Complainant

Respondent

Parties

Irena Grochowska

Quay Co-op ltd 

Representatives

Appeared in Person

Arthur Leahy and Sharon Healy

Act

Complaint Reference No.

Date of Receipt

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

CA-00023962-001

05/12/2018

This case concerns a complaint of racial discrimination by a Chef, a Polish National against her former employer. The claim was rejected by the Respondent who runs a food and beverage business.

Both parties presented their case orally with supplementary documentation support.

The Complainant is a Polish Chef who worked full time from 24 August 2010 to 23 November 2018 at the Respondent business. She made a primary request that details of her personal data be respected and this was agreed. She undertook to address the administrative section of WRC directly on this. The Complainant resigned in November 2018.

The Complainant submitted that she had been discriminated against on race grounds, where the most recent date of discrimination being 24 November ,2018.

On the complaint form received on 5 December 2018, the complainant submitted that she had one allegation, that she was unfavourably placed on duty rosters compared to Irish workers. She submitted that she was compelled to work shifts which they did not want to work, that is Thursday, Friday, Saturday and Sunday nights. She was the only Polish person in the kitchen.

The Complainant submitted a copy of several points of concern which she raised with her employer on 22 November 2018. These ranged from operational concerns in her role as chef and contended that working time discriminated against employees.

In her evidence at hearing, the complainant submitted that she had been subjected to unfavourable rosters

Thursday 1pm to 9pm

Friday         1pm to 9pm

Saturday and Sunday 7.30 are to 9 pm

She submitted that she had not received a contract of employment until 2017. The contract was in English. She listed her comparator as an Irish Chef who worked 7.30pm to 3.30 pm Monday to Friday. The Complainant told the hearing that she worked alone at the weekends and that the Irish Chefs had more favourable rosters.

She explained that she believed that she had been discriminated against for having to do more shifts and more duties than her comparator. She was also expected to work harder.

The Complainant confirmed that she received a 33% premium for working Sunday.

She recalled an episode at work in mid-November, where her colleague chef had indicated that she was departing for home in advance of the correct finish time. A disagreement had followed. She submitted that she was subsequently called to attend the office around 3.30pm. She was given a letter which she did not get translated until 25/26 November. She submitted that the letter, when translated conveyed that she had been given a formal warning for the disagreement, she found this to be very unjust.

During cross examination, the complainant confirmed that she completed the rosters in her role as Head Chef. She had stepped back from that role but had retained the rosters. She admitted that she left her employment because of the roster.

She confirmed that she had not received any disciplinary sanctions during her employment. She confirmed that she had not raised issues regarding the roster during her employment as she was afraid of losing her job.

The Complainant expressed a desire to be compensated for the wrongs she experienced.

The Respondent filed an early defence to the claim dated 28 December 2018. In this submission, the respondent denied discrimination.

The Respondent employs over sixty workers with fifteen from abroad. There had never been a difficulty with cultural differences. The Respondent has a zero-tolerance approach to bias.

The Respondent confirmed that during her eight years of employment, the complainant had been “an effective and diligent worker “However, she had frequently exhibited aggression at the perceived failure of other workers.

The Respondent referred to a pattern of verbal warnings followed by an application of a formal written warning dated November 17, 2018. This was in response to an altercation between the complainant and a fellow chef. The Complainant walked out of her employment a week later.

In his evidence at the hearing, the General manager, Mr A confirmed that the complainant was a good worker but had a sporadic temper from which she glossed over and covered up.

He recounted several instances where he applied verbal warnings to the complainant. He recalled an altercation at work involving the complainant and another worker on November 16. He deemed it “very serious” He obtained 3 statements of concern from staff. He was due to meet the complainant on 23 November at 3.30 pm. The complainant had been given a draft roster in response to her request for changes. She did not attend this meeting as she had walked out

Mr A confirmed that the complainants extended absences of 3.5 -4 weeks over a two-year period were placing pressure on the Irish chefs, who covered for her and thought they were unfairly treated. The complainant built up time to take in lieu. She had worked Mondays and Tuesday prior to taking these extended breaks to visit her family in Poland.

