Complainant

Respondent

Parties

Gabriel  Nascimento De Santana

The Vanilla Pod Eatery Blackrock Limited  

Representatives

Self-represented

Morgane Conaty BL instructed by Kenny Sullivan Solicitors

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-00073390-001

13/07/2025

The complainant submits that he was employed by the respondent from December 2022 until his resignation on 7 July 2025.

On 13th of July 2025 the complainant lodged a complaint under the Employment Equality Act, 1998-2015 alleging discrimination on the grounds of race in respect of his conditions of employment.  The narrative of the claim form outlined allegations of harassment by a named work colleague Mr. B.

At the outset of the hearing the respondent clarified its correct legal name as The Vanilla Pod Eatery Blackrock Limited.  The complainant did not object to this and so the name of the respondent has been amended to reflect the correct legal entity.

The complainant submits that he worked for the respondent from December 2022 until resigning on 7 July 2025.

He alleges discrimination by the respondent in terms of his conditions of employment and harassment on grounds of race which he attributes to a work colleague Mr. B

The complainant submit s that he was advised by the respondent owner Ms V in January 2025 that he would have to pay for his own work-permit renewal and submits that the respondent advised him that he would have to repay €50 weekly for renewing his Stamp 1 permit which he submits would, later increase to €150 weekly for three years in cash.

The complainant submits that he made an offer to pay the €1,000 official fee but this was refused.

The complainant submits that a colleague Mr. B made racist remarks about African customers and pretended to photograph the complainant before displaying a photograph of a monkey, causing the complainant humiliation in front of laughing colleagues.

The complainant submits that he reported the conduct to the co-owner Ms. V on 18 June 2025 and that he was asked to provide a written statement following this which he did on 23 June 2025.

The complainant submits that management did not offer him any meaningful follow-up or support following his complaint and only took action after a customer complained about overhearing bad language coming from the kitchen on 22 June 2025.

The complainant submits that shortly after this the respondent raised his hourly rate from €15 to €16 which he submits was done in an effort to silence him.

The complainant also submits that insufficient cover often left him with little or no breaks or only a 15-minute break, despite there being longer deductions from his pay.  The complainant also alleges that he earned the same as newer staff whom he trained.

The complainant submits that that all of these events worsened his asthma and caused work-related anxiety.

The complainant submits that he resigned because he could no longer remain in the workplace.

The respondent submits that it employed the complainant from December 2022 and paid €1,000 for his General Employment Permit, valid to 31 October 2025.

The respondent denies seeking repayment or making any permit-related wage deductions and submits that any discussion concerned only the possible effect of an expected increase in future salary thresholds on work permit renewal.

The respondent submits, after the complainant reported racist conduct on 18 June 2025, the respondent co-owner Ms. V requested a written statement from him and following this she met with Mr. B and the head chef on 24 June 2025.

The respondent submits that Mr. B acknowledged the incident and resigned, preventing the intended investigation and disciplinary process.

The respondent submits that following Mr. B’s resignation the complainant was then appointed/promoted to acting sous-chef and was given an increase in salary to €16 per hour.

The respondent submits that the complainant received his statutory breaks and relies on records from February to July 2025 in this regard.

The respondent also submits that it was aware that the complainant had explored other employment opportunities in May 2025 and he subsequently resigned on 7 July, before a follow-up meeting scheduled for 8 July 2025.

The respondent submits that it acted promptly and reasonably, upon receiving a complaint from the complainant and submits that it treated all work permit-holding employees consistently.

The respondent submits that the complainant has produced no evidence of the alleged repayment requirement nor has he identified any comparator sufficient to establish a prima facie case of race discrimination.

The respondent denies discrimination and seeks dismissal of the complaint.

In considering this matter I must first look to the legislation and to relevant case law.   

Section 6(1) of 1998 Act provides that discrimination occurs where, on one of the discriminatory grounds, a person is treated less favourably than another is, has been or would be treated.   

Section 6(2) of the 1998 Act identifies race as one of the protected grounds.

Section 14 (7) (a) —Harassment

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating, or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures, or other material.

