ADJ-00012659

Complainant

Respondent

Parties

Callaghan La'brooy

Neville Hotels Unlimited Company t/a Kilkenny River Court Hotel

Representatives

Mr. Lars Asmussen B.L., instructed by Sean Ormonde & Co. Solicitors

Peninsula Group Limited

Act

Complaint Reference No.

Date of Receipt

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

CA-00016730-001

10/01/2018

The Complainant’s complaint pursuant to section 77 of the Employment Equality Act, 1998 – 2015 claims he was discriminated against by the Respondent on the grounds of gender, family status and race. He claims that he was discriminated against in the conditions of his employment, victimised, harassed and discriminatorily dismissed by the Respondent.

The Respondent claims that there was no discrimination and refutes the complaints of discrimination, victimisation, harassment and discriminatory dismissal lodged against it.

The following is a summary of the Complainant’s evidence.

The Complainant is an Australian national of Sri Lankan heritage who has resided in Ireland since 2006, and is a former Operations Manager with the Respondent, which is engaged in the business of the accommodations and food services. The Complainant commenced his employment with the Respondent on 29 August 2016 on a full-time basis as a Bar Manager. The Respondent furnished the Complainant with a contract of employment dated 30 August 2016. The Complainant received a gross annual salary of €38,000. The contract of employment provided that the Complainant was to undertake a probationary period of 6 months, and the Complainant’s salary: “will be reviewed after you have passed your full probation period, based on stocktake results, standards within your Department and general customer feedback”. The Complainant maintains that he performed well in his employment, was never the subject of any disciplinary complaint, investigation, finding or sanction. He said that he successfully passed all probationary periods and had an excellent working relationship with his manager at the time, Ms. A.

The Complainant said that in January 2017, he informed the Respondent of the fact of his wife’s pregnancy and his wish to avail of his statutory right to paternity leave and benefit. The Respondent approved and arranged for the Complainant to avail of such a paternity leave period commencing on 21 August 2017 and concluding on 3 September 2017. On 3 April 2017, the Complainant successfully passed his probationary period and he was promoted to the position of Operations Manager and was furnished with a new contract of employment dated 3 April 2017.

The Complainant maintains that the Respondent failed to afford him his contractual right to a salary review on successfully passing his probationary period and maintains that this amounts to discrimination. The new contract of employment provided that the Complainant’s salary would be reviewed again at the end of a 3-month trial period. The new contract also provided for a set of disciplinary rules and procedures, the purpose of which was to: ‘ensure that the organisation operates a fair disciplinary process which has regard to the rights of team members under both the Code of Practice on Disciplinary and Grievance Procedures and the Unfair Dismissals Acts. The policy is to be applied in order to assist and encourage team members to achieve and maintain acceptable standards of conduct, attendance and performance where shortcomings are identified. The policy and procedure aim, where appropriate, to be corrective rather than punitive’.

In March 2017, Ms. A left the Respondent and was replaced by Ms. B, the new General Manager. The Complainant found his working relationship with Ms B to be much more strained and found her to be unduly demanding and critical of his work. Despite this, the Complainant persisted and continued to perform well and on 3 July 2017, the Complainant successfully passed his 3-month trial period. The Complainant maintains that the Respondent again failed to afford him his contractual right to a salary review on successfully passing this trial period, which the Complainant maintains amounts to discrimination.

The Complainant said that on 13 July 2017, he attended a performance review meeting with Ms. B and Ms. C, one of the owners of the Respondent. Therein, he said that the Respondent did not raise any substantive issue relating to his performance, only raising a small number of minor issues and ways in which he could improve on his performance, such as: incident reporting; feedback reporting; checking rosters; delegation and task completion.

In late July 2017, the Complainant’s grandmother who had resided in Australia passed away and he was required to travel back to Australia to attend her funeral, leaving work on 24 July and returning to work on 4 August. The Complainant took three days compassionate leave in order to make the trip, using annual leave to cover the remainder of his leave. The Complainant maintains that Ms. B was very unhappy with the Complainant’s decision to travel to Australia for the funeral and displayed absolutely no empathy or consideration to the Complainant.

On 16 August 2017, Ms. C stated to the Complainant that he was “an expensive luggage porter”, in reference to a Duty Manager report that he had completed in August. Ms. C stated: “that’s what I pay people €9.25 per hour for”. The Complainant understood Ms. C’s reference to ‘people’ meant foreign nationals such as Egyptians and Eastern Europeans who predominantly made up the night team. The Complainant was shocked at what he perceived to be a negative and derisory comment based on his Sri Lankan heritage.

