Adjudication Officer/Equality Officer’s
Decision No: DEC-E/2016/055
Parties
Sacha
(Represented by Mr/ Kirk Boylan BL
Instructed by McDonald Solicitors)
-v-
Seaview Hotel Ltd.
(Represented by Peninsula Business Service (Ireland) Ltd)
File No: EE/2011/711
Date of issue: 29th March, 2016
1. DISPUTE
This dispute involves a claim by Ms. Martha Sacha (“the complainant”) that she was (i) discriminated against by Seaview Hotel Ltd. (“the respondent”) on grounds of disability and/or race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts in respect of her conditions of employment; (ii) harassed by the respondent on grounds of disability and/or race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 14A of those Acts and (iii) victimised by the respondent contrary to section 74(2) of the Employment Equality Acts, 1998-2011.
2. BACKGROUND
2.1 The complainant, who is a Polish national, commenced employment with the respondent as a full-time Kitchen Porter on 28 June, 2008. She states that she suffered an accident at work in July, 2009 and was on sick leave from then until March, 2010. She adds that on her return to work at that time her hours were reduced and that this practice continued for the remainder of her employment despite her requests that it cease. She submits that this amounts to less favourable treatment of her on grounds of race and disability contrary to the Acts. She states that she was diagnosed with depression in July, 2011 and she informed Mr. X (the Head Chef) of her condition. The complainant adds that she was treated less favourably on the same grounds in relation to other aspects of her employment – rostered for unsocial hours, assignment of the more menial and heavy duty tasks and refusal of her breaks and annual leave requests. The complainant also alleges that she was harassed on grounds of race and disability contrary to the Acts. In this regard the focus of her allegations is Mr. X. Finally the complainant alleges that she was victimised by the respondent contrary to section 74(2) of the Acts. The respondent rejects the complainant’s assertions in their entirety. It adds that it operates a robust Dignity at Work Policy and states that the complainant never invoked this Policy prior to referring her complaint to the Tribunal. It adds that the complainant never raised her concerns, in particular the alleged treatment of her by Mr. X, with any other member of Senior Management prior to the lodgement of the complaint to the Tribunal.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2011 to the Equality Tribunal on 11 October, 2011. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer - for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Pursuant to section 40(3)(b) of the Workplace Relations Act, 2015 I became an Adjudication Officer of the Workplace Relations Commission on 1 October, 2015, although this did not alter the delegation of the complaint to me in any way. My investigation of the complaint commenced on 17 May, 2013 - the date the complaint was delegated to me. Submissions were filed and exchanged and a Hearing on the complaint took place on 15 August, 2013, 6 November, 2013, 7 April, 2014 and 8 April, 2014. A number of issues required further correspondence between the parties and the Equality Officer for several months subsequent to the Hearing.
2.3 At the Hearing on 6 November, 2013 it was noted that the submission filed on behalf of the complainant detailed alleged acts which dated back to March, 2010 and post-dated the referral of the complaint to the Tribunal. I gave the parties the opportunity to make oral submissions on the relevance, if any, that the Labour Court Determination in Hurley v Cork VEC[1] might have to the complaint. Having considered the arguments advanced I decided that my investigation would focus, in the first instance, on the alleged acts of unlawful behaviour which occurred between 12 April, 2011 and 11 October, 2011 - the six month period preceding the date of referral of the complaint, as prescribed at section 77(5)(a) of the Acts. If I considered any of the alleged incidents within that period to amount to unlawful treatment of the complainant contrary to the Acts, I would reconvene the Hearing to hear evidence on the other (earlier) incidents complained of to determine if any of them were sufficiently connected to the incident(s) within the six month period so as to make them part of a continuous act of discrimination. However, should I find the alleged incidents within the six months preceding the referral of the complaint not to be well founded the earlier alleged incidents would be statute barred. In addition, I decided to take evidence on those alleged incidents which occurred subsequent to 11 October, 2011. However, this evidence would only be considered in terms of any probative value it might have for events encompassed by the complaint and no redress could be awarded for them should they prove unlawful.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant, who is a Polish national, states that she commenced employment with the respondent as a full-time Kitchen Porter on 2 June, 2008. She adds that she suffered an accident at work on 18 July, 2009 and remained on sick leave following this incident until March, 2010 when she was certified fit to resume duty by her GP (Dr. B), although this certification was qualified in that she was only able to work a maximum of nineteen hours per week. The complainant states that she was never rostered for the full nineteen hours per week and that the practice of reduced hours continued for the remainder of her employment. She adds that her GP (Dr. B) certified her fit to resume full duties on 9 November, 2012 and that during this period (March, 2010-November, 2012) she did not furnish any medical evidence to the respondent which altered the original recommendation in any way. In the course of the Hearing on 7 April, 2014 the complainant stated that the first occasion she had sought more than 19 hours per week was November, 2012 after Dr. B had certified her fit to resume full duties. In the course of the Hearing on 6 November, 2013 the complainant confirmed that she had signed the contract of employment dated 22 July, 2008 and had attended at the Induction Training provided by the respondent on 9 July, 2008 which included a module on the respondent’s Staff Handbook (these documents were furnished to the Tribunal by the respondent). The complainant further confirmed that the Job Specification (also exhibited by the respondent) accurately reflected the duties attached to the role of Kitchen Porter. She contended that her English was poor and that she did not understand these documents at that time. In the course of the Hearing on 6 November, 2013 she confirmed that she did not mention this to any member of the respondent’s Management at that time or subsequently adding that as time went on her understanding of English improved. Notwithstanding this she confirmed that she was aware of the respondent’s Dignity at Work Policy and contended that she had invoked this Policy verbally sometime in April, 2011. In the course of the Hearing on 7 April, 2014 the complainant stated that she did not invoke the respondent’s Dignity at Work Policy in writing at any stage and clarified that the day she invoked the Policy verbally was the day of the altercation with Mr. X - which she accepted was 29 May, 2011 and not April as she had previously stated.
3.2 The complainant states that she was diagnosed as suffering with depression on 19 July, 2011. In support of this the complainant furnished two undated documents - the first is a medical report at Part II of a Department of Social Protection claim form which was completed by her GP (Dr. A) and the second is a report from Dr. B which is a review of the complainant’s medical records prepared at the request of the complainant’s solicitor - who states that this report was prepared on 6 September, 2013. The complainant was unable to say if, or when, the former medical report was furnished to the respondent. In the course of the Hearing on 6 November, 2013 it was noted that the first reference to her depression contained in the submissions referred to the Tribunal on her behalf indicates that she advised Mr. X of her condition in the course of an altercation sometime in May, 2011. In response to a question as to how this reconciled with her medical documentation mentioned above the complainant stated that she felt she was suffering from depression at that time. She added that she informed Mr. X of the symptoms she was experiencing – unable to sleep, sluggishness and lack of interest in work. Moreover, neither the complainant nor her representative was able to offer any explanation as to why there is no reference to her disability (i.e. depression) in a letter dated 27 July, 2011 from her solicitor to the respondent, when her Polish nationality is mentioned. Finally, a further submission furnished on the complainant’s behalf states that she advised Mr. X she was suffering from depression in the course of another altercation in or around early July, 2011. In any event it is submitted on behalf of the complainant that the respondent was aware of her disability.
3.3 The first element of the complainant’s claim which forms part of my investigation involves an alleged incident which occurred on 22 April, 2011. The complainant states that she was working with Mr. X and was working without assistance. She adds that she had not received a break and asked him if she could take one. She further states that M. X refused and shouted at her telling her she could not take a break when service was on. In the course of the Hearing the complainant confirmed that service was on when she asked to take her break and that she was permitted to take a break about fifteen minutes later. The complainant’s representative submits that this amounts to (i) less favourable treatment and/or harassment of the complainant on both discriminatory grounds advanced and (ii) victimisation of the complainant.
3.4 The complainant states that she worked the 5pm-midnight shift on 29 April, 2011. She adds that she was tired and was unable to finish the tasks assigned to her and left work at the end of the shift without completing them. She states that when she attended for work the next day Mr. X shouted at her, berating her or not completing the cleaning and called her a lazy Polish woman. The complainant adds that an Irish Kitchen Porter (Mr. S) had left on a number of other occasions without completing his tasks and was not chastised by Mr. X for doing so. The complainant was unable to indicate when this occurred and was also unable to offer an explanation as to why this was only raised in the most recent submission made on her behalf. It is submitted that constitutes less favourable treatment of the complainant on grounds of race.
3.5 The complainant states that Mr. X continued to treat her unlawfully and berated her saying she was crazy and a mad Polish person on several occasions in early May but can provide no further details as regards dates, times etc. of these interactions. She adds that she was required to perform additional duties – getting rid of rubbish, sweeping up, cleaning fridges and ovens – which she believed were an extension of her role and not covered by her job specification. It is submitted that this amounts to less favourable treatment of the complainant on grounds of race. The complainant states that on the second Friday in May, 2011 she was working the breakfast shift. She adds that the Restaurant Supervisor (Ms. Z) complained to Mr. X that the cutlery was not clean. The complainant adds that Mr. X approached her shouting at her. She states that in the course of this exchange Mr. X called her “Kudva” which is a highly offensive swear word in Polish – the closest translation in English is bitch or prostitute. The submission furnished to the Tribunal on behalf of the complainant states that it was during this incident that she informed him she was suffering from depression. However, in the course of the Hearing she was unable to confirm this stating she informed Mr. X that she was suffering from depression sometime in May, 2011, although she was again unable to say when or where this happened. It is submitted that this incident constitutes less favourable treatment and harassment of the complainant on grounds of race. The complainant adds that after this conversation she requested time off work to attend medical appointments and that Mr. X requested she produce evidence that she attended for each absence. The complainant was unable to say when these events occurred. She adds that two colleagues (Mr. W and Mr. S) were permitted to attend medical appointments without having to produce such evidence. She was again unable to provide more specific details of when this occurred. It is submitted that this amounts to discrimination of the complainant on grounds of race.
