Complainant

Respondent

Parties

Dara  Deasy

Princes Investments Limited T/A Brandon Hotel

Representatives

  Appeared In Person

Lisa Moloney,  IBEC Executive

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-00058255-001

12/08/2023

On 12 August 2023, the Complainant submitted a complaint of discrimination on grounds of race against his former employer. He also submitted a complaint of Harassment on grounds of Race. He cited the most recent date of discrimination as 9 June 2023.

On 29 August 2023, the Respondent was placed on notice of the complaint. On 18 September 2023, IBEC came on record for the Respondent.

On 7 December 2023, both parties were invited to a Remote Hearing on 30 January 2024 at 9.30 am.

The Complainant appeared as a Lay Litigant in his own case. He took the affirmation to accompany his evidence to the hearing.

The Respondent presented one witness, the Hotel Manager, Mr. Stephen Quinn who took the oath to accompany his evidence.

The case came to hearing on 30 January 2024. The Hearing was conducted as a Remote hearing, at the request of the complainant, by a designated body in accordance with Section 31 the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020, as amended.

The Complainant introduced his case as an Irish National of Chinese Origin as the “Race Ground “to ground his complaint of discrimination and Harassment. He is a Litigant in person, in his own case.

On 12 August 2023, he submitted a written complaint to the WRC, that during the course of his employment as a Food and Beverage Assistant at the Respondent Hotel that he was discriminated against on the grounds of race and harassed due to that race.

He had been a part time worker in receipt of €11.30 per hour for a variable 20 hr week between 31 March 2023 and 5 August 2023.

The Complainant outlined two incidents during his tenure which he believed to be discriminatory actions perpetrated by the Respondent against him on grounds of his Race.

1.  1 June -8 June 2023, when in the course of casual conversation with the General Manager, he was questioned on his racial origin.

2.  9 June 2023, he was referred to as a Chinese expert from China by the General Manager 

He submitted that the impact of these encounters deeply affected his mental health and made the workplace “feel extremely unsafe for me “. He described the occurrence as a “racial slur “.

Complainants Response to Preliminary Issue raised by the Respondent:

The Complainant sought an opportunity to be heard. He clarified that he was not calling witnesses to the hearing as he was fearful that if he called witnesses, they would lose their jobs. He acknowledged that he had received a number of requests for written submissions from the WRC but added that he did not understand the significance of those requests.

Evidence of the Complainant (affirmation)

The Complainant submitted that he had been hired by the Respondent as a part time Bar and Food Assistant, with previous hospitality experience. He said that he got on well at the business and worked between 10 and 20 hours per week.

He had been interviewed by the Human Resource Manager. He said that nobody at the business was aware of his Chinese origin, prior to the events of June 2023.

During the course of his span of duty on 8 June 2023, the Complainant was asked for his opinion on some Spring Rolls by the General Manager.

 The Complainant volunteered that he was from China, following which he maintained that he was hit by a “racial slur “when the Manager told him that he was unaware of his Chinese origin and asked him if he knew Kung Fu?

The Complainant said that he had laughed awkwardly in response.

He placed the second incident as his being engaged in sweeping behind the bar when he heard the General Manager retort to others “Oh look at our Chinese expert “in what he described was a mocking tone.

The Complainant tried to raise his unease at these comments a few days later with his supervisor but was told to “leave it off “.

When requested if he wished to make any commentary on the respondent submission in his evidence? He clarified that he was an Irish National whose mother was Chinese. He told the hearing that complications had arisen in his employment, and he left.

He addressed the highlighted gap in his raising any of the instant issues within the business by stating that he did not take matters further as he was fearful of losing his employment.

During cross examination, the complainant clarified that the first incident occurred in the Bar Area at Table 8 and in the presence of workers no longer at the business.

He clarified the correct name of his line manager.

