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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Okotete v Pizza Express Limited Liam Whiteway Matt Whiteway Szilvester Kurcz [2013] NIIT 00483_11IT (01 March 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/483_11IT.html
Cite as: [2013] NIIT 00483_11IT, [2013] NIIT 483_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 483/11
620/11
CLAIMANT: Rita Okotete
RESPONDENTS: 1. Pizza Express Limited
2. Liam Whiteway
3. Matt Whiteway
4. Szilveszter Kurcz
DECISION ON AN APPLICATION FOR REVIEW
It is the unanimous decision of the tribunal that the claimant’s application for review is granted and the Decision in this matter, dated 13 June 2012, be varied by the addition of paragraphs 17-19 of this decision to conclude that the claimant was entitled to the sum of £2,500.00 and the sum of £248.77 for interest thereon as damages for hurt feelings arising from a comment made to her by Mr Szilveszter Kurcz, the fourth respondent. The first respondent is ordered to pay this sum to the claimant.
Constitution of Tribunal:
Chairman: Ms W A Crooke
Members: Mr M Grant
Mr J Devlin
Appearances:
The claimant appeared in person and represented herself.
The respondent was represented by Mr S Doherty, Barrister-at-Law, instructed by Tughans Solicitors.
THE ISSUE
1. This matter came before the tribunal by way of the claimant’s request for a review of its decision, dated 13 June 2012.
2. The claimant’s request was initially made by a letter dated 26 June 2012, in which she requested an extension of time within which to present details of her requests for review.
3. The request for the extension of time was granted and by letter dated 5 July 2012, the tribunal requested that the claimant set out her grounds for the review.
4. By a letter dated 9 July 2012, the claimant stated only that she required the review “pursuant to Rules 34(1)(6) and 34(3)(e) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, adding “the interests of justice require such a review”.
5. By a letter dated 16 July 2012, the claimant was given a further period of 14 days within which to provide details to support her request for a review.
6. Eventually, the claimant provided a 35 paragraph request for review dated 31 July 2012 and this is appended to this decision, marked A1.
7. A hearing of the application for review took place on 4 September 2012 and the tribunal reserved its decision. During the deliberations of the panel thereafter the case of McNamara and Flynn v Department of Social Development, Case refs: 2025/07, 86/08 appeared to be of direct relevance to the matter to be decided by the tribunal. By a letter dated 9 November 2012 to the parties the tribunal gave the parties an opportunity to arrange to address the tribunal on the relevance of this case to the current case. By 22 November 2012, only the claimant had communicated with the tribunal indicating that this case was of no relevance to her application so the tribunal continued with its deliberations in the absence of submissions from the respondents. Subsequent correspondence from the solicitors for the respondents indicated that Mr Doherty did have submissions to make on this point. Written submissions were sent on behalf of the respondents by Tughans under cover of a letter dated 14 December 2012. It was unclear from Tughans’ correspondence whether or not the respondents required an oral hearing, but by an email dated 18 December 2012 Tughans confirmed that an oral hearing was not required.
The submissions on behalf of the respondents were sent to the claimant for comment and, as she had no comment to make, issued to the panel members for their consideration.
THE RELEVANT LAW
8. The relevant law is found in Rule 34(3)(e) of Schedule One of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (“the Rules”).
THE APPLICATION FOR REVIEW
9. The tribunal categorised the claimant’s grounds for requesting the review into four sections:-
a. the fact that she was a self-representing claimant;
b. the “Terminator” incident;
c. miscellaneous matters;
d. the jurisdiction issue.
a. The claimant as a self-representing person
The tribunal does not accept that this contention of the claimant’s has any reasonable prospect of success. It was her choice to represent herself and the tribunal accepts Mr Doherty’s submission that a great deal was done by the tribunal pursuant to the Overriding Objective contained in Regulation 3 of the Rules to “level the playing field” and place the parties (as far as possible) in an equal position. Various measures taken included:-
i. various breaks throughout the lengthy hearing to let her review her notes and formulate her questions for cross-examination;
ii. advising the claimant at the very outset of the hearing how the matter would proceed and in particular drawing her attention to various items of case law, such as Igen Ltd v Wong [2005] IRLR 258 and also drawing her attention to the statutory provision concerning the application of the burden of proof, namely Article 52(a) of the Race Relations (Northern Ireland) Order 1997; and
iii. Mr Doherty
gave advance notice of the witnesses he intended to call each day so that the
claimant would be able to prepare her
cross-examination.
