Complainant

Respondent

Parties

Jorge Joaquin  Sanz Lopez

Temple Bar Tavern Ltd.

Representatives

Roberta Urbon Peninsula Business Services Ireland

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00063815-001

29/05/2024

The complainant commenced employment with the respondent on 21 October 2023, as a night porter. He worked 40 hours per week and was paid €12.70 per hour. His employment ended on 21 April 2024 according to the complainant, on 12 April 2024, according to the respondent.  A remote hearing of the case took place on 16 January 2025, with the assistance of an interpreter.

The complainant provided a written submission.

The complainant submits that when he applied for work with the respondent, he was offered a full-time position as a night porter. He did not receive a written contract of employment.  He worked 40 hours per week or more if required.

He submits that from day one his supervisor explained the tasks he was to carry out, he informed “them” about a previous leg surgery before doing anything as he did not want to jeopardise his health.  None of the tasks outlined to him posed a risk so he decided to stay with the respondent.

The complainant submitted that issues arose due to his attempts to get a written contract. He submits that the General Manager did not like that he had looked for his contract and issues arose as a consequence. The complainant met with the General Manager and submits that he was told there would be a significant increase in the cleaning duties he would have to carry out. The complainant told the General Manager at this meeting that he was incapable of carrying out these additional cleaning duties due to a problem with his leg. He submits that the General Manager did not take heed of his protests and said she did not wish to see any medical evidence he could provide about his leg. 

The complainant submits that as he could not perform these additional cleaning tasks, he was told the respondent would reduce his hours and hire someone else for the night shift to handle the cleaning duties. However, that is not what happened; the respondent started looking for another night porter. The complainant submits that the General Manager wanted him gone.

The complainant submits that he had, from day one, informed everyone about his leg problem and had put it in writing when he signed his contract of employment.

The complainant submits that he eventually decided to leave when he was called to a meeting to discuss tasks he allegedly had not completed and alleged treatment of a colleague. Neither of these allegations were accepted by the complainant. He felt he could no longer tolerate a company lying and tarnishing his reputation.

The complainant gave evidence on affirmation at the hearing.

The complainant stated that months after he had started working with the respondent, he was told he would have to carry out additional cleaning duties; jobs he could not do due to a disability, related to a leg injury. He was also told he had not been performing his duties and was guilty of bad behaviour.

The complainant read through his written submission, which is summarised above.  He stated that his written submission covered everything he wanted to say.  When asked if he had anything to add he said, “no, nothing to add.”

In answers to questions put to him in cross examination, the complaint confirmed that the medical certificate he had supplied was from 2025. He denied he had never provided the cert to his employer rather his employer did not want to accept it. When it was put to him that it was at a meeting in February 2024, a second probationary review meeting, at which his ankle problem was discussed, he replied that there had been a meeting but he had not been allowed to provide evidence that he had a problem with his ankle. The complainant stated that the respondent had not tried to accommodate him by reducing his duties as was put to him.

Regarding a pre-employment questionnaire the complainant had completed about his health, before he started working with the respondent, the complainant stated that although he had not answered the question, “are there any issues that might affect your attendance at work?”, he had not answered because of the level of his English. He stated that he had marked one that he had a problem with his ankle. Any other questions he did not answer was because he did not understand the question, although he agreed when it was put to him that he never raised an issue about the questionnaire.

When it was put to him that the respondent could not accommodate him if they were not aware he had a problem, the complainant stated, “yes, but they did not accept the medical certificates I provided.”

The complainant denied that the respondent had provided a translator for a meeting to discuss issues with him, rather the respondent’s answer to the issues was to hire someone else to take his place.

The complainant stated that the reason he had not alerted his employer about his ankle problems before the end of February 2024, was because when he started, the cleaning duties were not part of the night porter’s duties. When put to him that the job did include cleaning duties, the complainant stated that he “occasionally” helped with the cleaning duties but they were not his duties.  A checklist listing cleaning duties he was responsible for had changed in January increasing the cleaning duties expected of him.

The complainant did not agree that the hiring of another night porter was related to an upturn in business but was done because the respondent wanted him out. He agreed he had only worked one week with the other porter before he left, but he had left due to the letter he had received saying he had been bad mouthing a colleague.

The complainant’s first witness was Ms Zubic, the complainant’s supervisor, who gave evidence on affirmation.

The witness confirmed that the complainant had been waiting some two months after he started to get his contract of employment. She also confirmed that the complainant was always polite, respectful and he did his tasks as best he could.