On 16 August 2017, Ms. B asked the Complainant to attend a meeting with her and Ms. C, to conduct a regular monthly review. In preparation for what he had been informed was a regular monthly review meeting, the Complainant had prepared a robust document setting out the ways in which he had sought to improve his performance, as well as additional projects that he had undertaken. Therein, at the very commencement of the meeting and before the Complainant even had the opportunity to open his document, Ms. B informed the Complainant that he was dismissed, effective immediately, as “things were not working out”. The Respondent refused to provide any reason whatsoever for the Complainant’s dismissal and on request for reasons, stated that the Complainant “wasn’t fulfilling the role”. The Complainant asked if there was another position for him within the Respondent and was told that there was not. The Complainant said he was shocked, upset and distressed at the entirely unexpected event, particularly given that he was due to commence paternity leave less than five days later and as he had never been the subject of any disciplinary action, process, warning, or negative remark and given the fact that he was not afforded any fair procedures.

The Complainant maintains that the Respondent’s decision to dismiss him was motivated by the facts that he had very recently availed of compassionate leave to attend his grandmother’s funeral in Australia, a matter inherently linked with his race, and that he was about to commence a period of paternity leave, a matter inherently linked with his gender and family status. The Complainant maintains that, as such, the Respondent’s dismissal of the Complainant amounted to a discriminatory dismissal. Furthermore, the Complainant maintains that he was not afforded his right to procedural fairness in the dismissal procedures utilised by the Respondent, a right guaranteed by his contracts of employment. The Complainant maintains that same amounts to discrimination.

The Complainant maintains that the Respondent replaced him with Ms C’s sister-in-law, as the new Operations Manager, 4 weeks’ after his dismissal.

Legal Submissions

The Comparator

The Complainant’s complaint is that he was discriminated against by the Respondent on the basis of his gender, family status and race; that there is no appropriate actual comparator available due to the intersectional nature of the discrimination complaint and the fact that the Complainant was the only person employed in his role as Operations Manager. The Complainant maintains that, as such, he is entitled to rely upon a hypothetical comparator who would be identical to him in all respects, except for the facts of his gender, family status and race. The Complainant maintains that such a hypothetical comparator would have been treated more favourably by the Respondent in the conditions of his employment in that: such a comparator would have been afforded at least one of the two salary reviews guaranteed by the contract of employment, whereas the Complainant was not afforded either; and, such a comparator would have been afforded at least some of the procedural rights guaranteed by the contract of employment in matters relating to his dismissal, whereas the Complainant was not afforded any.

The Employment Equality Acts, 1998 – 2015

Section 6(1) of the Employment Equality Acts, 1998 – 2008 (the “Acts”) provides that: “discrimination will be taken to have occurred where a person is treated less favourably than another person is, has been or would be treated in a comparable situation of the discriminatory grounds.”

Discrimination

Discrimination arises where the less favourable treatment is based on a criterion which is necessarily linked to a characteristic indissociably from the discriminatory ground (Case C – 79/99 Schorbus). In order to establish direct discrimination, it is necessary to prove that, but for the fact that the Complainant falls within one of the discriminatory grounds, he would have been treated differently. As such, it is necessary to identify an actual or hypothetical comparator, in a comparable situation who is, has, or would be treated differently.

The Complainant admits that it must discharge the burden of proof by showing that the difference in treatment is due to discrimination on one of the discriminatory grounds. Once he has made a prima facie case the burden of proof shifts to the Respondent. The rule is required pursuant to EU law and its rationale was explained in Ntoko v Citibank [2004] ELR 116:

‘This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the claimant’s power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging claimants to prove something which is beyond their reach and which may only be in the respondent’s capacity of proof.’

In Dublin Corporation v. Gibney’s EE5/1986, a prima facie case was defined as: ‘evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.’

The burden of proof which must be satisfied by the Complainant was summarised in Minaguchi v. Wineport Lakeshore Restaurant as follows: ‘It appears to me that the three key elements which need to be established by a claimant to show that a prima facie case exists are: (i) that she is covered by the relevant discriminatory ground(s), (ii) that she has been subjected to specific treatment and (iii) that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.’