However, the tribunal was still guided by the approach set out in the case of Patrick Joseph Rogan v South Eastern Health and Social Care Trust a decision of the Court of Appeal, dated 13 November 2009 with particular reference to the following paragraph dealing with self-representing parties:-
“When
parties before the tribunal appear in person without the benefit of legal
representation the lack of legal experience on the part of the unrepresented
party may lead to the pursuit of irrelevancies and unnecessary length of proceedings.
While tribunals must give latitude to personal litigants who may be struggling
in a complex field they must also be aware that the other parties will suffer
from delay, incurring increased costs and be exposed to unstructured and at
times irrelevant
cross-examination. While one must have sympathy for a tribunal faced with such
a situation the tribunal remains under the same duty to ensure that the
overriding objectives and regulation 3 are pursued.”
It was for this reason that the tribunal took the action set out in paragraph 2b of the original decision refusing the claimant’s application to have four of the respondent witnesses who were not going to be called by Mr Doherty to be brought before the tribunal for cross-examination by her.
Accordingly,
paragraphs 3 to 6 of the claimant’s application are dismissed as the fact
that the claimant chose to appear before the tribunal as a
self-representing person is not an issue upon which the tribunal can consider
that the interests of justice require the review.
b. The “Terminator” issue
Paragraphs 7 to 15 were concerned with this incident that took place during the claimant’s employment with the first respondent. This was one of the main incidents relied on by the claimant in her discrimination case on the grounds of race. The tribunal also dismisses the claimant’s application for review contained in these paragraphs as it consisted of a recital once more of the evidence and a complaint that the tribunal had failed to draw an inference that the fourth-named respondent by allegedly pretending to shoot at her with a toy gun whilst dressed as the “Terminator” and allegedly saying thereafter that if somebody shot her his life would be easier, constituted a primary fact from which racial harassment could be inferred. In general, the claimant objected to the tribunal preferring the evidence of the respondents’ witnesses to her evidence. However, the tribunal does not consider that any discrepancies in the respondents’ versions of events as to whether or not the fourth-named respondent carried a gun as part of his costume on the night in question, for example, is a matter upon which the tribunal should regard the respondents’ versions of events as being flawed. In the opinion of the tribunal, this section of the claimant’s application contained nothing which warranted the application being granted on the basis of the alleged discrepancies in the respective versions of events. The tribunal weighed the evidence given when reaching its original decision, and although the versions of events were not always uniform, found a significant commonality between the various witnesses to enable it to prefer the respondents’ version of events. This part of the application does not contain anything to enable the tribunal to change its original view in the decision.
c. Miscellaneous matters
The paragraphs 29 to 35 of the application do not in the view of the tribunal constitute grounds upon which the tribunal can grant an application for review on the grounds that the interests of justice require it, as they consist of a statement of the terms of Article 52(a) of the Race Relations (Northern Ireland) Order 1997 and a request that the “Caitlin McCann” incident be classed as “unlawful harassment”. The remaining paragraphs of that section reiterate the claimant’s requirement that the tribunal should not consider the respondents’ version of events to be credible and that justice requires that the decision be reviewed in the claimant’s favour.
d. The jurisdictional issue
Paragraph 17 to 28.
Once again, the majority of the paragraphs in this section of the application constituted a restatement of the evidence and contentions advanced by the claimant. However, the tribunal considered what it calls “the teeth incident” was the only incident in the claimant’s recital of events that was capable of being tied to the claimant’s race although she made a number of allegations. The fourth respondent saw this as a humorous remark which, when uttered was objectionable and he apologised when prompted to do so by Caitlin McCann. However, it was an incident that the tribunal considered had clear racist overtones. It was an inappropriate joke that was directly referable to the skin colour of the claimant. The claimant did not submit a grievance in relation to this issue prior to entering her two claims in the tribunal and Mr Doherty submitted that her failure to do so by virtue of Article 19 of the Employment (Northern Ireland) Order 2003 hereinafter called “the 2003 Order”, rendered the tribunal without jurisdiction to hear that issue. However, in accepting Mr Doherty’s submission on this point, the tribunal failed to take proper account of the provisions of Article 19(6) of the 2003 Order which provides that the tribunal would only have no jurisdiction in relation to this issue if it had previously been raised by the respondents in the case. Mr Doherty submitted that raising the point in his submissions at the close of the case was sufficient to fulfil the requirements of that sub-section.
