DECISION NO: DEC-E/2013/178
Mr. Chantar Arumugan
(Represented by McCartan & Burke, Solicitors)
Ashdown Park Hotel Limited t/a Ashdown Park Hotel
(Represented by O'Doherty Warren & Associates)
FILE NO: EE/2012/335
Date of issue: 16th of December, 2013
1.1 This dispute involves a claim by Mr. Chantar Arumugan that he was discriminated against by the Ashdown Park Hotel Limited t/a Ashdown Park Hotel on grounds of race, in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts, in relation to his treatment and in relation to his dismissal.
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on the 19th of June, 2012 alleging that the respondent had discriminated against him on grounds of race when he was suspended from his job and then dismissed following a serious security breach at the hotel where the complainant was employed.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 24th of May 2013 to me, Orla Jones, 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. Written submissions were received from both parties. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to a Hearing on the 29th of July, 2013. Final information in relation to this matter was submitted on 20th of September, 2013.
3. Summary of complainant’s case
3.1 The complainant states that he is Malaysian. He submits that he was employed by the respondent from 19th of March, 2012 to the 6th of June 2012 as a hotel night porter.
3.2 It is submitted that on the night of the 14th of May there was a serious security breach at the hotel whereby a sum of €7,000 went missing from a white lock box which had been held in the CCTV room of the hotel. The complainant had been working on the night shift on the night in question. The theft was discovered the next morning by another staff member.
3.3 On the 16th of May 2012 the complainant was called to a meeting by the General Manager and was interviewed in relation to the missing cash box.
3.4 It is submitted that the complainant was subjected to an investigation by the respondent and by the Garda Siochana in relation to the missing cash box. It is submitted that the complainant was the only employee investigated in this regard.
3.5 It is submitted that the treatment of the complainant by the respondent amounts to discrimination on grounds of race.
3.6 It is submitted that the complainant was suspended with pay during the investigation and was later dismissed. It is submitted that this amounts to discrimination on grounds of race.
3.7 It is submitted that an employee enquired as to the complainant’s situation and was advised that the complainant was “finished due to the theft”.
4. Summary of Respondent’s case
4.1 It is submitted that the complainant was employed by the respondent, as a Night Porter from 19th of March, 2012. He was subject to a probationary period of six months. The complainant was required to report for duty between the hours of 11pm and 7am and during that time was responsible for the security of the premises and of guests and guests’ belongings, as well as other duties such as cleaning and setting up of meeting/function rooms. The complainant had held himself out as a security person and holds security credentials/qualifications.
4.2 It is submitted that at the time of the complainant’s employment the respondent had 85-90 employees on its payroll of which in excess of one third comprised of non-Irish national employees.
4.3 It is submitted that on the night of 14th of May a serious security breach occurred during which a cash box was stolen from the hotel.
4.4 On 16th of May the complainant was required to meet with the General Manager and was requested to provide details of his and others whereabouts on the night of the security breach.
4.5 The complainant was advised that all relevant personnel were required to participate in the investigation and that the Gardaí would be in touch to take statements.
4.6 The complainant’s suspension arose due to performance concerns given that the security breach occurred whilst the complainant was the night porter on duty with responsibility for security. The complainant was not even aware that a security breach had occurred and it was only discovered the following morning by another staff member.
4.7 The complainant was at all times assured that no allegations of theft were being levied against him.
4.8 The complainant during the course of the investigation was aggressive and verbally abusive towards the respondent and on one occasion during his suspension arrived at the premises and was abusive and aggressive towards the General Manager in the foyer in front of hotel guests.
4.9 Following a review of the security breach which occurred during a night on which the complainant was responsible for security and due to the complainant’s aggressive behaviour and combative outbursts during the investigation process a decision was taken to dismiss the complainant during the probationary period on 6th of June, 2012.
5. Conclusions of the Equality Officer
5.1 The issues for decision by me now are, whether or not the Ashdown Park Hotel discriminated against the complainant on grounds of race, in terms of section 6(2) (h) and contrary to section 8 of the Employment Equality Acts, 1998 and 2004 in relation to his treatment and in relation to his dismissal. 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 at the Hearing.
5.2 Section 6(1) of the Employment Equality Acts, 1998 and 2004 provides that discrimination shall be taken to occur where “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)…..”
