Complainant

Respondent

Parties

Danilo  Possato

David Marshall Academy Limited

Representatives

  Self

William Wall, Peninsula

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-00055531-001

13/03/2023

The complainant was employed as a hairdresser with the respondent.  He commenced on 08/03/2018 and resigned with effect from 18/03/2023.  The complainant believes that he was discriminated by the respondent by reason of his race when he handed in his resignation notice.  The respondent refutes the proposition that it discriminated against the complainant and submits that in all its dealings with him he was well looked after financially and also provided assistance with training and accommodation.  The complainant was paid €500 to €700 per week.  He submitted his complaint to the WRC on 13/03/2023.

The complainant gave evidence on affirmation and outlined that he commenced working with the respondent on 08/03/2018.  He handed in his notice and on 10/03/2023 while he was looking after a client Mr Marshall came to him and asked why he didn’t work on 9th and 10th March.  He replied that he was unwell, and he had no clients booked in that day.  The complainant said that he asked Mr Marshall to speak with in in private.  Mr Marshall asked him if he was unhappy, and he said that he was and that he wanted a new challenge.  Mr Marshall said that he would talk with Laura (General Manager) and the complainant asked him not to do so as she was on annual leave.  The complainant subsequently got a phone call from Laura who wanted to know why he was unhappy.  He outlined that he felt that he wanted a new challenge.  The complainant outlined that Laura him that his wages were good and that she would ring again before 11th March. 

The complainant gave evidence that Laura tried to convince him to stay and acknowledged that it was his decision.  Later that day Mr Marshall asked him if he had changed his mind and he confirmed that he had made a decision to leave.  The complainant gave evidence that later that evening Mr Marshall approached him in a rude and aggressive manner and instructed him to clean his workstation and leave as soon as possible.  The complainant then submits that Mr Marshall proceeded to make derogatory remarks about his nationality and implied that he did not pay taxes.  The complainant also gave evidence that Mr Marshall threatened him with legal action and made other allegations against him. 

The complainant submitted that after this he was looking for his phone and he realised that Mr Marshall had taken it.   Mr Marshall denied taking the phone but when the complainant used a tracking app on another device his mobile phone beeped in Mr Marshall’s pocket.

The complainant believes that Mr Marshall’s behaviour towards him on that occasion was discriminatory and that it was harassment.  The complainant told the hearing that he found this episode very distressing, and he went to his GP.

The complainant was cross examined by the respondent’s representative.  The complainant confirmed that he was in Ireland for four years.  He was asked if it was correct that he had no PPS number when he started and he confirmed that he had but there was an issue with his previous employer updating his revenue records. 

The complainant confirmed that his employment with the respondent was completely uneventful up to the events on 10/03/2023.  He did clarify that on occasions when he was speaking with a Brazilian client the respondent would pass some remarks.  The complainant agreed that the respondent provided an English teacher to assist in his learning the language but outlined that he paid for this by providing hair services to the teacher.  The complainant was asked if he would agree that the respondent had provided numerous training opportunities and he stated he only received training in relation to a new brand of colour which the respondent intended to use.  It was put to the complainant that he also received some training in London, and he confirmed that he did, but this was paid for by the company involved.  The complainant confirmed that he refused to do other training as he was away at the time it was scheduled.

It was put to the complainant that when he commenced employment with the respondent, they assisted him in getting an apartment.  He confirmed that they did, and they spoke to a client and when he went to view it, he agreed to rent it.

The complainant was asked how Mr Marshall know that he intended to leave when he was speaking with him on 01/03/2023.  The complainant confirmed that he told Mr Marshall and he confirmed this with Mr Marshall on 11/03/2023.  The complainant gave evidence that Mr Marshall said he was disappointed in him.   The complainant was asked if he could recall the number of occasions he has tried to resign and he confirmed that there were a total of three occasions.  The complainant said that it was a coincidence that on each occasion the General Manager (Laura) was on leave when he indicated that he wished to leave.  The complainant confirmed that it was correct that he had received wage increases on two previous occasions.  He denied that he asked to be paid in cash on these occasions.  The complainant was asked if he ever stated that Brazilian people don’t pay tax and he agreed that if colleagues said he did then he may have but he could not recall.

