Complainant

Respondent

Anonymised Parties

Kitchen Assistant

Cafe

Representatives

Self-Represented

Ms. Roberta Urbon,

Peninsula Business Services Ireland

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00041086-001

17/11/2020

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

CA-00041217-001

23/11/2020

The Complainant commenced employment with the Respondent on 8th August 2020. The Complainant is a full-time, permanent employee, in receipt of average weekly wage of €369.00. The Complainant remained in employment with the Respondent on the date of the hearing, albeit on long-term sick leave.

On 17th and 23rd November 2020, the Complainant referred the present set of complaints to the Commission. Herein, he alleged that the Respondent had discriminated, victimised and harassed him on the grounds of his race and disability. In particular, the Complainant alleged that he suffered ongoing discrimination and harassment at the hands of the head chef employed by the Respondent. By response, the Respondent denied the allegations raised by the Complainant and stated that they fully investigated all complaints raised by the Complainant in the course of his employment.

A hearing in relation to this matter was convened for, and finalized on, 28th January 2025. The hearing was conducted in person at the Mullingar Courthouse, Co. Westmeath. From the referral of the complaint, numerous attempts were made to have the matter listed for hearing. The matter was subject to a number of adjournment applications from both sides, on a variety of grounds including technical difficulties, witness unavailability and health issues.

Both parties issues extensive submissions in advance of the hearing, these submissions were expanded upon and contested in the course of the hearing. The Complainant gave evidence in support of his complaints, while the Respondent called three witnesses in defence. All evidence was given under oath affirmation and was opened to cross examination by the opposing side. While the Complainant provided details of numerous allegations of poor treatment in the course of his employment, at the outset of the hearing the Adjudicator explained that only those complaints that fell within the cognisable period for the purposes of the impleaded Act, and those that were actionable under Equality legislation would be considered in this decision. In addition to the foregoing the parties agreed that the Complainant under the Equal Status Act was not actionable in circumstances whereby the partis were engaged in an employment relationship.

In circumstances whereby the Complainant’s medical history is outlined in the decision below, I have utilised my discretion to anonymise the decision in its published form.

In evidence, the Complainant stated that he commenced employment on 8th August 2008. He stated that at the outset he enjoyed his role and believed that he got on well with his staff and customers alike.

The Complainant stated that his working conditions became much more difficult following a series of encounters with the head chef of café. The first such issue referenced by the Complainant was an incident that occurred at a work party approximately eight years previous. The Complainant stated that on this occasion, the head chef of the Respondent poured hot wax on him on purpose, in front of several colleagues. While the chef apologised for the incident in question, the Complainant stated that from that date onwards he began to treat him differently.

In 2018, the Complainant was obliged to take a period of sick leave. In accordance with the Respondent’s internal policy, the Complainant issued medical certificates to the Respondent. To the Complainant’s disappointment, he discovered that the head chef had left the medical certificates, containing personal details on a sensitive nature, in a public place where they could be viewed by other members of staff.

The Complainant submitted that the head chef stated on numerous occasions that he had a difficulty with the Complainant’s nationality and stated that he should return to his country of origin. The Complainant also stated that the head chef would trivialise his illnesses and mock him in front of staff in respect of the same.

The Complainant stated that matters came to a head on 7th September 2020. On this date, the Complainant stated that following an issue regarding a breakfast order and an allegation that a floor had not been properly cleaned, the head chef told him to leave and to “not come back”. The Complainant stated that this was the latest example of the Respondent engaging in adverse treatment towards him. He stated that the head chef subjected him to micromanagement and intense scrutiny in the course of his duties. Following this exchange, the Complainant stated that he had to prioritise his mental health and commenced a period of sick leave on that date.

On 23rd October 2020, the Complainant met with a manager of the Respondent. During this meeting, the Complainant set out his grievances against the head chef in some detail. The Complainant further provided a written account of these issues to management. On 17th November 2020, the Respondent issued correspondence to the Complainant enquiring as to whether he wished to engage in the Respondent’s formal or informal grievance procedures. The Complainant responded shortly thereafter stating that he wished to engage with the Respondent’s internal procedures.

At this juncture, the Complainant stated that he was unsure as how to proceed. In particular, the Complainant stated that he had concerns about the Respondent ability or inclination to investigate his complaint against the head chef. On this basis, the Complainant referred the present complaint on 24th November 2020.

Following the referral of the present complaint, the Complainant attended a series of meetings regarding the issues he raised. The Complainant issued further correspondence setting out in greater detail the issues that had arisen between him and the head chef. Despite the Complainant fully engaging in this procedure, he received no outcome from the Respondent in relation to the grievances as raised.

