ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000365

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 11/02/2016

Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

1.0 This dispute concerns a claim by a Chef (hereinafter referred to as the Complainant) that he was discriminated against, victimised, dismissed and harassed by his employer (hereinafter referred to as the Respondent) on the grounds of race contrary to the Employment Equality Acts1998 – 2011 (hereinafter referred to as the Act).

1.1 The Complainant referred his claim to the Director of the Equality Tribunal on 29th October 2015 under the Employment Equality Acts. On 16th January 2016 in accordance with his powers under Section 75 of the Acts the Director delegated the case to me, Louise Boyle, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 11th February 2016. The Complainant and the Respondent attended the hearing without representation.

1.2 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with Section 83 (3) of the Workplace Relations Act 2015

Complainant’s Submission and Presentation:

2.0 The Complainant commenced employment on 24th July 2015 and was hired as a chef with the Respondent. He is of English race. He did not receive any contract of employment nor any policies or procedures in relation to his employment. He alleged that the employment relationship began to break down quickly very early on owing to a number of incidents. These incidents included:

2.1 The Complainant was advised that if he wished to smoke while at work, he should do so inside the restaurant in an office which had cctv so that the Complainant would be able to see and attend to customers who entered the restaurant.
The Complainant alleged that he raised concerns about this and advised the Respondent that it was illegal to smoke on the company premises and he claimed that the manager of the Respondent responded by saying "what do you know, you're just an English prick".

2.2 On another occasion the Complainant alleged that fish wrapped in a plastic bag was thrown by the Respondent onto a green salad board which according to the Complainant was in breach of hygiene regulations. When the Complainant raised concerns about this, the Complainant alleged that the Respondent called him again “an English prick”.

2.3 The Complainant also claimed that there were approximately 10 occasions whereby he was referred to as an “English prick” albeit he could not recall exact dates and times of the other incidents. The Complainant said that there were no witnesses to the events and that when the Respondent called him these names, she did so quietly so that there would be no witnesses to the name-calling.

2.4 The Complainant said that he repeatedly felt undermined by the manner in which the manager would change the rota which the Complainant felt he had responsibility for.

2.5 On Thursday 22nd October 2015 an argument developed between the Complainant and another employee whom the Complainant alleged was a good friend of the manager of the Respondent.

2.6 On 25th October 2015 the Complainant stated that the Respondent’s father (the owner of the restaurant) called him and asked to meet with him. The Complainant queried whether he should “collect his knives” by which he clarified at the hearing that he assumed that he was being fired and that he should, therefore, collect his belongings including his work knives.

2.7 The Complainant met with the Respondent in the carpark on Monday 26th October 2015 and the Complainant recorded the conversation between himself and the Respondent.

2.8 The Complainant alleged that it was on the drive home from being told that his employment was terminated by the owner that he came to the conclusion that the manner in which he was treated was because of his race. He clarified this by saying that he had wondered before if the difficult relationship with his manager was down to his race, but never raised it internally.

2.9 He acknowledged that the conversation he recorded and played at the hearing, made no reference to race being the reason for his termination.

2.10 The Complainant said that when he contacted the Respondent’s accountant to receive his outstanding payments, he was told that the Respondent told the accountant that he had left of his own accord. The Complainant confirmed that he eventually received all his outstanding payments.

Respondent’s Submission and Presentation:

3.0 The manager of the company whose father is the owner of the Respondent claimed that the Complainant commenced employment on 31st July 2015 but later confirmed that it may have been 24th July 2015 with payment in cash given for the first week employment.

3.1 She confirmed that no contracts of employment or equality policy or any other policies had been given to the Complainant or to any other employees but that this had now changed ever since the Complainant had submitted his equality claim. She provided a copy of the contract of employment which was now in place and given to all employees but confirmed that there are still no other policies in place such as those relating to equality or dignity at work.

3.2 She alleged that from day one there were ‘issues’ with the Complainant including that he wished to smoke in his car despite her repeatedly telling him to smoke in the office. She denied that he told her it was illegal to smoke in the office and alleged that he was happy when she advised that smoking was allowed in her office. She confirmed that she thought it was legal to smoke in her own office.

3.3 She recalled the incident regarding the fish being left by her in the kitchen. She explained that she was under pressure because a customer had requested a type of fish that they did not have and she had to go next door (to the fish shop attached to the restaurant) to get the fish, brought it in and left it on a chopping board still wrapped. The owner accepted that this may not have been the correct way to deal with the fish but denied calling the Complainant any names.
She said that it was a very small premises and if she had called him by such a term, somebody would have overheard it.