10. Article 19 of the 2003 Order provides:-
“(3) An employee shall not present a complaint to an Industrial Tribunal under a jurisdiction to which this Article applies if -
(a) it concerns a matter in relation to which the requirements in paragraph 6 or 9 of Schedule 1 has been complied with; and
(b) less than 28 days have passed since the day in which the requirement was complied with;…
(6) an Industrial Tribunal shall be prevented from considering a complaint presented in breach of paragraph (2) to (4), but only if -
(a) the breach is apparent to the tribunal from the information supplied to it by the employee in connection with the bringing of the proceedings; or
(b) the tribunal is satisfied of the breach as a result of his employer raising the issue of compliance with those provisions on accordance with Regulations under Article 9 of the Industrial Tribunals Order (Industrial Tribunals Procedure Regulations).”
11. The tribunal gave the parties an opportunity to address it on the case of Tommy McNamara and Edward Flynn v The Department of Social Development (Case Refs: 2025/07 and 86/08) but as recited earlier in this decision completed its deliberations without any further submissions from Miss Okotete. Mr Doherty eventually provided written submissions under cover of a letter of 14 December 2012. The point raised by the claimant in this case which was that to benefit from the jurisdictional prohibition, it was necessary for the respondents to have previously raised this point in the case also arose in the case of McNamara and Flynn v DSD. In considering this point in the case the tribunal had particular reference to the dictum of Underhill J in the case of DMC Business Machines Ltd v Plummer [2006] UKEAT/0381 which emphasised:-
“Non-compliance by an employee with the statutory procedures does not automatically deprive the tribunal of jurisdiction; it is necessary that the point is taken in, or as a result of the pleadings.”
Underhill J also referred to doing so by way of an application to amend the response form at paragraph 5 of his judgment.
This view was supported by Elias P in the case of Arnold v Sandwell MBC [2009] IRLR 12 which stated:-
“84
…(2) In my judgment, since it is a defence to the actions, it should in the normal way be raised in the response form; see rule 4(3) which requires an employer to identify all the grounds on which he wishes to rely to defend the claim. If it has not been raised in that way, then in my judgment any later attempt to raise it might be by way of an amendment to the response.”
12. Essentially, it appeared to the tribunal in McNamara and Flynn’s case that the appropriate way to proceed was to consider an application for an amendment of the proceedings in line with the principles set out in the case of Selkent Bus Company Ltd v Moore [1996] ICR 836. This would have enabled the tribunal to properly balance the interests of the parties.
13. In the first part of the respondents’ submissions, Mr Doherty discussed whether the tribunal had the right to review its own decision in the light of McNamara and Flynn v DSD. However the tribunal rejected this submission, as no decision had been promulgated on foot of the Review application, as the potential relevance of this case came up in the course of its deliberations and before the Review decision was promulgated.
In submission 5, Mr Doherty suggests that the parties were referred to the McNamara and Flynn case as “it may be of some assistance to the claimant”. The tribunal asked for submissions as it seemed that the issues in McNamara and Flynn were directly relevant to the jurisdiction issue in this case.
Therefore the tribunal rejects the respondents’ contentions in submissions 5 and 6, that the claimant was being given an unfair advantage as a personal litigant. The tribunal considers it was appropriate to consider the application of legal principles set out in McNamara and Flynn in relation to a complex jurisdictional issue. Therefore the tribunal did not consider this to be the type of irrelevant proceeding prohibited by the dicta in Rogan v SEHSCT [2009] set out in paragraph 9 of this decision.
Whilst this case of McNamara and Flynn was a decision of another tribunal in this jurisdiction, it contained a survey of decisions of Elias P and Underhill J in the jurisdiction of England and Wales and as such regarded as of very persuasive value by this tribunal.
Mr Doherty submitted that the tribunal could consider the issue of its jurisdiction under A19(6)(b) in the hearing, but he did not make an application to amend the respondents’ response. It was a matter put under cross-examination of the claimant and in submissions. We consider that on balance the authorities surveyed in McNamara and Flynn preferred that the matter be raised by a Selkent type of application. This did not happen.
