Employment Equality Acts
Decision No: DEC-E-2017-075
An Employee
(Represented by Suzanne Walsh BL, instructed by
Coonan Cawley Solicitors)
-v-
A Catering Company
File No: et-152697-ee -14
Date of issue: 25 October, 2017
Keywords
Employment Equality Acts - discriminatory treatment - race - working conditions - harassment -constructive dismissal - prima facie case
1. Dispute and delegation
1.1 This dispute concerns a claim by the complainant against the respondent that he was discriminated against on grounds of race in terms of Section 2 of the Employment Equality Acts and contrary to the provisions of Section 8 of those Acts in relation to his conditions of employment as well as a claim of harassment and of constructive dismissal.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 17 December 2014 under the Employment Equality Acts. On 15 February, 2016 in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh - 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. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 14 March 2017.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.
2. Summary of the Complainant’s case
2.1 The complainant states that he commenced work with a catering company which is part of a golf club in March 2011. In October 2012, the catering function was taken over by catering company K and Mr. R who is of Indian nationality was an employee with that company. The complainant submits that on his first evening working under the new management i.e. Company K, Mr. R stated to him that “Irish men were no good for working and that Irish employees were dishonest and drunkards”. The complainant states that around January 2013, he did not receive his full wages and contacted Mr. R regarding same who informed him that he would not be receiving full pay as it had not been busy the previous week. In June 2013, Mr. R took over the catering company from the previous incumbent who went into liquidation. The complainant states that once Mr. R took over the company he informed him that he did not want Irish employees “as they were no good for working”. The complainant states at this time he did not receive his correct pay nor did he receive a written contract of employment.
2.2 The complainant states that in terms of responsibilities, he was expected to open the bar and restaurant at 10.00 am and close the building at the end of shift which was midnight and sometimes much later. He states that during this time he only received one 30 minute break and did not receive proper holiday entitlements. The complainant contends that each time he returned to work after a few days off, Mr. R would accuse him of drinking too much and that these accusations were made to him at least once a month. The complainant alleges that Mr. R would accuse him of being lazy “like all the Irish” and that his most used phrase to the complainant was “I will fuck you up the arse”. The complainant states that Mr. R stated to him that he was aware the complainant was arrested in June 2014 and he said to him because the complainant was Irish and from the inner city he should know some criminals who could beat up another named Irish employee. The complainant submits that Mr. R said to him on several occasions that he cost too much money to employ and that he would get his own friends from home in to work. In this regard, the complainant states that individuals named T, J and A who were also of Indian nationality were taken on in the company but were not paid through the books and instead were given cash from the till. The complainant submits that these individuals were given his hours of work. The complainant states that he remained in the job as he had no other job to go to. The complainant states that he made complaints to Mr. L, manager of the golf club on several occasions regarding the racism he was being subjected to by Mr. R but no remedial action was taken.
2.3 In June 2013, the complainant states that he was accused of being an alcoholic and a thief by the respondent. The complainant submits that the alleged theft came in the form of a gift of €10 that he received from a member of the club for waiting on her table on a particular afternoon. The following week, the complainant alleges that Mr. R took the complainants tips and gave them to the kitchen staff. The complainant states that on 25 June 2013, he was given a sick certificate for one week from his GP with work related stress following the continuous accusations by Mr. R stating that he was an alcoholic and a thief. In August, 2013 Mr. R presented the complainant with a contract of employment. In terms of pay, the contract stated that the complainant was to be paid €12 per hour which the complainant contends was a significant reduction from his previous salary. The complainant states that he signed the contract due to his personal circumstances and financial situation. The complainant states that shortly after he signed the contract, he was informed that he was required to start work at 12 midday and that 2.5 – 3 hour breaks were implemented into his working day. The complainant states that he was unable to return home for these breaks as he lived 40 minutes from the workplace. The complainant states that the implications of the changes were that he was present at the workplace for 8 hours per day but only paid for 5 hours.
2.4 The complainant states that in August 2013, he was working in excess of 60 hours per week but did not receive correct pay due to the excessive break periods he was forced to take. The complainant states that he spoke to Mr. R about his concerns who informed him that the door was open if he wanted to leave. The complainant states that at this time he reported his concerns to the manager of the club, Mr. L but that Mr. L told him he was not in a position to assist as he said the catering company was a separate entity from the golf club. The complainant states that his working hours continued to diminish and it got to the stage that he was rostered for work on a particular day and would receive a telephone call that morning informing him not to attend as the club was not busy. At this juncture, the complainant states that he was forced to seek income supplement benefit from social welfare to supplement his income. The complainant also states that Mr. R’s behaviour towards female employees was unacceptable and intolerable. He routinely made derogatory remarks about female employees. The complainant alleges that he was called into the kitchen on many occasions by Mr. R to give his opinion on women he found whilst browsing escort service websites. The complainant states that he informed Mr. R that he found this behaviour offensive and requested him to desist from same.