3.6 The complainant states that she was the only Kitchen Porter on duty on a Saturday in May, 2011. In the course of the Hearing on 6 November, 2013 she stated that she was in fact referring to Sunday 29 May, 2011. She adds that the hotel was extremely busy with 250 guests. She adds that the workload that day was excessive for one Kitchen Porter and she was unable to cope and that Mr. X kept urging her to hurry up using the phrase “chop-chop”, although she confirmed that he did not use any language which could be described as discriminatory on either of the grounds advanced. She further states that she asked Mr. X if she could take a break and he refused advising that service was still on, although she was allowed a five minute cigarette break shortly afterwards. In the course of the Hearing the complainant accepted that (i) the maximum number of guests the hotel could accommodate was 210, (ii) the hotel was generally busier at weekends and (iii) generally there was only one Kitchen Porter rostered on duty at weekends, although in this regard she pointed to the roster furnished by the respondent for 3 July, 2011 and notes she was rostered with another Kitchen Porter (Ms. I) when the hotel had a similar amount of guests. The complainant otherwise takes issue with the rosters furnished by the respondent stating that the rosters are prepared by Mr. X and changes are made by hand. Moreover, she stated that she was expected to work alone and perform high intensity tasks when her Irish colleagues worked in pairs and were assigned less physically demanding tasks, although she offered no specifics of when this occurred. In the course of the Hearing on 7 April, 2014 she accepted that an Irish colleague (Mr. J) had performed heavy duty “deep cleaning” tasks on occasion. She rejected the respondent’s assertion that Mr. X was not rostered on 29 May, 2011, stating that he was there for breakfast. It is submitted that the alleged treatment of her amounts to discrimination on grounds of race contrary to the Acts.
3.7 The complainant states that later during that shift she was approached by Mr. M (a Duty Manager) who asked her to wash more glasses. The complainant states she responded in a raised voice that she was busy and only had one pair of hands. She adds that she reported this issue to Mr. X informing him that she felt discriminated against because she was Polish and he advised that he would speak with Mr. M. The complainant states that Mr. M never raised the matter with her and when she spoke with Mr. X about the matter the following day he was dismissive of her. It is submitted on behalf of the complainant that this constitutes less favourable treatment of her on grounds of race.
3.8 The complainant states that there had been on-going issues with her annual leave entitlement from the beginning of Mr. X’s appointment as Head Chef in February, 2011. She adds that she had asked him to check her entitlement on a number of occasions and he ignored her. She further states that she eventually checked her entitlement with Accounts Section and she applied for her annual leave on that basis. She states that she completed the appropriate application form and her request was approved. She adds that on the day before she was due to commence her leave she was unable to take a break and she added thirty minutes to her signing out time. She states that when she returned from annual leave Mr. X confronted her and accused her of stealing extra time. She adds that she denied this and felt he had only raised the matter because of the issue previously with Mr. M. It is submitted on behalf of the complainant that this amounts to (i) discrimination of her on grounds of race and (ii) victimisation of her contrary to the Acts. In the course of the Hearing the complainant accepted, in response to a question from the respondent’s representative, that she was not entitled to sign off duty for a time later than she actually left but she decided to do so anyway.
3.9 The complainant states that prior to her absence on sick leave in 2009 she had performed tasks in the pastry area of the kitchen. She had been trained in those tasks by Mr. P. She further states that on 17 June, 2011 Mr. P left the employment of the respondent and she was instructed by Mr. X to perform duties in the pastry section. The complainant states that she did not see these as part of her duties and whilst she performed them she sought a revised job specification and contract of employment that would reflect the higher rate of pay to which she believed she was entitled. She adds that she was in receipt of €9.13 per hour whereas Mr. P had received €9.50 per hour. She states that these duties were not full-time but she performed them every day she was at work between 17 June and 29 July, 2011. The complainant states that on 29 July, 2011she did not wear the pastry uniform she had been provided with to work in the pastry area and Mr. X would not permit her to work in the area without it. She adds that she had not worn the uniform that day because Mr. X had not dealt with her requests for a revised contract/job specification and the appropriate rate of pay for those tasks. She states that she raised this matter with Mr. X that day and he was dismissive of her, calling her Kudva and using other swear words at her. It is submitted on her behalf that this constitutes less favourable treatment and harassment of her on grounds of disability and race as well as victimisation of her contrary to the Acts.
3.10 The complainant asserts that an incident occurred between her at Mr. X on a day when the hotel was hosting a wedding reception. In the submission filed on her behalf it was suggested that this incident took place on 17 June, 2011. In the course of the Hearing she stated that it may not have happened that day, adding that it happened at a weekend but was unable to say when this was. The complainant states that on the day in question she and a colleague were preparing desserts for the wedding reception. The number of desserts prepared was incorrect and Mr. X berated her in front of colleagues calling her “a stupid Polish bitch” and “she could not count and he would have to the find someone who could”. The complainant states that she did not report the matter to anyone and was unable to recall which of her colleagues witnessed the incident. It is submitted that this amount to less favourable treatment and harassment of the complainant on grounds of race contrary to the Acts.
3.11 The complainant states that Mr. X engaged in several other incidents of unlawful behavior toward her during July, 2011. The first of these concerns an incident where she states Mr. X ridiculed her dessert decoration skills. She is unable to say when this occurred and contends that her Irish colleague would not be treated in this fashion. It is submitted that this amount to less favourable treatment of the complainant on grounds of race contrary to the Acts. The complainant states that on 23 July, 2011 Mr. X told her that she only good for the wash up area. It is submitted that as this occurred after she had informed him of her depression the behavior constitutes less favourable of her on grounds of disability and race as well as victimisation. The complainant states that she was absent from work on certified sick leave due to anxiety and stress. She adds that when she handed this to Mr. X he ridiculed her saying she was mental and she should have visited a psychiatrist instead of a GP. She adds that Mr. X then suggested she change her medication or perhaps smoke a joint. In the course of the Hearing the complainant initially stated that these comments were made on 29 July, 2011. She subsequently stated the incident occurred on 23 July, 2011 and when this conflict was pointed out to her she stated that it happened on both dates. She subsequently changed her response again stating that it only happened on 23 July, 2011. It is submitted on the complainant’s behalf that these comments amount to discrimination and harassment of her on grounds of disability and race contrary to the Acts.
3.12 The complainant states that she was working on the Sunday afternoon of the third week of July and that she was working in the pastry area. She adds that Mr. X was also working that day and that a colleague approached her and told her that Mr. X had put salt in her coffee. The complainant states that she tasted the coffee and it contained salt but she did not approach Mr. X about this. In the course of the Hearing on 7 April, 2014 the complainant changed her evidence and stated that she had confronted Mr. X about the incident and he told her it was just a joke. It is submitted that this amounts to victimisation of her as well as discrimination and harassment on grounds of race. The complainant states that on 31 July Mr. X advised her that she was being assigned to the wash up area two days a week and the other would be in the pastry area. It is submitted that this constitutes discrimination of her on grounds of race as well as victimisation contrary to the Acts. It is further that the treatment amounts to victimisation of the complainant because of its nexus to her solicitor’s letter to the respondent.
3.13 The complainant states that between July, 2011 and November, 2011 she was the only Kitchen Porter who was rostered all three weekend days (Friday-Sunday) each week. She adds that she believed she should have received a premium rate for these hours. In the course of the Hearing she accepted that her hourly rate took account of Sunday work and that she is not entitled to a premium rate for working on Sunday. The complainant further states that sometime in September, 2011 she worked additional hours after her shift to clean the kitchen area. She adds that she was not paid for these hours and when she asked Mr. X about payment he refused to pay her and called her lazy. In the course of the Hearing the complainant confirmed that she had in fact been paid for these hours. It is submitted that the assignment of the weekend shifts and the issue around payment of a premium rate amounts to discrimination of her on grounds of race.
3.14 The complainant states that her son is regularly ill and requires regular visits to the doctor. She adds that sometime in October, 2011 she approached Mr. X and requested morning only work. She further states that Mr. X told her he would do what he could and shortly thereafter she was given morning shifts, although she was still rostered for afternoon shifts on occasion. She states that Ms. I also requested morning only shifts and was accommodated far more frequently than she (the complainant) was. It is submitted that this amounts to less favourable treatment of her on grounds of disability and race. The complainant states that on 24 November, 2011 she found a letter in the bin which had been written by Mr. X. She adds this letter stated that she was looking for money. She further states that when she confronted Mr. X about this letter he got extremely angry and attempted to grab it from her and in doing so grabbed her arm. She adds that her solicitor subsequently wrote to the respondent demanding that he refrain from assaulting her. It is submitted that this amount to less favourable treatment and harassment of the complainant on both discriminatory grounds advanced as well as victimisation. The complainant states that she had booked a holiday in Poland for November, 2011 and had sought the verbal approval of Mr. X for the annual leave involved. She could not recall if she had requested the leave in writing in accordance with the Policy. She adds that her application was subsequently refused by Mr. X. She contends that two Irish colleagues had annual leave approved in similar circumstances although she was unable to be specific of when this happened. It is submitted that this amount to less favourable treatment of the complainant on grounds of race. In the course of the Hearing on 7 April, 2014 the complainant confirmed that Mr. X had approved annual leave for her at short notice in March, 2013.
3.15 The complainant states that she was usually paid her salary via EFT. She adds that on Good Friday 2013 she received a cheque in respect of her salary and she went to Mr. X asking how she was to cash it with no banks open. She adds that he was working and told her it was not his problem. She was unable to say if colleague were paid by EFT that week. The complainant further states that between May-July, 2013 three colleagues (one Czech and two Irish) were appointed to positions in the pastry section and she was not given the opportunity to apply for the posts. She was unable to say whether or not these posts were advertised as asserted by the respondent but adds she did not see them. It is submitted that both of these incidents constitute discrimination of the complainant on grounds of race. Finally, the complainant states that she became ill at work and suffered chest pains. She adds that Mr. X told her to calm down and just stood there laughing at her, doing nothing to assist her. The complainant rejects the respondent’s assertion that Mr. X brought her into his office and had a colleague assist her. She accepts that she did not return to duty and later was brought to the doctor and was accompanied by a colleague. It is submitted that this is a further example of less favourable treatment and harassment of the complainant on grounds of race contrary to the Acts.
