Case Number: DEC-E2016-016. Workplace Relations Commission
| Judgment Date | 01 February 2016 |
| Court | Workplace Relations Commission |
| Docket Number | DEC-E2016-016 |
| Parties | Sandor Petroman -v- Yamamori Sushi Ltd |
HEADNOTES: Employment Equality Acts – Race-Sexual Orientation – Conditions of Employment
1 DISPUTE1.1 This dispute concerns a claim by Mr Sandor Petroman that he was discriminated against by Yamamori Sushi on the grounds of Race/Nationality and Sexual Orientation contrary to section 6 of the Employment Equality Acts in relation to conditions of employment in terms of section 8 of those Acts.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on 31st March 2014 under the Employment Equality Acts. On 6th November 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission delegated the case to me, Pat Brady an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on November 10th 2015.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2 PRELIMINARY MATTERS2.1 The Complainant withdrew the claim under the sexual orientation ground.
3 COMPLAINANTS' SUBMISSION3.1 The complainant started work for the respondent on October 11th 2011. His employment proceeded without any significant issues arising until early 2014. He submitted in his direct evidence that he won performance related prizes in this period and apart from minor injunctions to improve aspects of his performance there had been no disciplinary sanctions.
3.2 In or around February 2014 there was a change in the management of the restaurant. TWG was replaced by S who began to reduce the hours he was required to work. While there was some dispute about the reasons why there was a dramatic reduction in the hours the complainant was required to work.
3.3 Here is the sequence of the hours worked per week from weeks 1-8: 34, 35, 25, 34, 32. And here is the sequence for weeks 8-17: 19, 18, 24, 27, 15, 18, 17, 13, 22. This represents a fall in the average working week from 32 to just over 19.
3.4 The complainant raised this as a grievance with S on February 8th 2014 and says that notes were made of the meeting but nothing was done. In his direct evidence the complainant said she told him his performance was ‘not good’, that ‘it did not matter anymore’ and that she would probably ‘fire’ him as he was not good enough for the restaurant and had allegedly been selling cigarettes, (which he denies.)
3.5 Witness TWG, the complainant’s former manager between November 2011 and February 2014 challenged the list of employees rosters which had been submitted by the respondent saying that it excluded non waiting staff. The company agreed to supply this and subsequently did. TWG said that he was told by S in January 2014 that ‘she wanted him to ‘get rid of’ the complainant, and one other employee who was also Hungarian. She told him to do this by reducing the hours. He said he disagreed with her and that it would constitute discrimination and unreasonable and he would not do it.
3.6 TWG then went on annual leave and on his return was transferred to another location and replaced by S.
4 RESPONDENT'S SUBMISSION4.1 The respondent denied that there had been any constructive dismissal and said that there had been ongoing performance issues with the complainant.
4.2 It said that reductions in hours were a consequence of a downturn in the business and gave figures to show that the total average hours of waiting staff fell in weeks 4-7 by 152 hours and in weeks 8-17 by 114 hours, They also said that the complainant had asked for a day off on more than one occasion and this would be reflected in the reduction in his hours.
4.3 Regarding the performance issue the company said that there had been several meetings with him but no formal disciplinary sanction had issued as it preferred to seek improvements in performance than record disciplinary action.
4.4 The company denies that S ever threatened to dismiss the complainant although she was not available to give evidence as she had returned to Japan.
4.5 It says that the complainant left of his own volition and that no case arises.
5 FINDINGS & CONCLUSIONS OF THE ADJUDICATION OFFICER5.1 I have to decide if the complainant was treated in a discriminatory manner on the grounds of his nationality, (the claim on the sexual orientation ground was withdrawn.) In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
5.2 Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “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.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.
5.3 The test for this has been set down in many cases, notably Valpeters v. Melbury Developments Limited 2010 21 [E.L.R] 64.
“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. 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...
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