Complainant

Respondent

Parties

Vanessa  Corral Fernandez

Tulane Business Management Limited) trading as Samuel Hotel

Representatives

  In person

IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00055584-001

16/03/2023

The complainant is alleging that she was discriminated against by the employer on the grounds of age, religion and disability. The complainant also alleges that she was subjected to harassment and victimisation by the employer during her employment. The complaint was submitted to the Workplace Relations Commission (WRC) on 16th March 2023. The cognisable period of the complaint is 17th September 2022 – 16th March 2023.

The complainant contends that she was discriminated against on the basis of her age, religious and spiritual beliefs and on the basis of a disability. The complainant highlighted many alleged instances of bullying, harassment and general inappropriate treatment during the eight months she was employed by the respondent. The complainant also alleges in a separate complaint that she was unfairly dismissed in circumstances where she exercised her rights under the Protected Disclosures Act, 2014. The complainant also raised a number of other issues in separate complaints to the WRC and those issues were addressed separately in recommendations pertaining to those issues.

Although not directly relevant to a discrimination complaint, the complainant also raised another issue within the narrative of this complaint which was a great cause of distress to her and concerns a parcel that was sent to her and not received by her. This issue is referred to in all the complaints submitted by the complainant to the WRC. The worker noticed the gift in a plastic bag on 14th February 2023 when she attended work. She says that the parcel looked like it may have been opened. The worker stated that two months earlier she began renting the bedroom of a colleague who was away on holidays for two months. The worker experienced difficulties with other tenants in the property and was evicted during the colleague’s absence on holiday. The parcel was delivered to the house but was not given to her until the colleague brought it to the workplace on her return from holidays. As the worker had previously experienced difficulties with others in the house, she was not prepared to open the parcel as it looked like it may have been tampered with. The worker stated that she had requested that her colleague bring the parcel to the police, and she would collect it once it had been inspected. The complainant stated that instead of this, she was blamed by management for bringing the issue into the workplace. While the worker thought the accommodation manager was to give the parcel to the colleague who had brought it to the hotel, it transpired that the accommodation manager opened it herself and informed the complainant of this the following day. The complainant stated that she would not take the parcel as a result. The complainant contends that the actions of the employer were unlawful in respect of her property by opening her parcel without her permission. The parcel was ultimately disposed of by the employer, and the worker stated that she does not know what happened to it.

In relation to the within complaints of discrimination, harassment and victimisation, the complainant stated that younger people were employed on a full-time basis, whereas she had her hours reduced. She also claims that she was discriminated against on the basis of her religious and spiritual beliefs with regard to the serving of meat produce close to other food produce within the hotel and on the basis of issues that arose during diversity celebrations pertaining to birth months and assigned personality traits suggested by Chinese culture. In respect of her “disability” the complainant alleges that she was injured when a colleague pulled a trolley from her and her subsequent ill treatment by the employer was discriminatory on the basis of her disability.

The respondent contends that the complainant has not established a prima facie case of discrimination. The respondent stated that the complainant bears the burden of proof in relation to her complaints. The respondent cited Section 85A of the Employment Equality Acts, 1998 – 2015 which requires the complainant to establish facts from which an inference of discrimination can be drawn. The respondent stated that the complainant has not established any facts that could infer that she was discriminated against as claimed. The respondent cited the case of Melbury Developments Limited v Arturs Valpeters (EDA0917) in support of its position that “assertions unsupported by evidence cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” The respondent stated that the complaints are without merit and should be dismissed in their entirety.

The complainant alleges that she was discriminated against on the grounds of age, religion and disability. It is also alleged that the complainant was harassed and victimised by the respondent in contravention of the Employment Equality Acts, 1998-2015.

The Applicable Law

Discrimination

Sections 6(1) and (2) of the Employment Equality Acts, 1998-2015 state as follows:

6[(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") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) – (d) not relevant

(e) that one has a different religious belief from the other, or that one has a religious belief, and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) – (i) not relevant

Burden of Proof

Section 85A of the Employment Equality Act 1998 provides as follows:

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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission] under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section "discrimination" includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

Conclusions

I have considered the submissions of both parties and have reviewed the copious amounts of documentation submitted by the complainant in relation to the complaints. I will address each of the alleged discriminatory issues separately in respect of the complainant satisfying the burden of proof that she bears in accordance with the legislation.

Age

This complaint centres around the appointment of other staff to the hotel. The complainant worked on a casual contract of a minimum of eight hours per week over seven days. As staff left the hotel, the complainant sought full time hours Monday – Friday but with weekends off work as she felt the workload was more manageable in the hotel on weekdays, The change to full time hours with weekends off would also facilitate the complainant’s post graduate studies. It was the complainant herself who mentioned her age in the request for weekends off and management had stated that they already hired new staff members having advertised the roles and could not guarantee that there would be no weekend work within those rosters. The complainant was unable to provide any evidence that the new staff that were hired were younger than her or that it was her age that was the reason that the employer did not provide her with the attendance changes that she had requested.  On this issue, I find that the complainant has not established facts from which an inference of discrimination can be drawn and, on that basis, has not made out a prima facie case of discrimination.

Disability

On this point the complainant stated that a colleague pulled a trolley from her in May 2023, and she injured her neck as a result. This, according to the complainant shows that she was discriminated against on the grounds of disability. I note that the complaint was submitted to the WRC on 16th March 2023. The incident in question occurred after the date the complaint was submitted. As the issue post-dates the referral of the complaint(s), I do not have jurisdiction to consider this issue.

Religion and Spiritual beliefs

The complainant stated that she did not eat meat and that the serving of meat products alongside non-meat products with mixed serving utensils being used was offensive to her and discriminatory in relation to her religious/spiritual beliefs. The complainant also stated that during diversity celebrations around Chinese culture, birth months of staff members were displayed and personality traits based on a staff member’s birth month within Chinese culture. The complainant stated that she took offence at this and found it disrespectful and discriminatory. The complainant felt that her dignity was not respected, and she received no apology for the actions of the employer. The respondent’s position on this point was that it was unaware of the complainant’s spiritual/ religious beliefs and that she was not discriminated against. Having considered the matter I find that the complainant has not provided facts on this issue from which an inference of discrimination can be drawn. Accordingly, on this point she has failed to establish a prima facie case of discrimination.

Harassment and Victimisation

Having heard the written and oral submissions of the parties, I find that the complainant has not made out a prima facie case that she was discriminated against by the employer on the grounds cited or at all. I also find that while there were interpersonal difficulties between the complainant and many of her colleagues, and these matters are considered in other complaints/disputes submitted to the WRC, she has not established facts that infer she was harassed and/or victimised on the basis of her age, religious/spiritual beliefs or as a result of a disability. On that basis, I find that the complaints fail.

For the reasons stated above, I find that the complainant has not established a prima facie case of discrimination. Accordingly, I find that the within complaints are not well founded.

Discrimination, harassment, victimisation, burden of proof