EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-063
PARTIES
Cristian Zamfir
(Represented by William Kelly, BL instructed by O’Hanrahan Quaney Solicitors)
AND
Lorien Enterprises Limited
(Represented by Sinead McMullen, BL instructed by O’Riordan & Co Solicitor)
File reference: EE/2013/338
Date of issue: 14th April 2016
1. Introduction:
1.1 This complaint concerns a claim of discrimination and harassment on the grounds of race and religion. The respondent operates restaurants in the centre of Dublin.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on the 15th July 2013 under the Employment Equality Acts. On the 12th August 2015, in accordance with powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Kevin Baneham, 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.
1.3 The complaint was scheduled for hearing on the 27th August 2015. On this day, the solicitor for the complainant attended to request an adjournment as the complainant was then on vacation and had not received notification of the hearing. I agreed to adjourn the matter until the 16th September 2015. On this day, the complainant and a relative attended. He was represented by William Kelly, BL instructed by Roisin Gallogly, solicitor, O’Hanrahan Quaney Solicitors. The respondent was represented by Sinead McMullen, BL instructed by Seamus White, solicitor of O’Riordan & Co Solicitor. A director of the respondent attended as did the restaurant manager, the general manager, the head chef and the supervisor.
1.4 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.
2. Summary of the complainant’s case:
2.1 The complainant was employed in a restaurant operated by the respondent until the end of his employment in 2013. While the complaint form refers to discrimination on the grounds of race, the narrative refers to differential treatment given to staff members who are Muslim. At the hearing, the complainant outlined that he is an Orthodox Christian and his complaint relates to religious discrimination, in particular in how he was treated compared to these Muslim members of staff. The respondent operates two restaurants on the same city centre street; one a traditional restaurant and a second, a venue specialising in casual food, catering for people eating late at night.
2.2 The complainant addressed a number of preliminary issues raised at the outset of the hearing. In respect of the fact that the complaint was submitted on an ‘E.S. 3’ form (i.e. a form to refer an Equal Status complaint), the complainant outlined that both the Employment Equality and Equal Status forms are non-statutory forms. It relied on the decision of the High Court in Co. Louth VEC v The Equality Tribunal [2009] IEHC 370 in that the form must set out the outline of a complaint. It was clear from the form that the matter related to the complainant’s employment and to the Employment Equality Acts. The complainant also said that the respondent has not suffered any prejudice by the wrong use of form. It was further submitted that while only “race” box is ticked, the details provided in the complaint refer to the issue of religion. It was further submitted that this complaint relates to discriminatory treatment in the workplace and that the complaint in relation to the complainant’s dismissal had been advanced under the Unfair Dismissal Acts. The complainant did not agree that the Unfair Dismissal and other claims prevented this complaint from going forward. It was submitted that the claim of discrimination is readily distinguishable from the claims advanced in other fora.
2.3 Addressing the substance of the complaint, the complainant said that he is of Romanian nationality and an Orthodox Christian and worked in a business operated by people of Iranian nationality and Muslim religion. There were many other Romanians working in the restaurant. The complainant commenced working in 2005, initially as a kitchen porter. After a year, he assumed commis chef duties and between 2006 and 2008, he would work either as a commis chef or as a kitchen porter. After 2009, he worked as a commis chef and on Mondays, he would work as a pizza chef. Over the summer months, he worked more as pizza chef as there were more shifts for this role. At this stage, he no longer worked as a kitchen porter.
2.4 Commenting on the tasks he was allocated, the complainant said that the general manager in attendance at the hearing had previously been the manager of the restaurant. At this time, he had asked the complainant to clean the toilets. He also said that the general manager’s wife had called the complainant a “gypsy” and made derogatory references about reliance on social welfare. She told the complainant that if he did not like working in the restaurant, he could go. This was witnessed by the general manager and others. Addressing the staffing in the restaurant, the complainant said that there were five Romanians in the kitchen and there had originally been two Iranians. One subsequently left, to leave only an Iranian pizza chef (referred to in this report as the “pizza chef”). The kitchen porters were all Romanian. On the restaurant floor, there was one Romanian, one Turkish person, a number of Iranians and at one time, one part-time Irish staff member.
