Complainant

Respondent

Parties

Filipe  Ongaro

Guestford Limited

CA-00041998-001

I determine that the employee was not dismissed arising from making a complaint concerning racial discrimination and for opposing discrimination and was not victimised.

CA-00041998-002

I determine that the employee was racially discriminated against.

I note that the interaction complained of was not a repeated pattern and occurred on one shift. I also note that the manager and Hotel have apologised for the conduct. I award the complainant compensation of €12,500 for the effects of discrimination being an amount that is proportionate and dissuasive.

Discriminatory Dismissal- Race-Discrimination

Complainant

Respondent

Parties

Filipe  Ongaro

Red Cow Moran Hotel

Representatives

  Self

 HR Manager

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-00041998-001

15/01/2021

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

CA-00041998-002

15/01/2021

The complainant states the following:

·       I say the respondent treated me unlawfully by discriminating against me in dismissing me because I opposed discrimination

·       I say that I have been discriminated against by reason of my race

The complainant commenced employment on 4th of December 2020 and alleges that it ended on the 5th of December 2020 arising from an exchange between the complainant and the General Manager of the Hotel. It is alleged that the General Manager at a busy function, addressed the complainant as Chico. The complainant had a name badge with his name on it and was taken aback at how he was addressed by the manager and requested that he refrain from doing so. The manager again referred to him as Chico. The complainant didn’t know who to complain to and contacted the employment agency that had placed him in the role. However, he was not working as an agency worker and was placed with the Hotel as an employee. The next day when he started his shift, he was still very angry and found it hard not to talk to others about how he was treated. The Duty Manager asked him to go home because he was so upset.

The General Manager stated that he calls everybody Chico and he had no intention of offending or upsetting the complainant. He apologised and realises that the term he used was offensive but he did not at the time. He stated that it was the first night of the Christmas season and the function room was hectic, with a lot of new staff commencing. He stated that he did not single out the complainant to call Chico rather it was a term that he used generally and which he is now very embarrassed about.

The complainant initially believed that he was sent home by the duty manager as a punishment and as a consequence he lost potential earnings over the Christmas period. Later, as part of the investigation of the complaint, it became clear that the complainant was directly employed by the Hotel and not an agency worker.

The complainant states that he was penalised for opposing discrimination and also that his immediate manager discriminated against him when he referred to him as Chico.

The respondent apologises for the use of the term. No insult was intended and that term was used to refer generally to persons and was never intended to cause offence.

CA-00041998-001

The employee believed that his employer was the employment agency who placed him with the Hotel, and had taken up his complaint in the first instance with the Agency:

My Agency, [name] Recruitment sent me to work as a waiter in the Red Cow Inn on 04/12/2020. I was told that this would be a permanent job during the busy Christmas period

The next day I sent an email of complaint to Ciara [Agency Name] Recruitment and when I reported for work that night I was sent home and although I was paid for that night, I did not get the work that I had been promised coming up to Christmas. I feel I have been discriminated against because of my nationality and have been treated very unfairly and have lost employment because I stood up for myself.

The Adjudicator wrote to the respondent on the 1st December 2021 as follows:          

Dear Mr Whelan,

As part of my investigation into this complaint please provide the following:

•            The Shift Roster for the 2 weeks after Mr Ongaro is told to go home

•            Mr Ongaro’s contract of employment

•            A copy of your staff handbook

•            Please confirm what date Mr Ongaro was taken off payroll and the date that this   was confirmed to Revenue. Please provide this information by the 14th of December 2021

Yours sincerely,

The company has a comprehensive and progressive policy concerning dignity and respect at work:

Starter Pack:

Company Induction

As part of the Moran Group’s induction process, all new employees and those transferring at every level will be made aware of:

·       The Group’s commitment as an Equal Opportunities Employer to the promotion of diversity within the work environment

·       The meaning of equality  of opportunity and the standards of behaviour required of employees at every level towards work colleagues customers and third parties

·       How to recognise discrimination and work together to eliminate it

·       Their duty to comply with the Group’s Policy and the penalties for any breach of this Policy

·       How to raise a matter of concern

 No evidence of induction as set down in the policy was provided; albeit the complainant had only commenced work that day. The complainant believed that he was employed by the Agency that placed him. Based on that belief he complained to the Agency and initially brought this claim against them, who are not the employer in this case.

The Hotel and General Manager fully co-operated with this investigation and offered to make good the loss of Christmas pay arising from this incident. The manager has apologised for the language used and accepts that it was an offensive, inappropriate remark.

The complainant was never taken off the Hotel books as an employee, so on the face of it; he was not dismissed. A very large number of employees appear to have been taken on for the busy Christmas period. After January 2021 the Pandemic meant that hotels were closed.

Under oath at the hearing, the Duty Manager stated that he asked the complainant, on the second day of work, to go home because he was so upset. He was paid for the shift and at no time did it cross the Duty Manager’s mind or anybody else’s in management that the complainant was being let go. The complainant under oath also accepted that he was very upset on the following day and distracted from doing his job.

