Complainant

Respondent

Anonymised Parties

A Chef

North Dublin Restaurant

Representatives

  Self-represented

Dermot Duignan DDHR HR SUPPORT & ADVICE

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-00068384-001

01/01/2025

The hearing was attended by the Complainant, the Respondent’s Representative, Dermot Duignan (DDHR) and the Respondents; AD (Head Chef), DM (HR/Payroll) and HM (Restaurant Manager).

All witnesses were asked to their preference for Oath and Affirmation. The Complainant initially preferred a Holy Book that was not readily available to the hearing and instead chose to make an Affirmation to be truthful with the Commission. Likewise, the Respondents witnesses all chose to Affirm to be truthful with the Commission.

The parties were offered an opportunity to cross-examine witnesses, and this was taken up by the Complainant on the evidence from AD.

The case within was referred to the commission on 01/01/2025 to the effect that the Complainant had been treated differently on the grounds of Gender in having a disciplinary investigation initiated into his actions with a possible sanction applied to him; versus what had happened on previous occasions to female staff.

The matter relates to an investigation of the Complainant behaviour toward some junior female staff and in the resulting investigation. He resigned his post after almost 10 years’ service before the investigation could be properly completed. His relationship with the Respondent was otherwise excellent and the Respondent described him as a talented Chef and someone for whom there was a good deal of regard.

Early in the hearing the Complainant withdrew their complaint under the IR Acts.

Having allowed the parties to make their case and produce their witnesses, I enquired if there was anything else I needed to hear from either party and having satisfied myself that all the facts and evidence available was before me, I formally closed the hearing.

The Complainant did not put a written submission to the WRC and relied upon their complaint form and their evidence at the hearing, nor did the Complainant produce any witnesses.

The Complainant worked as a Chef for the Respondent from the 6th of May 2013 to the 3rd of August 2024. He resigned his post by email on the 26th of July 2024 based on a” toxic environment “and “lack of effective management “that had made his work increasingly challenging but offering to assist the Respondent in making the transition smoothly.

The Complainant also referred a similar complaint under s13 of the Industrial Relations Act, 1969 that he was in a poor mental state and that both his GP and his employer were aware of this, that he was bullied by the Head Chef and Restaurant Manager and was treated in a less favourable way in comparison the rest of the employees and the matter was handled flawed process. It was agreed that the contents of the S13 complaint where largely the same as the S77 complaint and it was explained to the Complainant the Adjudication Officer powers in relation to each Act and the Complainant confirmed that they were happy to withdraw their complaint under the 1969 act.

The Complainant has referred a complaint of discrimination under s 77 of the Employment Equality Act, 1998 that he has been discriminated against by the Respondent on the grounds of Gender with the most recent date of discrimination being the 08/07/2024. The basis for this referral is he was treated differently compared to a co-worker in relation to a disciplinary process. That the process was deeply flawed where he had sought statements of witnesses and their evidence against him when he was invited to a formal investigatory meeting by DDHR on the 8th of July. This was to investigate several matters including ignoring staff concerns, impermissible behaviour, rudeness, absence and refusing to take instructions.

The Complainant set out in oral evidence that other staff who had misbehaved had not had the same treatment as him and he cited an example, but no other evidence than his oral testimony. He also set out the matter was escalated too quickly, and he felt he was poorly treated in that regard.

In cross examining AD, the Complainant asked why the issue was escalated and why other staff members had not received the same treatment regarding the use of alcohol at work. AD set out that they felt intimidated and that the matter could not be dealt with in an open kitchen and that he and others were following the advice of DDHR.  The Complainant set out that it could have been done in the office. On the issue of the use of alcohol it was put to the hearing that incident was dealt with as appropriate to the circumstances of that case.

The Complainant summed up his case in that he was discriminated against on the grounds of Gender, that other female staff were treated differently and more sympathetically than him on that basis because they were female.

The Respondent set out that they were not able to make a written submission, having only the Complaint form to go on.

The Respondent rejected the assertion of discrimination set out that incidents had occurred, and complaints received from younger staff members as to how they were treated by the Complainant. These complaints had to be taken seriously and that there was an obligation to do so. On setting out the investigation of the matters the Complainant resigned their post and their efforts to fulfil the investigation was frustrated with that resignation. The Respondent rejected the claim of discrimination and pointed out that the issues referred to of other female staff were dealt with appropriately in the circumstances of those cases.