The connection between the discriminatory ground or grounds and the alleged discriminatory acts is not to be established by way of motive or intention, but rather from objective facts that infer discrimination. This requirement is well captured in the following dicta from the decision in A Technology Company v. A Worker EDA0714: ‘A person with a disability may suffer discrimination not because they are disabled per se, but because they are perceived, because of their disability, to be less capable or less dependable than a person without a disability. The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discrimination motive, in the absence of independent corroboration, must be approached with caution.’

It is well accepted that there is a broad range of circumstances in which direct discrimination can arise in the conditions of one’s employment. In An Employee v. A Broadcasting Company [2012] ELR 88 direct discrimination on the ground of disability was found to have occurred in relation to the Complainant’s assignment of roles within the Respondent Company.

It is well established that discrimination based on pregnancy comes within the remit of gender-based discrimination (and may also come within the remit of family status-based discrimination). In the seminal case of Dekker v. Stichting Vormingscentru voor Jonge Volwassen (VJV-Centrum) C177/88 [1990] EUECJ R177/88 the ECJ held that discrimination on the ground of pregnancy was direct discrimination and not indirect discrimination. It is on this basis that the Complainant maintains that less favourable treatment attributable to the fact that he was due to commence paternity leave and discriminatory dismissal attributable to the fact that he was due to commence paternity leave are prohibited by the Acts on the grounds of gender and family status.

The Complainant claims that he was treated in a less favourable manner by the Respondent due to his gender, family status and race, in the conditions of his employment, in that: on two occasions he was not afforded his contractual right to a salary review on completing a 6-month probationary period and a 3-month trial period, respectively; and he was not treated with procedural fairness in dismissal procedures adopted by the Respondent, despite same being guaranteed to him by his contract of employment. The Complainant maintains that there is a temporal nexus between these less favourable dismissal procedures and the Complainant having availed of compassionate leave to attend his grandmother’s funeral in Australia, a matter inherently linked with his race; as well as a temporal nexus between these less favourable dismissal procedures and the Complainant being about to commence his paternity leave, a matter inherently linked with his gender and family status.

The Complainant maintains that same amounts to prima facie evidence of the fact that the Respondent’s less favourable treatment of the Complainant was based on his gender, family status and race.

Discriminatory Dismissal

In Trailer Care Holdings v. Deborah Healy (EDA 128), the Labour Court considered a case where the Respondent had terminated the Complainant’s employment shortly after she had informed it of the fact of her pregnancy, on the purported basis of a redundancy situation. The Labour Court held that it was entitled to look behind the cloak of redundancy in considering whether the Respondent’s termination of the Complainant was actually a discriminatory dismissal motivated by the fact of the Complainant’s pregnancy. Regarding the Respondent’s purported justification of terminating the Complainant’s employment on the basis of redundancy, the Court stated: ‘The Court is not convinced that a genuine situation of redundancy existed at the material time. While there was some restructuring in the staffing arrangements, they did not, in fact, result in the Respondent having fewer employees. At the time of the Complainant’s dismissal the Respondent was in the process of recruiting a new employee and no consideration whatsoever was given to assigning the role to be undertaken by that person to either Ms McCrann or to the Complainant. On this point the Court accepts the Complainant’s evidence that she had previously undertaken a substantial part of the job to which the new employee was assigned. The manner in which the dismissal was implemented is a serious aggregating factor in this case. The decision to dismiss the Complainant must have been in the contemplation of the Respondent for some time yet the Complainant was given no prior indication of what was to occur. She was informed of her dismissal some ten minutes before she was due to finish work and go on annual leave. She was merely informed of the decision and given no opportunity to make representations on her own behalf. In the Court’s view no reasonable employer, acting bona fide, would have behaved in such a manner. Having regard to all the evidence Court cannot accept that the decision to dismiss was taken solely on grounds of redundancy. In these circumstances the Court must conclude that the Respondent was motivated by consideration of the Complainant’s pregnancy or by matters related thereto.’