The Payroll Supervisor in an email dated 2nd December 2021 confirmed that the complainant was not let go and was still on their books. His last week of payment was week 49 and was the only week of payment.

The complainant was named on the shift roster for Week Commencing 49; 50 and 51.

The complainant states the following:

·       I say the respondent treated me unlawfully by discriminating against me in dismissing me because I opposed discrimination

·       I say that I have been discriminated against by reason of my race

Extensive legal protection is afforded to an employee who suffers detriment arising from making a complaint; in Equality Law in the Workplace [ Bloomsbury 2015], Purdy  details the protections afforded to a complainant:

[7.01]

Article 24 of the Recast Directive 1 provides that:

‘Member States shall introduce into their national legal systems such measures as are necessary to protect employees, including those who are employees’ representatives provided for by national laws and/or practices, against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment.’

Article 24 thus provides for protection against victimisation. In addition, Art 9 of the Race Directive 2 and Art 11 of the Framework Directive 3 provide protection against victimisation.

[7.02]

Section 74(2) of the Employment Equality Acts 1998–2011 defines victimisation as dismissal or other adverse treatment as a reaction to a complaint of discrimination made by the employee to the employer;

In Paul O’Neill v Tony & Guy Blackrock Limited [2010] ELR 21, the Labour Court made the following comments in relation to the “but for” test:

“The detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he, or she, would not have suffered the detriment. This involves the consideration of the motive, or reasons, which influenced the decision maker in imposing the impugned detriment.”

On the balance of probabilities the evidence indicates that the complainant was sent home not as a punishment but because he was profoundly upset arising from what had occurred the previous shift.

Based on the facts the complainant was not victimised for making a complaint against the General Manager. His name appeared on the roster for the subsequent 2 weeks, his employment was not terminated by being removed from payroll. The response to a query from the Adjudicator as part of the investigation shows that he remained an employee. He was asked to go home; however, that was in the context of being very upset arising from the incident and not as a punishment. He was paid for his shift that day. The employee refers to his loss in his complaint form as covering the Christmas period:

“I was told that this would be a permanent job during the busy Christmas period.”

The employee believed the Recruitment Agency was his employer until quite recently; when the Agency as part of this investigation clearly put on record that they acted as a recruitment agent only in so far as they identified staff to be hired directly by  the Hotel.

On the facts there appears to have been a degree of confusion where the employee formally raised his complaint with the wrong respondent; the employee is sent home by the Duty manager but not to punish him but because he is visibly upset and the payroll records along with the shift roster indicate that he was still on the Hotel books as an employee. I determine that the employee was not victimised.

CA-00041998-002

The employee states:

I started work around 5 30 and was wearing my uniform and my name tag. As part of my duties I had to give the dockets with the food orders to Colm and while I was doing this he began to call me 'Chico' although he could clearly see my name tag with my name on it at all times. The first time he did this I said 'Excuse me, what did you call me' and he continued to repeat 'Chico, Chico'. I asked him not to speak to me like this and pointed out that my name was Filipe but he dismissed my concerns and said he talks to everyone like this. I was very uncomfortable for the remainder of my shift and there was no one to complain to as Colm Murphy was in charge.

The Employment Equality Act 1998 as amended( The Act), defines racial discrimination at section 6 as:

6.— 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,

And the Race Ground in section 6 is defined as:

( h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “ the ground of race”),

Neither party was legally represented at the hearing and the Hotel Manager, regrets what he said; however, he generally referred to all staff in that way. The Hotel’s policy clearly states the following:

As part of the Moran Group’s induction process, all new employees and those transferring at every level will be made aware of:

·       The Group’s commitment as an Equal Opportunities Employer to the promotion of diversity within the work environment

·       The meaning of equality  of opportunity and the standards of behaviour required of employees at every level towards work colleagues customers and third parties

·       How to recognise discrimination and work together to eliminate it

·       Their duty to comply with the Group’s Policy and the penalties for any breach of this Policy

·       How to raise a matter of concern

There can be no question that the term Chico is offensive and is a derogatory term for people of Latin American descent. In an employment context where the workforce is comprised of many staff members from diverse backgrounds and different nationalities such a term is starkly at odds with the Hotel’s stated policy. The facts are not in issue concerning the use of the term. However, what may be relied upon is the defence, that the term was used generally and therefore does not constitute discrimination. The respondent does not rely on section 14A(2):

(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1) , it is a defence for the employer to prove that the employer took such steps as are reasonably practicable —

The Act defines Harassment as:

14A. — (1) For the purposes of this Act, where —

( a ) an employee (in this section referred to as ‘ the victim ’ ) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘ the workplace ’ ) or otherwise in the course of his or her employment by a person who is —

(ii)                employed at that place or by the same employer, 

(7) ( a ) In this section —

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

being conduct which in either case has the purpose or effect of violating a person ’ s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

The employee states that he was taken aback with the manager calling him  Chico:

. The first time he did this I said 'Excuse me, what did you call me' and he continued to repeat 'Chico, Chico'. I asked him not to speak to me like this and pointed out that my name was Filipe but he dismissed my concerns and said he talks to everyone like this

The manager was informed by the employee that the term was offensive and was asked not to call him that and he continued relying on the fact that he talks to everyone like that.