The Respondent did not have an Equality Policy but had comprehensive employment policies in place. There was a 20:60 ratio of non-national employees to Irish employees and the team worked cohesively and inclusively.

Mr A recalled that the complainant often made it hard for herself. She had not called the Kitchen Porter to assist her and he had often told her not to lift alone.

The Complainant was offered counselling and support for her anger management but refused.

Mr A confirmed that the initial job descriptions had been replaced by contracts of employment in 2017.

He stated that he was unaware of any complaints made by the complainant. He was clear that she was not expected to deal with things alone at work. she was offered support.

Ms B, Restaurant Manager.

Ms B commenced as Restaurant Manager in April 2018. She was unaware of any disciplinary issues concerning the complainant after this period.

She recalled the events of 16 November 2018. She had been approached by another worker who had reported that she believed the complainant was about to hit her. She was hysterical. The worker went home, upset and Ms B tried to address the situation with the complainant, but she could not see that anything was wrong.

The upset worker went on to make a complaint, having refused to work with the complainant.

On 23 November, the complainant was presented with a draft revised roster for her consideration. There was no further engagement, she left work early, never to return. Ms B denied that the complainant had been forced to leave.

Ms B recalled that she had then received a letter from the complainant date 23 November. This stated that because of discrimination on the roster and personal discrimination, the complainant was unable to work and intended to raise the matter in the Irish Court.

Ms B confirmed that the events of November 16 were not investigated. They were trying to manage it through support for the parties.

The Complainant had previously been offered an opportunity to move within the business but refused.

I have considered all the evidence both written and oral presented to me. At outlined earlier, I asked for additional documents at the conclusion at the hearing. I was grateful to receive these as requested to assist in my investigation. I am not able to accept documents and submissions external to this process from either party. The complainant identified the most recent date of alleged discrimination as November 24, yet her employment ended abruptly on November 23 as evidenced in both her own evidence and that of the P45.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a case of discrimination.

Burden of proof.

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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1) , facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘ discrimination ’ includes —

( a ) indirect discrimination,

( b ) victimisation,

( c ) harassment or sexual harassment,

( d ) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

It requires the complainant to establish facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in this, it falls to the respondent to prove the contrary.

In Arturs Valpeters v Melbury Developments [2010] 21 ELR 64, at the Labour Court provided that that these facts should be “of sufficient significance” before a prima facie case of discrimination is established.

I must first establish if the complainant in this case has met the test for a prima facie case of Discrimination in Valpeters .

The complainant has made a complaint of racial discrimination.

Discrimination for the purposes of this Act is defined in Section 6 of the Act.

6.— (1) 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) refers to race .

Section 8(1)(b) of the Act prohibits discrimination in employment . Section 8(6) outlines the context of discrimination on any of the named grounds if the employer does not offer or afford to that employee the same terms and conditions and the same treatment as the cited comparator .

The Complainant in this case has cited her comparator as a female Irish Chef .

The complaint was presented to the WRC two weeks post the cessation of an eight-year employment history, when the complaint walked out of her job. I note that the complainant has submitted that English is not her first language and she has relied on external translation to assist in translation of documents. I enquired if the complainant was comfortable to deliver her evidence in English as she had not requested an interpreter and she stated that she was. However, the complainant was dissatisfied when I sought to advise her as a Lay Litigant on the running of the hearing. She sent an email one day post hearing re-affirming that she had been dissatisfied by her treatment from her former employer.

It was not disputed that the complainant was a good worker. However, it was clear to me that the complainant did not appear to have a recollection of receiving verbal warnings during her work.

I requested  records to corroborate this contention from the respondent. I received some notes from 2014 and 2016 which appeared to be counselling notes and stopped short of formal invocation of a Disciplinary Policy. It may be of note that the contract, linked with the employment policies seemed to have a 2017 inauguration date. I can now understand and appreciate the complainants lack of comprehension of a receiving formal warning prior to November 2018.There was no record of formal warnings.