In Devereux v. Bausch and Lomb (DEC-E2005-020), the Complainant contended that she had been discriminated against due to her pregnancy in applying for a promotion shortly after returning from maternity leave. The Equality Tribunal noted that the Respondent had failed to draw up criteria for the process, did not implement a marking scheme and only one person made the decision. The Tribunal held that same fell far short of the transparency, objectivity and fairness expected in such situations and raised a prima facie case of discrimination. Similarly, in both The Rotunda Hospital v. Dr Noreen Gleeson (DEE 003 18th April 2000) and The Department of Health and Children v. Gillen (EDA 0412 27th July 2004), the Labour Court held that an unfair selection process and failure to keep records in promotion processes allowed the Court to infer that discrimination had occurred. In A Worker v. An Insurance Company (DEC-E2015-022), the Equality Tribunal made a similar finding, stating:

‘I consider that the Respondent has not repudiated the inference of discrimination.  In my view the selection process for the post of HR Manager lacked any transparent objectivity.  There was no opportunity for the Complainant to apply for the role and there was no substantive post-process feedback given to her.  In my opinion the burden of proof has not been discharged by the Respondent.  Accordingly, I am satisfied that the Complainant was discriminated against on the ground of gender in relation to her maternity leave whereby she was deprived of a promotion opportunity contrary to the terms of the Employment Equality Acts 1998 to 2008. As no separate arguments have been put forward in relation to alleged discrimination on the family status ground I do not propose to make a finding in that regard.’

In the case at hand, the Respondent, with absolutely no prior notice whatsoever and providing no tangible reasons whatsoever, summarily dismissed the Complainant on purported performance related considerations, days after he had travelled to Australia to attend his grandmother’s funeral and days before he was due to commence paternity leave. The Complainant suggested that in a manner akin to the Deborah Healy decision, one should look behind this cloak of a dismissal based on performance related considerations, and consider whether the Respondent’s actions were motivated entirely by same or by the fact that the Complainant had recently travelled to Australia or was shortly due to commence a period of paternity leave. The Complainant maintains that there should be no weight given to the Respondent’s contention that this was a performance related dismissal in circumstances where: the Respondent had recently promoted the Complainant to a managerial position; the Complainant had successfully passed both a probationary period and a trial period; and the Respondent had never subjected the Complainant to any disciplinary complaint, investigation, hearing or sanction relating to his performance or at all. Furthermore, it is respectfully submitted that the failure of the Respondent to adopt any of the dismissal procedures guaranteed by the very contract of employment further negates any contention that this was a legitimate performance related dismissal. Finally, mere days before the Complainant’s dismissal, he had travelled to Australia and mere days after the dismissal, the Complainant was due to commence a period of paternity leave. The Complainant maintains that this temporal proximity between these two events and the Complainant’s dismissal amounts to irrefutable evidence of the real reason for the Respondent’s decision to dismiss the Complainant being these leave periods, necessarily and inherently linked with his race, gender and family status.

The following is a summary of the Respondent’s evidence.

The Respondent is an unlimited company which operates a number of hotels. It confirms that the Complainant was employed as bar manager in one of its Hotels on 29 August 2016, he was subsequently promoted to Operations Manager on 3 April 2017. He was issued with the Respondent’s standard management contract and was subject to a 9-month probationary period in this role.

The Respondent said that his contracts of employment contained a grievance policy and a dignity at work policy. These policies comprehensively outlined the steps that were to be taken should an employee have a grievance with his employer, or feel that he was being harassed, sexually harassed or bullied. It also contains its disciplinary procedure.

Following the Complainant’s promotion, the new General Manager, Ms B, held a meeting with the Complainant on 2 May 2017 during which a comprehensive checklist of tasks where drawn up to be completed by the Operations Manager.

On 6 June 2017 there was a wedding held at the hotel during which several incidents occurred which later became the subject of two significant complaints – one from the Bride and Groom of the wedding and another from the wife of a guest at the wedding. The Operations Manager had ultimate responsibility for the function. At the time of the event, the General Manager was on annual leave. The Complainant did report some of the issues of the day to the Director of the group, Ms. C but did not report the full extent of the incidents of the day to the Director. The incidents were also not reported fully to higher management of the hotel, who only became aware of the incidents following a report directly from the customer. Ms. B did not become aware of the full extent of the customer’s complaint until 4 July, at which time the Bride and Groom of the wedding met with the General Manager in the hotel. Following this incident, all hotel serving staff received additional training on 11 July 2017.

At some stage prior to April 2017 the Complainant discussed taking paternity leave with the previous General Manager, Ms. A. His requested dates were agreed and put on the Respondent’s leave calendar. The Respondent said that from May 2017 onward, the Complainant’s performance began to slip. He failed to complete tasks that had been requested of him on a timely basis, despite numerous requests to do so. Ms. B held a one on one in meeting with him in relation to his performance. No improvement was observed in response to this conversation. A performance improvement plan was put in place for the Complainant on 13 July 2017. This listed a number of matters which were to be improved upon. The plan indicated that the relevant matters were to be reviewed in one months’ time.

