Complainant

Respondent

Parties

Jhonny Jose  Gomes Teixeira

Adure Innovation Limited The Brown Pig

Complainant

Respondent

Anonymised Parties

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Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00052779-001

12/09/2022

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

CA-00053970-001

01/12/2022

The Complainant worked with the Respondent from 8th December 2021 until 28th May 2022.

CA-00052779-001

The Complainant is a butcher and was employed as a Production Manager. He claims he was unfairly dismissed. He says he suffered bullying and physical aggression. He was given a salary certificate for his mortgage three weeks prior to being made redundant.

The Complainant says he should not have been the first person to be let go in May 2022 as he started work on 8th December 2021. He was required to work his two week’s notice.

The Complainant says the greengrocer shops were supplied by the Respondent until November 2022. The owner opened another butcher’s shop in Kimmage in April 2022. The Complainant says there was a role for him in the Kimmage and Terenure shops. He also asked the owner whether there were positions in Fresh, but did not receive any reply.

The Complainant obtained another job on 20th June 2022, but it was paid at a lower hourly rate of 15.50 euro per hour. He had to work more hours.

CA-00053970-001

The Complainant worked as a butcher with the Respondent. He complains he has been discriminated against and victimised due to his race. He says the owner and one of his employees, called him outside his workplace to ask about a fire extinguisher which an employee used to spray him on 8th December 2021. The owner was laughing at the Complainant, recorded a video and sent it to multiple groups. The Complainant was in one of the groups. He has proof the owner recorded the video, and has the video. It was an illegal assault.

The Complainant did not make a complaint at the time as he was applying for a mortgage. He was afraid if he complained he would be let go. Nobody ever came to him to try to resolve the issue. It simply never happened. The Complainant was subsequently made redundant on 28th May 2022.

The Complainant made his complaint of discrimination to the Workplace Relations Commission on 1st December 2022. His complaint was late, but he is a non-national and didn’t know the law. He is applying for an extension of time to make his complaint under the Employment Equality Acts.

VCA-00052779-001

The Respondent has a Butchers shop and wholesale butcher business. In February 2022, he had to close the wholesale production business as they were not getting paid by suppliers. The Respondent met with the production staff and explained the situation. The production staff were given notice of redundancy.

They closed 3 greengrocer shops and let six production staff go on 14th May 2022. The owner said he took on the role of Head of Production. The wholesale butcher business has been closed. He already had a butcher manager in the Kimmage shop, who had transferred from the Terenure branch.  The Kimmage shop is now closed.

The owner took over the Fresh shop counter. He said there are two butchers in Fresh who supply meat, but no staff.

CA-00053970-001

The Respondent denies any discrimination of the Complainant. These were work pranks and the owner was not involved. Two other staff filmed on the work phone and posted it to the group. The Respondent witnesses say the owner was not present. The Complainant never complained about the incident.

The owner said he gave J Preston a warning and spoke to his brother S Kenny after the incident. S Kenny said the Complainant said everything was fine when he asked him. He did not want to get the two staff in trouble. There was no other issue.

I heard and considered the evidence, submissions of the parties and their witnesses.

CA-00052779-001

The Complainant commenced employment with the Respondent on 8th December 2021. He was made redundant on 28th May 2022 with five other production staff. The onus rests on the Respondent to discharge the statutory burden that the Complainant was dismissed wholly or mainly due to 6 (1) (c ) of the Unfair Dismissal Act 1977.

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    the capability, competence and qualifications of the employee for performing work of the kind that he was employed by the employer to do:

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    the employee being unable to work or to continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

S2 (1) (a) of the Unfair Dismissals Act 1997 as amended provides the Act shall not apply in relation to an employee who is dismissed, who at the date of his dismissal had less than one year’s continuous service with the employer who dismissed him.

I do not have jurisdiction in relation to this complaint as the Complainant does not have the required service to proceed with a complaint under this Act.

CA-00053970-001

The Complainant worked as a butcher with the Respondent from 8th December 2021. He alleges race discrimination and victimisation by his employer due to an incident where he was sprayed with a fire extinguisher by an employee.

The “race ground” is defined in the Acts and is on the basis of different race, colour, nationality or ethnic or national origins.

S6 of the Employment Equality Acts 1998-2015 states that discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned.

The burden of proof is set out in Section 85A(1) of the 1998-2015 Acts which 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.”

Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent.

The Complainant says the owner and one of the employees, called him outside his workplace to ask about a fire extinguisher which the employee then used to spray him on 8th December 2021. The owner was laughing at the Complainant, recorded a video and sent it to multiple groups.

The Complainant’s complaint of discrimination arising from the incident on 8th December 2021 was received by the Workplace Relations Commission on 1st December 2022. This is outside the statutory period of six months required by S41 of the Workplace Relations Act 2015. The Complainant seeks an extension of time to allow his complaint to proceed as he is a non-national, he was unaware of the applicable time-limits. In addition, he did not object at the time the incident occurred as he was afraid he would be dismissed.

S41 of the Workplace Relations Act 2015 provides;

(6) Subject to subsection (8) an Adjudication Officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of contravention to which the complaint relates…..

(8) An Adjudication Officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7)( but not later than 6 months after such expiration)as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The established test for deciding if an extension of time should be granted for reasonable cause is set out in the Labour Court determination DWT0338 Cementation Skanska v Carroll.

“It is the Courts view that in considering if reasonable cause exists, it is for the Claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and circumstances known to the Claimant at the material time. The Claimant’s failure to present the claim with the six-month time-limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a sight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the Respondent has suffered prejudice by the delay and should also consider if the Claimant has a good arguable case”.

Normally, ignorance of the person’s legal rights, as opposed to the facts giving rise to the complaint cannot provide a justifiable excuse for the failure to bring the complaint within time. However, there are special circumstances and as a non-national the Complainant could not reasonably be expected to understand the nature or detail of his statutory entitlements or the process of vindication of these. The decisive criterion is reasonableness as set out in Rezmerita Limited v Wioletta Morkis Labour Court (DWT1017). In all the circumstances, I find there is reasonable cause to extend time in the case.

It is not disputed that the incident occurred on 8th December 2021 when the Complainant was sprayed with a fire extinguisher by another employee. A video of the incident was then posted on the company group. The Respondent says this was a prank and the owner was not involved. The Complainant was naturally upset by this incident and posting of the video by another employee. The Complainant alleges he was targeted due to his Portuguese race, however, no evidence has been adduced by the Complainant linking the incident to his race or nationality.

The Labour Court in Southern Health Board v Mitchell [2001] ELR 201 considered the extent of the evidential burden imposed on a Complainant by section 85A of the Act 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

In Melbury Developments Ltd v Valpeters [2010] ELR 64, 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”.

Having considered carefully the circumstances, I find a prima facie case of discrimination and victimisation has not been made out by the Complainant, and the complaint fails.

CA-00052779-001

I do not have jurisdiction in relation to this complaint as the Complainant does not have the required service to proceed with a complaint under this Act.

CA-00053970-001

I find a prima facie case of discrimination and victimisation has not been made out by the Complainant, and the complaint fails.

Unfair dismissal, service requirements, video recording