Complainant

Respondent

Parties

David  McDonagh

Harmony Catering Services Limited

Complainant

Respondent

Anonymised Parties

Representatives

Mr. Darach MacNamara BL, instructed by Dillon Geraghty & Co Solicitors

 Mr. Niall Quinn BL, instructed by O’Hanrahan & Company Solicitors

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-00036379-001

27/05/2020

The Complainant commenced employment with the Respondent on 31st January 2020. The Complainant was engaged as a chef, for which he received an hourly rate of €10.10 per hour. The Complainant’s tenure of employment was brief, with the same being terminated on 10th February 2020, some 11 days following his commencement.

On 27th May 2020, the Complainant lodged the present complaint with the Commission. Herein, he alleged that he was dismissed following the Respondent becoming aware that he is a member of the travelling community. The complaint form alleged that the Complainant suffered “discriminatory dismissal” on the grounds of “membership of the travelling community”. By response, the Respondent denied this allegation. They submitted that the Complainant was dismissed during a “trial period” on the basis that he did not possess a sufficient level of skill to satisfactorily complete the tasks associated with the role.  

A hearing in relation to this matter was convened and finalised on 25th November 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

No objections as to my jurisdiction to heat the matter were raised at any stage of the proceedings.

The Complainant outlined that he completed a course in Culinary Arts in Drogheda Institute of Further Education. He stated that as part of the course, he worked as a chef in a busy hotel environment. Following the completion of this course, he worked for five months as a commis chef.

In January 2020, the Complainant applied for a role as commis chef with the Respondent. Shortly thereafter he was interviewed for the position by the head chef. The Complainant’s interview was successful, and he commenced employment the following day, 31st January 2020. The Complainant’s evidence was that he was informed that this day was to be considered a “trial day”, to assess his suitability for the role. After this date, the head chef stated that he was happy with the Complainant’s performance and that he intended to speak with the Managing Director of the business to confirm the Complainant’s ongoing employment.

The Complainant met the Managing Director on 4th February 2020. During the Complainant’s shift, the Managing Director approached him enquiring about their prior acquaintance. In the course of this conversation, it was confirmed that the Complainant had met the Managing Director following a social event some years ago. The Managing Director stated that he recalled the interaction, and that he recalled dropping the Complainant to his home address following the social function.

The Complainant was next rostered to work on 9th February 2020, however the premises was closed due to inclement weather and the shift was cancelled the previous day. On 9th February, the head chef informed the Complainant that there was no work for him and that the Respondent would contact him when they needed him again. On the 10th February, the Complainant received a further message from the head chef. Here, he was informed that the head chef had spoken with the Managing Director and although they “liked his personality” they believed his lack of skill rendered him rendered him unsuitable for the role. The Complainant stated that this communication came as a complete shock to him as he had understood that he had passed his trial and that the head chef had previously communicated that they worked well together.

By submission the Complainant’s representative submitted that the Complainant had been dismissed on the grounds of his membership of the travelling community. He submitted that no issue was taken with the Complainant’s performance during the initial trial day or at any stage of his short employment. He further submitted that the Respondent clearly had no difficulty with the Complainant’s experience, as he was successful at interview. The Complainant’s representative submitted that difficulties only arose when the Managing Director recognised the Complainant as a member of the travelling community, after which he was dismissed. It was submitted that the conversation with the Managing Director of 4th February clearly identified him a such an individual, particularly in circumstances whereby the Managing Director stated that he recalled bringing the Complainant to his address.

In summary the Complainant submitted that he was dismissed on the discriminatory grounds of membership of the travelling community and that consequently, the Respondent is in breach of the Act.

By response, the Respondent denied the Complainant’s allegation. The head chef stated that he met the Complainant in January 2020. While this meeting took the form of a job interview, the head chef stated that the Complainant’s employment was dependent on his completing a trial period. He stated this this trial period did not have a specified period of time but that such trials are usually one week in duration.  The head chef stated that the Complainant completed his first day satisfactorily. However, the head chef stated that this day was atypically quiet, and that he did not a chance to observe the Complainant during a busy time. The Head Chef stated that the 4th February was a more typically busy day. He stated that the Complainant did not perform to a satisfactory standard on this date and that he had concerns regarding the Complainant’s ability to perform the role.