A review of the matters listed on the performance improvement plan was carried out with the Respondent on 16 August 2017. It was noted that no improvement had been noted across any of the listed matters. As a result of the complete lack of improvement and in view of the fact that the Complainant would soon attain one years’ service, the Respondent terminated the Complainant’s employment paying the Complainant to the end of the week and also paying one week in lieu of notice. A P45 was produced which showed the Complainant’s date of cessation as 27 August as this was the date that he was paid up until. On 1 September 2017 the Complainant contacted Ms. B and Ms. C seeking to have his P45 reversed to show his cessation date as 16 August 2017 and asking that the Respondent advise Revenue that he did not leave his position voluntarily. The Respondent immediately sought to acquiesce with his request given the difficulties the existing P45 and communications with Revenue were causing the Complainant resulting in difficulty with his benefits.

The Respondent said that throughout the Complainant’s employment with the Respondent he made no complaints about any alleged discriminatory conduct or alleged harassment. He neither mentioned any alleged discrimination nor acted to oppose any such discrimination. He raised no issue as to alleged discrimination relating to his conditions of employment.

The Respondent said that the Complainant submitted his claim to the WRC on 10 January 2018 and on 5 February 2018 the Complainant’s solicitor wrote to the Respondent setting the unfair and less favourable treatment to which he had been subjected to while employed with the Respondent.

The Respondent denies that the Complainant was discriminated against by reason of his gender, family status, race or at all; whether by means of victimisation, discrimination in his conditions of employment; discriminatory dismissal, harassment or by any other means. It said that the Complainant has not, as required by Section 85A of the Employment Equality Act, established sufficient facts (of sufficient significance) in order to establish a prima facie case. He has not indicated a comparator against whom he alleges he was treated less favourably. It is assumed that the grievance the Complainant’s complaint relates to the manner in which he was dismissed. The Respondent said it can point to various employees who were of differing genders, family status and races who were dismissed in a similar manner within their first years’ service on foot of poor performance.

Legal submission

Victimisation

The Complainant’s claim is pursuant to the Employment Equality Act, as amended. Victimisation for the purposes of that Act is defined at section 74 in the following terms:

‘(2) 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 complaint of discrimination made by the employee to the employer,

Any proceedings by a complainant,

An employee having represented or otherwise supported a complainant,

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,

An employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

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 any such repealed enactment, or

An employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

The Respondent said that the Complainant did not perform any of the protected acts and was not involved in any of the circumstances specified in section 74(2). There could not therefore have been any adverse treatment as a reaction to any such act/event.

Discrimination

The Respondent is unaware as to the facts that the Complainant alleges in support of this claim. More specifically, the Complainant was issued with the Respondent’s terms and conditions, that is, he was issued with terms and conditions that were exactly the same as all other staff members at the same grades.

The Complainant did not allege any discrimination during his employment with the Respondent and did not therefore act to oppose any alleged discrimination. The first time the Respondent became aware of any alleged discrimination was when the Complainant’s complaint form was received, some 4 months after the date of his dismissal.

Ms. B was not upset that the Complainant had taken compassionate and annual leave to go to his Grandmother’s funeral. The Complainant’s Grandmother had been unwell for some time and it was expected that she would soon pass away. It had been agreed in principle even before her passing that the Complainant would be absent from work to go to Australia when it became necessary. Rosters for several weeks before her death showed ‘TBC’ next to the Complainant’s name as the Respondent waited for confirmation from the Complainant as to whether he would be in the country or not. There was no upset, anger or other negativity shown to the Complainant in relation to his leave at this time or at any time. Ms. B believes that she did extend empathy and compassion to the Complainant at this time. The Complainant’s period of compassionate leave had no bearing on his ultimate dismissal.

It was provided in the Complainant’s first contract that remuneration would be reviewed after a successful probation period had been completed. This is a standard term in the Respondent’s contracts. However, as a matter of fact, it is not the practice of the Respondent to hold salary reviews at the end of a successful probation regardless of the relevant employee’s age, family status, gender, or having availed of protective or comparative leave. An informal salary review was carried out after the Complainant had been in the operations role for 3 months. This review took place at the Complainant’s request and comprised a brief chat with Ms. B in which context it was explained that a full salary review was not possible as there was no budget for salary increases.