In the case of McNamara and Flynn v DSD the application for amendment was made at a very late stage in the proceedings. In this current case no such application was made and the respondents raised the matter in their submissions to the tribunal. Accordingly, we consider that we were wrong to refuse to consider the factual issue that gave rise to this jurisdictional point and that the terms of Article 19 of the 2003 Order fully considered do not prevent the tribunal from considering this issue in its overall determination of the case.
14. It could perhaps be argued that there had been no prejudice as the evidence on the “teeth” issue was before the tribunal in that this evidence had not previously been the subject of a pre-hearing review and had been heard by the tribunal. However, the tribunal does not consider that this argument has any merit as it took conscious steps to exclude this issue from consideration of the evidence of this case when looking at whether the burden of proof had been displaced in deliberating upon its original decision of 13 June 2012. Accordingly, we consider that the claimant’s application for review has merit on this ground alone and we grant it.
15. Essentially, having reached the decision that the claimant’s application for review be granted, the tribunal must answer the question whether or not the incident, which for ease of reference it has referred to as the “teeth” incident discussed, in the section of its original decision in paragraphs 26 to 29 under the heading “Mr Vestey Kurcz” can be included in the tribunal’s assessment of whether the claimant had proved sufficient primary facts from which an inference of unlawful discrimination on the ground of race can be drawn.
16. The tribunal had excluded this incident purely on the technical grounds of Article 19 of the Employment (Northern Ireland) Order 2003. Having considered this point again after the claimant raised the issue in her review application, with the benefit of the decision of McNamara and Flynn v Department of Social Development, we consider that it is not sufficient for this point to be raised at the time of submissions being made, and that the jurisdiction of the tribunal was not ousted simply because the claimant “forgot” to include this incident in her grievance letter to Miss Vetterello. This jurisdictional issue should have been raised by the respondents and dealt with for example by way of a Selkent Bus Company type of application to amend the pleadings. Therefore, the effect of inclusion of the “teeth incident” this is that the tribunal should consider the claimant’s case once more but this time with the “teeth incident” included.
THE REVIEW
17. In so doing, we have also been assisted by referring to the case of Madarassy v Nomura International Plc [2007] EWCA Civ 33. This case reinforces the authority of Igen Ltd v Wong and says:-
- A claimant must show more than a difference in treatment and a difference in sex (race in this case) to establish a prima facia case of sex discrimination.
- There must be more than a possibility of discrimination before the burden of proof shifts.
- The primary facts must be such that a reasonable tribunal having heard all the evidence from both sides could conclude that the respondents committed not just (“could have committed”) the act of discrimination.
In applying this authority to the present circumstances, we find that before the “teeth incident” was added into consideration, the claimant had established a difference in status (she was the only black person working for the first respondent at the relevant time), and arguably as we concluded in paragraphs 40 and 41 of the original decision some hostility and clashes of personality (a difference in treatment). Adding in the “teeth” comment, we find that this raises a possibility of discrimination when viewed with the totality of the evidence. However, we did not consider that it was sufficient to displace the burden of proof in relation to the Lack of Hours claim set out in paragraph 12 of the original decision. We remain satisfied on the evidence that there was no business need for the claimant to receive extra hours under the various headings. This remains in our opinion a satisfactory, non-discriminatory reason for any treatment the claimant received.
18. Looking at this incident in the light of all the claimant’s difficulties with other staff, without prejudice to the generality of the foregoing we have considered:
(a) the McCann grievance;
(b) her ongoing difficulties in taking instruction and orders from the Assistant Manager, Miss Kasia Kruczynski;
(c) her difficulties in general with Mr Tom Charters, the waiter, and in particular over his food order;
(d) her difficulties with the kitchen staff over her staff food order one evening;
(e) the bump, the “Terminator” incident and alleged remark thereafter (involving Mr Kurcz) and
(f) the alleged monkey noises and alleged encouragement by Mr Whiteway to Caitlin McCann to attack the claimant with a wooden object.
