Employment Equality Acts
Decision DEC-E2012-164
PARTIES
Adhel Teepoo
(Represented by Stephen Dixon, B.L,
instructed by Martin Gately Solicitors)
- V -
Neighbourhood Pharmacy Ltd.
(Represented by James Roche)
File reference: EE/2010/628
Date of issue: 28 November 2012
Keywords - Employment Equality Acts - Discriminatory Treatment - Harassment - Victimisation - Race - Credibility - Prima Facie case
1. DISPUTE
1.1 This dispute concerns a claim by the complainant that he was subjected to discriminatory treatment, harassment and victimisation by the respondent on the grounds of his race in terms of Sections 6(2), 14A and 74 of the Employment Equality Acts and contrary to Section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 12 August 2010 under the Employment Equality Acts. On 27 August 2012, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - 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 which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 26 October 2012. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that he is a Mauritian national and was employed by the respondent as a shop assistant between March 2008 and April 2010.
2.2 The complainant submitted that he was not provided with a set of written terms of employment but agreed to work for 20 hours during college term and a full working week while on holidays. The complainant submitted that in fact he was required to work for between 60 and 70 hours per week including most Sundays, and furthermore that he was not allowed to take statutory break periods. The complainant submitted that Irish members of staff were not exposed to the same treatment.
2.3 The complainant submitted that he was required to wash the manager's car and the windows of the shop, which were not part of his duties. He submitted that Irish members of staff were not required to perform these duties.
2.4 The complainant submitted that he was required to turn out his pockets on several occasions, that there was not basis for this treatment and that no Irish member of staff was dealt with in such a fashion.
2.4 The complainant submitted that in March 2010 he was involved in a car accident on his way to work in the morning and was not allowed to attend hospital until he finished work that evening. The applicant also submitted that he was required to attend work the following day and was not allowed to take any sick leave.
2.5 The complainant submitted that he was generally exposed to verbal harassment and bullying during the course of work by his manager.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denies each of the allegations of discrimination.
3.2 The respondent submitted that the complainant was provided with a copy of the terms of his employment and did not inform the respondent that he was a student until after he was employed.
3.3 The respondent submitted that the complainant was never asked to work 60 to 70 hours a week, that the complainant had to be forced to take his breaks on a regular basis and that these matters have already been dealt with in another forum.
3.4 The respondent submitted that they had no Irish staff members.
3.5 The respondent denied that the complainant was made to wash either the windows or the manager's car and that the complainant was never asked to turn out his pockets.
3.6 The respondent submitted that when the complainant came into work following a car accident, he was told to go seek medical attention and refused outright to do so. In addition, he was specifically told to take sick leave.
3.7 The respondent submitted that the complainant was never asked to turn out his pockets, that to do so in a shop would be impossible as other staff and members of the public would become aware of this behaviour and it would kill off business
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent subjected the complainant to discriminatory treatment, harassment and victimisation on the grounds of his race, in terms of Sections 6, 14A and 74 of the Employment Equality Acts, and contrary to Section 8 of those Acts.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 The parties to this case gave conflicting evidence in relation to most aspects of this claim and in situations such as this one, I consider that a complainant must provide a credible account of the facts in order to establish a prima facie case.
4.4 The complainant gave an account of his employment and indicated that he was employed in the role of sales assistant, but then went on to detail his duties as including a number of management functions and ultimately labelled himself as the "Fraud Manager". He also recounted being made to empty his pockets on "many occasions" but was unable to describe any individual episode, despite being asked for details. He said that he was ordered to wash the car of a named manager (Ms X) every Sunday between the hours of 9 and 10 in the morning but when it was put to him that he did not usually work on Sundays, he had no comment to make. The complainant recounted being treated in an unfavourable manner by Ms. X in a number of ways, including being spoken to in a very bossy manner. He believes that he was treated in this manner because he was not Irish.
4.5 When considering the oral evidence of a witnesses, I am particularly mindful of the credibility or otherwise of the individual in terms of their demeanour while testifying; their level of recollection of various incidents/facts; the existence or non-existence of bias, interest or other motive; the consistency of their evidence - within their own accounts and when the accounts are compared to the documentary evidence to hand or with another witness; and the plausibility of their accounts. I also take into account any issues raised by cross-examination by various representatives or in response to my own questions.
4.6 In this regard and with reference to the case in hands, I note that the complainant was not able to recount any specifics but constantly spoke in general terms, even when responding to specific queries from the Equality Officer. I also note that in response to an issue raised by the respondent whereby it was claimed that they paid for a number of items for him such as when he was going abroad, for college fees and for driving lessons (citing cheque numbers as appropriate) the complainant initially denied that the respondent had paid any expenses for him but ultimately conceded that it had paid in the region of €1500 for his college fees. I further note that the complainant suggested that he was not allowed to attend a doctor following a car accident. However, when it was put to him (accompanied by the resulting medical cert) that he attended a doctor in the centre where the business premises was located and that the respondent had paid for that medical attendance, he did not contest this fact.
4.7 I also note that the complainant's evidence on the day related to how he was constantly mistreated by a named manager, Ms X to whom he referred over and over again. Ms X had never been previously mentioned in either the application form grounding the complaint, or in the more expansive written submissions forwarded to the Tribunal in advance of the hearing. When this fact was pointed out to the complainant by the Equality Officer, he had no comment to make. I am mindful that at all times in this process, the complainant was in receipt of advice from his legal representatives.
4.8 Having regard to the complainant's testimony and in particular to the foregoing issues, I am not satisfied that the complainant amounts to a reliable witness. His testimony is vague, generalised and unsupported by documentary proof, and at no time did he name any individual perpetrator or witnesses to any incidents of mistreatment who may then have been brought before the Tribunal to support his version of events, or to be cross-examined. Accordingly, I am not satisfied that the complainant has established facts from which discrimination may be inferred. No onus shifts to the respondent to rebut an inference of discrimination and therefore, this complaint must fail.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that the complainant has not established a prima facia case and this complaint fails.
Conor Stokes
Equality Officer
28 November 2012