When Ms Maloney asked Mr Deasy why he had not escalated his concerns at the point of origin? he replied, he was curtailed by fear. He confirmed that he was aware of the Dignity at Work Policy but was not aware of what the policies detailed on the role of human resources or Penalisation.

He confirmed that the second incident occurred with Tour Guides present. He stated that his Chinese origin was not known at the business prior to the spring roll discussion.

In clarifications, I asked the complainant why he had referred his complaint within 7 days post cessation of his employment. He responded that he wanted to stop it happening to someone else.

He confirmed that he was an Irish National but had lived in China and his mother was Chinese.

He explained that Harassment had manifested for him by way of the “racial slur “

He explained that his health had been impacted as a result through anxiety and not “feeling good enough “He was left with an opinion that perhaps the General Manager had seen him differently because of his declared origin. The Complainant did not lead any medical validation in evidence.

Mr Deasy confirmed that he had not appealed his termination of employment, issued by the Human Resource Dept.

He acknowledged that he had since found new work and was happy in this.

In his closing remarks, the Complainant registered that he disagreed with the Respondent position in the case. He recalled that Mr Quinn had requested that the staff approach the table on that first night in the bar.

The Complainant did not wish to comment on any of the case law opened by the Respondent.

The Respondent operates a Large Hotel Business and has denied all claims.

The Respondent submitted their outline submission in defence of the claim on 23 January 2024.

Preliminary Issue:

It was the Respondents earnest submission that the Respondent had been denied “sufficient information as should be provided by the Complainant in a claim under the Employment Equality Act, 2015.”

Ms Maloney submitted that the Complainant had not scoped out the grounds on which he was reliant in his complaint form.

She added that the overarching burden of proof in the case emanated from Section 85 A of the Act and referenced Melbury Developments Ltd v Arturs Valpeters EDA 0917, on the depth that burden required.

In reaching for Co Louth VEC and the Equality Tribunal and Pearse Brannigan, Ms Maloney stressed the need for the Respondent to be given a reasonable opportunity to deal with these complaints.

The issue for the Respondent that they had been met by a non-particularised complaint, which in turn impeded their capacity to forward a full response.

Due to the lack of detail submitted, the respondent did not have a chance to call witnesses.

The Respondent submitted that the burden of proof has not been met by the Complainant.

The Respondent exhibited the Complainant contract of employment, which placed him asfixed term worker at the Hotel from March to November 2023.

The contract of employment commenced on 31 March 2023 on €11.30 per hour for a minimum 10 hours per week. The Complainant was made aware of the operational policies and procedures.

On 29 May 2023, the Respondent actioned an informal warning for excessive breaks and lateness by the Complainant.

The Respondent flagged that they may require a Drs letter to validate the breaks taken. The record of this meeting indicated that the Complainant accepted the concerns raised and apologised.

The Respondent submitted that the Complainant had not been discriminated in the course of his work surrounding the “taste testing of new starters “in the food and beverage section.

Ms Maloney maintained that the Respondent had not been made aware of any concerns regarding insulting commentary, which he found offensive, by the complainant during his employment.

On 19 July 2023, the Respondent issued a verbal warning to the Complainant in respect of excessive breaks, using the mobile phone during work and his performance as a server.

The Complainant was ultimately dismissed on one weeks’ notice, for a lack of improvement in his performance on August 4, 2023.

The Complainant submitted his complaints to the WRC on 12 August 2023 without raising any concerns of discrimination locally in the first place.

Ms Maloney submitted that the Complainant had not advanced a comparator. She argued that he had not met the test outlined in Southern Health Board and Dr Teresa Mitchell [2001] ELR 201. Or Margetts v Graham Anthony and Co Ltd EDA 038, at the Labour Court.

It was the Respondent response that they had no case to answer in these claims.

Evidence of Mr Stephen Quinn, General Manager, by oath.

Mr Quinn introduced himself as General Manager of 16 years standing at the hotel. He confirmed that his role was largely Administrative, but he maintained an onsite presence for 1-2 days per week.

