Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1356/03

APPLICANT: Samir Chefai

RESPONDENT: US Inns Limited

DECISION

The unanimous decision of the tribunal is that the applicant has not been discriminated against on the grounds of his race, contrary to Article 6 of the Race Relations (Northern Ireland) Order 1997.

Appearances:

The applicant appeared in person and represented himself.

The respondent was represented by Mr Robinson, Barrister-at-Law, instructed by Edwards & Company, Solicitors.

Issues

1. The issue for the tribunal to decide is whether the applicant was discriminated against on the grounds of his race, contrary to Article 6(2) of the Race Relations (Northern Ireland) Order 1997 in the way he was treated while employed by the respondent at its restaurant known as The Point between 14 February 2003 and 9 March 2003.

The Facts

2. The tribunal makes the following findings of relevant facts in relation to this case. The applicant is of French Algerian origin and describes himself as being of Arab background. The applicant believed that he had been unfavourably treated by management of The Point Restaurant while employed there between mid February and 9 March 2003. He alleged that this treatment was on grounds of his race. The applicant worked on a part-time basis as a Waiter at the restaurant and was paid the minimum wage then applicable of £4.20 per hour. On the basis of his pay-slips he worked less than twenty hours each week and on the second and third weeks when he worked at The Point it would appear that he probably only worked ten hours which indicates that he could not have been working many shifts.
3. The system at The Point was that while the kitchen was visible from the restaurant, the kitchen and restaurant operated separately. Waiting staff keyed in customers' orders on the till and this order was then transmitted electronically to the kitchen. Once an order was ready the Restaurant Supervisor called waiting staff to collect orders and take them to customers. There was therefore not a great deal of direct contact between the waiting staff and the kitchen staff in the normal way.
4. The applicant made a number of allegations in relation to his treatment. Specifically he complained about his treatment by Trevor Quinn, the Chef, his treatment by Ray Maguire, the Restaurant Manager, and in relation to a complaint which he made to Neil McCartan, the Bar Manager. He also made a complaint in relation to comments he said had been made by Declan Walsh, the overall Manager of the restaurant.
5. The tribunal has decided to deal with these various allegations by reference to the person against whom they were made. The tribunal has set out its findings in relation to each person in the following findings of fact.

A. Allegations against Trevor Quinn

The applicant made two specific allegations of use of foul language by Trevor Quinn. On one occasion this occurred because of a mistake the applicant had made on one of his first days working at The Point. The second occasion was on 7 March when the applicant had to return an order back to the kitchen even though he had not made the error in the order. On both occasions Mr Quinn shouted at him and used foul language including the 'F word'. Mr Quinn agreed that the use of foul language was common place in his kitchen and said that it would be standard for this language to be used, although not to customers. He indicated that his staff were used to this, that it happened because of the pressure they were all working under and it had no racist overtones. The tribunal finds that these incidents did happen but is not persuaded that Mr Chefai received this treatment because of his race or indeed that Mr Chefai was treated differently to any other member of staff in this respect. Because of the way the restaurant operated, the waiting staff had little direct contact with the kitchen staff or with each other when dealing with the kitchen staff and so it is impossible for the applicant to state definitively that he was the only person treated in this way.

B. Complaint made to Neil McCartan

The applicant alleged that he had made a complaint to Neil about the way that he was treated by Trevor Quinn. Neil McCartan gave evidence in relation to this matter. He said that he did recall an incident where the applicant had complained to him about something else but not this particular incident.. He pointed out that he was not actually the applicant's Line Manager. The tribunal finds that the applicant did complain to Neil about the incident but from the evidence given by both of them it is persuaded that the complaint was more in the nature of Mr Chefai 'offloading' after he had been treated by Mr Quinn in this way and it would appear clear that Neil did not treat this as a formal complaint. Again there was nothing to suggest that Neil McCartan treated the applicant in any way differently or worse to the way any other employee was treated.

C. Incidents with Ray Maguire

The applicant made a number of allegations in relation to Mr Maguire. He complained that Ray 'stared him out' on a number of incidents at the restaurant. He alleged that a table of women customers told him that Ray had said that they were not to bother him, that he was there to work and not to talk and the applicant felt put out about this. He felt that after this incident that Ray had been staring at him and he felt intimated by this. There was another incident where a customer had knocked a wine glass over and the applicant felt that Ray was staring at him with 'disdain and contempt'. The third incident related to an error made in a customer's bill which was not the applicant's doing and he felt put out that Mr Maguire spoke to him about this.

In relation to these three incidents, the tribunal finds it very unlikely that Mr Maguire would have told customers not to speak to one of the waiting staff. Mr Maguire himself indicated that this incident had not happened and also indicated that an accident where a customer knocks over a wine glass is common place in a restaurant. He also denied that he had spoken to the applicant crossly in front of customers. Mr Maguire agreed that he would supervise staff quite closely, particularly new staff. He agreed he would walk around the restaurant and look to see what staff were doing. It was clear from Mr Maguire's demeanour at the tribunal that there was a poor relationship between him and the applicant. Mr Maguire was aggressive and bullish in response to the applicant's questions but did not display this when answering questions from his own Counsel or from the panel. For whatever reason, the relationship between these two appears to have been difficult.

