DECISION NO: DEC-E/2012/185
PARTIES
Mr. Paul Ryder
(Represented by Claudine Hanratty & Co. Solicitors)
Vs
QE Facilities Limited t/a the Maldron Hotel Tallaght
(Represented by IBEC)
FILE NO: EE/2010/735
DATE OF ISSUE: 18 December, 2012
1. Dispute
This dispute involves a claim by Mr. Paul Ryder that he was discriminated against by QE Facilities Limited t/a the Maldron Hotel Tallaght, on the grounds of gender and race, in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 and 2008 in relation to his conditions of employment and training and that he was harassed contrary to Section 14 of the Acts. The complainant has also submitted a claim of victimisation.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 6th of October, 2010.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 28th of September, 2012 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 16th of November, 2012.
3. Summary of complainant's case
3.1 It is submitted that the complainant was employed by the respondent, from 24th November, 2009 to 9th of April, 2010. He was employed as Duty Manager and as Food and Beverage Supervisor.
3.2 It is submitted that the complainant was discriminated against on grounds of race and gender regarding his working conditions when he was not provided with adequate training which he requested.
3.3 It is submitted that the complainant was inhibited in the writing of his Duty Managers Reports and that others were not.
3.4 The complainant submits that he was reprimanded for talking to customers when other employees were not and that this amounts to less favourable treatment on the grounds specified.
3.5 It is also submitted that the complainant did not receive the correct uniform and was regularly reprimanded for not wearing a uniform.
3.6 The complainant submits that he was harassed on grounds of gender and race when he was physically grabbed by the Manager Ms. K and aggressively reprimanded for chewing a jelly bean while on duty. Following this incident the complainant reported the matter to the Assistant General Manager, Mr. T and submitted a letter of resignation.
3.7 It is submitted that the complainant was victimised following a complainant about the Manager Ms. K when she aggressively reprimanded him while he was in conversation with a member of an Garda Siochana. The complainant had not taken a break that was due to him on the day in question.
4. Summary of respondent's case
4.1 The respondent, agrees that the complainant was employed with them from the period specified and that his employment ended following his letter of resignation dated 9th of April, 2010.
4.2 It is submitted that the complainant did not raise any issues or any complaints regarding his treatment until he spoke to Mr. T regarding his intention to resign. Mr. T offered to discuss these issues with the complainant at that time but he declined the offer.
4.3 It is submitted that the respondent attempted to address the issues raised in the complainant's letter of resignation by calling the complainant to a meeting with its HR Manager but this was unsuccessful.
4.4 It is submitted that the complainant had indicated to Mr. T in February 2010 that he would be taking up some part time teaching hours and that he would have to reduce his hours at the hotel to 15-20 hours per week. The complainant was facilitated in this request.
4.5 It is submitted that staff uniforms are the responsibility of HR and or Departmental Heads and that Ms. K as General Manager does not have a role in this regard. It is submitted that she does not recall reprimanding the complainant about his uniform except possibly in relation to Health and Safety aspects.
4.6 It is submitted that the complainant did receive his supervisory shirts and that his Cessation form refers to the return of same.
4.7 It is submitted that the complainant's conversation with the member of an Garda Síochána was interrupted as he was needed at the bar. It is submitted that the complainant had taken his break on the specified day.
4.8 It is submitted that it is Managerial prerogative to request an employee to desist from chewing gum/eating sweets while on duty as the consumption of foodstuffs outside of break times is (contrary to Hotel Policy and) not tolerated by Management.
4.9 It is the company position that the complainant did receive training to the extent mandated and necessary to the nature of his work. This was in line with all employees in the workplace irrespective of race or gender.
4.10 It is submitted that the complainant never raised any concerns regarding his treatment and that it was open to him to make a complaint in accordance with the company grievance procedures which are outlined in writing in his Employment Contract and in the Employee Handbook.
5. Preliminary Jurisdictional Issues- Time Limit Settlement Agreement
5.1. It is submitted by the respondent that the Complainant can only seek redress in respect of occurrences during the 6 month period prior to the date on which the claim was received by the Equality Tribunal, thus only incidents between 7th of April 2010 and 6th of October, 2010 can be examined for the purpose of establishing a case. This is only relevant in the circumstance where the claim itself is made outside of the 6 months time limit set out in Section 77(5) of the Acts. This is not relevant in the instant case as the claim was submitted on 6th October, 2010 and the last alleged incident took place on 9th of April, 2010, thus the claim is within the 6 months time limit set out in the Acts.
