The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-020
A Restaurant worker
(Represented by Richard Grogan and Associates)
The Manager of a Restaurant.
File reference: EE/2013/255
Date of issue: 20 April 2015
HEADNOTES: Employment Equality Acts, – Gender, Race - Discriminatory Dismissal,.
This dispute concerns a claim by a restaurant worker (hereinafter referred to as “the complainant” that she was discriminated against by the Manager of a Restaurant (hereinafter referred to as “the respondent.”) on the grounds of gender and race under section 6 of the Employment Equality Acts in relation to dismissal in a discriminatory manner contrary to section 8 of the Acts.
The complainant referred her claim to the Director of the Equality Tribunal 23 May 2013 under the Employment Equality Acts. On 26 February 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Peter Healy, 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. Submissions were received from the complainant only. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 8 April 2015.
SUMMARY OF COMPLAINANT'S WRITTEN SUBMISSION
The complainant, a Latvian national, commenced employment with the respondent working in a fast food outlet on the 19th November 2012.
The complainant submits that in May 2013 she was dismissed without any procedures following a specific incident regarding a problem with the cash register.
SUMMARY OF COMPLAINANTS SUBMISSIONS AT HEARING.
The complainant submits that during the period of her employment that she was one of six employees (three men and three women) none of whom were Irish but a mix of other nationalities and that the respondent (an Algerian national) was verbally abusive without cause to all of them on a regular basis and that he generally acted in the manner of a bully.
In regards to the incident leading to her dismissal, the complainant says that on a particular occasion at about 6 p.m. she was serving customers at the counter during a particularly busy period when the cash register malfunctioned. As her direct manager was unable to fix the problem, the complainant using her own initiative went to another, un-associated, restaurant close by and asked the manager there if he could help. The complainant did so as she knew they used the same type of cash registers.
The complainant submits that at about 9 p.m. that same day that the respondent called her on her mobile phone and began shouting at her regarding her bringing an outsider into his business. The complainant submits that a heated argument followed ending with the respondent telling the complainant that she was fired.
The complainant submits that she had almost no contact with the respondent following this phone call except to return a key and get some final pay. The complainant submits that she refused to take any further calls from the respondent although he persisted on calling her.
The complainant gave evidence that some of the other staff may have received preferential treatment as they were friends of the respondent’s son.
The complainant gave specific evidence that a male colleague had been bullied so badly that he had sought her advice regarding leaving his employment.
The respondent has made no submission to this Tribunal regarding the complaint and did not attend the hearing.
FINDINGS & CONCLUSION
I have to decide if the complainant was discriminated against in relation to discriminatory dismissal on the grounds of gender and race. In reaching my decision, I have taken into account all of the submissions, oral and written, made to me by the complainant in the course of my investigation as well as her direct evidence presented at the hearing.
Section 85A of the Employment Equality Acts 1998 and 2004 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 she can rely in asserting the she suffered discriminatory treatment. It is only when those facts have been established and are regarded by an Equality Officer as sufficient to raise an inference of discrimination that the onus shifts to the respondent to rebut the inference of discrimination raised.
In Melbury Developments v Arturs Valpetters  the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”. That Court more recently extended this analysis when it affirmed the approach adopted by this Tribunal in Businkas v Eupat Ltd that one of the facts which a complainant must establish is that there was a difference in treatment between him/her and another person who does not possess the relevant protected characteristic, (see Glasgow City Council v Zafar  2 All ER 953)
The complaint gave an account of a period of very poor treatment at the hands of the respondent. I found her to be a very credible witness and accept that she was mistreated. However, the complainant has failed to offer any evidence linking the unwanted behaviour to the ground of gender or race. To the contrary, the complaint has offered detailed evidence in her evidence at the hearing that the manager was abusive to all staff regardless of gender or race.
The complainant submits that the termination of her employment was entirely due to the incident with the cash register. At hearing the complaint did not offer any evidence of less favourable treatment by the respondent other than the fact of this dismissal.
When the complainant was asked if she was treated differently by the respondent because of her gender she responded that “she could not remember” and in relation to her nationality that it could “possibly” have been a factor. I must conclude that he complainant is simply speculating that the cited grounds were the respondent’s motivation for her alleged mistreatment.
Having regard to the foregoing consideration by the Labour Court and having considered the complainants evidence, I am not satisfied that the complainant has established facts from which it can be shown that she was treated in a less favourable manner than others on the ground of gender or race.
DECISION OF THE EQUALITY OFFICER.
5.1 Having considered all of the written and oral evidence presented to me. I find that a prima facie case of discriminatory dismissal on the ground of gender or race has not been established and the complaint fails.
20 April 2015
 EDA 0917
 Arturas Businkas v Eupat Ltd (In Liquidation) EDA103