Mr Quinn outlined the Organisational Chart at the Business

General Manager

Operations Manager

Chief Financial Officer

Human Resources

Head of Department

The Role of Supervisor reported to Head of Department. The Human Resource Manager dealt with staff relations issues.

Mr Quinn submitted that on 8 June 2023, the date of the first incident relied on by the complainant, that he was due to go out for dinner and was running late. He met a contact in the bar and remained there for 30 minutes.

He recalled that the Blackboard had indicated new appetisers of spring rolls and chicken wings. He habitually consulted staff on new initiatives, and he requested that the new starters were brought out to try. He invited the staff to try them.

There were hotel residents and Tour Operators in the surrounding area of the Bar.

He recalled that the complainant gave an opinion that the Spring Rolls would be tastier if they contained meat such as chicken or pork. Mr Quinn agreed and enquired into his knowledge of this cuisine.

The Complainant told him that he had an Irish Father, but he had spent 8 years in China.

Mr Quinn stated that he found that interesting and asked the complainant what had brought him to Tralee?

Mr Quinn remarked that “I wouldn’t have thought you were Chinese “but did suggest that he mention the “meat suggestion “as a good idea to the Head Chef.

Mr Quinn proceeded with his dinner arrangements that evening.

He recalled the next day; he was in the company of Hotel Residents when he saw the complainant again. He did not know his name but did mention to him that it was advisable that he took the responsibility for raising the “meat suggestion “with the Chef.

He confirmed that he had actioned that suggestion directly with the Chef. He explained that the idea would carry more weight from the General Manager.

The Complainant did not avail of the opportunity offered for him to cross examine the witness.

Mr Quinn clarified that he did not use the terms attributed to him by the Complainant. He denied discrimination or harassment and stated that he was flabbergasted by the complaints. He had not been met with this before in his work.

He submitted that he had sought to engage the complainant in standard hotel work when he sought staff’s opinions on the new starters. Instead, the polar opposite occurred. He denied insulting or intimidating the complainant. He clarified that the comments attributed to him were impossible as he would not utter those words in front of clients at the business. He was simply commending his experience. He had respected his views.

He had not been a participant in the complainant’s termination of employment. He was aware that the complainant had presented performance issues as human resources had brought them to his attention.

He confirmed that authority to terminate employment rested with the human resource and operations managers. He submitted that the complainant had signed the staff handbook in May 2023.

Mr Quinn confirmed that the Complainant had not actioned any of the Hotels Policies on Harassment or grievances.

In closing, the Respondent concluded that the Complainant had not secured the necessary burden of proof in the case.

He had not introduced witnesses to the case and had not availed of cross examination.

Ms Maloney emphasised that the Complainant accepted that had access to the staff handbook, but he had not actioned the policies therein. The final record of correspondence dated August 4, 2023, reflected that a communication pathway was opened at the business but not availed of.

The Respondent repeated the essence of the Preliminary Argument and denied discrimination or harassment on the grounds of race.

I have been requested to reach a decision in this claim of Discrimination and Harassment on grounds of Race, that of an Irish National of Chinese ethnic origin which has been rejected by the Respondent.

In reaching my decision, I have had regard for both parties’ submissions and oral evidence at hearing.

By way of introduction, I will draw from

Bolger, Bruton and Kimber, Employment Equality Law 2nd Ed. 2022, at chapter 6.

Section 2(2)(h) of the Employment Equality Acts 1998–2018 outlaws discrimination in the workplace on the race ground which is expressly defined as being of different “race, colour or ethnic or national origins”.

“Race” has been described as referring to biological features, whereas “ethnic origin” is primarily determined by factors and characteristics such as geographical, religious and linguistic characteristics. It has been observed that:

“‘Ethnic’ is preferred to ‘racial’ as a descriptive term (though both are found in the legislation) because it stresses that groups to which it refers are the product of social organisation and behaviour rather than a description of innate human differences.”

