Complainant

Respondent

Parties

Asad  Siddiqui

Sylhet Green Limited

Representatives

Self-represented

Mr Abdul Mumith, Director

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-00062078-002

07/03/2024

The Complainant commenced his employment with the Respondent on 20 October 2023 as a customer assistant.

On 7 March 2023, the Complainant referred a complaint against the Respondent pursuant to the Employment Equality Act, 1998 and a complaint against the Respondent pursuant to the Unfair Dismissals Act, 1977. He withdrew the latter on 22 March 2024.

The Complainant alleges that he was dismissed for a discriminatory reason or for opposing discrimination.

The Respondent rejects the claim.

The Complainant submits as follows.

Background of the incident

The Complainant commenced his employment at Fairgreen Service Station on 10 December 2023, following a call from Mr Abdul Mumith, Director.

The Complainant submits that during his tenure, he was not provided with a written contract outlining his terms of employment.

The Complainant submits that on 20 January 2024, while he was working his scheduled shift from 3pm to 11pm, Mr Syful Islam, a colleague with over three years of experience at the station, pressured him into performing tasks that were beyond his responsibilities and he did not let the Complainant to leave the store after the end of his shift. Despite completing all his duties, Mr Islam continued to make abusive comments and started pushing the Complainant and threatening him with consequences if he left, even after his shift ended.

The Complainant submits that the situation escalated further when Mr Islam began to throw objects, such as a calculator, in an attempt to intimidate him. This relentless bullying persisted for several hours, leaving the Complainant feeling fearful and unsafe, particularly given the late hour and the distance he had to travel home (some 2.5km).

The Complainant submits that throughout this ordeal, he remained silent, enduring the abuse. The distressing situation was addressed by a customer who expressed concern for the Complainant’s well-being and attempted to intervene on his behalf. Mr Islam then directed his abusive behaviour towards them as well. The Complainant submits that one of the customers called the Gardaí.

The Complainant’s roommates, Mr Sami Eljack and Ms Delphin Maheshwaran, arrived at the service station that night after he failed to return home on time. They witnessed the ongoing harassment and the subsequent events. However, when they brought the matter to the attention of Mr Abdul Mumith, the Director and a close friend of Mr Islam, Mr Mumith assured them that he would personally address the situation.

The Complainant submits that despite the clear and compelling evidence presented, no action was taken against Mr Islam.

The Complainant submits that a week later, Mr Mumith chose to place the Complainant and Mr Islam on the same shift. The Complainant asserts that he had specifically messaged Mr Mumith asking not to be paired with the person who had bullied him.

The Complainant submits that a month after the incident, on 25 February 2024, Mr Mumith informed him via WhatsApp that he was being dismissed due to a slowdown in business at the service station. When the Complainant requested a notice period to secure alternative employment, Mr Mumith refused (screenshots of the chat were exhibited). The Complainant believes this was a retaliatory action due to the incident and which also exacerbated the sense of injustice.

The Complainant submits that the day before his dismissal, he had requested a day off because of the stress and trauma experienced at work. The Complainant even offered to cover his shift if no other arrangements could be made. Mr Mumith suggested that the Complainant took time off. However, the following day, the Complainant received a message from Mr Mumith stating that the store was slow, he could not offer the Complainant more hours, and he advised him to start looking for a new job.  Mr Mumith also promised to compensate the Complainant with two weeks' wages, which the Complainant never received.

The Complainant submits that Mr Mumith hired an old employee who is a close friend of him, just a day after dismissing the Complainant.

The Complainant submits that Mr Mumith wanted to replace an employee, and he chose him, likely perceiving him as vulnerable due to his status as a student and his emotional breakdown.

Legal grounds and relevant legislation - Employment Equality Act 1998

The Complainant submits that the Employment Equality Act 1998 which protects against workplace discrimination based on race, ethnicity, and nationality, was violated in his situation. His employer, Mr Mumith, discriminated against him by favouring a colleague, Mr Islam, who has been employed at Fairgreen Service Station for a longer period and shares the same ethnicity as Mr Mumith. Furthermore, just a day after dismissing the Complainant, Mr Mumith hired his very close friend who shares the same ethnicity as him in a full-time capacity. This has led the Complainant to suspect that his mistreatment has been influenced by his different ethnicity, which sets him apart from both his colleagues and his employer. 

