ADJ-00016140

Complainant

Respondent

Parties

JingChen

Raynemill Ltd

Representatives

PaschalKeogh, Citizens Information Centre

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-00020884-001

30/07/2018

The complainant worked for the respondent in his pizza shop in a shopping centre in north Dublin from February 22^nd 2018 until she was dismissed on July 20^th 2018.  She worked for around 45 hours each week and she earned €9.55 per hour.  The complainant is Chinese and she claims that she was dismissed because she complained about racial abuse on the part of the shop manager.  Her complaint is that she was been dismissed in contravention of section 8 of the Employment Equality Act 1998, (“the Act”), which prohibits discrimination on the grounds of race.

As this is a complaint of discrimination, under section 85A (1) of the Act, the burden of proof is on the complainant to show that, based on the primary facts of this case, discrimination has occurred. 

In her submission in preparation for the hearing, the complainant said that she reported to the shop manager, who I will refer to as “Brendan.”  She said that from the time she joined the company, Brendan was rude and often shouted at her, sometimes in front of customers.  She said that when the shop was busy, Brendan became stressed and abusive.  The complainant said that she was singled out for mistreatment, and that Brendan referred to her as “the Chinese girl,” and, on more than one occasion, he called her a “fucking bitch.”  When she was out doing deliveries, the complainant said that Brendan would send her messages on WhatsApp, telling her to hurry up.

Incident on June 21^st 2018

On Thursday, June 21^st 2018, the complainant said that matters came to a head when she was serving a customer who hadn’t got good English.  A queue was developing behind this customer and the complainant was inputting the order on the computer.  She said that Brendan shouted at her to use a pen and paper and to serve the next customer.  The complainant said that Brendan shouted at her for the remainder of the shift, calling her a “fucking Chinese bitch”.  Finally, when Brendan accused the complainant of losing an order, she said that she shouted back at him.    

The complainant’s letter of June 28^th 2018 was included in her book of papers submitted in evidence at the hearing.  The letter is addressed to “Dear Sir / Madam” and it is a formal request to the company to “address this problem” of Brendan’s verbal abuse.  In her letter, she describes “last Thursday, June 21^st” as “the worst day.”  She said that Brendan became exasperated when a queue formed behind the customer with limited English and he instructed to her write down the orders on a pad.  When one of the pizzas that she had cut up and placed on a trolley went missing, the complainant said that Brendan shouted at her and she said that she “reached the end of my tether and shouted back.”  She said that she didn’t go to work the following week because she was so stressed out, but that she went back on, Friday, June 29th, the day after she sent her letter of complaint.  The complainant concluded her letter saying, “His treatment is making me sick.  As my employer, you have a duty to provide a safe workplace and I wish to ask that you intervene to ensure that these incidents do not occur again.”

Evidence of the Complainant

In her evidence at the hearing, the complainant said that she knew Brendan from around 2003, through her brother, who met him when he was working in a hotel in Dublin.  She said that she got the job in the pizza shop through Brendan.  She said that the shop opened at 9.00am and closed at 12.00 midnight.  Her shift was from 12.00 midday until 9.00pm, five or six days a week.  She earned €9.55 an hour. 

On the Thursday of “the shouting incident,” the complainant said that she finished her shift at the normal time, and Brendan asked her for a lift home.  She had no problem giving him a lift because she said, “out of work, he’s okay.”  She said that, as she was driving Brendan home, she asked him not to bully her and shout at her.  She said he explained that “it’s because the shop is so busy.”

The following Monday, the complainant sent a text message to Brendan to let him know that she wasn’t feeling well.  She said that he replied letting her know that she had Wednesday and Thursday off.  On Thursday, June 28^th, she said that she went to her local Citizens Information Centre to get help to make a complaint about Brendan.  On Friday, June 29^th, she was rostered to work from 5.00pm and she went to work as normal.

About a week later, on July 6^th, she got an e mail from the area manager, asking her to attend a meeting to discuss her letter of June 29^th.  The meeting took place on July 9^th in another restaurant in the shopping centre where the complainant worked and the area manager was accompanied by the owner of restaurant outlets.  The complainant said that she explained her problem with Brendan to both men.  She said that the owner listened to her and reassured her that an incident such as the one that she described that took place on June 21^st would not happen again.  The complainant said that no notes were kept of the meeting and that she asked the owner to send her a written response to her complaint and he said that a response would be sent to her in due course.  She said that she went to work after the meeting.