The Respondent was anxious to point out that they had had ten years relationship with the Complainant that was a very happy one and that they had supported the Complainant through health issues. However, in recent times his behaviour and attitude had become difficult culminating in complaints from junior staff that the Respondent had to take seriously and investigate.

It was with regret that the Complainant had submitted their resignation before this could be concluded. They had always set out to assist the Complainant in relation to his mental health and allowed him additional time off whenever he requested leave at short notice; if possible. However, the complaints set out were upsetting for them all where they strived to have an inclusive and welcoming work environment and had to consider the impact on younger staff members and their right a safe workplace.

The Respondent summed up that there was no discrimination at play and that their efforts to investigate the matter were frustrated.

Anonymisation

I have taken it upon myself to anonymise this decision given the details concerned as they relate to younger staff and issues around the health of the Complainant and another staff member.

The Complainant sets out that that they have been discriminated against on the grounds of Gender, in that, they found themselves being investigated for actions and complaint in circumstances where other female staff who have erred where not treated the same way in the same circumstances. I explained to the Complainant that he would need to demonstrate a comparator, and he named a colleague who had appeared to be intoxicated at work and who was not, to his knowledge, investigated and disciplined.

The Employment Equality Act 1998 (as amended)

S6.” Discrimination for the purposes of this Act

(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

(2)  As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a)  that one is a woman and the other is a man (in this Act referred to as “the gender ground”),”

Burden of Proof

Section 6(1) of the Act clearly sets out that for discrimination under this Act to occur it must be on one of the nine grounds set out in subsection (2) and in the within case at (a), the gender ground.

Section 85A (1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

“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.”

The Labour Court, in its determination in Southern Health Board v Mitchell [2001] ELR 201considered the extent of the evidential burden imposed on a Complainant by s85A and held:

“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.”

Therefore, a complainant must establish both the primary facts upon which they rely and that those facts are of sufficient significance to raise an inference of discrimination.

In Cork City Council v McCarthy EDA 21/2008, the Labour Court stated in this regard:

“The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated.

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

In the present case the Complainant has not produced any witnesses, nor established a suitable and convincing comparator. The reference to another kitchen staff member who was intoxicated was put forth, but these circumstances do not appear, on the face of the limited evidence presented to the Adjudicator, as being a suitable comparator. The Complainant is speculating on the management of that issue and has produced no evidence to substantiate to even a minor degree.

The circumstances of the purported investigation in the present case related to complaints of a serious nature from junior employees whose rights would appear to have been infringed. It is a prudent employer who takes such complaints seriously and sees through an investigation to properly establish the facts. Such an investigation is not only to vindicate the rights of the junior employees, but also to vindicate the good name of the accused person; and to put in place, if appropriate, measures to prevent further incidents.

In the comparator named by the Complainant on the request of the hearing as to the circumstances that made them a comparator; the facts and circumstances appear quite different and the Respondent set out that there was an intervention in that case, as there should be. However, the description of that incident was one where the rights of others appeared to be untouched and, possibly, a matter of disability, although this was not expanded upon.

It is unfortunate that the Complainant did not cooperate with the Respondent investigation and instead resigned their post. Such an investigation could possibly have vindicated him of the wrongdoing complained of, though I note his apology and explanation to DM and HM on the 24th of July relative to one incident and completely denying another.

Regarding the process complained of it is reasonable to take that view following Boyle v An Post [2015] IEHC 58 that the process requires fair procedures not perfect procedures, and the law does not demand the impossible. It is probable that the issues on the process could have been corrected if raised and the investigation had been seen to the end by the Complainant.

As set out in Southern Health Board v Mitchell, the Complainant has not established facts from which a presumption of equal treatment has not been applied to him on the balance of probabilities. As such, they are not of sufficient significance to raise a presumption of discrimination that the onus of proof shifts to the respondent.

I cannot conclude that under s6(2)(a) that he has been discriminated on the grounds of gender and there is no case made for a link between his gender and the treatment complained of versus that of his female colleague. For this reason, I cannot uphold the Complainant case.

Having regard to all the written and oral evidence submitted in relation to this matter, my decision is that the complaint is not well founded

Gender, disciplinary processes, dignity,