Complainant

Respondent

Parties

Atilla  Inanc

Compass Catering Services Ireland Ltd

Representatives

IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 79 of the Employment Equality Acts, as amended.

CA-00050510-001

08/05/2022

The Complainant was employed by the Respondent from 9 March 2020 on a permanent contract of employment as a Commis Chef. The Complainant worked 37.5 hours per week for a gross weekly payment of €468.00.

The Complainant alleges that he was discriminated against on the grounds of family status, race and other in breach of the Employment Equality Acts, as amended. The Complainant alleges that the first date of discrimination was 30 November 2020, and the most recent date of discrimination was 9 November 2021.

This complaint was submitted to the Workplace Relations Commission on 8 May 2022. In accordance with section 77(5) of the Employment Equality Act 1998, as amended, the period to be taken into account when investigating a complaint to the WRC is six months ending on the date of the referral of the complaint.  Section 77(5) of the Act provides for an extension of the time period to 12 months for reasonable cause. 

The Complainant in this case has not requested an extension of time and has not advanced any reasonable cause which would justify an extension of time to 12 months.   It is, however, possible for a complainant to bring into a complaint more historic incidents of discrimination where a complainant can establish that they are part of a wider discriminatory regime or where there is sufficient connection between the incidents or acts. The Complainant must, firstly however, establish that a discriminatory act occurred within the limitation period (see the decision of the Labour Court in Cork County VEC v. Hurley EDA 24/2011).  In this regard I have decided that my investigation should focus, in the first instance, on alleged acts of discriminatory treatment which occurred during the period from 9 November 2021 to 8 May 2022.

If I consider these alleged incidents to amount to unlawful treatment of the Complainant contrary to the Acts, I will then consider the evidence adduced on the other (earlier) incidents complained of to determine if any of them were sufficiently connected to the incident within the six-month period so as to make them part of a continuous act of discrimination.  However, should I find the alleged incident(s) within the six months preceding the referral of the complaint not to be well founded, the earlier alleged incidents would be statute barred.

It is clear from the above, that in order to consider the earlier alleged incidents of discrimination, I must firstly decide whether the most recent alleged incident of discrimination is proven.   In addition, I must be satisfied that the Complainant has established a link between the incidents and that they can be considered as separate manifestations of the same disposition to discriminate.  

Direct evidence of the Complainant

The Complainant submits that he was treated unfairly, harassed and bullied during the course of his employment with the Respondent.  The Complainant contends that on many occasions the Head Chef compared him to other staff members saying how fast they worked compared to the Complainant. The Complainant regularly asked the Head Chef not to compare him to other staff members as everybody is different and he felt that he was being bullied.

The Complainant alleges that he did not receive training or support from his managers. They never seem to be happy with him, always criticising his work telling him to be faster even though his workload had increased. The Complainant contends that at the end of his employment with the Respondent, he was cooking double the amount that he cooked when he commenced his employment.

The Complainant submits that he only received his uniform seven months into his employment and that he never received the training that he had been promised. 

The Complainant said that within his first few weeks of his employment with the Respondent organisation, he was searching for a particular piece of kitchen equipment.  He was told by a colleague that it was in a certain area which, unknown to him, was in the Head Chef's area. When the Complainant went to retrieve the equipment, the Head Chef pointed his finger at him and shouted, “don’t ever touch my stuff.  Watch your back”.  The Complainant was shocked.  The Kitchen Manager was present at the time and said to the Head Chef “you cannot shout like that, behave yourself”.   

On 30 November 2020, the General Manager approached the Complainant while he was serving in the canteen and called him aside.  She informed him of a phone call his former landlord had made to the Respondent. The General Manager proceeded to tell the Complainant about the contents of the phone call which were very personal, untrue, and quite upsetting. The Complainant was horrified that the Respondent could take a call from his former landlord and listen to what she was saying.  What shocked him even more was the fact that the General Manager seemed to be most concerned about the possible impact on the Respondent’s client company.  Not once did the General Manager ask him if he was ok.  He was extremely upset and shocked by this.

The Complainant submits that the conversation should not have taken place on the floor but should have taken place in a private area.  The Complainant did not understand how the Respondent could justify taking a call from a person who is not related to him and allow them to discuss personal matters and make accusations that were totally untrue.  The Complainant submits that the whole situation was not dealt with in a professional manner, nor was it investigated leaving him embarrassed and feeling very low.    

