ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001243

Complaint for Resolution:

Date of Adjudication Hearing: 30/03/2016

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

In accordance with the Employment Equality Acts as amended by the Workplace Relations Act 2015, following the referral of the aforesaid complaint to me by the Director General, I inquired into the complaint and gave the Parties an opportunity to be heard and to present any relevant evidence. The Complainant attended and confirmed that he wished to represent himself. The Respondent was represented by IBEC and had a number of witnesses from Management and HR in attendance.

1. Complainant’s Submission and Presentation:

1. At the outset of the hearing, I confirmed with the Complainant that he was happy to represent himself and understood my role as an Adjudicating Officer of the Workplace Relations Commission (hereinafter ‘the WRC’). I also explained the nature of claims under the Employment Equality Acts and the burden of proof which applies to all claims of discrimination.
2. On his claim form, the Complainant indicated that he was making a claim of discrimination on the grounds of race against the Respondent in relation to training and had also been harassed and victimised. As the ‘complaint specific details or statement’ contained in the claim form were unclear and the Complainant had not submitted any written submissions or supporting documentation, I asked him to confirm precisely the nature of his claim. He repeatedly said that he wanted to find out why he was treated differently than the other staff by the Bar Manager, which he believed could be owing to the fact that he was the only Bar Tender of African race.

1. I asked the Complainant to provide more detail in relation to his claim. He confirmed that he had worked as a Bar Tender for the Hotel in question from 25^th August 2015 until he left on 16^thFebruary 2016. This had been his first proper job since obtaining a legal status in Ireland that enabled him to work. His job entailed a number of interchangeable duties during functions which were held at the Hotel including working behind the bar. However, he alleged that the Bar Manager in question who was also his direct Line Manager during functions (hereinafter referred to as his ‘Line Manager’) made him do all the ‘dirty’ duties of his job including collecting glasses on the floor and disposing of the rubbish bins. He alleged that she would never allow him to work behind the bar processing drinks orders as being necessary to further his training. He contended that staff who had started after him were given more time behind the bar, particularly towards the end of a function when table service was over. He also alleged that his Line Manager shouted at him all the time. He had taken this matter up with the Director of Operations who had not addressed the matter. He also felt that he was suspected of stealing. He confirmed that he was not seeking any remedy, simply an investigation as to why he was treated differently. The Complainant also confirmed that as a result of these issues, he had left his employment with the Respondent but had no claim in respect of this before the WRC.

1. When questioned by the Representative for the Respondent in light of the documentary evidence submitted confirming that he had worked behind a bar in the Hotel on numerous occasions during his employment, the Complainant confirmed that it was only the banqueting bar that he had not been allowed to work behind. When questioned as to how frequently he had worked behind this particular bar, he changed his position from “never” to “once or twice or three times”. He also admitted to working behind an extension to the banqueting bar. When questioned in relation to the night of 28^th November 2015 when he refused to work behind the banqueting bar when requested to do so by his Line Manager, he said that he refused because he would have been required to wash glasses behind the bar. He could not provide any specifics of what his Line Manager had shouted at him and said that she always spoke to him in a displeased tone. He confirmed that he had never been subject to any enquiry for stealing, and based on hearsay, he simply believed that he was suspected of stealing. He also confirmed that he had never made a written complaint to the Respondent or availed of the internal grievance procedures. He accepted that he had received the Company handbook with his contract.

2. Respondent’s Submission and Presentation:

2. At the outset, the IBEC Representative for the Respondent confirmed that the Hotel in question was operated by a Limited Company who was not named on the claim form but that the Respondent was not making any issue of same. However, he objected to the manner in which the Complainant had presented his complaint and submitted that it fell far short of the requirement to establish a prima facie case before the Respondent was required to rebut same. He confirmed that the Respondent strenuously refuted the allegations made herein by the Complainant as being wholly untrue and without merit and his claim malicious and vexatious.
3. The Director of Operations for the Respondent explained that the type of industry that the Respondent operates in requires significant operational flexibility and interchangeability between employee roles. He confirmed that the Complainant was employed as a Bar Tender within the banqueting section of the Hotel in question. When an event is taking place, the Bar Tenders undertake a number of functions and a dual role between preparing drinks and servicing tables depending upon the staffing levels and the requirements of the particular event.

2. The Director of Operations confirmed that the Complainant was required to carry out all of the duties that he or any other employee employed under a Bar Tender contract would be required to carry out. In particular, he said that it was not true that the Complainant was not allowed to work behind the bar and detailed documentation was furnished confirming that the Complainant had processed drinks orders behind a bar in the Hotel on the majority of his shifts. An internal email dated 29^th November 2015 between the Complainant’s Managers detailed an issue that had arisen the night before when the Complainant was asked on a number of occasions to work behind the Bar but had refused and had wanted to go home despite telling the Banqueting Operations Manager that he was never allowed to work behind the bar. The various Managers also confirmed that the Complainant was never under suspicion or subject to any investigations in relation to any cash anomalies and this assertion is without merit.