The Complainant was due to work the following Sunday 9th February 2020. However, due to severe weather conditions the premises was closed and the Complainant was not required to work on that day. This period allowed the head chef to reflect on the Complainant’s suitability for the role and discuss the same with the Managing Director of the Respondent. Following a discussion in relation to the same, it was agreed that the Complainant was not suitable for the role, and that he had not completed his trial period. The following day, the head chef sent a text message to the Complainant advising that he had not passed his trial period and that his employment was terminated. He stated that the decision to dismiss was not his alone but was a joint decision between himself and the managing director.

In answer to a question the head chef denied that the Complainant had passed his trial period on the first day of his employment. Rather he stated that the first busy day was the Complainant’s trial as this would be the first time he had an opportunity to observe him in such an environment. He accepted that he informed the Complainant that the first day went well and that he did not raise any issue with the Complainant directly regarding his performance at any stage of his employment. On the advertisement for the role being opened to him, the head chef accepted that this stated that “as commis chef you will learn everything there is to know about Irish food and produce”. The head chef also acknowledged the difficulty in hiring chefs and accepted that he had difficulty in filling the role prior the engagement of the Complainant.

In evidence, the Managing Director stated that his role was not primarily in food preparation and that the Head Chef was charged with most of these duties. He stated that 4th February 2020 was a particularly busy day for the business. On this date he observed the Complainant having difficulties in the kitchen. Towards the end of the shift the Managing Director stated that he spoke with the Complainant in a friendly manner, as many colleagues do at the end of shift. He stated that the natural course of these conversation relates to where the person is from and whether they had a prior social acquaintance. In evidence, the managing director accepted that he identified the Complainant from a prior acquaintance. He further accepted that he dropped the Complainant to his address on that occasion. While the Managing Director initially denied that he was aware of the Complainant’s membership of the travelling community, he later accepted that he was aware of the same within the meaning of the Act. The Managing Director stated that met with the Head Chef on 9th February 2020 and spoke about the Complainant’s continuing employment. On this date it was agreed that the Complainant did not possess the necessary skills to discharge the duties of the role. On foot of the same, it was agreed that the Complainant would be dismissed. The Managing Director stated that he would take his lead from the Head Chef regarding matters involving the kitchen. He denied that the dismissal was in anyway related to the discriminatory ground cited by the Complainant.

By submission, the Respondent’s representative denied that the Complainant had been dismissed on discriminatory grounds. He submitted that in the catering industry it is common for new employees to be placed on a trial period pending their permanent engagement. He stated that the Respondent’s clear evidence was that the Complainant did not complete the trial and that the Respondent was within his rights to dismiss on foot of the same. Having regard to the same, the Respondent submitted that the Complainant’s allegation that he was dismissed on discriminatory grounds was mere speculation, and as such his complaint should fail.

Section6(1)(a) of the Act provides that,

“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…which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

Subsection (2)(i) provides that membership of the travelling community is included in the grounds on which discrimination is prohibited.

Regarding the burden of proof for such complaints, Section 85 allocates the probative burden between the parties. In particular, Section 85(A)(1) provides that,

“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.”

In the matter of Southern Health Board -v- Mitchell [2001] E.L.R. 201 the Court set out the now well-established test in determining whether the probative burden shifts by application of this subsection. In particular, the Court held that,

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In the matter of Galway Mayo Institute of Technology -v- Vlad Teleanca EDA 1835, the Court stated that this “Mitchell Test” was comprised of the following three steps :

1.       “It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so he or she cannot succeed.

2.       If the primary facts relied upon are proved, it is for the Adjudication Officer/Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

3.    If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent”

In the matter of Cork City Council v McCarthy EDA 0821 the Labour Court held as follows:

“The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In the matter of Melbury Developments Ltd v Valpeters EDA 09/17, the Labour Court commented that,

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that 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 85A 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.”

In the present case, it common case that the Complainant is a member of travelling community. It is his position that was dismissed on discriminatory grounds on 10th February 2020. In this regard, he submitted that he had already completed his trial period and that he had been informed that matters were progressing well. He submitted that matter changed once the Respondent became aware of his membership of the travelling community and that he dismissed shortly thereafter. In circumstances whereby no other issue was raised in the course of his employment, he submitted that this dismissal was due to discriminatory reasons.