Despite the Complainant enduring severe bullying and harassment from Mr Islam, the Respondent failed to take any corrective action against him. Instead, Mr Mumith chose to dismiss the Complainant, a newer employee, rather than address the inappropriate and abusive behaviour of his long-time colleague and close friend. This decision indicates a clear bias against the Complainant, violating the principles of fairness and equality protected under the Employment Equality Act.

The Complainant submits that the circumstances surrounding his dismissal further support his claim of discrimination. The Unfair Dismissals Act 1977, which protects employees from being dismissed without just cause, was also disregarded. The Complainant’s dismissal occurred just one month after he reported the bullying incident involving Mr Islam. Mr Mumith cited a slowdown in business as the reason for the dismissal, which the Complainant believes was merely a pretext to retaliate against him for reporting the harassment. The dismissal was not based on any legitimate performance issues but was instead a retaliatory action, further demonstrating the discriminatory behaviour in violation of the Employment Equality Act.

The Complainant submits that he was dismissed via WhatsApp message stating there were no more hours available. His request for a notice period was denied, and after his dismissal on 25 February 2024, he received his last salary on 28 February 2024. Since then, he received no further payments, benefits, or compensation. The WhatsApp messages confirm the dismissal, and the claim that he is still employed due to the lack of a P45 is a misrepresentation of his status and an attempt to divert attention from the facts.

Conclusion

The Complainant submits that he was unfairly dismissed and discriminated against because of his ethnicity and his position at a service station. His employer favoured a colleague who has been with the company longer and shares the same ethnicity as him while ignoring the severe bullying the Complainant experienced. In the end, he was informally dismissed without any just cause or notice period.

The Complainant seeks the following:

·       That the Respondent acknowledges the discrimination and recognises that the Complainant’s dismissal and treatment were influenced by discriminatory behaviour. The Complainant’s colleague, who has been employed longer and is a close friend of Mr Mumith, was given preferential treatment, while his concerns about severe bullying and harassment were ignored. Despite the ongoing abuse, no action was taken against the Complainant’s colleague, and instead, the Complainant was dismissed. Later, he was replaced by another employee who is a close friend of the employer. The fact that the Complainant is of a different ethnicity and was a new employee only further highlights the bias in the way he was treated.

·       Award of compensation: The Complainant seeks compensation for the significant impact this experience has had on his life. The ongoing bullying and harassment he endured at work caused him severe emotional distress that left him feeling unsafe and anxious. This mental stress has also affected his studies, making it difficult to focus and perform academically. Additionally, being dismissed without notice or a formal process has caused financial strain and uncertainty. The Complainant believes that compensation is a fair remedy for the harm he has suffered, both emotionally and mentally, as well as for the unjust manner in which his employment was terminated. He is still terrified about what the Respondent might do to him, especially since he is a student who only arrived here a few months ago, while they have been here for years. The Complainant submits that he has lost all his dignity at the workplace.

Summary of direct evidence and cross-examination of the Complainant

At the adjudication hearing the Complainant outlined the events as per his written submission. He said that from the first day with the Respondent, he was being bullied. With time, it got physical and very aggressive. He said that Mr Islam said that the Complainant was “supposed to be a student but had no brain”. 

On the evening in question, the Complainant said, Mr Islam was pushing him so the Complainant could not leave the room. Mr Islam then told the Complainant to do a report of sales. The Complainant said that he was not trained to do so. The Complainant said that Mr Islam was asking him in an aggressive manner to sign the form. The Complainant told him that he did not know what the form was about.

