THE WORKPLACE RELATIONS COMMISSON
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC – E2015 – 105
PARTIES
Mr Gheorghe Bolocan (represented by The Independent Workers Union)
and
The Howth Railway Refreshment Rooms Ltd. t/a The Bloody Stream (represented by Peter Ryan Consultants)
File Reference: EE/2014/227 Date of Issue: 16th October 2015
Keywords: race – discriminatory treatment – S. 8 –victimisation – no prima facie case.
1. Claim
1.1. The case concerns a claim by Mr Gheorghe Bolocan that Howth Railway Refreshment Rooms Ltd t/a The Bloody Stream discriminated against him on the ground of race contrary to Section 6(2)(h) of the Employment Equality Acts 1998 to 2011, in terms of his conditions of employment.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 16 April 2014. A submission was received from the complainant on 10 February 2015. A submission was received from the respondent on 11 May 2015. On 20 August 2015, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. As required by Section 79(1) of the Acts, and pursuant to the continuation of my functions set out in S. 83 of the Workplace Relations Act 2015, as amended by S. 20(m) of the National Minimum Wage (Low Pay Commission) Act 2015, and as part of my investigation, I proceeded to hold a joint hearing of the case on 15 October 2015.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that he started to work for the respondent in 2007. He submits that the respondent at various times unilaterally changed his working terms and conditions. He submits that this caused him a lot of stress and that he became ill with stress and anxiety. He submits that the respondent’s action were unlawful under various employment law enactments such as the Organisation of Working Time Act, the Terms of Employment (Information) Acts and the Payment of Wages Act.
2.2. The complainant does not provide details of his nationality, the treatment of any comparator within the meaning of the Employment Equality Acts, who would be of a different nationality, or how and why the alleged treatment is linked to the race ground.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that the complainant has filed seven separate cases with the Rights Commissioner service, one case with the Equality Tribunal and a personal injury action in the High Court. It submits that the complainant is the second highest earner of all its kitchen porters, and was never treated less favourably than workers of other nationalities. With regard to break times, it disputes that the complainant got no breaks and states that he is required to record his breaks in writing. It also disputes that the complainant received no contract of employment and that on this matter, an appeal is currently pending before the Employment Appeals Tribunal.
4. Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complainant was discriminatorily dismissed within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.4. The complainant’s oral evidence was confusing and contradictory at times. For example, he stated he received no payslips, and at other points in his evidence he assured the Tribunal that he had payslips as evidence. Likewise, he stated at different times that he either had no contract of employment, or that he received a contract of employment in 2010. There were also issues with time limits as set out in S. 77(5) of the Acts. I therefore asked primarily for evidence of events which would have happened after 16 October 2013, which would have brought the complaint in time.
4.5. His representative submitted that the difference in treatment which the complainant endured after that date was that the complainant had to sign timesheets and clock in and out electronically following his complaint under the Organisation of Working Time Act. It was submitted that the complainant was the only worker in the restaurant who had to do this. However, the complainant accepted in response to a question from the representative of the respondent that the alleged poor treatment only started after his complaint to the Rights Commissioner Service. He further stated that the employment relationship deteriorated further after his solicitor sent correspondence regarding a Personal Injury claim to the respondent.
4.6. The complainant could not produce any cogent evidence that the signing of the timesheets had anything to do with his Romanian nationality. The respondent in its submission accepted that the complainant was asked to sign off on his break times, but said that this followed his complaint under the Organisation of Working Time Act, that he did not receive breaks. I prefer the respondent’s submission on this, as it plainly makes more sense that the respondent wished to protect itself from similar future claims of the complainant, rather than singling him out because he is a Romanian national.
4.7. In fact, the complainant did not produce any solid evidence of less favourable treatment, compared to a worker of a different nationality, for the relevant period, which would have brought his complaint in time. His complaint of discrimination must therefore fail for lack of a prima facie case of discrimination.
4.8. The complainant has not made a complaint of victimisation, although the Tribunal would have the power to consider possible victimisation following the filing of the original complaint, if the evidence before it supports such a claim. However, it is important to note that victimisation within the meaning of the Acts only refers to resisting acts, or making relevant complaints, which are unlawful under the Employment Equality Acts, which means essentially acts of discrimination. Poor treatment which triggers complaints under other employment legislation or personal injuries actions does not engage the provisions of S. 74(2) of the Acts which cover victimisation. Accordingly, I find that the complainant does not have a valid case of victimisation, either.
5. Decision
5.1. This decision is issued by me, following the establishment of the Workplace Relations Commission on the 1st of October, 2015, as an Adjudication Officer who was an Equality Officer on that date, pursuant to the continuation of my functions set out in S. 83 of the Workplace Relations Act 2015, as amended by S. 20(m) of the National Minimum Wage (Low Pay Commission) Act 2015.
5.2. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Howth Railway Refreshment Rooms Ltd t/a The Bloody Stream did not discriminate against Mr Gheorghe Bolocan on the ground of race, and did not victimise him within the meaning of S. 74(2) of the Acts.
______________________
Stephen Bonnlander
Adjudication Officer
16 October 2015