FULL RECOMMENDATION
PARTIES : BLUEBELL HORIZONS LIMITED T/A THE MONASTERY INN DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00026242, CA-00033359-001 This is an appeal by Mr Anselm Ssebuguzi (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00026242, dated 16 February 2021) under the Employment Equality Act 1998 (‘the Act’). The Complainant alleges he was discriminated against on the race ground. The Adjudication Officer held that the complaint was not well-founded. The Complainant’s Notice of Appeal was received by the Court on 10 March 2021. The Court heard the appeal in Dublin on 8 June 2022. The Complainant appeared as a litigant in person; Bluebell Horizons Limited T/A The Monastery Inn was represented by Mr Michael O’Sullivan of ARRA HRD. The Court heard evidence from the Complainant and from two witnesses on behalf of the Respondent: Mr Paul Dobrecov and Mr Pat Cooney. The Factual Background The Complainant is of African origin and is a citizen of Sweden and holds a Swedish passport. It is common case that the Complainant commenced working for the Respondent on 4 November 2019 as a Kitchen Porter following a brief interview with the Respondent’s Head Chef, Mr Paul Dobrecov. There is a dispute between the Parties in relation to the duration of the period for which the Complainant actually worked for the Respondent: the Complainant told the Court he did so for a period of three weeks and that he was dismissed from his employment on 1 December 2019; the Respondent’s position is that the Complainant worked for three days only (14, 16 and 17 November 2019). However, it is common case that the Complainant was paid in cash at the rate of €9.00 per hour which was below the then prevailing national minimum wage rate of €9.80 per hour. He did not receive a payslip. It is also accepted by both Parties that the Complainant at no time furnished the Respondent with a PPSN or bank account details, although this information appears to have been requested of him on a number of occasions. There appears to have been a miscommunication between the Parties as to whether the Complainant needed to establish that he was legally entitled to work in Ireland. This will be addressed below. The Complainant’s Submission and Evidence The Complainant told the Court that he had furnished Mr Dobrecov with a detailed Curriculum Vitae and a copy of the relevant pages of his Swedish passport during his brief pre-employment interview. He also told the Court that he advised Mr Dobrecov that he did not have a PPSN as he needed to furnish the Department of Social Protection with a copy of an employment contract in order to obtain this and he hadn’t previously worked in Ireland. The Complainant outlined the tasks he was required to complete as Kitchen Porter. His work included washing up cooking utensils used by the chefs after they had completed their shift and washing the kitchen floors. It appears that the Complainant remained working after his official finish time on Tuesday 19 November 2019 in order to complete the tasks that had been allocated to him and he was approached by a female colleague whose name he didn’t know and was told that by her that she needed to lock up at 9.30 pm and that he should leave. The Complainant alleges that the female colleague was abusive to him and said that he wasn’t ‘smart’ told him to ‘march out of her sight’ and effectively chased him out of the restaurant. The Complainant told the Court that although he wasn’t rostered to work on the following Wednesday he came to the workplace to complain to Mr Dobrecov about the manner in which he had been treated by his female colleague. He submits that Mr Dobrecov spoke on the telephone to Mr Pat Cooney, proprietor of the Respondent but neither of them reverted about the matter. The Complainant told the Court that he worked on 21, 22 and 24 of November 2011 but didn’t get paid in the normal way at the end of that week. He was told, he says, that the accountant hadn’t been available to make up the wages but he would be paid the following week. He says his last working day was 1 December 2019 and that he worked until midnight that night. His evidence is that he went to clock out and his clocking card was missing so he went to Reception to report this. He was told by a Receptionist, he said, that his job had ended and he was paid some money but not everything he believed was owed to him. The Complainant submits that he was discriminated against, harassed and victimised on the race ground. He cites the following as examples of the racially based unfair treatment he alleges: the Respondent’s failure to pay him the prevailing national minimum wage rate and to give him a payslip, and the non-payment of annual leave to him at the end of his employment. He alleges that the words spoken to him by his female colleague in the incident referred to above constitute harassment on the race ground in circumstances where his complaint arising from the incident was not taken seriously as evidenced by the fact that neither Mr Dobrecov nor Mr Cooney followed up with him about it. Finally, the Complainant alleges that his dismissal was a consequence of his having made a complaint of racial harassment against his colleague. Under cross-examination, the Complainant denied that Mr Dobrecov had asked him on several occasions for his PPSN and proof of his right to work in the jurisdiction. He also denied that he had had an agreement with Mr Dobrecov that he would be paid in cash at the rate of €9.00 per hour pending production of the information and documents requested of him. Mr Dobrecov’s Evidence The witness told the Court that he has been the Head Chef at the Monastery Inn since it opened some thirteen years ago. In this role, he supervises all kitchen staff. He described interviewing the Complainant and receiving his Curriculum Vitae but didn’t pay much attention to it. He denies seeing a copy of the Complainant’s passport. He said he asked the Complainant for his PPSN and bank account details and offered him the job of Kitchen