ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025205
Parties:
| Complainant | Respondent |
Parties | Savilla Teixeira Godinho | Rmc Promotions Limited Templeogue Afterschool Academy |
Representatives | Self | Self |
Complaint:
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-00031970-001 | 03/11/2019 |
Date of Adjudication Hearing: 10/02/2020
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Summary of Complainant’s Case:
On the 29th of August, 2019 the complainant was invited for an interview for a role at the Templeogue after-school academy. Following her interview, the Respondent, RC explained to the complainant that her duties would involve working in the kitchen preparing food for the children and to serve that food to the children. The complainant explained to the RC that her English wasn't perfect. The respondent, having interviewed to the complainant said that her level of English would not be a problem. The complainant commenced working for the Respondent on 2nd September,2019. Immediately, it became apparent to her that her role was different to that which was explained to her during the interview. She was instructed to look after the children in the playroom and play with the children in the forest and to help them with their homework. She spoke to the Respondent about her English stating that she didn't feel her English was good enough to carry out the tasks that she was charged with. He said that her English was okay. They complainant felt that the Respondent was very rude to her. He was aggressive and was continually shouting at staff within earshot of the children. One day when the complainant was in the kitchen preparing food she heard the Respondent shouting her and another employee’s name. Then she heard screaming. The complainant and the other employee went to him to ask him what was wrong. He replied in a very rude loud voice “both of you go work on your English”. “What language am I speaking, Japanese?” “Your English is shit”. After that day, the shouting happened every day. On the 12th of September the complainant was reheating food in the kitchen at around 4 pm. She could hear RC shouting her name over and over. When she came out of the kitchen area, she noted that the RC was in the playground area looking at twins playing with an iron stick or bar. He shouted at the complainant because she was not looking after those children when he said she was supposed to be. When the complainant tried to explain to him that she was in the kitchen preparing food for the children, he hit her on the mouth and held his hand over her mouth saying “don't speak, just listen.” The complainant got very frightened and she began to cry. He then shouted at her to go and get the twins and take them to the changing room to change their clothes. The complainant did what she was told but all the while she was desperately upset. A colleague came towards her and asked her what had happened. The complainant explained that RC had shouted at her and had hit her on the mouth and told her not to speak, just to listen. After the complainant had changed the twins clothing, she was approached by another worker who asked her what had happened. Again, the complainant explained that RC had hit her. That employee told her not to speak when she was around RC, just to listen, and that way he would behave himself. She also told the complainant that she was not the first employee that the respondent at made cry. The following day the complainant was frightened to go to work but a co-worker that she lives with told her that if she didn't go, the Respondent would not pay her weekly wages. She needed the money to pay for food and her rent. She also said that if she wanted to keep her job, she should forget what happened yesterday and not to say a word. IF she wanted to go she should just quietly write a letter of resignation. On Friday 13th September the complainant asked RC for her wages. She then told him that she would be going to Gardai about what happened. He said, “It’s not worth it, I am Irish, you are a simple Brazilian and your English is shit” On the 14th of September the RC text the complainant telling her that there was no work for her next week. The complainant became very frightened, so she spoke to her college teacher about the incident and he advised her to go to the Gardai and to file a claim with the WRC. She did both. The complainant feels that she was treated less favourably because she is Brazilian and because her English isn’t good. She was deeply upset and frightened about the assault and feels that only happened to her because she is not an Irish employee. Following the Respondent’s evidence, the complainant stated that there was no issue with herself and Ms F over a love interest. The complainant has been with her partner for 18 months. He is Croatian. She also lived with Ms F at the time. |
Summary of Respondent’s Case:
The Respondent denies all of the allegations made by the complainant during the hearing. He states that the complainant had an issue with another employee Ms. F and it was all over a love interest. Ms. F told the RC on Friday 13th that she couldn’t come into work anymore because she was being threatened by the complainant. She, Ms F had good English and was essential to the respondent’s business, so he decided to tell the complainant not to come in the next week. RC does not remember the incident on the 12.09.2019. He does know that 4pm is an extremely busy time and they are always under pressure at that time. He did not hit the complainant. He did not tell her, that her English was shit. He did not tell her she was a simple Brazilian. She has made it all up. The Respondent was contacted by the Gardai and informed that a complaint had been made against him To date he has not been charged with anything. He did decide to let her go because her English wasn’t good and because that in turn raised a potential health and safety risk to the children if she failed to understand important instructions in relation to a child with special dietary needs, for example. The complainant did not have a contract of employment. The respondent intended to get the contract out to the staff but said that September is an extremely busy month and he didn’t’ have the time. He did not invoke a disciplinary process in relation to the allegations made by Ms. F. |
Findings and Conclusions:
The complainant alleges that she was discriminated against by the Respondent on grounds of race and harassment. “Section 6(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated. (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are” (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),” The probative burden of proof that rests on a Complainant as was set out in Melbury Developments Limited v Arturs Valpeters IEDA09171 when it stated: "The Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85,4 places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule." The complainant alleges that RC, who runs the afterschool academy was very rude and aggressive towards her and shouted at her every day. On a date prior to the 12th September, RC, when the complainant asked him to speak more slowly, said to her “What do you think I am speaking, Japanese? Your English is shit” Then on the 12th September, whilst angry, hit her on the mouth, held his hand there, and said “don’t speak, just listen”. The Respondent denies the allegations. He alleges that the complainant made it all up. I note that the complainant has made a statement to the Gardai in relation to the alleged assault and that RC has been contacted by the Gardai in relation to the matter. No charges have been preferred against RC to date. The complainant states that she was treated the way she was because she is not from Ireland and does not have good English. The respondent would not have treated her in this way had she been from Ireland. RC when answering questions put by me was very evasive. I found his evidence to be less than credible. On numerous occasions he amended or changed previous evidence given and was unable to clarify certain matters when put to him. On that basis I prefer the complainant’s evidence which was corroborated in parts by documentary evidence. Having carefully considered the evidence of both parties, I find that the complainant has established a prima facia case of discrimination on both grounds. The respondent has failed to objectively justify the discrimination. I award the complainant €10,000.00. |
Decision:
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.
The complaint succeeds. I award the complainant €10,000.00 |
Dated: September 11th 2020
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly