Complainant

Respondent

Parties

Purpose Ale

MGT Foods Ireland Limited

Representatives

Represented Himself

Peninsula Ireland

Act

Complaint Reference No.

Date of Receipt

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

CA-00073514-001

Withdrawn

16/07/2025

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

CA-00073514-002

16/07/2025

The respondent operates several franchise cafés and fast-food outlets.  The complainant was an undergraduate student in September 2021 when he commenced working as a team member in a café in Charlestown, Dublin 11.  He generally worked three or four days a week, and sometimes, five days, to cover for staff on holidays.  At the time of his resignation in February 2025, he had been promoted to the role of shift manager, referred to as a “shift runner,” on an hourly rate of €14.50. 

The complainant’s case is that he was discriminated against when he had to resign from his job because, after he started a new full-time job on January 6th 2025, he wasn’t allowed to work for the respondent for one shift a week from 7.00am until 4.00pm on Saturdays.  He claims that others who are not black and who had jobs apart from their work with the respondent are permitted to work one shift per week.  He also alleges that he was subjected to discriminatory treatment when he was subjected to racial harassment and verbal abuse.

In the submission he provided to the WRC in advance of the hearing, the complainant said that he worked for the respondent for over three years and that he had a clean disciplinary record.  He referred to incidents that occurred in 2023, which he didn’t complain about and which are outside the timeframe for an investigation as part of this complaint, which was submitted to the WRC on July 16th 2025.

In October 2024, the complainant submitted a grievance about the conduct of a colleague who replied with an expletive when he asked him to carry out certain tasks.  This colleague is the nephew of the operations director and the complainant claims that he behaved as if he was immune from discipline.  The complainant also complained about his manager referring to him as “my slave.”

The complainant’s grievance about the conduct of his colleague was upheld, and the colleague was disciplined.  However, although he was told that his complaint was upheld, he wasn’t told about the disciplinary sanction and, on the date of this hearing, he assumed that the colleague wasn’t disciplined.

With regard to the “my slave” comment, mediation was arranged, but the complainant was ill on the day of the planned meeting and he couldn’t attend.  This comment was repeated sometime in December 2024, when the complainant raised concerns about being expected to take on more responsibility compared to others.

In December 2024, the complainant was successful in his application for a permanent job in a media company.  This job required him to attend from Monday to Friday during business hours and he informed his manager, who, he said, agreed that he could work one shift on Saturdays.  Despite this, he said that he was rostered for shifts when he had to work in his new job.  He was marked as absent from his job in the respondent’s café.  In February 2025, he raised another grievance concerning what he regarded as unfair scheduling.  He claims that the “cumulative effect of racial harassment, failure to act on grievances, preferential treatment of other staff and retaliatory scheduling caused a complete breakdown of trust and confidence.”  He said that he didn’t want to resign, but he had no other option.

Evidence of the Complainant

In his evidence at the hearing, the complainant said that, on October 6th 2024, he made a complaint about a colleague, another shift runner, who replied with an expletive when the complainant asked him to move to a busier part of the café.  The complainant said that he sent a text message to an area manager, but his message was ignored.  He then sent a message to the store manager, who replied and told him that she would send an email to the HR department.  He said that this didn’t happen either and he believes that the reason is because the colleague is the nephew of one of the directors of the company.  The complainant said that he sent an email to the HR team himself.  The next day, the complainant said that he was working with this colleague again, and he was dismissive about the complainant’s communication to HR, saying, “what are they going to do about it?”  The complainant said that he felt that he wasn’t taken seriously.

The day before this incident, the complainant said that his colleague, whose shift was due to finish at 9.00pm, told him he was leaving at 8.00pm.  When the complainant told him he couldn’t leave before his shift ended, he said that the colleague replied, “we’ll see about that.”  For the remainder of his shift, the complainant said that his colleague did very little work and took a lot of smoking breaks, which are not permitted.

When he made his complaint on October 6th 2024 about the conduct of his colleague, the complainant said that he added in a grievance about his manager.  He said that the manager replied, “you’re my slave,” when he complained that he had too many responsibilities.  He complained also that the area manager ignored him in the workplace and “called him out” in the group chat, instead of speaking to him privately.

