EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-016
PARTIES
Sandor Petroman
(Represented by Andrew Turner, Solicitor)
AND
Yamamori Sushi Ltd
File reference: EE/2014/195
Date of issue: 2nd February 2016
HEADNOTES: Employment Equality Acts – Race-Sexual Orientation – Conditions of Employment
1 DISPUTE
1.1 This dispute concerns a claim by Mr Sandor Petroman that he was discriminated against by Yamamori Sushi on the grounds of Race/Nationality and Sexual Orientation contrary to section 6 of the Employment Equality Acts in relation to conditions of employment in terms of section 8 of those Acts.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on 31st March 2014 under the Employment Equality Acts. On 6th November 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission delegated the case to me, Pat Brady an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on November 10th 2015.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2 PRELIMINARY MATTERS
2.1 The Complainant withdrew the claim under the sexual orientation ground.
3 COMPLAINANTS' SUBMISSION
3.1 The complainant started work for the respondent on October 11th 2011. His employment proceeded without any significant issues arising until early 2014. He submitted in his direct evidence that he won performance related prizes in this period and apart from minor injunctions to improve aspects of his performance there had been no disciplinary sanctions.
3.2 In or around February 2014 there was a change in the management of the restaurant. TWG was replaced by S who began to reduce the hours he was required to work. While there was some dispute about the reasons why there was a dramatic reduction in the hours the complainant was required to work.
3.3 Here is the sequence of the hours worked per week from weeks 1-8: 34, 35, 25, 34, 32. And here is the sequence for weeks 8-17: 19, 18, 24, 27, 15, 18, 17, 13, 22. This represents a fall in the average working week from 32 to just over 19.
3.4 The complainant raised this as a grievance with S on February 8th 2014 and says that notes were made of the meeting but nothing was done. In his direct evidence the complainant said she told him his performance was ‘not good’, that ‘it did not matter anymore’ and that she would probably ‘fire’ him as he was not good enough for the restaurant and had allegedly been selling cigarettes, (which he denies.)
3.5 Witness TWG, the complainant’s former manager between November 2011 and February 2014 challenged the list of employees rosters which had been submitted by the respondent saying that it excluded non waiting staff. The company agreed to supply this and subsequently did. TWG said that he was told by S in January 2014 that ‘she wanted him to ‘get rid of’ the complainant, and one other employee who was also Hungarian. She told him to do this by reducing the hours. He said he disagreed with her and that it would constitute discrimination and unreasonable and he would not do it.
3.6 TWG then went on annual leave and on his return was transferred to another location and replaced by S.
4 RESPONDENT'S SUBMISSION
4.1 The respondent denied that there had been any constructive dismissal and said that there had been ongoing performance issues with the complainant.
4.2 It said that reductions in hours were a consequence of a downturn in the business and gave figures to show that the total average hours of waiting staff fell in weeks 4-7 by 152 hours and in weeks 8-17 by 114 hours, They also said that the complainant had asked for a day off on more than one occasion and this would be reflected in the reduction in his hours.
4.3 Regarding the performance issue the company said that there had been several meetings with him but no formal disciplinary sanction had issued as it preferred to seek improvements in performance than record disciplinary action.
4.4 The company denies that S ever threatened to dismiss the complainant although she was not available to give evidence as she had returned to Japan.
4.5 It says that the complainant left of his own volition and that no case arises.
5 FINDINGS & CONCLUSIONS OF THE ADJUDICATION OFFICER
5.1 I have to decide if the complainant was treated in a discriminatory manner on the grounds of his nationality, (the claim on the sexual orientation ground was withdrawn.) In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
5.2 Section 85A (1) of the Employment Equality Acts, 1998 – 2007 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.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.
5.3 The test for this has been set down in many cases, notably Valpeters v. Melbury Developments Limited 2010 21 [E.L.R] 64.
“Section 85A of the Act 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.”
5.4 In this case the complainant has established a credible case on the basis of his own and witness evidence that there was a degree of antagonism towards him on the basis of his nationality sufficient to shift the probative burden to the respondent. The combination of the following facts tends to be mutually reinforcing in favour of such a conclusion;
· The conversation between witness TWG as to what S wished to happen,
· The fact that he, TWG, was transferred when he refused to cooperate with the strategy he described in evidence i.e. to reduce the hours of two Hungarian employees and,
· The fact that this is exactly what happened when she was in direct position to do so.
This represents a convincing body of evidence that goes beyond coincidence, and is certainly sufficient to raise the presumption of discrimination and shift the burden of proof to the respondent.
5.5 I accept that the respondent was not in a position to provide rebuttal evidence from S as she had left the jurisdiction but in its absence neither was it able to provide from its records or other sources persuasive evidence to explain the dramatic changes in the complainant’s rostered hours, both in comparison to the period before S became his manager or vis a vis other employees where the reduction was much less severe. Neither could it provide a credible alternative explanation, such as one related to performance or discipline. In any event a reduction in hours would not be an acceptable response to a performance issue. While it is true that the total number of hours was reduced in no case was the reduction so dramatic as in the complainant’s.
5.6 There was no dismissal and therefore I cannot consider this as a possible act of discrimination. I do consider the reduction in hours to be an act of discrimination based on the complainant’s race/nationality.