Section 85A of the 1998 Act sets out that the burden of proof in the first instance is on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  It states:

“85A (1) 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 WRC and the Labour Court’s approach to this issue and the test for applying section 85A of the 1998 Act is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v. Southern Health Board [2001] 12 E.L.R. 201 wherein the Labour Court stated:

“The 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 where 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 Minaguchi v. Wineport Lakeshore Restaurant No. EDA034 / DEC-E2002-020 the “primary facts” were defined as follows:

“It appears to me that the three key elements which need to be established by a claimant to show that a prima facie case exists are:

that she/he is covered by the relevant discriminatory ground(s), that she/he has been subjected to specific treatment and that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.”

In Mary Margetts v. Graham Anthony & Company Limited EDA038 the Labour Court stated that “[t]he mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.

The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The Labour Court, in its decision in Arturs Valpeters v. Melbury Developments Ltd [2010] 21 E.L.R. 64, addressed the onerous nature of the burden of proof stating that:

“This requires that the complainant must first establish facts from which discrimination may be inferred.  What those facts are 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 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

And the Court of Appeal England and Wales in Igen v Wong EWCA/Civ/2005 stated that the claimant must ‘prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant.’

In considering this matter I am mindful that it is very clear from the aforementioned legislation and caselaw that the Complainant bears the burden of proof in establishing facts from which an inference of discrimination can be drawn.   It is only if the Complainant establishes a prima facie case of discrimination, that the burden of proof shifts to the Respondent to rebut the prima facie case.

I note that the complainant in his evidence referred to the fact that he was the only black person working in the kitchen.

The complainant advised the hearing that he worked for the respondent restaurant from 2022 until his resignation on 7 July 2025.

The complainant advised the hearing that sometime at the beginning of 2025 he had a conversation with one of the owners Ms. V about renewing his Stamp 1 work permit which was due for renewal in November 2025.  The complainant stated that Ms. V has told him that she might not be able to afford to renew the visa as she understood that the minimum remuneration for work permit holders was set to increase considerably.   The complainant stated that Ms. V had suggested that because the wage threshold was being increased for staff on work permits the respondent would find it difficult to pay and so he stated that Ms. V had suggested that the complainant would pay €50 per week out of his wages to cover the increased cost.  

The complainant advised the hearing that he had discussed this with other staff following which he received a phone call from the other co-owner Ms. K who was unhappy that he had discussed the matter with other staff.  The complainant stated that this phone call took place on 16th of January 2025.

The complainant advised the hearing that Ms. V had, told him that he would have to give back part of his salary every week to pay for the work visa.  The complainant stated that Ms. K had been angry at him on the phone and was annoyed that he had told other staff members about the work permit conversation he had with Ms. V.  The complainant stated that Ms. K had told him that the respondent was not obliged to provide the work permit and that he had to decide what he wished to do.

The complainant at the hearing played a recording of the phone conversation between himself and Ms. K.   

The recorded conversation indicated that Ms. K had been annoyed at the complainant for discussing the work permit with other staff members and told him that he should not have mentioned it to other staff members.   The complainant during this conversation referred to having been told by the co-owner Ms V that he would have to repay money from his salary for his visa and he asked Ms. K for how long he would have to do this to which she responded, “I don’t know”.  Ms. K added that the issue was not with the cost of the visa itself but with the difference they would have to pay each week due to the increase in the salary threshold for work permit holders.  Ms. K then stated that if he had any questions he should ask her or Ms. V and also stated that she and Ms. V would meet and discuss the matter with the complainant.

I note that this conversation took place in January 2025 and that the complainants work permit was not up for renewal for another 10 months as his current permit was valid to November 2025.

The respondent at the hearing submitted that Ms K had been unaware that the conversation was being recorded and submitted that had she known she was being recorded she may have responded differently.

Witness for the respondent and co -owner Ms. V advised the hearing that the complainants work permit was not due to expire until November 2025, but she stated that he had brought up the subject of its renewal with her a number of times in January 2025.  Ms. V stated that she had become aware at the time of a rumour that the salary level for work permit holders for the following year was going to be increased from €30,000 to €39,000.   Ms. V stated that the respondent had about 5 or 6 staff on work permits at the time and so she had been worried as to how the business would afford to pay an increase of €9,000 for each of its 6 staff members on work permits as this would cost over 50,000 if it was to increase by that much, as well as the cost of over €1,000-€1,500 for each permit.   Ms. V stated that she had mentioned her affordability concerns to the complainant when he had asked for reassurances that his work permit would be renewed the following November. 

