the injury outside of work.
3.7. The respondent submits that the Bar Manager informed staff that the hotel would be quieter in January and preference for the available hours would be given to staff who worked over Christmas. The complainant was rostered to work four shifts in January. He subsequently handed in his notice. This reduction in his work was in line with the level of business of the respondent.
3.8. The respondent submits that the complainant's race or disability was not a factor in how he was treated.
4. PRELIMINARY ISSUE
4.1. At the hearing the respondent raised an issue in relation to time limits. They contend that the earlier incidents in relation to the head chef are unrelated to the later incidents which led to the complainant leaving their employment and are therefore out of time as they occurred more than one year before the complainant submitted his claim. They relied on Labour Court Determination No. EDA0412, Department of Health & Children v John Gillen which concluded that a claim outside the time limits can only be linked to a claim inside the time limits where the "acts can be considered as separate manifestations of the same disposition to discriminate".
4.2. The complainant contends that the discriminatory treatment took place on or about July or August and is related to the treatment which led to his claim of discriminatory dismissal. The complainant was given an opportunity to make a post-hearing submission on this issue but gave no evidence to support his opinion that the events were linked.
4.3. At the hearing the complainant gave evidence that there were three incidents in the summer of 2007 when he was racially abused by the Head Chef. He was unable to be precise about the dates of the incidents but contends they were somewhere between one and three weeks apart and finished by August 2007. A former employee gave evidence to support the complainant. He gave evidence that he witnessed two incidents. The first was two or three weeks before he left and the second just before he left.
4.4. The respondent provided a copy of his P45, pay slips and clock card records which show the witness last worked on 31 May 2007 and that the witness and complainant last worked together on 26 May 2007. If the final incident took place three weeks after 26 May 2007 then the last of the three incidents took place on 16 June 2007 at the latest. This is more than one year before this claim was made on 20 June 2008.]
4.5. It is possible to refer a complaint of a number of events of which only the most recent is within the time limits set out in section 77 (5) of the Acts where it can be shown that the events create a chain of related events. In this case the incidents in May and June 2007 relate to the Head Chef who left the respondent's employment in September 2007. The later incidents relate to the taking of leave over the Christmas and New Year period and problems arising from an injury. From the submissions made by both parties, both written and verbal, I can find no link between these two series of incidents that would lead to an inference of a chain of related events. I therefore find that the events in May and June 2007 are out of time in accordance with section 77 (5) of the Acts.
5. FINDINGS & CONCLUSION OF THE EQUALITY OFFICER
5.1. I have to decide if the complainant was discriminated against on the grounds of disability and race contrary to section 6 of the Employment Equality Acts in relation to training, conditions of employment and dismissal in a discriminatory manner contrary to section 8 of the Acts. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
5.2. Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "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." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent
.
5.3. The complainant states that he was made to work on Christmas Day and New Year's Eve in 2006 whilst Irish workers were given the choice. In 2007 he asked to have Christmas Day off and to work on New Year's Day and he was rostered in accordance with his wishes. He contends that he sustained an injury at work during the evening when he was moving barrels and denies that he sustained the injury outside of work. Later in the evening he says he was unable to carry on working. He claims discrimination occurred when the duty manager would not call a taxi or ambulance for him and told him he did not deal with such matters. He says that he eventually got a lift home from a colleague. The respondent contends that this was the busiest night of the year for the hotel and there was nothing to stop the complainant from calling a taxi or ambulance himself and no discrimination took place.
5.4. Regardless of whether the injury was sustained at work or elsewhere the complainant was in sufficient discomfort that he decided he could not continue to work and needed to leave the workplace. It was a very busy night and the manager considered the complainant could look after himself. The complainant had difficulties moving but was able to get the assistance of a colleague.
5.5. Section 6 of the Acts states; "discrimination shall be taken to occur where .. a person is treated less favourably than another person is .. in a comparable situation on any of the grounds". I consider that a comparable situation in this claim would be someone with a similar level of injury. The complainant may have found himself in difficulty because of his injury but in the circumstances described no evidence has been provided to show that the duty manager would have made a phone call for someone with a similar level of injury on the night in question. I therefore find that the complainant has failed to establish a prima facie case of discrimination in relation to his conditions of employment.
5.6. When the complainant was fit to return to work on 4 January 2008 he contends that he was not on the roster. When he enquired he was told it was because he did not work on Christmas Day. He contends this reduction was because of the problems his injury caused on New Year's Eve and was also influenced by his nationality.
5.7. The respondent submitted rosters which showed that the complainant was rostered to work four times in January. This was a reduction in his previous hours but they contend that it was due to January being a very quiet month for the hotel. They also contend that when the rosters for Christmas and New Year were being drawn up all staff were advised that preference for the reduced hours in the new year would be given to those who had worked over Christmas. The rosters also showed that the hours of other part time bar staff were reduced to a similar level.
5.8. I accept the explanation given by the respondent and conclude that the reduction in the complainant's hours of work was for business reasons and was unconnected to any of the discriminatory grounds.
5.9. No evidence was adduced in relation to training.
6. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that:
the respondent did not discriminate against the complainant in relation to conditions of employment,
the respondent did not discriminate against the complainant in relation to training, and
the complainant was not dismissed in a discriminatory manner.
____________________
Hugh Lonsdale
Equality Officer
20 September 2011