The complainant said that she returned to work and that Brendan’s behaviour continued to be aggressive but that he did not use racial or sexual language in his communication with her.  Although he never said anything to her about the meeting, colleagues told her that “Brendan got into trouble because she made a complaint.”  She said that she didn’t really have much to do with him after that, and that he didn’t curse at her from then on.

Two weeks later, the complainant said that she was told that she was to finish her shift at 3.00pm instead of 5.00pm and she was to wait for the area manager.  This was the same manager who was at the meeting with the owner on July 9^th.  The complainant said that he told her that she was “fired.”  The area manager did not give any reason for dismissing the complainant, but he told her that she would receive a week’s pay instead of having to work her notice.  The area manager said that the owner made the decision to dismiss her and that he himself didn’t know what the reason was.

Concluding her evidence, the complainant said that, as far as she is aware, Brendan has never been reprimanded for the way he treated her on June 21^st 2018.

The respondent was not represented at the hearing, and, on his own behalf, the owner of the company asked the complainant if she ever asked other employees to join her in making a complaint against their employer.  The complainant said that she didn’t.  The owner then said that, in response to her complaint, he interviewed all the other employees in the shop where she worked.  He said that another employee, a Malaysian national, informed him that the complainant had suggested that they all get together “and sue them,” meaning the company.  During a break on the day of the hearing, the complainant said that she phoned this former colleague and that he told her that he never said anything about this alleged suggestion of suing the company.

On her behalf, Mr Keogh of the Citizens Information Centre said that the respondent had a duty of care to provide the complainant with a safe place to work, free from discriminatory treatment.  From her letter of June 28^th 2018, they were fully on notice that her health was being affected by Brendan’s treatment of her and they failed to properly investigate her complaint about him.  Instead she was dismissed, Mr Keogh said, “for reasons that remain unclear.”

Establishing a “Prima Facie” Case that Discrimination has Occurred

Mr Keogh referred to the following legal precedents, to support his contention that the complainant has been discriminated against by being dismissed in the circumstances that she described:

Mitchell v Southern Health Board, DEE 11, [2001] ELR 201

Describing the evidential burden on the complainant, the Labour Court held that,

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 those 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.

Cork City Council v McCarthy, EDA 0821

In his findings in respect of this appeal, the chairman, Mr Duffy referred to the Southern Health Board case above and expanded on the burden of proof requirement:

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.

In my determination of whether a “prima facie” case has been set out, Mr Keogh asked me to consider these facts:

1.  On June 28^th 2018, the complainant sent a letter to the owner of the respondent company, complaining about how she was treated by the store manager, Brendan.  She alleged that he had racially abused her and that he had, over a period of time, harassed and bullied her, made derogatory comments about her race and about Chinese people in general.

2.  At her meeting to discuss the issues in this letter, the owner of the company gave the complainant reassurances that the incidents that she complained about would not happen again and he promised a written response to her complaint.  She did not receive a response and it is unclear if a note was kept of this meeting.

3.  Eleven days after this meeting, the complainant was informed that her employment was terminated.

4.  Brendan is still the manager of the restaurant where the complainant works and the complainant does not know if his conduct has been investigated.

Given the short time between the complainant making a complaint about Brendan and her dismissal, Mr Keogh argued that “a reasonable, objective analysis of the facts would lead one to conclude that there is a prima facie case to answer.”

Establishing a Comparator

During her employment in the restaurant, the complainant worked alongside several other employees of various nationalities; Brazilian, Mexican, Polish, Malaysian and the store manager, Brendan, is Irish.  She was the only Chinese person working there at the time.  The complainant said that Brendan was “verbally abusive towards me and is behaving in a way that causes me great distress…”  She said that he shouts at her and “refers to me as the Chinese girl, as if I don’t have a name…he called me a fucking Chinese bitch.”  The complainant said that Brendan was rude to other staff, but he did not racially abuse them.  The complainant said that Brendan made derogatory comments about Chinese food and he remarked that “all Chinese people want is money.”  He humiliated the complainant, saying that she got married to her husband so that she could get a visa and he questioned how she could afford to buy an apartment in Dublin.  Mr Keogh said that Brendan made comments about the complainant’s appearance that were, at best, inappropriate.