The complainant said that the company did a good job investigating the conduct of his colleague and his complaint was upheld.  During the investigation however, he said that he didn’t get any updates and afterwards, his colleague told him that no action had been taken.  However, the HR manager who wrote to the complainant on November 19th 2024 to confirm that his complaint was upheld, told him that corrective action had been taken with his colleague.

To address the conduct of the manager who referred to the complainant as a slave, the HR manager recommended that a mediation process be initiated.  A meeting was arranged with the area manager acting as mediator, but the complainant was absent due to illness on the day of the meeting and then he was on two weeks’ holidays.  After that, he said that “the problem died down” and he and his manager worked together on good terms.

On December 1st 2024, the complainant said that he was offered a full-time job with an international media company.  He didn’t want to give up his job with the respondent until he could see how he was getting on in his new job.  He said that he told his manager that he wanted to switch to a part-time job and that he was available on Saturdays to do the morning shift from 7.00am until 4.00pm.  He said that his manager didn’t object to this plan and, on December 23rd, she sent him a text message to confirm that, from Monday, January 6th 2025, he could only work on Saturdays.  Then, he said that he started to get scheduled on days other than Saturdays.  When he queried this, he said that he was told that he had to attend work according to the needs of the business.  He said that his manager was instructed by “higher ups” that he had to do the shifts he was offered.

The complainant referred to three colleagues who worked in other jobs while they worked for the respondent.  He described their arrangements as follows:

Colleague 1:  Worked Mondays, Tuesdays and Wednesdays

Colleague 2:  Worked on Friday evenings, Saturdays and sometimes on Sundays

Colleague 3:  Worked Thursdays, Fridays and Saturdays

Based on these arrangements, the complainant said that he asked for similar accommodation for his need to work full-time in a different job.  He said however, that he kept being marked as “absent” although he wasn’t absent, but available on Saturdays.  He said that his email explaining that he had a new job and that he was available only on Saturdays was ignored.  Around the same time, he said that the area manager referred to him as “a useless excuse of a shift runner.”  Once more, his manager referred to him as a slave.

The complainant said that he raised a grievance about his rostering.  In response, a HR co-ordinator told him that he couldn’t raise a grievance while he was absent.  He said that, on February 12th, he got a phone call from the head of HR, Ms Conway, who attended this hearing, and she told him that he would have to submit a medical certificate to confirm that he was fit to engage in the grievance process.

The complainant said that his manager in his new job advised him to resign, because his relationship with the respondent was affecting his performance.  He said that Ms Conway wrote to him and was empathetic.  She told him that she didn’t want him to leave in the circumstances that prevailed.  He said however, that he resigned on February 13th 2025.  He said, “I was scared to go back.  I couldn’t wrap my head around it.”

In his submissions for the hearing, the complainant included a copy of a witness statement of another colleague.  He said that this person was out of the country on the day of the hearing and was therefore unable to attend.  Following the decision of the Supreme Court in Zalewski v An Adjudication Officer and the Workplace Relations Commission & Others[1], an adjudication officer is considered to be engaged in the administration of justice and must adhere to the rules of evidence that apply in the ordinary courts.  As the witness was not available to give evidence on oath or affirmation, I have not taken account of his written statement.

Cross-examining of the Complainant

The complainant agreed with Mr Hegarty that, in response to the grievance he sent to the HR department on February 4th 2025, he got a reply on February 10th in which he was informed that the grievance was paused until he was well enough to attend a meeting.

On February 17th, in response to an email from Ms Conway about his decision to “step away” from the grievance process, the complainant wrote and explained the issues that led to his decision to resign:

1.      Hostile work environment and discrimination – repeated instances of discrimination, harassment and derogatory comments, including being referred to as a slave by his manager.  The lack of appropriate action to deal with his complaints.

2.      Retaliatory scheduling – being scheduled outside the hours for which he was available.  Being treated differently to others who had second jobs.

3.      Public insults and bullying – public humiliation by the area manager, including being referred to as a “useless excuse of a shift runner,” creating a toxic and humiliating work environment.  