On 14 March after the applicant had resigned his job he went to The Point to collect his wages. He went at around 11.30 am in the morning and was told that he had to come back around 6.00 pm. He came back at 5.50 pm and was told to come back at 6.00 pm. The applicant waited outside and eventually was given a pay envelope by the door attendant. He did not receive his P45. He was told by staff on that occasion that he was not allowed back in the restaurant for three months but this was not discussed with him by management and he was not aware at that time that this was an industry standard precaution.

The applicant wrote to the management at The Point on 9 March 2003 and said that he refused to come back to work because of the 'stressful bullying tactics' used against him. In that letter he set out the behaviour he alleged had been meted out to him by the Chef in terms of use of foul language and the behaviour of Ray Maguire towards him. Two letters were sent, both of them setting out very clearly and in vivid language the way the applicant considered he had been treated 'unfairly and with disrespect by others'. In neither letter did he allege that he had been treated in this way because of his race.

The finding of the tribunal is that the treatment Mr Chefai received on 14 March when he called to collect his pay was indeed humiliating and unnecessary. Mr Chefai was aware that pay was usually available during the late morning, and Mr Maguire confirmed in answer to a question from the panel that the pay was usually made up between 11.00 am and 12 noon in the morning. He said however that because of lunchtime being so busy and meetings with staff, the pay was not usually given out until after the busy period at lunchtime, some time about 3.00 pm. In all of these circumstances it seems that Mr Maguire's response to the applicant in telling him to come back for his pay at 6.00 pm was arrogant and aggressive.. It may be that by this stage (although this was not made clear to the tribunal) that Mr Maguire had been made aware of the applicant's complaints against him and that this coloured his response. However it would appear that he did not meet with the applicant as was the usual practice to give him his pay and his P45, have his uniform handed back and explain to him the restaurant's policy in relation to staff who had resigned not being allowed back to the premises for a period of three months, in case this was abused. It is the finding of the tribunal that Mr Maguire treated the applicant in this way because of their previous poor relationship, but not because of the applicant's race.

D. Interview with Mr Declan Walsh

Mr Walsh is the General Manager of The Point Restaurant and confirmed that he had interviewed the applicant for his position as a Waiter. He agreed that he had made a comment to the applicant about the fact that a previous Spanish employee had had difficulties with the Northern Ireland accent. He denied that he had said anything about foreigners not staying long as alleged by the applicant but was simply concerned to ensure that staff would not have any difficulty understanding the Northern Ireland dialect. The applicant confirmed that because he had lived in Northern Ireland for ten years he had no difficulty in understanding the accent.

The applicant alleged that the number of foreigners employed at The Point and the fact that few of them stayed for any length of time indicated that they were subject to race discrimination.

In the first place, the tribunal finds that the restaurant's behaviour towards other people would not necessarily be indicative of its behaviour towards the applicant. Secondly, Mr Walsh was able to explain what had happened with most of the staff members involved, a fairly high proportion of whom were students and had come to work at The Point as a temporary measure, which explained their relatively short period of time of employment. On balance the tribunal does not find that the applicant had raised a prima facie case to establish that there was anything racist in the way that Mr Walsh asked him about his knowledge of English.

Decision

6. Having considered all of these matters, the finding of the tribunal is that the respondent did not treat the applicant particularly well, in that he was not given the courtesy of the usual termination interview where he was notified of the firm's policies and procedures in relation to termination of employment. The employer treated the applicant's letter of 9 March purely as a resignation and did not investigate his grievance properly. This is not in keeping with best practice.

However having found that the employer acted unreasonably, the applicant must still raise a prima facie case to show that he was discriminated against on the grounds of his race in the way that he was treated, contrary to Article 6(2) of the Race Relations Order (Northern Ireland) 1997.

This Article provides:-

(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Northern Ireland, to discriminate against that employee –

(a) in the terms of employment which he affords him; or

(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

(c) by dismissing him or subjecting him to any other detriment."

It is clear from this legislation that the applicant must show not only that he was treated differently from his fellow workers, but that he was treated worse than them. It is the finding of the tribunal that the applicant has failed to discharge the burden of establishing a prima facie case in this instance. The tribunal accepts that Mr Quinn's language, while unacceptable in many circles, was common in the environment in which he worked and was not racially motivated. The reaction of Neil McCartan to the applicant's complaint was not to treat it as a formal complaint, which was understandable in that it was not presented to him as such. This was not racial discrimination.

The tribunal also finds that Mr Maguire did supervise the applicant closely, which he confirmed would be normal with new staff. The applicant after only three weeks in the job on a part-time basis was still relatively new to the restaurant and may well have required supervision. The tribunal finds that there was a poor relationship between these two men and this may well have coloured both Mr Maguire's attitude to the applicant and the applicant's attitude to Mr Maguire. The tribunal is not persuaded however that there was any racial motivation in relation to this.

In relation to the behaviour of Mr Walsh, again the tribunal finds that the applicant has failed to show that there was a prima facie case of race discrimination for the reasons set out above. For those reasons, the applicant's complaint is dismissed.

Chairman:

Date and place of hearing: 15 – 16 November 2004, Belfast

Date decision recorded in register and issued to parties: