Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1334/15

 

 

 

CLAIMANT: Rui Óscar Barato De Oliveira

 

 

RESPONDENTS: 1. Zio Mediterranean Ltd

2. Dritor Mula

3. Paulius Regina

4. Sharon Mula

 

 

 

DECISION

The unanimous decision of the tribunal is; that the claimant's claim for race discrimination, racial harassment and constructive dismissal are dismissed; and that the claimant suffered an unlawful deduction by not receiving the holiday pay and statutory sick pay to which he was entitled. The claimant's claim for unlawful deductions succeeds against the first respondent who is ordered to pay to the claimant Statutory Sick Pay of £25.00 and holiday pay of £1,615.36. The remaining claims against all respondents are dismissed.

 

 

 

Constitution of Tribunal:

Employment Judge: Employment Judge Greene

Members: Ms V Walker

Ms E McFarline

 

Appearances:

The claimant appeared in person.

The respondents were represented by Mr T Martin.

Interpreters: Ms Celia Felix, Ms Aurience Smith and Mr Bruno Bastos

1.             The tribunal heard evidence from the claimant and on behalf of the respondents from Sharon Mula, Dritor Mula, Paulius Regina and Fabio Chessa. The tribunal received five witness statements and five bundles of documents amounting to 287 pages.

 

THE CLAIM AND COUNTERCLAIM

 

2.             The claimant claimed race discrimination and that he was owed notice pay, arrears of pay and holiday pay. The respondents accepted that it owed the claimant payments for 12 hours for holiday pay and £25.00 for Statutory Sick Pay.

 

THE ISSUES

 

3.             Legal Issues

 

(1)           Whether the claimant was discriminated against on the grounds of his race by any of the respondents contrary to the Race Relation (Northern Ireland) Order 1997.

 

(2)           Whether the claimant was subjected to racial harassment by any of the respondents contrary to the Race Relations (Northern Ireland) Order 1997?

 

(3)           With respect to the claimant's claims of race discrimination, who are the claimant's comparators?

 

(4)           Whether the claimant was unfairly dismissed by the respondents contrary to the Employment Rights (Northern Ireland) Order 1996?

 

(5)           Has the claimant been subjected to an unlawful deduction of holiday pay?

 

(6)           Has the claimant been subjected to any other unlawful deduction of wages?

 

(7)           Has there been a breach of the claimant's contract of employment?

 

(8)           To what compensation, if any, is the claimant entitled?

 

(9)           To what other remedy, if any, is the claimant entitled?

 

FACTUAL ISSUES

 

(1)           Did respondent 2, Dritor Mula, verbally and physically assault the claimant on a daily basis over a period of four years?

 

(2)           Did respondent 3, Paulius Regina, copy respondent 2, Dritor Mula, and verbally abuse the claimant (racially) every day and did he try to physically abuse the claimant?

 

(3)           In what way did respondent 4, Sharon Mula, discriminate against the claimant contrary to the Race Relations (Northern Ireland) Order 1997?

 

(4)           In what way did respondent 1, Zio Mediterranean Ltd, discriminate against the claimant contrary to the Race Relations (Northern Ireland) Order 1997?

 

(5)           In what way did respondent 2, Dritor Mula, discriminate against the claimant contrary to the Race Relations (Northern Ireland) Order 1997?

 

(6)           In what way did respondent 3, Paulius Regina, discriminate against the claimant contrary to the Race Relations (Northern Ireland) Order 1997?

 

FINDINGS OF FACT

 

4. (1) The claimant is African Portuguese and was born on 27 November 1980. His skin colour is black.

 

(2) The first respondent (Zio Mediterranean Ltd) is a restaurant operating in Portadown.

 

(3) The second respondent, (Dritor Mula) a native of Kosovo, is a director and joint owner of the first respondent restaurant with the fourth respondent (Sharon Mula) who also worked for the first respondent restaurant. The third respondent, (Paulius Regina) a Lithuanian native, is the head chef within the first respondent restaurant.

 

(4) The claimant worked for the first respondent (Zio Mediterranean Ltd) from
7 June 2010 until 13 June 2014.