The Complainant said that two female customers walked in, they hugged him, and asked Mr Islam why was he doing things to the Complainant. Mr Islam was aggressive with them. The Complainant started crying and rang Mr Mumith. He told Mr Mumith that there was a fight and he needed to come. Mr Mumith arrived before the Gardaí. Mr Mumith told the Complainant to go to the office. He did so but could see what was happening in the shop. Mr Mumith was talking to the two female customers. The Complainant could not hear what was being said. The Gardaí arrived. The two female customers left as soon as the Gardaí arrived.

The Complainant said that the Gardaí asked him what happened. The Complainant told them that he was being bullied. They took the Complainant’s phone number but never rang him. The Complainant said that he contacted Gardaí about a month ago and was told that their understanding was that there was an incident with customers who had difficulty with the store.

The Complainant said that on 21 January 2024 he was scheduled to work from 3pm to 11pm but he went in at 8am as he took keys by mistake with him. He then went to work at 3pm. He was rostered to work with Mr Islam again. He had asked Mr Mumith not to schedule them together. He was then rostered to work on the following Saturday but did not go to work. He was also scheduled to work on Sunday with another employee, so he went to work but the employee he expected was not there and Mr Islam was there instead. The Complainant said that they haven’t talked much and there were no incidents.

The Complainant said that on 24 February 2024, he told Mr Mumith that he was not feeling well, he sent a message saying that he was feeling faint/dizzy because of some weakness and requested a day off.  The Complainant said that after that date, he was never rostered to work again. The Complainant said that he only asked for one day off and took a half-day on another occasion for a family function.

The Complainant said that on 28 February 2024 Mr Mumith rang him and asked him to come to work next week but on 3 March 2024, Mr Mumith contacted the Complainant and said that there were no more hours for him.

The Complainant said that he is Indian and Mr Islam and Mr Mumith are Bangladeshi.

The Complainant confirmed that he tracked one of the female customers via social media and asked her to be his witness when he brings a claim against the Respondent. The customer declined.

The Complainant confirmed that when he was asked on the next day if all was OK between him and Mr Islam, he replied that it was.

The Respondent chose not to cross-examine the evidence.

Summary of direct evidence of Ms Delphin Maheswaran, the Complainant’s housemate

The witness said that she he rang the Complainant around 11pm, there was no answer. She rang again and the Complainant said that he was finished and would be leaving work. And 11.30pm, the witness rang the Complainant again, he was crying on the phone. He said that his colleague was bullying him and asked her to come to his workplace. Ms Maheswaran and Mr Eljack went to the station.

Ms Maheswaran said that initially the Gardaí stopped her from talking to the Complainant and she spoke with him when the Gardaí left. He was frightened and crying. She hugged him to comfort him.

Ms Maheswaran said that she told Mr Mumith that Mr Islam was bullying the Complainant. Mr Mumith said that he would handle the matter.

The witness said that whenever the Complainant worked with Mr Islam, he was upset. She told the Complainant to ignore Mr Islam. Sometimes the Complainant said that he did not want to go to work. He said that he would talk to Mr Islam. He was very anxious after the incident. Ms Maheswaran said that the Complainant lost confidence and was deeply affected by the incident.

The Respondent chose not to cross-examine the witness’ evidence.

Summary of direct evidence of Mr Sami Eljack, the Complainant’s housemate

The witness said that Ms Maheswaran spoke on the phone to the Complainant on the night in question. She said that the Complainant asked for help. The two of them went to the station.

The Complainant was sitting behind the till, he was stressed and upset. Mr Eljack said that he talked to the manager who said to him that it was just an altercation between the Complainant and another employee. The Complainant was upset, he was afraid that the Respondent was going to fire him, he was afraid that something was going to happen to him. Mr Eljack said that he told the Complainant that there are protections, that he could contact the WRC.

Mr Eljack said that he observed the Complainant every day worrying, he was not the same person as he used to be. Mr Eljack said that he told the Complainant that, if there was bullying, he could go to the WRC.

The Respondent chose not to cross-examine the witness’ evidence.

The Respondent failed to furnish a written submission to the WRC. The Respondent asserted that its written submission was sent to the WRC on 30 August 2024. However, having conducted a check, I was satisfied that no written submission was received by the WRC.