The Authors in referring to the Council Directive 2000/43, (The Race Directive) which implemented the principle of equal treatment between person irrespective of racial or ethnic origin, pointed to the broader scope of Irish Employment Equality legislation as it also incorporates nationality.

This is an important consideration in this very sensitive case. The Complainant has introduced himself as an Irish National of Chinese origin. The Respondent was clear that they understood that the Complainant was an Irish National from the outset of his employment. They did not exhibit recruitment records. However, they have submitted that they had no idea of the Complainants Chinese origin on his mother’s side until the events that unfolded within the circumstances of this case in early June 2023.

It is important for me, for the purposes of my investigation of the claims that I capture the period of employment of 31 March 2023 to 5 August 2023. This temporary contract ended some 4 months into a 9-month contract of employment, on one weeks’ notice. For the Respondent, it was an unsuccessful employment relationship, concluded after the expiration of the probationary period of 3 months. The record of probation was not exhibited.

The Complainant described the termination of employment as “he left”.

It was clear to me that both parties assessed this ending differently and this goes to the root of the case.

The Complainant has not disputed that he received a record of a caution and a commitment by the Respondent to review his performance on 29 May 2023. He has also accepted that he received a verbal warning on 19 July 2023 related to his performance.? He did not advance any detail on these events during his evidence.

It was common case that a letter of dismissal issued on 4 August 2023, on one weeks’ notice related to poor performance. This was not challenged or appealed by the Complainant.

As an investigator, I have to look behind the exhibited documents of the employment relationship as a very serious complaint of Discrimination and Harassment on grounds of race is before me.

I must be satisfied that the ground of racial /ethnic origin was linked to the treatment he experienced at the Respondent Hotel.

The Law at Section 8 of the Employment Equality Act, 1998-2018 prohibits Discrimination.

Discrimination by employers etc.

8.— (1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

Section 14 of the Act provides the Law on Harassment.

Harassment and sexual harassment.

14A.— (1) For the purposes of this Act, where—

(a) an employee (in this section referred to as "the victim") is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as "the workplace") or otherwise in the course of his or her employment by a person who is—

(i) employed at that place or by the same employer,

(ii) the victim’s employer, or

(iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,

or

(b) without prejudice to the generality of paragraph (a)—

(i) such harassment has occurred, and

(ii) either—

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

The Respondent has relied on the defence contained in Section 14(2)

(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable—

(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.

 The provisions of the Code of Practice on Sexual Harassment and Harassment at Work, SI 106/2022 are admissible in evidence before the WRC. 

Preliminary Argument

I will address the Preliminary Argument made by the Respondent and reach conclusions as a first step in the case.

Preliminary Argument.

The complaint form submitted by the complainant on 12 August 2023 was a clear statement of claim set against some uncertainty in chronology.

I find that the complaint form framed the nature of the complaint and was not a pleading. The sole ambiguity rested on the chronology of the first reported event as the complainant had placed that within a range of 1-8 June 2023.

The Supreme Court considered whether allegations raised at hearing and not listed on the complaint form could be safely decided on by the former Equality Tribunal. In finding that the respondent had a historical awareness of the existence of the complaints and thus the Tribunal could assume jurisdiction, Mc Kechnie J referred to the complaint form used by the Equality Tribunal, now WRC.

I agree with the view that there is nothing sacrosanct about the use of an EE1 Form to activate the jurisdiction of the Tribunal. I see no reason why any method of written communication could not, in principle, serve the same purpose; in fact, the Tribunal itself has so held in A Female Employee v A Building Products Company DEC-E2007-036. Indeed, it is arguable that even a verbalised complaint would be sufficient to this end. The point at issue, however, is not about the form of initiation and certainly not whether its content is rigidly prescriptive or not. I can readily understand how, if utilised by a lay individual, the entirety of a complaint in terms of scope and detail may be somewhat lacking. Evidently it would defeat the spirit of the legislation if ‘Court formalities’ were required: as Hedigan J. said in Clare County Council v. Director of Equality Investigations & Ors [2011] I.E.H.C. 303, one cannot expect lay persons to articulate complaints in the same way as professionally qualified advocates.”