3.16 In summary, Counsel for the complainant submits that she has been subjected to a lengthy campaign of unlawful discrimination, harassment and victimisation contrary to the Employment Equality Acts. It is further submitted that the focus of these allegations is Mr. X the respondent’s Head Chef. Counsel further submits that the complainant was diagnosed as suffering from depression and that the respondent, in the form of Mr. X, was aware of this. Counsel argues that depression is a disability for the purposes of the Acts and consequently the alleged treatment of the complainant subsequently constitutes discrimination and/or harassment of the complainant on grounds of disability. Counsel states that it was known from the outset that the complainant was Polish. He submits that the behavior of Mr. X – calling her a lazy Polish bitch and using the word Kudva (a derogatory word in Polish) – is prima facie discrimination and/or harassment of the complainant. In this regard Counsel seeks to rely on the decision of the Labour Court in Natako v City Bank[2] in terms of its comment that “ a person who discriminates will rarely do so overtly and will not leave evidence of the discrimination within the complainant’s power of procurement”.Counsel submits that there are three incidents which could be regarded as a “protected act” in terms of the complainant’s victimisation complaint. He adds that these are (i) the discussion between the complainant and Mr. G (the Head Chef at that time) in January, 2011 in the course of which she informed him she felt she was being discriminated against; (ii) the conversation between the complainant and Mr. X in May, 2011 when she advised him she was suffering from depression and (iii) the complainant’s solicitor’s letter of 27 July, 2011 when the respondent was advised that the complainant believed she was the subject of discriminatory treatment on the basis of her Polish nationality. It is submitted that the complainant’s alleged treatment subsequent to any of these dates constitutes victimisation of her contrary to the Acts.
4 SUMMARY OF RESPONDENT’S CASE
4.1 The respondent rejects the complainant’s allegations in their entirety. It accepts that the complainant commenced employment with it in June, 2008, that she suffered an accident at work in July, 2009 and that she was absent from work from then until March, 2010. It adds that at that time the complainant’s GP (Dr. B) certified she was fit for duty from 1 April, 2010 but only for a maximum of nineteen hours per week. The respondent states that it accommodated the complainant in this regard and accepts that the number of weekly hours could vary upwards and downwards depending on business needs and staff availability. It adds that this accommodation continued until Dr. B certified the complainant fully fit for duty on 9 November, 2012. It further states that this qualified certification did not make any recommendation as to how the hours or days of work should be split and that she was rostered in the same manner as other Kitchen Porters in accordance with business needs. The respondent adds that it has a Dignity at Work Policy, which the complainant was aware of, and that she never invoked it. It notes that the complainant states she did not understand this document, or indeed her contract of employment, and states that the complainant never informed anyone in Management that this was the case. The respondent further states that the complainant was interviewed and received her induction training in English. In addition, her work instructions were communicated in English and there were no communication difficulties experienced in that regard during the three years between the commencement of her employment and the referral of her complaint to the Tribunal. Finally, it notes that the complainant was seeking a revised contract and submits therefore that she clearly understood her terms and conditions and argues that any difficulty she may have experienced could have been overcome as her partner is English speaking. The respondent states that when it became aware of the existence of the complaints it attempted to investigate the matter internally pursuant to the Policy and the complainant refused the offer.
4.2 The respondent accepts that depression is a disability for the purposes of the Acts. It states that no member of the respondent’s Management team had sight of the medical report at Part II of to the Department of Social Protection document completed by Dr. A until it was presented at the Hearing on 15 August, 2013. It adds that whilst this document indicates the complainant was diagnosed with depression and that this condition commenced on 19 July, 2011 (with a prognosis that the condition would continue for 6-12 months) that the document is undated. The respondent states moreover, that no medical certification the complainant was suffering from depression, nor any verbal communication in that regard, was made to the respondent until it received her referral form to the Tribunal in or around 20 October, 2011. In the course of the Hearing on 8 April, 2014 Mr. X rejected, in strong terms, the complainant’s assertion that she informed him (in the course of conversations in May, 2011 and July, 2011) that she was suffering from depression. The respondent adds that the first medical certificate it received was her medical certificate dated 10 October, 2012 – a year after her complaint had been referred to the Tribunal. It further notes that the medical certificate dated 6 September, 2013 from Dr. B postdates the date of referral of the complaint by almost two years and submits in any event, that it does not confirm that the complainant was suffering from depression in July, 2011, as asserted by her. Finally, the respondent notes, that the letter dated 27 July, 2011 from the complainant’s solicitor to it, makes no reference to the complainant’s disability. The respondent’s General Manager (Mr. Q) stated at the Hearing on 6 November, 2013 that the respondent never received this letter. The respondent submits, without prejudice to its position that the events outlined by the complainant do not constitute unlawful treatment of her contrary to the Acts, that as it was unaware she was suffering from depression at all times relevant to this complaint, any treatment of her could not amount to discrimination or harassment of her on grounds of disability contrary to the Acts.
4.3 The respondent states that Mr. X commenced employment with it on 28 February, 2011 replacing Mr. G as Head Chef. The respondent (Mr. X) states that as Head Chef he prepares the rosters and they are not subject to approval by another Senior Manager. He adds that should the roster require adjustment he would carry those changes through. Mr. X adds that as a rule two Kitchen Porters were rostered on the evening shift and one in the morning as the evening was generally considered to be a busier period than breakfast shifts. The respondent states that the complainant had requested morning shifts for family reasons and it attempted to accommodate this request insofar as business needs and staff availability permitted, although it accepts that there were occasions when the complainant was rostered afternoon or evening shifts. Consequently, when rostered morning shifts she would be the only Kitchen Porter on duty. The respondent rejects the complainant’s general assertion that she was the only Kitchen Porter who was rostered all three days (Friday-Sunday) each week between July, 2011 and November, 2011 and furnished the Tribunal with rosters for the period in support of this. The respondent added that the complainant’s rate of pay was a composite one that took account of hours worked at weekends and that this rate of pay applied to all Kitchen Porters. It therefore rejects the assertion that the manner in which it rostered her and the hourly rate she received constitute discrimination of her on grounds of race contrary to the Acts.
4.4 The respondent (Mr. X) states that staff are not allocated breaks but are expected to take them. He adds that in general staff are able to take their breaks whenever it suits - although they would usually clear it with the person in charge to ensure adequate staff remain on duty. He further states that the only time staff are not able to take breaks is when service is on. Mr. X adds that on the day in question there were only forty-eight guests in the hotel for breakfast and consequently the work involved was not excessive. He adds that he recalls only one occasion when he refused the complainant permission to take outside of when service was on – but it was not on 22 April, 2011 and rejects the complainant’s assertion that he was discriminating against her.
4.5 The respondent rejects the complainant’s assertion that she worked until midnight on 29 April, 2011 and states that she worked the 11am-7pm shift that day. Consequently Mr. X emphatically rejects the complainant’s assertion that he berated her the next day for not completing her tasks and calling her the names she alleges. Mr. X states that whilst staff are expected to complete their duties during their shift if they did not do so because it was a busy shift it was not a big deal. He adds however, that if it became a common occurrence he would raise it with the employee concerned. He rejects the complainant’s assertion that he treated Mr. S differently when he left tasks incomplete and went home at the end of his shift. He adds that he cannot recall any specific occasion when he raised such an issue with the complainant but adds that had he done so, he would have behaved in a respectful manner, as he would have done with all employees. The respondent submits that the complainant has failed to establish a prima facie case of discrimination and this element of her complaint cannot succeed.
4.6 The respondent (Mr. X) strenuously rejects the complainant’s assertion that he called her crazy and a mad Polish person on several occasions in early May. The respondent notes that the complainant has provided no details to support this assertion and submits that she has not established a prima facie case of less favourable treatment on grounds of race. The respondent rejects the assertion that the tasks identified by the complaint – getting rid of rubbish, sweeping up, cleaning fridges and ovens – are additional duties which do not form part of her role. The respondent refers to the Job Specification furnished to the complainant at the outset of her employment - a copy of which was furnished to the Tribunal- and states that the aforementioned tasks are expressly covered by that document and comprise standard tasks of a Kitchen Porter. It adds that the other Kitchen Porters are required to perform those tasks. It submits therefore that requiring the complainant to perform such tasks cannot amount to discrimination of her on grounds of race.
4.7 The respondent (Mr. X) states that he does not recall the alleged incident over the cutlery in May, 2011 involving Ms. Z. He adds however that ensuring an adequate supply of clean cutlery is a task which is appropriate to the role of Kitchen Porter. In the course of the Hearing Mr. X stated that he had heard the word “Kudva” being used in the kitchen and assumed it was a swear word. He adds that he is French and did not know what it meant. He emphatically rejected the complainant’s assertion that he called her “Kudva” at any time during her employment. He also rejected that the complainant’s assertion that she informed him that day, or at any other time, that she was suffering from depression. The respondent (Mr. X) states that there is no written policy on medical appointments. He adds that generally staff are required to give a weeks’ notice in advance so that the rosters can be prepared accordingly. He further states that staff were not required to produce appointment cards, although some staff did so. He rejects the complainant’s assertion that he asked her for written confirmation of any medical appointment and that he treated her differently to any other member of the kitchen staff who required time off to attend such appointments.
4.8 The respondent states that the maximum occupancy for the hotel is 210 guests. It further states that it has always rosters only one Kitchen Porter for breakfasts –although there may be overlaps between staff – because mornings are not considered to be busy enough to warrant two staff on full shift. It accepts that two Kitchen Porters are rostered on evening shifts as they tend to be busier with functions. It adds that rosters are prepared with the needs of the business in mind and that where those needs require the attendance of two Kitchen Porters they are rostered. In this regard Mr. X used deep cleaning as an example and states that two Kitchen Porters would be rostered if that task was being performed. The respondent states as regards the weekend referred to by the complainant there were only 84 guests on Saturday 28 May, 2011 and 188 on Sunday 29 May, 2011. It contends that neither of these numbers is excessive in terms of workload for one Kitchen Porter. It adds that a colleague (Mr. S) was also rostered on the Sunday morning and that he could have assisted had the need arose. Finally, the respondent states that Mr. X was not in work on 29 May, 2011. The respondent submitted copies of the rosters and occupancy records in support of its arguments in respect of the above. In the course of the Hearing on 8 April, 2011 Mr. X accepted that there were occasions where he might attend work when off – if something urgent occurred like placing an order arose – but states that he would merely be popping in and would not be in his uniform.
