Complainant

Respondent

Parties

Yessica Gibson

Qcafe Co.

Representatives

  In person.

John Barry Management Support Services (Ireland) Ltd

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-00065231-003

06/08/2024

The complainant was employed as a Catering Assistant by the respondent. Employment commenced on 07.01.2024 and ended on 02.08.2024. The complainant worked 40 hours per week.

This complaint was received by the Workplace Relations Commission on 06.08.2024.

At the hearing of the complaint the complainant was assisted by an interpreter supplied by the Workplace Relations Commission.

By way of an email from the Complainant addressed to the Adjudication Officer the Complainant has outlined her complaint. This email reads as follows:

Dear WRC Officer,

I am writing to submit a file that contains relevant evidence in relation to my complaint. In the attached file, you will find emails and messages that provide information regarding my dissatisfaction with the treatment I have received and the work environment. It is clear that I described multiple instances where I was assigned continuous tasks without breaks, even when there was additional staff available who were not engaged in work but merely conversing. This constitutes clear discrimination. When I reported this to the manager, Karen, she simply advised me to ask the other staff for assistance (in my opinion, it is her responsibility to ensure that duties are assigned equally and that teamwork is promoted). Following this, the situation worsened, including an incident with the head chef, who yelled at me in a very rude manner and told me to leave the workplace. I once again requested the managers to provide me with the necessary information and contacts to report these incidents, as no action was taken when I informed them.

After insisting and informing them that I would not return to work until the issue was resolved, I also sent an email to another manager, Laura (as she has always responded promptly and professionally). Only after this did Martin contact me and agreed to provide me with the information on how to file my report. In those same emails, Martin also sent me information about extending my probationary period with the company (I should mention that the only contract I received and signed was a permanent one).

Eventually, Manager Martin scheduled a meeting with me at Nazareth Nursing Home at 1:00 PM. However, he never showed up at the appointed time, nor did he write or notify me of any delay or reason for his absence. Later, he emailed me stating that he would give me another opportunity to attend our meeting, implying that it was my fault and a lack of interest on my part. I responded, pointing out that his tardiness is not my responsibility. You can review the emails and clearly see how he manipulates the facts. I even sent him a screenshot of my Google Timeline. We later agreed to hold another meeting at the main offices, as he requested. I arrived on the scheduled day and time, but he did not show up. He forgot, but when I called him, he claimed we had agreed on another day, making it seem like it was my error. I sent him an email showing where he had confirmed the day and time, and it was evident that the mistake was his (in short, he does not like to admit mistakes and instead shifts the blame onto others, making them feel guilty). You can also see in the screenshots that I have repeatedly requested payment for hours worked, and to date, they have not been paid. It is an extremely toxic and stressful work environment if you are not one of their preferred employees.

I am reporting this to you as the authority that upholds workers' rights, including the right to fair and non-discriminatory treatment and a dignified workplace.

The law and regulations exist, and I want to assert my rights. This company cannot continue treating its staff under these conditions (elitist/racist). They must adhere to ethical and labour responsibility standards. Their structure suggests equal, fair, and dignified treatment, which is not the case, at least not for everyone.

I have not experienced any physical or emotional distress for over four years (not even during the pandemic), until I joined this job. Since being under these working conditions, I have visited the GP twice in one month due to chest pain, where I was told it was only stress. You can check my medical history with my GP and my PPS number.

 I hope this information is valuable and will be considered.

Background

1.       Q Cafe Company Limited (hereinafter referred to as “the company”) is in the business of providing catering services to clients on a contract basis. In this particular case the company was providing services to a group of nursing homes.

2.       Ms Gibson (hereinafter referred to as “the complainant”) commenced employment with the company on the 7th of January 2024 and was employed to work in two nursing homes serviced by the company, one being Beach Lawn and the other being Nazareth House.

3.       The complainant was employed by the company as a catering assistant, whose responsibilities were to carry out duties as assigned within the catering area. The complainant would have been one of seven catering assistants appointed to this site.

