Case Number: ADJ-00010567. Workplace Relations Commission

• Docket Number: ADJ-00010567
• Hearing Date: 29 May 2018
• Date: 01 October 2018
• Court: Workplace Relations Commission
• Parties: A Bar Worker v A Bar/Nightclub

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00010567

Complaints:

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-00013799-001	07/09/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00013799-002	07/09/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00013799-003	07/09/2017

Date of Adjudication Hearing: 29/05/2018

Workplace Relations Commission Adjudication Officer: Enda Murphy

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. The final correspondence with the parties following the hearing in relation to the complaints concluded on 11 July, 2017.

Background:

The Complainant was employed by the Respondent as a Bar Worker from 3 September, 2016 to 16 March, 2017. The Complainant claims that he was discriminated against by the Respondent on the grounds of gender and race contrary to Sections 6(2)(a) and (h) of the Employment Equality Acts in relation to his conditions of employment and discriminatory dismissal. The Complainant also claims that he was subjected to victimisation contrary to Section 74(2) of the Acts. The Respondent disputes the claims of discrimination and victimisation. The Complainant claims that the Respondent failed to provide him with a written statement of his terms and conditions of employment contrary to Section 3 of the Terms of Employment (Information) Act, 1994. The Complainant also claims that the Respondent failed to pay his outstanding annual leave entitlements on the termination of his employment contrary to the provisions of Section 23 of the Organisation of Working Time Act 1997. The Respondent disputes the Complainant’s claims under the Terms of Employment (Information) Act, 1994 and the Organisation of Working Time Act 1997.

Summary of Complainant’s Case:

CA-00013799-001 – Complaint under the Employment Equality Acts The Complainant, who is a Romanian national, commenced employment with the Respondent as a Bar Worker on 3 September, 2016. He had previously been employed by the Respondent between 2014 and January, 2016. The Complainant claims that he performed well in his employment with the Respondent, having never been the subject of any disciplinary complaint, investigation or sanction prior to the matters that culminated with his dismissal. Following the commencement of his employment in September, 2016, the Respondent initially gave the Complainant an average of 12 hours per week. In or around October, 2016, the Respondent employed 4 to 5 new female employees and without explanation began cutting the Complainant’s hours and awarding them to the new female members of staff. The Complainant claims that the decline in his hours and increase in the new female employees eventually resulted in him being rostered for an average of 1 night per week and the new female employees being rostered for an average of 3 to 4 days per week. On 16 March, 2017, the Complainant was rostered to commence his shift at 8:00 pm. That morning, the Respondent contacted the Complainant and stated that his hours were being cut and that his roster would not start until 12:00 pm midnight. It subsequently came to the Complainant’s attention that the new female staff had been awarded his hours. The Complainant claims that the Respondent had reduced his hours and awarded same to the new members of staff because of his gender and nationality. The Complainant claims that all of the Respondent’s staff were aware that the female members of staff were getting better hours. The Complainant claims that this treatment by the Respondent in relation to the allocation of hours amounts to discriminatory treatment on the grounds of race and gender in relation to his conditions of employment. The Complainant also claims that the Respondent subjected him to discrimination on the grounds of race and gender by failing to promote him. On 16 March, 2017, the Complainant refused at midnight to work in protest of the fact that the Respondent had unilaterally reduced his hours in the manner in which it had in the preceding weeks. The Respondent terminated the Complainant’s employment on this date. On being informed of his dismissal the Complainant requested his payslips, P45 and accrued statutory annual leave. The Complainant claims that when he protested against the discriminatory treatment that he was being subjected to by the Respondent by refusing to attend his shift, the Respondent summarily dismissed him. The Complainant claims that same amounted to victimisation and discriminatory dismissal on the grounds of his race and age. On 5 October, 2017, the Complainant was walking past the Respondent’s bar with his brother at 11:20 pm when he was approached by Mr. M (Director of the Respondent company). Mr. M asked the Complainant if he could have a word with him and proceeded to ask the Complainant what he had against the Respondent. The Complainant asked Mr. M what he meant. Mr. M stated that the Complainant must have something against the Respondent because he was bringing it to court for unfair dismissal. The Complainant explained that he had nothing against the Respondent, that he had enjoyed his time there, but that he was not treated properly, that he was being discriminated against in rostered hours because of his gender and that he was bringing the Respondent to court for discrimination. The Complainant stated that he had still not been paid his annual leave. Mr. M stated that he had nothing to do with annual leave and that annual leave was not being paid as the Respondent was building a restaurant near the premises. Mr. M then stated that he was going to ban the Complainant from the premises, would put in the word to have other nightclubs in the area ban him and that he would not provide the Complainant with a reference. Mr. M then asked the Complainant if he was “going against” him or Mr. D (the Respondent’s Bar Manager). The Complainant stated that he was suing the Company as they knew what was going on inside of the company and never did anything about it. The Complainant claims that this treatment by the Respondent amounts to victimisation contrary to Section 74 of the Employment Equality Acts. CA-00013799-002 – Complaint under the Terms of Employment (Information) Act 1994 The Complainant claims that the Respondent failed to provide him with a written statement of his terms and conditions of employment contrary to Section 3 of the Terms of Employment...