EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2012-079
Alechandro Peiro Chances.
File Reference: EE/2009/649
Date of Issue: 19th June 2012
Employment Equality Acts 1998-2011, Section 6(1) - less favourable treatment, Section 6(2)(h) - Race, Section 8 conditions of employment and discriminatory dismissal, section 14A - Harassment, Section 85A- burden of proof, no prima facie case.
1.1 This dispute concerns a claim by the above named complainant that he was discriminated against by the above named respondent on the race ground, in terms of Sections 6(1), 6(2)(h) of the Employment Equality Acts 1998-2011 and contrary to section 8 and 14A in relation to conditions of employment, harassment and dismissal. The complaint of victimisation was withdrawn.
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 1st September 2009 alleging that the respondent discriminated against him contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011, the Director delegated the case on the 29th May, 2012 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. A written submission was received from the complainant on the 18th May 2010 and from the respondent on the 22nd September 2009. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 8th June, 2012.
3. Summary of the Case
3.1 The complainant is a Polish national and was employed by the respondent as a waiter working in a restaurant / bar from June 2009 until the end of July 2009. The complainant's case is that the respondent discriminated against him in relation to his conditions of employment and that he was harassed when the respondent called him offensive names. He said that he made coffee for the respondent and he was not happy with it and called him a "stupid Polish guy". On another occasion he was polishing glasses and one fell on the floor and the respondent again called him a "stupid Polish guy". The complainant submitted that the respondent regularly used offensive language to non-Irish staff. When he reported for work on the 31st July he was called into the office by the respondent and dismissed. He submits that he was dismissed because he is Polish. He said that he was friends with the respondent when the worked together in another restaurant. He believes he was not a good employer and another employee who was from South Africa left because he was not happy about the way he was treated.
4. Respondent's Case
4.1 The respondent said that he is a Spanish national and he worked with the complainant in a restaurant for a number of years and they were good friends. He worked as a chef and in 2008 he opened his own business. He met the complainant a few times and he had left his job so he offered him a part-time job as a waiter. The respondent himself worked in the kitchen as a chef and he had a part-time Polish national doing wash up and another waiter, a South African national worked as a waiter. This employee worked full-time and he reduced his hours in order to give the complainant a job, but he was not happy and he got another full-time job and left a week before he dismissed the complainant.
4.2 The respondent said that the complainant worked with him for two months and during this time he was not happy with his performance. He said that the pub and restaurant was not busy in the mornings and on one occasion when a customer came in the complainant continued to read the paper and ignored the customer who left without getting a service. He said that he was annoyed with the complainant and he did make a comment to him in Spanish "Este B...." which is the equivalent of "Oh my God" in English. He warned him that he should have attended the customer and if it happened again he would dismiss him. On another occasion the complainant failed to charge for the drink for a party of 12 diners. It was brought to his attention by one of the party who knew him. He said that he accepted that the restaurant was busy that night and a mistake can happen. He brought the matter to the attention of the complainant but he did not give out to him on that occasion. He denied he called him offensive names when he spoke to him about the matter. Despite warning the complainant he did not improve. On another occasion a customer came into the bar and sat down shortly afterwards the respondent said that he saw the customer leaving without getting a service. He investigated the matter and he found the complainant outside the door and he was assisting a car to park. He said that the complainant often went outside to smoke. The respondent said that he was very annoyed and he spoke to the complainant and warned him about not attending to his duties. He said that he had to warn him several times about his behaviour and he did not improve. The respondent said that he went with the landlord to order tiles for the kitchen and the complainant was on duty in the restaurant and he had to telephone the restaurant to get measurements and there was no answer. He returned to the restaurant and he found the complainant in the back office playing on the computer. After this he decided to dismiss him. He said that he could not rely on him to carry out his duties and he had received several warnings. He said that he asked the complainant to leave but he returned to work the following day in the belief that he would be forgiven. He was not prepared to take him back and he asked him to return the following Sunday for his final payments.
5 Conclusions of the Equality Officer
5.1 The issues for decision in this case is whether or not the respondent discriminated against the complainant on the grounds of race in terms of section 6(1) and 6(2)(h) of the Employment Equality Acts and contrary to section 8 and Section 14A of those Acts as regards conditions of employment, harassment and dismissal.
Section 6 of the Acts inter alia provides:
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 --
(2) As between any 2 persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are --
(h) that they are of different race, colour, nationality or ethnic
or national origins (in this Act referred to as ''the ground
And Section 85A of the Acts provides:
"(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".
5.2 This requires the Complainants to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only when they have discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required of him his case cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
Firstly I will consider whether the complainant was harassed on the race ground in relation to their conditions of employment. S.14A(7)(a) provides: "any form of unwanted conduct related to any of the discriminatory grounds, and........
(b) being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person."
The Act goes on to give examples of unwanted conduct and states:
(c) "Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material."
The Labour Court in the case of, Nail Zone Ltd and A Worker Determination No.
EDA1023 defined the law in relation to harassment as follows:
"The essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. This suggests a subjective test and if the impugned conduct had the effect referred to at paragraph (b) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the Complainant, it constitutes harassment for the purpose of the Acts."
The complainant's case is that the respondent called him offensive names and also used foul language towards him and other employees. The respondent's case is that the complainant's performance at work was not satisfactory and that he had to speak to him on a number of occasions to ask him to improve and after no improvement he was dismissed. The respondent admits he was angry at the complainant when he failed to attend customers but he denied that he was ever abusive or called him names I note that there were no Irish people employed and the woman who worked in the kitchen was Polish and the other waiter was South African. The complainant in evidence stated that this waiter left because he was treated badly.
5.3 In considering the evidence presented, I found the respondent's evidence in relation to this aspect of the complaint more compelling than the complainant's evidence. In applying the above test to establish harassment, I am satisfied that the complainant has failed to establish that he was subjected to an environment which was either intimidating, hostile, degrading or offensive. I am also satisfied that he has failed to establish that he was treated less favourably than a person of a different nationality was treated in different circumstances given that he says that the respondent treated all the employees badly. Therefore I find that the complainant has not raised an inference of discrimination in relation to harassment. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this aspect of his complaints.
5.4 I will now consider the evidence in relation to the complainant's dismissal. The complainant submits that he was dismissed because of his Polish nationality. The respondent submits that the complainant's performance was not acceptable and he was loosing business because he failed to attend customers. I am satisfied that the reason for the complainant dismissal was solely related to his performance and had nothing whatsoever to do with his nationality.
5.6 I find that the complainant has not adduced any such facts from which discrimination could be inferred. The complainant has made a number of allegations about discrimination not backed up by any facts. In considering this point I have considered the reasoning in the case Melbury Developments and Valpeters (Det. No. EA AO917) where the Labour Court stated:
"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."
5.7 The above reasoning of the Labour Court is applicable in this case in that the complainant has made assertions about discrimination unsupported by any evidence of sufficient weight. Having regard to the totality of the evidence adduced in the present case, I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that he was treated less favourably than an Irish person or a person of a different nationality was treated or would have been, in similar circumstances, in relation to his dismissal. Accordingly, I find that the complainant has failed to establish a prima facie case of discriminatory dismissal.
7.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008.
(i) I find that the respondent did not discriminate against the complainant on the race ground pursuant to sections 6(1) and 6(2)(h) and contrary to section 8(1) and 14A of the Acts in terms of conditions of employment and harassment.
(ii) I find that the respondent did not discriminatorily dismiss the complainant on the race ground contrary to Section 8(6) of the Acts.
19th June 2012