EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-085
PARTIES
Adrian Codrenu
(Represented by Richard Grogan of Richard Grogan & Associates Solicitors)
Complainant
AND
Bourneash Catering Ltd t/a Mancini’s Italian
Respondent
File reference: ET-152558-EE-15
Date of issue: 3rd June 2016
1. Introduction:
1.1 On 19 January 2015, the complainant referred a complaint regarding his discriminatory dismissal on the basis of race. On 1 April 2016, 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.
1.2 The complaint was scheduled for hearing on 5 April 2016. On the morning of the hearing, a named person emailed the Workplace Relations Commission on behalf of the respondent to say that she would not be able to attend the hearing as a supervisor had let her down. The respondent is a limited liability company and no information is provided why it could not instruct any other representative to attend on its behalf. The hearing took place in the absence of the respondent company. The complainant was in attendance and was represented by Richard Grogan of Richard Grogan & Associates. As well as the complaint form, the complainant made submissions of 6 October 2015. The respondent company did not make submissions in advance of the hearing.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.
2. Submissions and evidence of the complainant:
2.1 The complainant outlined that he was employed by the respondent as a chef from July 2014 until 10 December 2014. He is of Romanian nationality. He had previously worked for the same owners when they traded as a different company name; this earlier period of employment ended on 30 September 2013. He worked for the respondent as a chef in a take-away restaurant. This complaint relates to discrimination on the grounds of race in relation to the conditions of his employment and his dismissal from the respondent’s employment. The complainant outlined that claims had been advanced under the Organisation of Working Time Act, the Safety, Health and Welfare at Work Act and the Terms of Employment (Information) Act. No claim had been pursued by way of the Unfair Dismissal Act, nor was a claim pursued relating to the ending of the complainant’s employment, for example by way of a penalisation claim pursuant to section 27 of the Safety, Health and Welfare at Work Act.
2.2 The complainant outlined that there were many breaches of his employment rights when employed by the respondent. He was paid by cheque as well as in cash. He was paid €8.65 per hour for a 40 hour working week and this payment was processed “through the books”, i.e. subject to income tax and PRSI. The respondent made additional payments to the complainant in cash on a weekly basis. The complainant had referred these matters to the Revenue Commissioners and the Department of Social Protection for investigation and the exercise of their investigatory powers. It was submitted that the scheme operated by the respondent had significant benefits for the employer, but placed the employee at a significant disadvantage, for example where there was an occupational injury.
2.3 In respect of the ending of the complainant’s employment, the complainant outlined he had been owed wages at the time he went on a period of annual leave, for which he was also not paid. He sent a director of the respondent an email to say that he was owed money and that he could not continue working for the respondent in such circumstances. The complainant referred to the circumstances of September 2013 when the earlier business had folded. The complainant was asked to return to work and on 10 December 2014 and he then met with a director of the respondent. He was paid some monies and told that he was being dismissed with immediate effect. The director told the complainant to “get out of here”. The complainant said that he later returned his chef’s uniform to the respondent.
2.4 In relation to the complaint of discrimination and discriminatory dismissal, the complainant outlined that, as a Romanian national, he was in a vulnerable position because of the widespread breaches of employment law statutes as he says occurred. He was also in a vulnerable position when faced with the respondent’s practice of not disclosing to the Revenue Commissioners and the Department of Social Protection wages it paid to the complainant. An Irish person would be more conversant with their rights and would be in a better position to tackle these issues than a person who is not Irish. The complainant referred to point 11 of the submission made accompanying the E.E.2. form which asks the respondent whether the breaches of employment rights were associated with the complainant’s nationality. The respondent had not provided a reply and it was submitted that an inference could be drawn from the failure of the respondent to so reply. It was also submitted that the complainant had raised a prima facie case of discrimination because of the extent of the breaches the complainant incurred and it was for the respondent to mount a defence to this. The complainant relies on the Labour Court decision of Campbell Catering Ltd v Rasaq EED048 in relation to the special difficulties faced by employees who are not Irish. If the defence was that all employees were treated in this way, it would fall on the respondent to divulge information regarding all their employees to establish that the breaches applied to all, irrespective of race or nationality. No such defence had been mounted in this case.
2.5 In respect of redress, the complainant outlined that it was appropriate to award redress that was effective, proportionate, and dissuasive. He emphasized the need for redress to be dissuasive in order to address the serious breaches incurred by the complainant, for example in not declaring wages paid to the appropriate authorities. It was also necessary to assess the circumstances around the complainant’s dismissal, where he was dismissed having complained about monies owed to him. The complainant outlined that he was now working as a chef at a golf club.
3. Submissions and evidence of the respondent:
3.1 The respondent did not make submissions in reply to the complaint and did not attend the hearing.
4. Findings and reasoning:
4.1 The complainant has advanced separate claims pursuant to the Organisation of Working Time Act, the Terms of Employment (Information) Act and the Safety, Health and Welfare at Work Act. Those claims are entirely separate to this complaint and the complainant is not entitled to redress under these statutes and the Employment Equality Acts for the same breaches.
4.2 The complaint relates to a complaint of discrimination in the conditions of employment as well as a claim of discriminatory dismissal. The claim in relation to conditions of employment relates, in the main, to losses relating to the non-disclosure of income paid to the complainant in his employment from July to December 2014. The complainant had referred this matter to the Revenue Commissioners and the Department of Social Protection. He outlines that as a person who is not Irish, the impact of such breaches is greater and that an Irish person would be better equipped to address them.
4.3 I find that the extent of the breaches raised by the complainant, in particular the matters relating to Revenue and PRSI, are of such significance as to raise a prima facie case of discrimination. It falls on the respondent to establish that the breaches do not amount to discrimination on grounds of race. No such submissions were made by the respondent. It is not controverted that the complainant was dismissed from his employment and that this dismissal was made summarily and he was told to “get out of here.” The practices of the respondent and the manner of the dismissal indicate, prima facie, that the dismissal was a discriminatory act. The respondent has not made submissions to establish that the dismissal was not such a discriminatory act. It follows that the complaints of discrimination are well-founded.
4.4 In respect of redress, I note that extent and gravity of the breaches and practices disclosed in the complaint and reported to Revenue and the Department of Social Protection. Relying on the special difficulties facing employees who are not Irish as identified in the Rasaq decision of the Labour Court, I take account of the vulnerable position of the complainant. I also take account of the relatively short duration of the complainant’s employment. Taking these factors into account, I award €8,000 to the complainant for discrimination in relation to conditions of employment and his discriminatory dismissal. This is compensation for the effects of discrimination incurred by the complainant, including the humiliation incurred on the occasion of the complainant’s dismissal.
5. Decision:
5.1 The respondent herein discriminated against the complainant on the race ground in terms of section 6(2)(h) and contrary to section 8 of the Act. I determine that the appropriate redress is an award of compensation and that the respondent shall pay €8,000 to the complainant in compensation for the effects of discrimination. The entire award of €8,000 is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act, 1997 (as amended).
_______________________________
Kevin Baneham
Adjudication Officer / Equality Officer
3rd June 2016