Complainant

Respondent

Parties

Qhawe Magongo

Travglen ltd. (amended on consent at hearing)

Representatives

Appeared In Person

John Colthurst BL instructed by Frank Nyhan and Associates

Act

Complaint Reference No.

Date of Receipt

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

CA-00070701-001

09/04/2025

On 9 April 2025, the Complainant a Swazi national and lay litigant submitted a complaint of Discrimination against his former employer.

In his introductory narrative, the Complainant sought an investigation of his:

1 unfair dismissal

2 Discrimination based on personal circumstances and possibly race.

3 Violation of fair procedures under Irish employment law.

Both Parties filed outline statements.

The Respondent rejected the claims made .

On December 1, 2025, I wrote to both Parties and sought additional details to prepare for hearing :

I am the Adjudicator to be assigned to hear about this case on 5 December next. To assist in my investigation, I would be grateful if I could obtain the following documents from the parties, please in advance of hearing.

1 contract of Employment

2 applications for the position of Crew Member

 3 Record of Probation and who undertook the probation.

 4 Parts of the standard WRC complaint form have been omitted. I will require details of the grounds of Discrimination relied on by the Complainant and an identifiable comparator.

 5 Outcome of the Appeal Lodged.

 6 The correct Legal entity for the Respondent.

7 Two Pay slips, to help me ascertain hours worked at the employment by the complainant.

 8 Employment Equality Policy

9 Record of Induction undertaken by the Complainant.

 I also require a written submission from the Respondent replying to the complainants outline submission.

 Please attach any relevant documentation as I will be unable to accept any documentation at hearing.

All of the above documents are necessary and in keeping with WRC guidelines on hearings. I would be grateful if both parties would consult the WRC guidelines for Adjudications under the Employment Equality Acts. Thank you. I look forward to meeting both Parties at hearing.

The Parties were not in agreement on the duration of employment. The complainant introduced his case as having tenure from 23 September 2024 to 29 November 2024. The Respondent alluded to an earlier start date of 3 September 2024 which was later clarified as the date the complainant accepted the offer of his position and final payment issued on 5 December 2024.

At the outset of the hearing, I sought to obtain clarity on the complainant’s comparator. He told me that the comparator was a friend, whose name he had forgotten. He was unable to specify a ground he wished to base his complaint of Discrimination on.

The Complainant, Mr. Magongo, took the oath to accompany his evidence.

Mr. Kelly, for the respondent took the affirmation to accompany his evidence.

I requested the complainant produce his work permit as I had concerns at the number of hours worked per week recorded on his complaint form which were at variance with the scope of the student visa .

He did not submit a copy of his stamp 2 visa, as requested but furnished a generic statement by his Course Director on a “whom it concerns basis” 11 September 2024.

This statement sets out the rules of employment for a student visa, (stamp 2) but did not carry a work permit. The letter was not prepared for the purpose of my investigation.

The Respondent agreed to amend the legal title from Mc Donalds, cited on the complaint form to Travglen Ltd at hearing on consent.

One Respondent witness, Mr. Makarah,the line manager  was unavailable to the hearing through annual leave.

I requested the Respondent produce a recent Staff Relations Audit, which was shared with the complainant.

I also requested that the Complainant give some time to reflect on the cases referred to by Mr. Colthurst. He made a supplementary response post hearing but did  not address the cases as requested.

The Complainant submitted a narrative of his complaint to the WRC dated 9 April 2025

“I am writing to formally submit a complaint regarding discrimination, unfair treatment and a wrongful dismissal I experienced during my probation at Mc Donalds under employment number, supplied “.

The Complainant in introducing his claims outlined that he had trained for and accomplished the role of fully certified crew member with the respondent.

The Complainant disputed that he had commenced work on 3 September 2024. He outlined that he had responded to a training schedule emailed to him on 19 September 2024, which placed his commencement date as 23 September 2024. He contended that the respondent had manipulated this detail.

It was the complainants’ case that he had permission to work on a stamp 2 visa, which permitted him to work 20 hrs per week. He undertook to submit his work permit post hearing.