 

(5) The first respondent (Zio Mediterranean Ltd) in February 2014 employed around 30 persons, full-time and part-time. Many of them were not of British or Irish origin. On average the first respondent employed about 6 or 7 black persons.

 

Discrimination

 

(6) In June 2010 the first respondent (Zio Mediterranean Ltd) advertised for chefs and waiting staff. The claimant applied and was appointed as a kitchen assistant. The claimant believes this was because he was black. The respondents deny this. The claimant's gross pay was £6.19 per hour. His contractual hours were variable. According to the claimant, he worked 60-70 hours per week over seven days. The first respondent asserts his average weekly hours were 40 over 5 days.

 

(7)           The claimant asserts that the racial discrimination began from when he started working with the first respondent (Zio Mediterranean Ltd) and was carried out specifically by the second (Dritor Mula) and third
(Paulius Regina) respondents. The discrimination included; appointing him as a kitchen assistant when the jobs advertised were for chefs and waiters; the third respondent telling him that only white people could work the floor and that black persons had to work in the kitchen; that he had to work long hours and if he complained he was threatened with dismissal; that he could not get paid holiday leave when he requested it; that he did not receive payslips; that he was called by the second respondent his "black son" or "nigger" or "monkey"; and that he was grabbed, punched and thrown to the floor; by the second and third respondents. It was alleged that much of this conduct and behaviour was done in front of other staff who laughed while the perpetrators thought it funny.

 

(8)           The claimant alleges that he reported the above treatment to the fourth respondent (Sharon Mula) and the restaurant manager Fabio Chessa and nothing was done. Both deny this.

 

(9)           The claimant stated that he was the only black Portuguese worker. However his brother also worked there. He did not complain about this bad treatment for fear of losing his job and thus not being able to support his partner and their two children. The bad treatment included that black staff members, of whom there were four, did not get a share of the tips provided by the customers of the restaurant at an appropriate level each week. The tips themselves amounted to some £400.00 per week according to the claimant. In addition the claimant also alleges that he was not paid for considerable overtime of approximately 15 hours per week that he worked. The respondents deny all these allegations.

 

(10)        It is not disputed that the claimant and his partner had socialised with fellow employees of the first respondent (Zio Mediterranean Ltd). The claimant and his partner socialised with the third respondent (Paulius Regina) and his wife on a regular basis, including in each other's homes. The second (Dritor Mula) and third respondents attended at the claimant's gym and participated in the training and boxing there. A number of photographs were produced to the tribunal showing these social occasions. The third respondent described the claimant as a friend but the claimant disputed this. Undoubtedly the relationship has deteriorated.

 

Unlawful deductions

 

(11)        The claimant alleges that the tips donated by customers were not properly divided amongst staff. He asserts that he did not receive what was his due.

(12)        He attributes this to the fact that he was working in the kitchen because black workers were not permitted to work in the restaurant with members of the public. The claimant alleged the tips amounted to some £400.00 per week and contended that the share not paid to him amounted to £20.00 per week.

 

(13)        The tips were collected and distributed evenly, by the fourth respondent (Sharon Mula), to those entitled. Neither she nor the second respondent (Dritor Mula) were paid any tips. She asserted the tips were divided with each staff member getting his or her due entitlement.

 

(14)        The claimant, apart from his assertion, did not adduce any evidence to show what the weekly amount in tips was, nor how it was divided among staff nor how much any member of staff received by way of tips nor any evidence from which the tribunal could conclude that there was substance to the claimant's assertions that he did not receive tips amounting to £20.00 per week.

 

(15)        The claimant also asserted that his hours of work were changed and he suffered a loss of earnings. The claimant did not provide specific dates on which he worked and was not paid or indeed any evidence that would have enabled the tribunal to accept this assertion.

 

(16)        The claimant maintained that he worked 15 hours per week over six or seven days for which he was not paid, ie, over and above the 40 hours per week. The respondents disputed this. The tribunal does not accept this on the basis of the evidence before it. In so concluding the tribunal had regard to the following matters:-

 

(a)           The documents showing hours worked by the claimant and the exhibited pay slips, which were not for the entire duration of the claimant's employment, do not show a discrepancy between hours worked and payment made.