The complainant was asked why he thought Mr Marshall would say that he was a cheat and did not pay any tax.  The complaint stated that he did not know but it may be because Mr Marshall was xenophobic.  The complainant was asked if the first occasion he heard Mr Marshall speak about Brazilian people was on 11 March.  The complainant stated that Mr Marshall did not like him speaking Portuguese when he was dealing with Brazilian clients.  The complainant stated that it was his opinion that this was xenophobic. 

The complainant was asked to clarify what happened at 7.30pm on 11/03/2023 and he said that Mr Marshall approached him in his work area.  The client was at the till.  Mr Marshall told him to tidy up and during that time he mentioned about Brazilians not paying tax.  The complainant confirmed that he recorded this conversation and he also confirmed that he did not tell Mr Marshall that he was recording.

It was put to the complainant that when Mr Marshall said that Brazilian people don’t pay tax that he was repeating what the complainant himself had stated.  The complainant denied ever saying that.  The complainant also denied that he referred to Mr Marshall as an old man during this encounter.  It was put to the complainant that witness evidence will say that he did.

The complainant was asked about the phone incident, and he confirmed that he located it using another device.  He denied that he pushed or laid his hand on Mr Marshall at that time.   The complainant was asked if he was aware that his phone was an identical make and model to that of Mr Marshall’s wife and that Mr Marshall picked up his phone as it was identical.  The complainant stated that he did not know but he was aware that Mrs Marshall told Mr Marshall to give the phone back.

The complainant confirmed that no equipment was ever taken from him during his employment with the respondent and when he left, he got all his equipment back.

The complainant confirmed that his weekly pay from the respondent was between €500 and €700 depending on sales.  He was paid through bank transfer and all the necessary deductions were made.

In his closing remarks the complainant stated that he believed that this was a xenophobic situation, and that Mr Marshall accused all Brazilians of theft and saying that they do not pay tax.  Mr Marshall agreed that he used these words.  The complainant stated that he never stole from the salon and was always a very good worker.  The complainant said that he wanted to leave to start something new. He worked for the respondent for four years and he feels that he was thrown out in a manner that he considered to be discriminatory.

The respondent is a long-established hair salon whose name is synonymous in the industry. Their academy is world renowned, and they have trained hairdressers from all over the globe.  They are proud of their record within the industry, and they have never discriminated against any employee or clients over their long years of service.

The complainant commenced employment on 14/02/2018 and he requested to be paid in cash.  He was advised by the respondent that they do not operate under those circumstances and that he would be employed on the same basis as all other employees.  As the complainant did not have a PPS number the respondent set up the application process which took a number of months to be sorted.

The complainant’s employment with the respondent was completely uneventful until the events alleged by the complainant to have taken place on 11/03/2023. 

The respondent retrained the complainant in the skill of hairdressing and brought him to a level which would be acceptable in their salon.  This training improved his skills which led to an increase in salary over the course of his employment. 

It was submitted on behalf of the respondent that he enjoyed an excellent salary and a generous annual leave entitlement of 30 days.  During the course of his employment, he was invited to attend multiple training courses including one in London. He was further invited to attend a Master’s course but he refused.

The respondent was notified that the complainant was using Portuguese in the salon, and they employed an English teacher to improve the complainant’s understanding of the language.  However, he did not fully engage in this course.

The respondent also located suitable accommodation for the complainant to reside in a a nominal rent of €1,200 per month and even went guarantor for the complainant for the duration of the tenancy.

The complainant advised the respondent on 10/03/2023 that he wished to resign.  He was requested to think about it as this was not the first time in which he had advised them of this.  On all such occasions his manager was on annual leave.

Mr David Marshall was approached by the complainant on 11/03/2023 and advised him that he was resigning his position.  Mr Marshall advised the complainant that this was a matter for the General Manager.  Mr Marshall also expressed his disappointment in the complainant as they had done everything for him since he commenced employment.   Mr Marshall reminded the complainant of the pay increase he had received, and he took issue with the complainant looking to be paid in cash.  The complainant was asked by Ms Laura Marshall, General Manager, to give his decision overnight consideration.    Ms Marshall believes that the complainant would give such notice when she was on annual leave, and he done so in the expectation that he would receive a pay increase.

Mr David Marshall spoke to the complainant on 11/03/2023 and asked him if he had considered his decision.  The complainant stated that he was resigning as he wanted to move on.  The respondent outlined their disappointment but accepted his decision. Later that day the complainant advised that he would be setting up his own salon where he would be taking his own clients.  The respondent was upset about this given the excellent employment opportunities they provided.  Mr Marshall stated his previous remarks that the complainant was looking for work without paying taxes.

The complainant stated that Mr Marshall spoke rudely and aggressively towards him.  Mr Marshall’s evidence will be that the was in fact the complainant who spoke aggressively to him by shouting that he was an “old man” and that he would be better than him, “you wait and see”.  Mr Marshall was upset by the comments referring to his age and abilities.

Mr Marshall respondent by reminding the complainant about how he was looked after when he commenced employment.  He also made a reference to the complainant taking clients from the salon.  Mr Marshall stated that everyone must pay tax including Brazilians.

The behaviour of the complainant towards Mr Marshall caused him upset, anxiety and some confusion.  As a result of this he mistakenly picked up the complainant’s phone.  The fact is that that this was purely an accident on the part of the respondent and after being physically pushed by the complainant he handed the phone to him and asked him to leave the premises. 

Ms Linda Kelly gave evidence on affirmation on behalf of the respondent.  She confirmed that she is the Head Colourist in the Salon and has worked for and knows the respondent for 30 years.  Ms Kelly gave details of the training she received over the years.  Ms Kelly gave evidence that she worked with the complainant and described him as a friendly person.  Her conversations with him were usually about life in general and often about various colour related matters.  Ms Kelly was asked if she recalled any other conversations with the complainant and she gave evidence that when the complainant started work in the salon, he asked why he had to pay taxes and Mr Marshall explained that everyone has to pay those taxes.  Ms Kelly described the salon as being large in size and occupies two floors.

Ms Kelly was asked about her working relationship with Mr Marshall.  She said that she knows him for 30 years and that he is nice to work for.  She considers that she gets on well with him.  Ms Kelly stated that during that time she never heard any racist or xenophobic remarks from Mr Marshall.  Ms Kelly stated that they had  people from many different countries, including Brazil, working there over the years.  She never experienced any racist comments or remarks in the salon or in the academy.

Ms Kelly was cross examined by the complainant.  She was asked what days she would do class and she said that it was mostly Mondays and Tuesday.  She was asked if she recalled that they only done training courses for a particular colour brand, and she stated that the course depended on the brand they were using at that time.  Ms Kelly was asked if she got paid for the days she attended training and she stated that this depended on the situation.  She had child minding to organise, and this was taken into consideration.

Ms Reese Moore, Junior Hairstylist, gave evidence on affirmation.  She stated that she is in that role for three years.  She is responsible for looking after Mr Marshalls clients.  Ms Moore stated that the salon has a small team and they worked together, and she worked side-by-side with the complainant.  Ms Moore described her conversations with the complainant as friendly.  She did not witness any racist of xenophobic comments from Mr Marshall or Ms Laura Marshall.   Ms Moore said that she worked closely with the complainant, and they worked on various hair styles.  She gave evidence that they did not discuss anything about their terms and conditions of employment.  Ms Moore also gave evidence that there was talk in the staff room about Brazilians paying tax and the complainant was the person who was speaking about this.

Ms Moore was cross examined by the complainant.  She confirmed that she was Mr Marshall’s assistant and was his junior stylist.  She had her own clients, and she would also help other colleagues.  Ms Moore confirmed that she was responsible for some cleaning and providing refreshments for clients.

Mr David Marshall gave evidence on affirmation.  He outlined that he is in the business for 50 years and previously had a training academy.  Mr Marshall gave evidence that the people who went through the academy were very mixed and from all over the world including, China, India, Korea and Irish.  Mr Marshall was asked if there was ever any issue about where people were from.  Mr Marshall stated that "we never had, and we never will”.  Mr Marshall was asked why he employed the complainant.  Mr Marshall stated that he liked the complainant and that he understood the English language when it was spoken slowly.  Their approach from day one was to assist him in developing his technique and he worked closely with him in relation to cutting and Ms Kelly worked closely with him in relation to colouring.

Mr Marshall gave evidence that the complainant did achieve competence and made good progress.  He felt that he had a good relationship with the complainant.

Mr Marshall was asked to clarify the three occasions the complainant wished to resign.  Mr Marshall stated that he was always disappointed when this happened, and he got Ms Marshall to sit with him and offer the complainant a deal to stay.  Mr Marshall said that one person leaving the salon is a big loss. Mr Marshall confirmed that he was happy when the complainant accepted the offer and stayed on.

Mr Marshall was asked to explain how he assisted the complainant in obtaining accommodation.  Mr Marshall explained that he had a friend who had an apartment and he persuaded him to keep the rent at the same level and that he would stand over the complainant as a guarantor.  The complainant got the apartment, and he was happy with it.

Mr Marshall was asked about the events on 10/03/2023.  He said that he asked the complainant what his decision was, and he confirmed on the Saturday afternoon (11/03/2023) that he was leaving.  Mr Marshall gave evidence that he was disappointed with that decision.  The salon closes between 5.30pm and 6pm on a Saturday and the incident took place at 7.30pm.  The complainant was spending a long time with a customer and as Mr Marshall needed to get home, he asked the complainant to tidy up and he objected to this.  Mr Marshall said that he felt that the complainant was obnoxious in his response to him.

Mr Marshall was asked about the quote from the complainant in relation to tax.  Mr Marshall said that the complainant always made reference to Brazilians paying tax and he told the complainant that you cannot come to this country and not pay tax.  Mr Marshall gave evidence that he was repeating to the complainant what the complainant had said to him.

Mr Marshall gave further evidence that the complainant then told him that he was an old man and that he was a ”has been” and that the clients come to the salon because of the complainant.  Mr Marshall also gave evidence that the complainant stated to him that he would open his own salon. Mr Marshall confirmed that the complainant did open a salon sometime after leaving.

Mr Marshall was asked if he made disparaging comments about the complainant’s wife.  Mr Marshall denied that he did and confirmed that he knows the complainant’s wife who is an accountant as she got her hair done in the salon.

Mr Marshall was asked about the mobile phone incident. He stated that he saw the phone and thought that it was his [Mr Marshall’s] wife’s phone.  He picked it up in all innocence and put it in his pocket.  Mr Marshall stated that the complainant pushed him when he gave the phone back to him after he realised, he made a mistake.  The complainant then collected his stuff and left.  Mr Marshall agreed that this was a heated interaction.

Mr Marshall was asked to respond to the complainant’s complaint that he was racist towards him.  Mr Marshall stated that he absolutely refuted that, and he was in fact repeating the complainant’s own words back to him.

In response to a question from the Adjudication Officer Mr Marshall stated that the complainant’s conversation about paying tax were all related to his desire to be paid in cash.  Mr Marshall stated that he always ensured that his business was tax compliant.  Mr Marshall stated that he never had a complaint of this nature before, and he outlined that he has experienced and worked with people from many different cultures.

Mr Marshall was cross examined by the complainant.  Mr Marshall was asked if he agreed that he came close to the complainant at that time and that he said that Brazilians do not pay tax.  Mr Marshall denied that he did so and that he was only repeating what the complainant said.

Mr Marshall was asked if he was certain that he never called the complainant a thief.  He stated that he did not, but he wished to state that the complainant kept all his client’s details, and he erased those client details from the system and that he would consider this stealing.

It was put to Mr Marshall that he was in fact stating that the complaint stole his clients.  Mr Marshall confirmed that he was and that was not the way that things were done in the business.  Mr Marshall also stated that in the week after the complainant left only 2-3 customers asked where he was.  The complainant had taken the client details and he worked in a salon in Temple Bar before opening his own salon.

Mr Marshall was asked if he regretted what he said to the complainant.  He replied that he regretted the fact that the complainant called him an old man and a has been.  Any other words that Mr Marshall said he used were actually using the complainant’s terminology.  Mr Marshall said that the incident was initiated by the complainant, and he was goading him at that time.

