DECISION NO: DEC-E/2013/039
PARTIES
Mr. Kumar Subramanium
(Represented by John Synnott & Co. Solicitors)
Vs
MJBCH Limited t/a D4 Hotels.com (In Liquidation)
FILE NO: EE/2009/850
Date of issue: 10 May, 2013
1. Dispute
1.1 This dispute involves a claim by Mr. Kumar Subramanium, that he was discriminated against by MJBCH Limited t/a D4 Hotels.com on grounds of race, in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts, in relation to his dismissal. There is also a claim of discriminatory treatment and harassment on grounds of race, in terms of section 6(2) and contrary to section 8 and section 14 of those Acts.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on the 25th of November, 2009 alleging that the respondent had discriminated against him on grounds of race when he was unfairly selected for redundancy/dismissal. The complainant further submits that he was harassed and discriminated against by the respondent.
2.2 A preliminary decision in relation to the matter of the correct respondent in this case was issued on 20th December, 2012 (DEC-E2012-189).
2.3 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 31st of December 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 11th of February, 2013. The respondent was not present at the hearing and a letter was received from the liquidator prior to the hearing indicating that he would not be attending the hearing.
3. Summary of complainant's case
3.1 The complainant states that he is Malaysian and a chef by profession. He submits that he was employed by the respondent as Head Chef from August 2008 to May 2009.
3.2 It is submitted that the complainant often complained to the General Manager Ms. C that the kitchen was understaffed, as this meant that he and other staff had to work extra hours. On one occasion when the complainant took a scheduled day off he was criticised by Ms. C and given a verbal warning as he was told he shouldn't have taken the day off as it was "too busy".
3.3 It is submitted that on 29th of May 2009 the complainant was told by the General Manager Ms. C that he was being let go. It is submitted that when he questioned Ms. C as to the reason he was being let go that she replied 'I prefer to work with Irish Chefs'.
3.3 It is also further submitted that the complainant was not given any notice of redundancy and was not paid his notice.
3.4 It is submitted that 3 weeks after the complainant was dismissed he was replaced by another Head Chef who was Irish.
3.4 It is submitted that there was a huge turnover of kitchen staff in the respondent company and that whenever a staff member left the complainant was asked by Ms. C to replace them with Irish Chefs. It is submitted that this amounts to discriminatory treatment and harassment on grounds of race.
3.5 It is submitted that in March 2009 the Second Head Chef left and that the complainant suggested to Ms. C that his brother who was also a chef be employed to replace the Second Head Chef. Ms. C agreed to this and the complainant's brother was employed as Second Head Chef but was paid €37,000 pa instead of €40,000 pa which had been the salary paid to the previous incumbent.
3.6 It is submitted that at the time the complainant was let go it was indicated that his brother was to be let go 2 weeks later, but that this did not happen and the complainant's brother remained in employment with the respondent.
4. Summary of Respondent's case
4.1 It is submitted that the complainant was employed by the respondent, as Head Chef from August 2008 to May 2009.
4.2 It is submitted that in the eight months after the complainant started work the respondent pursued an aggressive marketing and promotional campaign which led to a dramatic increase in the volume of business. In an effort to manage this the respondent submits that it increased the number of Kitchen porters on duty and varied shift rosters to ensure enough staff were on duty at peak times.
4.3 It is submitted that the respondent in order to meet the demands of this increased business, and due to ongoing concerns about Food Hygiene management carried out a review of kitchen operations and following this the role of Head Chef was made redundant and Mr. Subramanium was advised of this on 26th of April, 2009 and was furnished with a letter confirming this decision on 29th of April, 2009. It was decided that an Executive Head Chef would be required to meet the new demands. It is submitted that further investigation of this option found that the employment of an Executive Head Chef transpired to be too expensive.
4.4 It is submitted that the complainant was entitled to one week's notice which was paid in his final cheque (copy submitted) and that he did not qualify for redundancy payment due to his length of service.
4.5 It is submitted that the General Manager Ms. C did not at any point demand that non-national staff be replaced with Irish staff. It is submitted that during the period in question over 80% of the hotels staff and 93% of the Kitchen Brigade were non national (These figures were 80% and 89% respectively at the date of submission).
5. Conclusions of the Equality Officer
5.1 The issues for decision by me now are, whether or not MJBCH Limited t/a D4 Hotels.com discriminated against the complainant on grounds of race, in terms of section 6(2) (h) and contrary to section 8 of the Employment Equality Acts, 1998 and 2004 in relation to his dismissal. I must also make a decision on whether the complainant was subjected to discriminatory treatment and harassed on grounds of race contrary to section 8 and section 14 of those 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.
5.2 Section 6(1) of the Employment Equality Acts, 1998 and 2004 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) (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... "
Thus the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because his is Malaysian. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:
Section 85A of the Act provided for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.1
5.3 Less favourable treatment - Conditions of Employment
5.3.1 The complainant at the hearing stated that he had problems with the General Manager, Ms. C from day one. He advised the hearing that he regularly made complaints to Ms. C regarding concerns he had in relation to another member of staff whom he said was 'an alcoholic'. He stated that Ms. C didn't like to hear complaints but added that he was not afraid to speak up or to raise issues with her. The complainant stated that he had also raised issues with Ms. C regarding staff members not charging the correct prices for food items on the menu and added that he was concerned that such mistakes would cause problems when it came to accounting for stock. The complainant felt that Ms. C did not listen to him and that nothing was done in relation to the matters which he raised. He stated that this differed to the way in which another member of staff, the Bar Manager, who was Irish was treated. He stated that the Bar Manager, who was Irish stayed on the premises drinking until all hours and was often drunk on the premises but that nothing was done about the behaviour of this staff member. The complainant advised that hearing that the staff member in question was later sacked from his job with the respondent. Accordingly based on the evidence given I do not find that the complainant has established a prima facie case of less favourable treatment, on the ground of race in relation to this matter.