6. Findings and Conclusions of the Equality Officer
6.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of gender and race in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, in relation to his conditions of employment and training and whether he was harassed and victimised contrary to Sections 14 and 74 (2) 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 at the Hearing.
6.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
6.3 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows - "as between any 2 persons, ... that one is a woman and the other is a man". Section 6(2) (h) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins... "
6.4 Training
6.4.1 It is submitted that the complainant did not receive adequate training for his duties and that despite requesting this training it was not provided. The complainant advised the hearing that he had requested training in the hotels reservation system 'OPERA' and that he was not provided with this training. The complainant stated that another employee, Mr. B, a night porter, who was the brother of Ms. K, General Manager and who was Indian did receive the specified training and that this amounts to discrimination on grounds of race.
6.4.2 The complainant advised the hearing that, in his role as Duty Manager, he was at times required to help out at reception when the receptionist was on a break. This involved using the 'OPERA' reservation system. The respondent at the hearing stated that the complainant did receive basic training in the use of the reservation system in accordance with the requirements of his job. The complainant acknowledged that he had received some training on using this system but that he felt he required more training as it was a very complicated system. He advised the hearing that he had requested additional training but had not received it. He stated that Ms. K's brother, Mr. B had received extensive training in this system.
6.4.3 It emerged at the hearing that the complainant was required to cover at reception while the receptionist was on a break at night and that this amounted to a period of not more than a half an hour during which he was at reception. The respondent advised the hearing that Mr. B was employed as a night porter and thus a large part of his duties involved reception duties and using the reservation system and therefore he required and received substantial training in this regard. The respondent stated that the training received by the complainant was what was required for his role and was the same for all Duty Managers. I am satisfied that the respondents failure to provide the complainant with additional training in the reservation system was in accordance with hotel procedures having regard to the complainants role and responsibilities and was unrelated to his race. Accordingly from the totality of the evidence adduced on this matter I do not find that the complainant has established a prima facie case of less favourable treatment on grounds of race in relation to training.
6.5 Harassment/Conditions of Employment
Uniform Issue
6.5.1 The complainant at the hearing stated that he was not provided with a uniform and that as the only male Irish Duty Manager this amounts to less favourable treatment on grounds of race and gender. The complainant told the hearing that in his role as Duty Manager he was required to wear a suit of his own with a shirt to be provided by the respondent. The complainant, in his role as Food and Beverage supervisor was required to wear a stripy shirt which was to be provided by the respondent. The complainant at the hearing, stated that he was never provided with any of these shirts and always had to wear a shirt of his own while at work.
6.5.2 The complainant, when questioned as to whether he had requested the uniform or raised the issue of the uniform with the appropriate personnel, replied that he had asked the General Manager, Ms. K. The respondent, at the hearing stated that Ms. K had no responsibility regarding the allocation of uniforms and that it was the responsibility of HR and Departmental heads to ensure that employees received and wore correct uniforms. Ms. K also added that she would never have got involved in uniform issues with employees save in relation to Health and Safety issues, and that she would direct uniform queries or issues to HR or to Departmental heads.
6.5.3 The complainant submitted that he had been reprimanded by the General Manager Ms. K for uniform issues. The complainant stated that he was reprimanded on about ten occasions for failing to wear the correct uniform. The complainant did not provide any details of dates, times or incidents where he was reprimanded in relation to his uniform. He did not provide any specific details of these occurrences. Ms. K at the hearing stated that she didn't know if the complainant had received the uniform shirts, she could not recall whether or not she had seen the complainant wearing the stripy shirt, during his shifts as food and beverage supervisor. Ms. K advised the hearing that to her recollection the complainant had always been very well turned out, wearing a suit and shirt and that she never had cause to reprimand him on his appearance. She added that the only thing she could think of was that she may have told him to "cuff his shirt sleeves" on occasion for health and safety reasons due to the risk of burns associated with working with food and drink.
6.5.4 It would appear that the complainant was employed in two roles one which involved him wearing a suit of his own with a plain shirt which should have been provided by the respondent but which according to the complainant was not provided and so he wore his own. It seems to me then, that on the occasions on which the complainant worked as Duty Manager and wore a suit and shirt, it would not have been obvious to anyone that he was not wearing the correct uniform. It would appear that the complainant, in his role as Food and Beverage Supervisor, was required to wear a stripy shirt which he did not receive and so instead he wore a shirt of his own as he did when working as Duty Manager. The complainant states that he was the only Food and Beverage Supervisor who did not receive a uniform and that he is the only male Irish Food and Beverage Supervisor and that the failure to provide him with a uniform amounts to less favourable treatment on grounds of race and gender. Similarly the complainant states that he was the only male Irish Duty Manager apart from those at a senior level. The complainant in the present case stated that he did not receive the correct uniform shirts and that this was due to his race and gender.