We have not seen that the “teeth incident” by Mr Kurcz is sufficient to show more than a possibility of discrimination. These are not all incidents in one ongoing campaign of discrimination on the grounds of the claimant’s race. We found this for the following reasons:-
(a) We did not see any reason, looked at once more, to disbelieve the respondents’ version of events and to prefer the claimant’s evidence in and around her interactions with the staff of the first respondent and the other named parties set out above, purely on the ground of the “teeth incident”. Our concerns over the claimant’s credibility in these areas remained. For example the respondents contended through three witnesses, Mr Matt Whiteway, Ms Indre Sinkunaite and Mr Attila Pal, that the alleged “monkey noises” incident did not happen as alleged and the claimant misinterpreted workplace banter as discrimination against her. A particular concern was that the claimant sought to argue that not only was she subjected to this treatment in the restaurant but that it continued out from there to happen in the streets by persons unknown to her. Her allegation that this alleged conduct by persons unknown to her was in some way connected to her employment continued to undermine her credibility in this area. The tribunal also continues to consider that if the claimant was seriously alleging that Mr Matt Whiteway was encouraging Ms Caitlin McCann to attack her with a wooden object and this alleged object was in his possession in front of the claimant, it remains not credible for her to be unable to describe it.
(b) However, if the remark about the claimant’s teeth is considered as a single issue of racial harassment in its own right, we consider that it cannot be ignored. It was admitted by Mr Kurcz with whom the claimant had a working relationship that he made the comment and apologised for it. However, the tribunal noted that he tried to argue initially that the comment was a compliment in respect of the whiteness of the claimant’s teeth and in the alternative, that it could have been said to a person of white skin colour. The tribunal did not accept either of these arguments. Taking into account the “Terminator” incident, the “bump” and his threat (on the claimant’s case) to visit her in her new job together with the teeth comment, we are still unable to consider that this comment of necessity rendered the whole of the claimant’s interaction with Mr Kurcz as a campaign of racial harassment. Mr Kurcz, although the claimant denied it vehemently, had a close working relationship with her. If the claimant in what the tribunal considered was a humorous way repeatedly said “ouch” to Mr Kurcz after the initial bump, told the tribunal that when she admired his Terminator costume and he pretended to shoot her, she pretended to play dead, we do not consider that this is characteristic of an overall approach motivated by racial harassment. However, we do not consider that it was unreasonable for the claimant to have felt that her dignity was violated by this remark about her teeth even though Mr Kurcz did not intend any offence. In dealing with the question of whether Mr Kurcz’s comment constituted racial harassment contrary to Article 4A of the 1997 Order, we have been assisted by the analysis of Underhill J in the case of Richmond Pharmacology v Dhaliwal [2009] IRLR 336. He stated:-
“As a matter of formal analysis, it is not difficult to break down the necessary elements of liability under Section 3A. They can be expressed as threefold:-
(1) The unwanted conduct
Did the respondent engage in unwanted conduct?
In this case we find that Mr Kurcz did engage in unwanted conduct. In giving evidence about it the claimant showed some distress.
(2) The purpose or effect of that conduct
Did the conduct in question either:-
(a) have the purpose; or
(b) have the effect of either:-
1. violating the claimant’s dignity; or
2. creating an adverse environment for her.
In this case we consider that the comment had the effect of violating her dignity.
(3) The grounds for the conduct
Was that conduct on the grounds of the claimant’s race (or ethnic or national origins)?
In this case we have already found that the comment was not the sort of comment that will be capable of being made to a person of white skin colour.
Mr Doherty presented a persuasively worded argument about the circumstances of the remark, but taken on balance we consider that the claimant was affected by the remark and it was reasonable for her to have been so affected as it was clearly capable of a racist interpretation.
(4) We have also considered the claimant’s claims in paragraph 18 of this decision as a whole in the light of the “teeth incident”. Is the “teeth incident” sufficient by itself to infuse incidents (a) to (f), in paragraph 18 with the taint of racism? For the reasons already set out in relation to each incident, we do not think so. Adding all the circumstances together, this one racist remark is not sufficient to displace the burden of proof. We do accept in itself the remark was a one-off offensive incident and the claimant is entitled to compensation for this one incident.
(5) It
remains for us to quantify damages for the hurt feelings of the claimant. We
found that this
one-off comment was racially insulting. As a one-off comment we classify it as
falling within the lowest band of the “Vento” categories of compensation
and unanimously we award the sum of £2,500.00 for damages for the claimant’s
hurt feelings.
We do not make any award for economic loss in this case. The claimant went straight to another job. Although she contended that she was entitled to be paid for tips that she did not have the opportunity to gain at the rate of £30.00 a shift, there was no credible objective evidence that this was the case.
SUMMARY OF COMPENSATION
19. £2,500.00 damages for hurt feelings. Interest thereon at 8%.
Having pinned the date of this comment to in or around 4 November 2010, we consider that the claimant is entitled to interest on this award from 4 November 2011 to 31 January 2013.
