DEC-E2014-017

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision DEC-E2014-017

PARTIES

Mirela Mentel

(Represented by Brendan Archbold)

V

Top Heights Ltd. t/a Foys Bar & Lounge

(Represented by Peninsula Business Services)

Date of issue: 14 April 2014

File reference: EE/2010/813

Headnotes: Employment Equality Acts, 1998-2011 - sections 6,8, 74 and 77 - race – gender - employment status - conditions of employment – harassment - prima facie case - victimisation - equal pay - burden of proof.

1. DISPUTE

This dispute involves a claim by Ms. Mirela Mentel (hereafter “the complainant”) who is a Polish national, that she was (i) discriminated against by Top Heights Ltd. t/a Foys Bar and Lounge (hereafter “the respondent”) in respect of her conditions of employment on grounds of race and gender, in terms of section 6(2)(a) and (h) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts and that the respondent harassed the complainant on grounds of gender and race in the course of her employment contrary to section 14A of the Acts. The complainant is also alleging that she was subjected to victimisation by the respondent contrary to the provisions of section 74 (2) of the Acts. The complainant has also made a claim of equal pay on the basis of a hypothetical comparator.

2. BACKGROUND

2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2008 to the Equality Tribunal on 29 October, 2010. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Valerie Murtagh, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 16 September 2013, the date the complaint was delegated to me. Submissions were received on behalf of both parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 2 October 2013. On that date, I was advised by representatives on behalf of the complainant and the respondent that they were in negotiations to try and arrange settlement terms of the complaint under the Employment Equality Acts and a request was made for an adjournment of the case on that basis. The case was adjourned to allow parties to try and resolve the matter. In mid-December 2013, the complainant’s representative contacted the Tribunal to state that they could not reach a resolution to the matter and requested that a hearing be scheduled as soon as possible. A further hearing date was scheduled for 27 January 2014 at 10.30 am. On Friday morning 24 January, the Tribunal received a telephone call from the respondent’s representative stating that a relative of one of the respondent’s main witnesses had died and they would not be in a position to attend the hearing on the following Monday as they would be attending the funeral. The respondent was requested to send in the relevant death notice/funeral arrangements; however, no documentation was forthcoming. On the day of the hearing, the respondent’s representative attended but stated she was not in a position to get in touch with the respondent over the weekend and was unsure of Mr. F’s whereabouts and had no instructions from him. I advised the respondent’s representative that I would adjourn the matter to 2.30 pm to give Mr. F time to attend, however, the respondent’s representative stated that she was not in a position to contact the respondent and she was due to be in Cork in the afternoon. The complainant’s representative strenuously objected to any further delay or adjournment on the basis that the case was lodged in October 2010 and given that the case was adjourned on the 2 October 2013 to give the parties an opportunity to try and resolve the complaint and the fact that no satisfactory explanation was given for the respondent’s non-attendance at the hearing that the case should proceed. Having carefully considered the matter, I proceeded to hear the case.

3. SUMMARY OF COMPLAINANT’S CASE

3.1 The complainant worked for the respondent on two separate occasions; from August 2008 to June 2009 and from September 2009 to September 2010. The complainant’s work comprised washing dishes and cleaning duties in the respondent’s premises. The complainant submits that she was subjected to discriminatory treatment on grounds of her gender and race in her working conditions in terms of the following issues;

• not provided with a contract of employment
• not provided with rest breaks or annual leave in accordance with the Organisation of Working Time Act 1997
• not paid for Sundays or Public Holidays in accordance with the Organisation of Working Time Act 1997
• required to work extra hours without pay
• not provided with health and safety training
• required to work in an environment which was unsafe and unhealthy

3.2 The complainant is also alleging that she was subjected to harassment on grounds of her gender and race and received regular threats of dismissal. She states that she had a limitless range of duties and that other staff in the company were of the view that she was ‘at everyone’s beck and call’. The complainant also submits that she was a general dogsbody and was considered fair game for anyone in the employment in need of some entertainment and that management fostered a culture of harassment and discrimination against her. The complainant contends that she was accused by management of stealing items from the company. She also submits that she was constantly interrupted during her breaks and summoned back to work. She was threatened by her manager that if she did not stay on and do extra hours, she would be fired from her job even though she never got paid for the extra hours. She states that when she requested payslips in order to assert her rights and entitlements, the owner of the company, Mr. F laughed mockingly at her and said “for all the good they would be to you, you may wipe your arse with them”. She submits that soon after she complained about her payslips, he cut her hours down to 8 hours per week. She states that her supervisor would order her to bring up a very heavy box full of plates and cutlery from the basement up to the top floor and when she got there, the staff would make fun of her and request her to bring them straight back down to the basement. She states that there were occasions that she was told to push out huge containers of waste onto the middle of the street which was a very onerous task for her. She submits that she was in a vulnerable position due to the fact she was a non-Irish national coupled with her lack of proficiency in the English language and as a consequence, she was in a difficult position to challenge the harassment.

3.3 She submits that she was put down constantly by management and colleagues in her work. She contends that after washing floors, staff would purposely walk on them and dirty them. She submits that some of the staff would hide the cleaning materials and detergents and told her to go out and buy her own cleaning products if she wanted to do cleaning. The complainant states that the owners, a husband and wife team, set the tone in the employment and other staff members followed suit by continually harassing her and making fun of her. The complainant states that she was subjected to victimisation on the basis that after being successful in her Rights Commissioner case, she received a document with three post-dated cheques from the respondent’s solicitor bypassing her own representative requesting her to accept and sign same in full and final settlement of all her complaints against the respondent. She submits that the document was in English and she was not in a position to comprehend said document as she has a poor level of English. The complainant is also alleging discrimination on grounds of gender and race in relation to equal pay on the basis of a hypothetical comparator.

4. SUMMARY OF RESPONDENT’S CASE

4.1 The respondent did not engage with the investigation and did not attend the hearing. In addition, no adequate or satisfactory explanation was provided for its non-attendance at the hearing. A member of secretariat unit in the Tribunal requested documentary evidence to explain the respondent’s non- attendance as part of the Tribunal’s practice and procedures, however, nothing was forthcoming. On the day of the hearing, a representative on behalf of the respondent attended. She stated that she had not been able to contact the respondent and had no instructions in relation to the case. She submits that the complaints raised are res judicata. The respondent’s representative states that the complainant is attempting to double recover in this forum on foot of the same complaints i.e. contract of employment, wages, working time and alleged harassment which were raised at the Employment Appeals Tribunal as part of a claim for constructive dismissal which she won. The representative on behalf of the respondent stated that the complainant had also pursued claims in relation to some of these matters separately under various pieces of legislation before the Rights Commissioners and was successful in her claims.

4.2 The respondent’s representative argues that the complainant cannot double recover before the Equality Tribunal on the same set of facts. As she took a case of constructive dismissal to the EAT rather than a claim relating to actual dismissal, it is the events leading up to the resignation that are relevant to whether or not a ‘dismissal’ occurred. The complainant is relying on the same facts in this case to ground a claim of discrimination as she has already relied on in her claim for constructive dismissal at the EAT. The same facts have already being examined in detail by the EAT and were found to have amounted to a constructive dismissal. In this regard, the complainant cites the decision DEC/E2011/247, Barry O’ Carroll v Sovereign Security Ltd. The respondent’s representative also refers to a more recent Labour Court decision EDA1326 Jahan Company t/a Irema Ireland v Anne Power which determined that even where legislation does not specifically preclude a complainant from pursuing complaints under two different pieces of legislation, the person hearing the case must look at the facts and decide if an award has already been made on those facts.

4.3 In relation to the equal pay claim, the respondent’s representative requested that this part of the claim be struck out as the requirement to name a male or an Irish comparator has not been complied with and the complainant is out of time now to do so as the complainant had left the company in October 2010. The respondent’s representative states that in relation to the victimisation claim which the complainant lodged in July 2011; this complaint relates to alleged incidents that occurred almost a year after her employment had terminated and at that point the respondent’s duty of care towards the complainant had ceased.

5. CONCLUSIONS OF EQUALITY OFFICER

Preliminary Issue

5.1 The first issue I must consider is the argument by the respondent’s representative that the matters raised in this complaint are res judicata on the basis of the respondent’s assertion that the complainant raised the same issues in the context of her case at the Employment Appeals Tribunal and at the Rights Commissioners and won in both fora and is therefore attempting to double recover at this Tribunal on the same set of facts. Having carefully examined and considered the decisions of the Rights Commissioners and the EAT, I find that the complaints raised in the context of non-provision of a contract, non-provision of rest breaks and annual leave and non-payment for Sundays and public holidays in accordance with the Organisation of Working Time Act, 1997 have been examined and redress was provided to the complainant in that context. In addition, on the day of the hearing, the complainant’s representative acknowledged that there were errors made on the above issues for both male and female staff and Irish and non-Irish nationals in the respondent company, therefore I find that there is no breach in relation to the Employment Equality Acts on these matters.

5.2 Section 101(4) of the Employment Equality Acts states that an employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if (a) the employee has instituted proceedings for damages at common law for wrongful dismissal and the hearing of the case has begun (b) in the exercise of powers under the Unfair Dismissal’s Act, 1977 to 1993, a rights commissioner has issued a recommendation in respect of the dismissal, or (c) the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal. The final paragraph of the EAT decision, in relation to the complainant’s case of unfair dismissal, states “The Tribunal finds that the claimant was constructively dismissed from her employment. In her letter to the respondent on 4 October 2010, she sets out a number of matters that were of grave concern to her and stated she was giving one week’s notice of her intention to resign. It was established that in fact she was correct in that letter to state that she had no contract, that she was not paid properly for holidays and that she was underpaid for her work. These matters were the subject of a recommendation and decision from the Labour Relations Commission that was not appealed by the Respondent. Whether or not the accident that the claimant complained of in that letter occurred as alleged or not at all, as maintained by the Respondent, the failure by the respondent to do anything at all on foot of the letter from the claimant was not acceptable. No evidence was brought forward by the respondent to show that they had a safe workplace. It is clear that the respondent did not comply with the vast swathes of legislation designed to regularise the employment relationship. In addition to the matters complained of by the claimant, the employer apparently had two sets of payslips for the claimant and this matter was completely unexplained by the respondent. In all of the circumstances, the claimant terminated her employment in circumstances that amounted to an unfair dismissal.” While the EAT has dealt with the constructive dismissal element and events leading up to same, I find that I have jurisdiction to examine the complaint in relation to harassment on grounds of gender and race under the Employment Equality Acts which the EAT has no jurisdiction to examine and which was not dealt with in the context of the complainant’s dismissal. I am also cognisant that, on the issue of res judicata, in McCauley v McDermott, Keane J stated that “a party should not be deprived of his or her constitutional right of access to the courts by the doctrine of res judicata where injustice might result.” (1997) 2 ILRM 486.

5.3 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of gender and race, in terms of section 6(2) (a) and (h) of the Employment Equality Acts and contrary to section 8 of those Acts in relation to harassment in her conditions of employment (ii) if the complainant was subjected to victimisation contrary to the provisions of section 74 (2) of the Acts and (iii) if the complainant was discriminated in relation to equal pay. 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. 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 she 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".

5.4 Section 6(1) of the Employment Equality Acts, 1998 to 2011 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 between any 2 persons…that they are of different race, colour, nationality or ethnic or national origins”. The complainant has made an allegation that she was subjected to harassment by work colleagues and management in the course of her employment on grounds of her gender and race. Section 14A (7) of the Act defines harassment as “any form of unwanted conduct related to any of the discriminatory grounds and being conduct which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.” For a complaint of discrimination under the Employment Equality Acts to be made out, she must demonstrate a nexus between the alleged discriminatory treatment and her gender and/or race.