Summary of direct evidence and cross-examination of Mr Abdul Mumith, Director

Mr Mumith, the Director said that the Respondent employs staff of different nationalities such as Indian, Bangladeshi, Polish and Irish. In the past, the Respondent also employed staff from Pakistan and Afghanistan. The shop Manager is from India.  Mr Mumith said that, in general, he employs new staff on recommendation from friends or current employees. He said that the Complainant was recommended by a friend.

Mr Mumith said that usually a new staff member is rostered with and trained by a more experienced employee. He said that he does not care about minor mistakes. If a small amount of cash is missing, it would usually be located at another till. Staff deserve another chance and small mistakes are usually easily solved. If there is a bigger issue, staff are talked to.

Mr Mumith said that until 11pm there are two employees on duty. After 11pm, the shop closes and there is only a hatch opened. There is one employee on duty after 11pm but the second employee must remain in the shop until customers leave the shop and staff close the premises and open the hatch. One employee cannot be left in the shop on their own before the shutters are closed.

Mr Mumith said that that on the evening in question two female customers who appeared to be very drunk entered the shop. There were messing. Mr Mumith received a phone call from the Complainant. Mr Mumith said that the Complainant had told him to “come to the shop. The girls are messing. Islam already called Gardaí”.

Mr Mumith said that he lives nearby, he was in the shop in 2 minutes. He told the Complainant and the others to stay. When Gardaí arrived, Mr Mumith told them that he was not sure what was happening. The customers were shouting, calling him names, the Complainant was crying, Mr Islam was upset. The Gardaí told the customers to leave.

Mr Mumith said that the Complainant told him that Mr Islam was bullying him. He said that he wanted to leave around 11pm but Mr Islam would not let him. Me Mumith said that he explained to the Complainant that he could not leave before 11pm. The Complainant closed his till before 11pm and was short €20. Mr Mumith said that Mr Islam told the Complainant that it was OK, and he asked the Complainant to sign a report that his till was short. This can usually be rectified and reconciled. It was not a major issue. He said that his understanding was that the Complainant wanted to leave a few minutes before 11pm to catch a bus but Mr Islam told him that he could not leave as there were two intoxicated customers in the shop.

Mr Mumith said that he understood that it was an issue with the customers and not between the employees. He said that the Complainant did not say anything about Mr Islam calling him names or throwing a calculator at him. He said that his understanding was that the Complainant was upset because he could not leave and because he was short €20.

Mr Mumith said that the Complainant sent him a message that he did not want to work with Mr Islam. On the next day the Complainant was rostered to work and worked with Mr Islam. Mr Mumith checked on him and asked him if everything was OK. The Complainant said that it was.

Mr Mumith said that the team is a small one, 5-6 people. If one person says that they cannot work on particular days or with another staff member, it is difficult to arrange the roster.

Mr Mumith said that the Complainant told him that he could not work on 24 February 2023. Mr Mumith told him that it was problematic but gave the Complainant another chance. He told the Complainant that if he was ready to work, he would have work for him, but he could not make it work if the Complainant was constantly asking him for time off. Mr Mumith said that at that stage he thought that it would be better for him to employ someone on a full-time basis.

Mr Mumith said that he did not watch CCTV footage from the night in question. As far as he was made aware, the till was short, it was nothing major. The customers were problematic, but they left after the Gardaí arrived.

Mr Mumith said that he did not give the Complainant his terms of employment. He said that there was a bullying and harassment procedure in place. He had no copy available to the hearing. He confirmed that the Complainant was not furnished with a copy.

Mr Mumith confirmed that the two female customers were known to him and to the staff in the shop. He said that one of them told him that the Complainant tracked her via social media and asked her to be his witness if he made a claim. She refused.

Mr Mumith said that Ms Maheswaran told him that that Mr Islam was bullying the Complainant and he told her he would deal with it in the next day. On the next day the Complainant and Mr Islam worked together. Mr Mumith came to the station around 6-7pm. When asked, the Complainant told him that all was fine.

