Employment Equality Acts 2000 to 2008
EQUALITY OFFICER’S DECISION
(Represented by Richard Grogan & Associates)
San Siro Ltd.
Date of Issue: 16 December 2013
File No. EE/2010/886
Keywords: Employment Equality Acts - race - discriminatory dismissal - prima facie case
1. Dispute and delegation
1.1 This dispute concerns a claim by Ms. Liudmila Bormskaja (hereafter "the complainant") that she was subjected to discriminatory dismissal by San Siro Ltd. (hereafter "the respondent") on the grounds of her race. The complainant claims that she was summarily dismissed on 13 August 2010 for no reason without any procedures because of her race.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 29 November 2010 under the Employment Equality Acts. On 20 September 2013, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh- an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 21 November 2013.
2. Summary of Complainant’s case
2.1 The complainant is a Lithuanian national and was employed by the respondent as a commis chef on 2 November 2009 on a salary of €610 per week. The complainant’s representative states that the complainant has limited English and was dismissed without any proper procedures being applied to her. The complainant’s representative also states that during her employment she was given a good reference which does not tally with the respondent alleging that there were issues regarding her poor performance. The complainant states that she was not advised that she could take a witness to the disciplinary meeting and there was no right of appeal. The complainant alleges that she wrote a two page letter to the manager of the respondent company three weeks before she left. In the letter, she alleged that there were issues with the food, in that, the lasagne and meat in the kitchen smelled as if it was gone off and she stated that it was not fit to be given to customers. She also raised issues regarding waste management by another chef. The complainant contends that she was dismissed because of highlighting her concerns to management regarding these issues. The complainant’s representative cites the Labour Court decision in the Campbell Catering case EED 048 in support of the complainant’s case.
Summary of Respondent’s case
3.1 The respondent states that the complainant commenced employment as a 4th year commis chef on 2 November 2009. He states that the initial performance review with the head chef indicated that her experience and skill set was not as per her C.V. or application form. Her work related more to that of a 1st or 2nd year commis chef rather than that of a 4th year trained chef. Her knife skills were far below that of an experienced chef and there were early indications that she had difficulty taking instruction from others including senior chefs and managers. The respondent was concerned that her resume had been at best embellished and the director of the company noted at a meeting on November 16 that it would be prudent to buddy her up with a strong team until her work rate was established as they did not want customer service to suffer. The respondent contends that the complainant caused several delays in food service and there were issues with her taking instructions from senior chefs. The respondent submits that if she made a mistake she would start shouting at others and she was reluctant to prepare fresh properly made dishes as per menu and standards.
3.2 The respondent states that she shouted at senior chefs when she made elementary mistakes and was requested to replace dishes as the company’s service standards would not have permitted some of the food prepared by her to be served to paying guests. The respondent contends that she spoke English with managers and the director and other staff but would revert to speaking Russian at every opportunity. The respondent states that this caused some difficulty as not all employees speak Russian and the majority of customers are native English speakers. The respondent was scheduled to attend a formal health and safety course on Tuesday 2 March 2010, however, she failed to attend and gave no satisfactory explanation for same. This training was re-scheduled again the following week on 11 March and the complainant failed to attend on that date either and gave no satisfactory reason for her non-attendance at same. On both dates the respondent had paid for the training. The respondent states that the complainant was spoken to on numerous occasions about very slow service from her stations. Given the difficulties encountered, the respondent decided in July 2010 to move her to another restaurant which was less busy so she could improve her skills. The respondent contends that even in the new restaurant, her service was very slow and there were long delays and on occasions, desserts had to be given for free as a result of the long delays. The respondent submits that the complainant was employed as a trained chef and was renumerated as such even though her work and experience was commensurate with a more junior salary level.
3.3 The respondent submits that the complainant was dismissed for serving raw/undercooked chicken goujons to a five year old child on Friday lunchtime, 13 August 2010. This was extremely dangerous and completely went against all the training she had received and all of the experience she allegedly had. The family concerned were long-standing regular guests of the respondent’s three restaurants. The respondent submits that they have understandably never returned and the company suffered reputational and financial damage as a result of this incident. The company is legally obliged as well as professionally motivated to provide a safe and hygienic food management system. The respondent contends that the complainant was completely unreasonable when spoken to about this incident by the head chef and general manager. The complainant insisted she had done nothing wrong and would not accept that the dish was dangerous and completely unacceptable for human consumption. The raw/undercooked chicken she served was shown to her at the time but she refused to accept responsibility or even that it was undercooked.