 

(b)           The claimant did not give any evidence to the tribunal of specific weeks when he worked any additional 15 hours for which he was not paid.

 

(c)           Similarly the claimant did not rely on other evidence such as bank statements which would show his income and relate them to hours worked, either from his own knowledge or indeed from the documents such as hourly rotas, which would show a discrepancy between hours worked and payments made or enable such an inference to be drawn.

 

(d)           The exhibited documents show the claimant to have worked a varying numbers of days each week. However the most common number of days worked per week by the claimant is five.

 

Paid holiday leave

 

(17)        The claimant's contract of employment entitled him to 28 days' holiday leave per year. The first respondent (Zio Mediterranean Ltd) accepted that he did not get his full paid holiday entitlement on termination. It accepted that it owes the claimant holiday pay of £72.66 and Statutory Sick Pay of £25.00.

 

(18)        The documents exhibited by the parties, by agreement, show that the claimant received paid holidays on 24 March 2014; 20 June 2014; for five days around 17 February 2014 and four days for an unspecified time in 2014.

 

(19)        The claimant alleged he did not receive any paid holiday leave in 2013. The respondents did not accept that but did not produce any evidence of the claimant having received paid holiday leave in 2013. This is a matter that one would have expected the first respondent (Zio Mediterranean Ltd) to be in a position to prove from its records and such was not done. In the absence of any evidence to the contrary, the tribunal accepts the claimant's evidence that he did not receive any paid leave in 2013.

 

 

(20)        In October 2013 the claimant's partner broke her leg. The claimant alleges he asked for time off work from the second respondent (Dritor Mula) and was promised time off work when the second respondent returned from holiday. The claimant then spoke to the fourth respondent (Sharon Mula) and she said to await the second respondent's return from holiday. When the claimant asked the second respondent about the holidays he was told to "f... off", he alleges.

 

(21)        The claimant has a keen interest in boxing. He has spent a lot of time pursuing that interest. He opened a gym in Portadown and was involved in providing training for boxing to many people in the Portadown area, particularly young people. The second (Dritor Mula) and third
(Paulius Regina) respondents were visitors to the claimant's gym on a number of occasions and the third respondent did some training there.

 

(22)        It is accepted that the claimant received £2,000.00 from the first respondent (Zio Mediterranean Ltd). The claimant says it was a gift for which the first respondent got publicity. The second respondent (Dritor Mula) says it was a loan for which repayment is being sought.

 

(23)        The claimant alleged, which is denied, that the second respondent (Dritor Mula) offered him £1,000.00 to break the leg of a colleague (chef Aziz), which the claimant refused. The second respondent denied this. Chef Aziz was in dispute with the first respondent (Zio Mediterranean Ltd) at the time.

 

(24)        The claimant left his job with the first respondent (Zio Mediterranean Ltd) on 13 June 2014. He did so by failing to attend for work. The claimant gives two accounts of his reason for leaving work. In his claim form he relates an incident when he sought paid holiday leave from the second respondent (Dritor Mula) which was unsuccessful. He asserts that in refusing him, he was abused by the second respondent. He then states in his claim form:-

 

"... I never returned to work - I would no longer deal with this stress and the abuse I faced at work."

 

(25)        In his witness statement the claimant records after relating the same incident about his request for holiday leave:-

 

"... On 13 June 2014 I had to leave my job without holidays and wages, I could not work because I had to look after my daughters, one aged 6 years and the other aged 1 year. In 2014 my daughter's mother had another operation ..."

 

THE LAW

 

5. Constructive Dismissal

 

(1)           A breach of contract occurs when the employer breaches any term of the claimant's contract of employment whether the term is an express term or an implied term or arises by operation of law.

 

(2)           To establish a constructive dismissal that is unfair a claimant must prove that:-

 

(a)   there was a breach of his contract of employment, and

(b)   the breach went to the core of the contract, and

(c)   the breach was the reason or principal reason for his resignation, and

(d)   he did not delay in resigning after the breach occurred, and

(e)   in all the circumstances the employer acted unreasonably.

