Complainant

Respondent

Anonymised Parties

A confectionary shop employee.

A confectionery shop owner.

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00026362-001

19/02/2019

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

CA-00026362-002

19/02/2019

The Complainant complains that he has not been paid for all of the Public Holidays to which he is entitled under the terms of the Organization of Working Time Act, 1997. He also says that he did not receive Sunday premium or payment for overtime.

He also complains that he was discriminated against on the basis of his race/colour by the Respondent in the form of remarks from his manager relating to how he spoke – native tongue and accent and the colour of his skin. He said his manager reacted angrily towards him from time to time and on these occasions behaved in a discriminatory fashion.

The Complainant had little detail in relation to the complaints he was advancing in relation to his complaint CA-00026362-001.

He said he worked with the company from the 4th August 2018 to the 13th February 2019.

I enquired into the complaints being made and I asked the Respondent if they had detail with them in relation to the Public Holiday payments and other premium payments that may have been due to the complainant. They responded that they did not have this information but they could source it and submit it to the Tribunal subsequently. They would also make any payments due to the Complainant if any shortfall was identified.

I asked for their response in relation to the claim in CA -00026362-002 in relation to the complaint that they had discriminated against the Complainant.

They denied any discrimination against the Complainant.

I asked the Complainant’s manager if he had been aggressive in his manner towards the Complainant as the Complainant said in his brief submission. He said, in return, that he could have been angry with him on some occasions.

The Complainant had said that his manager “swore at him, on a number of occasions in a very unprofessional and aggressive manner”.

He said that the manager spoke to a work colleague of the Complainant on one occasion in the shop and said to the colleague, referring to the Complainant “can you ask the rotund black man to leave the shop now”. He says that he took this as a further discriminatory remark.

The Complainant said that he tried to have some colleagues, who witnessed this to come to the Tribunal to give their evidence in relation to this, but he said that they were all concerned about what might happen to them and their jobs if they presented witness evidence.

The Respondent said that they would check payroll details to establish whether the Complainant had received his entitlements and to do what was required to make good any shortfall.

I know that they subsequently wrote to the Complainant with proposals to make good deficits that they identified. They copied me on the correspondence but were unable to elicit a response from the Complainant.

They deny discrimination through racist comment to the Complainant, but do accept that the manager “became angry with the Complainant sometimes”.

I find that the subsequent actions of the Respondent are commendable in endeavouring to put right any deficit they found in the payments to the Complainant, as contained in CA-00026362-001 and I find that they must make contact with the Complainant and complete this process.

With regard to CA-00026362-002, I believe that the complainant was discriminated against by reference to his race/colour. I find it difficult to believe that he would have invented the language he gave in making this complaint. I believe the remark was made in anger by the Complainant’s manager. It is clearly racist and should not have been made.

I find that the Respondent must close out on the offers made to the Complainant in respect of underpayments articulated in CA-00026362-001.

In respect of the Complaint in CA-OOO26362-002, I find, on the balance of probabilities as articulated in my Findings, above, that the Complainant was discriminated against and I award him €2,000.