ADJ-00010659

Complainant

Respondent

Anonymised Parties

A Chef Manager

A Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00014151-001

22/Sep/201722/Sep/2017

The complainant, referred a complaint under the Employment Equality Acts on the 22nd of September 2017 alleging discrimination on grounds of race in relation to his conditions of employment.  

2.2          In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 and under the Equal Status Acts, 2000-2015, the Director delegated the 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 III of the Equal Status Acts, 2000-2015.   I proceeded to a Hearing on the 15th of March, 2018.  

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

The complainant submits that

He was bullied by his manager Mr. P,

He was given no support in a job that he was not fully familiar with,

His work was criticised at performance meetings,

His level of English was criticised,

He was dismissed from his job,

This treatment took place due to the fact that the complainant is Romanian.

The respondent submits that

The complainant was employed by them as a Chef Manager from 14 November 2016 to 11th of August 2017

The complainant commenced his employment on a six month probationary basis

On 28th of March 2017 a probationary review meeting took place and many issue were raised in respect of the complainant’s performance,

It was agreed that performance would be reviewed again on 18 April 2017,

On 12 May 2017 the claimant probation was extended by 3 months due to performance issues,

On 11 July 2017 a further performance improvement plan meeting took place,

On 4th of August 2017 the complainant attended a final probationary review meeting and was advised that his employment was being terminated.

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 his conditions of employment.

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.

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)…..”

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… “

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 Romanian. 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.

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”.

6Discriminatory treatment

The complainant advised the hearing that he was treated differently on grounds of race by his manager Mr. P. The complainant stated that the previous manager had been happy with him but that he began to have problems when Mr. P became his manager. The complainant told the hearing that the client was happy with the food he made so he didn’t know why everyone was not happy with him. The complainant told the hearing that Mr. P had a number of problems with him and that these issues were raised in his evaluation meetings. The complainant stated that everyone else was happy with him but added that his English was not very good and also that he was not very good on the computer and stated that he needed help with this.    The complainant told the hearing that his probation was extended for a further three months in March 2017 due to the fact that his manager Mr. P was not happy with him.

The complainant during the hearing stated that he needed help with the job and that he was not very good at the part of the job involving a computer.

The respondent advised the hearing that the complainant was employed as a Chef Manager and commenced his employment in November 2016 on a probationary period of six months. The respondent told the hearing that this role involved significant managerial responsibilities, regular reporting , payroll, revenue rostering and the monitoring of stock levels as well as traditional chef functions.

The respondent told the hearing that a number of issues had arisen with the complainant’s performance such as reporting deadlines missed or inaccurate, stocktakes had not been made and emails from account technicians had been ignored by the complainant. These issues were raised at the complainant’s review meeting on 28th of March 2017. The complainant’s manager at this meeting identified a number of areas for improvement and the complainant was advised that he would be provided with refresher training on any areas he felt he needed it.

The respondent advised the hearing that it was agreed was agreed that performance would be reviewed again on 18 April 2017. Documentary evidence was provided by the respondent. The review meeting took place on 18th of April as agreed and as the required improvements had not taken place the complainant was given a performance improvement plan. meeting

By email dated 2nd of May and through a number of conversations on the phone and in person the complainant was requested to attend refresher training. The complainant failed to attend the training. The respondent advised the hearing that on 12 May 2017 the claimant probation was extended by 3 months due to performance issues.

The respondent stated that a further performance improvement plan meeting took place on 11 July 2017 and a number of performance issues were still of concern to the respondent. These were again raised with the complainant and a follow up email was sent to the complainant on 12 July urging him to take corrective action before the end of his probationary period. The respondent told the hearing that improvements were not made and on 4th of August the complainants final probationary review meeting took place where he was advised that his employment was being terminated with one weeks’ notice. The respondent provided documentary evidence of these performance improvement plans and review meetings. The complainant at the hearing did not dispute this. On 4th of August 2017 the complainant attended a final probationary review meeting and was advised that his employment was being terminated.

The complainant has submitted that he was treated less favourably on grounds of his race. The respondent has submitted that there were a number of concerns with the complainant’s performance and that these concerns were raised with the complainant at his probationary meetings. In addition, it is clear from the evidence adduced that the respondent raised these issues with the complainant and gave him an opportunity to improve by preparing and implementing performance improvement plans.  In addition, it is agreed by the parties that the complainant’s probationary period of 6 months was extended by a further three months in order to give him an opportunity to improve his performance before the respondent eventually made a decision to dismiss him for performance issues.     Based on the totality of evidence adduced I can find no evidence to support the claim that the complainant was treated less favourably by the respondent due to his race. Accordingly, I am satisfied that the complainant was not discriminated against on grounds of race by the respondent.  

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 –

(i)                  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 these matters.