Porter commencing on 14 November 2019. The Complainant, he said, worked the full shift on that day and the witness said he checked in with him a few times during the working day. He asked him did he have any food allergies or dietary requirements and reminded him to provide his PPSN and bank details. He recalls that the Complainant requested a day off on the Friday of that week in order to obtain the information requested of him. He also recalls that the Complainant was at work on the Saturday which is a busy day in the restaurant and, therefore, it is unlikely, he surmised, that he had had an opportunity to follow up with the Complainant that day about the PPSN etc. The witness’s recollection is that the Complainant approached him on Sunday 17 November 2019 about the incident with his female colleague. The witness said he explained to the Complainant that his shift continues for thirty minutes only after the restaurant closes and the chefs have left and he was required to do only what could be done in those thirty minutes and to leave any outstanding work for the Porter on duty the following morning. The witness told the Court that he spoke to the colleague whom the Complainant had complained about and that she denied that there had been a confrontation between her and the Complainant that it was simply a case of her needing to leave promptly at 9.30 pm. The witness said he did not revert to the Complainant about the matter. Finally, the witness said he spoke to the Complainant on the evening of Sunday 17 November 2019 about his continuing employment and told him that he would place him on the roster for the coming weeks if he was happy to remain working for the Respondent but that this was contingent on him producing his PPSN and bank account details. According to the witness, the Complainant did not work for the Respondent after 17 November 2019 although he did return to the premises thereafter looking for Mr Cooney. Evidence of Mr Pat Cooney The witness said he has been in the restaurant business for twenty-five years. He has been the proprietor of the Monastery Inn for almost thirteen years. During his time in the industry, he said, he has engaged staff of many different nationalities. He told the Court that he and his wife met the Complainant briefly in the kitchen on 14 November 2010. He described the female colleague that the Complainant alleges abused him as being five foot and three inches in height and told the Court that she was three months pregnant at the time of the alleged incident. It was not credible to think, he said, that she could have been perceived to have been in any way threatening to the Complainant and it was simply a case that she needed to leave on time that evening and that was the reason she asked the Complainant to finish up. The witness also said in his evidence that the Complainant had been excellent at his job and he would have liked to be able to retain him in employment but that this was not possible in circumstances where he had failed to produce his PPSN and bank account details. Discussion and Decision Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act: “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.” This Court – in its determination inSouthern Health Board v Mitchell[2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held: “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.” It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. InCork City Council v McCarthyEDA 21/2008, this Court stated in this regard: “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 or 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.” InMelbury Developments Ltd v Valpeters[2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”. The Court has carefully considered the Parties’ written submissions and the evidence of the witnesses. Having done so, it finds that although the Complainant was treated unfairly by the Respondent in so far as he was paid less than the then-prevailing national minimum wage, didn’t receive a payslip or his annual leave payment on cessation of his employment, it has not been demonstrated by the Complainant that these matters were in any way connected to, or consequent upon, his race. Furthermore, the evidence of the Respondent’s witnesses in relation to the reasons why it required the Complainant to produce a PPSN and bank account details are fully accepted by the Court as reasonable and in line with normal industry practice. There is a dispute about whether or not Mr Dobrecov ever saw the copy of the Complainant’s Swedish passport the latter says he submitted along with his Curriculum Vitae. This is not a matter the Court can fully resolve on the basis of the evidence before it. However, it is accepted that it is incumbent on an employer to establish that a potential employee is entitled to work in the jurisdiction. The Court finds that there is nothing inherently discriminatory in the steps Mr Dobrecov took, on behalf of the Respondent, in seeking to establish the Complainant’s entitlement in this regard. It follows, therefore, that the Respondent’s decision to suspend the Complainant’s employment pending production of a PPSN and bank account details does not, in the Court’s view, constitute discriminatory dismissal or victimisation of the Complainant. The Respondent’s failure to revert to the Complainant, having spoken to the female colleague whose behaviour he had complained about, does not comply with best practice. However, it is not at all clear to the Court whether the Complainant had articulated a complaint of racial harassment at the time. In any event, there was no evidence before the Court that establishes a link between what the female colleague is alleged to have said to the Complainant – even if his evidence in this regard is taken at its height – and the Complainant’s race. For the reasons outlined above, the Court determines that the within appeal fails. The decision of the Adjudication Officer is upheld. The Court so determines.
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