DEC-E/2017/061
PARTIES
Ahammed Ahsan
(Represented by Una Glazier Farmer B.L. instructed by Terence F. Casey and Co. Solicitors)
Vs
Emardress Ltd t/a The Towers Hotel Killarney
(Represented by Clodagh Brick B.L. instructed by Malone Hegarty Solicitors)
FILE NO: Et-159672-ee-15
Date of issue: 10th of August, 2017
Dispute
1.1 This dispute involves a claim by a complainant that he was discriminated against by the respondent on the grounds of race, in terms of section 6 (2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2015. There is also a claim of discriminatory dismissal as well as a claim for Equal Pay on the ground of race.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2015 to the Equality Tribunal on the 8th of September, 2015.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case on the 16th of January, 2017 to me, Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 21st of February, 2017. Final information in respect of this matter was received on the 24th of March, 2017.
2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
3. Summary of complainant’s case
3.1 It is submitted that the complainant
was born in Bangladesh in 1971 and in March 2002 came to Ireland and commenced employment with the O’ Donoghue – Ring Hotel Group after obtaining the relevant work permit,
the Complainant worked as a Kitchen Porter for four years until he was promoted to the position of Commis Chef under the direction of Chef J, Executive/Head Chef and later Chef S,
during this time, he had a great working relationship with management and his colleagues in the Respondent hotel,
however, the Complainant did not receive a wage increase as a result of his promotion or his long service despite requesting a wage review on several occasions from the Head Chef, HR Manager, Ms. M or General Manager, Mr. C,
the complainant also did not receive Equal Pay to that of his named comparators and this was due to his race,
in or around March 2015 a new Executive/Head Chef, Chef P, was appointed and following this the complainant’s working conditions deteriorated,
the complainant in August 2015 was transferred to another Department in another hotel,- this transfer was to an accommodations post while the complainant had previously worked as a commis chef.
4. Summary of Respondent’s case
4.1 The respondent submits that
- it wishes to refute in its entirety the claims of discrimination on grounds of race and/or nationality made by the Complainant,
the Respondent denies in full all complaints and allegations made by the Complainant,
all work practices engaged by the Respondent applied equally to all members of staff and were not discriminatory in any manner whatsoever,- the complainant received numerous wage increases during his employment,
the Complainant, a native of Bangladesh, commenced his employment with the- Respondent in or about April 2002. The Respondent Company operates the Kilarney
- Towers Hotel, Town Centre, Killarney in the County of Kerry. The hotel employs 95
- members of staff, of varying nationalities, to include persons from Bangladesh, Malaysia,
- Poland, Slovakia and Ireland among others.
the Complainant was employed initially by the Respondent as a Kitchen Porter in the
Killarney Towers Hotel and was duly furnished with a contract of employment and a staff- handbook which sets out an employee grievance policy,
- in or about 2006, the Complainant expressed a desire to become a Chef and he was enrolled on the Total Emersion Professional Cookery leaming program at the Tralee Institute of Technology. The respondent advised the hearing that the fee to undertake the said course was approximately €1500, which fee was discharged by the Respondent,
the Complainant failed to complete the course and withdrew from the course before completing it,
in August 2015 the complainant requested a move to any other department in any of the hotels operated by the group, the Respondent facilitated this request, and the Complainant was advised that a full time Accommodation position had become available in the Killarney Avenue Hotel, a sister hotel of the Respondent herein,- the Complainant immediately took up the position that he had requested, but having
worked for just two days in it, he advised the Respondent that he no longer- wished to work in Accommodation and wanted a Commis Chef position.
5. Preliminary Issues
5.1 The complainant in advance of the hearing had submitted a complaint of Discriminatory dismissal. The complainant at the hearing indicated that he no longer wished to pursue the complaint of Discriminatory Dismissal but was instead pursuing a claim of Unfair Dismissal under the Unfair Dismissals Act which he had also submitted at the time of his complaint. A number of the claims advanced in the original complaint form were withdrawn at the hearing of this matter. The complainant advised the hearing that the matters he wished to pursue under the Employment Equality Acts were confined to complaints of discrimination on the ground of race in respect of a failure to provide him with a pay rise following promotion and a claim of entitlement to Equal Pay with a named comparator. The complainant did not pursue the discriminatory dismissal at the hearing.
6. Conclusions of the Equality Officer
6.1 The issues for decision by me now are whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 in respect of a failure to provide him with an increase in pay when he was promoted from Kitchen Porter to Commis Chef. There is also a claim in respect of Equal Pay with a named comparator.
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 at the Hearing.
6.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..”
6.3 Section 6(2) (h) of the Acts defines the discriminatory ground of race as follows – “as between any two persons ….. that they are of different race, colour, nationality or ethnic or national origins… “
6.4 Thus the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because he is a Bengali national. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts.
6.5 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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”.