 Ms. V stated that she had voiced her concerns about affordability and had mentioned as an option the possibility that the complainant might be asked to pay the €1,500 fee for the work permit.  Ms. V stated that she had mentioned this to the complainant as a worst-case scenario.  Ms. V stated that this had not happened before and that the company had always paid the cost of the work permits for each staff member which at the time had been €1,000 each but she stated that the proposed increase in the required salary for the holders of work permits was a cause for concern. Ms. V stated that she had assured the complainant that nothing had been decided as the issue would not even be relevant for another 10 months and so she told the complainant not to worry and that they would talk about it again closer to the renewal date.

 Ms V stated that she was very supportive and disposed to employing staff from other countries and stated that she herself had needed a work permit to work here having come from Romania herself initially.

Ms. V stated that no decision was made in this regard and that in any event the complainants existing permit remained valid until November 2025.

The respondent witness Ms. V clarified that the complainant was never actually asked for any money towards the work permit and never paid anything towards it.

Witness for the respondent and co-owner Ms. K at the hearing listened to the recording of the conversation between herself and the complainant and acknowledged that it did not sound professional but she also stated that she had a very good relationship with the complainant and so they spoke to each other like friends and that part of that involved speaking in an informal manner. 

Ms. K stated that she had expressed annoyance at the complaint for discussing the work permits matter with other staff and added that it was clear from the conversation that she and the complainant engaged in a lot of banter and that it was clear that the conversation had ended on a friendly note.  Ms. K stated that she and the complainant went on and had a normal conversation after she had had expressed her annoyance at him having told other staff about the work permit conversation.    Ms. K stated that the conversation was a casual, informal conversation typical of those she would have with the complainant as she stated she got on well with him.  Ms. K also added that she was not aware that the conversation was being recorded by the complainant and indicated that she would have chosen her words more wisely if she had.

The respondent submitted that since the complainant was the person recording the conversation he was careful of what he was saying in the knowledge that it was being recorded and also that there was a possibility that the complainant had steered the conversation in a way to make Ms. K say certain things which she would not have said if she knew she was being recorded.

Ms. K added that she did not know anything about the work permits side of the business and that Ms. V had always dealt with that.  The complainant at the hearing confirmed that no money had been taken out of his wages and that the respondent had paid for his work permit for the period of his employment with them.

The complainant has alleged that he was regularly unable to take adequate breaks because there was insufficient cover. He states that he sometimes received no break if it was very busy or only 15 minutes break.  He further states that, despite his experience and responsibility for training newer employees, he was paid at the same rate as recently recruited staff.  The complainant did not provide evidence of the rate of pay or nationalities of comparator staff in respect of this assertion.  In addition, no detail was provided regarding level of experience and or/training of comparators.

The respondent maintains that the complainant received all statutory breaks throughout his employment and relies on working-time records for the period from February to July 2025.  The respondent advised the hearing that the complainant was also afforded numerous smoking breaks throughout the day (sometimes four or five of these) as well as two 15-minute breaks.

Witness for the respondent and Head Chef Mr, J gave evidence that breaks were taken by all staff including the complainant.   Mr. J stated that breaks were taken in 15 minute blocks and that ad hoc requests for breaks such as popping out to a shop were always agreed to by him.  Mr. J advised the hearing that the respondent business is a great place to work and that even though it is a busy restaurant the staff have a lot of craic and banter.  Mr. J stated that the complainant was always in good form and was often singing and dancing while working.

The complainant advised the hearing that he was subjected to racist remarks at work by a colleague Mr. B.   He stated that Mr. B had initially made racist remarks about the skin colour of African customers and, that Mr. B on another occasion, had pretended to photograph the complainant before showing him a photograph of a monkey and comparing it to the complainant.

The complainant stated that this occurred in front of other work colleagues who laughed, and that he had found the incident humiliating and degrading.