 

(3)           The breach of contract can be a breach of an express term of the contract or a breach of an implied term, or both.

 

(4)           Implied terms of the contract include:-

 

(a)   a breach of the duty of trust and confidence, or

(b)   a breach of the duty of co-operation and/or support, or

(c)   a breach of the duty promptly to address grievances, or

(d)   a breach of the duty to provide a suitable working environment.

 

(Harvey on Industrial Relations and Employment Law D1 [429]-[479]).

 

(5)           A breach of the implied term of trust and confidence can be a single act of the employer or a course of conduct by the employer over a period of time.

 

(6)           Where a course of conduct is relied upon, it is not necessary that any single act itself amounted to the breach of the implied term of trust and confidence but the course of conduct, cumulatively, must amount to the breach of the implied term.

 

(7)           Where a constructive dismissal claim arises from an alleged breach of the implied term of trust and confidence where the employee leaves in response to conduct carried over a period of time, the particular incident which causes the employee to leave may in itself be insufficient to justify him taking that action, but when viewed against the background of such incidents it may be considered sufficient by the court to warrant their treating the resignation as a constructive dismissal. It may be the "last straw" which causes the employee to terminate a deteriorating relationship ( Harvey on Industrial Relations and Employment Law D1 [480]).

 

Discrimination on the ground of race

 

(8)           A person discriminates against another person on the ground of race, in any circumstances relevant for the purposes of the Race Relations (Northern Ireland) Order 1997, if he treats the other less favourably than he treats or would treat other persons (Article 3 The Race Relations (Northern Ireland) Order 1997).

 

(9)           A person ("A") subjects another person ("B") to harassment in any circumstances relevant for the purposes of any provision referred to in Article 3(1B) where, on the ground of race or ethnic or national origin A engages in unwanted conduct which has the purpose or effect of violating B's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. Conduct shall be regarded as having the effects specified only if, having regard to all the circumstances, including, in particular the perception of B, it should reasonably be considered as having that effect. (Article 4A, The Race Relations (Northern Ireland) Order 1997).

 

(10)        Where on the hearing of a complaint the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of inadequate information that the respondent has committed such an act of discrimination or harassment against the complainant or by virtue of Articles 32 or 33 is to be treated as having committed such an act of discrimination or harassment against the complainant, 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 committed that act. (Article 52A, The Race Relations (Northern Ireland) Order 1997).

 

(11)        An employer shall not make a deduction from wages of a worker employed by him unless the deduction is authorised by statute or by a relevant provision of the worker's contract of employment where the worker has previously signified in writing his agreement or consent to the making of the deduction (Article 45 The Employment Rights (Northern Ireland) Order 1996).

 

(12)        Where an employee's contract of employment is terminated and, he has not taken up all the paid leave to which he is entitled, the employer shall pay to him the value of such untaken holiday leave.

 

(13)        An employee may bring a claim for the recovery of damages for any sum which is due or is outstanding on the termination of the employee's employment (Article 3 Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994).

 

(14)        A period for which an employee may claim for unpaid holiday leave may only stretch back for a period of 18 months. ( Harvey on Industrial Relations and Employment Law C1 [186]).

 

Application of the of the law and the findings of fact to the issues

 

6. Race Discrimination

(1)           The claimant's claims are for direct race discrimination and racial harassment on the basis of his colour.

 

(2)           The first respondent (Zio Mediterranean Ltd) employs a number of people who are not Irish or British in the restaurant. Indeed the second (Dritor Mula) and third (Paulius Regina) respondents are respectively natives of Kosovo and Lithuania. A significant number of the staff also originate from outside Ireland or Britain. A number of staff members are black.

 

Comparators

 

(3)           The claimant's comparators therefore are those other members of staff who are white, whatever their country of origin.

 

Difference in status

 

(4)           The claimant therefore can satisfy the first requirement of a discrimination claim by showing difference in status between himself, as a black person, and the non-black members of staff.

 

Less favourable treatment

 

(5)           The claimant has not produced sufficient evidence that would enable the tribunal to conclude that he has suffered less favourable treatment. In so concluding the tribunal had regard to the following matters:-

 

(a)           The claimant lists a catalogue of treatment which would amount to detrimental treatment.

