Complainant

Respondent

Anonymised Parties

A Chef

A Fast Food Restaurant

Representatives

Fresh Thinking Consulting

Peninsula Business Services (Ireland) Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00022458-001

06/10/2018

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

CA-00022458-002

06/10/2018

The Respondent operates a fast food franchise restaurant. The Complainant was employed by the Respondent as a Chef from 27 August, 2018 until 23 September, 2018. He worked 18 hours per week and was paid €9.50 per hour.

The Complainant claims that he was unfairly dismissed from his employment and that the manner in which the dismissal was effected was procedurally flawed. The Complainant has sought to have this matter investigated in accordance with the provisions of Section 13 of the Industrial Relations Act 1969. The Complainant also claims that he was subjected to harassment by the Respondent on the grounds of his race and religion contrary to Section 14A of the Employment Equality Acts.

The Respondent indicated that it did not wish to partake in the hearing of the dispute under Section of the Industrial Relations Act, 1969. The Respondent denies the claim of harassment on the grounds of race and/or religion contrary to Section 14A of the Employment Equality Acts.

CA-00022458-001 – Dispute under Section 13 of the Industrial Relations Act 1969

The Complainant was employed by the Respondent as a Chef. He was relying on public transport to attend work and was late for work on a couple of occasions due to limited transport. On 16 September, 2018, the Complainant texted his line manager to advise that his bus had not shown up. The line manager advised the Complainant to take the day off and meet with him the next day for a staff performance review. On 17 September, 2018, the Complainant attended the performance review meeting at 11 am and the meeting was conducted in the public seating area of the restaurant without any regard for his right to privacy.

The performance review didn’t take place and the Complainant was summarily dismissed by his line manager without notice and told that “You’re useless, you’ve f***** it up, so we have to let you go”. The Complainant was informed that his P45 would be ready on Friday, 18 September, 2018 and to collect it at the restaurant. On 17 September, 2018 following this meeting, the Complainant’s wife sent a text to the line manager in acknowledgement of the summary dismissal and received no reply from the line manager.

On 18 September, 2018 at 11:21 am, the Complainant received a phone call from a Director of the Respondent asking if he could meet her that evening for a chat. The Complainant met with the Director at 8:30 pm that evening in the restaurant and was again requested to sit in the public seating area whereby an attempt to get him to sign paperwork and conduct a disciplinary meeting was made by the Respondent. The Complainant advised the Director that he was already fired and did not understand why the company was trying to dismiss him a second time. The Complainant told the Director that he could not sign the paperwork nor had he any comment to make but to say that he had thought he was coming in to collect his P45 or be offered his job back. The Complainant left the meeting after approx. 5 minutes. On 19 September, 2018 the Respondent sent the Complainant a letter to confirm the dismissal.

The Complainant submits that the Respondent failed to apply fair procedures or comply with the rules of natural justice in relation to the manner in which he was dismissed, and therefore, contends that he was unfairly dismissed.

CA-00022458-002 – Complaint under the Employment Equality Acts

The Complainant is a Muslim and claims that he was subjected to harassment by the Respondent on the grounds of race and religion contrary to Section 14A of the Employment Equality Acts.

The Complainant submits that on one occasion during his period of employment he was instructed by a work colleague, Mr. A, to cook bacon which he proceeded to do until a second employee instructed him to leave the bacon and do something else. However, when Mr. A saw that the Complainant was not cooking the bacon he commented “I know you Muslims don’t like bacon, but somebody has to cook it”. The Complainant submits that he was upset and stressed by this comment as he felt that his religion was in question and also that he had no problem with cooking the bacon even though he did not eat it.

The Complainant contends that this treatment by his work colleague amounts to harassment on the grounds of his race and religion and that the Respondent failed in its duty of care to provide a safe working environment. The Complainant also contends that the Respondent was fully aware of this incident but failed to investigate the matter or bring any sanctions against the employee concerned.

CA-00022458-001– Dispute under Section 13 of the Industrial Relations Act 1969

The Respondent confirmed in writing to the WRC prior to the hearing on 7 February, 2019, and at the oral hearing, that it did not wish to partake in the hearing of the dispute under Section of the Industrial Relations Act, 1969. Therefore, the Respondent did not make any submissions or adduce any evidence in relation to this matter.

CA-00022458-002– Complaint under the Employment Equality Acts

The Complainant was employed by the Respondent as a Chef for a period of three weeks and was dismissed from his employment during his probationary period.

The Complainant was interviewed for the position on 22 August, 2018 and during this interview he confirmed that transport to work would not be an issue and he would be flexible in his working hours in that he would cover any shifts while chefs were on annual leave. The Complainant was advised that any issues in relation to his shifts should be notified by phone to the manager and not by text message.