2.5 The complainant raised issues regarding the allocation of duties to chefs, in particular during lunchtime shifts. The complainant outlined that he was made clean the toilets while the Muslim chef was not asked to do this job. This occurred when the general manager was on duty and not at other times. This problem started in 2010 and he said that it occurred “sometimes”. Another Romanian chef would help him. He stated that this general manager also required other Romanian chefs to clean the toilets. The Muslim pizza chef refused to do this work on religious grounds and it was always left to a Romanian colleague to do it. The complainant raised this with the general manager, who refused to act. The complainant replied that he was not a slave. While the general manager said that all of the kitchen had to work together, the Muslim chef and other Iranian staff were not required to do this role. The complainant outlined that his job was that of a chef and not to clean toilets. This was a dirty job. The complainant outlined that he believed it discriminatory that he was asked to clean the toilets during these shifts.
2.6 There were also issues with the cleaning of dishes, a task normally done by the kitchen porter. The pizza chef, a Muslim, refused to do this work and it was left to a Romanian chef to do. He also outlined that only staff of Romanian nationality took in deliveries; Muslims did not carry out this function. While it was a role for the kitchen porter, it would take two hours and only the Romanian chefs would help. In respect of pay, the complainant said that he was paid in cash but did not receive pay slips every week. In submissions, the complainant describes the manner wages were paid as “bizarre and byzantine”.
2.7 In cross-examination, the complainant outlined that the pay slips provided by the respondent did not reflect the shifts he worked. He acknowledged that the kitchen porter role was the most junior role in the kitchen and said that he had worked his way up. It was put to the complainant that the most junior kitchen staff member on duty cleaned the toilets; he replied that it was a job for all the kitchen to do, but that the kitchen porter usually carried it out. It also arose that the newest member of the kitchen would be assigned to this role. The complainant said that there had been eight other Romanians in the kitchen and one Romanian manager. Asked whether the language of the kitchen was Romanian, the complainant said that they spoke Romanian amongst themselves. In relation to raising complaints, the complainant said that he spoke about the acts of discrimination to an owner, who was not present at the hearing. It was put to the complainant that there were three Irish staff working on the floor; he replied that one was a daughter of an owner and one of the two others had left. He acknowledged that a kitchen porter worked only on the busy shifts. The complainant was questioned about his allegations regarding the general manager’s wife; he replied that she frequently made comments to the general manager and that he was aware of this issue. The complainant said that he had made many complaints regarding this to the general manager and that these problems continued into 2013. In reply to the question that when there was no kitchen porter on duty it was the commis chef’s job to attend to the toilets, the complainant said that it was not his job. Asked whether there was discrimination, he said there had been discrimination and that this had been directed towards Romanians. He did not accept that this was because Romanians held the junior roles in the kitchen.
2.8 It was submitted that a prima facie case of discrimination was raised by the fact that all the staff were not Irish and there were significant breaches of the employment law statutes, including the Organisation of Working Time Act. In closing submissions, it was submitted that the complainant was employed by the respondent as a chef. Despite this, he was required from 2009 to clean toilets and this also raises a prima facie case of discrimination. This requires an explanation and discharges the preliminary burden of proof. It then falls on the respondent to provide objective evidence to explain that the difference in treatment was not based on a discriminatory ground, such as nationality. He said that the respondent had not discharged this, relying on the evidence of its own employees or those engaged in the other restaurant. The respondent could have provided a rationale for the allocation of duties after 2009 by drawing up terms of employment, but had failed to do so. No such document was supplied, even after the complainant began raising complaints. The respondent has proffered an explanation regarding the allocation of toilet cleaning duties, but no credible or objective evidence presented to support this.
3. Summary of the respondent’s case:
3.1 The respondent denied the allegations of discrimination and raised preliminary objections. It was submitted that the complainant has failed to identify a comparator and that all employees were treated the same. It was submitted that because the wrong form was used (the E.S. 3 form), the claim was not properly before the hearing. The complainant was also out of time in now seeking to advance this as an Employment Equality complaint. It was submitted that the matters complained of had all been ventilated before other fora and findings made. The respondent relied on the cases of Picciau v Salthill Court Hotel Ltd [2014] E.L.R. 57 and A Complainant v A Retail Chain DEC-E2011-218 to argue that the previous Unfair Dismissal claim was a bar to this case, pointing to the emphasis in the complaint form on the events immediately surrounding the end of the complainant’s employment. Furthermore, the respondent relied on Cunningham v Intel Ireland Ltd (2013) IEHC 207 to submit that the decisions made by other employment law bodies effectively estops this claim. Having made their preliminary objections, the respondent proceeded to address the substance of the complaint.