 

(b)           The respondents deny this treatment had occurred.

 

(c)           There is a complete absence of objective supporting evidence before the tribunal, yet such evidence must exist if the allegations are true. A number of persons who worked for the first respondent (Zio Mediterranean Ltd) are black and yet they were not called to give evidence of the alleged anti-black attitude and conduct that, the claimant alleges, was common within the first respondent restaurant and practised by the respondents.

 

(d)           The claimant's partner and brother also worked in the first respondent restaurant (Zio Mediterranean Ltd) at the same time as the claimant. The claimant told the tribunal that he does not speak to his brother and he did not want to involve other members of staff. Unfortunately, from the claimant's point of view, the absence of supporting evidence that must exist, if his account is correct, has the consequences of making it more difficult for him to prove his contentions.

 

(e)           The claimant's contention is that the respondents are anti-black. Yet they have employed a number of black employees. If the claimant is correct then the tribunal is left in the position of concluding that the first respondent (Zio Mediterranean Ltd), an anti-black employer, employed black persons and then discriminated against them. It seems to the tribunal that it is improbable that if an employer were anti-black that it would employ black people in the first instance, in the absence of any other explanation.

 

(f)            It is accepted that the second respondent (Dritor Mula) advanced to the claimant £2,000.00 for his gym. The second respondent asserts it was a loan for which he is still seeking repayment. The claimant asserts it was a gift from which the first respondent (Zio Mediterranean Ltd) got publicity for the restaurant from the claimant's boxing activities. Again it seems improbable that someone who is anti-black would make a loan to a black person without any framework for repayment. In addition the extent of the publicity provided to the first respondent was not revealed to the tribunal. It seems even more improbable that an anti-black employer would make a gift to a black employee in the absence of cogent evidence that the anti-black employer benefitted significantly.

 

(g)           While accepting that the claimant had family commitments which necessitated his remaining in employment, the tribunal did not receive any evidence about the claimant making efforts to secure employment with a different employer during the four years during which the claimant alleges he was the victim of constant racial discrimination and harassment.

 

(h)          There was evidence before the tribunal of the claimant socialising with the respondents on a regular basis during his employment which is somewhat surprising if the respondents were guilty of constant racial discrimination against him. Indeed a number of photographs of such events were exhibited to the tribunal.

 

(i)            Similarly the third respondent (Paulius Regina) attended at the claimant's gym and the claimant and his partner socialised with the third respondent and his wife. These factual matters are difficult to reconcile with the claimant's assertions about what was happening in the first respondent restaurant (Zio Mediterranean Ltd) and what the other respondents were doing to him.

 

(j)             The non-payment to the claimant of holiday pay and sick pay is clearly detrimental treatment and potentially less favourable treatment.

 

 

(6)           The tribunal is satisfied that, apart from the non-payment of holiday pay and sickness pay, there is not any persuasive evidence that the claimant suffered less favourable treatment.

 

The ground or reason why

 

(7)           Even if the non-payment to the claimant of the appropriate holiday pay and sickness pay were less favourable treatment there is not any evidence before the tribunal that this occurred because the claimant was black.

 

(8)           The shifting of the burden of proof in the discrimination claim does not assist the claimant as he has failed to establish a prima facie case of race discrimination.

 

Racial harassment

 

(9)           By reason of the difficulties set out above, the claimant has not proved, on the balance of probabilities, that the catalogue of bad treatment, of which he complains, has occurred. It is therefore unnecessary to consider the ground for any such treatment in order to determine his claim of harassment on racial grounds.

 

(10)        The deficiencies in the evidence adduced in support of the claimant's claims, set out above, are such that the tribunal cannot conclude that any unwanted conduct was done on racial grounds, even with the benefit of the shifting of the burden of proof under Article 52A The Race Relations (Northern Ireland) Order 1997.

 

(11)        The claims for race discrimination and racial harassment are dismissed against all respondents.