3.4 The respondent states that it was clear that it could not trust her commitment to health and safety or to her own legal responsibilities to HACCP and food safety. Her attitude to food safety proved a serious risk. The respondent submits that her attitude and the potential further damage to the respondent’s business coupled with her complete disregard for food safety made her position untenable. The details of the incident were communicated to the Director during the afternoon of Friday 13 August whilst the complainant had been sent off duty on her afternoon break. Following careful consideration of all the problems and difficulties with her work, the Director of the company instructed the Group General Manager that she was not to resume her duty that evening and to advise her that her employment was being terminated. The respondent states that of a total of 53 employees in their restaurants, 34% are Lithuanian nationals. It states that on her commencement with the company, it noted straight away she did not have the skills she outlined in her CV. The respondent claims it went over and above what was required of it by buddying her up with experienced chefs, by organising health and safety training including the HACCP food safety regulations, by transferring her to smaller restaurant so as she could improve her skills but her performance continued to be poor culminating in a serious incident where she served raw/undercooked chicken to a 5 year old child. The respondent spoke to the staff involved on the day and given the serious nature of the incident instructed the group manager to dismiss the complainant for incompetence but it would pay her for the following 2 weeks.
Conclusions of Equality Officer
4.1. I have considered all the evidence both written and oral presented to me. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a recent Determination the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows -
"Section 85A of the Acts 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.
4.2 Having questioned the complainant during the hearing, she stated that she felt her employment was terminated because she wrote a two page letter to management about issues concerning food in the kitchen such as the lasagne and meat smelling off and that food in such a state should not be prepared for customers. In the letter, she also complained about another chef wasting food. The respondent states that it took on board the issues in the letter and did a thorough check in the kitchen and fridges and found that the allegations were completely without foundation. The respondent also submits that it is subject to regular health inspections and applies the HACCP regulations very strictly to ensure food safety. The respondent contends that the complainant wrote the letter to management so as to take the pressure off herself as there had been, a number of issues regarding her poor performance and work rate, up to that point for which she had received verbal warnings. The respondent provided a number of witnesses on the day of the hearing who gave testimony of the incident that occurred on 13 August in relation to a child being served raw/undercooked chicken. When asked, the complainant stated that she had no recollection of such an incident and stated that on the day in question she was dressing salads and presenting desserts. The respondent refuted this and states that a commis chef would have much more responsibility than those duties. The complainant again re-iterated that she felt she was dismissed because she wrote a two page letter of complaint regarding the quality of the food being prepared and food wastage by another chef. The respondent states that in relation to the reference given to the complainant in December 2009, she had requested a reference in order to open a bank account and a standard reference was issued in that regard. However, the respondent states that there were on-going issues regarding poor performance by the complainant and it made every effort to bring her up to standard but ultimately the incident on 13 August warranted summary dismissal.
4.3 Having examined all the written evidence and witness testimony, I find that the complainant was inconsistent in her testimony and I did not find her evidence credible. On the other hand the witnesses on behalf of the respondent came across very clear in their testimony and each witness gave their evidence independently of each other. Given the sequence of events and given the documentation submitted to the Tribunal, such as diary entries during her tenure with the company, it is apparent that there are on-going issues with the complainant’s work rate and performance and that she was spoken to about these issues. On two separate occasions, health and safety training was organised for her and she failed to turn up for same. I note that in order to assist her in her work, she was offered a transfer to another smaller restaurant which was less busy. Having taken evidence from various staff members including the head chef regarding the incident of 13 August, I am satisfied that the incident in relation to raw/undercooked chicken being served to a five year old child did occur. While the complainant states that she was dressing salads and serving desserts on that day, I doubt that a chef on a salary of €610 is solely dressing salads and presenting desserts on a busy lunchtime service. The respondent submits that the complainant was given a copy of a written statement of terms of employment wherein it outlines a number of incidents which may result in summary dismissal including Incompetence/Poor Work Performance. I am satisfied having examined all the evidence in relation to this complaint that the complainant was indeed dismissed for the above reasons and has provided no evidence to substantiate that her dismissal was linked to her race. Therefore, I find that the complainant has not demonstrated prima facie evidence of discriminatory dismissal on the race ground and I find in favour of the respondent.
5. Decision of the Equality Officer
In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find the complainant was not discriminated against by the respondent in relation to her discriminatory dismissal on grounds of race, in terms of section 6(2) of the Acts and contrary to section 8 of the Acts.
16 December, 2013
 Arturs Valpeters v Melbury Developments  21 E.L.R. 64.