In response to questions put to her in cross examination Ms Zubic stated that she did not work on the same shift as the complainant and she never heard any complaints being made about him.

The complainant’s second witness was Ms Agatha Borowa, who gave evidence on affirmation.

The witness stated she worked on the same shift as the complainant and that he worked extended hours. In answer to questions put to her in cross examination, Ms Borowa stated that she finished work at 4.00pm 

In closing, the complainant stated that he was misled from the beginning; he was told he was to get a full-time contract but he never did.

He believes that following him raising internal issues he was told, retaliation, to do duties he could not carry out due to his disability. The letter saying he mistreated his co-workers was a complete lie. 

In opening their case the respondent put forward that when, in late February 2024, the complainant sought reasonable accommodation his duties were reduced by three-quarters. The complainant has not provided a comparator.  The respondent denies the complainant’s recollection of events as outlined in his written submission. The complainant has failed to particularise what it is that he says constituted discrimination.

The first witness called by the respondent was Mr Fitzsimons, owner, and Managing Director of the respondent company, who gave evidence on affirmation.

Mr Fitzsimons explained that he did not have a lot of day-to-day contact with the complainant but he met him in January 2024, when the complainant had raised some issue. Mr Fitzsimons stated that he was aware that a complaint had been made by another colleague against the complainant regarding the attitude the complainant had with this other member of staff.  At this meeting the complainant did not say anything about a disability but he did raise other issues such as the delay in the issuing of a contract.   In April the complainant sent a long list of issues.  Mr Fitzsimons stated that if any member of staff presented with a disability it would be taken seriously and that there is a member of staff who does have a disability who has worked for the respondent for years.

The General Manager of the hotel, Ms Hegedus, gave evidence on affirmation on behalf of the respondent.

The witness stated that the first dealing she had with the complainant was in January 2024, when he contacted her about not getting a contract of employment.  She stated that there was a checklist of tasks for the night porter role going back to September 2023, which included cleaning tasks and that cleaning tasks were always part of the night porter’s job. The complainant only raised the matter of cleaning duties in late January or early February 2024. He mentioned the difficulties he had going up and down stairs due to his leg.  On foot of this the number of days he worked was reduced from seven to three and the amount of cleaning work he had to do was also reduced, so he would not have to climb as many stairs. Ms Hegedus stated that she asked the complainant to provide a medical certificate for his leg injury; when he did provide a medical document Ms Hegedus did not accept it as it was written in Spanish. Regarding the pre-employment questionnaire, the witness stated that the complainant left two questions unanswered and that although he had said he did not understand the questions, he never raised this as an issue.

The witness stated that there was a reduction in hours for many staff in January 2024, due to a falloff in business. However, as things picked up there was a need to take on a second night porter. Night porter work was to be split between the complainant and the new night porter but the complainant resigned before the new system got underway. The witness stated that the complainant had never raised a formal grievance while he was working for the respondent.

In closing, the respondent stated that no evidence was presented by the complainant that he needed reasonable accommodation. He has failed to particularise his complaint and he has failed to name any suitable comparator.

I have considered this matter very carefully.

The general rule in the context of the burden of proof is that the burden lies on the party asserting a particular claim.

I have examined whether the complainant has established a prima facie case of discrimination.  The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.   It continued:

 “It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

In order to determine whether the complainant has established a prima facie case a three-tier test is employed:

First, the complainant must establish that he is covered by the relevant discriminatory ground.

Second, he must establish that the specific treatment alleged has actually occurred.

Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

In this instant case, the complainant has asserted that he has a disability.  The complainant provided some documentation at the hearing to support this claim, however, he did not provide a medical report from a doctor sustaining this assertion. More tellingly, he did not provide the respondent with concrete, credible evidence that he had a disability in or around the time he raised the matter with his employer.

The complainant has failed to establish that he is or was covered by the disability ground.

Regarding the second test, even if the complainant had established, he was covered by the relevant ground, the allegation that the respondent failed to provide him with reasonable accommodation fails. Even though the existence of a disability had not been proven, the respondent did initiate some changes to his duties to take into account his stated difficulties with climbing stairs, however the complainant left his employment with the respondent before these changes were put into operation. The complainant did not initiate a formal grievance process.  

The complainant has failed to establish that the specific treatment alleged did occur.

In considering the third tier of the test, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground. In this instant case the complainant has failed to provide any comparator.  He has failed to establish that the treatment afforded to him was different to that that was or would have been afforded to another person not covered by the disability ground.

 I find that the complainant has not established a prima facie case and his complaint therefore fails.

The complainant was not discriminated against.

Prima facie, burden of proof.