(Represented by Padge Reck, MCC)
Robertino's Restaurant (Wexford) Ltd
(Represented by Doyles Solicitors)
1.1 This dispute concerns a claim by Mr Elyes Dridi that he was discriminated against by his employer on the grounds of race and religion contrary to the provisions of the Employment Equality Acts 1998 - 2004 when he was threatened by a fellow employee. The complainant also claimed harassment and victimisation.
1.2 The complainant referred a claim under the Employment Equality Act 1998 to the Director of Equality Investigations on 30 July 2002. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 24 June 2004 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and joint hearings were held on 6 May and 6 October 2005. Subsequent correspondence with the parties concluded on 25 November 2005.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant, who is a Tunisian Muslim, was employed by the respondent as night manager from 18 October 2001 to 23 July 2002. He said that generally speaking he had a good relationship with his fellow employees, except that certain people had difficulties with his high standards.
2.2 The complainant said that on the night of 1 June 2002 he became involved in an altercation with a former employee, D. This young man was part of a group eating at the restaurant, and the owner had agreed to supply the group with complimentary wine. The complainant said that D demanded that the group should be supplied with larger and more expensive bottles of wine. When this was refused, the complainant said D became abusive.
2.3 The complainant said that D left the restaurant and returned with his father, J, who worked as a delivery man in the restaurant. The complainant alleged that J also became abusive towards him, and threatened to kill him. He claimed that J told him to go back to his own country and said that if he were there his hands would be chopped off, which the complainant understood as a reference to Sharia law. The Gardaí were subsequently called to the restaurant, and the complainant made a statement at the Garda station two days later.
2.4 The complainant said that, as a result of the argument, the owner of the restaurant said he should leave as the Irish staff did not want him there. However, he said the owner relented a few days later and agreed to renew the complainant's work permit, which was due to expire on 23 July 2002. The complainant alleged that, on the morning of 23 July, the owner telephoned him and told him he was sacked and he was cancelling all of his papers because the Irish staff had insisted. The complainant said he had had no notice of this, and said that therefore he had had to temporarily return to Tunisia with the consequent disruption to his long-term plans.
2.5 The complainant alleged that he subsequently had problems in obtaining employment as a result of being given bad references by the owner. He said that he managed to obtain alternative employment only by omitting his time in Robertino's from his CV.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent said that the complainant had incorrectly named the respondent when referring his claim. The referral form listed the employer as Teo Valadez, with the address being given as Robertino's Restaurant. Mr Valadez was one of three directors of Robertino's Restaurant (Wexford) Ltd, which employed the complainant. The respondent said that the Employment Equality Acts provided for liability to attach to employers, not to officers, directors or other employees. It referred to the protections afforded to directors by virtue of company law, and said that to suggest that Mr Valadez should be liable would be to re-write legislation. The respondent said that the Equality Tribunal would have to find against the complainant since Mr Valadez was not his employer.
3.2 The respondent suggested that liability for discrimination could attach to the company but pointed out that the claim had not been made against the company. It argued that the Tribunal had no power to alter the respondent named by the complainant and, in support of this argument, it cited the Labour Court determination in @Resonance Limited and Rachel Coleman (ED/02/30 Determination No 0311).
3.3 Notwithstanding the above argument, the respondent denied that discrimination, harassment or victimisation had occurred. It said the complainant was extremely professional, with high standards, but that he was sometimes unnecessarily harsh with other members of staff. The respondent said there were several conflicts between the complainant and his colleagues, and at various times the complainant demanded that Mr Valadez dismiss people for alleged theft. It claimed that Mr Valadez spoke to the complainant on several occasions about his strictness. Noting the alleged reference to Sharia law, the respondent submitted that the comment was in fact directed by the complainant to J, at some time earlier than 1 June, when the complainant accused J of misappropriation of a sum of money.