4.       Subsequent to joining the company the complainant stopped working in the Beach lawn nursing home as it became apparent that she was she was not getting on with her work colleagues or management in that unit and therefore it was decided that she be assigned to Nazareth House.

5.       This was a relatively new client for the company and unfortunately some difficulties, which arose at the time of the takeover, resulted in there being a turnover of staff and management.

6.       As a consequence, Mr David McNevin was assigned as the Chef Manager, on a relief basis for the Nazareth House Unit until a permanent appointment could be made, and the complainant would have been reporting to Mr McNevin as the Unit Manager.

7.       Mr. McNevin himself reported to senior regional managers who were providing support in the Nazareth House, and these included Mr. Martin Byrne who was the regional manager and also to Ms. Karen Dalton who was a craft chef and was also providing support in Nazareth house.

8.       As indicated earlier, the complainants’ responsibilities involved providing a range of general activities within the catering area and was expected to carry out catering duties as assigned to her.

9.       Mr McNevin joined this site approximately four months into the complainant's service in the company and was aware of some concerns regarding her performance at work. Having only been there for a short period of time, Mr Byrne conducted a probation review with the complainant on the 18th June 2024 during which it was made clear to Miss Gibson that her performance to date was not up to the standard required by the company.

10.    As a consequence of the poor review, the complainant was advised that her probation period was going to be extended until the 7th  of September 2024, and this was confirmed in writing on the 21st of  June.

11.    Unfortunately, subsequent to this review, and as a result of the complainant incorrectly heating food for a client, resulting in a potential Health and Safety risk, it became apparent to the company that the complainant's performance was not improving and therefore the decision was made to terminate her employment.

12.   The complainant met with Mr. Byrne on 2nd August, where she was advised that her probationary period was going to be ended as the company continued to be dissatisfied with her level of performance during her probationary period. The company believed that she was not up to the standard which was required in the Nazareth House and outlined that the complainant was consistently slow in performing her duties, always seemed to react negatively and in an unacceptable fashion when she was ever challenged over the way she carried out her duties and also behaved unacceptably in relation to how she responded to management.

13.   The complainant, in her submission, has made a number of allegations against the company and has claimed raising issues which she felt were justifiable points. These are as follows:

Break times

14.   It is normal practice on the site that staff are scheduled to work a certain number of hours each week and their total hours on site are recorded. In accordance with the company's terms and conditions of employment, all the staff who are working in excess of four and a half hours a day are entitled to a 30 minute unpaid lunch break, and the 30 minutes are deducted from the total hours on site, which then establishes the working hours which the complainant is entitled to be paid for.

15.   While this site was a busy site there was no difficulty, as far as the company was aware with staff not receiving their breaks and it is of note that no other staff member has raised any issues with the company regarding the taking of breaks. In addition to the fact that no one else seems to have a difficulty taking a break, the company itself is satisfied that staff had plenty of time to take their breaks and, within the company's term the conditions of employment there was a very clear procedure set out for an employee if they were unable to take their breaks.

16.   The significance of the breaks issue is that the complainant had been maintaining that she was required to work whilst her colleagues all got their breaks, whether they be smoke breaks, lunch breaks or other types of breaks and that she had to continue working during this period of time and was not allowed to take a break. The company contend that as was evidenced by the members of staff who took their breaks, staff were allowed to take their breaks and the complainant was in no way treated differently from any member of staff.

17.   The issue of break times came to the company's attention in May 2024, when the complainant was maintaining that she had had to work breaks and was claiming paid time for the periods of time she worked.

18.   This dialogue took place between the complainant and Ms Karen Dalton, who was trying to address concerns raised by the complainant regarding what she regarded as a shortfall of wages. However, when Miss Dalton investigated the matter, she identified that the shortfall which the complainant referred to appeared to be due to the fact that she was not paid for her breaks and, in accordance with normal procedures, the break times were deducted from the weekly on -site timesheet.