Having regard to the “Mitchell Test” outlined above, the Complainant bears the initial burden of proof regarding the primary facts that may infer a presumption of discrimination. In the present case, it is accepted that the Complainant is member of the travelling community. It is agreed that the Complainant was successful at the initial interview for the role subject to a trial period. It is accepted that the Complainant completed the first day of this trial period and that the head chef indicated to him that they had worked well together on that date. Again, it is common case that the Complainant worked with the head chef during the busier day of 4th February without any issues being raised by the chef, or the Managing Director, regarding his performance or capability. On that date the Managing Director accepted that he spoke with the Complainant towards the end of that shift. In the course of that conversation, the Managing Director stated he had met the Complainant on a prior occasion when he dropped him home after following a social occasion held in the establishment he managed at the time.

At the hearing, the Managing Director initially maintained that he was unaware of the Complainant’s membership of the travelling community. Under cross examination, he stated that he was aware that the Complainant was, in his terms, a “settled” traveller. In this regard, I note that “traveller community” is defined in Section 2(1) of the Act as,

“...the community of people commonly so called who are identified (both by themselves and others) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland”

The word “historically” in this definition clearly indicates that a person that is not currently involved in a nomadic way of life fits within the definition for the purposes of the Act. Having regard to the same, I find that the Managing Director became aware of the Complainant’s membership of the travelling community within the meaning of the Act during the conversation of 4th February 2020.

From the evidence provided, it is accepted that the Complainant did not work for the Respondent after this date, was subsequently dismissed without any further notice.

Having regard to the foregoing, I find that the Complainant has proven the primary facts which he may raise as inference of discrimination. I further find that these facts are of sufficient significance so as to raise such a presumption. It is clear from the foregoing the Respondent raised no issue with the Complainant’s performance until such a time as they became aware of his membership of the travelling community, shortly after which he was dismissed on the grounds of alleged incompetence which he did not have an ability to contest or dispute.

In such circumstances under operation of Section 85(A) of the Act, the burden shifts to the Respondent to prove that there was no infringement of the principle of equal treatment.In this regard, I note that the Respondent has stated that the Complainant was undertaking a trial period on the date of his termination. They submitted that an inherent characteristic of such a trial period is that an employee could be dismissed for a lack of suitability for the role. They submitted that this lack of suitability only became apparent on the busier day of 4th February and was discussed during the unexpected closure of 9th February.  In support of the same, both the head chef and the Managing Director gave sworn testimony that the dismissal of the Complainant was for these reasons and was not influenced by his membership of the traveling community.

Regarding the first point, I note the conflict of evidence as to whether the Complainant was on within his trial period on the date of his dismissal. His evidence was that he was on trial for a day, which he passed. Alternatively, the head chef state that the trial period was on-going and the Complainant was to remain on the same until he was informed that his employment was confirmed. In this regard, I note that following the Complainant’s first day of employment, he received a text message from the head chef stating that “I’ve texted the boss, waiting for his answer, I’ll let you know as soon as I have any more information”. This message certainly supports that Complainant’s position that the head chef was satisfied with his performance and had offered him the role, subject to the Managing Director’s approval. The next message asked arranged for the Complaint to attend another shift. This message was silent as to an ongoing trial. In light of the foregoing, I prefer the Complainant’ evidence that the trial period was for one day, and that he had successfully passed the same.

Regarding the testimony of the head chef, I note he stated that the dismissal of the Complaint was a joint decision between himself and that Managing Director. I further note that the Managing Director stated that he took his lead from the head chef in this regard. In these circumstances it is apparent that the evidence regarding the dismissal of the Complainant was not especially clear, with both parties placing, at least some of the responsibility for the same on each other. I further note that the Complainant did not receive correspondence regarding his dismissal. While this would not be conclusive in this regard, it would lay the responsibility for the Complainant’s dismissal on an individual and would outline the reasoning and rationale for the Complainant’s dismissal.

Having regard to the accumulation of the foregoing points, I find that the Respondent has not discharged the burden of proof imposed by virtue of Section 85(A). Having regard to the totality of the evidence presented, I find that the Complainant was discriminated against within the meaning of the Act and consequently his complaint is well-founded.

I find that the Complaint was discriminated against within the meaning of the Act.

Regarding redress, Section 82(4)(a)(ii) provides for an award calculated at,

“…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”.

In the instant case, the Complainant did not work for one entire week for the Respondent. Nevertheless, I accept that the Respondent was only busy, and would only require the Complainant’s services, two days per week. In circumstances whereby each of these days is eight hours long, and the Complainant received a rate of pay of €10.00 per hour, I find that the Complainant’s prospective weekly salary was €160.00.

Having regard to the totality of the evidence presented, I award the Complainant the sum of €4,160.00 in compensation.