2.5 The complainant states that in June 2014, he injured his wrist whilst taking a delivery of kegs for the bar. He reported the injury to Mr. R who informed him if he took time off it would be at his own expense. The complainant submits that he attended to his injured wrist and got a number of physiotherapy sessions and subsequently presented the bill to Mr. R who refused to pay same despite the fact that the injury occurred in work. In or around 4 August 2014, the complainant informed Mr. R verbally that given his hours had been reduced and substantial reduction in pay and his unacceptable working conditions, he had no option but to leave the employment.
3. Summary of the Respondent’s case
3.1 The respondent states that the complainant was a valued and respected employee of the company. Mr. R states that he was head chef of the former catering company and worked alongside the complainant until he took over the catering for the golf club in June 2013. Mr. R refutes the allegations of making racist remarks to the complainant or any other member of staff. The respondent submits that this is a remarkable statement to make given that the majority of his employees are Irish, the majority of the client base of the golf club is Irish and his wife is Irish. The respondent states that he has lived in Ireland over the past 14 years and is very annoyed that these accusations could be made about him that he says are completely without foundation. The respondent states that there are so many inconsistencies in the complainant’s submissions, in that, he says that he did not receive a contract and later he states that he signed a contract, that he only received a 30 minute break and then submits that 2.5 – 3 hour breaks were implemented. The respondent states that having reviewed the time-sheets which the complainant completed, the respondent contends that there were occasions when the complainant would receive a longer than normal break so he could watch a football match as he was a big follower of football. The respondent submits that the complainant’s pay was reduced after the respondent took over the catering contract but this was not as a result of discrimination but rather due to a downturn in business and he was trying his best to keep the business afloat. The respondent states that the previous company was sustaining losses and Mr. R stated that he felt he could make a go of the business. The respondent submits that in August 2013, it was very evident that the business was struggling and therefore to keep the company in operation, a major review was undertaken and it was decided that all employees would be paid at an hourly rate. The respondent contends that up to this point the complainant was paid a gross weekly pay of €500 and through consultation with the complainant and the respondent, it was agreed that the complainant would be put on an hourly rate of €12 and this was agreed by way of a written contract of employment which the complainant signed on 29 August 2013.
3.2 The respondent states that it caters for the client base of the golf club and as golf is dependent on fine weather, the frequency of work can vary from month to month. The respondent maintains that during the summer months, work was frequent and the complainant would earn anywhere up to €528 a week which was documented in week no. 30 of the pay records. The respondent states that in the winter months, the work would lessen as the number of golf patrons looking to use the facility would reduce significantly. The respondent states that at no time did he assure the complainant that he would earn the same money through the winter months as he did during the summer months. The respondent states that he did however inform the complainant that he would be able to supplement his wages by applying for social benefits which the complainant subsequently did. The respondent states on review of the rosters, it is very evident that the complainant whether in the winter or summer months worked the most hours each week of any employee of the respondent company. The respondent submits that on review of the rosters, the complainant was very seldom expected to work from 10.00 am until close at night but on the odd occasion where he did, the company abided by the Organisation of Working Time Act to ensure that the complainant was given his breaks during this time. The respondent refutes the reference claimed by the complainant in relation to the three individuals purported to be his friends who were “working under the counter”. The respondent states that one of these individuals was employed by the company and it was on a part-time basis only and it occurred during very busy periods and this person was paid as normal by credit transfer.
3.3 The respondent states that the complainant is completely misrepresenting the incident in relation to the complainant taking a €10 tip from a client of the golf club where he submits that the respondent accused him of stealing. The respondent states that the policy of the company is that all tips/gifts are shared equally. The respondent states that some of the other staff came to him objecting to the complainant taking a tip which should have been shared out among the staff as is the policy. The respondent submits that he was never made aware by the complainant that he had attended a number of sessions with a physiotherapist and did not produce any medical bills to him in this regard. The respondent states that if the complainant was involved in a work related injury, he would have informed his insurance company immediately who would have dealt with the issue. The respondent submits that the complainant has a lot of defamatory statements in his submissions which he totally refutes in regard to escort sites, details regarding an incident in Blanchardstown in June 2014 and the respondent’s alleged behaviour towards female employees. The respondent submits that it is an attempt to paint a disturbing character profile of the respondent which he totally rejects. The respondent refutes the allegations of discrimination against the complainant on grounds of race and completely denies accusing the complainant of being an alcoholic and a thief. The respondent denies that the complainant was constructively dismissed from his employment.
4. Conclusions of Equality Officer
4.1 I have considered all the evidence both written and oral presented to me. 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 in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a previous Determination, the Labour Court1, whilst examining the circumstances in which the probative burden of proof operates, held as follows –
"Section 85A of the Acts 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.”