The Complainant described an interpersonal conflict with his General Manager in or around 29 November 2024. He was not scheduled for further shifts and was overtaken by a probationary review. He observed this was a retaliatory action which deprived him of

“Correct probation timeline “

His letter of termination was dated 12 December 2024,

 “Well before a full 3-month period had elapsed “

1 His need to self-medicate an illness at home was wrongly described by the respondent.

2 The letter of dismissal was prepared prior to the “so called probationary review on 3 December 2024 “and constituted a clear breach of fair procedures and natural justice.

3 On 29 November 2024, the complainant heard that his daughter had been involved in a serious care accident in South Africa. He outlined feeling totally unsupported by his employer on that day.

4 The Complainant contended that his career had been damaged by the time spent with the respondent. He was disappointed she had turned down various opportunities, thinking the respondent employment would advance his career.

The Complainant did not avail of the opportunity to submit a written chronological submission in support of his case.

He did submit an overall summary of his observations that unnamed white and Asian colleagues, who had engaged in more serious mistakes than his had not been subjected to “probation perils, disciplinary actions “and were permitted to remain in employment.

He outlined that he believed they were given a fairer chance in terms of training, guidance and patience than he was.

Evidence of the Complainant

The Complainant outlined that he had worked casually prior to securing the position of Crew Member with the respondent. He objected to his probation being used as a mechanism to discriminate against him.

On 29 November 2024 between the hours of 2.30 pm to 5.30 pm, he learned that his daughter had been involved in a car crash.

He started work at 6pm, which normally involved him working the grill area, normally manned by two workers.

On this particular evening, two trays were required and the Manager, Mr A, line manager approached him and yelled

“Why are you not cleaning the grill? “

He tried to diffuse the situation by calmly calling him out on yelling but ended up having a disagreement and was sent home at 7 pm. He was unclear whether he had been paid to end of his shift expected to be 1.30 am.

What followed was an invitation for him to participate at a probation review, which needed to be rescheduled due to his course commitments. He inquired if he needed to bring anyone with him?

At the review, he was referred to a form and tested on questions such as

1 was I friendly with staff?

2 had I met customer service?

3 The Respondent claimed that he had left work at some point without permission, no date provided. The Complainant denied he had left work.

Cumulatively this caused him to fail his probation.

He refused to sign the form when requested and requested a letter from the Respondent.

He challenged his treatment by asking “Is this because I am African and Black?”

Mr A told him that he had not discriminated against him, that he himself was Bangladeshi.

Mr Magongo replied telling Mr A, this was irrelevant and constituted Discrimination.

He left the premises and sought advice from his family who had a legal background. He was concerned as he had given up two job opportunities in favour of this job.

He sought to appeal the decision, which was to take place by phone due to tensions in the workplace

The Complainant was unable to provide details of his chosen comparator as he had forgotten the names of the staff.

The Complainant submitted that the law on Discrimination had changed since 1920 and it was now codified. It was wrong that probation had been used to discriminate against him.

The complainant clarified that he had not made a complaint of racism within his period of employment. He recalled working with a lot of different staff of different nationalities. His shift was 6pm to 2 am. There was a high turn over of staff and a lot of arguments.

He knew the correct procedures for operating the grill but had been deemed not to meet the expectation for cleaning the grill.

He had been replaced on the grill by an Asian guy and moved to the fry area which he contended constituted a demeaning demotion.

When requested what would resolve the dispute, he replied that he is looking for justice, as he had sustained a period of unemployment. He described a disappointing experience but did not expand on linking the events he complained of to his race.

During cross examination, Mr Colthurst asked the complainant why he had accepted work with the respondent, who welcomed diversity and inclusion?

He had previously washed dishes at a Chinese restaurant.

The Complainant acknowledged that they were aware of his race when he interviewed for the position. This was the first contract offered to him after a year spent looking.

He acknowledged that the Respondent operated a Speaking Up Policy, he completed the staff satisfaction surveys every week.

He dismissed as ridiculous that he was being evaluated on “speaking to customers “as “I was not facing customers “

He refused to sign the probation form as “It was not authentic and a sham “He replied that he had not been heard at the business and had told his manager that he didn’t agree with his findings concerning his performance.

He said he was told:

“It does not matter if you sign or not, the decision is already made “

In answer to duration of probation, he accepted that it was 6 months duration and capable of termination on one weeks’ notice.