19.   The complainant insisted that she had to work her breaks and so Ms. Dalton offered to meet the complainant on the 18th of July. Unfortunately, the complainant did not confirm the meeting and instead contacted Mr Byne on the 19th of July.

20.   Mr. Byrne, the regional manager, made it clear to the complainant that staff were not paid for their breaks and that staff were expected to take their breaks. Furthermore, there was no evidence that the complainant had been instructed by anybody to not take her breaks or required to work during her break time. He confirmed that there would be no payment made for break periods.

21.   The complainant also maintains that she was harassed by the chef manager, Mr. McNevin. When the complainant brought this matter to the attention of the company, she was advised of the fact that there were procedures to deal with such matters. In the first instance the matter was addressed by informal meetings between the complainant, Mr. McNevin and Ms Ursula Swords, which resulted in the matters being resolved, both parties shaking hands, and in fact, as per Ms Swords notes, both parties leaving the meeting chatting. Ms Swords had met with both parties, both separately and together on the10/07/2024.

22.   Ms. swords spoke to both parties separately to get an understanding of their viewpoint on the issues involved. It would appear that the complainant was upset because the head chef was monitoring her and checking the work she was doing to make sure she was doing it properly and also alleged that he was shouting at her.

23.   The complainant claimed that the chef behaved this way towards a number of other members of staff, but no evidence was presented to support this allegation. In this regard Mr McNevin stated that he did not shout at staff, but he did accept he would be checking on people, making sure they were doing their work properly. He also apologised to the complainant if she had been upset by the fact that he was checking her work, but pointed out that if the work was not done properly in the first place, then not only would it result in the work having to be redone, which is time consuming, but if the work did get through to the clients, then there could be complaints from the client itself, which would reflect poorly on both the team and the kitchen, along with the company.

24.   Arising from this meeting with Ms Swords, both parties appeared to have a better understanding of where they were coming from and secondly that they shook hands at the end and the issues which the complainant is now referring to had been dealt with.

25.   At no time after this meeting did the complainant ever come back to indicate either there had been further incidents with Mr. McNevin or different incidents involving Mr. McNevin.

Employment equality

Section 85 Shifting the Burden of Proof

·       As the Chairperson is aware, the onus is on the employer to prove that no discrimination occurred only occurs where the complainant can provide facts from which it may be presumed the Employment Equality Acts have been breached. There is significant case law in support of this position, the starting point would be the decision of the Labour Court in Southern Health Board v Mitchell(AEE/99/E) a decision which remains the leading decision on the shifting of the burden of proof. The Court considered the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination can be made out:

“The first requirement is that the complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

·       Section 85A (1) of the Employment Equality Acts provides as follows: “(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”.

·       In order for the Complainant to demonstrate that she has received less favourable treatment, and that this treatment arose from her age, gender, civil status, religion and/or race, the Complainant must first establish a prima facie case of discrimination. Prima facie evidence has been held in the Labour Court in the Rotunda Hospital v Gleeson [DDE003/2000] to be: “Evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.”

·       The Respondent maintains this requires that the complainant has to not only establish the primary facts upon which she will seek to rely on, but also that those facts are of sufficient significance to raise an inference of discrimination.

·       In Cork City Council v McCarthy EDA21/2008, the Labour Court recommended that:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. 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 of 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 in particular a 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”.

·       In Melbury Developments Ltd v Valpeters [2010] ELR 64 the Labour Court warned that “mere speculation or assertions, unsupported by evidence, (our emphasis) cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

·       The company contends that based on the information provided to date, the complainant’s submission provides no evidence that the complainant has been treated less favourably. The position of the complainant is that she had been victimised and, that she has been treated less favourably, thus maintaining that this meets the requirement of section 85. We contend that in line with the Labour Court decision in Melbury Developments, this mere assertion cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.

