EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-117
Parties
Mr. Cosmin Rat (Chef)
(Represented by Noel Smyth & Partners, Solicitors)
And
Ms. Clare Gibb (Restaurant Owner)
Case Ref: et–156287–ee–15
Date: 11th August 2016
Dispute
1.1 The dispute is in regard to a claim by the complainant that he was discriminated against by the respondent on the grounds of race, contrary to Section 6 (2)(h) of the Employment Equality Acts, 1998 – 2008, in so far as he was treated less favourably in relation to his conditions of employment.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 12 May 2015 under Section 77 of the Employment Equality Acts. The Director General of the Workplace Relations Commission delegated the case to me, Joe Donnelly, an Adjudication Officer who was an Equality Officer prior to 1 October 2015, for investigation, hearing and decision and for the exercise of other relevant functions of the Director on 19 May 2016 in accordance with Section 41 0f the Workplace Relations Act, 2015, and Part VII of the Employment Equality Acts, 1998 – 2012, on which day I commenced my investigation. Submissions were received from both parties. In accordance with Section 79 (3A) of the Acts I proceeded to hearing on 8 June 2016.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.
Summary of Complainant’s Case
2.1 The complainant is Romanian and was employed by the respondent as a chef in a pizza restaurant from 15 January 2014 until 25 April 2015.
2.2 Originally the complainant was the only chef in the restaurant but as business improved other chefs were hired. All the chefs were Romanian. There was also a number of floor staff who were Irish as well as the owner and her son who acted as manager.
2.3 The complainant had to work in the kitchen without proper breaks. There was a table that staff could eat at but this was for the floor staff only. When he commenced work at 3pm he would have to prepare food for when the restaurant opened at 5pm and cook for the floor staff as well. The kitchen staff were never allowed to sit down and eat at this time and would have to request permission to have a glass of water or a cup of coffee.
2.4 On one occasion the complainant heard a customer enquire where the chef was from and the owner responded that he was from Italy. The complainant felt very bad about this.
2.5 On another occasion the complainant was stopped by the delivery driver and shown a You-tube video. The owner came into the kitchen at that moment and he overheard her to say to a member of the floor staff as she left that “there are too many f***ing Romanians in the kitchen”. This caused upset and he complained to the manager about it. The manager responded by stating that he did not think that the owner was a racist.
2.6 If business was quiet the floor staff were allowed chat to each other and talk to the owner and manager. The kitchen staff were never permitted to relax in this way and were not even allowed to listen to a radio. This was resented by the kitchen staff.
2.7 There was an incident when a member of the floor staff told the complainant to hurry up even though he was very busy at the time. He complained to the manager regarding this but nothing was done about his complaint.
Summary of Respondent’s Case
3.1 The respondent did not attend the hearing. The respondent had applied for an adjournment but this had been refused.
3.2 The respondent did enter a submission in response to the complainant’s original submission as summarised hereunder.
3.3 The complainant insisted on hiring the other chefs who were Romanian.
3.4 A table was set aside for all staff and they were entitled to choose any item from the menu free of charge.
3.5 The respondent denied that she had made the remark about Romanians. The respondent did say that “there is too much Romanian being spoken in the kitchen, I don’t know what’s going on.” The respondent was reluctant to insist that English was spoken in the kitchen for fear of being seen as a racist.
3.6 The complainant shouted a lot in the kitchen. The respondent was very concerned about this but because it was in Romanian she did not understand it. She interviewed another chef who told her that the complainant was threatening and aggressive in his attitude to other kitchen staff. In March 2015 she wrote to the complainant warning him about his behaviour.
Findings and Conclusions of the Adjudication Officer
4.1 The issue before me is whether the complainant was discriminated against on the grounds of race in relation to his conditions of employment. I have considered all evidence, both written and oral, made to me by the parties. It is unfortunate that the respondent choose not to attend as there are obvious conflicts in the evidence before me and the presence of the respondent might well have assisted in resolving those issues.
4.2 The other point to note is that the employment of the complainant ended with his dismissal by the respondent. These matters are not linked to the claim of discrimination and are the subject of separate proceedings.
4.3 Section 6(1) of the Acts states:
For the purpose of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, 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) (in this Act referred to as the “discriminatory grounds”) …
Section 6(2) states:As between any 2 persons, the discriminatory grounds (and the descriptions of those
grounds for the purposes of the Act) are –
(h) that they are of different race, colour, nationality or ethnic or national origins (in this
Act referred to as “ the ground of race”)
Section 85A of the Acts states:
Where in any proceedings facts are established by or on behalf of a complainant from
which it may be presumed that there has been discrimination in relation to him or her
it is for the respondent to prove the contrary.
In evaluating the evidence before me I must consider whether the complainant has
established a prima facie case in this regard. The Labour Court has stated that Section 85A “Now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are establishes by or on behalf of a complainant from which discrimination can be inferred it shall be for the respondent to prove the absence of discrimination.”
4.4 Among the matters mentioned by the complainant was the fact that kitchen staff were not allowed take breaks in the same manner as other staff. In this regard I note that complaints were lodged with the Workplace Relations Commission under the Organisation of Working Time Act, 1997 and the Terms of Employment (Information) Act, 1994 and that awards were made in both cases.
4.5 The complainant states that there was a distinct difference in treatment as regards the floor staff (Irish) and the kitchen staff (Romanian) not only in the time allowed for meal breaks but also in the facilities for taking the breaks and denied the assertion of the respondent that all staff could sit at the staff table. I find therefore that the complainant has established a prima facie case regarding this condition of employment and that it has not been satisfactorily refuted by the respondent.
4.6 The other specific instance of alleged discrimination was the remark passed by the owner in the kitchen. There is a conflict of evidence in this regard but at the hearing the complainant was adamant as regards his recollection of what was said. If the respondent’s version was correct and she had concerns in this regard then it was open to her as owner to insist on a workplace language policy being put in place. In addition, as owner, the final say in who was employed in the kitchen had to rest with her. I accept therefore that the remark as recalled by the complainant was made. In addition when the complainant made a complaint about the remark it was brushed aside.
Decision
5.1 I have investigated the above complaint and therefore make the following decision in accordance with Section 79 of the Acts, that the respondent did discriminate against the complainant on the grounds of race in relation to his conditions of employment contrary to Section 8(1)(b) of the Acts. In accordance with Section 82 of the Acts I award the complainant €2,500.00 for the discrimination suffered.
________________________
Joe Donnelly
Adjudication Officer/Equality Officer
11th August 2016