By submission, the Complainant stated that he endured a significant period of bullying, harassment and discrimination, primarily perpetrated by the head chef of the Respondent, and on that basis, submitted that his complaint should be deemed to be well-founded.

By submission, the Respondent denied the allegations raised by the Complainant.

In this regard, they accepted that the Complainant commenced employment as a kitchen assistant on 8th August 2008. By submission, the Respondent stated that the Complainant did not raise any formal or informal grievance regarding any of the conditions of his employment, or the subject matter of the present complaint, until 7th September 2020. On that date, the Complainant left the premises during his shift and issued an email requesting a meeting with management. The Complainant also commenced a period of certified sick leave on this date. A manager of the Respondent called the Complainant on 9th October 2020, and arranged a welfare meeting for 23rd October 2020. On that date, the Complainant set out a number of grievances, primarily relating to allegations of inappropriate behaviour on the part of the head chef.

Thereafter, the Respondent wrote to the Complainant enquiring as to whether he wished to engage with the Respondent’s formal or informal procedure. Shortly following receipt of this correspondence, and prior to any form of internal procedure being commenced, the Complainant referred the present complaint to the Commission.

On 29th November 2020, the Complainant confirmed that he wished to address his complaints under the formal procedure. A meeting was convened for 15th December 2020 for this purpose. Unfortunately, this meeting was unavoidably delayed as a consequence of the renewed restrictions arising from the Covid-19 pandemic. On 2nd February 2021, the Complainant stated that he wished to raise a formal complaint of bullying and discrimination against the head chef and requested that the parties meet, on an in-person basis, following the lifting of the restrictions arising from the pandemic.

A meeting between the parties was finally convened for 30th November 2021. During this meeting, the Complainant gave an account of the allegations against the head chef and, with the assistance of the investigator, identified numerous witnesses that might corroborate his position. Following this meeting, the investigator met, and took accounts from, ten witnesses identified by the Complainant. The investigator also met with the respondent to the complaint, the head chef, and took written response of the complaints raised by the Complainant. Each of these statements outlined that they observed no bullying or harassment by the head chef towards the Complainant. By written response, the head chef absolutely denied each of the complaints raised by the Complainant and stated that they enjoyed a friendly and respectful relationship. Placing reliance on these statements, and applying the balance of probabilities test, the investigator concluded that the head chef did not engage bullying or harassment of the Complainant.

The Respondent sought to invite the Complainant to a formal meeting to discuss the interim findings of the investigation. By correspondence dated 15th July 2022 the Complainant stated that he wished to pause the process until such a time as “everything is explained and finished”. From this statement the Respondent inferred that the Complainant wished for the present complaint to be finalised prior to completing the internal process. The Complainant has remained on sick leave from that date to the date of the hearing.

By submission, the Respondent submitted that the present complaint was referred prior to their having any opportunity to investigate the complaints raised by the Complainant internally. Following an internal process, the Respondent gathered sufficient witness evidence to determine that the harassment alleged did not actually occur. As a matter of process, the Respondent submitted that several complaints raised by the Complainant were statute barred. In addition to the foregoing, they submitted that many of the complaints raised by the Complainant were general inter-personal grievances and were not actionable as complaints of harassment under the present legislation. In consideration of the accumulation of the foregoing points, the Respondent submitted that the Complainant was not discriminated against, harassed or victimised in the course of his employment.

Regarding the present complaint, the Complainant has raised numerous allegations of poor treatment and inappropriate behaviour going back some eight years prior to the referral to the Commission. At the outset of the hearing, the Adjudicator explained that only those complaints that fell within the cognisable period as outlined by the Act, and those that relate to allegations of discrimination, harassment or victimisation as defined by the Act, can be considered as part of this process.

In this regard, In this regard, Section 77 (5A) of the Acts provides that,

“a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

In this regard, it is noted that many of the allegations raised by the Complainant, including those relating to the alleged adverse treatment at the staff party, and the Respondent’s failure to prevent his medical certificates from being viewed by the staff, occurred many years prior to the referral of the complaint. While evidence was taken on these points as part of the wider factual matrix, it is apparent that these allegations, of themselves, cannot ground a complaint under the Act.

The application of the provision referenced above was extensively considered by the Labour Court in the matter of Ann Hurley -v- Co Cork VEC, EDA 1124. Here the Court stated that,

“Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant…Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum.”