Mr Colthurst put to the complainant that the Respondent hosted a workforce who together spoke 12 official languages. He had not mentioned the respondent being “anti-black in his appeal letter “

The Complainant accepted that.

He described believing he was a slave during probation and disputed Counsels contention that “This was all down to performance “

As Mr Colthurst sought details on a comparator, the complainant made reference to an Irish Nigerian employee, but this remarked was hearsay by Counsel, who in turn stated that the complainant focussing of his being a black person without linking this to unfavourable treatment

 “Was not enough “.

The complainant maintained that he had not been presented with the true reason for dismissal and that the verdict was trumped up against him and his termination pre-determined.

He expressed a clear dissatisfaction at how the probation marking was presented to him.

He accepted that Mr A, the line manager was of Sri Lankan origin and not a native of Bangladesh.

In response to a number of clarifications, the complainant told the hearing that he couldn’t recall who trained him or what nationality that person was. He was unaware if he was paid for the incomplete shift on November 29, 2024.He was unable to identify the names of co workers referred to as west African, Irish and Nigerian.

He was not provided with documentation around probation and 11 December 2024 was the sole probation interaction. He had no recollection of the duration of any meetings he had with his management team. He had not requested an extension on his probation period.

He had filled in the staff survey on an anonymous basis and had not raised a grievance during his tenure. He was unaware of why he had waited until April 2025 to make his complaint to the WRC.

He outlined that Zulu was his first language and had wanted to make a complaint regarding workers reverting to their own language at work. He went on to observe that he was a black African which distinguished him from Europeans.

He said there was no point following up on his appeal as he had sent in letters of appeal and no notice had been taken of them.

He understood that his line manager held an authority to terminate employment. He did not experience any problems availing of annual leave or break times. He disputed receiving public holiday payment.

I inquired if any colleague had commenced with him? Mr Mofongo replied that he had started with Spanish Italian and Nigerian nationals and the Nigerian person left after he did.

In his final conclusions, thee complainant submitted that he believed he had been racially discriminated against “after a lot of inconsistencies “within his probation which distorted his performance. He maintained that he had been singled out for less favourable treatment and this could not be cured on appeal as it would not have “lead anywhere “.

The complainant did not respond to the invitation to respond to Counsel for he Respondent opened caselaw at hearing.

The Complainant did not submit his Stamp 2 visa as requested.

The Respondent operates a number of fast-food businesses as local franchises within the Hospitality Industry and has disputed the Complainants claims of Discrimination linked to his dismissal or for his opposing discrimination.

Counsel for the Respondent, Mr Colthurst raised the issued in his written submissions that the complainant had neglected to identify a discriminatory ground

“The Complainant does not specifically identify a discriminatory ground. The Respondent infers from hi complaint statement that the complainant grounds the compliant upon the race ground, in so far as he requests redress for discrimination (based on personal circumstances and possibly race)

The Complainant does not identify a comparator. The Complainant does not identify any particulars of alleged discrimination on his complaint statement. The Complainant raises alternative complaints alleging unfair dismissal and violation of fair procedures under Irish employment law. No written submission on the part of the complainant has been received by the Respondent “

Counsel outlined that the complainant was employed as a Crew member subject to a probationary clause shared by particulars of employment in advance of his commencement date. This was augmented by a probation policy within the staff handbook provided.

The Respondent provided induction and training to the complainant. The Respondent identified some cause for concern in the complainant’s participation in food safety regime.

Efforts were made to address these concerns with the complainant, but he was not receptive to feedback or suggestions for coaching or instruction.

By means of probation review 1 December 2024, the complainant achieved a low level of satisfaction rating at 4/15 of the targeted measurement.

Issues of concern were managerial respect, grill cleaning, food safety, non-adherence to training and the complainant refused to sign the review. He took issue with being requested to clock out “before he got “

On 3 December 2024, the Respondent hosted a final probation meeting, where the complainant was deemed to have failed probation and his employment was terminated, effective 18 December 2024.

The Respondent provided an appeal mechanism, which the complainant exercised by letters/ email on 12 and 13 December 2024, but did not engage in. The format of the appeal centred on a plan to investigate the facts with an option of re-instatement.

Mr Kelly, charged with scheduling the appeal reached out by phone to the complainant repeatedly without making contact with Mr Mogongo across December 2024 and January 2025. The Complainant denied receiving any calls and resubmitted his number. Once more, Mr Kelly contacted the number “again without answer “in April 2025.