£2,500.00 x 8% ÷ 365 x 454 days = £248.77
Damages for hurt feelings: £2,500.00
Interest: £248.77
£2,748.77
20. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 4 September 2012, Belfast.
Date decision recorded in register and issued to parties:
In The Office Of The Industrial Tribunals And The Fair Employment Tribunal
THE INDUSTRIAL TRIBUNAL (Constitution and Rules of Procedure)
Between: CASE No: 483/11
620/11
Rita Okotete
Claimant
-and-
Pizza Express Limited
First Named Respondent
-and-
Liam Whiteway
Second Named Respondent
-and-
Matt Whiteway
Third Named Respondent
-and-
Szilveszter Kurcz
Fourth Named Respondent
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Claimant’s Application for a Review
of the tribunal’s Decision
dated 13 June 2012
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Rita Okotete v Pizza Express (1), Liam Whiteway (2), Matt Whiteway (3), and Szilvester Kurcz( 4)
Case No: 483/11
620/11
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Claimant’s Application for a Review of the Tribunal’s Decision dated 13 June 2012
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. I have asked for a review of the Tribunal’s decision dated 13 June 2012, where by an unanimous decision all my claims failed.
2. My claims were in relation to my employment with the First-Named Respondent in 2010 at one of its chain of Restaurants based in Bedford Street, Belfast in Northern Ireland.
3. My application for a review is in accordance with Rule 34(3)(e) of Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (“the Industrial Tribunals’ Rules”) on the grounds that “the interests of justice require such a review.
4. Whilst the respondents had their instructing Solicitors, Ms Amanda Magee of Tughans, together with a Barrister, Mr Sean Docherty, at the hearing presenting its case and taking notes, etc, I had only myself as an unrepresented claimant to do such.
5. During my cross-examination of the Second, Third and Fourth-named Respondents as well as the First-Named Respondent’s witnesses, I was noting down the answers given in response to my questions, coupled with those of Mr Docherty and the panel in their re-examination.
6. On the foot of all this, I also provided cogent evidence in support of my claims.
Rita Okotete v Pizza Express (1), Liam Whiteway (2), Matt Whiteway (3), and Szilvester Kurcz( 4)
Case No: 483/11
620/11
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Claimant’s Application for a Review of the Tribunal’s Decision dated 13 June 2012
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7. During my cross-examination of the Fourth-Named Respondent there was a very brief admission which came to light in respect of an issue which had been continuously denied by all.
8. On 30 October 2010, the Fourth-Named Respondent had dressed up looking like Arnold Schwarzeneggar “The Terminator” with part of his head shaved, together with dark glasses with a red beam in one of the lenses. Whilst I was on the first floor of the Restaurant he had pretended to shoot me with a toy gun which he had in his possession.
9. On our next shift in which we both worked, I told the Fourth-Named Respondent how great he had looked dressed up in his outfit and how he had made me laugh when he had pretended to shoot me. The Fourth-Named Respondent responded by saying that he wished someone would shoot me as it would make his life a lot easier if I was not around. Basically wishing harm upon me.
10. However, it was said that the Fourth Named Respondent did not say this to me and not only t hat, he would not have said such in any event as he did not even have a toy gun in the first place in which he could have pretended to shoot me with.
11. It was said that although the Fourth Named Respondent had arrived at the restaurant dressed in his costume carrying a toy gun, he had been told by the Second Named Respondent to put the gun away in his car and that this took place when the Fourth Named Respondent arrived for work at 3.00 pm.
Rita Okotete v Pizza Express (1), Liam Whiteway (2), Matt Whiteway (3), and Szilvester Kurcz( 4)
Case No: 483/11
620/11
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Claimant’s Application for a Review of the Tribunal’s Decision dated 13 June 2012
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12. There were varying times given of when the Fourth Named Respondent actually started work of 3.00 pm and 5.00 pm - 5.30 pm. I started my shift at 6.00 pm and during the course of the evening the Fourth Named Respondent had a toy gun in his possession and had pretended to shoot me with it. However, no one it is said saw the toy gun or him pretending to shoot me.
13. The Manager on duty during the shift in which I worked was the Second Named Respondent himself, yet it is being said he left early.
14. During my cross examination of the Fourth Named Respondent in relation to him pretending to shoot me which he continued to deny he had a gun, I asked him:
“As you walked towards the kitchen on the first floor, why were you trying to hide it? Was this because you had been told by Liam Whiteway earlier to put the gun away in your car?”