6.6 Discriminatory treatment
6.6.6 The complainant advised the hearing that he was treated differently on grounds of race in respect of the respondent’s failure to award him an increase in pay following his promotion from Kitchen Porter to Commis Chef. The complainant advised the hearing that he had started work as a Kitchen Porter with the respondent in 2002 and that he had since then been promoted to Commis Chef but had not received any wage increase in accordance with his promotion, the complainant submits that this amounts to less favourable treatment on grounds of his race. The complainant advised the hearing that he had at the commencement of his employment been earning a wage of about £180 per week which increased to €280 after the euro came in. The complainant advised the hearing that this eventually increased to €374.40 per week or €9.36 per hour. The respondent advised the hearing that the complainant was also in receipt of a meal allowance which brought his hourly wage up to €9.93 an hour. The complainant did not dispute this. The complainant advised the hearing that he was promoted from Kitchen Porter to Commis Chef but stated that he received no increase in wages as a result of this promotion and that he continued to be paid as a Kitchen Porter. The complainant has submitted that this amounts to discrimination on grounds of his race.
6.6.7. The respondent advised the hearing that the complainant was employed by them since 2002 as a Kitchen Porter. The respondent advised the hearing that the complainant had been paid in accordance with the pay scales for his role as Kitchen Porter and that he had in the years since commencing his employment received a number of increases in his wages. The respondent advised the hearing that the complainant had worked for several years as a Kitchen Porter and stated that in or about 2007, the Complainant had expressed a desire to become a Chef and he was enrolled on the Total Emersion Professional Cookery leaming program at the Tralee Institute of Technology. The respondent advised the hearing that prior to embarking on the two year course the complainant was required to hold a stamp 4 in respect of his work permit which the respondent applied for by writing to the Department of Justice in July 2008 following which a Stamp 4 was provided in respect of the complainant. The respondent advised the hearing that the fee to undertake the said course was approximately €1500, which fee was discharged by the Respondent.
6.6.8 The respondent advised the hearing that the Complainant was supported in full by the Respondent in his efforts to learn, train and/or up skill and was indeed mentored by the head chef in his place of employment, who supplied him with pictures and recipes and who showed the Complainant how to make the finished product. The respondent submits that the complainant was actively encouraged to write the ingredients and method of preparing the food, in his own native tongue and was given additional training by other members of staff.
6.6.9 The respondent advised the hearing that notwithstanding the support and assistance of his employer, the Complainant failed to complete the Cookery course and withdrew from the course before completing it. The respondent advised the hearing that the complainant at the time stated that he found the course very difficult. The complainant at the hearing denied that he withdrew from the course voluntarily but stated that the respondent advised him to withdraw. The respondent denied this stating that it had already paid the cost of the course and stated that it was in their interests for the complainant to complete the course it had paid for. The respondent stated that had the complainant completed the course and progressed to Chef de partie then he would have received an increase in wages in accordance with his progress and in line with his specialisation, increased qualifications and skill set. Overall on balance I prefer the evidence of the respondent in relation to this matter.
6.6.10 The complainant advised the hearing that he should have got a raise as he had been doing very well at work and that there were no problems with his work until the arrival of a new Head Chef, Mr. P in October 2014. The complainant advised the hearing that Mr. P had put the complainant under a lot of pressure at work and was always telling him to speed up with his work. The complainant added that Mr. P had given him additional tasks to do which were more appropriate to a Kitchen Porter and that Mr. P had openly stated that he didn’t like the complainant.
6.6.11 The respondent advised the hearing that Mr. P had been a hard taskmaster compared to previous Head Chefs and that following his appointment Mr. P had given each staff member
Job descriptions outlining their daily tasks. The Respondent stated that following the appointment of the new head chef all staff members working in the kitchen, including the Complainant had received extensive training. The Complainant attended a HACCP training program in February 2015. The respondent stated that under the guidance of Head Chef P the Complainant was also given one full weeks training on the starter section and one full weeks training on the breakfast section. The respondent went on to state that there had been issues raised with the complainant in respect of his progress at work and that the requirement to improve the speed of his work had been discussed with the complainant at an appraisal meeting in August 2015. The respondent also stated that the complainant’s interest in his job seemed to have waned that he had many long periods of absence from work on sick leave. The respondent went on to state that the complainant in August 2015 even requested a move from his job in the Kitchen to any Department in any of its hotels, which the respondent facilitated. The respondent stated that the complainant would have received a further wage increase had he completed the cookery course and progressed his development as a Chef.
6.6.12 The respondent advised the hearing that its staff complement is composed of many different nationalities it stated that the the hotel employs 95 members of staff, of varying nationalities, to include persons from Bangladesh, Malaysia, Poland, Slovakia and Ireland among others. The respondent advised the hearing that it had at all times treated the Complainant in the same manner as all other employees and applied its policies relating to promotion and pay increases consistently and equally with all members of staff of varying nationalities. The respondent went on to state that the Complainant in this instance did not show the necessary progression and stated that he made no attempt to further his career or income opportunities within the employment of the Respondent.
6.6.13 I am satisfied from the totality of the evidence adduced that the complainant was not discriminated against by the respondent on the ground of race in respect of a failure to provide him with a salary increase when he was granted a move from Kitchen Porter to trainee Commis Chef following his expression of interest in learning to become a Chef.