Although she was employed as a sales assistant in the respondent’s pizza outlet, the complainant was required to deliver pizzas, and she was the only member of the sales staff who were asked to do this.  Dedicated delivery drivers were used in the evenings, but the complainant was the driver during the day.  Mr Keogh said that Brendan put the complainant under pressure to do the deliveries quickly and that this put her under a lot of stress.

Harassment

Addressing the issue of harassment, Mr Keogh said that the complainant was given a copy of the company’s staff handbook, which contains a section on harassment.  Here, it states that the company “has a zero tolerance for harassment or discrimination of any employee” and it encourages the reporting of incidents.  The handbook states that any report of harassment “will be handled as confidentially as possible and fully investigated and corrective action will be taken where appropriate.”  The handbook does not make it clear who complaints are to be addressed to and a grievance procedure is not set out.

According to the Employment Equality Act (Code of Practice) Harassment Order 2012, for an employer to rely on a defence that they took steps to prevent harassment from taking place, they must have comprehensive and accessible policies in place which “focus on prevention, best practice and remedial action” to address the problem.

The complainant lodged a complaint, a meeting took place to hear her grievance, but the meeting took place in another restaurant in the shopping centre where she worked.  Mr Keogh said that this seems “a highly inappropriate” place to discuss a matter of such a sensitive nature.    

The Code of Practice referred to above gives details of best practice for ensuring fairness to the complainant and any alleged perpetrator.  There is no evidence that the owner followed up on the issues brought to his attention by the complainant on June 28^th 2018; however, the complainant was dismissed within days of the meeting taking place.

Conclusion

Summarising the case for the complainant, Mr Keogh said that she suffered from abuse by her manager and that his singling her out for more onerous work made her feel humiliated and upset.

Mr Keogh said that there is no anti-discrimination or anti-bullying policy in the company and the staff handbook assertion that the company adopts a “zero tolerance” approach to discrimination is not borne out by the facts of this case.  The investigation into the complainant’s allegations were demeaning and incomplete and failed to follow the basic principles of dignity, even in regard to selecting a suitable place for a meeting.  The complainant never received a written response to the issues that she raised and her dismissal appears to give credence to her claim that her complaint was not taken seriously.

Closing his argument, Mr Keogh said that the decision to terminate the complainant’s employment “can only be interpreted as a brazen attempt to remove the victim of a culture of bullying and harassment to uphold the status quo.”

Evidence of the Shop Manager, “Brendan”

At the hearing, Brendan said that he has been friends with the complainant for more than 10 years and that he offered her a job in the pizza shop.  The complainant’s brother worked for Brendan for seven years and lived with Brendan.  He said that the complainant also stayed with him.  He said that the complainant wanted to work a lot of shifts because she bought a house in Dublin.  He said that they generally “worked together fine” but on June 21^st 2018, they had “a big argument.”  Brendan admitted that he was aggressive and rude to the complainant when the queue formed in the shop.  He said that he called her a “stupid bitch” but he denied referring to her as a “fucking Chinese bitch.”  Brendan said that he was shouting at the complainant and she was shouting back and it was obvious that the customers could see and hear their argument.  He said that the computer was too slow to manage the queue and he instructed the complainant to take the orders in writing.  She refused.  Brendan said that, on their way home in her car, he apologised to the complainant for shouting at her and calling her a bitch and he said that there were a lot of problems in the shop that day and “everyone was stressed.”

Brendan said that before the shouting incident on June 21^st, other employees in the shop had complained about the complainant’s behaviour.  They knew he was her friend and they asked him to speak to her about how she treated them.  Some changed their shifts so that they would not be working alongside her.

The next day, Friday, June 22^nd, the complainant came to work and Brendan said that he apologised again. 

The same day, the area manager arrived in the shop and told him that a customer had posted a review on the company’s Facebook page.  In her posting, the customer said that she brought her children out for a pizza as reward for their school reports.  The customer, who identified herself on the site, said that she was “disgusted with the behaviour of the girl behind the counter.”  She said that the girl at the counter started an argument with a male colleague because of a mix up with an order.  The customer said that this happened “in front of everyone in the shop…the man proceeds to go to the back of the shop to which she follows him and continued to shout at him and belittle him, mistakes are made but there was no need to behave the way she did, my 9 + 5 year old could hear everything and were questioning me as to why the girl was so angry, I will not be returning to the shop…”

Brendan said that he was going on holidays for the first week of July and the complainant lent him €300 before he went, around the end of June.