4.9 The respondent suggests that the incident involving the complainant and Mr. M which the complainant states took place on 29 May, 2011 actually occurred on 29 April, 2011. It states that Mr. M asked her to wash some glasses but rejects that he shouted at her or behaved in an inappropriate manner toward her, accepting that she was busy. In the course of the Hearing on 8 April, 2014 Mr. X stated that he recalled the incident in question. He stated that he heard the complainant’s raised voice and it was clear to him that she and Mr. M were arguing but he could not hear what was said. He added that the complainant was upset and he followed her to see if she was ok. He further stated that the complainant informed him that Mr. M had asked her to wash glasses and that she had told she was too busy to do so. Mr. X rejected the complainant’s assertion that she told him (Mr. X) that she felt she was being discriminated against because she was Polish. He confirmed he agreed that he would talk to Mr. M about the incident and he did so later that day. He added that Mr. M told him that he had asked the complainant to wash some glasses and she had become angry and upset and that he (Mr. M) had said it was no big deal. Mr. X added that he considered this to be the end of the matter and denied that the complainant had subsequently raised the matter with him.
4.10 The respondent (Mr. X) rejects the complainant’s assertion that there was an on-going conversation between him and her about her annual leave entitlement. He adds that annual leave is operated on a first come-first served basis and generally staff raise the matter with him verbally to check if it is ok and then follow up the request in writing – this is particularly important when a staff member is applying for several days leave in one block. The respondent (Mr. X) states that the complainant had approached him seeking a number of days off in late May, 2011. He states that he instructed her to complete the necessary form and she did not do so. He further states that the day before she was due to go on annual leave she approached him again, this time with the completed form and that notwithstanding this she was granted the leave. The respondent adds moreover, she was given three other days’ annual leave during the month, adding that she was the only staff member who was given that much annual leave that month. The respondent states that it treats the matter of breaks very seriously and requires staff to record the times they took their breaks during the shift. It adds that the complainant signed off her last shift on 29 May, 2011 for a time later than she had actually finished her shift to take account of a break she had not taken during the shift. The respondent states that this is not permitted and that when she resumed duty Mr. X raised the matter with her. In the course of the Hearing on 8 April, 2014 Mr. X rejected the complainant’s assertion that he accused her of stealing e money or falsifying records, stating that he raised the matter with her (as her manager) as a matter of health and safety and compliance with organisation of working time legislation. He added that he had to have a similar conversation with Mr. S on another occasion and states that he treated the complainant no differently in the circumstances. Mr. X rejected in the strongest terms that his decision to speak with her amounts to discrimination or victimisation of her contrary to the Acts.
4.11 The respondent (Mr. X) that whilst general kitchen duties are the primary tasks of a Kitchen Porter, they are required to perform any tasks requested in order to assist a chef. In the course of the Hearing on 8 April, 2014 Mr. X accepted that he knew the complainant had previous experience in the pastry area and understood that she had enjoyed this work. He added that he asked her if she would be interested in assisting in that area again and she said yes. Mr. X further accepted that the complainant was rostered regularly in the pastry area between 17 June, 2011 and 29 July, 2011. He further stated that on those occasions she would be rostered in that area only and was never responsible for the output of that area – she worked under his direct supervision or that of Mr. R who had worked in that area for some time under Mr. P and had replaced him on his (Mr. P’s) departure. Mr. X confirmed that the complainant made reference to a revised contract covering these duties and stated that he had mentioned a possibility of a contract as a Commis Chef in that area to her. He added that after a number of weeks it was clear to him the complainant did not possess the skill or competency to warrant such a contract and she returned to her Kitchen Porter duties. The respondent states that she was not a pastry chef at any time during her employment and was merely assisting in the pastry area in accordance with her contract of employment as a Kitchen Porter and was therefore not entitled to any additional remuneration for this work. It submits that this does not amount to unlawful treatment of the complainant contrary to the Acts.
4.12 The respondent (Mr. X) accepts that there was a confrontation between the complainant and him in late July, 2011. He confirms that it is compulsory for someone working in the pastry area to wear the appropriate uniform. He accepts that on the day in question the complainant refused to wear the uniform and was dressed in clothes more suitable to her role as a Kitchen Porter. He further accepts that in those circumstances he could not permit her to work in the pastry area and he told her so. He strenuously rejects the complainant’s assertion that he called her “Kudva” or that he swore at her at all during this discussion. In the course of the Hearing Mr. X stated that he was aware of the Dignity at Work Policy and was also familiar with the discriminatory grounds covered in the Acts. He added that a hotel kitchen noisy environment and accepted that he raised his voice on occasion, but only to communicate effectively with staff, but this was not exclusive to complainant and was not done in anger.
4.13 The respondent (Mr. X) states that the incident concerning the shortage of dessert plates at the wedding took place on 30 July, 2011. He adds that an insufficient number of plates were served and he approached the complainant and asked her how many plates she had prepared. He adds that it was not the complainant’s job to check that number of plates – that responsibility rested with Mr. R- and he subsequently raised the matter with him. Mr. X adds that the discussion with the complainant became heated and the complainant got upset and walked away. Mr. X emphatically rejects making the comments attributed to him by the complainant. He equally rejects the assertion that he ridiculed the complainant about her lack of decorating skills or that he told her that she was only good for wash-up– adding that he never made any such comments to her at any time. The respondent notes that the complainant changed her evidence about when Mr X (i) ridiculed her saying she was mental and she should have visited a psychiatrist instead of a GP and (ii) suggested she change her medication or perhaps smoke a joint on three occasions and submits that her version of events is totally unreliable and is insufficient to discharge the initial probative burden required. Notwithstanding this Mr. X emphatically rejects he ever made these comments. Finally, the respondent notes that regardless of which day the complainant asserts this incident occurred, the rosters show that both were not rostered on either day – the complainant was off on 23 July, 2011 and Mr X was off on 29 July, 2011.
4.14 The respondent (Mr. X) rejects the complainant’s assertion that he put salt in her coffee. The respondent notes the complainant states that this occurred on the Sunday afternoon of the third week of July when she was working in the pastry area. The respondent states that this could be either Sunday 17 July, 2011 or Sunday 24 July, 2011. The respondent states that the complainant was not rostered in the pastry area on 17 July and in any event, Mr. X was not working that day. It adds whilst she was rostered in the pastry area on 24 July Mr. X was not working on that day either. It furnished the Tribunal with the relevant rosters and submits that the complainant has failed to establish a prima facie case of unlawful treatment in respect of this alleged incident.
4.15 The respondent accepts that the complainant was not assigned to the pastry area from end July, 2011. However, it states that this occurred because the complainant had indicated she was no longer interested in working in the area and in any event Mr. X had decided that she did not have the competence to work there. It submits that there were reasons unconnected with the complainant’s nationality for the decision not to assign her to the pastry area. The respondent’s General Manager (Mr. Q) states that he never received this letter (which is dated 27 July, 2011) and that correspondence addressed in that fashion (The Managing Director) would have been delivered to him. In the course of the Hearing on 8 April, 2014 Mr. X stated that at that time he was unaware of the existence of the letter. It is submitted therefore that the actions of the respondent could not have been as a response to this letter and do not constitute victimisation of the complainant contrary to the Acts.
4.16 The respondent rejects the complainant’s assertion that she was the only Kitchen Porter who was rostered to work all three weekend days (Friday-Sunday) each week from July, 2011 -November, 2011. It states that there were five other Kitchen Porters employed at the relevant time - both Irish and other nationalities – and that all shifts (including weekend shifts) were assigned fairly evenly between all. The respondent adds that the complainant was assigned shifts in accordance with business needs and staff availability with due regard to the medical advice which applied to the complainant at that time – that she could not work more that nineteen hours per week. It furnished the Tribunal with copies of the weekly rosters for this period in support of same. The respondent states that the hourly rate of remuneration paid to Kitchen Porters, including the complainant, took account of Sunday work and that no premium rate of remuneration operated for attendance on Sundays. The respondent notes the complainant’s assertion that she worked hours in September, 2011 and was not paid for them. It states that as far as it is concerned the complainant was paid for every hour she worked. It adds that there were procedures in existence for addressing any issues concerning wages and the complainant did not utilise them at that time. It is submitted on behalf of the respondent that the complainant has failed to establish a prima facie case of unlawful treatment contrary to the Acts in respect of any of these incidents.
4.17 The respondent (Mr. X) accepts that the complainant approached him and requested that she be assigned morning shifts only and states that he told the complainant he would see what he could do. He adds that he believes this occurred in November, 2011 and not October, 2011 as stated by the complainant. Mr. X states that he rostered the complainant morning shifts where possible. He adds that Ms. I started on 26 April, 2011. He rejects the complainant’s assertion that she requested morning only shifts and he facilitated this, although he did recall that she encountered some difficulty with transport for a short period which he took account of when preparing the rosters. He states that all staff, including the complainant and Ms. I, were rostered in a fair and equitable manner and it is submitted that the complainant has not established facts from which an inference of discrimination could be inferred.
4.18 The respondent (Mr. X) states that he spoke with the complainant on 7 October, 2011 and during this conversation she told him that she was getting a solicitor to write to the respondent and that this letter would arrive shortly. In the course of the Hearing on 8 April, 2014 Mr. X stated that he asked the complainant why she was doing this and if he could do anything to help and she replied no that she just wanted money. He added that he subsequently spoke with Mr. Q about this incident and he (Mr. Q) advised him to record the conversation in writing and send it to him. Mr. X stated that he did so on 21 October, 2011. He added that on 24 November the complainant raised the issue of the letter with him and informed him that she had retrieved a copy of it from the bin. Mr. X stated that he asked the complainant to return the document to him but she refused to do so. He added that she had the letter in her hand and he snatched it from her. He strenuously denied the complainant’s assertion that he grabbed her by the arm. He adds that he was extremely upset about this and he asked the Gardaí to investigate the matter so as to clear his name but they informed him they had not received any report of the incident and could not do so. It is submitted by the respondent that the incident did not take place as alleged by the complainant and that this does not amount to discrimination, harassment or victimisation of the complainant contrary to the Acts. The respondent (Mr. X) accepted that he refused an application from the respondent for annual leave in November, 2011. He adds that a colleague had requested the same period off and had made the request before the complainant did and he (Mr. X) had approved that request. He states that he was unable to grant the complainant’s request due to business reasons and notes that the complainant had a week off in early September. It is submitted that in those circumstances his decision not to grant her request does not amount to less favorable treatment of the complainant on grounds of race.
