Complainant

Respondent

Anonymised Parties

Kitchen Porter

Restaurant

Representatives

self 

Head Chef

Owner

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-00033359-001

20/12/2019

The Complainant was employed as a Porter from 14 November 2019 to 1 December 2019. The Complainant is claiming he expected the minimum wage but was not told what rate. The Complainant was paid at a rate €9 per hour cash for 22 hours worked which equalled €198.00. The Complainant was paid cash as he had no bank account.

The Complainant alleged that he was harassed by the Respondent, the most recent date was 8 December 2019. The Complainant’s claim states the Respondent had unlawfully discriminated against him by not giving him training, discriminated against him by reason of race, treated him unlawfully by discriminating against him in conditions of employment, dismissed him for discriminatory reasons, and treated him unlawfully by discriminating against him and dismissed him because he opposed discrimination.

The Complainant worked for 3 weeks after which he reported to his boss an issue he had with a fellow employee.  He alleges that his employer responded by sacking him from work and confiscated his weeks’ time log card to destroy the evidence that he worked that week, and he was dismissed without payment immediately.

The Complainant states he was discriminated against due to his race as he is African. He claims he was not paid for all the hours he worked.  He states this is discrimination.

The Complainant states he worked 104 hours and was only paid for €494.00.

The Complainant states that when he started, he was a cleaner and was due to be finished work before other employees arrived.  There was a Supervisor still there before he left.  He stated that a girl (the Supervisor) would shout at him to hurry up and get his work finished and when he reported the girl to his boss he was victimised and lost his job and was not paid.

The Complainant states his card to clock-in was stolen from the rack it was held in.  He therefore did not sign in for his final shift that week.

The Complainant states his boss (Head Chef) paid him €280.00. This was usually a week in arrears.  He asked for the extra week but was told that was all he was due. The Complainant states his boss asked him to leave on 1 December 2019 and said he shouldn’t come back and if they needed him, they would call him.  The Complainant went to the premises to demand his outstanding money. The Respondent asked him to leave as he had reported a fellow employee for harassing him. The Complainant stated he did not know why the girl was harassing him.  The Complainant states that when he applied for the job, he needed a contract of employment to show proof of his address to get his PPS number so that he could open up a bank account.  He didn’t get the contract of employment as it was the day he complained about his colleague he was due to get it.

The Complainant was not paid the outstanding money due to him so he demonstrated outside the restaurant and had two placards saying ‘Pay My Money and Equality doesn’t hurt’. The Respondent called the Guards to take the Complainant away from the premises.  The Complainant states the Gardaí came and came again a second time to push him away from protesting.  The Complainant was detained and released later.  He felt the Guards were facilitating the Respondent. The Complainant was released that night and spent it outside until he got a bus.

The Complainant had no money left so he went and got a loan from someone and went back home. The Complainant believed this behaviour occurred so he wouldn’t demand his payment again from the Respondent.  He confirmed he only got paid for 22 hours up to 17 November 2019 but stayed working until 1 December 2019.  The Employee says 30 minutes after the restaurant closes isn’t enough time to finish wash up. At weekends it didn’t close until 11pm.  He confirmed he worked different times referencing different finish times. The Complainant states he was paid half the money in cash but not the balance and the Respondent used the Bank account as an excuse and this was not justified.

The Complainant states the employee barked at him and shouted at him and said “march out of my sight” and made him leave his work incomplete. The girl harassed him.  The Complainant complained about her and then lost his job as a result.  The Complainant stated he did not feel the girl discriminated him but he said the Respondent and Head Chef discriminated against him and victimised him and involved the Guards in the victimisation also. He stated he was not treated the same as everyone else at work due to his race. The Complainant stated that the Respondent said when he was protesting, he would have him deported to Africa.  He stated the Respondent also decided what the girl did was right without even talking to her.

The Complainant confirmed on his CV that it was clear that he was originally from Uganda and was a Swedish citizen. The Complainant confirmed there was no issue with his right to work and he could also have been paid cash for the remaining weeks he worked as he had been initially.

The Respondent who was the owner of the business advised and agreed to change the Respondent name on the claim form as he stated he was not personally the Employer, it was his company that has been changed accordingly.

The Respondent confirmed he has been in business for 25 years and he has lots of different nationalities working for him and still does. The Respondent confirmed the Restaurant closes at 9pm and the wash needs to be finished by 9.30pm i.e. the role the Complainant was conducting. The Respondent confirmed he does not have a relationship with the Gardaí and he is in no way corruptive. He stated it is nothing to do with the colour of the Respondents skin.

The Respondent confirmed he needed the Complainant’s Bank Details and PPS number to pay holiday pay that was due.  He confirmed the Complainant was paid for all the hours he worked.

The Respondent stated that his wife came into the Restaurant and she asked the Complainant’s name and he said ‘you pronounce it better than I do myself’ that this indicates that there was no discrimination.

The Respondent confirmed that the girl in question had just had a baby and wanted to get home. The Complainant’s hours were rostered to finish at 9.30pm so he should have left then. The Respondent stated that when he was protesting, the Complainant said to him that “he’d cut his head off”.  The Respondent said he treated him with respect as he did with all the staff.

The Respondent confirmed contracts are issued by the Accountant when they have all the details before him including PPS number etc. The Respondent denies the Complainant ever said he didn’t have a PPS/Bank Account. The Respondent states the Complainant said he did and he would bring them in.