Mr Marshall stated that he felt that he had a good relationship with the complainant.  Mr Marshall also stated that he had suggested to the complainant at one stage that he might take an interest in running the business.

Ms Laura Marshall gave evidence on affirmation on behalf of the respondent. She described her role as salon manager and is in that role for six years.  The role involves opening the premises and looking after client appointments and looking after staff.  On a day-to-day basis she is responsible for all activities and equipment and also recommending new clients.

Ms Marshall was asked about the complainant’s three resignations and her opinion about the first two.  She said that she was upset he wanted to leave, and she had promoted him on social media and got new clients for him and he always wanted to be busy.  She felt that in time he could become part of the business.  Ms Marshall confirmed that on the first two occasions she offered him more money and they had a good conversation and he stayed.  Ms Marshall gave evidence that on both occasions the complainant asked if he could be paid in cash and mentioned something about Brazilians paying tax. Ms Marshall said that the resignation was shocking to her as she thought everything was in order. 

Ms Marshall was asked about the complainant’s PPS number when he commenced, and she confirmed that it took a lot of work to get him on the payroll and this involved sorting out his PPS number issue as he did not have one.

Ms Marshall confirmed that the complainant was paid through the books and was initially on emergency tax and he was not happy about this.  Ms Marshall confirmed that the respondent gave pay rises, but complainant did not as he got paid additional income.  Ms Marshall was asked to outline where the people working for them came from.  She gave evidence that the people who worked for them came from all places and all walks of life.  Ms Marshall was asked about the training that was provided to the complainant. She stated that they use a particular brand of colour, and the complainant wanted another brand, and they accommodated his request.  The courses ranged from introduction to the colour company, changes and differences from other brands.  They wanted the complainant to be a Brand Artist for the company and he achieved this and received an award for this.  Ms Marshall stated that the complainant was the only person to achieve that standard.

Ms Marshall was cross examined by the complainant.  She was asked if she remembered that the complainant had an issue with his P45 from his previous employer.  Ms Marshall stated that she did not recall this.  It was put to Ms Marshall that the complainant was on emergency tax when he started.  She confirmed that he was, and this was due to the difficulty in getting him on the books.  The complainant put it to Ms Marshall that he had a letter from Revenue from 2017 and that this would confirm that he had a PPS number.  Ms Marshall stated that her recollection is that it took a long time to get his revenue issue sorted when he started work.

This is a complaint seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1998. 

The Employment Equality Act, Section 85a (1) provides as follows:

“(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”.

In order to demonstrate that the complainant has received less favourable treatment and that the less favourable treatment arouse from his race, the complainant must first establish a prima facie case of discrimination.  Prima facia has been held by the Labour Court in Rotunda Hospital v Gleeson [DEE003/2000] to be:

“Evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred”.

The respondent notes that this requires that a complainant has to not only establish the primary facts upon which he will seek to rely but also that those facts are of sufficient significance to raise an inference of discrimination.  The Labour Court in Southern Health Board v Mitchell (2001) E.L.R. 201 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”.

In Cork City Council v McCarthy (2008) EDA0821 the Labour Court also stated:

“The type or range of facts which may be relied upon by a complainant can 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 be appropriately drawn to explain a particular fact or a set of facts which are proved in evidence”.

In Melbury Developments Ltd v Valpeters [2010] 21 ELR 64 the Labour Court warned 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 Labour Court elaborated on the interpretation of Section 85A stating:

“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”.

The complainant contends that he has been discriminated against on the basis of his race.  This arose due to his interactions with the respondent on 11/03/2023 and after he had confirmed his resignation.

On the facts of this case, I have to determine whether a prima facia case has been established and if so, has the rebuttal been sufficient.  In applying the test in Melbury above I am satisfied that the complainant has not demonstrated sufficient facts that he was discriminated against because of his race.

I am satisfied that the complainant has failed to make out a prima facia case of discrimination.  I cannot find in favour of the complainant and the claim cannot succeed.

I find that the respondent has not discriminated against the complainant on the grounds of race contrary to the Acts and his complaint fails.

Discrimination.  Race.