The complainant advised the hearing that following the incident with the photograph he had reported the incident to Ms. V on 18th of June 2025.  The complainant stated that Ms. V had told him to put the details in writing and that she would deal with Mr. B after she returned from annual leave as she was departing that day and going to Romania for a few days and had only called into the restaurant to pick up a takeaway order on her way.

The complainant advised the hearing that he submitted a complaint in writing on 23rd of June 2025 and was informed by Ms. V that she would deal with the matter.

The complainant at the hearing confirmed that he had asked the respondent not to tell Mr. B that he had complained about him for fear of retaliation from Mr. B.

The complainant advised the hearing that on 23 June 2025, management informed him that a customer had complained about the use of bad language in the kitchen.      The complainant stated that action was taken by management against Mr. B on foot of the customer complaint.

The complainant stated that action was only taken after the customer complained and that he had received no meaningful follow-up or personal support following his complaint.

The complainant stated that not long after his complaint he received an increase in his hourly rate from €15 to €16 which he states he viewed as an attempt to silence him.

The complainant submits that all of these events had a significant effect on his health and stated that his asthma worsened and his medication was increased.   The complainant advised the hearing that he resigned on 7 July 2025 because he considered that he could no longer continue working in that environment.

In relation to the allegations of racist conduct by Mr. B, the respondent states that the complainant informed Ms. V on 18 June 2025 that a work colleague Mr. B, had made racist comments.   Ms. V advised the hearing that she took the matter very seriously and had requested a written statement from the complainant about the incident and indicated that she would investigate the matter upon returning from leave as she was departing on leave that day and travelling to Romania.  Ms. V advised the hearing that the complainant provided a written statement on 23 June 2025 and asked that it not be disclosed to Mr. B.

Ms. V stated that the respondent on 22 June had also received a customer complaint at that time concerning language used in the kitchen.  Ms. V stated that as the complainant had asked her not to mention his complaint to Mr. B she advised the complainant that she would raise the matter of the customer complaint with Mr. B thereby not mentioning the complaint from the complainant but would still raise the matter of Mr. B’s behaviour.

Ms. V advised the hearing that on 24 June 2025, she met with Mr. B and the head chef Mr. J to discuss the customer complaint about language in the kitchen.   Ms. V stated that Mr. B acknowledged the incident and handed in his notice there and then advising management that he had secured another job.   The respondent Ms. V stated that she had intended to conduct a full investigation and disciplinary process, but Mr. B’s departure prevented this.   Ms. V advised the hearing that following Mr. B’s departure, the complainant was promoted to acting sous-chef and his hourly rate increased to €16.   Ms. V stated that a follow-up meeting was planned for 8 July 2025, but the complainant resigned by email on 7 July 2025.

The respondent submits that it acted promptly and reasonably after receiving the complaint stating that it requested a written account from the complainant and that it had intended to conduct a formal investigation but was constrained by the complainant’s unwillingness to disclose his complaint to Mr. B and was then prevented from taking any further action following the resignation of Mr. B and later the resignation of the complainant.

Ms V stated that the departure of both Mr. B and the complainant limited the further steps available.

Ms. V advised the hearing that both she and Ms K were shocked at the complainant’s resignation.  Ms V stated that she had been aware that the complainant had gone for a day’s trial in another restaurant in May and that he had stated that he had enjoyed it.  Ms V stated that she later discovered at end of July that the complainant was now employed in that other restaurant. 

The complainant at the hearing stated that he was aware that Mr. B had been disciplined and had left the business once the matter of his behaviour was raised with him in the context of a customer complaint.   The complainant stated that it seemed to him that once a customer complaint was received immediate action was taken by the respondent unlike what happened in respect of his own complaint.   The complainant advised the hearing that although Mr. B was gone this did not resolve the matter for him as no one sat down and discussed the matter with him or the effect that Mr. B s behaviour had on him.

Witness for the respondent Ms. V acknowledged that she should have sat down with the complainant sooner and after her meeting with Mr. B but she stated that she had a lot going on at the time as another branch of the restaurant was closing down at the same time and they had to be out of the building by 30th of June.  Ms. V stated that she had checked in with the Head Chef. Mr. J to see if the complainant was doing okay and was advised by him that the complainant was in good form and had not raised any issues.

Witness for the respondent Head Chef. Mr. J in his evidence to the hearing confirmed that this was the case and copies of text messages between himself and Ms. V substantiated this.