3.4 In relation to the incident of 1 June 2002, the respondent said that the complainant's statements on the matter contained inconsistencies regarding the cause of the complainant's dispute with D and the identity of the person who had summoned the Gardaí to the restaurant. Nevertheless, the respondent agreed that there was a dispute that night between the complainant and D, which escalated into a confrontation between the complainant and J. It said Mr Valadez offered to mediate between the two men, but that the complainant would not accept his offer to settle what was effectively a clash of personalities.
3.5 It was submitted on behalf of Mr Valadez that he did not dismiss the complainant at the time of the incident, although he accepted that he may have indicated that it might be better if the complainant left. The respondent said that Mr Valadez asked the complainant by telephone to call in to discuss the situation, but the complainant did not attend work for some days after the incident. However, he did ultimately return and Mr Valadez did ultimately apply for a renewal of his work permit.
3.6 The complainant's employment finally concluded on approximately 23 July 2002. On that date, Mr Valadez was presented with a petition signed by 19 other members of staff, both Irish and non-Irish. In this petition, it was alleged that the complainant had subjected staff members to verbal abuse, physical restraint, bullying, intimidation and false accusations of theft. The employees stated "...we are formally notifying you that we are unable and unwilling to work under the conditions being created and imposed by [the complainant]."
3.7 The respondent said that Mr Valadez requested the complainant to call in early the following day to discuss this petition, but the complainant again "went missing" for a period of days. At this point, Mr Valadez decided to terminate his employment on the basis that he had effectively abandoned it. Regarding references given in respect of the complainant, Mr Valadez gave evidence that he told prospective employers that the complainant was an extremely professional worker with high standards, but he was inclined to be a little harsh with staff. The respondent also submitted that Mr Valadez, a Spanish national, was very conscious of the difficulties faced by a foreigner living and working abroad.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The complainant alleged that the respondent discriminated against him on the grounds of race and religion contrary to the provisions of the Employment Equality Acts 1998 - 2004. Section 6 of the Acts provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, including religion, race, colour, nationality or ethnic or national origins. Section 8 provides that
(1)In relation to-
(b) conditions of employment...
an employer shall not discriminate against an employee or prospective employee...
4.3 The first matter to be considered is the identity of the respondent. The complainant named Mr Valadez as his employer whereas the respondent argued that he was employed by Robertino's Restaurant (Wexford) Ltd. It is quite correct to say that Mr Valadez cannot be held personally liable for any alleged discrimination against the complainant because of the protections afforded to him by company law. However, I disagree with the contention that the Equality Tribunal has no power to investigate a claim against Robertino's Restaurant (Wexford) Ltd simply because the complainant did not specifically name the company.
4.4 In the Labour Court determination Paudie O'Shea and Patrick McCarthy (ED/01/45 Determination No 052), the Court noted that the actual claim referred to it was "directed against Paudie O'Shea, Blue Flyer Developments". Saying that it was told at the hearing that at all material times the complainant's employer was Mr Paudie O'Shea, the Court amended the name of the respondent in the title of its determination. The @Resonance case referred to at 3.1 above differed in the sense that the complainant was seeking leave to change the name of the respondent to a completely separate legal entity. The Court declined to do this on the basis that it was for the complainant to establish in the appropriate forum that there had been a transfer of undertaking and/or the two companies were in effect the same, as she claimed. In this complaint, I am satisfied that Robertino's Restaurant (Wexford) Ltd was the complainant's employer at all material times and I am so amending the name of the respondent in the title of my decision.
4.5 As asserted by the respondent, there are contradictions in the statements made by the complainant regarding the incident of 1 June 2002, but it is not in dispute that the incident took place. The complainant and D had a disagreement, which led to a confrontation between the complainant and J. The complainant initially denied that he had had disputes with other staff members, but at the hearing he agreed that there had been some incidents. Direct evidence was given by some employees of their disagreements with the complainant. Each of them confirmed that they had agreed with and signed the petition submitted to Mr Valadez.
