THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 126
PARTIES
Ms Monica Rosu
and
Dunnes Stores Ltd
(represented by Byrne Wallace, Solicitors)
File References: EE/2008/301
Date of Issue: 24th June 2011
Claim
1.1. The case concerns a claim by Ms Monica Rosu that Dunnes Stores Ltd discriminated against her on the ground of race contrary to Section 6(2)(h) of the Employment Equality Acts 1998 to 2008, in terms of access to employment, promotion and re-grading, training, conditions of employment, discriminatory dismissal, harassment, victimisation and victimisatory dismissal.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 14 May 2008. A submission was received from the complainant on 2 January 2009. A submission was received from the respondent on 13 February 2009, to which the complainant again responded on 10 March 2009. On 6 October 2010, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 20 April 2011, which needed to be adjourned and then resumed and concluded on 6 May 2011.
2. Summary of the Complainant's Written Submission
2.1. The complainant alleges that she did not receive the same training as Irish trainee managers; that the respondent's communications with her were insufficient; that her questions were ignored, that her Irish manager colleagues were allowed to finish their workdays on time whereas she was asked to stay behind; and that her manager humiliated her. She alleges that the respondent only wanted Irish managers in the shop.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all, and says that the complainant's employment was terminated during her probationary period as a trainee manager due to underperformance.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against, either discriminatorily or harassed on the ground of race or victimisatorily dismissed or victimised within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent.
4.3. The complainant is Romanian. Her complaint with regard to access to employment was withdrawn at the first of day of hearing the complaint. I further find that there is no prima facie case that the complainant was discriminated against in respect to access to promotion, as it is undisputed that she successfully interviewed for a position as trainee sales manager after being employed by the respondent as a sales assistant.
4.4. With regard to the complainant's case of being discriminated against in access to training, the complainant said in her own evidence that the situation in respect of provision of training was the same for all trainee sales managers who had started in the store to which the complainant was assigned along with her. One of these was a Ukrainian national and two were Irish. The complainant felt that the training programme was not implemented as she was led to expect, but confirmed in cross-examination that no difference in treatment, in respect of training, arose between her and her fellow-trainees. Accordingly, I find that the complainant has not established a prima facie case of discrimination on the ground of race, in respect of access to training.
4.5. With regard to the complainant's complaint of discrimination in terms and conditions of employment, the complainant said in her evidence that she was asked to stay on when the other trainee managers were allowed to go home. She explained that all trainees had to notify their managers when they went home in the evening. The complainant's Ukrainian friend and colleague, Ms. A., would finish her work and then wait for the complainant to go home together. Ms B., the complainant's manager, confirmed that the trainee managers, along with all other staff, had to notify management when they went home at night, partly for fire safety reasons. She confirmed that at one time, the complainant was asked to stay late, because tasks she had to carry out had not been completed. The fact that by the complainant's own evidence, no such requests of staying late were made of Ms A., makes it doubtful that the complainant's race was the determining factor for asking her to stay late on occasion, and I prefer Ms B.'s explanation that the reason was uncompleted work. Accordingly, I find that the complainant has not established a prima facie case of being discriminated against in her terms and conditions of employment.
4.6. In terms of the complainant's complaint of harassment, it was clear from her evidence that a degree of interpersonal difficulty existed between her and her line manager, Ms B. This was brought to attention of management at the time and resulted in a meeting between the store manager, Ms B. and the complainant. The complainant, who gave her evidence through an interpreter, denied that it was language difficulties that were at the root of this, and neither did the respondent try to make this point. According to the complainant, she experienced Ms B. as uncommunicative and difficult to approach, and generally formed an impression that Ms B. did not like her very much.
4.7. However, to ground a complaint of harassment, any complainant must show, pursuant to S. 14A of the Acts, that the unwanted conduct is related to any of the discriminatory grounds. Only when specifically questioned by myself on the second day of hearing about anything specific that related to her being a foreigner during the hearing of the complaint, did the complainant relate an incident where Ms B. allegedly said, in the presence of the complainant and other staff, that she "had had it working with foreigners". This had never formed part of the complainant's complaint previously, where the complainant only complained of generally rude behaviour towards her on the part of Ms. B. When questioned about this by the respondent's representative, the complainant mentioned communication difficulties with her former solicitor.
4.8. However, and I put this to the complainant during the hearing of the complaint, it seems unlikely that one would simply forget an incident of such significance, given how humiliating such a situation would be, and that for most people, it would likely be a main point of any internal or external complaint based on race. The complainant did not comment on this. Ms B., in her evidence, denied making any such remark.
4.9. The complainant furthermore alleged that she had complained to the store's HR manager, Mr C., about the remark in a meeting. However, Mr C. also denied that the complainant ever sought a meeting with him, on Ms B.'s alleged remark or at all, and that he had no knowledge of the matter. Mr C. further explained that while he was an HR expert, he would on occasion also work on the shop floor, especially during busy periods, and that it would have been easy for the complainant to approach him with a request for a meeting.
4.10. Overall, I find that the complainant is lacking credibility in this part of her evidence, and I prefer the evidence of the respondent witnesses on this point. I therefore find that the complainant has not established a prima facie case that she was harassed on the ground of her race within the meaning of the Acts, and this aspect of her complaint must therefore fail.
4.11. In terms of the complainant's dismissal, the complainant herself accepted in her evidence that her employment was terminated due to poor performance. The complainant sought to link this to insufficient training received, but as already noted, no less favourable treatment arose of the complainant arose with regard to her training, compared to her fellow trainees. The complainant further raised the question why it was her and Ms. A. who failed their probation with the respondent. However, the respondent submitted that Ms McE and Mr F., trainee managers who were Irish, and who commenced their training at the same time as the complainant and Ms. A., also failed their probation and that Mr F. was dismissed, whereas Ms McE, at her own request, was re-graded back to sales assistant. I prefer the respondent's evidence on this matter, and accordingly, I find that no prima facie case of discriminatory dismissal on the ground of the complainant's race arises and that this part of her complaint must therefore fail.
4.12. In terms of the complainant's alleged victimisation, the complainant stated in a submission to the Tribunal on 20 April 2011 that when she sought another sales assistant position with the respondent after the termination of her employment, she was told by an employee at a named store that it would be better if she did not apply for another position with the respondent. The complainant, and the solicitor who represented her at the time, were urgently requested by myself, orally and in writing, to supply the name, or otherwise clearly identify, that particular employee to enable the respondent to respond to this allegation. It was made clear to all parties that one reason the hearing of the complaint was adjourned was for the complainant to provide the information to the respondent, and to enable the respondent to meet this case. The complainant did not provide these details before the resumed hearing at 6 May. In order to ensure fair procedures for the respondent, I then ruled that I would not investigate this particular complaint due to the fact that despite express written and oral requests, it had been insufficiently clarified by the complainant to be properly investigated. The complainant accepted this position.
4.13. The complainant did not put forth any argument or evidence that her dismissal by the respondent had been victimisatory. Accordingly, this part of her complaint must also fail.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent did not discriminate against, harass, or discriminatorily or victimisatorily dismiss, the complainant on the ground of her race contrary to S. 6(2)(h) of the Acts.
______________________
Stephen Bonnlander
Equality Officer
24 June 2011