Section 6(2) (h) of the Acts defines the discriminatory ground of race as follows – “as between any two persons ….. that they are of different race, colour, nationality or ethnic or national origins… “
5.3 Thus the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because his is Malaysian. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:
Section 85A of the Act provided 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. While those facts will vary from case to 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 establish 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 Less favourable treatment – Conditions of Employment
5.4.1 The complainant at the hearing stated that he had been employed by the respondent as a Night Porter. The complainant stated that his responsibilities included cleaning and setting up tables in various function rooms. The complainant stated that he had no role in the security of the hotel and as far as he was concerned he was not responsible for the hotel security. The respondent advised the hearing that the complainant’s role was that of a Night Porter and stated that this role meant that the complainant was responsible for the security of the hotel and its guests during his shift. The respondent at the hearing produced a list of duties and responsibilities of a Night Porter and included on that list was responsibility for hotel security. The complainant advised the hearing that he had not at any time received the list in question and stated that he had not received a contract or terms and conditions as his friend had got him the job with the respondent. The respondent advised the hearing that the complainant had received a contract but had taken it away to check it and had not returned it. The respondent added that the complainant had been recommended to them as he had previously worked as a security guard and held credentials in security. The complainant conceded that he did hold such credentials but stated that he had not held himself out as a security person at the time.
5.4.2 The complainant when questioned at the hearing as to whether anyone else was responsible for security during his shift replied that no one else was responsible. The complainant when questioned, acknowledged that it was his role to question anyone entering the premises without authority and to stop any unauthorised persons from entering the hotel. The complainant however maintained that he was not responsible for hotel security. The complainant also advised the hearing that he was responsible for checking that all doors were closed and locked and for checking that no one was hanging around outside the hotel. He also stated that he was the person in charge at night. I am satisfied, from the totality of the evidence adduced, that the complainant’s job as Night Porter did contain some responsibility for security matters as no one else was assigned that role during his shift and as he has stated that it was a part of his role to check doors and to prevent unauthorised persons from entering the hotel.
5.4.3 The complainant advised the hearing that he had been working as a night porter in the hotel on the night in question. The complainant advised the hearing that he was not aware that a security breach had occurred until the next day when he was told by the respondent that the cash box containing a large sum of money had been stolen during the previous night. The complainant advised the hearing that he received a phone call from the Duty Manager Mr. G advising him that the cash box had been stolen and stating that an investigation into the matter was underway. The complainant advised the hearing that Mr. G asked him whether he had seen the cash box in the CCTV room. The complainant advised Mr. G that he had not and was asked by Mr. G to write a note to that effect.
5.5.1 The complainant advised the hearing that later that day he received a phone call from Mr. H asking him to come in to the hotel the following day for an interview regarding the incident. The complainant attended as requested and advised the hearing that he was later suspended on full pay pending the outcome of the investigation. The complainant stated that he was the only staff member questioned and that this was due to this race. The respondent at the hearing stated that the complainant and all other staff who had been on duty on the night in question were questioned in relation to the matter. The respondent submitted to the Tribunal copies of statements taken from other staff members in relation to the missing cash box. I am satisfied from the totality of the evidence adduced on this matter that the complainant was not the only staff member questioned in relation to the missing cash box and that he was not discriminated against by the respondent on grounds of race in relation to this matter.
5.5.2 The complainant advised the hearing that he was told by the respondent that the Garda Síochána were also investigating the incident and that they would be in contact with him to take a statement from him in this regard. The complainant at the hearing stated that he was told to wait until he was contacted by the Gardaí for his statement and that he was advised not to go to the Garda station himself in this regard. The complainant stated that this seemed to indicate to him that the respondent had a relationship with a particular detective and so wanted to be sure that this detective in particular took the complainants statement. The complainant alleged that there was some collusion between the respondent and the Garda Síochána in relation to the matter and in relation to investigating the complainant. I am satisfied that the Garda Síochána investigation is a separate matter which the complainant may choose to pursue in another forum, and that the case before me pertains to the respondent’s treatment of the complainant as its employee as defined in Section 2 of the Employment Equality Acts and accordingly I will restrict my examination of matters referred to those between the complainant and the respondent.
5.5.3 The respondent advised the hearing that the complainant was never accused of carrying out the theft and was at all times assured that he was not a suspect but that he was being questioned due to the fact that his role as Night Porter meant he was responsible for security matters and therefore the question arose, whether he had carried out his duties adequately given that, a theft occurred on his watch and the matter was only discovered by another staff member the following morning. The complainant at the hearing conceded that he had been told that he was not a suspect and that he was not being accused of being personally involved in the theft.
5.5.4 The complainant advised the hearing that the respondent on Friday 18th of May contacted him by phone and enquired as to whether he had met with the investigating authorities. There is a dispute between the parties as to which party requested the meeting which took place later that day but both parties agree that a meeting was arranged and the location suggested by the respondent was the Amber Springs Hotel. The complainant stated that he refused to attend at this location as he felt he should not be hiding or avoiding his place of work as he had done nothing wrong. The respondent advised the hearing that as the subject matter of the meeting was the also the subject of an investigation they felt it more appropriate that such a meeting take place off site and out of consideration for the complainant thought it best to have it take place away from other staff members who may be questioning the complainant regarding his absence and regarding the subject of the meeting.