The Complainant had many discussions with the Kitchen Manager about changing to a different position due to pain in his shoulder, arm and leg and his rate of pay.  When the Complainant spoke to the Kitchen Manager on 8 December 2020, he was promised that he would be given a new position and a wage increase within that month, but this never happened.    

The Complainant also alleges that he did not get paid correctly for the overtime he worked during Christmas week 2020.   

The Complainant alleges that in December 2020 while he was serving a customer, the Head Chef tried to say something to him.  Because the Complainant was focused on the customer, the Head Chef then proceeded to kick him in the shin and told him to give out smaller portions. The Complainant contends that it is not the proper way to treat a colleague.  

The Complainant alleges that on 12 May 2021, the Head Chef made discriminatory remarks regarding the Complainant’s culture when he said that Turkish people work lots of hours for little or nothing and never take holidays.   

On 9 November 2021, the Complainant went to speak to the Kitchen Manager and informed him that the Line Manger was asking the Complainant to work at a quicker pace and that he felt they were never happy with his work. The Complainant was brought to a room where all his colleagues could hear the conversation. 

The Complainant told the Kitchen Manager that he did not feel confident working as he was always put under pressure; he was being harassed by always being told to work faster. His work situation was getting him down.

The Complainant alleged that the Kitchen Manager said to him “I can’t fucking bring a solution to your problems - move or change”.  The Complainant also alleges that the Kitchen Manager also shouted at him “you can’t even make fucking custard “.  The Complainant replied that he was never trained and that another chef could not make custard either, but he was given help. The Complainant alleges that the Kitchen Manager kept saying that “it is not my fucking kitchen, it’s [the Head Chef’s] kitchen”. The Complainant pointed out that he was the Kitchen Manager.  The Kitchen Manager told the Complainant that he needed to push the Head Chef to give him a different job.  The Complainant replied that he did but that the Head Chef ignored him.  The Kitchen Manager replied that the Complainant had to push more.

The Complainant replied that he could not work in that environment. He said that he was leaving.   The Kitchen Manager asked the Complainant if he was going to email him his problems or his resignation and opened the door. The Kitchen Manager was still cursing.  The Complainant said to the Kitchen Manager “how dare you speak to me this way”.  The General Manager then came up and said to the Kitchen Manager “don’t do it like this” and asked the Complainant not to go.  The Complainant said that he was shaking and so upset and then he left.

When he was in the gents’ room getting his stuff, the Head Chef came to him and asked him not to go.  The Complainant replied that the Kitchen Manager kept cursing at him.  The Complainant was in shock, and he left.  The Complainant submits that the Kitchen Manager was angry at him and used foul language in front of colleagues on 9 November 2021 which caused him so much stress and embarrassment that it caused him to have a panic attack which left him with no option but to leave the situation.

The Complainant raised a grievance as the treatment to which he was subjected had a detrimental effect on both his mental and physical health and on his personal relationship.   The Complainant was absent from work with work related stress as a result.

Questioning of the Complainant by the Adjudication Officer

The Complainant was asked to expand on his complaint of discrimination on the family status ground. The Complainant said that his partner had two children.  The Complainant confirmed that he had not been discriminated against in his employment as a result of his partner having children. 

The Complainant was unable identify any occurrence of discriminatory treatment on the race ground during the cognisable period.

The Complainant was asked to provide details of a comparator for the purpose of his claim.  The Complainant responded that he was not comparing himself to others.

Background to the Respondent

The Respondent is a large food and support services organisation which manages and delivers onsite catering solutions for its clients across a wide range of businesses.

Background to the complaint

In his complaint form, the Complainant explained that he wished to have investigated a “grievance and outcome of grievance in relation to discrimination and bullying workplace from November 2020 to November 2021”. The Complainant alleges that many incidents he raised were not investigated or not investigated thoroughly. The Complainant also alleged that the appeals officer did not know the details of the case. 

On 24 December 2021 the Complainant submitted a grievance in writing alleging unfair treatment, harassment and bullying over a period of time listing the last incident as 9 November 2021. The Complainant requested to be moved to another location and to work the night shift from 7pm to 5am to accommodate his access to public transport. His request was accommodated.  On 24 and 26 January 2022 the Complainant, accompanied by a colleague, met with the Grievance Officer and the notetaker. The Complainant was informed that the Grievance Officer would not be able to investigate incidents which took place more than six months prior to the meeting. The Complainant was further informed that the people who are no longer in employment with the Respondent could not be investigated.