Brendan said that he knew the complainant made a complaint about him and that she had gone to a meeting with the area manager and the owner on July 9^th.  After this meeting, he said that the area manager spoke to him and then he met with four other employees in the shop and he asked them for their observations of the relationship between him and the complainant.  No witnesses attended the hearing of this complaint, and, for this reason, I do not consider it appropriate to give any weight to the written statements that were proposed as evidence of their relationship with the complainant and their observations of the relationship between her and Brendan.

A written submission was presented by the respondent setting out what occurred in relation to the complainant after June 9^th, when she had the meeting with the owner and the area manager to discuss her complaint:

On Wednesday, July 11^th, the complainant refused to take her break when the evening driver arrived, and when the shop was quiet.

On Thursday, July 12^th, the complainant again refused to take her break when she was asked and she refused to do a delivery.  When a customer phoned the shop looking for his order an hour after he placed it, the complainant still refused to do the delivery.  A back-up driver had to be called in and the complainant went on her break just as the shop got busy.

On Monday, July 16^th, the complainant was asked to remove a bracelet as the wearing of jewellery is not allowed in the shop.  At the front of the premises, the complainant shouted at her manager to tell the other staff to take off their jewellery.

On the same day, the complainant asked for €25 per week for petrol.  She had refused to drive the company car and was using her own vehicle for deliveries.  She also looked for money to cover the cost of her phone as she was using it to phone customers when she was doing deliveries. 

At 4.30pm, a customer phoned in an order and it was taken for delivery by the complainant at 4.45pm.  At 5.28pm, the customer phoned to find out where his order was.  An employee in the shop phoned the complainant who said that she couldn’t find the customer’s house.  The manager sent the complainant a screen shot of Google maps showing that the customer was three minutes away from the shop by car.  The complainant replied, “you should see the traffic” and accused the manager of suggesting that she was “playing” in the car.  She told him that she hadn’t got friends in the locality.  When she returned to the shop, the manager said that he never said anything about friends, and that he just wanted her to know where the house was.  He said the complainant replied, “fuck you” and that this could be heard by staff and customers.

On Tuesday, July 17^th, Brendan said that he and the area manager decided that the complainant would no longer do deliveries, as “there were too many issues.”  Also that evening, the complainant told a customer who wasn’t sure of his mobile phone number that she wouldn’t take his order.  This customer made a complaint about how he was treated.  Brendan was at home when he got the complaint from the customer and he phoned the shop to find that the complainant had dealt with the call.  She said that she was told not to accept an order from a private number; however, Brendan said that he checked the call log and the customer did not place the order from a private number.

The owner of the company gave evidence at the hearing and he said that, when he heard about all these issues, he decided that the complainant could not continue to work in his business.  He said that, on July 20^th, he instructed the area manager to terminate her employment and he gave him a letter to give her on the same day.  A copy of this letter was submitted in evidence, although he complainant denied receiving it.  Setting out the reason for her dismissal, the owner stated:

Following my investigation regarding your letter dated the 28^th of June 2018 and subsequent meeting on the 9^th of July 2018.

I have spoken with (Brendan) and staff relating to the inexcusable name that he called you on the 21^st of June.  It was confirmed by all parties that it was said in the heat of the moment and that an apology was made immediately after saying it.  You even gave him a lift home that evening and offered him a loan of money for his holidays.

I was also given a list of complaints from staff and customers over the duration of your time with us.

(Brendan) has also said that you have been family friends for years and don’t understand (sic) why you made a complaint.  He gave you a job to help you out.

On reviewing all the information provided to me with the further complaints yesterday, I have no alternative but to let you go today.  You will be paid one week’s notice.

Thank you for your time working with us and hope (I) hope you find another position soon.

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The effect of this section in the law is to place the burden of proof in the first instance on a complainant, to establish facts, which, on an initial examination lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, she has been treated less favourably than someone who is not Chinese.

The Primary Facts

On June 21^st, in the course of a busy evening in her shop, the complainant had a row with her manager and he was aggressive and rude.  She alleges that he called her “a fucking Chinese bitch,” but he said that he made no reference to her nationality.  The manager said that he apologised shortly after he made the “fucking bitch” remark and that he apologised again when he was getting a lift home in the complainant’s car.