The Complainant attended a probationary review meeting on 18 September, 2018 and the issues discussed at the meeting included his failure to attend work for three days ending on 16 September, 2018; issues regarding communication; concerns that his attitude towards flexibility had changed since he received his contract; when he was asked what he had learned in relation to the menu, he failed to reply; he mentioned that a colleague “wasn’t nice to him and he can’t do two orders at the same time”.

The Respondent received a text message from the Complainant’s wife on 17 September, 2018 stating “I understand that you summarily dismissed [the Complainant] this morning”. She further alleged that the Complainant had been subjected to discrimination, namely: “a discriminatory issue around bacon which is part of his religious beliefs” and sought compensation. The Complainant attended a further meeting on 18 September, 2018 with the Respondent’s Director and the following matters were intended for discussion, however the Complainant would not engage in any discussion, namely: the Complainant’s tardiness and non-attendance at work; the fact that he texted the Respondent when reporting absences and/or lateness instead of telephoning the manager in accordance with company procedure; his unwillingness to cover annual leave and sick days as he said he would during his interview.

The Complainant became aggressive during the interview and failed to engage and advised that he would bring a claim to the WRC. By letter dated 18 September, 2018 the Respondent’s Director advised the Complainant that he had not successfully completed his probationary review period and as a result his employment would be terminated. The Complainant was advised of his right to appeal the dismissal. By letter dated 23 September, 2018 the Complainant’s wife wrote to the Respondent on his behalf and stated that any appeal would also be invalid therefore no appeal was forthcoming.

The Respondent wrote to the Complainant on 2 October, 2018 and encouraged the Complainant to utilise his right of appeal and extended the deadline for doing so. The Complainant subsequently failed to submit an appeal and the Respondent wrote to him on 22 October, 2018 and indicated that it considered the matter to be closed.

Submissions

The Respondent submits that the Complainant only notified the employer of the alleged harassment after the probation meeting on 16 September, 2018 when he believed his employment had ended. Notwithstanding the fact that the Respondent has detailed policies on the issue of workplace harassment, of which the Complainant was aware, the Respondent notes that the Complainant’s wife is highly qualified in employment law and took an active role in protecting his interests in relation to the termination of his employment. The Respondent submits that if this incident actually occurred, which is denied, that it is distinctly unlikely that the Complainant would not have notified the Respondent at the material time.

The Respondent submits that Sections 14A(2) and 15(3) of the Acts allow an employer a defence to a claim of harassment if it can show that it took such steps as were reasonably practicable to prevent the employee from doing the act which is found to have constituted harassment or from doing acts in the course of his employment acts of that description. It is submitted that the Respondent can avail of this defence as the Complainant was provided a Grievance Procedure, a Bullying Prevention Policy and a Personal Harassment Procedure and therefore, was fully aware of the relevant policies and procedures in the workplace in relation to harassment.

The Respondent submits that the clear conclusion from these company policies is that the company is an employer which takes the welfare of its employees very seriously, particularly in respect of workplace harassment and equality. It is submitted that had the Complainant notified the Respondent of the alleged act of harassment that it would have been handled fairly in accordance with its stated policies.

In summary, the Respondents submits that the Complainant only notified it of the alleged harassment after he had been dismissed. It is submitted that the Complainant was at all times in possession of a company handbook outlining the procedure for raising grievances and the bullying and harassment procedure, yet he failed to utilise this procedure and raised the issue at the eleventh hour. The Respondent submits that the inference to be drawn from the inexplicable delay in advising his employer of the alleged harassment and the first mention of this allegation in the context of him seeking compensation.

The Respondent adduced evidence from the Director, Mr. A and two other work colleagues of the Complainant at the oral hearing in relation to the complaint of harassment.

CA-00022458-001 – Dispute under the Industrial Relations Act 1969

This dispute was referred to the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969 and, in essence, concerns a claim of unfair dismissal.

The Respondent confirmed that it did not wish to partake in the proceedings in relation to the dispute under Section 13 of the Industrial Relations Act 1969, and therefore, did not make any submissions or present any evidence in relation to this matter.

The Complainant has claimed that he was unfairly dismissed from his employment during his period of probation and that the manner in which the dismissal was effected was procedurally unfair.

In considering this matter, I note that the Labour Court held in the case of Beechside Company Limited t/a Park Hotel Kenmare -v- A Worker LCR21798 that: “Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures.”

Having considered the uncontested evidence, I find that the Complainant was dismissed by the Respondent during his period of probation during the course of a meeting with his line manager on 17 September, 2018. I find that the Complainant was not provided with any fair or reasonable opportunity to address the alleged concerns which the company had in relation to his performance. In particular, I am satisfied that the Respondent failed to advise the Complainant that his employment was in jeopardy prior to a decision being taken to dismiss him.