However, I took from the respondent evidence that there had been several challenging staff relations moments involving the complainant. I also adduced this from the complainant’s own evidence, where it was clear that she believed that she was unsupported in her work and expected to do more than her colleagues, some of whom were unqualified and some who had health and age challenges in a kitchen setting. This goes to the heart of the case and sadly was not teased out through a grievance before the events of November 16, the altercation between the complainant with a fellow chef.

By sharing the letter of November 17 with the complainant, who admitted that she did not get it translated until after her employment ended, the respondent in my opinion acted unfairly towards the complainant. He issued a formal warning without giving her a chance to be heard and represented. The Respondent had some awareness of this wrong on the day of the hearing but qualified that the respondent had run out of patience with the complainant. I have found that this was a clumsy and precipitous action by the respondent through a lack of reliance on the local disciplinary policy rather than an action linked to the complainant’s race. I have also found that the complainant had no apparent awareness of the message intended until after her employment ended, when she told the hearing that she had obtained a translation of the document.

The Respondent did not have an Equality Policy and unfortunately did not retain adequate notes of meetings.

However, it is not disputed that the complainant wrote the rosters. She rostered herself off before extended breaks and by her own admission banked time to have back during her trips home to Poland. This demonstrated a tacit acceptance of the roster by the complainant, who confirmed at hearing that she had not formally raised issues with the roster earlier than 22 November 2018.

Yet, she harboured a resentment at how she viewed she was expected to work as opposed to her Irish chef colleague. She had sought changes in the rostering system but did not stay to process those requested changes. She described a sense of isolation when required to work weekends. However, her contract demonstrated an agreement to work over a 7-day week. My perusal of the rosters submitted by the complainant pointed to many weekdays worked by the complainant, where others covered the weekend. I could not establish that she was treated less favourably on these work systems because of her race.

It seemed to me that the complainant was feeling under pressure at work both through the rostering and work operations. It would have been reasonable for her to raise her concerns   through the grievance procedure, in the first instance.

In her communication to management a day before her employment ended, the complainant raised the topic that the working time was discriminatory, but she did not have evidence of this.

At the hearing, the complainant adopted the same message and sought compensation for severance and for her treatment at work. The Respondent, on the other hand was visibly upset to be accused of discrimination. He was clear that it was contrary to the ethos of the business and denied this claim. He spent a lot of time explaining that the employer had done all they could to assist her at work but were struggling to pick up the pieces from her frequent outbursts when she believed that staff had fallen short in their performance.

For my part , I found that the complainant was placing herself under pressure in the workplace .It was clear that she worked hard and had exacting standards which she honestly believed were not shared by her work colleagues .For the last three years of her employment , she seems to be over working and building up banks of time to facilitate her family visits home .She explained that she had managed to relaunch into new work on leaving the respondent and was happier there . I suspect that she may have experienced burn out in the respondents employment , particularly when she explained her weariness regarding food preparation and how isolated she felt in that chain .It is clear that she felt alone , which was not assisted by her lack of proficiency in English .It is regrettable that the employment ended so abruptly as much could have been achieved by an attempted mediation at least .

I have been asked to decide if the complainant has satisfied the test in Valpeters as laid down by Section 85A of the Act?

I have established that the complainant was unfairly treated in the management of the November 16 altercation. However, I found that she acted unreasonably in submitting a letter of complaint about rosters and work patterns on November 22 only to resign abruptly the next day on receipt of the new revised draft rosters, without giving the respondent a chance to change her weekend working.

I appreciate that the complainant had an honest belief that she was wrongly treated at work. However, for me, at least, I have not established facts of enough significance from which I can infer discrimination based on her Polish nationality. I have instead found an unhappy working relationship brought to an arbitrary end by the complainant for her own welfare reasons. She has not met the test of prima facie discrimination.

I find her claim of discrimination on grounds of race to be not well founded.

Decision:

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

In reaching my decision, I have had regard for all the submission, written and oral advanced prior to and during the hearing as well as the requested documents post hearing.

I find that the complainant has not satisfied the prima facie test for discrimination on race grounds. I find her complaint to be not well founded.