Section 85(A) requires that a prima facie case is first made out by the complainant:

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 complainant also carries the burden that he is a person that 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 ’ ) .

Regan and Murphy in Employment Law ( 17.12 Bloomsbury 2nd Ed 2017) state:

‘Less favourable treatment’ is more commonly known as ‘direct discrimination’ although that particular phrase is not used in the Employment Equality Act. In general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant. If a complainant is unable to demonstrate that the chosen comparator/s were treated less favourably, if for example all employees were treated equally poorly or unlawfully, 45 the claim of discrimination will fail. The wording of s 6 ‘would be treated’ allows for the use of hypothetical comparators in appropriate circumstances of alleged discriminatory treatment, other than in relation to equal pay where an actual comparator is required

Based on the evidence of the complainant which I believe to be truthful and credible; I determine that on the facts of this case the use of the work Chico by the manager and the continued use of the word when it was brought to his attention was offensive when compared to a person of different race, colour, nationality or ethnic or national origins andconstitutes a prima facie case of discrimination. The continued use of the term Chico when clearly informed that it was offensive constitutes harassment.

Is it a defence to state that all employees were called Chico? Would a chosen comparator, such as a hypothetical person of Irish origin be called Chico? If so; then in turn that is a rebuttal to the prima facie case of discrimination. I don’t find that defence credible; the term Chico on the balance of probabilities would not have been used when referring to a person of Irish origin and therefore the rebuttal of the prima facie case fails.

As I have determined that a prima facie case of racial discrimination has taken place the burden shifts to the employer to rebut that inference or presumption of discrimination. As that presumption has not been rebutted I determine that the complainant was discriminated against.

Case Law reveals a wide variance regarding the awards made concerning harassment, in Equality Law in the Workplace [ Bloomsbury 2015], Purdy references a number of relevant cases at Chapter 8:

[8.32]

In the case of Odion v Techniform (Waterford) Ltd, 38 a Nigerian national was awarded €7,500 as a result of being subjected to remarks regarding his nationality and colour. Despite the fact that the company had appointed an independent investigator to deal with his complaints, and that the investigator found that there was no foundation to his claims for bullying and harassment, the Equality Officer was not satisfied that the outcome of the investigation adequately described the circumstances between the workers.

[8.33]

In the case of Worker v Engineering Company, 39 an award of €20,000 was given to a British national who alleged that during the course of his employment with the respondent he was subjected to constant harassment because of his race, which included name calling, sniggering and his colleagues gathering around him and singing anti-British rebel songs while jumping like a football crowd. This caused him to take lunch in his car. While he did not make a complaint during the course of his employment, the Equality Officer deemed that this was not material, as his supervisor at the time had also participated in the treatment that was the source of the complaint

[8.34]

In Female Employee v Company, 40 the complainant claimed that she was sexually harassed and victimised resulting from the behaviour and lewd comments made by a foreman, manager and other colleagues in the company. The employer’s defence to these claims was that the comments were not unwelcome, as the claimant would often partake in the ‘banter’ and no complaints were made until 1997 (two years after she claimed the harassment began). The Labour Court heard the conflicting evidence presented by both parties and concluded that the conduct of her fellow colleagues amounted to sexual harassment.

[8.35]

The ‘banter’ defence/argument has not often gone in the favour of the employer, as can be seen in this case and also in Worker v Engineering Company discussed above. It seems that where there is conflicting evidence, the tribunal will generally find in favour of the injured party once he or she has established a prima facie case of harassment in the first instance

Section 82(a) provides for the following in terms of redress:

a ) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of —

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) € 40,000,

I note that the interaction complained of was not a repeated pattern and occurred on one shift. I also note that the manager and Hotel have apologised for the conduct. I award the complainant compensation of €12,500 for the effects of discrimination as a proportionate and dissuasive award. The complainant at the time of the hearing had gained employment in a new role. While I note the apology, the behaviour continued when the offensive term was brought to the manager’s attention. The Hotel closed in January 2021 and remained closed for several months with staff in effect on lay-off.

CA-00041998-001

I determine that the employee was not  dismissed arising from making a complaint concerning racial discrimination and for opposing discrimination and was not victimised.

CA-00041998-002

I determine that the employee was racially discriminated against.

I note that the interaction complained of was not a repeated pattern and occurred on one shift. I also note that the manager and Hotel have apologised for the conduct. I award the complainant compensation of €12,500 for the effects of discrimination being an amount that is proportionate and dissuasive.

Discriminatory Dismissal- Race-Discrimination