The Fourth Named Respondent replied and his exact words verbatim were:
“I never intended to shoot her.”
15. Having highlighted the above in my closing submissions, I had asked the Panel to draw an inference and stated the following at paragraphs 22-24 on page 139:
“22. I would ask the panel to draw inference here in respect
Rita Okotete v Pizza Express (1), Liam Whiteway (2), Matt Whiteway (3), and Szilvester Kurcz( 4)
Case No: 483/11
620/11
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Claimant’s Application for a Review of the Tribunal’s Decision dated 13 June 2012
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
of the Fourth Named Respondent’s reply as he clearly now makes an admission here that he had the gun. Although, I am slightly alarmed by his response as it could be construed as the Fourth Named Respondent implying that the gun he had pretended to shoot me with was not in fact a toy gun but a ‘real’ one. Ms Vettorello had stated in her Witness Statement about the gun being quite realistic looking [Page 68 – Para.24]
23. Also how can it be that no members of staff saw him with this gun and furthermore Ms Vettorello states:
“In relation to my decision at (b) “page 514”, I took statements from the Fourth Named Respondent and other members of staff who confirmed that whilst the Fourth Named Respondent did dress up as Arnold Schwarzenegger, he did not have a toy rifle with him during his shift on 30 October 2010.”
24. But it is not clear from the witness statements taken by Ms Vettorello during her investigation that members of staff had actually confirmed what she claims, as it appears they were not even asked. This draws a further inference here that they were asked by Ms Vettorello but she chose not to include this information by withholding it from the witness statements because it would show that the Fourth Named Respondent had been seen around the restaurant with a gun in his possession and furthermore had been seen pretending to shoot me with it – thus the respondents are attempting to conceal the truth.”
16. “Page 514” in quotes at paragraph 23 above is what I inserted in
Rita Okotete v Pizza Express (1), Liam Whiteway (2), Matt Whiteway (3), and Szilvester Kurcz( 4)
Case No: 483/11
620/11
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Claimant’s Application for a Review of the tribunal’s Decision dated 13 June 2012
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looking to refer the Panel to that specific page in the Trial Bundle in respect of Ms Vettorello’s letter dated 16 December 2010.
17. All aspects of issues raised in my claims were reputed but for one. This concerned the Fourth Named Respondent asking me on or around 12/13 November 2010, “If when I was stopped by Police at night whether I had to smile so that they could see me.”
18. This was admitted in the respondents’ submissions dated 6 June 2011 regarding the Fourth Named Respondent and can be found on page 117 of the Trial Bundle, the contents of which I read out extracts of during the hearing. The Fourth Named Respondent himself admitted the same.
19. The admission I believe only coming out of the fact I had not included it in my grievance letter dated 23 November 2010 to Ms Vettorello [my emphasis].
20. During cross examination by me of the Fourth Named Respondent, he stated, inter alia, that it was dark in the restaurant and that the “spotlight” was on his head and on seeing me had made his comment. He said the comment just cam into his head and that it was meant to be a complement about my teeth.
21. This had been the first time that any reference had been made to a “spotlight” being on the Fourth Named Respondent’s head – as he put it. What “spotlight”, and what kind of “spotlight” can be on someone’s head in order for them to make such a comment.
Rita Okotete v Pizza Express (1), Liam Whiteway (2), Matt Whiteway (3), and Szilvester Kurcz( 4)
Case No: 483/11
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Claimant’s Application for a Review of the Tribunal’s Decision dated 13 June 2012
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22. The Fourth Named Respondent said his comment which he made to me he would have said the same to a white person and that him mentioning about the police was part of the joke.
23. Mr Docherty stated in his closing submissions on behalf of the respondents in respect of the incident that I had not submitted a grievance in relation to this issue as I ma required to by Article 19 of the Employment (Northern Ireland) Order 2003 and that given the failure to lodge a grievance on this issue, the tribunal does not have jurisdiction to hear the issue.
24. At paragraph 28 of the Tribunal’s Decision it states:
“The only incident that the tribunal considered was racist behaviour in the events that took place throughout the claimant’s employment was that of Mr Kurcz making an inappropriate joke about the claimant. The claimant did not include this incident in her grievance letter to Emma Vettorello or in the prior telephone call she made to Ms Vettorello. That being the case, the tribunal is not able to include it in its consideration of the claimant’s case as this is a jurisdiction to which Regulation 6 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 applies.”
