ADJ-00016284

Complainant

Respondent

Parties

Henry Kan

Merchant's Arch Restaurants Company Limited

Representatives

Lisa Conroy Peninsula Group

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-00021118-001

13/08/2018

The Complainant is seeking adjudication by the Workplace Relations Commission under section 77 of the Employer Equality Act 1998 and has submitted he was discriminated against by his employer by reason of his race and further the Complainant alleges his employer discriminated against him by victimising him (CA-00021118-001).

The Complainant is originally from the Ivory Coast and moved to the United Kingdom in or around 1996.

The Complainant arrived in this jurisdiction on or about the 9th May 2018 and commenced employment with the Respondent Company on the 9th June 2018 as a Kitchen Porter. The Complainant was scheduled to work twenty hours per week at a rate of €X per hour initially.

On or about the 30th June 2018 at approximately 11:30am, as the Complainant was working in the kitchen whereupon the Head Chef entering the kitchen, told the Complainant to get out of his way and proceeded to pour hot water on the grease trap, under the dishwasher, which was full. The Complainant stated at this juncture, the Head Chef uttered the phrase “dirty bastard”. The Complainant then told the Head Chef that he had not noticed that the grease trap was full and the Head Chef responded with some colourful language indicating that the Complainant should open his eyes or words to that effect.

Upon the conclusion of the Complainants shift of service, the Complainant indicated to the Head Chef that he did not appreciate the words used earlier in the day and found them personally insulting. The Head Chef responded by saying that he should not take these comments personally and the unsavoury language used was directed at the various workers from the night before who had allowed the grease trap to overflow. The Complainant effectively rejected this explanation and decided ultimately not to return to this employment. The Complainant stated he was unaware of any grievance procedure.

On the 2nd of July 2018, the Complainant submitted his resignation, by email, citing the aforementioned incident as his reason for terminating his employment. Following an exchange of emails and texts between the parties, the resignation of the Complainant was accepted and his employment ended on the 15th July 2018.

In the course of his evidence, the Complainant expressed his disappointment in the manner in which the Respondent Company and in particular the Head Chef had disregarded his person and that he considered the workplace environment was hostile to him and he could not remain in this employment.

The Complainant upon returning to the United Kingdom took up employment as a stock controller on or about the 3rd August 2018.

This Complaint was received by the Workplace Relations Commission on the 13th August 2018.

In the circumstances of this case, the parties agree with the initial facts in relation to the employment of the Complainant.

The Respondent Company operates a bar and restaurant and at the relevant time of the incident, the subject matter of this Complaint, the Respondent Company employed forty one staff of mixed nationalities (39% Irish, 31.7% Brazilian and other nationalities).

The Respondent Company submitted that the relationship between the parties was a happy one until the 30th June 2018 when the Complainant left his employment. The Respondent Company’s version of events is that at approximately 11:30am the Head Chef noticed the grease trap under the dishwasher overflowing and the Complainant standing on the mat and the grease. The Head Chef was frustrated at the staff from the previous night who had failed to empty the grease trap, as required, and at the Complainant for standing in the grease. The Head Chef then uttered some “unsavoury” words which were referring to the staff the night before. It is submitted that there was no reference to any employee’s race, colour, nationality, ethnic or national origins. The Head Chef accepts he may have used the specific words mentioned by the Complainant.

The Complainant spoke to the Head Chef at the end of his service in relation to this aforementioned incident and it was explained to him that the comments made should not be taken personally as they were in reference to the staff from the previous night and this conversation is confirmed as per email correspondence. The Head Chef did not give any more thought to this incident as he explained these types of exchanges are not unusual in commercial kitchens.

On the 2nd July 2018 the Complainant submitted his resignation by email correspondence citing the incident of the 30th June 2018 as the reason. The Respondent Company replied by email on the same day inviting the Complainant to reconsider his resignation. However, the Complainant responded by emails on the 5th and 10th July 2018 and by a text message on the 12th July 2018 confirming his resignation. Accordingly, the Respondent Company accepted his resignation as per the email of the 13th July 2018. Further, the Complainant, by text message, requested his P45.

The Respondent Company submitted that they are a stranger as to the nature of the claim, where there was no direct or indirect reference to his race specifically. In relation to issue of “race” the Respondent Company submits that the Complainant has failed to identify a comparator, whether that be actual or hypothetical as required by the legislation with regards discrimination on the grounds of race to demonstrate “a difference in treatment” and referenced Darguzis -v- Lough Corrib Engineering Ltd (E2009-038) in that regard. Further, in relation to this aspect of the claim, it is submitted that the Complainant has failed to specify which of the grounds he is alleging as per the definition of race under Section 6(1) (h) of the Employment Equality Act.

In relation to the aspect of victimisation, the Respondent Company submitted that, upon consideration of the definition under Section 74(2) of the Employment Equality Acts and the case of Tom Barrett -v- Department of Defence, the Complainant has failed to identify the protected act and failed to show specifically that he has been subjected to adverse treatment as a reaction to the protected act as he did not go to management to invoke their grievance or harassment policy as per the employee handbook and gave his notice of resignation explaining his decision to leave was due to the aforementioned incident.

The Respondent Company submitted that they operate a restaurant business that is reliant on employing multiple nationalities. Commercial kitchens are heated environments and often the language is unsavoury but that does not make the language used racial.

In the circumstances of this matter, I have carefully listened to the evidenced tendered in in the course of this hearing by both parties.

Section 85A of the EEA 1998-2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by, or on behalf of, a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled and it requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. The appropriate test for determining is that if the complainant does not discharge the initial probative burden required the case cannot succeed.

It is now well accepted that the first requirement for a successful claim lies in establishing a prima facie case. In that regard, I am conscious of the Labour Court’s comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that

“… the court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent ..”.  

In establishing the facts to meet the burden of proof resting on a Complainant, the Labour Court commented in Cork City Council v McCarthy [EDA 0821] as follows:

  “The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a fact or a set of facts which are proved in evidence. At the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

Further, in Valpeters v Melbury Developments Limited [2010] ELR 64 it is stated as follows:

“Section 85A of the Act 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.

Having considered the evidence from the Complainant, I have to find that he has not discharged the initial probative burden in respect of the allegation of discrimination by reason of his race. Specifically, in the circumstances of this case, the use of the phrase “dirty bastard” cannot be regarded as a racial epithet as suggested by the Complainant. Further, the Complainant claims that he was discriminated against and that he was victimised, however, he has not provided any specific information in relation to this claim and accordingly he has not discharged the initial probative burden in respect of this allegation either.

In the circumstances of this claim, as outline above, I have to find that the claim of discrimination on the grounds alleged lack any direct or indeed indirect factual basis.

No prima facie case exists and accordingly the claim is dismissed.

I find that the Complaint (CA-00021118-001) made pursuant to Section 77 of the Employment Equality Act, 1998, fails.

Discrimination Race Victimisation