Leblanch v Gary Callaghan (Owner) [2009] NIIT 9

THE INDUSTRIAL TRIBUNALS

CASE REFS: 1379/07IT

9/08IT

CLAIMANT: Juan Carlos Arguelles Leblanch

RESPONDENTS: 1. Gary Callaghan (Owner)

2. The Windrose Restaurant

DECISION

The tribunal has unanimously decided that the claimant has failed to establish any of his heads of claim and his claim is therefore dismissed in its entirety.

Constitution of Tribunal:

Chairman: Mr T Browne

Panel members: Ms F Graham

Mr D Walls

Appearances:

The claimant represented himself, with the assistance of Mr Bottomley, an interpreter, provided by the Tribunal.

The respondents were represented by Mr Harkin, barrister-at-law instructed by C&H Jefferson, solicitors

ISSUES

The issues for the tribunal agreed at the outset of the hearing were:-

(i) Was the claimant less favourably treated on the grounds of race;

(ii) Was the claimant constructively and unfairly dismissed;

(iii) Was the claimant entitled to paid annual leave;

(iv) Had the claimant suffered a detriment in relation to health and safety matters and was he deprived of the right to be accompanied at a disciplinary hearing.

The claimant withdrew his previous head of claim regarding an alleged failure by the respondents to pay him holiday pay.

Whilst the above are separate, actionable heads of claim, the claimant’s primary focus was on the first head of claim. The others, whilst discrete, overlap with it in evidence to a significant degree.

FINDINGS OF FACT

The tribunal received evidence orally and in writing, from which the tribunal made the following findings of fact.

1. The claimant was first employed by the respondents in October 2004 as a commis chef until June 2005, when he left their employment to work in another restaurant. He requested to return to the respondents’ employment in July 2005, which they agreed to, whereupon he was employed by them on promotion to second chef until October 2006, when he was promoted to the position of head chef for a probationary period until April 2007.

2. Whilst the respondents had no complaint about the claimant’s ability as a cook, the tribunal found clear evidence that from the start of the probationary period as head chef, there were problems with his ability to manage the efficient running of the kitchen. This included issues surrounding kitchen hygiene, ordering sufficient ingredients, and the manner in which he treated staff, particularly females.

3. The claimant’s case did not in effect contradict these issues, but in fact relied on the difficulties he encountered as evidence of the lack of support given to him by the respondents. In his view, he was from the outset left with insufficient staff, which in turn meant that he was too busy ‘firefighting’ to pay full attention to the ordering and cleaning.

4. He unequivocally ascribed this undermining lack of support at the tribunal hearing to what he viewed as the racism of Gary Callaghan, the owner of the Windrose Restaurant. The core of the claimant’s case is that because of his less favourable treatment on grounds of race, the respondents not only were guilty of race discrimination, but thereby forced him into a situation where he had no option but to resign, thereby giving rise to his claim for constructive and unfair dismissal.

5. The tribunal accepted the evidence of the respondents that Linda Patterson, the general manager of the restaurant, sought to address the issues around profit percentages and food ordering in the form of informally talking to him and offering to print order-sheets for him; the tribunal accepts her unchallenged evidence that that offer was refused by the claimant.

6. The tribunal also accepts her evidence that the claimant’s complaint that he did not have sufficient staff has to be viewed in the context of the seasonal fluctuations such businesses encounter, along with bookings for a particular week. The claimant did not refer to any evidence which could assist the tribunal to make any useful comparison between the number of staff required and that available. This view was confirmed by the respondents’ evidence that the new executive head chef, Ian Hunter, manages the restaurant efficiently with roughly the same size of pool of staff as that available to the claimant. Lee Craney gave evidence on behalf of the claimant, and was unchallenged in asserting that, for example, there were now more staff on duty since Mr Hunter took over. This was not viewed by the tribunal as being cogent evidence to show the tribunal how this demonstrates behaviour by the respondents sufficient to offset the fluctuations in business needs referred to above.