4.6 The complainant's representative sought to question the veracity of the petition, suggesting that it was circulated to the staff members to sign as opposed to emerging as a result of a spontaneous meeting called by the employees, as claimed by the respondent. While it is not possible to prove the genesis of the petition, one way or the other, it does not appear to me to be particularly relevant. The fact is that 19 members of staff, Irish and non-Irish, signed a petition indicating that they were not prepared to work with the complainant.
4.7 It is clear from the evidence of the respondent, the other employees and the complainant himself at the hearing that several confrontations took place over an extended period of time. The complainant agreed that he had requested Mr Valadez to dismiss some members of staff for alleged theft and also accepted that there had been a quarrel with the pizza chef. The complainant also accepted that, following a positive initial relationship, he had an argument with J in relation to an incorrect delivery and a later argument regarding a sum of money.
4.8 Taking into account all of the evidence provided to me, I am satisfied that the problems in the work place arose because of personality difficulties, or perhaps differing professional standards, between the complainant and the other employees. I am satisfied that the demand that the situation be dealt with was a consequence of the dissatisfaction of the staff generally. It should be noted that the complainant did not refer a claim of discriminatory dismissal, but the decision to terminate his employment was the culmination of the problems in the restaurant. While it may seem unjust that a person's employment is terminated in such a manner, I cannot find that the complainant's treatment was discriminatory on the ground of race.
4.9 In the same way, I am satisfied that the argument with J on 1 June 2002 was a consequence of the disagreement between the complainant and D, exacerbated by the fact that the complainant and J had had previous serious quarrels, and did not constitute less favourable treatment on the ground of race. I note that, in support of his claim, the complainant submitted a copy of a letter from a solicitor whom he consulted on 14 June 2002, less than two weeks after the confrontation with J. The solicitor confirmed that he had advised the complainant in relation to unfair dismissal and constructive dismissal, the service requirement to bring such claims, and the possibility of bringing a civil action for assault. There is no reference to any consultation regarding the complainant's race or religion.
4.10 The complainant's initial referral to the Tribunal on 30 July 2002 claimed discrimination only on the race ground. His first reference to the fact that he is Muslim was contained in a statement dated 19 July 2004, when he alleged that J told him during the altercation on 1 June 2002 "Go back to your country, we don't need your sort here...If I was in your country they'll cut my hands off...". The complainant said he took this to be a reference to Sharia law, and said he knew at this point that the whole attack was because he was both Arabic and Muslim. However, the complainant's statement to the Gardaí, dated 3 June 2002, claimed that J said that if the complainant was back in his country, his (the complainant's) hands would be cut off. No reference was made to his religion or to Sharia law. It should be noted here that the complainant's spoken English is excellent, but it is possible he experienced some slight confusion in his written statements.
4.11 Having considered the matter, it appears to me that the respondent's explanation of the amputation threat is the more plausible. It appears to me that most non-Muslims, with little knowledge of Sharia law, would be vaguely familiar with the idea of amputations in the case of theft. I do not see that threatening an adversary with amputation would occur to anyone, with or without knowledge of Sharia law, except in the case of theft. As the complainant was the person who made an allegation of theft, I am satisfied on balance that he was also the person who referred to amputation, as claimed by the respondent.
4.13 The complainant's claim of victimisation was centred on the assertion that he had been given bad references by Mr Valadez following his departure. The evidence of Mr Valadez, undisputed by the complainant, was that he was said to be highly professional but a little too strict. I am satisfied that this was a correct expression of Mr Valadez's opinion of the complainant, and did not occur as a consequence of the complainant having opposed by lawful means an act which is unlawful under the 1998 Act, as would be required to maintain a claim of victimisation under section 74 of the Act. Accordingly, I find that the complainant was not victimised.
5.1 Based on the foregoing, I find that Robertino's Restaurant did not discriminate against or harass Mr Elyes Dridi on the grounds of race or religion contrary to the provisions of the Employment Equality Acts 1998 - 2004.
5.2 I further find that the complainant was not victimised by the respondent contrary to the provisions of the Acts.
31 January 2006