I would like both parties to reflect on this statement.

I have listened to the Respondent well-articulated objections at Preliminary Argument stage. I can accept that the complaints were a complete surprise to them as the Complainant had not formalised his concerns during his tenure and before his termination.

I would draw the party’s attention to a WRC decision from 2022.

  Glen Weir v Anord Mardix (Ireland) ltd in ADJ  29543

This was a complaint of Harassment on grounds of religion considered against a backdrop of a comprehensive engagement of local policies, Mediation and Investigation.

In the case before me the complainant gave details of a single act, which I have to take as non-recurring. His main issue was with how the respondent dealt with his grievance. Whilst the respondent said their actions in investigating the grievance allowed them to avail of the defence allowed by section 14A. When the complainant raised his grievance, the respondent attempted to resolve the issue through mediation, as evidenced by the notes of the meeting they submitted. To avoid a repetition, they stopped individuals from playing their own choice of music. When the complainant decided he was not happy with the outcome of the mediation the respondent invoked a formal investigation and, when the complainant was unhappy with the outcome of the investigation, undertook an appeal. The complainant received an apology from the instigator of the songs.

The respondent submitted a copy of their Bullying & Harassment Policy which was in place at the time of the incident. They say they followed this policy which, together with the actions referred to above, shows they “took such steps as are reasonably practicable …… to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim's employment and, if and so far as any such treatment has occurred, to reverse its effects.”

I have referenced this case to highlight a procedural pathway which operated on receipt of a grievance.

 I am satisfied that the Respondent was properly on notice of both complaints from 29 August 2023.

It is not unusual that on receiving such a complaint that parties would seek to meet to explore resolution. This did not occur.

Neither is it unusual that a complainant would exercise section 76 of the Act in seeking information, documentation surrounding the claims. This did not occur.

The hearing was first listed in person and was changed to remote hearing at the complainant’s behest, given that he had moved abroad.

The Respondent has taken issue at the paucity of detail in the complainant’s complaint that was not expanded by him on prior to hearing.

The Complainants response was that he did not understand the significance of the repeated requests for written submissions from him.

I have difficulty in accepting that response as all that was required was a chronology, relevant documentation and a brief statement of facts which he could expand on at hearing in his direct evidence to the hearing. I accept that hard proof of discrimination is rarely available to a complainant and careful investigation of the facts relied on is necessary .

Ntoko v Citibank [2004] ELR 116 .

The Complainant was welcomed as a Lay Litigant.

There are many advisory bodies which provide advice on how to formulate a complaint and how to prepare for an Adjudication hearing at WRC. Details of this guidance was present on all prehearing documentation shared with the Parties.

Lay Litigants are welcome at the WRC, but it is important that both parties prepare for hearing as the Adjudicator will be a stranger to the workplace and its employees and will need some guidance and direction from the parties and what actually happened in each case.

For myself, as the Adjudicator in this case. I have taken seriously my responsibility to investigate whether the principle of equal treatment was breached or not. I needed both parties to work with me in preparation.

The Respondent has submitted that the case be disposed at Preliminary Argument stage. The complainant has sought to be heard.

I have considered my powers under section 79 (3) (a) of the Act.

 3A) If, in a case which is referred to the Director General of the Workplace Relations Commissionunder section 77, a question arises relating to the entitlement of any party to bring or contest proceedings under that section, including:

(a) whether the complainant has complied with the statutory requirements relating to such referrals,

(b) whether the discrimination or victimisation concerned occurred on or after 18 October 1999,

(c) whether the complainant is an employee, or

(d) any other related question of law or fact,

the Director General of the Workplace Relations Commission may direct that the question be investigated as a preliminary issue and shall proceed accordingly.