7. The tribunal accepts the respondents’ evidence refuting the claimant’s assertion that he was left short-staffed through lack of recruitment. The tribunal accepts as credible Linda Patterson’s evidence that she sent home a kitchen porter, recruited by the claimant, because she discovered that this person could not speak or understand English, with obvious implications for their ability to follow health and safety instructions. The claimant did not refute the respondents’ evidence that he as head chef had been allowed to recruit Johnny Grubb as second chef, and also dismissed him after 13 weeks. The tribunal accepted the respondents’ written and oral evidence that they had placed advertisements seeking replacement staff when asked to by the claimant.

8. The tribunal accepts the respondents’ evidence that a serious problem emerged regarding the claimant’s treatment of female staff. This resulted in general disquiet and in formal complaints with witness statements being made. One female member of staff had to be cajoled by the respondents into returning to work, but resigned soon afterwards, albeit on unspecified grounds. The claimant did not deny to the tribunal that he had also apologised to Linda Patterson for shouting foul language at her, notwithstanding her position of authority.

9. The tribunal formed the view that the claimant was capable of volatile and high-handed behaviour. This manifested itself in shouting and using foul language; whilst this is to some degree commonplace in the heat of a kitchen, the claimant also behaved in this way on one occasion at the tribunal hearing.

10. The tribunal accepted that the respondents had no option but to address the issue of the claimant’s attitude to female staff, as a legitimate disciplinary issue in its own right and to comply with their duty of care to those staff, particularly where formal complaints had been made. The claimant did not deny that he had asked for informal resolution of the matter, without the need for witnesses or representatives, which the tribunal finds to explain the lack of same at the disciplinary meeting.

11. The tribunal also accepts the respondents’ evidence that they genuinely felt they had no option but to terminate the claimant’s tenure as head chef at the end of his probationary procedure. His performance throughout had given rise to all manner of problems, regarding the efficient running of their business, as well as personnel issues. The respondents accepted that the wording of their letter to the claimant of 9 April 2007 was clumsy, in that the first part of it would suggest that they were considering dismissing him.

12. That however was offset by the remainder of the letter, which made clear that he would be offered the chance to stay on with the same title and, importantly, pay, but as second-in-command to Ian Hunter as ‘Executive Head Chef’. Given the claimant’s volatile nature, it was unsurprising that he took this badly.

13. The tribunal accepts that the respondents had recruited Ian Hunter in advance of the disciplinary proceedings because they were afraid that the claimant might simply walk out despite the generous terms they were offering. The tribunal formed the view that the respondents did not have the stomach to formally confront the claimant until those formal complaints made it unavoidable. The claimant by his increasingly high-handed behaviour and arrogant refusal to accept help or even to acknowledge his clear inability to cope, created a situation which had to be addressed by the respondents.

14. At a meeting which turned into a serious confrontation between Gary Callaghan and the claimant, both men claimed that he had been threatened by the other. The tribunal on balance accepts the evidence of Mr Callaghan as to what occurred. This view, in the absence of independent witnesses, is formed on the basis of the complete lack of any such conduct alleged against Mr Callaghan previously, compared to the self-acknowledged volatility of the claimant, evidenced by his outbursts which formed the subject of formal complaints. The tribunal also had the benefit of observing Mr Callaghan under extreme pressure at the tribunal, being accused to his face by the claimant of being a racist. Similarly, the tribunal also observed the volatile outburst from the claimant.

15. The tribunal does not accept the claimant’s version of events on that occasion; he had most to be angry about; he is physically much stronger than Mr Callaghan, and was a former international boxer; and he had a recent track record of verbal aggression, apparently regardless of the other person’s vulnerability or position of authority.

16. The tribunal does not place any reliance upon the claimant’s contention that he would not have behaved like this if he had known that the CCTV system was not recording. The tribunal is satisfied that the claimant’s volatile nature overrode any such consideration, and it does him little credit to say that he would only refrain from this behaviour because he thought he might be recorded doing so.