The Complainant made his complaint to WRC one week later.

The Respondent hosts a diverse workforce, where 60 % of employees were born outside Ireland. An external audit had found the company diversity and inclusion complaint

The Respondent had never received an allegation of discrimination on race ground and has come to defend the claim by countering this was a failed probation which terminated in dismissal. This action was justified and permitted within company procedures and policies and not tainted by Discrimination.

The Respondent identified shortcomings in the complainant’s performance and denied

“Any allegations or imputation of any other factor or motivation “

Cases cited and relied on by the Respondent:

Yessica Gibson and Q Café ADJ  53285, 2025

Daniela Krause and Zick Technologies ltd ADJ 50336, 2025.

Dónal O Donovan and Over -C Technology ltd [2021] IECA 37

Nevilles Hotels and Vanessa Corral Fernandez EDA 2424, July 2024

Hosford and Dept of Employment Affairs and Social Protection [2021] IECA 335.

Moore hall Disability Services and Marian Jaroslaw Nowak PDD 242, 2024.

Evidence of Mr Graham Kelly, Human Resource Manager:

Mr Kelly is the overarching Human Resource Manager over 6 restaurants and 460 employees across a varied nationality base, many of whom work within the parameters of Stamp 2, Permission to work in Ireland. He did not have a breakdown of nationalities.

He submitted that the respondent strives for safety and equality and his email is open access at the business.

He outlined the conflict resolution mechanisms available the business.

He gave an account of the hiring process, where the same questions are asked of all applicants and focus is placed on previous work experience. Interviews were held in person.

Once hired, the candidate is welcomes placed on probation and equipped with the staff handbook complete with a “Speak up “Policy. The Respondent operates a month’s training programme with a buddy system. Competence verification followed.

The Company also operates an employee collaboration exercise on levels of satisfaction at the business. This is audited and the business scored 92% on diversity and inclusion

Mr Kelly explained that the phone calls to explore scheduling the appeal were the preferred method of communication given the residual level of tension in the workplace.

 The Appeal would have had been run independently.

During cross examination, Mr Kelly was challenged to address the complainant’s attendance record on lates. He relied the complainant had been late on three dates in November 2024, 7, 17 and 28th November. November 7 was 2.32 pm attendance rather than 2 pm. November 17 was 14.41 hrs rather than 2.30 pm, November 28 was 18.11hrs rather than 3.30pm.

In response to the complainant’s request for clarity, he replied that he had not used the correct procedure to clean the grill, he had used bad language and was aggressive.

“Managers reported you as aggressive “

Mr Kelly accepted that the complainant was two months into his employment rather than 3 months. He confirmed that there were two appeal letters of 11 and 12 December 2024.

In summing up:  

Mr Colthurst examined the provisions of Section 85 A on the burden of proof in relation to proceedings on Discrimination.

The Complainant had not satisfied the necessary evidential burden of proof   Southern Health Board and Dr Teresa Mitchell, [2001] 12 ELR, Melbury Developments and Valpeters, [2010] ELR 64 as he had not established facts of sufficient significance so as to reach that burden. His evidence was speculative and could not be elevated to a finding of inferences of Discrimination.

Mr Magongo had been vague on the grounds he had relied on. He had not listed race, just “possibly race “

A complainant is expected to select their chosen comparator rather than rely on a hypothetical version.

In reference to the extensive case law opened at hearing. Mr Colthurst took some time to explore Costello J   in O’Donovan at para 49, application for an injunction.

“During a period of probation, both parties are and must be free to terminate the contract of employment for no reason, or simply because one party forms the view that the intended employment is, for whatever reason, not something with which they wish to continue. Neither party can hold the other to the continuation of the employment against the wishes of the other. I do not accept that a court can imply a right to fair procedures , still less  uphold a cause of action for the breach of such an alleged right , in relation to the assessment of an employees performance by an employer ( other than for misconduct , which does not arise here ) during the probationary period , as this would negate the whole purpose of the probationary period “

In Neville hotels, at the Labour Court, allowing time for a lay litigant of Spanish nationality time to reflect on the need to prepare to address issues of comparator and cognisable period. The Labour Court held that while the complainant’s employment was terminated through unsuccessful probation,

“However, the complainant has failed to identify a comparator and to link the dismissal to the ground of race. On that basis, her complaint must fail.,

Counsel opened this case as an analogous case to the instant case.