Having listened carefully to both parties, I can agree with the Respondent that the Complainant did not engage with the repeated invitations to submit a prehearing submission. I can agree that this was irritating for the Respondent but not injurious or prejudicial as evidence can be taken at hearing from witnesses present during the events complained of. In addition, contemporaneous records can be placed in the submissions for investigatory purposes.

The complainant understood that he carried the burden of proof to establish facts from which I could infer that Discrimination and/or Harassment occurred.

The Respondent understood that the reversal of such a burden travelled to them, if proved.

In this, I am mindful of the Labour Court observations in one of the early complaints on race:

Campbell Catering Ltd v Rasaq [2004] ELR 310, on not being afforded fair procedures in a workplace investigation.

The Labour Court in finding that the claimant had been discriminated against on race grounds:

(1) The claimant did not steal bananas from the respondent company and could not reasonably be accused of attempting to steal.

(2) The claimant was not afforded fair procedures in the investigation of the misconduct of which she was accused and was, therefore, treated less favourably than other employees facing allegations of serious misconduct.

(3) Where there is a prima facie case of discrimination it is for the respondent to provide a non-discriminatory explanation.

(4) Failure to afford the claimant fair procedures compared to other employees was sufficient in itself to shift the probative burden on to the respondent to show that the claimant was not discriminated against on grounds of race.

(5) Discrimination can arise not only through the application of different rules to comparable situations but by the application of the same rule to different situations.

(6) In the case of disciplinary proceedings, employers have a positive duty to ensure that all workers fully understand the allegation of misconduct and the consequences of same. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled. Applying the same procedural standards to a non-national worker as apply to an Irish worker could in itself amount to discrimination.

(7) While the Court is not bound to apply the law of evidence with the same strictness as would be found in a court of law, it cannot allow hearsay evidence in rebuttal of testimony given on oath.

I can conclude that the Complainant did not avail of the many invitations to set out the facts of his case with relevant documentation prehearing.

I do not accept his stated reasoning for noncompliance with this request.

Neither do I accept that the Respondent was impeded in their defence of the case. They exhibited letters crafted by staff at the business and could have brought those witnesses to hearing, if desired.

The Respondent also exhibited the contract of employment, a revised handbook from 2023 and the records of disciplinary sanction.

Neither party brought witnesses outside of the two principals here.

I did not identify grounds to compel witness attendance on this occasion.

I share the Respondent unease regarding being asked to meet a claim that lacked desired particulars and detail.

There was a weeklong intervening period between the cessation of employment and the claim lodged at the WRC.  The case came for hearing some 5 months post the termination of employment and 7 months post the events complained of by the Complainant.

I have not identified any basis to dismiss the claim in accordance with Section 77(A) (1) of the Act.

I will, however, state plainly that I was looking for a lot more detail on the sequence of events from the complainant’s perspective prehearing and was disappointed not to receive it.

I endeavoured to make ground by allowing the parties an extended time for oral evidence at hearing.

I have not found a basis to dispose of this case at Preliminary Argument stage but appreciate that the Respondent was irritated by the lack of preparation.

However, I must have full regard for Section 79(6) (b) of the Act when it provides:

(6) At the conclusion of an investigation under this section (including an investigation of a preliminary issue under subsection (3) or (3A)), the Director General of the Workplace Relations Commission shall make a decisionand, if the decision is in favour of the complainant—

(a) it shall provide for redress in accordance with section 82, or

(b) in the case of a decision on a preliminary issue under subsection (3) or (3A) it shall be followed by an investigation of the substantive issue.

My interpretation of this section is that, notwithstanding my consideration of the Preliminary Issue, I am bound to press on to an investigation of the substantive issue.

I have found the Complainant lacked on point preparations in his prehearing submissions, but I have sought to intensify my investigation at hearing as a result.

I find against the Respondent on this Preliminary Issue.

I will now proceed to a consideration of the substantive case.

Substantive Issue:

I have been asked to decide whether in the course of his work as a Food and Beverage Assistant in June 2023, whether the complainant suffered Discrimination on grounds of racial origin and whether he suffered Harassment on that racial origin?

The claim has been opposed by the Respondent who placed an alternative context and background to the complainant’s recollection of events.

As a first step, and having listened very carefully to the parties, I find that this employment relationship was very fragile as it was interjected by a number of Human Resource Interventions from 29 May 2023.

1 A caution, followed by a commitment to review performance by the Respondent.

2 A verbal warning issued on 19 July 2023

3 Dismissal on August 4, 2023

I would have liked to have seen the completed probation report due for completion on 30 June 2023, but this was not exhibited by either party.

This would have provided me with a real time record of performance validation at the business and is missing in this story.

Instead, I have some very scant records of a clear concern from the respondent into the complainant’s performance at work from late May onwards.

The Complainant in his own evidence did not channel that recollection as he focussed on his recollection of the “racial slur “and the residual impact.

He did not provide medical evidence to support his stated contention that his mental health suffered greatly as a result of experiencing “the racial slur “.

Most important for me, the complainant chose not to test the evidence of Mr Quinn, when offered. I found this surprising as the evidence was contrary to that provided by the Complainant.

1 Claim of Discrimination on grounds of racial origin

As a first step, the burden of proof commences with the Complainant to raise facts of sufficient significance to allow me to infer that Discrimination occurred 1-9 June 2023.

I must be satisfied that there is a link to the treatment experienced by the Complainant and his  racial origin.

This burden emanates from Section 85 A of the Employment Equality Act 1998-2018 and passes to the Respondent if that first step is satisfied.

Burden of proof.

85A.— (1) Where in any proceeding’s 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.

I found that the Complainant was very vague in his recollections of events of early June 2023. While he concurred that the parties were united on a “tasting “of spring rolls, there was a disconnect on the commentary surrounding that tasting.

The Complainant is clear that he heard a racial slur from Mr Quinn. This was vehemently denied by Mr Quinn. I was curious when the Complainant classified himself as perhaps not Mr Quinns “favourite person “

I tried to look behind this statement as it carried with it an enduring message and not sporadic as in the commentary attributed to the “racial slur “

I found that the complainant did not appear to grasp that his employment had been terminated on concerns around his performance. His statement that “he left “did not match the imperative normally associated with a dismissal, such as what occurred without challenge on August 4, 2023.

Contrary to the events in Weir, above, there is no visible record of the complainant raising a concern regarding the “racial slur “. He accepted that he was in possession of the company policies and procedures, inclusive of a Dignity at Work and Policy on Harassment.

When this lack of engagement with the procedural pathway was raised with him, the complainant submitted that he had began to discuss the slur with a manager but was discouraged by him from progression.

I found his reluctance to call witnesses to attest to this interesting to be very unusual. I did not accept that he was afraid they would lose their jobs. The Complainant in my opinion did not present as reticent but rather critical of his former employer.

I noted that the Complainant recorded that he had nothing further to raise at the meeting which led to his dismissal.

I have found that the Complainant was a vulnerable figure in the work environment during his tenure. He was clearly struggling to meet the job description.

 There is no record of his responses in the three records of engagement May to August 2023 compiled by the Respondent. This suggests to me that the Complainant did not appreciate that the respondent was having difficulty with his performance.

There was no appeal of either the verbal warning or the dismissal.

I can accept that the Complainant was an Irish National of Chinese origin. However, I have not established that the treatment complained of in the form of the “racial slur” actually occurred.

I cannot identify facts which raise a presumption of discrimination on grounds of his racial origin. Mitchell, applied.

I find that it is more likely than not that the complainant was overwhelmed by his dismissal when he filed his complaint before the WRC. He was met with a hasty exit without time for him to record his reaction .