5.5.5 The complainant at the hearing stated that he told Mr. H that he would instead come to his place of work at the Ashdown Park Hotel and that it was up to Mr. H to meet him there. The complainant advised the hearing that he had met Mr. H in the lobby and had a brief discussion with him in the lobby after which, Mr. H directed him to go upstairs. The complainant stated that he went upstairs to the meeting room where he encountered the owners Mr. T. R. and Mr. P. R. and proceeded to have a discussion with them about the matter of the security breach. The complainant stated that they advised him that he was suspended with pay pending the investigation and that he was not to return to work until after he had spoken with the relevant detective involved in the investigation. The complainant conceded that he was told that he was not a suspect but that he was suspended due to the theft. The respondent advised the hearing that on the day in question the complainant had entered the hotel and upon encountering Mr. H had become aggressive and had begun shouting abusively at him in the foyer in front of the guests. The respondent stated that Mr. H had then asked the complainant to go upstairs and to wait for him in the Crann 2 Suite. The respondent stated that the complainant then went upstairs but instead of waiting in the Crann 2 Suite as instructed, instead barged into a meeting room where the owners were situated. The respondent advised the hearing that the complainant then continued to shout abusively at the owner and Mr. H while they tried to assure him that there was no allegation of theft against him and that all relevant personnel were being requested to make statements to the Gardaí.
5.5.6 The complainant at the hearing became quite irate and angry at the respondent’s evidence and although he protested the claim that he had become aggressive during the investigation his demeanour at the hearing did little to dispel the claim that he had behaved in an abusive and aggressive manner towards the respondent. The respondent stated that the complainant had then shouted at the owners and had behaved aggressively during the discussion. The complainant at the hearing stated that his manner can sometimes be perceived as aggressive but that this is due to the fact that English is not his first language. The complainant added that people often say he is aggressive but that is just the way he talks and that people also say his movements are very aggressive.
5.6 Statement to Mr. M that complainant gone due to theft
5.6.1 The complainant had submitted prior to the hearing that his colleague Mr. M had inquired as to the complainant’s whereabouts following his dismissal. Mr. M advised the hearing that when he questioned the respondent about the complainant’s absence from work he was told by Mr. H that the complainant was “finished due to the theft”. The complainant submitted that this statement implied that he had been the person who had carried out the theft and that such a statement/ accusation was defamatory. The complainant indicated that he was pursuing this matter in another forum. The respondent did not deny that Mr. H had indicated that the complainant had finished due to the theft and stated that the fact that the complainant was responsible for security on the night of the theft and had failed to notice it, let alone prevent it and had later failed to co operate with the investigation, had in fact resulted in the termination of his employment with the respondent. This is a matter which the respondent does not deny. The respondent states that the complainant’s treatment and this comment by Mr. H referred to the complainant’s failure to perform adequately in his role specifically in relation to his responsibility for security matters and to his aggressive behaviour during the investigation and was unrelated to the complainant’s race. I am satisfied from the totality of the evidence adduced on this matter that complainant was not discriminated against by the respondent on grounds of race in relation to this matter.
5.7.1 The complainant advised the hearing that following his suspension he was never permitted to return to work and he was instead dismissed on 6th of June, 2012. He submits that this dismissal was due to his race and that he was the only person dismissed following the theft of the cash box. The respondent advised the hearing that the complainant was not the only person dismissed following the theft and that Mr. M who had been off duty but drinking in the bar that night had also been dismissed following the theft. The respondent advised the hearing that the complainant was not dismissed due to his race but that he was dismissed due to the fact that a serious security breach had occurred on his watch and it had gone unnoticed by the complainant, despite his being responsible for security. In addition, the respondent stated that the complainant’s aggressive behaviour and conduct during the investigation had influenced the respondent’s decision to dismiss him. The respondent stated that the complainant had not adequately performed the duties for which he was appointed specifically relating to the security function and that his abusive behaviour in front of guests made it clear that he was not suited to working in an environment where he would be dealing with members of the public. The respondent submits that a decision was made to dismiss the complainant during his 6 months probationary period. I am satisfied from the totality of the evidence adduced that the respondent’s dismissal of the complainant was unrelated to his race and accordingly the complainant was not discriminated against by the respondent in respect of his dismissal.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -
(i) the respondent did not discriminate against the complainant on the ground of race pursuant to section 6(2) and contrary to section 8 of the Acts in relation to his treatment during the investigation of a serious security breach
(iii) the respondent did not discriminate against the complainant on the ground of race pursuant to section 6(2) and contrary to section 8 of the Acts in relation to his dismissal.
16th of December, 2013
 Labour Court Determination No. EDA0917