6.7 Discriminatory Treatment in relation to Equal Pay
6.7.1 The complainant has submitted that he was being paid at a lower rate than employees B and C who were also employed as Commis Chefs with the respondent organisation and that this was due to his race.
6.7.2 Section 29 (1) of the Act provides that where A and B represent two people of the different nationalities it shall be a term of the contract under which A is employed that A shall at any time be entitled to the same rate of remuneration for the work A is employed to as B who, at that or any other relevant time, is employed to do like work by the same or associated employer. The existence of like work between a complainant and comparator is a necessary condition to any entitlement to equal pay under the Act. Therefore I will first examine whether like work exists between the complainant and his named comparator – Mr. N.
6.7.3 Like work is defined in Section 7 of the Act as follows:
…in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if-
(a) both perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work
(b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or
(c) the work performed by one is equal in value to the work performed by the other having regards to such matters as skill, physical or mental requirements responsibility and working conditions
6.7.4 In addition Section 29(5) of the Act provides that an employer can, on grounds other than the discriminatory grounds, pay different rates of remuneration to different employees.
6.7.5 The complainant has submitted that he is entitled to Equal Pay with his comparators. The issue for decision by me now is, whether or not, the complainant performs “like work”, in terms of section 7 of the Employment Equality Acts, 1998 to 2015, with his comparators and is therefore entitled to the same rate of remuneration as those comparators in accordance with section 29(1) of the Acts. 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 at the Hearing.
6.7.6 The complainant advised the hearing that he was entitled to equal pay with a named comparator. The complainant advised the hearing that he had started work as a Kitchen Porter with the respondent in 2002 and had been earning a wage of £180 per week which increased to €280 per week when Euros came in. The complainant advised the hearing that had eventually increased to €374.40 per week or €9.36 per hour. The respondent advised the hearing that the complainant was also in receipt of a meal allowance which bought his hourly wage up to €9.93 an hour. The complainant did not dispute this. The complainant advised the hearing that he was later promoted from Kitchen Porter to Commis Chef but stated that he did not receive the same pay as others in the same role. The complainant has submitted that this amounts to discrimination on grounds of his race.
6.7.7 The complainant when questioned at the hearing as to the amount other Commis Chefs were earning replied “I have no idea”. The complainant advised the hearing that another staff member Mr. N who worked in a sister hotel, the Plaza hotel as a Kitchen Porter Supervisor was earning more than €400. The complainant in citing Mr. N as a comparator acknowledged that Mr. N was a Kitchen Porter Supervisor.
6.7.8 In examining the case advanced under the Equal Pay claim the complainant has stated that he was being paid less than another staff member who performed the same role and that this was due to his race. The complainant in citing his comparator named Mr. N a Kitchen Porter Supervisor in another hotel within the respondent group. The complainant did not provide details of Mr. N’s race at the hearing. The respondent at the hearing gave evidence that Mr. N was paid more than the complainant and that this was due to the fact that Mr. N was employed as a Kitchen Porter Supervisor. The respondent submitted that the difference in pay was due to the fact that Mr. N was a Supervisor with greater responsibilities than the complainant. The complainant at the hearing did not dispute the respondent’s evidence that Mr. N was in fact employed in a Supervisor role. The respondent also advised the hearing that the complainant’s role was that of trainee Commis Chef and stated that he had not made the progression to Chef de partie as he had failed to complete the course in which he had been enrolled and he had failed to make the necessary progression within his role. I am satisfied from the totality of the evidence adduced that Mr. N was being paid more than the complainant due to the fact that he was Supervisor with greater responsibilities.
6.7.9 The complainant at the hearing also submitted that he was being paid less than a hypothetical comparator employed in the same role and that this was due to his race. I cannot accept a hypothetical comparator in respect of an equal pay claim as an Equal Pay claim must be be grounded on a real comparator. In support of this finding I refer to the Labour Court case of G4S Secure Solutions (IRE) Limited and Noel Cantwell EDA1638 the Labour Court stated that:
“It is settled law that an Equal Pay claim must be grounded on the differences in remuneration of the complainant relative to that of a real as opposed to a hypothetical comparator with whom he or she is engaged on like work. This was made clear in Brides -v- Minister for Agriculture [1998] 4 IR 250.”
6.7.10 Based on the totality of the evidence adduced in relation to this matter I am satisfied that the complainant has failed to establish a prima facie case of discrimination on grounds of race in respect of an entitlement to equal pay with a named comparator Mr. N. Accordingly, I find that the respondent did not discriminate against the complainant on the race ground contrary to section 29(1) of the Employment Equality Acts in relation to an entitlement to Equal Pay.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015 I issue the following decision. I find –
that the complainant was not discriminated against by the respondent on the ground of race in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 in respect of a failure to provide him with an increase in pay when he was promoted from Kitchen Porter to Commis Chef, and
that the complainant was not discriminated against by the respondent on the ground of race contrary to section 29(1) of the Employment Equality Acts in relation to an entitlement to Equal pay with a named comparator.
_____________________
Orla Jones
Adjudicator/Equality Officer
10th of August 2017