Harassment

Harassment is defined in the Employment Equality Acts as:

‘Any form of unwanted conduct related to any of the discriminatory grounds’

The Respondent had in place, at the relevant time, a dignity at work policy which specifically dealt with how to report harassment, and how any such allegation would be investigated. This policy is supported by the Disciplinary policy which schedules harassment as misconduct/gross misconduct. The Complainant did not at any stage allege any harassment during the course of his employment with the Respondent.

In the absence of any notification of alleged harassment, the Respondent, having put in place the dignity at work policy and related disciplinary offences, is entitled to avail of the defence at section 15 of the Employment Equality Act in that it took all steps that were reasonably practicable to prevent all of its employees from behaving in a harassing manner.

Ms. C accepts that she did say that the Complainant was ‘an expensive luggage porter’ in the performance review meeting on 16 August. This was said in the following context: in the performance review given to the Complainant in July 2017, one of the matters to be improved upon was the Complainant’s failure to delegate non-management tasks (including carrying luggage to customer rooms). In the meeting on 16 August it was noted that there had been no improvement in this regard and that as a result, the Complainant was ‘an expensive luggage porter’. This comment had nothing to do with the nationality of the Respondent’s actual night staff.

Discriminatory Dismissal

The Respondent denies that there was any strained relationship between the Complainant and Ms. B. It said that the issues raised in the meeting of 13 July 2017 were not minor performance issues. The purpose of the meeting of 16 August 2017 was to review whether or not improvements had been made. It claims that no improvements were noted.

The Respondent said that the dismissal meeting on 16 August lasted at least 30 minutes, where both Ms. B and Ms. C went through everything in detail and explained on each point what the issue was, and that no improvement had been noted. It was agreed that the Complainant’s employment was not working out. While the Respondent did dismiss the Complainant, and this was clear, they wanted to do so in a way that caused him the least embarrassment and it was agreed that it would not be described as a dismissal. The Respondent was definite that the Complainant did not produce the document outlining what he had achieved at any stage during this 30-minute meeting.

The Respondent said it does not recall if the Complainant asked about other roles that may be available. In any event, the only roles that would have been available at the time were bar staff roles which would have entailed a demotion below his previous direct reports which would clearly not have been appropriate.

The Respondent said the decision to dismiss the Complainant was based on his poor performance and his failure to take any steps to improve that performance over time. Where a staff member is underperforming, has less than 1 years’ service and has shown no improvement in performance, it is the Respondent’s practice to dismiss without the full procedure that would be afforded to staff members of more than one year’s standing. This truncated process is adopted on the basis of length of service and risk to the business and is not related to any employee’s race, family status or having availed of compassionate or protective leave.

The person who replaced the Complainant was appointed following a successful interview process with Ms. C.

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 her. If she 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 this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

Discrimination and Discriminatory Dismissal

The Relevant Law

Section 6(1) of the Employment Equality Acts 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)(a) of the Acts defines the discriminatory ground where one is a woman and the other is a man (in this Act referred to as “the gender ground”), 6(2)(c) that one has family status and the other does not (in this Act referred to as “the family status ground”) and 6(2)(h) they are of different race, colour, nationality or ethnic or national origins, (in this Act referred to as “the race ground”). The Complainant has cited a hypothetical comparator as that be more suitable because there was no other Operations Manager.

I was informed from the Complainant’s side that the Complainant’s case is in relation to gender, family status and race discrimination and discriminatory dismissal. The Respondent said that the Complainant has not adduced any evidence to establish how he was treated less favourably due to the characteristics of the said ground that can be attributed to the hypothetical comparator. His employment was terminated within his probation for poor performance.

I have carefully taken note the sequencing of the events in this case. Namely, where the Complainant commenced as a bar manager on 29 August 2016, he passed his probation and in January 2017 mentioned that he would be availing of his statutory rights to paternity leave. I note that this was accepted and was recorded on a calendar. At this point I am satisfied that the Complainant’s, family status, race and gender are fully established and known to the Respondent. The Respondent’s management team at this point in time was, Ms. A, his manager, with whom he had an excellent relationship, Mr. B who was senior manager in the Respondent and Ms. C Director and owner. Next, I note that two months later Ms. A leaves the Respondent and is replaced by Ms. B and the Complainant was approached and offered the opportunity to take a promotion to Operations Manager.