·        The company employs 9 staff in Nazareth House and there will be a range of nationalities employed. The complainant is Mexican,  the company would also employ people from Africa/Poland/Romania. Throughout the company, by the very nature of our industry, we will employ a range of nationalities and it is the company's philosophy that everybody is treated equally with no preference to be given to any nationality or any other ground under which the employment equality legislation applies.

·       In this particular case the complainant is maintaining that she was victimised and that this was the discrimination conduct being complained about and that she was being victimised because of her race. The burden of proof which must be satisfied by the complainant was summarised in Minaguchi v. Wineport Lakeshore Restaurant as follows:

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

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

(ii)                that 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.”

·       The complainant has not identified any person of a different race who was treated more favourably than herself. In this regard the company would argue that all staff are treated equally and that whilst it was a busy unit all staff were given the flexibility to work away in a manner that delivered the service to the clients.

·       The company would maintain that the complainant was treated no differently from anybody else. However, as we have seen from previous points raised, the complainant felt, for example, that she was being spoken to and she didn't like being spoken to about her work. Yet when explained to her by the head chef that it was his job to ensure the work was up to standard, the complainant ended that meeting accepting the situation and even discussing with the head chef better ways to do the work.

·       If we then look at what the complainant has maintained was happening, she is arguing that she was victimised because she was making complaints, but yet that has nothing to do with her race. If any employee has a difficulty with their wages, they are entitled to raise that with the company, and it will be addressed in a fair and open manner. What appears to be the case here is that the company was challenging the complainant because she was trying to maintain she was entitled to be paid for breaks, which she had not taken. Yet, the complainant has not provided any evidence that she was told to work these breaks and secondly, the complainant, in her terms conditions of employment which she was issued, state what she must do if she is unable to get her break.

·       It is also of note that the complainant, during the course of one communication with her manager, was requesting that she not work on a Thursday and that she be rostered to  work on a Sunday because it generates higher wages for her. We would suggest that the complainant was never required to work her breaks but maybe she took it upon herself to do unplanned work in the belief that this would force the company to pay her more money. However, it was very clear to the complainant that you will not be paid for break times and that you are required to take your breaks.

·       The complainant also has referred to the fact that she was shouted that by the chef. Yet again we have seen that this matter was addressed by the company and that there was no suggestion that such behaviour continued nor any further complaints from the complainant that such behaviour as she perceived it was continuing.

·       The complainant has failed to identify any victimisation in that victimisation is seen to be some form of unfair treatment or sanction taken against an individual and at no time has any evidence been produced which gives support to the contention that the complainant was in any way treated unfairly or less favourably than anybody else or sanctioned as a consequence of her conduct. Further to this point, the complainant seems to be suggesting that she was let go because she was complaining about not being paid for breaks and, we assume, this is the victimisation she is complaining of. However, discussions on this matter took place in May of that year and had the company wished to dismiss the complainant for that reason, then the opportunity could have been availed of at her June review.

·       There needs to a clear causal link between the reason for taking action and the action taken. It is clear that no such link exists. The company could have let the complainant leave on two occasions before she was eventually let go and was in fact given the opportunity to improve her performance rather than be let go.

·       This was not done for any other reason except the company wanted to keep staff and give them the chance to improve Therefore we would contend that the complainant has failed by any evidence that she was discriminated against on grounds of race.

Conclusion

·       It is very clear from the early stage of the complainant's employment that she appeared to have a difficulty in working as part of a team. This is very clear from the complainant's willingness to criticise everybody else for their work or taking breaks but yet at no time does she accept responsibility for the fact that she was not performing satisfactorily. This unsatisfactorily performance was noted during her course of probation period and the consequence of this was that her probation period was extended, which allowed her the opportunity to improve her performance.

·       In relation to the complainant maintaining which she was treated unfairly by the head chef, again, this has clearly been shown not to be the case. The company clearly went down the road of involving management and using process to facilitate a resolution to what appeared to be the complainant's problem at the time. Subsequent to this there has been no suggestion that there was a repeat of any such behaviour.