6 DECISION
6.1 I have investigated the above complainant and make the following decision in accordance with section 79 of the Employment Equality Acts and section 41 (5) (a) (iii) of the Workplace Relations Act 2015 that:
6.2 The respondent did discriminate against the complainant on the grounds of his race/nationality and I uphold the complaint. I award him €5,000 (and for purposes of illustration only being equivalent to approximately six months wages). This figure represents compensation for infringement of his rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
____________________
Pat Brady
Adjudication Officer/Equality Officer
2nd February 2016
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-016
PARTIES
Sandor Petroman
(Represented by Andrew Turner, Solicitor)
AND
Yamamori Sushi Ltd
File reference: EE/2014/195
Date of issue: February 2016
HEADNOTES: Employment Equality Acts – Race-Sexual Orientation – Conditions of Employment
1 DISPUTE
1.1 This dispute concerns a claim by Mr Sandor Petroman that he was discriminated against by Yamamori Sushi on the grounds of Race/Nationality and Sexual Orientation contrary to section 6 of the Employment Equality Acts in relation to conditions of employment in terms of section 8 of those Acts.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on 31st March 2014 under the Employment Equality Acts. On 6th November 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission delegated the case to me, Pat Brady an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on November 10th 2015.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2 PRELIMINARY MATTERS
2.1 The Complainant withdrew the claim under the sexual orientation ground.
3 COMPLAINANTS' SUBMISSION
3.1 The complainant started work for the respondent on October 11th 2011. His employment proceeded without any significant issues arising until early 2014. He submitted in his direct evidence that he won performance related prizes in this period and apart from minor injunctions to improve aspects of his performance there had been no disciplinary sanctions.
3.2 In or around February 2014 there was a change in the management of the restaurant. TWG was replaced by S who began to reduce the hours he was required to work. While there was some dispute about the reasons why there was a dramatic reduction in the hours the complainant was required to work.
3.3 Here is the sequence of the hours worked per week from weeks 1-8: 34, 35, 25, 34, 32. And here is the sequence for weeks 8-17: 19, 18, 24, 27, 15, 18, 17, 13, 22. This represents a fall in the average working week from 32 to just over 19.
3.4 The complainant raised this as a grievance with S on February 8th 2014 and says that notes were made of the meeting but nothing was done. In his direct evidence the complainant said she told him his performance was ‘not good’, that ‘it did not matter anymore’ and that she would probably ‘fire’ him as he was not good enough for the restaurant and had allegedly been selling cigarettes, (which he denies.)
3.5 Witness TWG, the complainant’s former manager between November 2011 and February 2014 challenged the list of employees rosters which had been submitted by the respondent saying that it excluded non waiting staff. The company agreed to supply this and subsequently did. TWG said that he was told by S in January 2014 that ‘she wanted him to ‘get rid of’ the complainant, and one other employee who was also Hungarian. She told him to do this by reducing the hours. He said he disagreed with her and that it would constitute discrimination and unreasonable and he would not do it.
3.6 TWG then went on annual leave and on his return was transferred to another location and replaced by S.
4 RESPONDENT'S SUBMISSION
4.1 The respondent denied that there had been any constructive dismissal and said that there had been ongoing performance issues with the complainant.
4.2 It said that reductions in hours were a consequence of a downturn in the business and gave figures to show that the total average hours of waiting staff fell in weeks 4-7 by 152 hours and in weeks 8-17 by 114 hours, They also said that the complainant had asked for a day off on more than one occasion and this would be reflected in the reduction in his hours.
4.3 Regarding the performance issue the company said that there had been several meetings with him but no formal disciplinary sanction had issued as it preferred to seek improvements in performance than record disciplinary action.
4.4 The company denies that S ever threatened to dismiss the complainant although she was not available to give evidence as she had returned to Japan.
4.5 It says that the complainant left of his own volition and that no case arises.
5 FINDINGS & CONCLUSIONS OF THE ADJUDICATION OFFICER
5.1 I have to decide if the complainant was treated in a discriminatory manner on the grounds of his nationality, (the claim on the sexual orientation ground was withdrawn.) In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
5.2 Section 85A (1) of the Employment Equality Acts, 1998 – 2007 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.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.
5.3 The test for this has been set down in many cases, notably Valpeters v. Melbury Developments Limited 2010 21 [E.L.R] 64.
“Section 85A of the Act 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.”
5.4 In this case the complainant has established a credible case on the basis of his own and witness evidence that there was a degree of antagonism towards him on the basis of his nationality sufficient to shift the probative burden to the respondent. The combination of the following facts tends to be mutually reinforcing in favour of such a conclusion;
· The conversation between witness TWG as to what S wished to happen,
· The fact that he, TWG, was transferred when he refused to cooperate with the strategy he described in evidence i.e. to reduce the hours of two Hungarian employees and,
· The fact that this is exactly what happened when she was in direct position to do so.
This represents a convincing body of evidence that goes beyond coincidence, and is certainly sufficient to raise the presumption of discrimination and shift the burden of proof to the respondent.
5.5 I accept that the respondent was not in a position to provide rebuttal evidence from S as she had left the jurisdiction but in its absence neither was it able to provide from its records or other sources persuasive evidence to explain the dramatic changes in the complainant’s rostered hours, both in comparison to the period before S became his manager or vis a vis other employees where the reduction was much less severe. Neither could it provide a credible alternative explanation, such as one related to performance or discipline. In any event a reduction in hours would not be an acceptable response to a performance issue. While it is true that the total number of hours was reduced in no case was the reduction so dramatic as in the complainant’s.
5.6 There was no dismissal and therefore I cannot consider this as a possible act of discrimination. I do consider the reduction in hours to be an act of discrimination based on the complainant’s race/nationality.
6 DECISION
6.1 I have investigated the above complainant and make the following decision in accordance with section 79 of the Employment Equality Acts and section 41 (5) (a) (iii) of the Workplace Relations Act 2015 that:
6.2 The respondent did discriminate against the complainant on the grounds of his race/nationality and I uphold the complaint. I award him €5,000 (and for purposes of illustration only being equivalent to approximately six months wages). This figure represents compensation for infringement of his rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
____________________
Pat Brady
Adjudication Officer/Equality Officer
January 2016