The Respondent concluded that the complainant was surrounded by opportunities to raise a concern about his race during his tenure, through either an informal grievance, the audits which he completed anonymously or through the Speak Up Policy, visible in the staff handbook.

He did not availof the channels available to him.

In conclusion, the Respondent did not discriminate against him but acted on the concerns of the complainants’ managers and ceased probation due to valid concerns regarding his performance. It is permitted to end an employment through unsuccessful probation, and the respondent did not discriminate against him on race grounds or at all.

I have been requested to reach a decision on Mr Mogongo, the complainants claim that he was dismissed for a discriminatory reason or that he opposed discrimination.

In reaching my decision, I have listened carefully as both cases were opened at hearing. I have read the supporting documents.

I have also given some thought to my request for post hearing documentation. I will return to this.

Permission to Work:

The complainant had introduced his nationality as Swazi on his complaint form. He had outlined that he held a Stamp 2 Visa with permission to work a cyclical 20 hrs per week in term time or 40 hrs in non-term time. He placed a record of 85 hrs worked per fortnight on his complaint form.

In light of the Labour Court and Higher Courts guidance on the need to match a permission to work with a legal contract of employment.

I requested to review the work permit, which the Complainant agreed to forward.

1 Hussein v the Labour Court [2015] IESC 58

2 TA Hotels ltd, Lynam Hotel and Khoosye TED 189

3 Blackrock Leisure and AM Nulty PWD 1923

The Complainant did not send the permit and instead attached a generic statement of entitlement to work by his educational body, rather than a copy of his Stamp 2 visa.

I returned to the documents submitted by the Complainant to the respondent to support his employment.

On 3rd September 2024, the complainant was requested to produce a copy of his passport for onboarding.

I can see that he forwarded a 72 Kb document “My GCD International Office (3). Pdf “plus a residential permit on 6 September 2024.

 In light of the Respondent Policy in chapter 14 of the handbook, I must conclude that the Complainant was employed for an eight-week period on a legal contract and can now pursue my investigation.

It would have assisted me if the complainant had forwarded his work permit to the WRC.

The Complaint:

The Complainant has submitted that his dismissal was constructed on racism against him as a Black African male.

He pointed to a number of perceived inconsistencies in how he was treated in terms of

1 mistaking his start day

2 Not engaging in the active management of Probation prior to 11 December 2024

3 Allowing other nationalities to speak their native language at work.

4 Linking his termination to his colour alone.

5 Aggression directed towards him on 29 November in the face of his seeking to diffuse the situation

6 He was confronted with a wholly unjustified performance appraisal on 3 December 2024, which he refused to sign after which he was  not rostered .

The Complainant acknowledged that he had not raised a grievance or complaint of discrimination during his tenure.

He acknowledged that he had lodged an appeal of his dismissal and thank ed the respondent for placing a stay on removing his details from their file but did not engage in this appeal as he contended that he had not been contacted to arrange the appeal.

The phone number on the respondent file matched the number offered by the complainant on his WRC complaint form. This number was restated by the complainant on 2 April 2025, prior to his complaint to the WRC.

The Respondents came to the case and disputed the claims made and were very hurt by these claims which they contend were unwarranted.

The Respondent cast the scene for the circumstances of this case as an unsuccessful probation, where the employment relationship had not thrived and was hampered by variations in how the complainant managed his behaviour and attitude to his work. He was deemed not to be a “fit “for continued employment and this was explained to him.

The letter of offer reflected an employment, at will.

“This means that either party to the employment relationship may terminate the relationship at any time for any reason or without cause or prior notice “

The Respondent submitted that they terminated the complainant in accordance with their policy on probation which was fluid on time limits but fixed on finding optimal performance during probation.

I accept that having an X in the length of probation section was an omission in the contract of employment.

The Complainant has submitted that the Respondent cannot rebut the inference of discrimination in the absence of witnesses at hearing.

Crew Member Probationary Review

I realise that I did not have the author of the Review dated 1 December 2024 at hearing.

I noted that the review lacked any input from the complainant. There was room for agreement and dissent, yet neither was populated by him.