I have heard evidence from both sides, the Complainant and both Ms. B and Ms. C in relation to their perception of what happened next. The Complainant claims that he was performing well and that he believes the reason he was singled out was because of his race, gender and family status. He makes particular note to the fact that Ms. C said he was “an expensive luggage porter”, in reference to a Duty Manager report that he had completed in August and “that what I pay people €9.25 per hour for”, where the Complainant understood this reference means foreign nationals such as Egyptians and Eastern Europeans who predominantly made up the night team of porters. He claims discrimination on the grounds of race. Ms. B and Ms. C suggest that he was performing poorly, and it was getting worse. In relation to Ms. C’s comment, she said it had nothing to do with race, it was a factual comment. The Complainant was paid to be a senior manager and was required to act as a senior manager. However, on a number of occasions particularly when the Hotel was busy he ended up bringing suitcases and belongings of guests from the buses to their rooms when his skills and attention were needed elsewhere, and he was failing to understand the gravity of that.

The Complainant claims that the decision to terminate his employment was because he was about to start his paternity leave for 14 days and that the Respondent was going to be stretched while he was away, and this came into its decision to dismiss him. The Respondent said that it knew he was about to go on his paternity leave, it was scheduled for some time previously and it was preparing accordingly. However, his performance was poor and after the fall out of the wedding event it felt it had to act and decided that he had to go as there was no improvement.

On the balance of the evidence presented I find it very difficult to comprehend as to why the Complainant deems that the Respondent on 5 April 2017, knowing his race, gender and family status offered him an opportunity of advancement within the organisation and a promotion to the position of Operation Manager and then some four months later decided that it was now going to discriminate against him on those same three grounds that it was fully aware of when it had approached him and offered him a promotion. There is no evidence adduces to support his claims. I prefer the explanation proffered by the Respondent to the expensive luggage porter and his rate of pay and the roles he performed. It was not denied by the Complainant that he would find himself in this position performing the duties of a porter, because there were no staff available to help or assist him. I find that the suggestion that these comments are of a racist nature to be unsupported and unfounded. I am satisfied that the senior manager, Ms. C was aware of the Complainant’s race prior to him being offered a promotion within the Respondent and I have not been presented with any credible evidence that would suggest that the senior management team within the Respondent had a difficulty with the Complainant based on that fact.

In relation to the alleged discrimination on gender and family status grounds, again I note that the fact that the Complainant was male and had indicated as far back as in January 2017 that he intended to take parental leave in the autumn was well know and documented. I note again that those facts did not disturb the Respondent from approaching the Complainant and offering the evaluation to Operations Manager. The Complainant felt that his impending parental leave for 14 days played a role in the Respondent’s decision to terminate his employment as it would have to fill the work schedule. However, this does not seem to balance because by removing him from his position it has created a vacancy which would take much longer to fill than his actual 14-day absence while on parental leave – a full 4 weeks - and thus creating more inconvenience on the Respondent. Accordingly, I prefer the Respondent’s evidence in this matter.

The Complainant claims that the lack of review of his salary through-out his time with the Respondent was discriminatory, whereas the Respondent indicated that the ‘review’ clause in the contract was in all the contracts of senior managers but due to finances no one of the senior team had a review, the Complainant was informed of that, and that was the de-factor position. Everyone was treated the same.

The Complainant has suggested that I look behind the decision to terminate his contract as the conditions are akin to those in the Trailer Care Holdings v. Deborah Healy mentioned above. The dismissal was sandwiched between his trip to Australia on compassionate leave and him going on parental leave. It suggests that the reasons are some way linked to race, gender and family status. I am satisfied the evidence does not demonstrate that there is a nexus between these two events and the alleged discrimination.

I note the decision in Melbury Developments v Arturs Valpetters [EDA 0917] the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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 …… the burden of establishing the primary facts lay fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule”. Having considered the evidence I am satisfied to conclude that the Complainant has not established any facts what so ever to which give rise to the presumption of discrimination on the part of the Respondent. Therefore, I must state that I am satisfied that a prima facie case has not been established by the Complainant and the burden of proof did not shift in the course of the hearing. Section 85A of the Employment Equality Act 1998 has not therefore been invoked.

Therefore, I am satisfied that the complaint brought under section 77 of the Employment Equality Act, 1998 in relation to direct discrimination and discriminatory dismissal on the grounds of gender, family status and race fails.

Victimisation

The Relevant Law

Victimisation is defined by Section 74(2) of the Act as follows: -

·         For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complaint was solely or mainly occasioned by the Complainant having, in good faith—

(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),

(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,

(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or

(d) given notice of an intention to do anything within paragraphs (a) to (c).