I find that there was a manifest failure by the Respondent to adhere to the basic requirements of procedural fairness in reaching the decision to terminate the Complainant’s employment. I find that the Complainant’s employment was terminated in a manner which was procedurally flawed and in breach of the Code of Practice on Grievance and Disciplinary Procedures (SI. No. 146 of 2000). In my opinion employers are required to act fairly in all situations and are not relieved of that obligation during an employee’s probationary period. This Code of Practice is promulgated pursuant to Section 42 of the Industrial Relations Act 1990 and an Adjudication Officer is obliged to have regard in deciding on any case to which it relates.

Having regard to the foregoing, I find that the dismissal of the Complainant was unfair on procedural grounds. In the circumstances, I find that the Complainant is entitled to compensation for the manner of the dismissal and I recommend that he be paid the sum of €1,500.

CA-00022458-002 – Complaint under the Employment Equality 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 in relation to him/her.   If s/he 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.  

Section 6(2)(e) of the Acts defines the discriminatory ground of religion as follows – “as between any 2 persons …. that one has a different religious belief from the other, or that one has a religious belief and the other has not” andSection 6(2)(h) of the Acts defines the discriminatory ground of race as follows – “as between any 2 persons …. that they are of different race, colour, nationality or ethnic or national origins”.

The issue for consideration by me is whether or not the Complainant was subjected to harassment on the grounds of his religion and/or race contrary to Section 14A of the Acts. In reaching my decision I have taken into account all of the evidence, written and oral, submitted by the parties.

“Harassment” is defined in Section 14A(7) of the Acts which states: “references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds …. being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”. Section 14A(7)(b) further states that "such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material". For a complaint of harassment under the Employment Equality Acts to be made out, the Complainant must demonstrate a nexus between the alleged treatment and the discriminatory ground(s).

The alleged harassment in the instant case relates to a claim by the Complainant that one of his work colleagues, Mr. A, made a comment to him while performing his duties as a Chef, namely: “I know you Muslims don’t like bacon, but somebody has to cook it”. The Complainant is a Muslim and non-Irish national and he contends that this comment amounted to harassment on the grounds of his race and religion. The Respondent denies that the alleged comment was made in the first instance. The Respondent further contends that it has established anti-harassment and bullying policies in place in the workplace, the existence of which had been communicated to the Complainant, and that he failed to report the alleged harassment or make a complaint about this matter until after his employment had been terminated.

It was not in dispute that the Complainant is a Muslim and non-Irish national and I am therefore satisfied that he is covered by the discriminatory grounds claimed.

There was a direct conflict in the evidence adduced by the parties on the issue of whether or not the alleged discriminatory comment actually occurred. I heard evidence on this matter from the Complainant, Mr. A and another work colleague, who the Complainant contends was present in the workplace when the comment was alleged to have occurred. I note that the other work colleague corroborated Mr. A’s version of events that he did not make the alleged comment to the Complainant. On balance, I have found the Respondent’s evidence on this matter to be more compelling and I accept that Mr. A did not make the alleged discriminatory comment as alleged by the Complainant.

I also accept the Respondent’s evidence that the Complainant failed to report or make any complaint about the alleged harassment prior to the termination of his employment. I am satisfied that the Respondent had a detailed policy on Harassment and Bullying in the workplace and that this policy was brought to the Complainant’s attention following the commencement of his employment and prior to the date of the alleged incident of harassment. However, I am satisfied that the Complainant did not pursue a complaint or invoke the Respondent’s internal grievance procedures in relation to this matter.

Having regard to the totality of the evidence adduced, I find that the Respondent did not engage in any form of unwanted or prohibited conduct against the Complainant which could be construed as harassment on the grounds of religion or race within the meaning of Section 14A of the Acts.

Accordingly, I find that the Complainant has failed to establish a prima facie case of harassment within the meaning of Section 14A of the Acts.

CA-00022458-001 – Dispute under the Industrial Relations Act 1969

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I find that the Complainant as unfairly dismissed by the Respondent from his employment on procedural grounds. I recommend that the Complainant be paid the sum of €1,500 in full and final settlement of the dispute.

CA-00022458-002 – Complaint under the Employment Equality Acts

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I find that the Complainant has failed to establish a prima facie case of harassment on the grounds of religion and/or race within the meaning of Section 14A of the Acts. Accordingly, I find in favour of the Respondent in relation to this complaint.

Industrial Relations Act 1969 – Section 13 - Unfair Dismissal – Dismissal Procedurally Unfair – Compensation Awarded – Employment Equality Acts 1998 to 2015 – Harassment – Section 14A – Race and Religion Grounds – Failure to Establish a Prima Facie Case