Complainant

Respondent

Parties

Adrian Nilo  Carbonero Gomez

Evolve Eatery

Representatives

Peter Dunlea of Peninsula Business Services Ireland

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00073780-001

25/07/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00073780-003

25/07/2025

The Complainant worked for the Respondent café for approximately four months, from February 2025 until June 2025 when he was dismissed.

The stated reason for the Complainant’s dismissal was poor performance but the Complainant believes it is to do with his age and his Spanish nationality. He is younger than the other staff and he believes his Spanish nationality is related to his manner of communication which they complained about.

It is accepted by the Respondent that the Complainant was a good chef and was implementing changes in how the kitchen operated however a number of the Complainant’s colleagues complained about his manner and way of speaking to them. This was raised with him but ultimately things did not improve and they decided to dismiss the Complainant during his probation period.

The Complainant attended the hearing and gave evidence under oath with the assistance of an interpreter.

He was dismissed for poor performance even though the Respondent accepts he was good at his job. He believes he was targeted due to his nationality and age.

Mr Peter Dunlea made oral and written submissions on behalf of the Complainant.

Ms Paula Geraghty, the Respondent’s owner, gave evidence under oath. The Respondent is a very multicultural organisation with workers from many different backgrounds. The Complainant was employed with them for a relatively short period over which time his colleagues complained about him repeatedly. Ms Geraghty brought this up with the Complainant multiple times but he failed to improve and ultimately decided to fail his probation. His performance outside of his ability to work well with others was excellent.

Sections 6 and 8 of the EEA prohibit employers from discriminating against employees on the basis of gender. For the purposes of the complaint before me, the most relevant parts are:

“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,

[…]

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

[…]

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

[…]

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

The Respondent operates two cafés, one in Clondalkin and one in Kingswood. The Complainant was hired as a chef and was initially assigned to the Café in Clondalkin. In March he moved Kingswood where he and the other chef did not get on. This relationship deteriorated and the Complainant was assigned to only work in Clondalkin. Other employees decided that they did not want to work with him and complained both informally and formally. There was an informal resolution meeting with the Complainant, Ms Geraghty and a kitchen porter and supervisor. The other chef and another member of staff also complained formally. This is accepted by both the Complainant and Respondent.

It is also agreed that on the 19th of June he had a probation review meeting with Ms Geraghty who told him that the way he spoke to people was too direct, that his work was exceptional but his expectations of other people were too high. The Complainant was dismissed two days later when a further member of staff complained about a message the Complainant sent him which offended him. Ms Geraghty’s evidence was that the Complainant was not working out and she formed the view that he needed to go.

The Complainant’s evidence was that he generally felt bullied and excluded by his colleagues who complained about him. Mr Dunlea cross examined the Complainant on the issues he had with other staff members and established that on the Complainant’s own evidence those issues related to the Complainant being promoted over them and in the case of another colleague him taking offense to something the Complainant had messaged him. The Complainant asserts that the reasons behind these difficulties were his race and age but he accepts he has no evidence of this.

The Complainant does not allege that there was an older employee of a different nationality in probation for a similar role who was retained despite a series of complaints being made about them.

Section 85A of the EEA provides for that burden is placed on the Complainant to establish facts from which it may be presumed that there has been discrimination in relation to him.

Mr Dunlea has cited Southern Health Board v. Mitchell [2001] ELR 201 (the “Mitchell Case”), the Labour Court held:

“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.”

Mr Dunlea also highlights the Labour Court decision Melbury -v- Valpeters EDA/0917 which discusses the facts a complainant must establish to shift the burden of proof, stating:

“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”

With reference to the above cases, I agree with the Respondent that the Complainant has not established facts from which discrimination can be presumed.

I find that the complaint is not well founded.