17. The tribunal is therefore satisfied that the claimant, having behaved in this way stormed out of the restaurant. He was not dismissed by the respondents, who wrote to him formally suspending him; their letter to him crossed in the post with his letter of resignation.

LAW AND CONCLUSIONS

18. The relevant law on race discrimination is contained in Article 3 of the Race Discrimination (Northern Ireland) Order 1997 (‘the Order’) and in Article 52A of the Race Relations (Northern Ireland) Order as amended by Article 40 of the Race Relations Order (Amendment) Regulations (Northern Ireland) 2003.

Article 3 (1) “ A person discriminates against another in any circumstances relevant for the purposes of any provision of this order if-

(a) on racial grounds he treats that other less favourably than he treats or would treat any other persons;

(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but-

(i) which is such that the proportion of persons who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and

(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied;

(iii) and which is to the detriment of that other because he cannot comply with it.”

19. The law in relation to the burden of proof in race discrimination cases is set out at Article 52A (2) of the Order (as amended) and provides as follows-

20. “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 adequate explanation that the respondent-

(a) has 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.”

21. The tribunal has also had regard to the case of IGEN –v- Wong [2005] IRLR 258 regarding the burden of proof, more recently determined in Madarassy -v- Nomura International plc [2007] IRLR 246 and Laing -v- Manchester City Council [2006] IRLR 748. It seems clear that the tribunal must look not only at the allegations made by the claimant but also at any evidence adduced by the respondents which tends to support the claimant’s case. The tribunal should also look at all the evidence in the case to consider whether, in the absence of adequate explanation from the respondents, they have committed an act of unlawful discrimination against the claimant. The case law also makes it clear that it is for the claimant to prove facts from which the tribunal could make a finding of discrimination in the first place.

22. The tribunal has unanimously concluded that the claimant has failed to prove any facts from which it could make any such finding. From the facts found by the tribunal, it concludes that the claimant did not establish for example that he was treated any differently than any other head chef, still less that he received less favourable treatment, on racial or any other grounds.

23. He also failed to establish that he had not received annual leave entitlement; the records clearly showed that he had been allowed to take whatever leave he requested; his version that he had had to forego holidays because of lack of staff was not borne out by the documentation.

24. Similarly, he did not demonstrate that his working conditions led to a detriment on health and safety grounds; the tribunal accepted the evidence of Ms Patterson and Mr Hunter that much the same equipment was still in use. The tribunal also finds that the reason no-one else was at the disciplinary hearing was because he had requested an informal resolution; there is therefore no evidence that he was denied the right to be accompanied.

25. The tribunal is of the view that the claimant was the architect of his own downfall; his misplaced over-reliance on his own abilities to cope caused him to fall far short of the standards required, and also led him to refuse the help which was offered. This, combined with his overbearing attitude to others, notably female staff, created a situation where he was on a collision course with his employers. Rather than work with them, the tribunal is satisfied that he interpreted their involvement as an unwarranted intrusion into his domain. It seems clear that he was prepared to blame everyone but himself, and throughout this process has not conceded that any of the blame lay with him.

26. The tribunal has therefore concluded that the claimant has failed to establish any limb of his claim, either individually or collectively. There was in the opinion of the tribunal no evidence which gives any credibility to the explicit allegation by the claimant that Mr Callaghan is a racist, or that he or anyone else in the respondents’ employment behaved in such a fashion.

27. There also is considered by the tribunal to be no evidence that there was anything in the behaviour of the respondents to warrant a claim of constructive unfair dismissal.

28. The tribunal therefore dismisses the claims in their entirety.

Chairman:

Date and place of hearing: 11, 12, 14 and 15 May 2009, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Leblanch v Gary Callaghan (Owner) [2009] NIIT 9_08IT (24 August 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/1379_07IT.html Cite as: [2009] NIIT 9_8IT, [2009] NIIT 9_08IT

Industrial Tribunals Northern Ireland Decisions