25. I did not know anything about “jurisdictional issues” when presenting my claims and my ET1 (Particulars of Claim) – Case No: 483/11, 620/11 which I lodged in the Office of the Tribunals were accepted.
26. There was a Statement of Issues agreed between the parties which the tribunal
Rita Okotete v Pizza Express (1), Liam Whiteway (2), Matt Whiteway (3), and Szilvester Kurcz( 4)
Case No: 483/11
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Claimant’s Application for a Review of the Tribunal’s Decision dated 13 June 2012
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were required to determine upon in the hearing of the case – a “jurisdictional issue” was not included as one of them.
27. As the tribunal has heard the issue, I would like to ask that it review its decision and determine it on the evidence which it found it to be “racist behaviour.”
28. If in considering to review its decision in relation to the “jurisdictional issue” and the tribunal finds in my favour and my complaint is upheld, then it should follow that the rest of my claims should succeed.
29. In relation to the Race Relations (Northern Ireland) Order 1997 (“the RRO”) one of the Articles in respect of which the tribunal states in its decision it looked at was Article 52A: this being “Burden of Proof: Industrial Tribunals”. At paragraphs 32 and 33 on page 9 of its Decision it states:
“32. The facts found for the Race claims are the same for the part-time worker discrimination claim.
33. Under Article 52A of the Race Relations (Northern Ireland) Order 1997:-
(1) This Article applies where a complaint is presented under Article 52 and the complaint is that the respondent:-
(a) has committed an act of discrimination, on
Rita Okotete v Pizza Express (1), Liam Whiteway (2), Matt Whiteway (3), and Szilvester Kurcz( 4)
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Claimant’s Application for a Review of the Tribunal’s Decision dated 13 June 2012
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grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in Article 3(1b)(a), (e) or (f), or part 4 in its application to those provisions; or
(b) has committed an act of harassment.
(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this article, conclude in the absence of an adequate explanation that the respondent:-
(a) has committed such an act of discrimination or harassment against the complainant;
(b) is by virtue of Article 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant;
(c) the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committee, that act.
30. If the tribunal does not agree and finds that my other claims should not succeed, then I would like to ask that it consider reviewing its decision in respect of those issues.
31. If deciding to do so, I would ask the tribunal to take particular
Rita Okotete v Pizza Express (1), Liam Whiteway (2), Matt Whiteway (3), and Szilvester Kurcz( 4)
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consideration in respect of the very brief admission made as set out at paragraphs 7-16 above.
32. In relation to the contents of Caitlin McCann’s grievance letter dated 9 October 2010 [Page 672 of the Trial Bundle], in respect of me allegedly, inter alia, intimidating and chasing her on the floor yelling at her in front of staff and customers and acting crazed and verbally abusing her – which I had referred to in Section XI: Pages 51-72 of my closing submissions – I would ask the tribunal to consider this also as unlawful harassment against me.
33. The respondent’s evidence should not be considered to be credible and in the circumstances I would ask the tribunal that in all reasonableness it could conclude and find by drawing inferences that on the balance of probabilities I was unlawfully discriminated against by reviewing its decision and also in view of the questionable credibility of the respondents’ evidence by not accepting their explanations provided throughout the entirely of this case.
34. I brought my claims in the Industrial Tribunals at Killymeal House in Belfast as a worker and person looking to exercise my rights against unlawful discrimination in the workplace in accordance with the statutory provisions so provided for under the RRO and Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000.
35. I am seeking justice in my favour against the respondents and therefore asking the tribunal to review its decision pursuant to Rule 34(3)(e) of the
Rita Okotete v Pizza Express (1), Liam Whiteway (2), Matt Whiteway (3), and Szilvester Kurcz( 4)
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Claimant’s Application for a Review of the Tribunal’s Decision dated 13 June 2012
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Industrial Tribunals Rules on the grounds that “the interests of justice require such a review”.
Signed:
Print Name: Rita Okotete
Dated: 31 July 2012
To: The Secretary
Office of the Industrial Tribunals
And the Fair Employment Tribunal
Killymeal House
2 Cromac Quay
Ormeau Road
Belfast BT7 2JD
Case Recerence No: 483/11, 620/11
From: Rita Okotete
The Claimant