(represented by Sheehan, Ryan & Co. Solicitors)
Gampen Ltd trading as Eddie Rockets, Killarney
(represented by Lynch & Bradley Solicitors)
File reference: EE/2011/275
Date of issue: 3rd December 2013
Keywords: Employment Equality Acts, Race, Harassment, Section 14A (2) Defence, No prima facie case
1.1 This dispute concerns a complaint by Ahashan Habib, a Pakistani national, against Gampen Ltd trading as Eddie Rockets, Killarney. The complainant alleges that he was discriminated against on the grounds of race in relation to his conditions of employment and was harassed on the same ground within the meaning of Section 14A of the Employment Equality Acts 1998-2011 [hereinafter referred to as the ‘Acts’].
1.2 The complainant referred his complaint under the Act to the Director of the Equality Tribunal on 7th February 2011. In accordance with her powers under Section 75 of that Act, the Director delegated the case on 18th June 2013 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. Submissions were received from both parties and a hearing was held on 1st July 2013.
2. Summary of the complainant’s case
2.1 Mr Habib submits that he was hired as a short order cook on 19th October 2010 but he was only given menial tasks to perform. He submits that he was subjected to racist abuse by the Mr A, Chef Trainer and Mr B a colleague working with him in the kitchen on 29th October 2010. They were working in the cold room and, according to Mr Habib, Mr B was throwing boxes of frozen chips instead of passing them to him. When a box was dropped on Mr Habib’s toes, Mr Habib asked him to stop. In response, the complainant submits, Mr B shouted racist abuse at him.
2.2 Mr Habbib says that he was the only coloured person working in Eddie Rockets, Killarney. While the other employees were not Irish, they were white – mainly from an Eastern European background. He submits that he felt isolated. He submits that Mr A repeatedly said ‘I don’t like brown people’.
2.3 On 6th November, Mr Habib was asked to work as a kitchen porter. He asked for gloves and he maintains that Mr A responded with a torrent of racist abuse. He felt he had no option but to leave his employment.
3. Summary of respondent’s case
3.1 The respondent is a franchise of Eddie Rockets (American-style diners) but operates as an independent company. It refutes all allegations. Gampen Ltd maintains that it is an Equal Opportunities employer. From the start of his or her employment, it submits that each employee is given an employee handbook which sets out a clear and unambiguous policy in relation to workplace bullying and discrimination. They also have a formal grievance procedure. At no point did the complainant raise any issue regarding racial or verbal abuse with the management. They submitted documentary evidence to show that Mr Habib was not the only person who was not White European working there. The Head Chef was Turkish and they had a Filipino server working there. Contrary to the complainant’s statement, they also had a number of Irish people working as servers there.
3.2 They also wish to point out that Mr A is Chinese and that his skin colour resembled that of Mr Habib. Therefore, they submit that it would be bizarre for him to say that he does not like ‘brown people’. A photograph of himself and a Mauritian colleague at a non-work-related outing – the Dublin Super Cup was submitted as evidence. Mr A was based in Dublin but he was sent to Killarney to train staff in the ‘Eddie Rockets way’. He had undertaken this role in a number of Eddie Rockets franchises and, the respondent submits, there was never a complaint against him. However, the respondent readily admits that Mr A did point out that Mr Habib’s performance of his work did need to improve on a few occasions including the incident at 2.3. Mr A acknowledges that he raised his voice at him as the restaurant was busy but that he was neither abusive nor discriminatory.
3.3 Regarding the incident at 2.1, Mr B submitted that he did not throw the boxes of chips at Mr Habib. The cold room was chilly and he was anxious to get the job done quickly. Mr B submits that he was handing the boxes to Mr Habib but he kept dropping the boxes. Mr B denies making any racist comments. Mr B is Polish as is Mr Habib’s wife. He admits that Mr A did tell Mr Habib to hurry up but denies that there was any racist connotation.