6.5.5 I should clarify that the fact that the complainant is male and Irish is not sufficient to establish that the failure to provide him with a uniform amounts to discrimination. The Labour Court in Margetts V Graham Anthony & Co. Ltd EDA/038 stated
"The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred"
6.5.6 I am satisfied that the complainant did not receive the uniform shirts, and in the circumstances and from the evidence adduced it would appear that this was an oversight on the part of the respondent bearing in mind the fact that the complainant was employed in a role which necessitated the wearing of his own suit. From the evidence provided on this matter it is not apparent that the complainant had ever drawn this oversight to the attention of the appropriate personnel as it appears that he wasn't very clear on who was responsible for this matter. The uniform issue was also not raised as an issue in the complainant's review (submitted in evidence) which was carried out at the end of February 2009 and which gave the complainant an opportunity to raise any issues/difficulties which he had encountered. In conclusion, the complainant has not presented any evidence to substantiate the allegation that the failure to provide him with the uniform shirts amounts to less favourable treatment on grounds of race or gender. I am not satisfied from the evidence adduced on this issue that this was in any way influenced by the complainant's race or gender. Accordingly from the totality of the evidence adduced on this matter I do not find that the complainant has established a prima facie case of less favourable treatment or harassment on grounds of race and/or gender in relation to this matter.
6.6 Restricted in writing his Duty Manager Reports.
6.6.1 The complainant submitted that he was reprimanded over the content of his Duty Manager Reports and that this amounts to less favourable treatment on grounds of race and/or gender. The complainant advised the hearing that as part of his role as Duty Manager he was required to write up a report of the nights events which was then presented to all Departments on the following morning. It would appear from the evidence of both parties that the purpose of these reports is to raise issues or mention any difficulties which come to light during the Duty Managers shift.
6.6.2 The complainant advised the hearing that he had on the occasion in question, written in his report that there had been a problem checking in guests as the reservation staff had not carried out the correct back up procedures. The complainant stated that he was told by Ms. K that this should not have been in his report and that it should not be raised at the daily meeting of Department Heads. The complainant submitted that no other Duty Managers are restricted in what they put in their reports and that this amounts to less favourable treatment on grounds of gender and race. Witness for the respondent Ms. K advised the hearing that she had told the complainant not to raise the issue of the reservation staff not carrying back ups at the meeting as there was only one staff member in that Department, Ms O., and thus the complainants report clearly identified her as being at fault in relation to the matter. Ms. K stated that Ms. O upon reading the report had been upset and so she, Ms. K had thought it best to discuss the matter with Ms. O separately rather than having it raised in front of all Department Heads at the daily meeting as it clearly identified one specific individual as being at fault. Ms. K also stated that, she had told the complainant that this was her reason for not wanting it raised by the complainant at the meeting. She stated that she had not at any other point raised issues with his reports and had in no way imposed restrictions on the manner in which he wrote his reports. As evidence of this the respondent presented the hearing with numerous Duty Manager reports made by the complainant after this incident. The complainant did not offer any evidence of restrictions imposed on him in relation to his duty managers report other than the incident outlined.
6.6.3 I am not satisfied from the evidence adduced on this issue that Ms. K's actions in this matter were in any way influenced by the complainant's race or gender. In conclusion, the complainant has not presented any evidence to substantiate the allegation that he was restricted in the writing of his daily Duty Managers report and that this amounts to less favourable treatment on grounds of race or gender. Accordingly from the totality of the evidence adduced on this matter I do not find that the complainant has established a prima facie case of less favourable treatment on grounds of race or gender in relation to this matter.
6.7 Incident re 'Chewing a sweet' behind the bar
6.7.1 The complainant advised the hearing that he resigned from his post following an incident in the bar on the night of 9th of April, 2010. The complainant advised the hearing that he was chewing a sweet while working behind the bar on the night in question, when the hotel was very busy due to a big international football match being played nearby. The complainant advised the hearing that Ms. K, upon noticing that he was chewing, raced behind the bar and grabbed him by the arm and told him to get rid of the chewing gum. The complainant stated that he told her he wasn't chewing gum that it was in fact a sweet and that he then left the bar and went to speak to Mr. T to advise him that he was resigning due to this incident. Ms. K stated that she had wanted the complainant to go and help out in another bar in the hotel which was also very busy and that she had been trying to get his attention from outside the bar but that due to the crowds and the noise level he couldn't see or hear her so she went in behind the bar and caught him by the arm to get his attention. She stated that she asked him to go to the other bar as it was so busy and stated that she then noticed he was chewing and told him to get rid of the chewing gum before going to the other bar. Ms. K stated that it was against Hotel Policy for staff to consume food between breaks while working. The complainant acknowledged that he shouldn't have been chewing while working and that it was unprofessional but states that Ms. K grabbed him aggressively and that this amounts to less favourable treatment and harassment on grounds of race and gender.