Mr Hegarty asked the complainant if it was reasonable to ask the respondent to schedule him to work as a shift runner on just one day a week, and specifically on the early shift on Saturdays.  The complainant replied that, if he had been informed that it wasn’t possible, he could have accommodated that.  He agreed that he was offered the option of stepping down from the shift runner job and working on Saturdays as a team member.  He said that he wasn’t prepared to step down.  He said that he considers this to be unfair treatment because of his race.

Mr Hegarty suggested to the complainant that the company was willing to work with him and to offer him the hours that he wanted if he took the job as a team member.  He said that he felt that the dissatisfaction about his availability was expressed to HR because of his race.  He said that the three colleagues he referred to who had other jobs were sometimes allowed to work for eight hours a week.

The complainant agreed with Mr Hegarty that the manager who he complained about in October 2024 for referring to him as a slave, repeated this offensive insult on December 8th 2024.  He said that, initially, he dismissed it and then, he raised it when he was resigning.  He said that he believes that calling him a “useless excuse of a shift runner” was related to his race, because the area manager never referred to any other employee in those terms.

Evidence of the Head of Human Resources, Ms Linda Conway

Ms Conway said that she was informed by the HR coordinator that, on Tuesday, February 4th 2025, the complainant raised a grievance.  He complained about unfair scheduling and ongoing retaliation and a hostile work environment.  Ms Conway replied to say that his concerns were being taken seriously.  Ms Conway said that the complainant wasn’t at work on February 5th, 6th and 7th and he didn’t reply to phone calls or text messages.  He then sent a text message to say that he wasn’t feeling well mentally.  Ms Conway replied and told the complainant that the investigation of his complaints would be postponed until he was well enough, unless he wanted to submit a medical certificate to confirm that he was fit to engage in the grievance process.  After several emails back and forth, on February 12th, Ms Conway had a conversation over the telephone with the complainant.  During this conversation, the complainant told Ms Conway that he was resigning.  Ms Conway said that this wasn’t the company’s intention and that she wanted to investigate his concerns.  As he was only available on Saturdays, an option was for the complainant to remain with the company but to drop down to the role of team leader working only on Saturdays.  She said that this was unacceptable to the complainant and he confirmed that he was resigning.

On February 13th, Ms Conway wrote again and told the complainant that they were “in the middle of an ongoing grievance procedure” and he could “retract your resignation and/or continue your grievance.”

Ms Conway said that the company wanted to investigate the complainant’s concerns and they were willing to offer him a reasonable alternative to keep him at work.  She said that she explained that no other shift runner was working less than three shifts.  The complainant said that he wasn’t willing to be a team member and he resigned.            

Cross-examining of Ms Conway

The complainant asked Ms Conway about the requirement for shift runners to be available for seven days.  Ms Conway replied and said that their terms and conditions stated that they must be available for seven days.  The complainant referred to his three former colleagues, who, he said, only work for three days a week. 

At the close of her evidence, Ms Conway agreed with Mr Hegarty when he asked her if it’s fair to say that the complainant wasn’t accommodated with a new roster after he started in his new job, because he couldn’t work for three days a week.    

Evidence of the Officer Manager, Ms Anne Marie McVey

Ms McVey has been with the company for 28 years.  In October 2024, they were in the middle of recruiting a new HR manager when the HR coordinator in the Cork headquarters contacted her about the complainant’s grievance.  She and the HR coordinator had a meeting with the complainant over MS Teams.  She said that the crux of the complaint was about the complainant’s colleague using an expletive and walking away when he was asked to move to a particular shift in the café.  Ms McVey said that they also discussed the complainant’s report that his manager had referred to him as “my slave.”  Ms McVey said that the complainant agreed that this could be addressed through mediation.  An area manager was appointed to conduct the mediation session, but the complainant was absent due to illness on the day of the meeting.  Then he was on holidays for two weeks.  The mediation never took place after that.     

Cross-examining of Ms McVey

The complainant reminded Ms McVey that part of his grievance was about being ignored by an area manager.  Ms McVey said that that manager has left the company.  She said that the majority of his complaint was about the conduct of his colleague shift runner.

Evidence of the Operations Director, Ms Fiona Cooke

Ms Cooke said that the company’s policy is that shift runners, supervisors and managers must work a minimum of three shifts every week.  She agreed that a named person works only on Mondays, Tuesdays and Wednesdays, but she said that the company can recruit around this for cover over the weekend.