·       It is very clear the complainant was not a team player and did not take kindly to guidance from managers regarding how she should do her job. Instead, it would appear the complainant was happy to criticise everybody else and maintain that she was doing her job perfectly well but nobody else was.

·       As has been stated above, the company has the absolute discretion during the probation period to terminate a person's employment if they are not deemed to be suitable. In this particular case the company gave the complainant three opportunities to improve. First being when she was transferred from one unit to a solely being in another unit because she was not getting on with the people in that unit.

·       Secondly at the probation review meeting it was clearly outlined to her that she was not performing satisfactorily and therefore it was necessary to extend her probation. Finally, despite that warning she failed to improve her performance and therefore company felt at that stage there was no sense in continuing to try and give her the opportunity.

·       In relation to the claim of discrimination we would argue that the complainant has failed to establish any prime facie case to raise the inference that there was discrimination. Secondly the complainant has failed to provide any comparator to show that she was treated less favourably than somebody else in the same position.

The Complainant has also lodged a complaint that she had been unfairly dismissed. This complaint was heard under s.13 of the Industrial Relations Act 1969 and is the subject of a separate recommendation.

CA – 00065231 003 – A complaint seeking adjudication by the  Workplace Relations Commission under section 77 of the Employment Equality Act, 1998.

Equality law is based on comparison; how one person is treated by comparison to another who does not possess the relevant protected characteristic. It is therefore necessary to ground a claim of discrimination by pointing to how another person, not having the protected characteristic relied upon, was, is or would be treated in a comparable situation. This is referred to as a comparator. A comparator must be employed by the same employer as the complainant or by an associated employer.

The comparator need not be employed at the same time as the complainant and reliance can be placed on how a person who has left the employment was treated in a comparable situation.

A comparator is an evidential tool. They are intended to contrast the treatment of the complainant, in respect to the matter complained of, with that of another person in similar circumstances who does not have the protected characteristics relied upon. In many cases the comparator will be an actual person but need not be. Situations may arise where the complainant is the only person in the employment, or all other employees whose circumstances are similar may have the same protected characteristic as the complainant. A hypothetical comparator can be constructed by asking why the complainant was treated as they were. If the treatment complained of was because of a protected characteristic, a hypothetical comparator is a supposed person who does not have that characteristic but who is otherwise in the same position as the complainant. For example, if it is contended that a person was treated less favourably because they are a member of the Traveller Community, a hypothetical comparator would be a member of the settled community whose circumstances are otherwise similar. Generally, a hypothetical comparator can only be relied upon if no actual comparator is available.

It is for the person bringing a claim to select their comparator. However, the Adjudication Officer, or the Labour Court will consider if the selected comparator advances the claims being made. If there are other employees who are in the same category as the comparator (i.e. are the same gender/nationality/same civil status etc) but who are treated similarly to the complainant, the chosen comparator can be regarded as anomalous and pointing towards a conclusion that the different treatment or pay was on grounds other than the discriminatory ground on which the case is based.

The definition of harassment is very wide. It can include any form of unwanted conduct which is related to any of the discriminatory grounds. The conduct constituting harassment must have the “purpose or effect” of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. The conduct need not be intended to harass the victim. It is sufficient if it has that effect.

In the instant case no comparator has been identified.

The representative of the Respondent has stated the following:

·        The onus is on the employer to prove that no discrimination occurred only occurs where the complainant can provide facts from which it may be presumed the Employment Equality Acts have been breached. There is significant case law in support of this position, the starting point would be the decision of the Labour Court in Southern Health Board v Mitchell(AEE/99/E) a decision which remains the leading decision on the shifting of the burden of proof. The Court considered the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination can be made out:

“The first requirement is that the complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

In the instant case the complainant has failed to prove a prima facie case that discrimination has occurred.

I must find that the complaint as presented is not well found.

In the instant case the complainant has failed to prove a prima facie case that discrimination has occurred.

I must find that the complaint as presented is not well found.