Regarding the existence of a continuum of discrimination or harassment, the Complainant alleged that he was harassment by the head chef by his allegedly mocking his illness in front of others and stating that he should return to his country of origin. In evidence and by submission, the Complainant failed to identify the dates on which these statements were made, and it is not at all clear that these allegations fall within the cognisable period for the purposes of the present complaint. In addition to the same, the Complainant submitted that he was subjected to intense scrutiny by the head chef in the operation of his normal duties, and that the head chef was unfairly critical of his performance in work. While these issues will be discussed below, it is apparent that no continuum exists between the early complaints of the adverse treatment, that occurred some years prior to the referral of the complaint, and those that are, potentially, within the cognisable period for the purposes of the present complaint. In these circumstances, I find that the only issues to be considered are those that occurred within the six months immediately preceding the referral of the present complaint.

Regarding the allegations that potentially occurred within this period, these must be examined to determine whether they are actionable under the present legislation. In this respect, the Complainant has alleged that he suffered ongoing harassment at the hands on the head chef. By his complaint form, he stated that this harassment was based on his disability and race.

In this regard, part one of Section 14(A) of the Act provides,

“…where...(a) an employee (in this section referred to as "the victim") is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as "the workplace") or otherwise in the course of his or her employment by a person who is…

(i) employed at that place or by the same employer, or

(ii) the victim’s employer, or

(iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or

(b) without prejudice to the generality of paragraph (a)

(i) such harassment has occurred, and

(ii) either—

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.”

Part seven of that section goes on to provide,

" In this section—

(i)      references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii)     references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person 's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material."

In the matter of Nail Zone Ltd v A Worker EDA 1023, the Labour Court held that,

"The essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person 's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. This suggests a subjective test and if the impugned conduct had the effect referred to at paragraph (b) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the Complainant, it constitutes harassment for the purpose of the Acts."

Regarding the burden of proof in relation to such matter, Section 85A provides that,

“(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

...

(4) In this section “discrimination” includes—

…

(c) harassment or sexual harassment”

In the matter of Southern Health Board -v- Mitchell [2001] E.L.R. 201 the Labour Court set out the now well-established test in determining whether the probative burden shifts by application of this subsection. In particular, the Court held that,

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a 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 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 is no infringement of the principle of equal treatment”.

In the matter of Galway Mayo Institute of Technology -v- Vlad Teleanca EDA 1835, the Court stated that this “Mitchell Test” was comprised of the following three steps :

1.       “It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so he or she cannot succeed.

2.       If the primary facts relied upon are proved, it is for the Adjudication Officer/Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

3.    If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent”

In the matter of Melbury Developments Ltd v Valpeters EDA 09/17, the Labour Court commented that,

“Section 85A of the Act 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.”

Regarding the issues that immediately preceded the Complainant’s leaving the workplace and commencing a period of sick-leave, the Complainant has alleged that the head chef subjected him to unwarranted and unfair scrutiny in the performance of his duties. He further submitted that the head chef indicated that his services were no longer required in the workplace and that he should leave and not come back. Taking these allegations at their height, and it is noted that the head chef strenuously denied same both in the internal investigation and under oath, it is apparent that these allegations of unwanted conduct do not relate to any of the grounds protected by virtue of the Act. In this respect, these allegations are not actionable as alleged harassment within the meaning of the Act.

Regarding the other allegations raised by the Complainant, that the head chef stated that he should return to his country of origin and that he mocked him for his disability, these are allegations of harassment that are actionable under the impleaded legislation. By submission, and in evidence, the Complainant could not determine with any clarity the dates on which this alleged unwanted conduct occurred, and in answer to a question posed by the Adjudicator, he accepted that the same may well have occurred outside of the cognisable period for the purposes of the present Act.

Notwithstanding the forgoing, in evidence the Respondent produced a witness that set out, in some detail, the internal investigation undertaken on foot of the complaints received by the Complainant. As part of this investigation, the investigator took statements from each of the witnesses identified by the Complainant, as well as the head chef. None of these witness statements confirm the Complainant’s version of events, with the head chef absolutely denying each of the statement attributed to him. In addition to the same, the head chef attended the hearing and gave sworn evidence in confirmation of his statement, again denying the allegations raised by the Complainant.

Having regard to the foregoing, I find that the Complainant has not proven the primary facts upon which a complaint of discrimination or harassment may be determined. In such circumstances I find that the Complainant was not harassed or discriminated against by the Respondent. In circumstances whereby the Complainant made no allegation of victimisation, I further find that this aspect of the complaint fails.

CA-00041217 – Complaint under the Employment Equality Act

I find that the Complainant was not discriminated against, harassed or victimised by the Respondent.

CA-00041086 – Complaint under the Equal Status Act

I find that the Respondent did not engage in prohibited behaviour as defined by the Act.

Discrimination, Continuum, Cognisable Period