ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001585
Complaints for Resolution:-
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 AMENDED on the 1st of February 2017 by agreement of both parties (and in acknowledgement of the content of the WRCF) to a claim to be more appropriately brought under the Employment Equality Acts
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Date of Adjudication Hearing: 01/02/2017
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Re : A Chef -v- A Catering Company
The Complainant has initiated these proceedings by way of Workplace Relations Complaint Form received on the 5th of November 2015. It is noted that the Complainant mistakenly brought his claim under the Equal Status Act of 2000 and that this matter came to light in the course of a mediation process entered into by the parties and it was agreed by the parties in that mediation that the Complainant could amend his case so as to recognise that his claim was more correctly brought under Section 77 of the Employment Equality Act of 1998 which permits the Complainant to refer a case to the Director General of the WRC for redress under the Employment Equality Acts. In accordance with the parties wishes I have noted the amendment and proceeded on foot of a hearing under the Employment Equality Acts.
A complaint has additionally been brought under Section 5 of the Terms of Employment (Information) Act 1994 wherein the Complainant claims he was not notified in writing of changes to in the particulars of the Terms and Conditions of the Complainant’s Contract of Employment.
In accordance with my obligations under the Workplace Relations Act of 2015 and in particular section s41 thereof, I have fully heard the within complaints. I have heard the evidence of the Complainant directly and that of members of the Respondent company. Each side was given an opportunity to test the evidence of the other side. I have additionally re-considered the submissions which were opened to me on the day of the hearing and have taken account of documents requested and received after the hearing date circa the 22nd of February 2017.
Complainant’s Submission and Presentation:
The Complainant’s wife sought to represent her husband’s interests in the course of this hearing. A huge amount of work has gone into the Complainant’s preparation of his case which is evidence of how strongly he and his wife feel about their situation. The Complainant’s wife led me through a powerpoint of the Complainant’s position. Some of the points being made are beyond my remit and the remit of this forum, and I have explained that I cannot deal with matters such as the Common Law Duty of Care and the Vicarious Liability attaching to the Employer. However, I do believe the Acts under which these claims are brought are robust and fair in the vindication of the individual rights.
The Complainant has worked with the Respondent company since 2001 and has worked his way up through the catering ranks to the position of chef. The Complainant works 39 hours in five out of every seven days. His rate of pay is €13.36 per hour. The Respondent Company is a catering company which will, by invitation and agreement, operate the kitchens in commercial and other establishments. The Complainant has worked in various of the Respondent operated sites including the (then) O2, the Civil Offices and more recently he has worked in the kitchens at the Maynooth branch of a large Supermarket.
There is a significant history of difficulty in the relationship between the parties. The Complainant states that as a Chef he has not always felt supported in this essential role he believes that there has been a lack of regard for his achieved status as a chef. The Complainant has always maintained that he should have support staff and that would be in the company norm i.e. other chefs of his rank would have assistant staff to support their role. The Complainant perceives that the only difference between himself and such other chefs is his race and concludes a discrimination has arisen.
There has been a long running issue between the Complainant and his employer as to whether or not he should be expected to “deep clean” kitchen equipment when this would ordinarily be the job of a kitchen porter (a job the Complainant had worked his way up through). The row has primarily centred on the Complainant not wanting to wash deep fat fryers. Ultimately (by 2015) the deep cleaning of the said fryers had been outsourced in ease of employees. Again, the Complainant believes that this request to perform what he believes to be menial type work is based on his race and amount to discrimination.
The Complainant believed he was being overlooked for the purpose of getting upskilling and training. He further says that his request for additional uniform items, including shoes, has not been met with any success. He believes he has not been promoted and lost out to persons not of his race.
The Complainant was of the belief that if he worked on a Saturday that he should be getting a premium rate of pay as this was essentially a day of overtime for him. Not getting paid overtime was interpreted by him as a form of discrimination.
A lot of the complaints were historical and there seems to have been some consensus that the year 2014 had been an uneventful year of work and it was only when the Employer began re-configuring the rosters and shifts that matters became extremely contentious again. In particular, the Employer indicated that the requirement to have a chef in the workplace before 8 was non-existent and moved all chefs to an 8am start. However in the face of this objective, the Complainant asked to continue to be allowed start at 7am which suited him better in terms of his home set-up. The employer acquiesced to this though there is dispute over the terms of the acquiescence with the employer saying that the Complainant agreed to engage in cleaning and prep duties in the hour where he was rostered to work before 8am. In addition to this change in his working pattern, the Complainant says he was also being subjected to an entirely new rostering pattern and in particular he was being asked to work Saturdays as one of his regular 5 out of every seven days. The Complainant believed he should get premium rates for any Saturday he was obliged to work. This, he said, had been the norm for him.
Respondent’s Submission and Presentation:
The Respondent witnesses gave evidence to the effect that whilst the Complainant was entitled to be aggrieved with what he perceived to be Contractual changes (whilst maintaining such changes were reasonable and within their Contractual remit) the characterisation of these changes as being racially motivated or founded in discrimination was simply incorrect and ill-founded.
The Respondent states the Complainant is not comparing like with like. The Complainant had worked in bigger facilities where there were greater numbers of operatives in the kitchens. This meant that Chefs at his grade may have had assistants, but the numbers being catered to were vastly greater too. The Maynooth supermarket facility comparable to the one situate at Edenderry and Tullamore where the kitchen staff include one chef and three catering assistants. IN fact, the suggestion in evidence was that the Complainant’s site had the advantage of an additional Manager being available too. The Respondent state that there is a clear expectation that all kitchen staff would be expected to do a range of duties and that the hierarchy being suggested by the Complainant is impractical.