It is apparent from the evidence that customers and other staff heard this altercation.  A customer posted a Facebook comment about the incident on the evening of June 21^st in which she referred to the complainant “starting an argument in front of everyone in the shop” and belittling her manager.

The complainant did not call any witnesses to support her version of what occurred.

The complainant and her manager are friends, and have been for many years.  She got the job in the pizza shop through him.  When he was going on holidays a week after the incident on June 21^st, she lent him €300.

From the evidence submitted by the respondent, it is apparent that the complainant was difficult to work with.  She refused to take direction from Brendan and it seems that she made the rules to suit herself in relation to how she was to carry out her job.

The complainant submitted a complaint about Brendan on June 28^th 2018.  A meeting took place on July 9^th and the owner of the company gave the complainant an undertaking that she would not suffer a repeat of what happened on June 21^st.

Following the incident, the complainant said that Brendan continued to be rude, especially if he was stressed, but that he was rude to everyone and that he did not make any more comments about her nationality.

The complainant was at work the following day, Friday, June 22^nd, and the area manager contacted the shop and told Brendan about the posting.  It seems possible that the complainant also came to know about the customers’ comments on that day.

On Monday, June 25^th, the complainant sent Brendan a text message to let him know that she wasn’t well.  He told her that her days off that week were Wednesday and Thursday and on Thursday, she went to get advice from her local Citizens Information Centre.

Findings

From my examination of the evidence presented at the hearing of this complaint, it appears to me that, having been invited by the shop manager to come and work with him, the complainant did not like her job and was not getting on well with her manager or her colleagues.  It seems that she suited herself while she was at work.  The reason for this is not clear, but it could have something to do with the fact that she was a long-time friend of Brendan and he may have found it difficult to challenge her behaviour.

It is of concern to me that Brendan was in a way obligated to the complainant, as he got lifts home from work from her and he borrowed money on at least one occasion.  In one respect, although he was her manager, she was the controller in the relationship.  For this reason, it seems to me that she simply didn’t take direction from him.

There is a conflict in the evidence regarding what occurred between Brendan and the complainant on the evening of June 21^st.  There was definitely a row and both admitted to shouting at each other.  It is my view that whatever Brendan said, his comments were not racially motivated.  The issue on the evening was the length of the queue in the shop and the mix-up with an order.  The customer who posted the comment on Facebook was shocked enough to make the effort to upload the posting.  I have no doubt that, if she had heard the complainant being abused because of her race, she would have mentioned it.

I find it difficult to believe that Brendan referred to the complainant in a derogatory way in respect of her race.  As he was friends with her for more than 10 years, it is my view that he would be indifferent at this stage, to where she is from.

In any event, the complainant said that this alleged racial abuse happened once, on June 21^st, in the middle of a busy shift when a lot of things were going wrong in the shop and a long queue had built up.  After this, there was no recurrence of the comment.  Apart from her description of this altercation, the complainant submitted no other evidence to support of allegation of racial harassment and she called no witnesses to support her complaint.

At her meeting with the owner and the area manager on July 9^th, the complainant was given an assurance that any such derogatory comment would not happen again.  The owner investigated the complainant’s allegations by speaking to Brendan and the complainant’s colleagues in the shop.  When he was satisfied that the complainant had not been and would not in the future, suffer any racial abuse, he took no further action.  Although the complainant’s representative is critical of the fact that the owner did not follow up their meeting on July 9^th with a letter, this is not a critical omission.  The important point made by the complainant was that no racial abuse occurred after June 21^st 2018.

Conclusion

I refer to the Labour Court appeal of Graham Anthony & Company Limited against the decision of the Equality Officer in respect of the complaint of Mary Margetts, EDA 038.  This was a complaint by Ms Margetts that she was discriminated against on the grounds of her marital status, her family status and her age; however, the point made by the Chairperson of the Court, Ms Jenkinson, is relevant here:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

Having examined the primary facts adduced by the complainant, it is my view, that, they are inadequate to show that, on the balance of probabilities, she was subjected to racial abuse.  For this reason, the burden of proving the absence of discrimination does not shift to the respondent.

I have concluded that the complainant had not established the primary facts which show that she was discriminated against on the ground of her race.  I have decided therefore, that this complaint is not upheld.

Discrimination on the ground of race