4.19 The respondent states that payment of salaries is controlled by the Accounts Section and not by Mr. X. It further states that salaries are paid by EFT but accepts that there were occasions in the past when there were problems with that process. It adds there is no record that there were payroll problems at Easter 2013 but accepts that it may have happened. It further states that if there were problems it is likely to have affected more than the complainant. In the course of the Hearing on 8 April, 2014 Mr. X stated he did not recall the complainant approaching him on Good Friday but rejected that if she did so that he was dismissive of her as alleged and made the comments attributed to him. The respondent accepts that there were a number of Commis Chef positions filled during May-July, 2013. It adds that the complainant did not apply for these positions although they were advertised on jobs.ie. In the course of the Hearing on 8 April, 2014 Mr. X stated that he had reviewed the applications received and recommended the candidates he considered to be the most suitable for appointment. He confirmed that there was no interview process. Mr. X added that notwithstanding the fact that the complainant had not applied he would not have considered her a suitable candidate given his experience of her the previous year when she had worked in the pastry area and nothing had changed in the interim to alter that opinion. The respondent accepts that the complainant took ill at work on 1 August, 2013. In the course of the Hearing Mr. X stated that he became aware that the complainant was ill. He states that he accompanied her to his office and handed the matter over to Ms. P (the Duty Manager) as service was on and he was busy. He added that as far as he was concerned Ms. P took over the matter and was handling it. He was not aware what happened thereafter, although he was later informed the complainant had been brought to her doctor. Mr. X emphatically rejected the complainant’ assertion that he mocked her and states he was busy elsewhere in the kitchen at that time. The respondent submits that none of these incidents amount to unlawful treatment of the complainant contrary to the Acts.
4.20 The respondent notes that the complainant alleges she was victimised contrary to the Acts. It submits that for victimisation to arise the complainant must establish that she was treated adversely as a result of her having taken action which comprises a protected act in terms of the statute. It further notes that the complainant contends that there are three occasions which could comprise that protected act - (i) the discussion between the complainant and Mr. G in January, 2011 in the course of which she informed him she felt she was being discriminated against; (ii) the conversation between the complainant and Mr. X in May, 2011 when she advised him she was suffering from depression and (iii) the complainant’s solicitor’s letter of 27 July, 2011 when the respondent was advised that the complainant believed she was the subject of discriminatory treatment on the basis of her Polish nationality. The respondent states that Mr. X commenced employment with it on 28 February, 2011 replacing Mr. G as Head Chef. The respondent states that Mr. G is no longer an employee and is overseas and it cannot contact him. It states that there is no record of this discussion and states that it would have expected Mr. G to record same or bring to the attention of a Superior if it had occurred and neither of these events happened. It submits as a matter of probability that this discussion did not occur and it does not amount to a “protected act” for the purposes of grounding the complainant’s complaint of victimisation. It adds that Mr. X emphatically rejects the complainant’s assertion that she informed him she was suffering from depression in May, 201, or indeed at any time during her employment, and submits given the inconsistency in the complainant’s evidence that his evidence is to be preferred. Finally it states that the respondent’s General Manager (Mr. Q) denied ever receiving the letter from the complainant’s solicitor dated 27 July, 2011. It is submitted by the respondent that this letter cannot constitute a “protected act” for the purposes of grounding the complainant’s complaint of victimisation. It further submits, in the event that the Tribunal considers that one of these events constitutes a “protected act” that the complainant has failed to establish a prima facie case of victimisation.
4.21 The respondent rejects the complainant’s assertion that she received unsocial shifts, was assigned the most difficult tasks and had to work alone when her colleagues, particularly the Irish Kitchen Porters, worked in pairs. It states that no staff member is guaranteed specific shifts or days and that shifts are assigned with the business needs as the central focus in a fair and equitable fashion, although where possible personal requests are accommodated. It submits that the rosters furnished will demonstrate this. It further rejects the assertion that she was subjected to harassment by the respondent, particularly in the form of Mr. X. It adds that the complainant was aware of the Dignity at Work Policy and never invoked it. It notes that the complainant states she did not understand this document and submits that there is sufficient evidence available to the Tribunal to enable it reach the conclusion that her standard of English and other supports was sufficient to invoke the Policy. It submits that in the event the complainant establishes a prima facie case of harassment it is entitled to avail of the defence available at section 14A(2) of the Acts. In conclusion the respondent states that complainant has failed to furnish any documentary or corroborative witness evidence. It adds that her evidence has been inconsistent and contradictory throughout her submission and oral evidence at the Hearing and that this brings the credibility of that evidence into question in terms of discharging the initial probative burden she is required to meet.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me is whether or not the complainant was (i) discriminated against by respondent on grounds of disability and/or race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts in respect of her conditions of employment; (ii) harassed by the respondent on grounds of disability and/or race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 14A of those Acts and (iii) was victimised by the respondent contrary to section 74(2) of the Employment Equality Acts, 1998-2011.
In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998 - 2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of the Euuality Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer/Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainantdoes not discharge the initial probative burden required her case cannot succeed.
5.3 The complainant contends that she was discriminated against, harassed and victimised contrary to the Acts and details a number of alleged incidents in this regard. In several of these alleged incidents she seeks to use the same facts to ground claims under two, or more, of these headings. In A School v A Worker[3] the Labour Court held “ that as a matter of principle the complainant cannot rely on the same facts to obtain redress under more than one head of liability under the Acts. The Court will, however, deal with these overlapping claims as if they were pleaded in the alternative.”and I propose to adopt the Court’s approach in the instant case.
5.4 The complainant states that she suffers from depression and it is accepted by the respondent that this condition is a disability in terms of section 2 of the Employment Equality Acts, 1998-2011. However, it states that the complainant never informed it that she was suffering from depression and that the first time it became aware of this was when it received her referral form from the Equality Tribunal in mid-October, 2012. It submits therefore, without prejudice to its arguments that the alleged treatment of the complainant is not unlawful in terms of the Acts, that any such treatment of her could not be connected with her disability. The complainant disputes this and states that she informed Mr. X she was suffering from depression in the course of an altercation sometime in May, 2011. In the course of the Hearing she stated that she advised Mr. X she was suffering from depression in the course of another altercation in or around early July, 2011. I cannot accept either of these assertions as the complainant was not diagnosed as suffering from depression until 19 July, 2011. This is clear from the undated medical report completed by her GP at Part II of to the Department of Social Protection which was submitted by the respondent. Moreover, the complainant’s assertion that she informed Mr. X of the symptoms she experienced (if such a conversation occurred and I am not satisfied on balance that it did) can only amount, at best, to personal opinion which is unsupported by medical diagnosis. The respondent states that the first time it saw this document was at the Hearing on 15 August, 2013. No evidence was adduced by the complainant that she furnished this document to the respondent at any time prior to that and I therefore accept the respondent’s evidence in this regard.
5.5 The complainant also relies on the medical report dated 6 September, 2013. However, this report postdates the referral of the complaint by two years and whilst it provides some chronological details of her medical history it is of little assistance to me in determining whether or not the respondent was aware of the complainant’s condition at the relevant time. The complainant states that her solicitor wrote to the respondent on 27 July, 2011(although the respondent states it never received this letter – a matter which I will return to later in terms of the complainant’s allegation of victimisation). This letter is dated less than two weeks after the complainant was diagnosed with depression yet it makes no reference to this. I find this surprising and neither the complainant nor her representative were able to offer any explanation for this omission. One would expect that something as significant as this would have been included in that letter. Finally, the respondent states that the first medical certificate it received which mentioned depression was dated 10 October, 2012 and I accept this. It furnished the Tribunal with medical certificates in respect of two absences which occurred during the period covered by my investigation - the first from 19-26 August, 2011and the second from 25 November-10 December, 2011. These medical certificates state the reasons for the absences as “stress and anxiety”. In A Worker v A Government Department[4] the Labour Court draws a distinction between “emotional upset, unhappiness or the ordinary human reaction to stressful situations or the vicissitudes of life” on the one hand and “recognised psychiatric illnesses” on the other. In my view anxiety and stress fall into the former category and depression into the latter. In light of my comments in this paragraph and the preceding one I am satisfied that the respondent was not aware the complainant was suffering from depression at the relevant time and consequently I find, on balance, that she has failed to establish a prima facie case of unlawful treatment on grounds of disability in respect of all and any alleged incidents advanced on that ground and they fail. I shall not therefore deal with those issues further in the course of this Decision.
5.6 The complainant asserts that she was subjected to victimisation contrary to the Acts. Section 74(2) of the Acts defines victimisation as follows:
“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,
(b) …….
(c) ….”
In Tom Barrett v Department of Defence[5] the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a “protected act”, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant. In the instant case I must decide, in the first instance, whether or not the complainant took action that could be regarded as a “protected act”.