3.4 Mr C (manager of the Killarney restaurant) accepts that Mr Habib did not have much of an opportunity to work as a short-order cook. That is because the restaurant did not open until 29th October. Neither did the Head Chef or anybody else – it was a case of ‘all hands on deck’ in relation to stocking the premises etc. After it opened, because Mr Habib was slow at preparing orders, he was sometimes given other duties. Mr Habib was employed in a full time role. Three days after the opening of the restaurant, Mr Habib asked Mr C could he work part-time as it was affecting his Carer’s Allowance. Mr C submits that he reiterated that this was a full-time role and could not give part-time hours while the business was in its start-up phase. Mr C submits that when he refused to do this, Mr Habib asked him to pay him ‘under the counter’ for any hours above 15 hours as it was affecting his Carer’s Allowance. This was also refused.
3.5 Mr C said he was there when Mr A snapped at Mr Habib and it was not aggressive. He denies that any racist language was used. They were busy and Mr Habib was not using his own initiative – he should have been able find the gloves himself without disturbing everybody else. He submits that it certainly was not an incident worth walking out of a job for. Mr Habib never formally resigned. He was scheduled for work the next day but simply never turned up for work again i.e. he did not phone or contact them in any way to say he would not be returning to work. Mr C said that the first he heard of any grievance, bar his issue over not getting part-time work, was when they received a letter from Mr Habib’s solicitor.
4. Conclusions of the Equality Officer
4.1 There are two issues for me to decide:
(i) Was the complainant harassed on the ground of race within the meaning of Section 14A of the Acts?
(ii) Was the complainant discriminated against by regarding his conditions of employment as per Section 8 (1)(b) of the Acts on the grounds of race?
4.2 In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties. Section 6 (1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is race.
4.3 Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Prima facie evidence has been described as ‘evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.’
4.4 Section 14A (7) of the Act defines harassment as any form of unwanted conduct related to any of the discriminatory grounds and being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
4.5 Section 14A (2) provides a defence for an employer if it can prove that it took reasonably practicable steps to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects I have examined the respondent's Personal Harassment Policy and Procedure and the compilation of this document may be regarded as a 'reasonably practicable step' to prevent harassment. The respondent also conducted a thorough investigation (which was submitted to me) following the letter from the complainant’s solicitor.
4.6 Generally, I preferred the evidence of the respondent. Regarding the alleged harassment by Mr A, I find it very difficult to believe. Eddie Rockets have a policy of sending trainers for up to a month to a new franchise when it opens. This is to protect their brand. It was Mr A’s tenth occasion to fulfil such a role. It would make no business sense to continue to send a trainer who habitually harasses the people he is supposed to train in. If there were the case, there would be complaints from the franchisee because, as the employer, s(he) would have to deal with staff complaints. Mr A may have been a bit abrupt with the complainant but I cannot accept Mr Habib’s contention that he was harassed by him within the meaning of the Acts. Neither do I accept that Mr B harassed him. Therefore, the complainant has failed to establish a prima facie case of harassment.
Conditions of Employment
4.7 Regarding conditions of employment Section 8(6) states:
(6) Without prejudice to the generality of subsection (1), an
employer shall be taken to discriminate against an employee or prospective
employee in relation to conditions of employment if, on any
of the discriminatory grounds, the employer does not offer or afford
to that employee or prospective employee or to a class of persons of
whom he or she is one—
(a) the same terms of employment (other than remuneration
and pension rights),
(b) the same working conditions, and
(c) the same treatment in relation to overtime, shift work, short
time, transfers, lay-offs, redundancies, dismissals and disciplinary
as the employer offers or affords to another person or class of persons,
where the circumstances in which both such persons or classes
are or would be employed are not materially different.
Although employed as a short-order cook, in common with the other employees, the complainant spent the first couple of weeks of work for the respondent stocking up etc. However, he cannot claim discrimination on the grounds of race because all employees, regardless of nationality, were engaged in same.
I have concluded my investigation of Mr Habib’s complaint and hereby make the following decision in accordance with Section 79(6) of the Act. I find that:
(i) the complainant was not harassed on the ground of race within the meaning of Section 14A of the Acts
(ii) the respondent did not discriminate against the complainant on the ground of race in relation in relation to his conditions of employment contrary to Section 8(1)(b) of the Acts
The complainant’s case fails in its entirety.
 EE5/1986 Gibney v Dublin Corporation