2. The Bar/Line Manager in respect of whom the Complainant directs his complaint gave evidence to confirm that it was not true that she had singled him out or treated him any differently to any other Bar Tender. She confirmed that she had managed staff of many different races over her lengthy career including those of African origin and had never experienced any difficulties or had allegations such as the instant complaints of discrimination made against her.

2. In addition to denying the Complainant’s allegations that he was treated any differently to other Bar Tenders, it was also submitted that 55% of the Respondent’s staff are of non-national origin and the allegation that any alleged treatment is somehow connected to race is defamatory.

2. Finally, it was submitted that the Complainant had failed to exhaust internal procedures prior to lodging his claim and progress any such grievance under the Respondent’s comprehensive grievance policy which he had been furnished with at the commencement of his employment.

3. Findings and Reasoning:

3. I have investigated this complaint as being one of discrimination on the grounds of race arising from the Complainant’s employment with the Respondent contrary to Sections 6(2)(h) and 8 of the Employment Equality Acts in relation to the matters referred to in his claim form and also, as to whether there is a prima facie basis for his complaints of harassment and victimisation.

3. Section 85A of the Acts sets out the burden of proof which applies to all claims of discrimination and requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. 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. When investigating a complaint, the role of an Adjudicating Officer of the WRC includes undertaking an examination of any conflicts in the evidence presented by the Parties to arrive at reasoned findings of fact.

3. In relation to a claim of discrimination on the ground of race, Section 6(2)(h) of the Acts essentially provides that discrimination shall be taken to occur if that person is treated less favourably than another person is, has been, or would be treated in a comparable situation and they are of a different race, colour, nationality or ethnic or national origins to the comparator. Section 8 of the Act provides for the particular circumstances where such discrimination may occur in the workplace including “training or experience for or in relation to employment”.

3. Section 14(A) of the Acts broadly provides that harassment comprises of any “unwanted conduct related to any of the discriminatory grounds”, which must have the “purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person” and may “consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

3. Whilst the Complainant may well have had interpersonal difficulties with his Line Manager, taking his evidence at its height, I am not satisfied that he has made out a prima facie case of discrimination or harassment on the grounds of race particularly based upon the following:

• I am not satisfied that the Complainant was not permitted to work behind the bar in the Respondent Hotel such that his training would have been curtailed in light of the overwhelming evidence that he worked behind at least one bar on most of his shifts.
• I find the Complainant’s evidence in relation to his Line Manager’s alleged discriminatory treatment to be extremely vague and lacking in any specifics or detail. In particular, he was unable to identify any treatment including words or acts that might amount to harassment within the meaning of the Acts. I also find his evidence in relation to the number of times he was required to work behind the banqueting bar to be unreliable particularly in light of the unrefuted evidence that on one night, he refused to work behind that bar when asked.
• Based on the Complainant’s own evidence, the only time any issue with his Line Manager was brought to Management’s attention was on 28^th November 2015, being the night that the Complainant refused to work behind the banqueting bar when requested. I am also cognisant that the Complainant gave no evidence that this related to his race at that time. As the Complainant had not pursued the internal grievance procedure or put any issues in writing to the Respondent before lodging this claim, it is difficult to see how it could have been aware of any allegations of race discrimination or harassment so as to address same.

3. In relation to the claim of victimisation, Section 74(2) of the Acts provides: “For the purposes of this Part 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,…” A complaint relating to alleged discrimination or harassment on the grounds of race to an employer would constitute “a complaint of discrimination” within the meaning of this Section. In Department of Defence -v- Barrett EDA1017, the Labour Court set out the three components which must be present for a successful claim of victimisation under Section 74(2) of the Acts as follows: “(1) The Complainant had taken an action of a type referred to at Section 74(2) of the Acts; (2) The Complainant was subjected to adverse treatment by the Respondent, and; (3) The adverse treatment was in reaction to the protected action having been taken by the Complainant.” Having found that no complaint of discrimination or harassment was made to the Respondent within the meaning of the Acts, this claim falls at the first hurdle and it therefore follows that the Complainant could not have been victimised within the meaning of the Acts.

4. Decision:

4. I have concluded my investigation of this complaint and based on the aforementioned, I find pursuant to Section 79(6) of the Act, that the Complainant has not established in the first instance, facts from which discrimination or harassment on the grounds of race and victimisation may be inferred. As the Complainant has failed to establish a prima facie case, no onus shifts to the Respondent to rebut any inference and this complaint must fail.

Dated: 6^th July 2016