I found three positive endorsements recorded on appearance, sensitive to customer needs and positive body language in eye contact and smile.

I found a heavy record of negative marks in politeness, honesty, integrity, treatment of food, punctuality, efficiency, working shifts as scheduled, enthusiasm, desire to work there, collegiality, always does their best and accepts feedback positively.

This was augmented by a delineation on of opportunities for development/ training required

Managerial respect

Cleaning grill

Food safety

Adherence to training

It ended with a record of the complainant’s refusal to sign, and a reflected admonishment directed at the Manager when he was requested to clock out before leaving the premises.

This is the first record I have of a difference of opinions between the complainant and his managers.

I can appreciate that giving and receiving feedback in a probationary context is a challenging aspect of an employment. It goes to the heart of this case.

The Complainant told me that he filled in the staff surveys every week on an anonymous basis. He accepted that he received the handbook which contained a myriad of enabling policies and procedures and specifically the Speak Up Policy. I must conclude that he was familiar with tools to assist him in difficulty at work.

In the course of my investigation, I considered the work culture at the business and was satisfied that the complainants agreed terms and conditions were met, except for some doubt on public holidays.

I found the complainant very vague on these details. I did note that he rescheduled the probation meeting as he had exams that week of the academic year due to this commitment .

Section 6 of the Act describes discrimination as:

Discrimination for the purposes of this Act.

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

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

………

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

Margetts v Graham Anthony and Co ltd DEC-E2002-050 /EDA 038

This was a case where the Equality Tribunal and the Labour Court found that being offered a part time over a full-time position based on objective rational of absence from the workplace did not constitute a discriminatory practice and the complainant was denied access to the required burden of proof. It required more than membership of a protected ground to infer Discrimination.

The Court is satisfied that the contentions advanced by the complainant to support her claim of discrimination are not sufficient in themselves to establish a prima facie case and therefore switch the burden of proof to the respondent. The Court is satisfied that no evidence was presented to substantiate the allegation that the company had treated the complainant less favourable due to her marital status, her family status or her age. Since the complainant has failed to establish a prima facie case of discrimination her claim must fail.

Section 8 of the Act precludes Discrimination in the workplace.

The Complainant submitted a narrative on his complaint form which appears to have erased the typical section on identifying a ground of discrimination and the obligatory chosen comparator. I appreciate that the complainant is not curtailed by his narrative, but I must be certain that the meaning of the case at hearing is not unduly altered.

The Employment Equality Act 1998, from where my jurisdiction in this case lies, has no remedy for wrongful dismissal and the complainant did not make a claim under the unfair dismissals Act.

The Complainant sought “Appropriate redress of formal investigation, re-instatement or compensation an apology for the discriminatory and unjust treatment I have endured “

He told the hearing he received advice in making this complaint from a family member versed in law in the UK. It was open to the complainant to bring this family member to hearing to support him. They would have been welcomed.

I accept that the Complainant is a member of the black African race and is recognised in Section 6 (2) (h) of the Act.

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

This crystallises the need for a concrete comparator for me to gauge that the complainant was treated differently than another because of his nationality.

This brings me to the burden of proof in this case at Section 85 A of the Act.

Burden of proof.

85A.— (1) Where in any proceeding’s 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section "discrimination" includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

This constitutes the first hurdle for the complainant in this case.

Let the Parties note the Labour Court early findings in Campbell Catering ltd v Rasaq [2004] ELR 210, which addressed the importance of a worker of different nationality being provided with special accommodation and guidelines in the context of disciplinary procedures.

While there were no disciplinary procedures adopted in this case, I must remark on the extraordinary depth of the respondent staff handbook presented at he is beginning of the on boarding process. This booklet contained a veritable Aladdins case of navigational tools for anything that arose at work. Most important, it includes identifiable courses of action for harassment, bullying, discrimination and interpersonal conflict.

While the Respondent has sent in details of the external staff audit, let the parties note that this is reflected on a 2025 activity, which postdates the complainants’ departure from the business.

Both parties accept that the complainant did not trigger any semblance of dissent upwards until he received his notice of termination on one weeks’ notice on December 11, 2024.

