ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00036017
Parties:
| Complainant | Respondent |
Parties | Pedro Kodama Gualda | Red Leaf Entertainment Limited trading as J.T.Pims |
Representatives |
| Wing Yip – Owner Dara McLoughlin – General Manager |
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-00047204-001 | 16/11/2021 |
Date of Adjudication Hearing: 13/10/2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a complaint has been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the complaint be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. In these circumstances and following a referral by the said Director General, of this matter to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose (and/or an Equality Officer so appointed). I affirm I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing and in the course of the hearing (and which have been opened to me).
An Adjudication Officer cannot entertain a complaint presented after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates, or such other date as may be set out in Section 41(6) of the WRC Act of 2015. In limited circumstances, complaint presented outside the relevant period may be entertained if the failure to present was due to reasonable cause.
The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in her Workplace Relations Complaint Form dated 16th of November 2021) seeks redress from the Respondent in circumstances where he claims his Employer behaved unlawfully and discriminated against him in the course of his employment wherein he says that he was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of his Race (as detailed in Section 6 of the 1998 Act (as amended)).
The Operative Section is Section 6 of the Employment Equality Act 1998 where :-
Sub Section 6 (1) For the purpose of this Act…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) …...(the “discriminatory grounds”).
Section 6 (2) As between any 2 persons the discriminatory grounds .. are…
(h) That they are of a different race, colour, nationality or ethnic or national origins (..the ground of race”),
In the event that the Complainant’s claim is upheld, it is open to me to make an award of compensation for the effects of the acts of discrimination which have occurred and/or the harassment experienced. It is also open to me to direct that a certain course of action be taken by an appropriate party which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act).
Generally speaking, in employment equality issues the complainant has little or no direct evidence of discrimination. EU law recognised this and has adopted a burden of proof in all Equality Directives which recognises the difficulty of giving evidence of direct discrimination. Article 19(1) of the Recast Directive (Directive 2006/54) provides as follows –
“….when persons who considered themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.”
This has been transposed into Irish law by section 85A of the Employment Equality Acts:
“in any proceedings facts are established .. by… a complainant from which it may be presumed there has been discrimination in relation to him/her, it is for the respondent to prove the contrary.”
This amounts to the Prima Facie obligation on the Complainant. 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.
There is no exhaustive list of circumstances which are required in terms of discharging the initial burden - the Labour Court has consistently stated that “the type or range of facts which may be relied upon by a complainant can vary significantly from case to case. “.
The Labour Court’s (and WRC’s) approach to this issue and the test for applying section 85A (burden of proof) is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v Southern Health Board ([2001] ELR 201):
“the 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 where 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.”
The Labour Court has also consistently stated that:
“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” Kieran McCarthy v Cork City CouncilEDA082
Once the Prima Facie case is established, the Respondent must rebut the prima facie case. This will require cogent evidence.
The Complainant has also, he says, been harassed in the workplace. Harassment is described in Section 14(A)(7)(i) of the Acts –
“.. any form of unwanted conduct related to any of the discriminatory grounds” which “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 Complainant has additionally made an allegation that the Employer has provided him with less favourable conditions of employment than another or other employees and which amounts to a discrimination per Section 8 of the Act.
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.
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Summary of Complainant’s Case:
The Complainant was not represented and made his own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant relied on the submission outlined in the Workplace Relations Complaint Form and gave an oral account of the employment relationship The Complainant alleges he was discriminated against in the workplace. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent entity was represented by its Owner and the workplace General Manager. All evidence was heard following an Affirmation. The Respondent rejects that there has been discrimination. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
The Complainant gave evidence of working in what appears to have been (for him) a highly volatile workplace. In particular he says that the Bar Manager (M) was loud-mouthed, vociferous and angry in his dealings with the Complainant and other members of staff. The Complainant had commenced employment in July of 2021 and had been taken on as a bar tender as he had had experience in Brazil in this role. He says that the Manager (M) was sceptical of his ability as a bartender once he had started, though the Complainant says this mainly stemmed from the fact that he was not familiar with European cocktails. The Complainant says that working in an Irish Bar turned out to be way more pressurized than what he was used to and that this was made particularly difficult by M who was angry and aggressive and critical. He’d scream things like “shut your mouth” and “Do what I’m telling you” and very often would do it in front of customers. Other than his interaction with M, the Complainant confirmed he enjoyed this workplace. The Complainant confirmed that the treatment was not reserved for him and that all members of staff got hassled by M. The Complainant says he has both Spanish and Italian heritage and was shocked that M had spoken disrespectfully and racially of both races on separate occasions. On the first occasion a Spanish customer was talking to the Complainant at the bar but was also blocking the bar/service area and the Complainant says he saw and heard M be rude to this customer when moving her on. On another occasion, M had barred a group of Italian customers about whom a staff member had complained. The Complainant appeared to accept that the group had been harassing a female member of staff but objected to M declaring loudly and angrily that he hated all Italians especially the ones form Naples. The Complainant objected to the sweeping generalisations. The Complainant says that on each of these occasions M deliberately voiced his disgust at the two separate races directly at the Complainant who was very offended. It was unacceptable and xenophobic behaviour. After 15 weeks of employment, the Complainant handed in his notice. The Respondent understood (and stated in evidence) that the Complainant was moving to a better paid bartending job, though the Complainant says it was a similar job and not a better paid one. Before leaving the Respondent workplace, the Complainant had a conversation with the General Manager (DMcG) who was available to give evidence. DMcG recalled this conversation happening and stated that he recalled the Complainant had been highly critical of M’s Management style and he was told that all the employees found it difficult. In fact, the Complainant said to DMcG that he was the fourth member of staff to leave this workplace directly as a result of M’s treatment of the staff. It is noted that these allegations were not and have not been substantiated. DMcG recalled the Complainant also making reference to disparaging remarks having been made by M about Italians and understood the Complainant was upset about that. DMcG said that the Complainant had described M as “going on” about Italians such that the Complainant thought that M had been racist. DMcG said he had gone back to M about this particular incident and when challenged by DMcG, M had stated that he had been angry at the way the customers had treated a member of his floor staff. The fact of their being Italian was incidental. He had stepped in and asked the customers to leave. M claimed that this was not a racial outburst but a justified intervention by Management. DMcG said that no other member of staff had indicated there was a problem with M. M no longer works for the Respondent. The Bar owner gave evidence on the workplace generally. She indicated that this is a very diverse workplace with up to twelve different nationalities working across the bar, food and floor. The owner stressed that the workplace prides itself on having proper policies and procedures in place. There is a whistle-blower policy, a dignity in the workplace policy and a bulling/harassment policy. None of these was invoked by the Complainant. The owner stated that she had had no other complaints about M. The first time she had any inkling of a race issue was when the complaint form arrived. It is noted that in the complaint form that the Complainant has stated the most recent date of discrimination was the 9th of October 2021 but he led no specific evidence for that day. On balance I am not satisfied that the Complainant has proved, on the balance of probabilities, the primary facts on which he relies in seeking to raise a presumption of unlawful discrimination. The Complainant has not been treated lass favorably than other employees have been on the grounds of his race. Even if the Complainant was being bullied and/or harassed by his Line Manager (and this has not been proved) this does not arise by reason of his race. This is confirmed by the Complainant himself who said in evidence that all the staff were subjected to the same treatment. |
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.
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00047204-001 – The Complainant has not made out a Prima Facie case against the Respondent and was not discriminated against. The complaint fails.
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Dated: 27/10/2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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