4.2 The issues for decision by me in this case are (i) was the complainant discriminated against on the race ground in relation to his conditions of employment (ii) was he subjected to harassment and (iii) was the complainant constructively dismissed from his employment. Having examined the evidence given by both sides, I note that the respondent worked alongside the complainant in the previous business which went into liquidation and subsequently the respondent took over the catering function of the golf club. It would appear, at this stage, given the losses being sustained by the business, a review was undertaken and a decision was taken to place all employees on an hourly rate of pay and employees were given a contract of employment for signature. The contract also included information on breaks being implemented in line with the Organisation of Working Time Act. I note that the changes were implemented in order to keep the business afloat and the changes pertained to all employees the majority of which were Irish nationals. From the rosters that were submitted at hearing, all employees including the complainant were required to take their allocated break times in line with the Organisation of Working Time Act. In the circumstances, therefore, I can find no prima facie case of discrimination against the complainant on race grounds with regard to this matter.
4.3 Section 14A (7) of the Act defines harassment as any form of unwanted conduct related to any of the discriminatory grounds and being conduct which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. 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 he was subjected to harassment by Mr. R in reference to Irish persons being lazy and being dishonest and drunkards and that he was very offended by these comments which he says were made on a regular basis. The complainant stated that he had reported these incidents to the manager of the golf club Mr. L but was informed by Mr. L that the catering function was a separate entity and that there was nothing he could do.
There was a great deal of conflict between the evidence of both parties. There were many allegations made by the complainant, some of which were of a very serious nature, detailed at hearing in relation to sexual harassment of female staff by Mr. R during the complainant’s tenure of employment with the respondent. At the hearing, the respondent brought a female witness who works for the company who made allegations about the complainant stating that he was ageist, misogynistic and was racist in the workplace. The complainant following the hearing sent in a statement on behalf of a former male employee backing up the complainant’s version of events, in that, he alleged the respondent subjected staff including the complainant to harassment and bullying behaviour and racism on an ongoing basis.
4.4 Where a person suffers unlawful harassment in the course of his/her employer employment, the Acts provide that the employer is fixed with liability for the harassment. However, an employer can avoid liability by making out the defence provided for at section 15 (3) ‘that the employer took such steps as were reasonably practicable to prevent the employee (a) from doing that act, or (b) from doing in the course of his or her employment acts of that description. The complainant gave testimony in relation to the racial abuse he was subjected to by Mr. R with reference to Irish persons being lazy, dishonest and drunkards. The complainant states that when he informed Mr. R that he found the comments offensive and requested him to desist from same, Mr. R, told by him “well, you know where the door is”. I note that the respondent did not have a bullying and harassment policy in place. Having adduced all the evidence in this matter, I am satisfied that the complainant gave cogent evidence in relation to the racist comments he was subjected to by Mr. R. This type of language and behaviour is not acceptable in any workplace. I find the complainant to be a credible witness in this regard. I note that he brought the complaints to the attention of the overall manager of the club, Mr. L. However, he was informed by Mr. L that as the respondent company was a separate entity from the golf club, he was not in a position to act on these complaints. Having adduced all of the evidence regarding the claim of harassment, I am satisfied that the complainant was subjected to a hostile, degrading and intimidatory work environment. In the circumstances, I find that the complainant has demonstrated a nexus in relation to his treatment in employment and his race and I am satisfied that he has established a prima facie case of discriminatory treatment in this regard which the respondent has not rebutted.
4.5 In relation to the complainant’s claim of constructive dismissal, I note that the complainant, at the hearing stated given his working conditions and the dramatic reduction in hours and consequent substantial reduction in salary, he sought employment elsewhere and got work immediately thereafter having left the respondent company. Having carefully adduced the evidence on this matter, in my view, the complainant has not demonstrated a prima facie case of constructive dismissal on the grounds of his race and therefore this element of his complaint fails.
5. Decision of the Equality Officer
5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts.
5.2 I find that the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2) of the Acts and contrary to the provisions of section 8 of the Acts in relations to his conditions of employment.
5.3 I find that the complainant was subjected to harassment on grounds of his race by the respondent contrary to section 14A of the Employment Equality Acts.
5.4 I find that the complainant was not subjected to constructive dismissal by the respondent on grounds of race.
5.6 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2015; I hereby order that the respondent pay the complainant €8,500 by way of compensation for the distress suffered by him as a result of the harassment. This award is not in the form of remuneration and is therefore not subject to the PAYE/PRSI code. I order that the respondent reviews its policies and procedures and implement a Dignity at Work policy within its workplace.
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Valerie Murtagh
Equality Officer/Adjudication Officer
25 October, 2017
1 Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64.