Ms. V also stated that she had intended to meet with the complainant on the 8th of July to discuss his complaint but that he resigned on the 7th of July before she had a chance to meet with him.

In considering the claim of discrimination in respect of the complainant’s conditions of employment I do not find that the complainant was subjected to less favourable treatment on grounds of his race in respect of his conditions of employment.    Accordingly, I am satisfied that the complainant was not discriminated against by the respondent in respect of his conditions of employment.

In considering this matter I note that the complainant in his claim form lodged a complaint of discrimination on grounds of race in terms of his working conditions and although he did not select Harassment on the form, the narrative of his claim and the detail provided in respect of the incident with Mr. B clearly relates to an allegation of harassment on the grounds of race.  I also note that the statement provided by the complainant to the respondent on 23rd of June was also entitled “Formal complaint -Racial Discrimination and Harassment”.

Harassment is defined in Section 14A (7) of the Acts as set out above.

‘any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures, or other material’.

 Section 14A (2) provides a defence for an employer if it can prove that it took. 

reasonably practicable steps to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects [my emphasis].

While I note the respondent position that it had intended to carry out a full investigation into the complaint made by the complainant against Mr. B but was precluded from doing so due to Mr. B resigning, I also note that the complainant was left with no adequate response to his complaint of harassment on the ground of race.

I note also that the respondent in its defence did not refer to any anti-Harassment policy or staff training in respect of same.   The respondent advised the hearing that it has a grievance policy and a dignity at work policy and that these are accessible to all in its Employee Handbook. 

In circumstances where the complainant had made a formal complaint containing allegations of racism by a colleague, I am satisfied that the respondent should have prioritised meetings with the complainant to discuss his complaint and the effect it had on him.

While I note the respondent’s assertion that it took action as soon as it received a written complaint from the complainant and once Ms. V returned from leave, I am satisfied that this matter should have been treated as a priority and in circumstances where Ms. V herself could not deal with the situation immediately then she could have asked/assigned someone else to deal with it.

 I also note that once the complainant submitted his claim to Ms, V that Mr. B resigned the next day and so it seems that the respondent considered the matter to have been dealt with despite not having spoken to the complainant or discussed the effect the incidents complained of had on the complainant.  I also note that there was no mention by the respondent of an Anti-Harassment policy or no mention of staff training in this regard.

In such circumstances and having regard to the totality of the evidence adduced I am satisfied that the respondent did not do all that was necessary to reverse the effects of the harassment and thus cannot rely on the defence allowed under Section 14 A.   While I note the respondent’s position that it was constrained by Mr. B’s leaving and the complainant’s resignation I also note that there was a period of almost three weeks between the complainant’s first mentioning his complaint to the respondent and his resignation, and after submitting his complaint in writing there was a two week period during which the respondent failed to meet with the complainant to discuss his complaint or advise of what if any action it proposed to take.   I also note that the respondent did not during this time meet with or check in with the complainant    Accordingly I am satisfied that the respondents actions fell short fell short of what is required to reverse the effects of such harassment.   

Accordingly, I declare this aspect of the claim to be well founded, and I direct the respondent to pay the complainant €4,000 in compensation for the effects of the harassment.

For the sake of completeness, it is also worth mentioning that the complainant in this case did not submit any claim of discriminatory dismissal or of constructive dismissal and although he stated at the hearing that he resigned due to the fact that he was unhappy with the way in which the respondent dealt with his complaint.  It should be noted that no evidence was adduced which would support a claim of constructive dismissal and I am satisfied from the evidence adduced that the complainant has not established the existence of a breach of his contract, nor has he established that the respondent’s behaviour was so unreasonable as to leave him with no option but to resign his position. 

Having considered all of the evidence, both written and oral, adduced at the hearing of this complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Act, 1998, as amended. I find that:　

(i)   the Complainant was subjected to harassment on grounds of race in terms of section 14A of the Act.    Accordingly, I direct the respondent to pay the complainant €4,000 in compensation in respect of the harassment.

(ii)   the Complainant was not discriminated against by the respondent on grounds of race in terms of section 6(2) of the Act, in respect of his conditions of employment contrary to section 8 of those Act.