He has now told the hearing that there was a lot wrong within his 8 weeks and that he believed he was unfairly treated as an African black man in comparison to Indian workers. He has not provided me with detail of these assertions to help me apply the matrix of the balance of probability to the facts.

In chasing the burden of proof in this case, I listened carefully to the complainant evidence of how he believed that he had been singled out because he was black and terminated.

My mind moved to the Labour Court in Melbury Developments ltd and Valpeters [2010] ELR 64

This requires that the complainant must first establish facts from which discrimination can be inferred. While those facts 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 speculations or assertions unsupported by evidence cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85 A places the burden of establishing the primary facts fairly and squarely on the com0plaunant and the language of that provision admits of no exceptions to that evidential rule.

In the instant case, the complainant had no recollection of names of colleagues whom he worked with. He did not know who trained him or who the colleagues were who were permitted to speak in their native tongue and allowed to have their errors and omissions absorbed without penalty, while he was terminated.

For me, I was drawn to the complainant’s response to my invitation for his response to the case law relied on by the respondent both at hearing and post hearing.

He dismissed the relevance of the cases as “they do not address the central issue in my complaint “

He said he experienced anti-black racism,” which operates differently from interpersonal or national based discrimination “

I heard the complainant be highly critical of the Indian race . I formed the opinion that he carried a distinct unease about this race complete with caste system. This clearly predated his arrival to Ireland as he spoke so passionately about it in history and time alongside his post hearing commentary .

 In my opinion, the complainants’ reservations manifested in the interpersonal contact with his manager, who he understood was a Bangladesh native rather than a Sri Lankan national. He took issue in being asked to do a lesser duty than grill. He had the gravest of difficulties receiving feedback from his perceived Indian Manager and abandoned the process without engagement or official record of dissent.

I believe he did himself a disservice at that point as he ought to have marked a real time disagreement to the central document in this case, the probation review.

The Complainant had not specified a ground for his claim of discrimination until the hearing proceeded. He had not raised it in his letters of appeal. I cannot accept his evidence on the reasons offered for not participating in the appeal and I found his evidence implausible and unconvincing on this point. I am not persuaded that he tried to engage in his own appeal, preferring to come straight to the WRC.

I accept that he opened his case as being discriminated against on grounds of race.

However, despite my best efforts, I have been unable to get him to identify a comparator in this multi-cultural workforce against whom he believed he was treated differently as provided for in Section 6.

Instead, I have found sound evidence of the company identifying a problem with his work behaviour and attitude. In this, Mr Kelly was very plain. He had received reports of a problem with the complainant in behaviour and attitude. The Respondent concluded that the complainant had a difficulty receiving feedback on this and a decision was taken to cease probation.

I found it regrettable that the probation review report came as a surprise to the Complainant . The Respondent ought to have date stamped its commencement with him .

I cannot find a linkage to the complainant’s race being a causative factor for this termination. I cannot find a linkage to the complainants race as being a causative factor in any of his treatment in this employment. He has provided strong feelings of exclusion and a feeling of being treated differently but he has been very short on proofs.

Instead, I found that the complainant brought with him to this employment some historical reservations of the Indian race which caused him some distress when fault was found with his work by managers he perceived to be of Indian origin, later corrected as Sri Lankan.

I could see that this was a genuinely held belief by the complainant and he was distressed by it. However, on the evidence adduced, I cannot infer that discrimination occurred in this case or that it was a material factor in his probation being unsuccessful.

Strengthening intercultural cohesion horizontally and vertically may well be a consideration going forward for the Respondent.

I have concluded my investigation and find that the complainant has not provided a recognisable comparator necessary to assess less favourable treatment on grounds of race. Neville Hotels EDA 2424.

Neither has he provided facts from which I can infer that Discrimination on grounds of race occurred in this employment. Margetts applied.

Mr Mogongo has not satisfied the required burden of proof to establish a prima facie case of Discrimination.

The claims are not well founded.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have concluded my investigation and find that the complainant has not provided a recognisable comparator necessary to assess less favourable treatment on grounds of race. Neville Hotels EDA 2424.

Neither has he provided facts from which I can infer that Discrimination on grounds of race occurred in this employment. Margetts applied.

Mr Mogongo has not satisfied the required burden of proof to establish a prima facie case of Discrimination.

The claims are not well founded.

Dismissal During Probation linked to claim of discriminatory dismissal.