Complainant

Respondent

Anonymised Parties

A Bartender/Waiter

A Bar

Representatives

Brian Long Brian Long Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00066152-003

20/09/2024

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

CA-00066152-004

20/09/2024

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

CA-00066152-005

20/09/2024

The Complainant was employed as a Bartender/ Waiter from 1st June 2024 until 20th July 2024.

The Complainant has a disability of autism, ADHD spectrum and Tourette syndrome.

He says he is owed a week’s notice following termination of his employment.

He complains of discrimination by the Respondent on the age and disability grounds contrary to S3 and S6 of the Employment Equality Acts 1998 in their failure to provide training, victimisation, failure to reasonably accommodate his disability and conditions of employment.

He says the owner was swearing, yelling, pointing fingers, rushing people to work in front of customers, making faces, and yelling for them to be served. The Complainant denies he was given two warnings. He says he was never reprimanded in anyway. This is the first time he has seen these documents.

He complains he was dismissed due to discrimination on 20th July 2024. He objected to being shouted at for no reason by the owner of the Bar and Head Chef. He says he was dismissed after standing up for himself not wanting to be yelled at for no reason after multiple occasions. He informed the owner of his medical conditions, but his behaviour did not change.

The Respondent says the Complainant does not have 13 weeks continuous service, so is not entitled to one week’s notice of dismissal and relies on Section 4 of the Minimum Notice and Terms of Employment Act, 1973. The Respondent says he was paid all entitlements following his dismissal.

The allegations of the Complainant preceding his dismissal are disputed. He was issued with two written warnings on 24th June 2024 and 8th July 2024 for failure to follow instruction, absence from his post, continual conflict with colleagues and failure to work allotted hours. The management confirm that the issues surrounding the Complainant’s dismissal are set out in the written warnings, and not as described by the Complainant.

The Complainant’s claim of discrimination due to his disability autism, ADHD and Tourette syndrome is vehemently disputed. At no time was the Respondent informed of the Complainant’s medical condition by way of medical certificate or disclosure at initial interview. Had he been so informed, the Respondent could have taken measures to do all that was reasonable to accommodate the Complainant providing special treatment or facilities. In any event, the dismissal of the Respondent was based solely on the issues as described in the written warnings and not related to a disability of which the Respondent was unaware. The Complainant was not treated less favourably than any other worker. He was remunerated in full on termination of his employment. He was not victimised and this is disputed.

The Respondent’s representative submitted the Complainant gave no evidence of discrimination in his evidence, and the Respondent was never informed of any disability. The Respondent relies on the decision of the Labour Court in Connaught Gold Co-operative Society v A Worker EDA0822.

I heard and considered carefully the evidence and submissions of the parties and witnesses.

CA-00066152-003

The Complainant complains that he was not given one week’s notice of termination. He was employed from 1st June 2024 to 20th July 2024. S4 of the Minimum Notice and Terms of Employment Act 1973 applies where service of the employee is less than thirteen weeks, no notice is required to be paid.

I find the complaint is not well founded.

CA-00066152-004 & CA-00066152-05

The Complainant alleges that he has been (i) discriminated against in terms of S6 (2) (f) and (g) of the Employment Equality Acts 1998-2021 on the grounds of disability and age, (ii) failure to provide training, (iii)victimisation, (iv) conditions of employment and (v) that the Respondent failed to afford reasonable accommodation for his disability pursuant to S16 of the Employment Equality Acts 1998-2021.

S6 of the Employment Equality Acts 1998-2021 state that discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned. The “age ground” is where individuals are of different ages. The “disability ground” is where one is a person with a disability and the other either is not or is a person with a different disability.

S16 of the Acts provides that a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as appropriate measures) being provided by the person’s employer. The employer shall take appropriate measures, where needed in a particular case to enable a person who has a disability-

(i)                  To have access to employment.

(ii)                To participate or advance in employment, or

(iii)               To undergo training,

unless the measures would impose a disproportionate burden on the employer

The burden of proof is set out in Section 85A (1) of the 1998-2021 Acts which provides:

“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.”

Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent.

The Complainant gave evidence of management unfairly criticising his performance and being yelled out on a dozen occasions. The bell had rung in the kitchen for an order two or three times. He usually tried to explain himself. On this occasion the Complainant responded calmly “I do not appreciate being yelled at”. He found this emotionally intense and was distracted. He walked away from the kitchen without taking his order as he was upset. He said it was an aggressive situation and there was mobbing. The following day he got a call from the owner who told him not to show up for work as he was not a good fit for the team.

He says he never saw the warnings previously, and did not sign these. He says no performance issues were raised and the dismissal was unlawful.

The allegations were denied by the owner in his evidence. He denied raising his voice and said he took the Complainant aside as his work was not up to standard. The owner said the Complainant was not working out as he was unable to take guidance. He mentioned an occasion when a bus tour was scheduled for scones and coffee, and there were delays. The customers were unhappy as they were behind schedule. The Respondent was unhappy with the Complainant’s language. The Respondent said its CCTV is deleted after 35 days and does not have audio.

The Respondent’s representative submitted the Complainant gave no evidence of discrimination in his evidence, and the Respondent was never informed of any disability. The Respondent relies on the decision of the Labour Court in Connaught Gold Co-operative Society v A Worker EDA0822.

The Labour Court in Southern Health Board v Mitchell [2001] ELR 201 considered the extent of the evidential burden imposed on a Complainant by section 85A of the Act 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.”

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

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

I find the Complainant has not established a prima facie case of discrimination on the disability or age ground. The complaints of discrimination and failure to provide training, victimisation, and discrimination in conditions of employment are not upheld. I find there is not sufficient evidence to support the allegation of failure to afford reasonable accommodation for disability.

CA-00066152-003

The complaint is not well founded.

CA-00066152-004 & CA-00066152-05

The complaints of discrimination and failure to reasonably accommodate the Complainant are not upheld.