I can understand that he wanted the WRC to investigate this employment relationship when he referred his case within a week of his departure.

I would have liked to see the complainant use the procedures available to him at the workplace to challenge the “racial slur “he alleged occurred.

In this claim, I prefer the evidence of Mr Quinn on the context and background to the Starter Tasting, which went unchallenged by the Complainant at hearing.

I find that the Complainants confirmation that he responded to the “alleged racial slur “in nervous laughter does not fit with  a rejection of the remark. I find that he was mistaken in his recollection of events. I appreciate that Harassment does not require an acceptance or a rejection but rather a study of the impact on the recipient .

I did not establish that the complainant suffered a negative impact on his mental health as  relied on  in his complaint form.

The Complainant has not succeeded at prima facie stage, that he was in receipt of less favourable treatment than another in similar circumstances, not covered by the relevant discriminatory ground.

The Complainant was not discriminated against on grounds of his racial origin. I have found instead that he was very troubled by his dismissal which was not anticipated by him and which he believed Mr Quinn influenced.

Unfortunately, he did not test that thought process during or in the aftermath of his employment. He did not cross examine Mr Quinn at hearing .

Claim for Harassment on grounds of racial origin.

As stated, Section 14(A)(1) of the Act outlines Harassment. Section 14 (2) provides a defence to the Respondent if they took reasonably practicable steps to prevent Harassment or to reverse its effects.

Harassment constitutes any form of unwanted conduct related to the Discriminatory ground relied on. The intention of the perpetrator is irrelevant and what matters is the impact on the recipient of the behaviour.

In the instant case, the complainant submitted that he had been harassed once during the “starter trial “and second by being referred to as a Chinese expert.

I accept that the Complainant had grounds of Chinese origin in which to proceed in this claim. I have established that the complainant’s Chinese origin was not made known to the respondent prior to the “starter trial “.

However, I have found, following a careful consideration of the facts that the Complainant was not met by a racial slur during his employment and specifically not in relation to the “starter trial “or follow up in early June 2023.

I have found that the complainant felt diminished in his role and had a strong view that he was not Mr Quinns favourite person. He was actively engaged in a respondent initiated targeted performance improvement from 29 May 2023.

The Complainant did not raise a grievance or record his reaction to the “alleged racial slur “attributed to Mr Quinn.

There was a wide dossier of policies for him to make a complaint within the business and I cannot accept that he was dissuaded from this course of action for fear of losing his job. By then, he was clearly struggling in his work performance, and this created a vulnerability which I can understand but not a disincentive to challenging an unwanted action.

The Complainant ought to have made a real time record of his observations. I have not established any evidence of the complainant’s mental health being “deeply affected “as he told me that he had a generalised anxiety that did not require medical intervention.

I accept the Respondent evidence via Mr Quinn that he did not have hands on managerial responsibility for the complainant and he did not know his name.

The Complainant did not challenge Mr Quinns account of the events of the starter trial in cross examination at hearing. I am satisfied that Mr Quinn was fully aware of the Complainants shortfall in performance at work, but he was not active in conducting the dismissal. This was delegated to the Human Resource Manager, not present at hearing. I clarified with Mr Quinn that authority to dismiss rested with HR and the Operations Manager. It did.

I have found that the Complainant was not harassed in the course of his employment due to his Chinese origin, but rather was struggling in his work performance, which in turn created a vulnerability for him in the workplace. I found that he was mistaken in his recollection of the breadth of the conversations around the Starter Trial.

It may have served both parties very well in this case if a joint exit interview had occurred in this case.

The claim is not well founded.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make decisions in relation to the complaints in accordance with the relevant redress provisions under section 82 of the Act.

I have found that the complainant has been unable to raise a prime facia case of Discrimination on grounds of Racial origin. His claim for discrimination on that ground has not succeeded.

I have also found that the complainant was not Harassed on the grounds of his racial origin.

 Claims of Discrimination and Harassment on grounds of racial origin