3.2 The general manager gave evidence. He outlined that he commenced as a waiter in 2003 and moved between the two restaurants. In 2013, he became a manager in the restaurant. He said that the kitchen was made up of the chef, the pizza chef, the commis chef and on busy days, a kitchen porter. The first job for the kitchen to do was the cleaning and to receive deliveries. If there was a kitchen porter on duty, it was their role. Commenting on the role of the pizza chef, he outlined that this involves using the specialised pizza oven, which is physically apart from the rest of the kitchen. In respect of the complainant, the general manager said that when the complainant worked as a pizza chef, he did not do cleaning duties. The commis chef on duty carried out the cleaning duties and that complainant was only asked to do cleaning when he was the commis chef. He said that receiving deliveries was a duty of the kitchen porter when one was on duty. Alternatively, it was a role for the commis chef. He said that deliveries were made to the door of the restaurant and only one item, milk, had to be collected on a weekly basis from the neighbouring premises. Commenting on the cleaning of dishes, he outlined that this was a job for the commis chef where there was no kitchen porter on duty. It was a job for all of the kitchen and the team helped, including the pizza chef. He said that no member of staff had refused to clean toilets on religious grounds. He outlined that other commis chef carried out cleaning duties in the toilets, pointing to commis chefs of Iranian and Sudanese nationality. The general manager denied the allegations of harassment and said that no such comments had been made by his wife. The complainant had not raised any complaints about these issues. He pointed to the fact that the respondent employed other Romanians. Commenting on the payment of wages, he said that all staff were paid the same way.
3.3 In cross-examination, the general manager acknowledged that the complainant was not supplied with a contract of employment. He said that duties were allocated orally. It was put to the general manager that the complainant had made complaints to him about cleaning the toilets; the general manager denied this. It was put to the general manager that the role of the commis chef was only to cook; the general manager did not accept this and that the tasks done by a commis chef depended on business needs. He said that it was established practice that the kitchen was responsible for cleaning. It was put to the general manager that the Iranian pizza chef did not clean the toilets; he replied that this was because he was the pizza chef. He said that he never told the staff working as pizza chef to clean the toilets and this included the complainant. It was put to the general manager that if cleaning was a collective responsibility, the Iranian chef was not asked to do it. The general manager replied that this was a job for the kitchen porter or commis chef. He denied an assertion that he had made the complainant clean the toilets when he was the pizza chef or when he was not the most junior member of the kitchen staff.
3.4 The manager gave evidence that she commenced employment with the respondent in 2012, initially as a waitress and later as a supervisor. She had overall responsibility for the restaurant and reported to the general manager. She is of Romanian nationality. She said that at the start of her shift, she would check the toilets and if required, ask the kitchen porter or commis chef to attend to them. She never made this request of the chef or the pizza chef on duty. She said that there was no discrimination in the workplace and that there had never been complaints from the complainant about the cleaning of the toilets, the dishes or other issues. She said that the complainant was never asked to clean the toilets when there was a more junior member of staff on duty in the kitchen. It did occur that the pizza chef on duty would be asked to help with the dishes, but the toilets were a different matter. In relation to deliveries, the manager said that Fridays were the busiest day for deliveries and that they were always received by the kitchen porter. There was always a kitchen porter on duty on Fridays. The work would take less than one hour. In respect of the general manager’s wife, the manager outlined that she had worked as a supervisor and would close the restaurant. The manager had never heard her say the things the complainant attributed to her and she had rarely come to the restaurant after she left the role. The manager said that the general language in the restaurant was Romanian and all staff had been paid in the same way.
3.5 In cross-examination, it was put to the manager that the complainant had, in fact, raised complaints about the workplace; the manager replied that if this was the case, he should have told her. She acknowledged that the respondent did not have a grievance procedure, nor a bullying and harassment policy. She also accepted that there was no written procedure around the cleaning of toilets but that it was understood that the most junior person cleaned the toilets. This is what the complainant did when he was the most junior member of staff. She acknowledged that she was not entirely responsible for kitchen and that she did not assign duties within the kitchen. She said that she followed up, for example with the complainant, when further cleaning was needed to the bathrooms. It was put to the manager that she had worked in another named restaurant in 2007 and 2008; she denied this. She also did not accept that she had, in fact, commenced with the respondent in 2010. At the end of the hearing, the relative of the complainant put various allegations to the manager, alleging that she had worked in Ireland illegally and fraudulently claimed social welfare. The manager did not accept that these allegations were true.
3.6 The head chef gave evidence. He outlined that he was of Romanian nationality and had worked with the respondent for many years. He began as a kitchen porter, later becoming a commis chef and was now the head chef. He said that the kitchen was largely made up of Romanians, but that people of many nationalities had worked in the kitchen. He said that there was no discrimination or harassment in the workplace. The complainant had not raised any issues. He acknowledged that Romanian staff in the kitchen might have used the term “gypsy” amongst each other. In respect of cleaning the toilets, the head chef outlined that until 2007 there had always been a kitchen porter on duty. It was their duty to clean the toilets. After that, it was a job for the commis chef and this task was allocated orally. He said that the complainant never cleaned the toilets when he worked as a pizza chef; he only did this task when he was a commis chef. He said that the kitchen porter did this job when on duty. He acknowledged that the complainant had complained of the toilet cleaning duties. In respect of deliveries, he said that they occurred on a Friday when there was a kitchen porter on duty. The head chef said that it was his responsibility to receive the meat delivery and that he helped with other deliveries. It could take two hours to receive deliveries. In respect of dishes, everyone, including pizza chefs, helped out but it depended how busy it was. He said that he was paid in cash and received a pay slip. In cross-examination, the head chef said that the word “gypsy” was always used as a joke and he never heard the general manager’s spouse use it. In respect of the Iranian pizza chef, he said that he did not clean toilets or the dishes, and that he had not heard him used religion as a reason for this.
3.7 The supervisor gave evidence. He outlined that he works as a supervisor in the adjacent restaurant and had never worked in the same restaurant as the complainant. He said that he was of Iranian nationality and had started work as a kitchen porter. He commented on the number of nationalities he worked with since the start of his employment in 2010. As a kitchen porter, he had cleaned the toilets and the dishes. This was a job for the most junior member of staff.
3.8 A director of the respondent company gave evidence. He said that he came to Ireland from Iran in 1980 and had married an Irish Catholic woman and raised four children. He said that many of the staff he employed started with no experience and they had very little English. Few Irish wanted to work in the industry and the respondent had low turnover of staff. He did not accept that the allocation of toilet cleaning was done in a discriminatory manner. No complaints were made to him, but he was not in the restaurant every day. He was not aware of any complaint made to the other director of the respondent and would have heard of any such complaint. He had not heard of the harassment outlined by the complainant and would have acted immediately. In cross-examination, the director said that any complaints of discrimination would have been communicated to him via the general manager. He accepted that there was no grievance procedure or terms of employment to inform an employee of what they could do, but said that any complaint could have been made verbally. It was put to the director that there was nowhere for the complainant to go after his complaint to general manager; he replied that he could have approached him or his business partner, who was more often in the restaurant. He said that he had known the pizza chef for some years and that he was not privileged. He said that this person was an Iraqi Kurd.
3.9 In closing submissions, the respondent outlined that this was a restaurant and not an office. Toilets were cleaned by the personnel on duty according to a rota. The complainant had worked as a kitchen porter, a commis chef and as a pizza chef. He had only been asked to clean the toilets when he was the most junior member of the kitchen staff on duty. It was submitted that his being the most junior member of staff was objective justification. It was also submitted that receiving deliveries and washing dishes were not menial jobs. The respondent acknowledged that it would have been preferable if there had been written procedures and said that there were no former employees available to give evidence. The respondent outlined that the complainant had not made complaints about the issues raised in this complaint. There was no evidence of discrimination and the allegations of harassment had not been made before this hearing, so the other director could have been in attendance to respond to this allegation. It was submitted that there were no “under the counter” payments to employees.