5.7 Counsel for the complainant submits that there are three possible occasions which could amount to a “protected act” - (i) the discussion between the complainant and Mr. G in January, 2011 in the course of which she informed him she felt she was being discriminated against; (ii) the conversation between the complainant and Mr. X in May, 2011 when she advised him she was suffering from depression and (iii) the complainant’s solicitor’s letter of 27 July, 2011 when the respondent was advised that the complainant believed she was the subject of discriminatory treatment on the basis of her Polish nationality and I shall look at each of these separately. The first of these, the alleged conversation between the complainant and Mr. G in January, 2011 was a heated conversation according to the complainant, in the course of which she informed him she was being discriminated against because she was Polish. It is noteworthy that the complainant was unable to be any more specific of when or where this alleged conversation took place. Mr. G is no longer an employee of the respondent and did not attend the Hearing. The respondent states that had the complainant informed Mr. G of this he would have recorded same, or at least informed Management of the complainant’s issues and there is no record of any such report. At that time the respondent had accommodated the complainant with shorter hours in accordance with her medical advice. I also note that it had a Staff Handbook which included a Dignity at Work Policy and that it had issued the complainant with a written contract of employment and Job Specification. Moreover, when it received the complainant’s referral form from the Tribunal in October, 2011it immediately engaged with her to see if the allegations could be investigated. I have carefully considered the foregoing and I prefer, on balance, the respondent’s version of events and I find that the complainant is mistaken as regards this conversation.
5.8 The second occasion advanced as a “protected act” by the complainant is the alleged discussion between the complainant and Mr. X in May, 2011 when she informed him she was suffering from depression. Again it is noteworthy that the complainant was unable to provide any credible details of when or where this alleged conversation took place - a conversation which Mr. X denies occurred. The complainant states that she informed him she was suffering from depression. Notwithstanding the respondent’s arguments that this conversation did not take place, I am satisfied that merely informing the respondent that she was suffering from depression is not encompassed by the definition of victimisation prescribed at section 74(2) of the Acts. The third occasion of a “protected act” advanced by the complainant in order to ground her complainant of victimisation is her solicitor’s letter of 27 July, 2011 to the respondent. It is clear this letter informs the respondent that the complainant believes she is the victim of discrimination on grounds of race (Polish nationality) contrary to the Acts. However, the respondent states that it never received this letter and was therefore unaware of the complainant’s assertion. In the course of the Hearing the complainant’s solicitor stated that it did not follow this letter up when the respondent did not respond. I find this somewhat surprising given the serious nature of the allegations contained therein. The respondent has consistently responded promptly when faced with issues. I am therefore satisfied, on balance, that had it received this letter it would have acted on it. In light of the foregoing I find, on balance, that the respondent did not receive this letter and consequently it was not on notice of the complainant’s allegations that she was the victim of discrimination contrary to the Acts. Having carefully considered the evidence adduced by the parties on this issue I find that the first occasion the respondent was on notice that the complainant was claiming she was the victim of discriminatory treatment was the referral form referred to the Tribunal – i.e. sometime around 20 October, 2011. It follows that any alleged treatment of her prior to that date could not constitute victimisation of her in terms of section 74(2) of the Acts. It is therefore not necessary for me to examine the probative value of any alleged incident of victimisation post that date.
5.9 In light of my findings in the preceding paragraphs the only elements of the complainant’s case which remain for the purposes of my investigation are the alleged acts of less favourable treatment and/or harassment on grounds of race – which is based on her Polish nationality. The first of these involves an allegation that the complainant was not permitted to take a break on 22 April, 2011 and it is argued that this amounts to less favourable treatment and/or harassment of her on grounds of race contrary to the Acts. The respondent states that whilst staff have some latitude as regards when they take breaks they are not permitted to do so when service is on. The complainant accepts that this is the case; that service was in fact on when she requested her break on 22 April, 2011 and that she was subsequently permitted to take her break later in the shift when service was finished. In the circumstances I find that the complainant has failed to establish facts from which an inference of discrimination and/or harassment on grounds of race contrary to the Acts arises and this element of her complaint fails.
5.10 The next issue involves alleged discrimination of the complainant when she was unable to complete all the tasks assigned to her on a 5pm-midnight shift on 29 April, 2011. She contends that when she attended work the next day Mr. X shouted at her, berating her or not completing the cleaning and called her a lazy Polish woman. She adds that that an Irish Kitchen Porter (Mr. S) had left on a number of other occasions without completing his tasks and was not chastised by Mr. X for doing so, although she was unable to indicate when this occurred. The respondent (Mr. X) states that whilst staff are expected to complete their duties during their shift if they did not do so because it was a busy shift it was not a big deal. He was unable to recall the alleged incident as detailed by the complainant, adding that if staff continuously failed to complete the tasks expected of them he would raise it with the employee concerned and he rejected the assertion that he treated Mr. S differently to the when he left tasks incomplete and went home at the end of his shift. The complainant was adamant that this incident took place on 30 April, 2011 after she had worked until midnight the night before (29 April, 2011). The respondent furnished the Tribunal with the rosters for 29/30 April, 2011 and whilst the complainant was on duty on both days, her shift on 29 April, 2011 was 11am-7pm. Having carefully considered the evidence adduced by both parties I am not satisfied that the complainant has established a prima facie case of less favourable treatment and this element of her complaint cannot succeed.
5.11 The complainant alleges that Mr. X continued to treat her unlawfully and berated her saying she was crazy and a mad Polish person on several occasions in early May but can provide no further details as regards dates, times etc. of these interactions. In essence, the complainant merely asserts she was subjected to less favourable treatment on these occasions. It is settled law that mere assertions are insufficient to discharge the initial probative burden required[6]. Consequently, I find that the complainant has failed to establish a prima facie case that she was treated less favourably on grounds of race contrary to the Acts and this element of her complaint fails. The complainant further contends that she was required to perform additional duties – getting rid of rubbish, sweeping up, cleaning fridges and ovens – which she believed were an extension of her role and not covered by her job specification and that this amounts to less favourable treatment of her on grounds of race. The respondent rejects this assertion and states that the tasks are standard tasks of a Kitchen Porter and it furnished the Tribunal with a copy of the relevant Job Description in this regard. I have examined this Job Description and I am satisfied that the tasks identified by the complainant are expressly covered by it. Moreover, I note that the complainant accepted in the course of the Hearing that this Job Specification accurately reflects the role of Kitchen Porter. The respondent states that other Kitchen Porters are required to perform those tasks, regardless of nationality and the complainant did not dispute this. I therefore find that the complainant has failed to establish that she was treated any differently to colleagues in a similar situation – which is a fundamental requirement in discharging the probative burden required of her – and this element of her complain cannot therefore succeed.
5.12 The complainant states that she was working the breakfast shift on the second Friday in May, 2011 when the Restaurant Supervisor (Ms. Z) complained to Mr. X that the cutlery was not clean. She adds that Mr. X approached her shouting at her and that in the course of this exchange he called her “Kudva” which is a highly offensive swear word in Polish. It is submitted that this amounts to discrimination and/or harassment of her contrary to the Acts. The respondent (Mr. X) cannot recall the alleged incident over the cutlery in May, 2011 involving Ms. Z. He adds however that ensuring an adequate supply of clean cutlery is a task which is appropriate to the role of Kitchen Porter and I accept this to be the case. Requiring the complainant to ensure same is not unreasonable. The complainant did not adduce any evidence whatsoever that this interaction had anything to do with her nationality and therefore this element of her fails. The complainant also alleged that Mr. X called her “Kudva”. Mr. X rejects this although he accepts that he heard the word being used in the kitchen and assumed it was a swear word. In circumstances where two people give conflicting versions of the same incident an Adjudication Officer/Equality Officer must decide, on balance of probabilities, which version of events/he considers the more credible. The respondent furnished the Tribunal with rosters for each of the weeks in May, 2011 and they show that the complainant was not working on the second Friday in that month. Moreover, they show that the complainant and Mr. X did not work together on any Friday during that month. In addition, it is noteworthy that despite the fact Mr. X used this phrase to her in the kitchen – where several other staff were present – she has not produced one witness to corroborate her version of events. The uncorroborated evidence of the complainant combined with the other factors mentioned above can only result in one outcome - that I prefer the respondent’s version of events and find it more credible. Consequently, I find that the complainant has failed to establish a prima facie case of less favorable treatment and/or harassment on grounds of race and this element of her complaint fails.
5.13 The complainant states that following this conversation she requested time off work to attend medical appointments and that Mr. X requested she produce evidence that she attended the appointment in respect of each absence. She adds that two colleagues (Mr. W and Mr. S) were permitted to attend medical appointments without having to produce such evidence and that this amount to less favorable treatment of her on grounds of race. She was unable to provide more specific details of when any of these events occurred and consequently what the complainant has advanced in support of this aspect of her complaint are mere assertions. As stated at paragraph 5.11 above, assertions are insufficient to discharge the initial probative burden required of the complainant and therefore this element of her complaint fails.
5.14 Thecomplainant states that she was the only Kitchen Porter rostered on a Saturday morning in late May, 2011. In the course of the Hearing she confirmed that this was Sunday 29 May, 2011 and stated that the hotel was extremely busy with 250 guests. She added that the workload that day was excessive for one Kitchen Porter; that she was unable to cope and that Mr. X kept urging her to hurry up using the phrase “chop-chop”. She also confirmed that Mr. X did not use any language which could be described as discriminatory on grounds of race. Later in the Hearing the complainant accepted that (i) the maximum number of guests the hotel could accommodate was 210, (ii) the hotel was generally busier at weekends and (iii) generally there was only one Kitchen Porter rostered on duty at weekends. I have examined the rosters furnished by the respondent and it is clear from them that whilst the complainant worked a significant number of weekend shifts, at least one of her colleagues (Ms. I), who is Latvian, worked a similar amount of weekend shifts. In addition, the rosters show that generally only one Kitchen Porter was rostered for the breakfast shifts at weekends regardless of the occupancy levels. It is also clear that these arrangements operated on those weekends when the complainant’s Irish colleagues worked. As regards the weekend at issue, the occupancy records show that the hotel had 150 guests – just over 70% capacity – and the rosters show that Mr. X was not working that day. The complainant suggests that the veracity of these records is questionable as Mr. X could amend them to suits his needs. I do not accept this suggestion. The rosters were furnished to the Tribunal on 18 October, 2013 – which preceded the Hearing date (6 November, 2011) when the complainant provided details of this alleged incident. In light of the foregoing I find that the complainant has failed to establish facts from which an inference of discrimination and/or harassment on grounds of race could be inferred and this element of her complaint cannot succeed. The complainant again asserts that she was denied a break on the same day when service was on. I have dealt with this scenario at paragraph 5.9 above and I reach the same conclusion in this instance.
5.15 The complainant states that she was expected to work alone and perform high intensity tasks when her Irish colleagues worked in pairs and were assigned less physically demanding tasks. She offered no specific details of when this occurred, other than to make reference to “deep cleaning”. Yet again the complainant provided no evidence that would enable me elevate her assertion to the level of fact. Moreover, I note that in the course of the Hearing on 7 April, 2014 she accepted that an Irish colleague (Mr. J) had performed heavy duty “deep cleaning” tasks on occasion. Consequently, I find that the complainant has failed to establish a prima facie case of discrimination and this element of her complaint fails.
5.16 The complainant states that there were on-going issues with her annual leave entitlement from the start of Mr. X’s appointment as Head Chef in February, 2011 and that she asked him to check her entitlement on a number of occasions and he ignored her. She adds that she eventually checked her entitlement with Accounts Section and applied for her annual leave on that basis, using the appropriate application form. The respondent (Mr. X) rejects the complainant’s assertion that there was an on-going conversation between him and her about her annual leave entitlement. He adds that annual leave is operated on a first come-first served basis and that applications must be submitted in writing. The respondent (Mr. X) states that the complainant had approached him requesting a number of days off in late May, 2011; that he instructed her to complete the necessary form and she did not do so and that despite the fact that she only submitted the necessary paperwork the day before she hoped to go on annual leave, he approved the absence. Notwithstanding the statutory obligations on the respondent to maintain appropriate records of employees’ annual leave, it is entirely reasonable for the orderly and efficient management of a busy kitchen that staff apply for annual leave in writing and in advance. The complainant’s failure to comply with the process cannot amount to an incident of less favourable treatment in the instant case. I note that once the complainant complied with the procedure her request was approved. Moreover, I note from the rosters furnished by the respondent that during remainder of the month of May, 2011 the complainant had availed of three single days’ annual leave. This is in direct conflict with her assertion that there were on-going problems with her annual leave. Having considered the evidence adduced by both parties I find that the complainant has failed to establish a prima facie case of less favourable treatment on grounds of race and this element of her complaint fails.
5.17 The complainant states that on the day before she was due to commence the aforementioned period of annual leave she was unable to take a break and she added thirty minutes to her signing out time. She states that when she returned from annual leave Mr. X confronted her and accused her of stealing extra time. Mr. X accepts that this conversation took place but states that he raised the matter with her (as her manager) as a matter of health and safety and compliance with organisation of working time legislation. I note that in the course of the Hearing the complainant accepted, in response to a question from the respondent’s representative, that she was not entitled to sign off duty for a time later than she actually left but she decided to do so anyway. In my view this displays a blatant disregard for standard procedures by the complainant and Mr. X was perfectly entitled to raise the matter with her. The complainant states that he accused her of stealing time. This may have been the complainant’s understanding of what Mr. X said and does not, in my opinion, amount to discrimination of her. I note Mr. X states that he had to have a similar conversation with Mr. S on another occasion and that he treated the complainant no differently in the circumstances. I accept his evidence in this regard. I find that the complainant has failed to discharge the initial probative burden required of her and this element of her complaint cannot therefore succeed.
5.18 It is common case that the complainant worked in the pastry area of the kitchen almost every day between 17 June and 29 July, 2011. I note Mr. X’s acceptance that he spoke with the complainant about the prospect of a contract as a Commis Chef in the area. I am satisfied that the complainant understood this to mean that she would receive an increase in her hourly rate of remuneration when she worked in the pastry area. On the other hand it was Mr. X’s understanding that she was merely assisting in that area – she was not responsible for the output in the area – and as such she was performing duties which were consistent with her contract as a Kitchen Porter. I note that the complainant had previously assisted in the pastry area and I accept the proposition that she was therefore best placed to provide assistance in the area, under supervision, when Mr. P left the respondent’s employment. I am further satisfied that the role she performed was covered by her Job Specification, albeit that it required a far greater level of skill than the more routine duties of a Kitchen Porter. The complainant was unable to identify any colleague who was treated differently in similar circumstances. However, the Employment Equality Acts, 1998-2011 permit the use of a hypothetical comparator. I have carefully considered the evidence adduced by both parties on this issue and I find, on balance, that the respondent would not have treated another employee of a different nationality to the complainant any differently in similar circumstances. I am satisfied that Mr. X viewed it as an opportunity for the complainant to advance in the hotel but perhaps it would have been better had he not mentioned the possibility of a new contract or had made it clear that she was in effect on trial. The complainant states that she refused to wear her uniform on 29 July, 2011 and Mr. X would not permit her to work in the pastry area without it. Mr. X confirmed this. I am satisfied that her actions in this regard were intended to provoke a reaction as she was aware she was required to wear the uniform if she wanted to work in the area and ultimately she got what she sought – she was not required to work in the area again. Whether this was as a result of her refusal to wear the pastry uniform or Mr. X’s opinion that she was not suitable for the role is immaterial as neither has any connection to her Polish nationality. The complainant asserts that Mr. X called her “Kudva” when they spoke that day. I do not accept this. In light of the foregoing I find that the complainant has failed to establish a prima facie case of discrimination on grounds of race contrary to the Acts.
5.19 The complainant states that she was berated by Mr. X when she was preparing desserts for a wedding reception. She states that the number of desserts prepared was incorrect and Mr. X called her “a stupid Polish bitch” in front of colleagues and told her “she could not count and he would have to the find someone who could”.The submission filed on behalf of the complainant stated that this incident took place on 17 June, 2011. In the course of the Hearing she stated that it may not have happened that day, adding that it happened at a weekend but was unable to say when this was. The respondent (Mr. X) states that the incident concerning the shortage of dessert plates at the wedding took place on 30 July, 2011. He adds that an insufficient number of plates were served and he approached the complainant and that having asked her how many plates she had prepared he raised the matter with the Pastry Chef (Mr. R). The complainant did not identify the colleagues she asserts were present when Mr. X made the comments she attributes to him. However, it is clear to me that Mr. P was present. She offered no explanation why he did not corroborate her version of events. Given the inconsistency in the complainant’s evidence on this matter I am not satisfied that her uncorroborated version of events goes far enough to discharge the probative burden required of her and this element of her complaint fails.
5.20 The complainant states that Mr. X engaged in several other incidents of unlawful behavior toward her during July, 2011. The first of these concerns an incident where she states Mr. X ridiculed her dessert decoration skills. She is unable to say when this occurred and contends that her Irish colleague would not be treated in this fashion. The second concerns an incident on 23 July, 2011 when Mr. X told her that she only good for the wash up area. The third incident occurred when she handed a medical certificate to Mr. X following an absence on sick leave. She states, as regards this last incident, that he told her she was mental; that she should have visited a psychiatrist instead of a GP and that she should change her medication or perhaps smoke a joint. The respondent (Mr. X) emphatically rejects he made any of the comments attributed to him. The complainant adduced no evidence whatsoever to support her allegations in respect of the first issue. From examination of the rosters furnished by the respondent she was not at work on 23 July, 2011. Consequently I find that she has failed to establish a prima facie case of less favourable treatment on grounds of race contrary to the Acts and both of these elements of her complaint fail. As regards the third alleged incident the complainant states that it occurred after she returned from a period of sick absence and she had handed Mr. X a medical certificate. I have examined the rosters furnished by the respondent and the complainant was not on sick leave during July, 2011. In the course of Hearing the complainant initially stated that these comments were made on 29 July, 2011. She subsequently stated the incident occurred on 23 July, 2011 and when this conflict was pointed out to her she stated that it happened on both dates. She subsequently changed her response again stating that it only happened on 23 July, 2011. The rosters furnished by the respondent show that complainant was not working on 29 July, 2011 and that Mr. X was not working on 23 July, 2011. The complainant’s evidence on this matter is inconsistent and evolved during the course of the Hearing as possible conflicts in her version of events were pointed out to her. Moreover, bearing in mind the comments attributed to Mr. X there is nothing in them that could be regarded as having any connection with the complainant’s nationality. Consequently, I find that she has failed to establish a prima facie case of discrimination and/or harassment on grounds of race contrary to the Acts and this element of her complaint fails.
5.21 The complainant states that she was working in the pastry area on the Sunday afternoon of the third week of July, 2011. She adds that Mr. X was also working that day and that a colleague approached her and told her that Mr. X had put salt in her coffee. The complainant states that she tasted the coffee and it contained salt but she did not approach Mr. X about this. In the course of the Hearing on 7 April, 2014 the complainant changed her evidence and stated that she had confronted Mr. X about the incident and he told her it was just a joke. The respondent (Mr. X) rejects the complainant’s assertion that he put salt in her coffee. The respondent notes the complainant states that this occurred on the Sunday afternoon of the third week of July she was working in the pastry area and states that this could be either Sunday 17 July, 2011 or Sunday 24 July, 2011. The respondent states that the complainant was not rostered in the pastry area on 17 July and in any event, Mr. X was not working that day. It adds whilst she was rostered in the pastry area on 24 July Mr. X was not working on that day either. Having carefully considered the above I find that the complainant has failed to establish facts from which an inference of less favourable treatment and/or harassment on grounds of race could be established and this element of her complaint cannot succeed. The complainant further states that on 31 July Mr. X advised her she was being assigned to the wash up area two days a week and the other would be in the pastry area and contends that this constitutes discrimination of her on grounds of race contrary to the Acts. I cannot accept this proposition. The complainant stated in the course of the Hearing that two days prior to this alleged discussion, she had advised Mr. X that she was no longer interested in working in the pastry area. I am somewhat surprised therefore that when she was no longer assigned to the duties she had a problem performing previously, she considered this to be less favorable treatment of her on grounds of race. The complainant has not adduced any evidence any evidence to support her assertion in this regard and this element of her complaint cannot succeed.