5.4 Verbal warning following Day off
5.3.1 The Complainant at the hearing stated that he had received a verbal warning from the General Manager Ms. C for taking a scheduled day off. He stated that he always checked prior to taking a day off that there was enough cover. He advised the hearing that he always carried out the preparations for the following day prior to his day off. He added that it wasn't always possible to know if it was going to be busy but that there were sous chefs employed who could cover his duties while he was on his day off. He added that he had on occasion told Ms. C that the sous chefs were well paid and that he should be allowed to take a day off, he added that they were paid enough to cover for him on his day off. The complainant advised the hearing that on the day in question there were sous chefs working who should have been able to cope with a busy time. The complainant when questioned stated that he had received a verbal warning for taking the day off as the day in question was very busy, and that he was told by Ms. C that he could take a day off but not when it was so busy. The complainant did not provide any evidence to substantiate his claim that this verbal warning was in any way related to his race. Accordingly based on the evidence given I do not find that the complainant has established a prima facie case of less favourable treatment, on the ground of race in relation to this matter.
5.5 Discriminatory Dismissal
5.5.1 The complainant at the hearing stated that on the day in question he was told by the General Manager Ms. C that she would have to 'let him go'. The complainant advised the hearing that he was also told that his brother, who was of the same race, would have to be 'let go', in two weeks time, but that this did not happen and his brother was kept on. The complainant stated that at the time he was not given any reason as to why he was being let go. The complainant stated that he later approached Ms. C privately to question why he was being let go and stated that she told him that she 'preferred to work with Irish people'. It is submitted that this amounts to discriminatory dismissal on grounds of race. The complainant when questioned as to whether he made any response to this comment stated that he said nothing and didn't question it.
5.5.2 The complainant has submitted that he was dismissed due to his race. However, the complainant has also submitted and stated in direct evidence that his brother was taken on as Second Head Chef in March 2009 and was kept on after the complainants employment terminated. The complainant stated that his brother had continued to work for the respondent for over a year after the complainant was 'let go'.
5.5.3 The respondent in its submission to the Tribunal had stated that the complainant was dismissed due to concerns about food hygiene and a decision to take on an Executive Head Chef which turned out not to be a financially viable option after the complainants dismissal. The respondent was not present at the hearing to substantiate the reasons for dismissing the complainant.
5.5.4 The complainant in his direct evidence indicated that he had problems with the General Manager from day one, the complainant in giving a reason for these problems did not at any point refer to his race but referred to the fact that he wasn't afraid to speak up or to raise issues or make complaints. The complainant has submitted that he was dismissed due to his race, and in support of this he has stated that the General Manager told him that she "preferred to work with Irish people", however, he has also stated that his brother who was of the same race was taken on at the complainant's request and was kept on by the respondent for more than a year after the complainant was dismissed. In addition, both the complainant and the respondent have submitted that the majority of the kitchen staff employed by the respondent were non-Irish. These facts in addition to the complainant's account of his ongoing difficulties with the General Manager do not substantiate the claim that the complainant's dismissal was due to his race. Thus I am not satisfied that the complainant was dismissed on grounds of his race. Accordingly, based on the evidence given, I find that the respondent did not discriminate against the complainant on the ground of race in relation to his dismissal.
5.6 Harassment on grounds of race.
It was submitted by the complainant prior to the hearing, that whenever a staff member left the kitchen the complainant was asked by Ms. C to replace them with Irish Chefs. It was submitted that this amounts to discriminatory treatment and harassment on grounds of race. The complainant at the hearing made no reference to this allegation and when questioned regarding incidents of harassment was unable to provide any evidence of incidents of harassment. In addition the complainant in direct evidence outlined how his brother had been employed as Second Head Chef following a request from complainant to Ms. C, in March 2009, and his brother had continued in that post after the complainant's dismissal. This would appear to be in direct conflict with the alleged request to replace staff members with Irish Chefs. Accordingly, based on the evidence given, I do not find that the complainant has established a prima facie case of harassment, on the ground of race in relation to this matter.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -
(i) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against him on the ground of race pursuant to section 6(2) and contrary to section 8 of the Acts in terms of his conditions of employment
(ii) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against him on the ground of race pursuant to section 6(2) and contrary to section 8 of the Acts in relation to a verbal warning
(iii) the respondent did not discriminate against the complainant on the ground of race pursuant to section 6(2) and contrary to section 8 of the Acts in relation to his dismissal.
(iv) the complainant was not harassed by the respondent on the ground of race pursuant to section 6(2) and contrary to Section 14A (7) of those Acts.
____________________
Orla Jones
Equality Officer
10 May, 2013
1 Labour Court Determination No. EDA0917