The Respondent stated that it supported the Complainant wherever the need arose and certainly extra time was given to try and upskill him in relation to the computerisation of menus and stock taking though this became another contentious issue as he was spending too long on this to the detriment of other essential functions
The Respondent has emphatically rejected the suggestion that it was in any way discriminatory in it’s treatment of the Complainant. It has repeatedly been accused of this by the Complainant and has undertaken, it says, all relevant investigations and procedures in response to these claims. However, the Respondent says that the Complainant’s allegations were never substantiated, and were generalisations and in the nature of a backlash to what the Complainant saw as particular perceived injustices. Evidence in relation to the history between the parties was opened up during this Adjudication process and several books of appendices have been considered. The Respondent was anxious to assert that it takes pride in running a fair and equality based workplace. The Respondent deals with 55 different nationalities across 3,000 employees. There are comprehensive diversity and dignity policies in operation in this workplace.
The Complainant has himself been disciplined in connection with incorrect labelling of food which is a serious matter as it can have potential health ramifications for the end consumer.
The Respondent adamantly refuted the suggestion that Saturday was anything other than a regular day of the week and should not of itself attract overtime or premium time rates and that overtime can only apply to overtime- this is time worked over and above the contractual 39 hour week. The Respondent explained that it’s rostering Diary - and Saturday is day one. The parties have disagreed over the interpretation of this Contractual construct and the complainant has in effect refused to work Saturdays even when he is occasionally rostered to do so. Now the employer has to draft someone else in to cover of the Complainant’s Saturday shift – which might involve an agency or another in house chef working at another location. The Employer says that there is no detriment to the Complainant and that working on a Saturday is implied in the Terms of the Contract and that all Employees were obliged to work on Saturdays and that the Complainant cannot be allowed to distinguish himself in the way that he is trying to.
The Respondent says that the Complainant has been promoted a few times in his working career and that he has not missed out on any opportunities in circumstances where he has not applied for positions.
The Respondent has differentiated between a Head Chef (paid at a rate of €17.00 an hour) and the chef position held by the Complainant (earning €13.35 per hour). These are completely different positions with entirely different skillsets. The allegation that the Employer is paying the Complainant significantly less than he is entitled to because of his race is refuted by the Respondent.
The Respondent has made available the evidence I sought with respect to the Complainant consenting to being searched in the workplace. Whilst this may not be a very pleasant experience the Respondent states it is universally applied to all employees and that the Complainant has always been on notice of this particular workplace practise.
The Complainant’s claim (by agreement with the Respondent) is brought pursuant to the Employment Equality Acts of 1998 to 2015 wherein (pursuant to Sect 6(1)) discrimination is said to have occurred where one person is treated less favourably than another has or would be treated and based on the ground of race (in this instance).
To succeed under these Acts there is a prima facie onus or burden on the Complainant to demonstrate that any less favourable treatment he says he has been subjected to is unavoidably linked to the fact that he is of a particular race, colour, nationality or ethnic origin.
In order that he might have some success in bringing such a claim it is usual to try to source a comparator whose situation goes some way towards demonstrating that the Complainant’s argument appears to have a Prima facie validity i.e the raising of the presumption of discrimination which has the effect of shifting the burden of proof on to the Employer. It is accepted that in some workplaces it is all but impossible to source a comparator, but in a company where the primary function is, in fact, catering - it seems surprising that no chef comparators have been offered in the course of evidence.
That the Complainant is dissatisfied with the workplace is not in doubt - both he and his wife were very strong in vocalising their feelings in this regard. And yet I was struck, as we jumped from grievance to grievance (both historic and contemporaneous) that the unhappiness (whilst very real) was not rooted in less favourable treatment to which he was subjected as a result of his racial profile but had more to do with ordinary workplace grievances - which whilst understandable and entitled to be raised - had no racial overtones. On balance I fully accept that all the work practices to which the Complainant took such exception were implemented across the board and therefore applied to all races equally.
So, for example, I accept that Chefs at the Complainant’s level are paid at a rate of €13.35 per hour. I accept that in facilities the size of the Maynooth one, there is an expectation that the four members of staff are all expected to prepare and clean up – and always had been (including therefore the time when the fryers were such an issue). I accept that all Employees are rostered to work on Saturdays and that unless the 39 hour week has already been completed there is no special premium rate attaching to this day.
I am satisfied that in 2015 the Complainant was in fact given some special treatment when he was facilitated in his family-friendly request to go to work earlier in the mornings so as to allow him get home earlier. It seems reasonable to assume on balance of probabilities that the quid opro quo for allowing this would be that the Complainant perform necessary early morning tasks even if these are not related to his primary function as a chef.
Although requested by the employer to make a finding that his claims were made in bad faith and were frivolous, vexatious and misconceived I will not so make these findings. The Complainant was entitled to bring claims and have issues raised although through the workplace in the first instance is always preferable.
Regarding the claim of being harassed or subjected to unwanted conduct relating to the Complainant’s race I find that the Complainant has not been able to pinpoint examples and has instead opted for more sweeping allegations which cannot be substantiated. I would also state that the Complainant has been treated fairly by the Respondent regarding any complaint he has made to them albeit his own lack of co-operation has resulted in these processes being derailed.
The Complainant has failed in his claim under the Employment Equality Acts 1998 to 2015 - the Complainant has failed to prove the Prima facie case expected.
The Complainant has not made out a case in relation to a material change in the terms and conditions of his employment as the matters he sought to rely on as being evidence of change were in fact Contractually permissible and operated across the workforce (i.e. Saturday employment and job description). The Complaint under the Terms of Employment (Information) Acts 1994 to 2014 fails too.
Dated: 28th June 2017