Henry Kan v Merchant’s Arch Restaurants Company Limited [ADJ-00016284]

Keywords: Section 77 of the Employment Equality Act, 1998; Racial Discrimination

The Complainant is originally from the Ivory Coast and commenced employment with the Respondent Company on the 9th of June 2018 as a Kitchen Porter. Shortly after commencing employment, the Complainant was working in the kitchen whereupon the Head Chef entering the kitchen told the Complainant to “get out of his way”. The Head Chef then proceeded to pour hot water on the grease trap, under the dishwasher, which was full.

The Complainant stated that at this juncture, the Head Chef uttered the phrase “dirty bastard”. The Complainant then told the Head Chef that he had not noticed that the grease trap was full and the Head Chef responded with some colourful language indicating that the Complainant should open his eyes or words to that effect. Upon the conclusion of the Complainants shift of service, the Complainant indicated to the Head Chef that he did not appreciate the words used earlier in the day and found them personally insulting. The Head Chef responded by saying the unsavoury language used was directed at the various workers from the night before who had allowed the grease trap to overflow. The Complainant effectively rejected this explanation and decided ultimately not to return to this employment.

On the 2nd of July 2018, the Complainant submitted his resignation by email and cited the aforementioned incident as his reason for terminating his employment. Following an exchange of emails and texts between the parties, the resignation of the Complainant was accepted and his employment ended on the 15th of July 2018. The Complainant stated that he was unaware of any grievance procedure in the company and filed a complaint with the Workplace Relations Commission in August 2018.

At the time of the incident, the Respondent Company employed forty one staff of mixed nationalities. The Respondent Company described the relationship between the parties as a happy one until the 30th of June 2018 when the Complainant left his employment. The Respondent maintained that there was no reference to any employee’s race, colour, nationality, ethnic or national origins. It was explained to the Complainant that the comments made should not be taken personally as they were in reference to the staff from the previous night and this conversation was confirmed as per email correspondence.

In relation to issue of “race”, the Respondent Company submitted that the Complainant failed to identify a comparator, whether that be actual or hypothetical as required by the legislation with regards discrimination on the grounds of race to demonstrate “a difference in treatment” and cited relevant case law in that regard. Further, in relation to this aspect of the claim, it was argued that the Complainant has failed to specify which of the grounds he was alleging as per the definition of race under Section 6(1) (h) of the Employment Equality Act.

The Complainant failed to report the incident to management and he did not invoke their grievance or harassment policy as per the employee handbook. The Respondent Company submitted that they operate a restaurant business that is reliant on employing multiple nationalities.

Having considered the evidence delivered from both parties, The Adjudication Officer concluded that the Complainant had not discharged the initial probative burden in respect of the allegation of discrimination by reason of his race. Additionally, the Adjudication Officer noted that the Complainant did not provide any specific information in relation to the claim that he was subjected to victimisation and that the alleged claim lacked direct or indeed indirect factual basis. No prima facie case existed and accordingly the claim was dismissed.

https://www.workplacerelations.ie/en/Cases/2019/February/ADJ-00016284.html