On the 9 February 2022 the Complainant was issued with the outcome of the grievance: 

•                 Some of the points of the grievance such as: incident of 9 November 2021 with colleague, request to work faster, inappropriate language used were upheld. 

•                 Other points such as pay increase promised, not receiving appropriate training, excessive workload, inability to take breaks, could not be upheld due to lack of evidence or evidence showing otherwise.

•                 Some of the points of the grievance could not be investigated due to the lack of witnesses, the passage of time, and the fact that some employees were no longer in the Respondent’s employment.

The Complainant appealed the grievance on 15 February 2022.

His points of the appeal were: 

•                 That the incidents older than 6 months were not investigated. 

•                 The Complainant felt that there was no closure regarding the telephone conversation with his previous landlord who was not the Respondent’s employee. 

•                 That not all employees were interviewed. 

•                 The Complainant wanted to raise a point about being kicked in the shin by another colleague in 2020. 

•                 Not being asked about the doctor’s note at the grievance hearing. 

On 8 April 2022 the Complainant attended the appeal hearing with a colleague. During the meeting the Complainant agreed and understood that it would be difficult to accurately investigate old issues. The appeal outcome was issued on 13 April 2022 and none of the points of appeal were upheld. The Complainant was encouraged to raise any future issues in a timely manner and to build a strong relationship with new colleagues. 

On 16 May 2022 the Complainant sent an email to the Respondent explaining his disappointment that he was not informed he would be scheduled to work with the Head Chef against whom he had raised a grievance. On the same day he received a reply from the Respondent informing him that employees are not deployed exclusively to one particular café. The Complainant was asked to inform his manager if any issues arise.

On 22 June 2022 the Complainant resigned from his employment. The Respondent contacted the Complainant and offered him the opportunity to retract his resignation and to meet to discuss his concerns on 5 July 2022. The Complainant was asked to contact the Respondent by 4 July 2022 if he wished to retract his resignation and was informed that if he did not do so, his request would be processed. The Complainant responded that he would not be attending the meeting. 

Prima Facie case of discrimination and the burden of proof         

It has been the well-established practice of the Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. 

The Respondent submits that it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised. The Respondent submits that the Complainant has failed to discharge this burden of proof and, consequently, the claim cannot succeed.

Respondent’s arguments

The Complainant alleges that he was discriminated against by the Respondent on the grounds of family status, race and other. The Complainant did not provide any information on how he was discriminated other than a statement that his grievance process was unfair. The Respondent refutes any allegation of discrimination. 

The Complainant is alleging that he has been discriminated against on the grounds of family status and race. The Complainant has failed to elect a comparator to demonstrate how he believes he has been treated less favourably under the grounds cited. The Respondent submits that the Complainant was not treated less favourably in this regard and has failed to demonstrate how any actions taken by the Respondent are related to his race or family status.

The Complainant has not identified another person in comparison to whom the Complainant could argue that he had been treated less favourably. Therefore, the Complainant has not provided any evidence to support his contention that he has been treated less favourably than another person is, has been or would be treated. The Complainant has also failed to establish a causal link between any alleged discriminatory treatment and his family status or race. 

Notwithstanding the above, the Respondent confirms that the Complainant raised a complaint about another staff member and went through a full grievance process and appeal. Some of the points of his grievance were upheld. The Respondent was unable to investigate some part of the grievance due to the passage of time and due to the fact that some of the witnesses/employees were no longer in employment with the Respondent. The Respondent submits that Complainant was dissatisfied with the outcome of his grievance but that does not mean he was discriminated against. 

Conclusion

The Respondent disputes the allegation that the Complainant was treated in a manner any different to other members of staff. The burden of proof rests with the Complainant to show that he was discriminated against on the ground of race and family status within the meaning of the Employment Equality Act 1998, as amended, as alleged. It is the Respondent’s position that absolutely no evidence has been adduced to support such claims. 

The Respondent submits that as the Complainant has not provided facts from which a prima facie case of discrimination can be established, that there is no case to answer by the Respondent and accordingly the matter should be dismissed.

Preliminary Matter

The Complainant referred his complaint to the Workplace Relations Commission under the Equal Status Act 2000, as amended, although from his written submission it was clear that his complaint related to a workplace matter.    The Respondent did not raise any issue about the referral and responded to the complaint as a complaint under the Employment Equality Act 1998, as amended.  Having considered this matter, I am satisfied that the complaint does refer to an allegation of workplace discrimination, and this was clear in the written submission made to the WRC.  It is, therefore, clear that the Complainant, who was not represented by a trade union or legal professional, believed he had made the complaint correctly.