In Determination EDA1017, Department of Defence v Barrett, this Court held that in order to make out a claim of victimisation under the Act it must be established that: -

a. The Complainant had taken action of a type referred to at Section 74(2) of the Acts (a protected act),

b. The Complainant was subjected to adverse treatment by the Respondent, and,

c. The adverse treatment was in reaction to the protected action having been taken by the Complainant.

In the case of the Public Appointments Service -v- Kevin Roddy[EDA1019]  the Labour Court held that: “To  be encompassed within the ambit of section 74(2)(b) “proceedings” must come  within the definition as defined by Section 2 under Interpretations where “proceedings” means—(a)  proceedings before the person, body or court dealing with a request or reference under this Act by or on behalf of a person, and (b) any subsequent proceedings, including proceedings on appeal, arising from the request or reference, but does not include proceedings for an offence under this Act”

Under the Act the complainant must prove that the catalyst alleged for the adverse treatment complained of came within the ambit of one of the protected acts referred to at Section 74(2) of the Acts.”

Therefore, in order to maintain a claim of victimisation within the meaning of the Employment Equality Acts it is necessary that the Complainant demonstrates the connection between his actions in relation to defending his entitlements under the Act and the adverse treatment complained of.

There were no submissions made or evidence adduced in relation to victimisation. The Complainant did not perform any of the protected acts and was not involved in any of the circumstances specified in Section 74(2) of the Act and I am satisfied there could not therefore have been any adverse treatment as a reaction to any such act/event.

Accordingly, the Complainant’s complaint under victimisation fails.

Harassment

The claims for harassment rests firmly on the comments from Ms. C that the complainant was “an expensive luggage porter”, in reference to a Duty Manager report that he had completed in August and “that what I pay people €9.25 per hour for”, where the Complainant understood this reference meant foreign nationals such as Egyptians and Eastern Europeans who predominantly made up the night team of porters. It is not disputed that the discussion took place or that the Complainant understood the point that Ms. C was making, because during the hearing the Complainant spent much time defending why he had to carry out this function in his role of a busy hotel.

In relation to the claim of harassment I note the publication from authors Bolger, Bruton, Kimber in their book Employment Equality Law 1st Ed. 2012 - Chapter 12 - Sexual Harassment and Harassment. Section 4. - Sexual Harassment and Harassment in Irish Law 12-36 where is states that,

“It is important to remember that the scope of harassment on a protected ground is an act which subjects a person to unwanted conduct on any of the protected discriminatory grounds, for example, sexual harassment, religious harassment or racial harassment. The Employment Equality Acts do not apply to a generalised bullying or harassment which has no link to the discriminatory grounds.”

And in addition, this was made clear in the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (S.I. No. 208 of 2012) which came into force on May 31, 2012.

Therefore, it is clear Section 14A(7)(i) 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.

As noted above, I am satisfied that the Respondent was unhappy with the Complainant’s performance where he would undertake duties that should be delegated to others below him in the hierarchy of the grades and this point was made to him bluntly. From strict application of the law the Complainant must establish a prima facie case of harassment on the basis that there was unwanted conduct on any of the protected discriminatory grounds, namely on this occasion, the race ground. I prefer the Respondent’s position that these comments were to testify that the Complainant was paid at a senior level and is required to delegate these types of tasks to the appropriate staff. I am satisfied that no evidence has been presented to substantiate that these comments qualify as unwanted conduct on any of the protected discriminatory grounds, as required under the Acts.

I find that the Complainant has failed to establish a prima facie case in relation to his claim of harassment. Accordingly, I find in the Respondent’s favour.　

I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts 1998 -2015. I find that:　

(i)                  the Complainant has failed to establish a prima facie case of direct discrimination on grounds of gender, family status or race in terms of Section 6(2).

(ii)                the Complainant has failed to establish a prima facie case of discriminatory dismissal on grounds of gender, family status or race contrary to Section 8.

(iii)               the Complainant has failed to establish a prima facie case of victimisation in terms of Section 74(2) of the Acts.

(iv)               the Complainant has failed to establish a prima facie case of Harassment contrary to Section 14A of the Employment Equality Acts.　

　Accordingly, his complaint fails.　

Employment Equality Acts - failed to establish a prima facie case – victimisation – harassment - discriminatory dismissal.