5.5 The complainant submits that she was harassed by management and staff of the respondent on an ongoing basis. She states that she was accused by management of stealing items from the company. In this regard, she was often sent off the premises to purchase goods for the restaurant and sometimes she was not paid for the goods as management said to her that she was not being paid for same as she had probably stolen them. She also submits that she was constantly interrupted during her breaks and summoned back to work. She was threatened by her manager that if she did not stay on and do extra hours, she would be fired from her job even though she never got paid for the extra hours. She states that when she requested payslips, the owner of the company, Mr. F laughed mockingly at her and said “for all the good they would be to you, you may wipe your arse with them”. She submits that soon after she complained about her payslips, her hours were cut down to 8 hours per week. She contends that due to the fact she was a non-Irish national coupled with her lack of proficiency in the English language, she was in a difficult position to challenge the harassment. On examination of the evidence, on balance, I am satisfied that the respondent would not have made such a remark to an Irish male employee. In addition, the complainant states that her supervisor would order her to bring up a very heavy box full of plates and cutlery from the basement up to the top floor and when she got there, the staff would make fun of her and request her to bring them straight back down to the basement. She states that there were occasions she was ordered to push out huge containers of waste onto the middle of the street which was a very onerous task for her.

5.6 The complainant submits that she was put down constantly by management and colleagues in her work. She contends that after washing floors, staff would purposely walk on them and dirty them. She states that some of the staff would hide the cleaning materials and detergents and told her to go out and buy her own cleaning products if she wanted to do cleaning. The complainant was a cogent witness and gave clear and credible evidence. I am satisfied that when the complainant complained about the non-provision of her payslips on the basis that as a non-Irish national she was unaware of her rights and wanted to get some clarity regarding her hours of work and pay, the respondent thereafter reduced her hours to 8 hours per week. Overall, on examination of all the written evidence and witness testimony, I am satisfied that the complainant has adduced evidence from which a prima facie case of discrimination on the gender and race ground in relation to harassment in her working conditions can be inferred. I am satisfied, given the evidence taken in its totality and in the absence of any evidence on behalf of the respondent, that the complainant has demonstrated that she was subjected to harassment in the course of her employment which was related to her gender and race resulting in a very demeaning and hostile environment for her. I also find that the respondent has failed to rebut that inference so raised as he did not engage with or attend the hearing. In light of the foregoing, I find that the complainant was subjected to harassment in the course of her employment on grounds of her gender and race contrary to the Employment Equality Acts.

5.7 The complainant also alleges that she was victimised by the respondent. In relation to the issue of victimisation, Section 74 (2) states:

…..victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-

a) a complaint of discrimination made by the employee to the employer,

b) any proceedings by a complainant, …….”

The complainant alleges that she was victimised following a successful case at the Rights Commissioners. She submits that following that case, she received a document with three post-dated cheques from the respondent’s solicitor bypassing her own representative requesting her to accept and sign same in full and final settlement of all her complaints against the respondent. She states that the document was in English and she has a poor level of English and could not understand same. Having examined the evidence on this issue and the letter in question sent to the complainant, I note that the document states that the cheques enclosed are in full and final settlement in respect of the Rights Commissioner/LRC matter only and that it will not affect any claims pending before the EAT and Equality Tribunal. I also note that the complainant contacted her representative on foot of receipt of the above correspondence from the respondent’s solicitor. Therefore, I am satisfied that she did not suffer adverse treatment as a result of her equality complaint and accordingly, I consider that her complaint of victimisation fails.

5.8 The complainant has also made an allegation that she was discriminated against on grounds of gender and race in relation to the non-provision of equal pay on the basis of a hypothetical comparator. It is not possible to ground a claim of equal pay by reference to a hypothetical comparator. Accordingly, I find that this part of the claim is dismissed on the basis that there is a requirement under the legislation to name a male or an Irish comparator which has not been complied with and therefore this element of the claim fails.

6. DECISION OF THE EQUALITY OFFICER

6.1 Having considered the written and oral evidence presented to me, I find that the equal pay claim is dismissed on the basis that there was no named comparator provided, as required by the legislation.

6.2 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that:

(i) the complainant has established a prima facie case of discrimination on the gender and race ground pursuant to section 6(2) of the Acts and contrary to section 8 of those Acts in relation to harassment in her working conditions contrary to section 14A of the Acts.

(ii) the respondent did not victimise the complainant contrary to the provisions of section 74 (2) of the Acts.

In accordance with my powers under the Act, I order the respondent to pay the complainant compensation in the sum of €2,500 for the distress suffered by her as a result of the discrimination. This amount is not in the form of remuneration and is therefore not subject to the PAYE/PRSI Code.

_____________________

Valerie Murtagh

Equality Officer

14 April, 2014