The Respondent’s Head Chef who was a witness at the hearing confirmed they required a kitchen porter and the Complainant got the job.  The Head Chef stated the Complainant said he has his PPS number and Bank Account and could work in Ireland.  The Head Chef gave him a trial week. The Respondent’s Head Chef stated the Complainant was treated the same as everyone else including breaks and access to food and drink etc. The Respondent’s Head Chef confirmed after a few days they told the Complainant he should be finished by 9.30pm and the other girl was closing up as she had a young child.   The Complainant was not finished on time and the girl told him this wasn’t good enough.  The Head Chef stated the girl was only following the rules. The Respondent’s Head Chef confirmed that after the Complainant’s week’s trial he gave the clock-in sheet for 22 hours and was paid that those hours.  The Complainant signed the timesheet on 17 November 2019.  The Complainant did not receive a contract as he was only on a trial. The Respondent’s Head Chef confirmed they would keep the Complainant on after his trial week once they received his PPS number and Bank Account details.  The Complainant was informed that once he presented these details, he would be employed but could not keep him on until they received the details due to insurance. The Respondent’s Head Chef states the Complainant got aggressive and started shouting about his money. He said ‘you got your money’. The Respondent’s Head Chef states the position was open to him for 2 weeks hoping he would return with details but he returned 2 weeks later with placards and was protesting. The Head Chef stated this was not the right way to approach the situation and he said the Complainant was lying. The Complainant was scaring fellow staff and the Guards were called.  The Respondent’s Head Chef confirmed they have lots of nationalities working in the organisation with a Polish Chefs working there for 15 years. In addition, the Respondent has employees from the Congo and Lithuania additionally.

In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of the investigation as well as the evidence presented at the hearing.

The Burden of Proof in the Employment Equality Act, 1998 (hereinafter, “the 1998 Act”) and the Equal Status Act, 2000 (hereinafter, “the 2000 Act”) is set out in section 85A of the 1998 Act and in section 38A of the 2000 Act. The definitions are almost identical. Section 85A states:

“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.”

Section 38A states:

“Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.”

The definitions of harassment in the 1998 Act and the 2000 Act are identical; they are contained in section 14A (7) and section 11 (5), respectively:

“(7) (a) In this section —

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

Section 85A of the Act now provides for the allocation of the probative burden as between the Complainant and the Respondent in cases coming with its ambit. This section provides, in effect, that the Complainant bears the initial burden of proving facts from which discrimination may be inferred. If those facts are established, and if they are regarded by the Adjudicator as of sufficient significance to raise an inference of discrimination, the onus passes to the Respondent to show that the principle of equal treatment was not infringed in relation to the Complainant.

Where the probative burden shifts the Respondent must show a complete dissonance between the discriminatory ground relied upon and the impugned conduct or omission. Thus, in Wong v Igen Limited [2005] IRLR 258 (a decision of the Court of Appeal for England and Wales), Peter Gibson LJ pointed out that where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.

The onus which the Respondent bears is to prove that there was no discrimination whatsoever in the impugned decision. The standard of proof is the normal civil standard of the balance of probabilities. In Miller v Minister for Pensions [1947] 2 All ER 372 Denning J (as he then was) explained in relation to that standard: -

“If the evidence is such that the tribunal can say: ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal is not”

In deciding on this complaint, 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 onus shifts to the respondent to rebut the inference of discrimination raised.  

The Complainant has presented evidence through his written and oral submissions which constitute a prima facie case and based on this evidence I find that the Complainant has established the burden of proof in regard to his complaint. The complainant is African and is coloured. He alleges that the way he was treated was not comparable or fair in comparison to the fact if he was not African or coloured.  The Respondent confirmed they have many nationalities and races working in the business and he was treated fairly and would still be employed if he was able to present the required documents to facilitate him to be put on the payroll and be able to prove he could work with them legally. 

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 her. If 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(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “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) ...”. Section 6(2)(h) they are of different race, colour, nationality or ethnic or national origins, (in this Act referred to as “the race ground”).

I have considered the decision of Melbury Developments v Arturs Valpetters [EDA 0917] the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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 …… the burden of establishing the primary facts lay fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule”.

It is confirmed in Melbury Developments, the Complainant must “establish facts from which discrimination may be inferred... Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn …… the burden of establishing the primary facts lay fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

 Therefore, the evidence produced by the Complainant must be of a sufficient strength and/or significance to raise a presumption of discrimination which then arises for answer and/or rebuttal by the Respondent by way of proving non-discriminatory reasons for the unfavourable treatment. The mere difference in for example, Civil Status or Race, and a difference in treatment, cannot in itself provide a sufficient evidential basis upon which to raise a “presumption of discrimination”.

Having considered the evidence I am satisfied to conclude that the Complainant has not established relevant facts to which give rise to the presumption of discrimination on the part of the Respondent.

In this case the Complainant was advised by the Respondent that he needed to be finished his shift by 9.30pm. The Respondent had rostered another employee who needed to go home as soon as possible after her shift due to family reasons. It is alleged by the Complainant that this employee spoke to him inappropriately. The Respondent has confirmed that the employee advised the Complainant that it wasn’t good enough to not be finished and confirmed that she was only following the rules and she wanted to go home at that time as she was locking up. At the hearing the Complainant said he did not feel that she discriminated him however he did feel that he was discriminated against when his boss and the owner finished up his employment after that.  They say the reason for his employment finishing was due to the fact he could not present his correct documentation to facilitate him to be put on the payroll so they did not continue his trial period as a result.  I find this was the case and therefore I conclude that the employee has not met the burden of proof required to meet the prima facia case of the legislation.

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 evidence presented did not meet the required standard of significance required to establish a prima facie case that in turn would require the respondent to rebut an inference or presumption of discrimination on the ground of race.  Therefore, I find that this claim is not well founded based on the evidence provided and the complainant was not discriminated on the ground of race.