5.22 The complainant states that between July, 2011 and November, 2011 she was the only Kitchen Porter who was rostered all three days (Friday-Sunday) each week. She adds that she believed she should have received a premium rate for the hours she worked on Sundays. She contends that this amount to discrimination of her on grounds of race. In the course of the Hearing she accepted that her hourly rate took account of Sunday work and that she is not entitled to a premium rate for working on Sunday. Consequently, this element of her complaint requires no further consideration. As regards the complainant’s assertion that she was the only Kitchen Porter who was rostered Friday-Sunday each weekend between July, 2011 and November, 2011, I have examined the rosters furnished by the respondent for this period. They show that the complainant (i) worked on all three days on three occasions during that period; (ii) worked on two of those days on nine occasions; (iii) worked only one day on three occasions and (iv) was not rostered at all on three weekends. These statistics clearly contradict the complainant’s assertion. Moreover, the foregoing details are broadly similar to the weekend attendance patterns for her fellow Kitchen Porters (Ms. I and Mr. S) who are Latvian and Irish respectively. In light of the foregoing I find that the complainant has failed to establish a prima facie case of discrimination on grounds of race and this element of her complaint fails.
5.23 It is common case that the complainant requested she be rostered more morning shifts. The complainant states this was in October, 2011 – Mr. X states this discussion took place in November, 2011. Given the inconsistency with the complainant’s recollection of events which are the subject of her complaint I prefer, on balance, the respondent’s evidence of when the complainant made her request. Whilst this alleged act of discriminatory treatment occurred after the complaint I have examined the rosters furnished by the respondent for the period November, 2011- March, 2012 and they show that the complainant was rostered for over three times as many morning shifts as afternoon shifts. The complainant compares herself to Ms. I, whom she alleged Mr. X treated more favourably than her. It appears from the rosters that Ms. I left the respondent’s in December, 2011. During the period under review the rosters indicate that half of her shifts were morning with the remainder involving evening hours. I am satisfied that the attendance patterns of the complainant and Ms. I do not support an assertion that the complainant was subjected to less favourable treatment because she is Polish. Moreover, the rosters show that other Kitchen Porters, some of whom were Irish were also rostered in similar patterns. Consequently, I find that the complainant has failed to discharge the initial probative burden required of her and this element of her complaint cannot succeed.
5.24 The complainant states that she found a letter in the bin on 24 November, 2011 which had been written by Mr. X. She adds that this letter stated she was s looking for money. She further states that when she confronted Mr. X about this letter he got extremely angry and attempted to grab it from her and in doing so grabbed her arm. It is common case that the complainant’s solicitor wrote to the respondent the following day alleging that Mr. X assaulted her and advising that the complainant would be pursuing the appropriate legal action. Mr. X accepts this altercation took place but rejects the assertion that he assaulted her. The letter in question was a copy, or a draft, of a note which Mr. X had sent to the hotel’s General Manager a month beforehand. A copy of the actual letter, dated 21 October, 2011, was furnished to the Tribunal and it does state that the complainant advised Mr. X in the course of a discussion on 7 October, 2011 that her solicitor would be writing to the respondent and that she was looking for money. I note the proximity of the discussion on 7 October, 2011 to the date of the referral of her complaint to the Tribunal and I am satisfied that this discussion took place. Mr. X states that he was advised by Mr. Q to commit his recollection of this conversation to writing – this was independently corroborated by Mr. Q in the course of the Hearing – and I am satisfied that the contents of the note would have given rise to concern on the complainant’s part when she found the copy in the bin. Equally, it is understandable that Mr. X would become irate when confronted by the complainant with a copy of the note. I am of the view that it would be impossible for Mr. X to seek to snatch the note from the complainant without some form of physical contact occurring. However, the criminal issue of alleged assault is not an issue for consideration by this Tribunal and is a matter for the appropriate authorities, although I am somewhat surprised that the complainant does not appear to have reported the matter to the Gardaí. The issue for consideration for me is whether or not the complainant was treated less favorably by Mr. X because she is Polish. Having considered the matter I am not satisfied, on balance, that Mr. X would have treated any employee of a different nationality differently in circumstances where he was confronted with a note he believed was personal and private. Accordingly, I find the complainant has failed to establish a prima facie case of discriminatory treatment on grounds of race and this element of her complaint fails.
5.25 The complainant states that she had booked a holiday in Poland for November, 2011. She states she had sought the verbal approval of Mr. X for the annual leave involved but could not recall if she had requested the leave in writing in accordance with the Policy. She adds that her application was subsequently refused by Mr. X. She contends that two Irish colleagues had annual leave approved in similar circumstances although she was unable to be specific of when this happened. It is submitted that this amount to less favourable treatment of the complainant on grounds of race. The respondent (Mr. X) accepts that he refused an application from the complainant for annual leave in November, 2011. He adds that a colleague had requested the same period off and had made the request before the complainant did and he (Mr. X) had approved that request. He was unable to grant the complainant’s request due to business reasons and notes that the complainant had a week off in early September. This is the second occasion when the complainant alleged she was discriminated against as regards requests for annual leave. It is clear to me that by this stage of her employment she was fully aware of the requirement to apply for annual leave in writing, yet it appears that she did not comply with the requirement, yet again, on this occasion. Unfortunately, Mr. X could not approve her application at the last minute on this occasion, as he had done previously. Moreover, I note that the complainant had been granted a period of leave in early September and also note her confirmation that Mr. X approved a period of annual leave for her at short notice in March, 2013. Whilst annual leave is a statutory entitlement how and when an employee can take it is at the discretion of Management, subject to the needs of the business and other factors. I am satisfied that M. X was attempting to ensure that staff were able to avail of annual leave whilst ensuring the business was not adversely impacted. In light of the foregoing I am satisfied that his refusal of the complainant’s application was not connected to her nationality and this element of her complaint fails.
5.26 It is common case that staff were usually paid their salary via EFT. The respondent accepts that there were occasions in the past when there were problems with the process but adds there is no record that there were payroll problems at Easter 2013, although it accepts that it may have happened. The complainant states that Mr. X was dismissive of her when she raised the matter of how she was expected to cash a cheque when the banks were closed. Mr. X cannot recall this conversation but rejects the assertion that he was dismissive of her if it did occur. The respondent states that the Accounts Section is responsible for issues concerning salaries. The complainant was undoubtedly aware that this was the case. In fact she had approached that Section previously when she had an issue with her annual leave entitlement. It was open to her raise the matter with Accounts when she received no comfort from Mr. X about her plight but she did not do so. I would have expected that if the complainant had received a cheque it would have been arranged by the Accounts Section and that not only the complainant would have been affected. In that case the complainant was not treated differently to other kitchen staff and she could not therefore maintain her assertion of discrimination on grounds of race contrary to the Acts. If not, then a number of people must be involved in a conspiracy to only treat the complainant in the manner alleged. This is not a sustainable argument and indeed the complainant had not adduced a scintilla of evidence that this was the case. In light of the foregoing, I find that the complainant has failed to establish a prima facie case of discrimination on grounds of race contrary to the Acts and this element of her complaint cannot succeed.
5.27 It is common case that there were a number of positions filled in the respondent’s pastry section between May-July, 2013. The complainant states that she was not given the opportunity to apply for the posts although she was unable to say whether or not these posts were advertised as asserted by the respondent as she did not see them. The respondent (Mr. X) states that he reviewed the applications received and recommended the candidates he considered to be the most suitable for appointment. There was no interview process. He adds that notwithstanding the fact that the complainant had not applied he would not have considered her a suitable candidate given his experience of her the previous year when she had worked in the pastry area and nothing had changed in the interim to alter that opinion. I accept Mr. X’s evidence in this regard. I note that the complainant had not worked in the area for almost two years. The complainant has not pointed to any contractual or statutory requirement which obliges the respondent to bring the vacancies to her personal attention. Moreover, I find it difficult to accept that the vacancies had not been the subject of discussion in the workplace. The complainant has failed to identify any other person who was treated differently to her in the circumstances. In light of the foregoing I find that the complainant has not discharged the initial probative burden required of her and this element of her complaint cannot succeed.
5.28 Finally, the complainant states that she became ill at work in August, 2013 and that Mr. X told her to calm down and just stood there laughing at her, doing nothing to assist her. R. Mr. X rejects this assertion stating that he brought her to his office where he handed the matter over to Ms. P (the Duty Manager) as service was on and he was busy. He adds that as far as he was concerned Ms. P took over the matter and handled it appropriately. He was not aware what happened thereafter, although he was later informed the complainant had been brought to her doctor. I have considered the evidence adduced by the parties and I am satisfied, on balance, that Mr. X acted appropriately in the course of this incident. As Head Chef he has a stressful and responsible period when service is on. He delegated responsibility to a senior manager to look after the complainant when he returned to work. Again, the complainant has not produced any corroboration that Mr. X acted as alleged. I am puzzled by this given the kitchen had to be busy at the time. The complainant has adduced no evidence to support the assertion that Mr. X treated, or would have treated, another employee of differently in similar circumstances. Consequently, I find that the complainant has failed to establish a prima facie case of discrimination and/or harassment on grounds of race contrary to the Acts then this element of her complaint fails.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and in accordance with (i) section 79(6) of the Employment Equality Acts, 1998-2015 and (ii) section 41(5) of the Workplace Relations Act, 2015
I issue the following decision. I find that –
(i) the respondent was not aware the complainant was suffering from depression at the relevant time and consequently she has failed to establish a prima facie case of unlawful treatment on grounds of disability in respect of all and any alleged incidents advanced on that ground.
(ii) the first occasion the respondent was on notice that the complainant was claiming she was the victim of discriminatory treatment was the referral form referred to the Equality Tribunal – i.e. sometime around 20 October, 2011. That is the first date of the on which a “protected act” could have occurred. It follows that any alleged treatment of her prior to that date could not constitute victimisation of her in terms of section 74(2) of the Acts.
(iii) the complainant has failed to establish a prima facie case of discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts in respect of her conditions of employment.
(iv) the complainant has failed to establish a prima facie case of harassment by the respondent on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 14A of those Acts
and her complaint fails in its entirety.
_______________________________________
Vivian Jackson
Adjudication Officer/Equality Officer
March, 2016
[1] EDA 1124
[2] [2004] ELR3 116
[3] EDA 122
[4] EDA 094
[5] EDA1017
[6] EDA 0917 Melbury Developments v Arturs Valpetters