6.7.2 Both parties agreed that the hotel and the bar were very busy on the night in question and I am thus satisfied that Ms. K was unable to get the complainants attention due to the level of noise and interruption and that she may have caught him by the arm in order to get his attention. However, having said that it is inappropriate and unprofessional to make physical contact with a staff member in such a manner and a person at Ms. K 's level within an organization should bear this in mind. I am however satisfied that Ms. K was within her rights as a manager to ask an employee to desist from chewing while working and I am also satisfied that this would have happened irrespective of the employee's race or gender. I am satisfied that in the circumstances where there are a number of staff behind a busy bar with excessive noise levels that catching someone by the arm to get their attention, while inappropriate was not motivated by race or gender. In addition, while the complainant may have been understandably annoyed that Ms. K caught him by the arm to give him an order I am not satisfied that this incident alone led to the complainant being forced to resign his position. The complainant's letter of resignation refers to this incident and personal reasons as the reasons for his resignation. The letter also indicates that the respondent organisation due to a lack of resources and staff does not meet certain standards which the complainant feels guests deserve. In addition the complainant had in February, indicated to the respondent that he would be taking up some part time teaching hours and that he would have to reduce his hours at the hotel to 15-20 hours per week. The complainant was facilitated in this request. Accordingly from the totality of the evidence adduced on these matters I do not find that the complainant has established a prima facie case of less favourable treatment or harassment on grounds of race/gender in relation to this matter.
6.7.3 The complainant in his submission stated that Ms. K was very intimidating and aggressive towards the complainant and other staff. The complainant repeated this at the hearing and also stated that Ms. K treated everyone badly. It may be the case that Ms. K treated him badly and certainly it is inappropriate to have 'grabbed' the complainant by the arm but I am not satisfied that this behaviour is in any way due to the complainant's race and gender.
6.8 Victimisation
6.8.1 It is submitted that the complainant was harassed and victimised following his complaint to Mr. T about Ms. K and the sweet incident. The complainant advised the hearing that about 15 to 20 minutes after the sweet incident he was in the hotel lobby speaking to a female member of the Garda Siochana when Ms. K rudely interrupted and reprimanded him. The complainant stated that he was embarrassed and belittled by this. Ms. K stated that she did not become aware of the complaint made by the complainant until she returned to work the following Monday as the Hotel was so busy on the night in question. She stated that she did interrupt the complainant's conversation with the female Garda as he was needed at the bar. Both parties agreed that this incident took place just before the end of the match at a time when the bar was getting busy as crowds were staring to come in from the match. Ms. K advised the hearing that she had excused herself for interrupting and asked the complainant to go to the bar as he was needed there. I am satisfied that Ms. K as General Manager was within her rights to direct a staff member to return to his duties and I am satisfied that Ms. K would have treated any staff member in the same manner in the circumstances. I am satisfied from the totality of the evidence adduced in this issue that Ms. Ks interrupting of the complainant's conversation and direction to him to return to his duties does not amount to harassment or victimisation within the meaning of the Acts. Accordingly from the totality of the evidence adduced on this matter I find that the complainant has not established a prima facie case of harassment or victimisation in relation to this matter.
7. DECISION OF THE EQUALITY OFFICER
7.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find -
i. that the respondent did not discriminate against the complainant on the grounds of gender and race pursuant to section 6(2)(a) and (h) of the Acts in relation to training .
ii. that the respondent did not discriminate against the complainant on the grounds of gender and race pursuant to section 6(2)(a) and (h) of the Acts in relation to his conditions of employment .
iii. that the respondent did not harass the complainant on the grounds of gender and race pursuant to section 6(2)(a) and (h) of the Acts within the meaning of Section 14 (A) of the Acts.
iv. that the respondent did not victimise the complainant within the meaning of Section 74 (2) of the Acts.
__________________
Orla Jones
Equality Officer
18 December, 2012