3.4 The manager stated that the Complainant did not take kindly to her involvement in the rota and that she told him it was her decision to decide the rota and that it was clear that he was not happy with this. When questioned further, she accepted that there were never a clear outline of his duties and responsibilities and that because he had worked in larger organisations previously, he may have been used to doing things differently elsewhere.

3.5 She claimed that the restaurant employed people of various races, that she herself is bi-racial and that her partner is English and denied that she was racist or discriminated against him because of his race.

3.6 The manager confirmed that that she wished to terminate his employment because of the many incidents that had occurred including a final one on the 22nd October where another employee had a heated disagreement with the Complainant. This was the final straw as she felt that she could not work with him anymore.

3.7 As her father was the owner of the restaurant and because she felt intimidated by the Complainant, she asked her father to have the conversation with Complainant regarding the termination of his employment.

3.8 Her father, the owner of the restaurant confirmed that he had a conversation with the Complainant and advised him that his employment was being terminated because of the “bad buzz around the place” and that he told the Complainant that the Complainant was not a team player.

Findings and Conclusions:

4.0 Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

4.1 Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Section 82 of the Act.

4.2 The Complainant has made a number of complaints which I will deal with in turn below. In reaching my decisions, I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the hearing.

4.3 Section 85a of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85a places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule

4.4 Discrimination Because of Race

The first issue for decision by me is whether or not the Complainant was treated in a discriminatory manner on grounds of race, in terms of Section 6 of the Acts and contrary to Section 8 of the Acts.

During the Complainant’s employment with the restaurant it was clear that there were differences of opinion regarding what the Complainant’s roles and responsibilities were as Chef. While I have no doubt that some if not all of these issues could have resolved with clear terms and conditions of employments issued and roles and responsibilities defined, Section 85(A) of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies to claims of discrimination.
It requires the Complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment on the basis of his race. It is only when those facts have been established and are regarded by an Adjudicator as sufficient to raise an inference of discrimination that the onus shifts to the Respondent to rebut the inference of discrimination raised.
From the evidence presented this burden has not been met and therefore, the claim for discrimination on the basis of race must fail.

4.5 Victimisation

The Complainant also claims that he was victimised.
Section 74(2) of the Act provides:
“For the purposes of this part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a Complainant,
(c) an employee having represented or otherwise supported a Complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”
There was no evidence whatsoever presented to establish that the Complainant had complained to the Respondent about discriminatory treatment on the race ground and that the treatment of him in relation to the termination of his employment was connected to that complaint. I find that the Complainant has failed to establish treatment which would constitute victimisation in terms of Section 74(2) of the Act.

4.6 Dismissal

The next matter I have to consider is whether the Complainant was dismissed because of his race as he claims that the termination of his employment was discriminatory.

The Complainant said in evidence that he was dismissed because he “wasn’t liked and he had to “assume it was because of race”. Although the issue of whether the Complainant was dismissed or resigned was initially disputed by the Respondent, it became evident and was accepted by the Respondent that the Complainant was dismissed. When the Complainant was asked if he felt that he was discriminated by any other person in the restaurant on the basis of his race including the owner who ultimately dismissed him, he said no. The conversation which was recorded between them and which was provided on the day did not provide anything to suggest that the termination of his employment was down to anything other than that he had a poor relationship with the manager.

While this relationship could have been improved if the manager had provided inter alia, a contract of employment and details of roles and responsibilities as well as the manager being aware of her obligations with regard to smoking on the premises and food preparation, I must conclude that while the manner in which the Complainant was terminated was very poorly handled, the Complainant is simply speculating that the cited grounds of race were the Respondent’s motivation for the alleged mistreatment and the Complainant has failed to establish a prima facie case of dismissal because of his race.

4.7 Harassment:

The Complainant has also claimed that he was harassed.

Harassment is defined under Section 14a as: “being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material”.
The Complainant stated that there were at least 10-12 occasions whereby he was referred to as an “English prick”. He could recall details relating to just two of these incidents and there were no witnesses to any of the occasions. The Respondent vehemently denied ever referring to the race of the Complainant in the manner which the Complainant suggested. In light of the unsupported allegations it makes the claims of harassment very difficult to substantiate
I find, therefore, that the Complainant has failed to establish that any act of harassment occurred.

Decision:

5.0 Having investigated the above complaints and based on the aforementioned, I hereby make the following decision in accordance with Section 79 of the Acts, I find that:

(i) The Respondent did not discriminate against the Complainant on the grounds of race pursuant to Sections 6(2) of the Acts;
(ii) The Respondent did not dismiss the Complainant pursuant to Section 2(1) of the Act;
(iii) The Respondent did not harass the Complainant pursuant to Section 32 of the Act;
(iv) The Respondent did not victimise the Complainant pursuant to Section 74 of the Act.

I have exercised my discretion to anonymise this decision.

Dated: 11th May 2016