Mr Mumith said that he asked Mr Islam what happened. Mr Islam told him the Complainant was upset because his till was short but that he refused to sign the till shortage form. Then the customers arrived and Mr Islam told the Complainant to stay. 

In cross-examination, Mr Mumith confirmed that at the relevant time there were 5 employees from Bangladesh and 2 from India working for the Respondent.

Summary of direct evidence and cross-examination of Mr Md Syful Islam, Sales Assistant

Mr Islam said that on the night in question two drunk female customers entered the shop and were messing. He said that one of them picked up a €1 item and said that the other one would pay, the other customer “kicked up”. They were trying to start a fight with Mr Islam. They left and went to a bar next door. They came back at 10.50pm. Again, they started messing. There were other customers in the shop.  Mr Islam said that he told the Complainant that he could not leave the shop until the customers are gone so the shutters could be closed. It is too dangerous to leave one employee on their own.

Mr Islam said that the Complainant’s till was short, and he asked the Complainant to fill out a relevant form. The Complainant said that he had never done this before. Mr Islam said that he told the Complainant to ask for help if he needed it. The Complainant did the report, his till was short €20. However, the Complainant did not want to sign the form.

Mr Islam denied that he threw a calculator at the Complainant. He said that he called Gardaí because of the two drunk customers. He confirmed that the Complainant rang Mr Mumith. He said that the Gardaí arrived some 10 minutes after Mr Mumith. At that stage the two customers were still in the shop until the Gardaí told them to leave.

The Complainant chose not to cross-examine the evidence.

The Complainant alleges that he was dismissed for a discriminatory reason or for opposing discrimination.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

At the adjudication hearing, the Complainant attempted to introduce a covert audio recording. I found that, having the sworn evidence the Complainant, Mr Islam, Ms Maheswaran, Mr Eljack and Mr Mumith outweighs, in the circumstances, the evidential value of the recording. The recording was, therefore, not allowed.

Discrimination for the purposes of this Act

Section 6 (1) of the Employment Equality Acts 1998 (as amended) (“the 1998 Act”) states:

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”)

Section 6(2) provides that: as between any two persons, the discriminatory grounds are inter alia:

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

Section 8(6)(c)of the 1998 provides that:

8(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

…

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

Section 2 of the Employment Equality Act 1998 defines dismissal as:-

“dismissal” includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly;

The cognisable period for the purposes of this Act

Section 77(5) of the 1998 Act states:

(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the [Director General] or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly.

(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

The complaint was referred to the Director General of the WRC on 7 March 2024. The Complainant confirmed that the date of occurrence of the discrimination to which his case relates is the 3 March 2024, the date on which he was informed of his dismissal.

Comparators

Section 28 of the Acts provides for comparators:

(1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:

…

(g) in relation to the ground of race, C and D differ as to race, colour, nationality or ethnic or national origins or any combination of those factors;

Victimisation

Section 74(2) of the Acts defines victimisation as follows:

For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful or any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

The Burden of Proof

Section 85A of the 1998 Act provides as follows:

“85A(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.”

The effect of section 85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.

The WRC and the Labour Court’s approach to this issue and the test for applying section 85A of the 1998 Act is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v. Southern Health Board [2001] 12 E.L.R. 201 wherein the Labour Court stated:

“the claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only where these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

In Minaguchi v. Wineport Lakeshore Restaurant EDA034 “the primary facts” were defined as follows:

“It appears to me that the three key elements which need to be established by a claimant to show that a prima facie case exists are:

(i)                  that she/he is covered by the relevant discriminatory ground(s)

(ii)                that she/he has been subjected to specific treatment and

(iii)               that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.

In Mary Margetts v. Graham Anthony & Company Limited EDA038 the Labour Court stated that “[t]he mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The Labour Court, in its decision in Arturs Valpeters v. Melbury Developments Ltd [2010] 21 E.L.R. 64, addressed the onerous nature of the burden of proof:

“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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Labour Court has also consistently stated that:

“The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts”: Kieran McCarthy v. Cork City Council EDA082

In deciding on this complaint, therefore, I must first consider whether the presumption of discrimination has been established by the Complainant. It is only where such a presumption has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. 