In this regard, I refer to jurisprudence where a complaint was made under the wrong Act. The decision in County Louth VEC v The Equality Tribunal and Pearse Brannigan, (unreported, High Court, McGovern J. 24th July 2009) provides a clear authority to allow me to investigate additional acts once the nature of the claim is the same. In Brannigan, McGovern, J said, “I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time…Of course, it is necessary that insofar as the nature of the claim is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice.”

Accordingly, with reference to the above judgment, I am satisfied that this complaint which was submitted in error under the Equal Status Act 2000, as amended, should have been submitted under the Employment Equality Act 1998, as amended, and that is reflected in my decision.

Substantive Issue

The issue for consideration in this case is whether the Complainant was discriminated against by reason of his race, family status and/or other.  In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of the investigation as well as the evidence presented at the hearing.

I will investigate each complaint in turn.   Before I do so, I will set out a brief explanation about the burden of proof applicable in relation to complaints made pursuant to the provisions of the Employment Equality Act 1998, as amended.

Burden of Proof

In evaluating the evidence before me, I must first consider whether the Complainant has established a prima facie case pursuant to section 85A(1) of the Employment Equality Acts 1998 to 2015 which states:

“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.”

There are two components to a valid prima facie case.  The first component of a valid prima facie case is the requirement to identify a comparator who received more favourable treatment than the Complainant did.  I will deal with the issue of a comparator separately in relation to each complaint.

The second component of a valid prima facie case is that the Complainant establishes the facts from which less favourable treatment could be inferred.  The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. 

The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, 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 continued:

 “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 was no infringement of the principle of equal treatment”.

Further, in Determination EDA0917 [2010] 21 E.L.R, Arturs Valpeters v Melbury Developments Ltd, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates held as follows:

"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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.

In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."

Discrimination on the race ground

The issue for decision is whether the Respondent discriminated against the Complainant on the race ground in terms of section 6 and contrary to section 8 of the Employment Equality Acts, as amended. 

I must, therefore, assess the evidence adduced, both documentary and oral, and decide if, on the balance of probabilities, a prima facie case of discrimination on the race ground has been established.

In order to make a valid prima facie case of discriminatory treatment on the ground of race, pursuant to section 85A of the Employment Equality Acts, the Complainant needs to identify a comparator of a different race who received more favourable treatment than he did.   This is specified in section 6(1) of the Employment Equality Acts, where discrimination is defined as “a person 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). 

Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows – “as between any 2 persons …. that they are of different race, colour, nationality or ethnic or national origins”. As the Complainant has claimed that the alleged discriminatory treatment in this case occurred on the grounds of race, it will, therefore, be necessary for me to consider if the Complainant, as a person of Turkish nationality, was subjected to less favourable treatment compared to another person in similar circumstances because of his race, colour, nationality or ethnic or national origins.

At the hearing, the Complainant was asked to nominate a comparator for the purpose of this complaint.  The Complainant indicated that he did not want to compare himself to anyone else and did not provide the details of a comparator.

Furthermore, the Complainant did not provide evidence in relation to any incident of discrimination on the race ground to which he was subjected during the cognisable period.  The Complainant just listed a number of grievances and incidents which, by his own evidence, were in no way related to his race. Accordingly, I find that the Complainant did not establish a prima facie case of discrimination of the grounds of race.

Discrimination on the family status ground

Section 6(2)(c) of the Acts defines the discriminatory ground where one has family status and the other does not (in this Act referred to as “the family status ground”).

Family status is defined under section 2 of the Employment Equality Act, 1998 as follows:

“family status” means responsibility—

(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,

and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;”

In relation to the family status ground, I find that although the Complainant’s partner had children, the Complainant was not a parent nor a person in loco parentis in relation to his partner’s children.  Accordingly, I find that the Complainant has no locus standi to pursue his complaint of discrimination on the grounds of family status.

Having considered the submissions of both parties and the evidence presented at the hearing of this complaint, I declare that the Complainant has not established facts which, on an initial examination, lead to a presumption that discrimination had occurred on the ground of race and, therefore, that his complaint is not well founded. 

Furthermore, I find that the Complainant has no locus standi to take his complaint on the ground of family status and, therefore, that his complaint is not well founded.

Failure to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.