4. Findings and reasoning:
4.1 According to the documentation supplied by the respondent, the complainant successfully advanced claims before the Employment Appeals Tribunal, the Labour Court and a Rights Commissioner. At the hearing of this complaint, the respondent acknowledged shortcomings in relation to its compliance with employment statutes. It further submits that these awards prevent this claim from being advanced. I find that the events around the ending of the complainant’s employment cannot be considered as part of this decision because they were subject to an award under the Unfair Dismissals Act made by the Employment Appeals Tribunal. I am satisfied that the complainant is able to advance complaints in relation to the conditions of his employment. I also find that the other preliminary objections raised by the respondent do not prevent this complaint from proceeding. It is true that the initial complaint was made via forms relating to the Equal Status Acts, when this is a matter falling under the Employment Equality Acts. Given that the forms do not have a statutory basis and that it was obvious to all that this was an employment equality complaint from a longstanding employee of the respondent, the wrong use of form does not prevent this claim from being made. Equally, while the complainant only ticked the “race” box on the form, his narrative clearly refers to the issue of religion. I proceed on the basis that this complaint relates to allegations of discrimination on both race and religion. I also find that the complaints relating to discrimination had not been advanced elsewhere and in fact, could not have been so advanced as those fora do not address complaints of discrimination under any of the nine grounds set out in the Employment Equality Acts.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof that applies to complaints of discrimination. In the first instance, it requires the complainant to establish facts upon which they can rely in asserting that they were discriminated against. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Addressing the issue of the burden of proof in Valpeters v Melbury Developments Ltd [2010] E.L.R. 64, the Labour Court held, at page 68, as follows:
“Section 85A of the Act provides 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. What those facts are will vary from case to case 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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”
4.3 I, first, wish to address the allegations made by the complainant regarding very derogatory comments made to him by the wife of the general manager. The hearing appeared to be the first occasion in which these allegations were advanced and no reference is made to them in the papers. The general manager denied his spouse made any such comments and the manager and head chef said that they had not heard such statements being made. I note that while the complaint form refers to harassment in the workplace, no mention is made of these allegations. I also note that, while the complainant raised other issues in the form, this serious issue was not alluded to. I make an inference from the fact that the matter of the derogatory comments was only raised at the hearing and find that the complainant has not established, as a matter of fact, that such statements were made to him. In respect of this aspect of the complaint, I find that the complaint of harassment has not been proved.
4.4 A witness for the respondent outlined that derogatory language was used between members of the kitchen staff, all of the same nationality. At this juncture, it is appropriate to record that the use of such terms is not acceptable in the workplace and can create an offensive environment for an employee to work in. I have addressed above the complaint regarding the allegations of what the wife of the general manager is alleged to have said and the complainant has not raised issue with comments made by colleagues of the same nationality as him. There is, therefore, no finding to make regarding whether there was harassment in relation to derogatory comments made by other staff.
4.5 In relation to the complaints regarding working conditions, I find that the complainant has established a prima facie case of discrimination as required by section 85A of the Employment Equality Acts and articulated in case law. I make this finding on the basis of the wide ranging and significant breaches of employment law acknowledged by the respondent and the fact that the great majority of its employees are not Irish. The director for the respondent company said that many of the respondent’s employees had little English and little experience when they started working in the respondent’s restaurants. While the director gave an outline of his personal history in coming to Ireland from Iran in 1980, I do not see any basis to look behind the fact that this is a limited company registered in Ireland. The personal histories or places of birth of company directors are not relevant; this is an Irish registered company employing staff who are, in the great majority, not Irish. Taken together, these facts lead to the conclusion that the complainant has established a prima facie case of discrimination and it is the respondent to prove the contrary.
4.6 In respect of the payment of wages, the substance of this complaint has been dealt with before other fora. In reply to this complaint, the respondent maintained that there were no “under the counter” payments and that all staff were treated the same. While the complainant is dissatisfied with how wages were paid by the respondent, there is no basis to find that the complainant, or any employee, was discriminated against, even if it was “bizarre and byzantine” as described by the complainant.
4.7 In respect of the allocation of cleaning and other tasks to the complainant, I make the following findings. The complainant submitted that the respondent had to provide credible and objective evidence regarding the allocation of duties in the restaurant, criticising the respondent for not providing evidence from persons not currently employed by the respondent. Given that every witness giving evidence to this hearing was subject to both examination and cross-examination, their evidence was thoroughly tested. It is, of course, a factor in assessing the evidence of any witness currently employed by a respondent that they are so employed; it goes too far to suggest that their evidence stands for nothing. In this case, I find that the evidence of the head chef was persuasive. Receiving deliveries was a time-consuming job for the kitchen to do and he had a particular responsibility in relation to the delivery of meat. I also find the head chef’s evidence regarding the dishes to be persuasive. This was a job for all of the kitchen to do, in particular when there was no kitchen porter on duty. I also find that the evidence of the manager was persuasive. She said the complainant was not required to attend to the bathrooms when there was a more junior member of staff on duty; she denied that there was discrimination in the workplace. The complainant did not allude to any date when he was a pizza chef and required to attend to the bathrooms. Taking this evidence together, I find that the respondent has rebutted the inference of discrimination.
5. Decision:
5.1 I have investigated the above complaint and make the following decisions in accordance with section 79 of the Employment Equality Acts. The decisions are that the respondent did not discriminate against the complainant on the grounds of race and religion with regard to his conditions of employment and that the complaint relating to harassment is not well founded.
_______________________________
Kevin Baneham
Adjudication Officer / Equality Officer
14th April 2016