In the instant case the Complainant stated in evidence that he was an Indian national. The Complainant’s claim was that he was dismissed for a discriminatory reason or for opposing discrimination. At the adjudication hearing, the Complainant’s evidence was that he was dismissed following an incident on 20 January 2024 because:

1.       The Respondent preferred Mr Islam, who is a Bangladeshi national.

2.       He was Indian and the Respondent replaced him with a Bangladeshi national.

Despite the initial defence presented by the Respondent that the job is still available to the Complainant, it was accepted at the hearing that the Complainant’s employment was terminated. While the Revenue Commissioners’ record exhibited by the Complainant show the cessation date as 29 February 2024, it was confirmed that the Respondent informed the Complainant that there was no work available to him on 3 March 2024.

There was no dispute that an incident took place on 20 January 2024 during a shift that the Complainant worked on with Mr Islam. There was a dispute between the parties as to the nature of the incident. The Complainant stated that he was subjected to bullying “for several hours” during his shift. The Respondent asserted that the matter related to two intoxicated customers and till shortage. The Complainant confirmed that the Gardaí record showed an issue with customers.

There was no dispute that on the night in question, the Complainant’s roommate made an allegation to Mr Mumith that the Complainant was being mistreated by Mr Islam. There was also no dispute that during the next shift with Mr Islam, the Complainant confirmed to Mr Mumith that he was fine and “all was OK”. The Complainant’s subsequent texts made no reference to the alleged name calling, throwing a calculator at him, etc.

The Complainant submitted that, over a month after the incident, in or around 25 February 2024, the Respondent informed him that it had no work for the Complainant as it was a quiet time of the year. The Complainant argued that on 3 March 2024 the Respondent dismissed him because it preferred Mr Islam over the Complainant.

The Respondent argued that the Complainant did not want to work with certain staff members and that he requested additional days off. As a result, the Respondent deemed the Complainant unreliable and decided to dismiss him. 

While I have concerns about the manner in which the Complainant’s employment was terminated, I am constricted in my decision to the provisions of the Employment Equality Acts. I find that the Complainant has failed to produce evidence establishing a link between his race and the dismissal.

Having carefully considered the matters raised by the Complainant, I find that the Complainant has not established primary facts to support a claim of discrimination on the grounds of race. Therefore, the burden of proof does not pass to the Respondent to prove that there was no infringement of the principle of equal treatment. 

Dismissal for opposing discrimination / victimisation

The Complainant must demonstrate that there is a causal connection between him taking one of the acts listed in Section 74(2) the Act quoted above and the adverse treatment by the Respondent. The act or acts which result in victimisation must be connected to a reliance on rights under the Act.

In Moriarty v. Dúchas DEC-E2003-013, the Equality Officer outlined that it “is necessary that a complainant demonstrate the connection between his or her actions in relation to defending entitlements under the Act and the treatment complained of”.

In Department of Defence v. Barrett EDA1017, the Labour Court held that the definition of victimisation at s 74(2) contains three ingredients. It requires that:

“1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

As noted above what constitutes a protected act is defined at s 74(2) paragraphs (a) to (g) inclusive, as follows:

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

It was not clear from the Complainant’s evidence which provision or provisions of section 74(2) of the Acts he is relying on. I am satisfied the Complainant did not undertake any of the protected acts listed above prior to his dismissal. I am satisfied the Complainant initiated proceedings under the Acts against the Respondent on 7 March 2024. Therefore, his dismissal could not have occurred as a reaction to having issuing proceedings to the WRC. The Complainant did not contend that he was subjected to adverse treatment after his dismissal. 

I declare this complaint of discrimination on the grounds of race to be not well founded.

I declare the complaint of victimisation to be not well founded.

Discrimination -victimisation -race-