Cross-examining of Ms Cooke

Ms Cooke’s nephew is a shift runner in the business.  In reply to the complainant, she said that she is not aware of her nephew receiving any preferential treatment.  She said that the complainant’s complaint was upheld and that disciplinary action was taken.

The complainant said that two named managers agreed that, from January 2025, he could work just one shift on Saturdays.  He said that he only found out that this wasn’t possible after he started in his new job.  Ms Cooke replied that the business doesn’t operate with that arrangement and, while team members may work less shifts, shift runners are required to work a minimum of three shifts a week.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 

Did the Complainant Have to Resign?

It is the complainant’s case that his resignation amounts to a constructive discriminatory dismissal, meaning that he had to resign because of what he alleges was discriminatory treatment by the respondent.

While this is a complaint of discrimination on the race ground, contrary to s.6(2)(h) of the Employment Equality Act 1998, it is useful to consider the definition of dismissal at s.1 of the Unfair Dismissals Act 1977, which includes the concept of constructive dismissal:

[D]ismissal, in relation to an employee means -

the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract without giving prior notice of the termination to the employer…

Having listened to the complainant’s evidence, I am not satisfied that it was reasonable for him to resign and to claim that he had to do so because of the conduct of his employer.  It is apparent that he resigned after he completed his degree and he got a full-time job from Monday to Friday.  He said that he didn’t want to resign, and that he wanted to see how things went in his new job.  He said that his direct line manager agreed that he could work one shift in the café on Saturdays, but the HR manager told him that to be rostered for one shift only, he would have to drop down to being a team leader and he didn’t want to do that.

The complainant’s allegation that the area manager referred to him as “a useless excuse of a shift runner” was presented without any reference to the context in which this remark is alleged to have occurred and no date was given.  No witness was called by the complainant to corroborate the allegation.  If it occurred, it is certainly offensive and unacceptable, but, as it contains no racial overtone, I find that it was not discriminatory.

Reasonableness is at the crux of every termination, whether by an employer or an employee, and it is my view that it was not unreasonable for the respondent to ask the complainant to revert to being a team member rather than a shift runner, if he wanted to work just one shift a week.  In any event, this requirement is certainly not discriminatory and the complainant presented no evidence that a person who is not black was treated more favourably than him regarding this rostering arrangement.  I have concluded therefore, that, in relation to the respondent’s decision not to permit the complainant to continue in his role as a shift runner for one shift on Saturdays, no discrimination occurred.

Racist Remark

In October 2024, when he submitted a grievance about the conduct of a colleague, the complainant also complained that his manager referred to him as her slave.  He said that she made this remark when he complained that he had too many responsibilities.  The respondent treated both issues with some seriousness; the colleague received a disciplinary warning and mediation was arranged between the complainant and his manager.  On the day that the mediation was due to take place, the complainant was out sick and then he was on holidays for two weeks.  He said that he and his manager were on good terms after that and “the problem died down.”  It seems that the mediation fell off everyone’s radar, but, incredibly, the complainant said that the remark was repeated on December 8th 2024, around the time that he was looking for Saturday work only.

If, in October 2024, the complainant’s manager was requested to attend mediation arising from his allegation that she referred to him as her slave, it seems to me to be unlikely that she would make the same remark a short few weeks later in December.  Leaving my doubts about December aside, it was highly negligent of the respondent not to take any action when the complainant reported that his manager used this racially charged remark in response to his claim that he had too much responsibility.  I accept that the complainant was unavailable on the day that the mediation was arranged; however, the remark is highly offensive and demeaning and it should not have dropped off the agenda in the HR department until a formal apology was offered.

Having listened to the complainant’s evidence, it seems to me that he had a good relationship with his manager and he did not resign because of this remark.  I am satisfied that he resigned because of the respondent’s decision that he could not remain working on Saturdays only in the job of a shift runner, and that he would have to revert to his previous job as a team leader.  I find that no discrimination arises from this condition. 

On the basic facts, the complainant has not discharged the burden of proving that he was discriminated against because of his race.  I decide therefore that his complaint of discrimination is not well founded.

Discrimination on the race ground, constructive dismissal, resignation