Complainant

Respondent

Parties

Aoife Nadia Martin

Home Fare Services t/a KSG

Representatives

Self

Robert Jacob; Advokat Compliance Limited.

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-00016967-001

22/01/2018

The Complainant in this case was offered a trial day by the Respondent company at the end of which it is alleged she was informed that she would not be offered a position and informed “Unfortunately, I have no intention of hiring you because I can’t have two girls working in the kitchen as there isheavy lifting involved”.

The Complainant submitted a complaint to the Workplace Relations Commission (WRC) on 21/01/2018.

1.       The Complainant in this case has a friend who is an employee of the Respondent and on the evening of 18/10/2017 she (the Complainant) was informed by this friend that her manager in the Respondent company had asked her if she knew anyone who was looking for work, the friend informed the manager that she did and he suggested that they email a cv to his assistant.

2.       The Complainant emailed her cv to the assistant manager at 8.20pm.

3.       At 8.51pm the Dining General Manager rang the Complainant and asked would she be willing to come in the following day to complete a trial day. The Complainant agreed and started at 8.30am the following day, 19/10/2017.

4.       The Complainant worked all day on 19/10/2017, as agreed and at 5.20pm she was called to the office by the Dining General Manager who informed her “Unfortunately, I have no intention of hiring you because I cannot have two girls in the kitchen as there’s heavy liftinginvolved”. The Dining General Manager then told the Complainant to get changed and go home.

5.       The Complainant then heard nothing from the Respondent until she emailed a week later enquiring when she would receive payment for the day she had worked. The Complainant received no response.

6.       The Complainant sent a second email a week later and received a response from the Dining General Manager – “As it was a trial day it is unpaid. If you were successful in getting the job we would then pay you for this”.

7.       On 07/11/2017 the Complainant’s mother rang the Group’s HR Department to make a complaint and was dealt with by a HR Generalist who was extremely helpful and asked the Complainant’s mother to outline all the details in an email and also to forward all email correspondence between her daughter and the Dining General Manager and his assistant in order that she could conduct an investigation into matters. The HR Generalist also arranged prompt payment to the Complainant for one day’s pay and a P45.

8.       The Complainant received no further communication from the Respondent.

Complainant’s case.

         I.            The Dining General Manager was aware I was a female before he offered the opportunity of a trial day.

       II.            The Dining General Manager discriminated against me because I am a female.

     III.            The Dining General Manager exploited me for free labour on the very same basis.

    IV.            To date I have not heard anything from the Respondent in relation to this matter.

1.       The Complainant in this case underwent a trial day with the Respondent on 19/10/2017. It was decided at the end of her trial that she would not be offered any further employment with the Respondent as no suitable vacancies were available to her.

2.       The Respondent company currently employ 1095 employees, 626 (57%) are female.

3.       The Respondent company has a detailed policy on Equality and Diversity which provides as follows:

“The purpose of this policy is to ensure that all employees and perspective employees are selected, promoted and treated on the basis of their abilities and merits only and according to the requirements of the job. It creates a foundation for a workplace culture that is characterised by equality in every aspect of its business and allows for procedures that effectively deal with any deviance from this goal. It also demonstrates the commitment that KSG has to promoting equality and preventing discrimination”.

4.       On 19/10/2017 the Complainant, at the request of the Dining General Manager, underwent a trial day at one of the Respondent’s units as a catering assistant / kitchen porter.

5.       At the end of the trial day the Complainant was informed by the Dining General Manager that he did not have a position available for her but that he would enquire as to whether there was an alternative role available for her within the unit. Unfortunately, there was no such role available for the Complainant.

6.       It is strenuously denied that any comment was made by the Dining General Manager to the effect that;

“Unfortunately, I have no intention of hiring you because I have two girls in the kitchen as there’s heavy lifting involved”.

7.       On 26/10/2017 the Complainant sent an email to the Respondent to enquire about being paid for the day in question. She did not raise any concerns of alleged gender discrimination by the Dining General Manager in relation to her inability to secure employment with the Respondent.

8.       On 06/11/2017 the Complainant’s mother contacted the HR Manager and alleged that the Dining General Manager had informed the Complainant that she would not be getting a role with the Respondent as a result of her gender. This was the first occasion in which any such allegation had been made. The HR Manager also sought further confirmation from the Dining General Manager regarding any conversation between him and the Complainant on 19/10/2017.

Burden of Proof.

Section 85A (1) of the Employment Equality Act 1998 provides as follows:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary”.

Cases quoted:

·         Southern Health Board v Mitchell DEE 1/2001.

·         Cork City Council v McCarthy EDA 21/2008.

Summary

         I.            The Respondent has a detailed Equality and Diversity Policy in place which seeks to prohibit any form of discrimination under the Employment Equality Acts.

       II.            The majority of the Respondent’s workforce are of the female gender. Therefore, the ratio of female to male employees within the Respondent workforce does not support the proposition that it discriminates against the female gender.

     III.            It is respectfully submitted that no conversation took place with the Complainant that she would not be offered employment on the grounds of her gender.

    IV.            It is respectfully submitted that the Complainant has not established facts from which it can be presumed that the principle of equal treatment has not been applied to her.

      V.            In light of the above, the Respondent would respectfully ask that the Adjudication Officer would dismiss the Complainant’s case as being without merit.

The Respondent representative has pointed to Section 85A of the Employment Equality Acts which sets out the burden of proof necessary in claims of discrimination. It provides “Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary”.

It requires the Complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that the Complainant in this instant case has been discriminated against on the grounds of her gender. It is only when she has discharged this burden to the satisfaction of the Adjudication Officer that the burden shifts to the Respondent to rebut the prima facie case of discrimination.

It is accepted by all that a conversation took place at 5.20pm on 19/10/2017 between the Complainant and the Respondent’s Dining Service Manager. The content of this conversation is being disputed. There are no witnesses to corroborate the evidence in relation to the allegation of gender discrimination.

In reaching my decision I have taken into consideration the written submission from the Respondent and the oral submission from the Complainant as well as the evidence given by witnesses at the hearing.

The Complainant has failed to establish, in the first instance, a prima facie case of discrimination and it is for this reason alone that the complaint fails.

Complaint fails – please see above.

Employment Equality Acts, gender discrimination.