ADJ-00014733

Complainant

Respondent

Parties

Glenn Casey

H&H Collection Ltd

Complainant

Respondent

Anonymised Parties

Night Porter

Hotel

Representatives

Self

John Forde, HR Advisor

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-00019245-001

17/05/2018

The complainant commenced employment with the respondent in July 2017. The complainant had enquired as to vacancies in Maintenance / Gardening but, none being available, took on the position of night porter. In April 2018 the position of Maintenance Assistant covering both hotels operated by the respondent was advertised. The complainant applied but prior to the results of the interview process being announced the complainant was told by a fellow employee that that person had got the job. Management declined to discuss the matter when contacted and believing that he had not been treated equally the complainant resigned.

The complainant accepted a position as night porter as he had been advised that no vacancies existed in respect of maintenance / gardening.

In May 2018 a vacancy was advertised for a Maintenance Assistant for the respondent’s two hotels stipulating that applicants must have transport to travel between the sites and answer out-of-hours calls.

The complainant, who had transport, applied for the job and was interviewed by management.

Prior to being advised of the result of the interview a colleague told the complainant that he (the colleague) had got the maintenance job. This person did not have his own transport.

The complainant contacted management who refused to discuss the matter with him.

The complainant felt that he had not been treated equally and believed that preference had been shown to the other member of staff because of that person’s nationality.   The complainant therefore resigned.

The respondent advertised for a Maintenance Assistant to cover the two sites at which the company operated hotels.

Numerous applications were received and the respondent selected 5 persons for interview including the complainant.

The respondent offered the position to the most suitable candidate. That person has his own vehicle and can drive.

The respondent employs people from a variety of countries and nationalities and does not discriminate based on race.

The complainant did not avail of the company Grievance Procedure prior to his resignation.

The complaints made by the complainant are unfounded.

The complainant is of British nationality. At the time that the complainant sought employment the respondent operated one hotel at a site close to where the complainant lived. The complainant had enquired about a position involving maintenance (he was a qualified plumber) or gardening but when told that no such positions were available he accepted the position of night porter in the hotel. During the course of his employment he would be asked to repair sinks and perform other similar jobs by the Duty Manager. The other night porter was not asked to do these jobs. The complainant was advised that a maintenance job might arise in the future.

The respondent then acquired another hotel at a site about 20 kms. distance from the first hotel.   An advertisement was placed looking for a part-time Maintenance Assistant to cover both locations. The complainant saw the advertisement and applied. The evidence of the respondent was that they received numerous applications. A short-list of applicants to be interviewed was drawn up amongst which was the complainant.

The complainant stated that he attended the interview which was conducted by the Maintenance Manager and the HR Manager. He was asked, amongst other issues, about his ability to transport himself between the two locations. He was advised that no decision would be taken until after the upcoming May Public Holiday.

The complainant said that on Friday, 11 May, he was finishing his shift when he met a person who had been a kitchen porter in the hotel. According to the complainant, this person informed him that he had got the job in maintenance and, when asked when had he been interviewed, stated that he had not done an interview. This person also stated that he did not have his own transport.   The complainant left the premises and contacted the HR Manager. According to the complainant the Manager told him that nothing had been decided as regards the position he had applied for and could not give him a date as to when the decision would be finalised. The complainant asked about the person that he had met and was told by the Manager that she could not discuss another employee with him. The complainant then told the Manager that “you will have to find yourself another night porter.” That was the last contact that the complainant had with the respondent.

The complainant said in evidence that the person he had spoken to on the morning of 11 May was of Portuguese nationality. The complainant further stated that there were many Portuguese people on the staff of the respondent and it was his belief that he did not get the job because he was not Portuguese. The complainant accepted that he had no specific examples of being treated differently or of being discriminated against during his employment. He did believe, however, that he had been treated unfairly by the respondent in this matter.

The respondent, in a submission, stated that there had been an interview process arranged for 5 applicants one of whom was the complainant. The CV of each of these applicants were produced at the hearing.   The interview board made the decision to appoint a named person who was not Portuguese and obviously not the person with whom the complainant had a conversation on 11 May. An unsigned contract relating to the person who was appointed was provided at the hearing. I note that the position is titled Maintenance Manager and that it is a full-time position commencing on 21 May 2018. The respondent’s General Manager stated that a decision had been made to make the position full-time. I note also that the respondent’s HR Manager has left the business and was not available to give evidence. The respondent’s representative argued that her refusal to discuss the position of another employee with the complainant would have been in line with company policy.   It was further pointed out that the complainant’s contract, which he acknowledged receiving, contained a Grievance Procedure which was not utilised by the complainant. It was further stated that the respondent had had no issue regarding the complainant and that he would still be employed if he had not chosen to resign without notice.

The complainant’s case is that he was discriminated against by reason of his race in relation to the appointment made by the respondent. Section 6(1) of the Employment Equality Act, 1998, states:

For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where –

(a)    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) (in this Act referred to as the “discriminatory grounds”) which –

(i)                  exists,

(ii)                existed but no longer exists,

(iii)               may exist in the future, or

(iv)               is imputed to the person concerned

Section 6(2)(h) of the Act states:

       that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”.

The initial burden of proof in a claim of discrimination contrary to the Act rests with the complainant. Section 85A(1) of the Employment Equality Act, 1998, provides as follows:

Where in any proceedings facts are established by or on behalf of the 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.

The Labour Court considered this matter in Southern Health Board v Mitchell (2001) ELR201 and held as follows:

The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.

This means that a complainant has to establish both the primary facts on which he relies and also that these facts are of sufficient significance to raise an inference of discrimination. In Melbury Developments Ltd. v Valpeters (2010) ELR64 the Court held that:

mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.

In this case it is clear to me that the complainant had very much a preference for working in a maintenance position particularly given his background as a trained plumber and that he had taken up the position of night porter as an interim job in the hope that something in his preferred field would arise. He had obliged his employer in doing odd repair jobs that arose in the hotel, no doubt with an eye to advancing his cause should the opportunity arise. The acquisition of a second hotel by the respondent led to the requirement for a maintenance person. The position was advertised, the complainant applied and was short-listed for interview. Unfortunately for him he was not successful.

According to the complainant he was expecting to be informed about the outcome of the interview after the May Public Holiday and on the following Friday had the conversation with the Portuguese work colleague who gave the complainant to understand that he (the colleague) had got the maintenance position despite having no transport and not being called for interview. It was unfortunate that the complainant’s subsequent contact with the HR Manager did not clarify matters but it may well have been that the final decision had not been confirmed at that time. I do accept that the HR Manager could not discuss another employee with the complainant.

I understand that the complainant was disappointed at what he understood to be the outcome. This disappointment, however, does not justify his actions in verbally resigning without notice during the telephone conversation. As it turns out the complainant was under a misapprehension regarding the outcome of the interview process insofar as, whilst he was still an unsuccessful candidate, the position had gone to an applicant who had been interviewed, possessed transport and was not Portuguese. If the complainant had not acted rashly and had awaited confirmation of the actual result he would have become aware of the true state of affairs.   If he still had some issue with the process it was open to him to invoke the Grievance Procedure laid out in his contract of employment.

The basis on which the complainant based his complaint is therefore without foundation. The complainant has failed to establish facts from which any inference of discrimination can be drawn. I find that the complainant has failed to establish a prima facie case of discrimination on the ground of race in relation to the appointment process for the maintenance position.

I find that the respondent did not discriminate against the complainant on the race ground.   The complaint therefore fails.