 

Unlawful deduction from wages

 

(12)        The first respondent (Zio Mediterranean Ltd) admits that it has not paid to the claimant sick pay of £25.00 and holiday pay of £72.66 to which the claimant is entitled. The claimant does not challenge the quantum of sick pay owed to him but challenges the quantum of holiday pay owed to him. The claimant claims that he never received the paid holiday leave to which he was entitled for the duration of his employment. The tribunal orders the first respondent to pay to the claimant the unpaid Statutory Sick Pay of £25.00.

 

(13)        An employee can only claim for unpaid holiday leave for a period of up to 18 months ( Larner v NHS Leeds [2012] 825 CA).

 

(14)        The period for consideration for unpaid holiday leave is from 13 January 2013 until 13 June 2014. The claimant received paid holiday leave on 24 March 2014; 20 June 2014; for five days around 17 February 2014 and a further four days for a non-specified time.

 

(15)        There is a dispute between the parties about the number of days the claimant works. The claimant suggests seven days per week and the first respondent (Zio Mediterranean Ltd) says five days per week. The record sheets of hours worked exhibited show that five days per week to be the most common number of days that the claimant worked per week.

 

(16)        The tribunal concludes on the basis of the evidence before it that the claimant worked five days per week. For the 18 month period the claimant's holiday entitlement would be 42 days. He received 10 days and is therefore owed 32 days (6.4 weeks). His average working week was 40 hours and the applicable statutory minimum wage was £6.31 per hour. He is therefore owed unpaid holiday pay of £1,615.36 (6.4 x 40 x £6.31). The tribunal orders the first respondent (Zio Mediterranean Ltd) to pay to the claimant £1,615.36 for untaken holiday leave.

 

(17)        The tribunal is not persuaded that the claimant is owed money for unpaid wages or overtime. The claimant makes those claims. The respondents deny them. There was not any evidence before the tribunal to identify the specific amounts of wages or overtime not paid to the claimant or the dates to which they relate.

 

(18)        The claimant also claims for not getting his fair share of tips throughout his employment which he estimates at £20.00 per week. The respondents say that the money gained from tips was distributed each week by the fourth respondent (Sharon Mula) to the staff and that the claimant received his fair share. Apart from the claimant's allegation of not receiving a fair amount, there was not any evidence of what the money from tips totalled in any week or what was distributed to the employees entitled to benefit or the basis for calculating what is owed to the claimant. The tribunal therefore dismisses the claimant's claim for payment for tips.

 

Breach of contract

 

(19)        The failure by the first respondent (Zio Mediterranean Ltd) to pay to the claimant monies due to him by way of holiday pay is clearly a breach of an actual term of the claimant's contract of employment. Similarly the failure to pay to the claimant Statutory Sick Pay to which he was entitled is also a breach of contract.

 

Constructive unfair dismissal

 

(20)        The breaches of actual terms of the claimant's contract are also capable of amounting to breaches of the implied term of trust and confidence.

 

(21)        These breaches of contract, actual and implied, go the core of the contract and are sufficient to ground a claim for unfair constructive dismissal. As the tribunal has not made any finding of race discrimination or racial harassment, they cannot constitute breaches of contract.

 

(22)        The tribunal is not persuaded that these breaches of contract were the reasons for the claimant resigning from his employment. In so concluding the tribunal had regard to the following matters:-

 

(a)           The tribunal has not accepted, on the basis of the evidence before it, that the claimant was the victim of abuse at work. Therefore the reason given in his claim form for resignation cannot be considered as a breach of the implied term of trust and confidence and therefore cannot ground his claim for constructive dismissal.

 

(b)           The reason advanced for resignation in the claimant's witness statement is to look after his two daughters in the context of his partner's health difficulties and treatment.

 

(c)           The claimant has not alleged that the non-receipt by him of paid holiday leave or Statutory Sick Pay were the reason for his resignation or was a significant factor in his decision to resign.

 

(23)        Accordingly the claimant's claim for constructive unfair dismissal cannot succeed and is dismissed. It is not necessary therefore to consider the other elements of a constructive unfair dismissal claim.

 

7. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 23, 24, 25 and 27 January, 6, 7, 8, 22 and

23 February 2017, Belfast.

 

Date decision recorded in register and issued to parties: