DEC-E2014-085

The Equality Tribunal

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2014-085

PARTIES

Annemone Der

AND

Aldi Stores Ireland Limited

(Represented by Eileen Barrington S.C.

instructed by Vincent & Beatty Solicitors)

File reference: EE/2011/799

Date of issue: 11 December 2014

HEADNOTES: Employment Equality Acts – Race & Gender– Harassment & Discriminatory Dismissal – Prima Facie Case

1. DISPUTE

1.1. This dispute concerns a claim by Ms Annemone Der that she was dismissed in a discriminatory manner contrary to section 8 of the Employment Equality Acts (the Acts) by Aldi Stores Ireland Limited and that she was harassed contrary to section 14A of the Acts on the grounds of race and gender contrary to section 6 of the Acts.

1.2. The complainant referred a claim to the Director of the Equality Tribunal on 2 December 2011 under the Employment Equality Acts. On 28 March 2014, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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 received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 22 July 2014.

2. COMPLAINANT'S SUBMISSION

2.1 The complainant started working for the respondent in July 2006 and stopped working for them on 10 August 2011. She became an Assistant Store Manager in November 2007. The complainant obtained 87% in a managers’ training course in August 2009. She submits that in January 2010 she told her area manager she intended to become a Store Manager and her problems shortly after this. From February 2010 onwards her Area Manager suddenly increased the pressure on her; from then on nothing was good enough for her, she often changed her mind, the instructions she gave were only valid for a short time and she refused to help the complainant when she had a problem. Also she cut back staff hours to make it harder for the complainant to get the work done when she was in charge of the store. Two other stores had one more staff member. Because of these changes the complainant was put under more pressure and she started making mistakes which led to the respondent invoking the disciplinary process. Colleagues made similar mistakes without the disciplinary process being invoked.

2.2 The complainant submits that it is well known within the respondent that being a woman and Assistant Manager as a foreigner is ok but you will get no higher than that. 90% of Store Managers in Ireland are Irish and Men, only 1 is a non-Irish women.

2.3 The complainant submits that in a period of 16-18 months there were 5 disciplinary incidents; 4 of which ended up in final warnings and then finally she was dismissed. She contends the decision on all of them was wrong, except for the first incident. Other staff members who did the same as her were not disciplined. In 2008 she failed a mystery shopper test and she was given a written warning but she has no complaint about this.

2.4 In November 2009 she sold specials prior to a launch day and was given a final warning. She submits that two Irish Managers did the same and nothing happened.

2.5 In April 2010 she was told that €500 was missing from the safe and she was forced to pay it in herself. This resulted in a huge argument with her husband. There was no investigation into the missing money. Six weeks later €755 was received back from the bank. The complainant submits this was the €500 missing from her safe, plus €255.84 which had been lodged into the till on 24 May. She was called to a disciplinary meeting in June 2010 for poor cash handling as she went over the limit in the safe. This was despite the Area Manager refusing to help her keep within the limit, as she had been unable to arrange an extra collection. Then she wanted time off for personal reasons, because of her husband’s health, and she was sent for a disciplinary warning and told to leave the company. Later two colleagues had similar problems with the safe limit but no action was taken against them.

2.6 In May 2010 the complainant was moved from Wexford to the Enniscorthy branch even though three other managers were living closer. The extra journey time meant this move cut back on her time at home. Also she received calls about the alarm going off at night, even though there was a colleague living only 5 minutes away from the Enniscorthy store.

2.7 In November 2010 there was heavy snow and the complainant asked the Store Manager to let her swap shifts with a female colleague who lived close to the Enniscorthy branch but she was refused. Then she was not allowed to go home and was booked into a hotel for 4-5 nights. In December 2010 the Area Manager manipulated the safe to show €500 missing but the complainant proved it was not missing. In 2010 and 2011 all the complainant’s planned holidays had been cancelled by her Area Manager. In 2010 it was agreed she would be off for Christmas eve (24th) and would work 31st December but, at short notice, she had to work on the 24th because no one else was available. This was the seeds for her next crisis at home, as Christmas Eve was a special day of celebration for them.

2.8 On 2 January 2011 after working a number of long shifts the store had a mystery shopper test and an alcohol test. She failed a mystery shopper test in February. The complainant also submits that she was receiving more and more test deliveries from the warehouse, nearly 4-5 everyday, whereas her colleagues were only receiving one or two test deliveries occasionally. In May she was on sick leave. She had to take 3 alarm calls in this period and on one occasion the alarm company starting questioning her husband about her sick leave.

2.9 In April 2011 when she requested leave a new Area Manager wanted her to print out a holiday booking. She had to tell her husband and the next two days were ruined, as he did not want to disclose private details.

2.10 Then she went through a disciplinary process for poor ordering, high wastage, poor control over the store, selling old produce, even though this was on the instructions of the Area Manager. Two Irish managers in the store who did the same were not disciplined. Also during this period less staff were planned for the complainant’s shift only.

2.11 The complainant returned to the Wexford store on 3 May 2011. On 8 May a new Store Manager came in and ignored her initially. This was the start of humiliation, bullying and discrimination by him. On 8th May there was a mystery shopper visit. On 9th she started at 9am. Then on 10th she was asked to sign an alcohol policy without being given training. On 17 May 2011 she was instructed by the Area Manager to merchandise a shelf and told of a visit from a ‘personal leader’ from Head Office. This meant she had more work, even though she had one staff less and one of these staff was not till trained. This meant she was not able to complete all of the tasks she had been given and was disciplined for a ‘wilful disregard of instructions’.

2.12 At the end of May 2011 the complainant raised a grievance against the Store Manager.

2.13 On 6 June 2011 she bought peaches for herself which had a reduced price because of the Best Before Date. On 10 June she was accused of theft over the purchase of the peaches and suspended. On 8 June the complainant was accused of not carrying out orders. On 8 or 9 June she was told product reduction was not allowed in the store. Then on 10 August 2011 there was a disciplinary meeting with a Director. She played him a recording proving the store manager’s abuse of CCTV. She was dismissed after this meeting.

2.14 The complainant submits she appealed her dismissal but the decision was upheld.

3. RESPONDENT’S SUBMISSION

3.1 The respondent submits that the ground of gender was not included in her original claim. In any event they do not accept there was any discrimination against the complainant on the grounds of race, gender or otherwise. They submit that the complainant has given no evidence from which discrimination could be inferred.

3.2 The complainant started working for the respondent on 24 July 2006 as a Store Assistant in their Wexford branch. In January 2007 she was promoted to Store Deputy Manager and in November 2007 she was promoted to Assistant Store Manager. The respondent submits that her work was satisfactory until November 2009.

3.3 On 2 November 2009 there was a disciplinary hearing on the recommendation of the Area Manager (Ms A) for a failure to control the sale date of the “specials”. The complainant was given a verbal warning. This was not appealed. The complainant contends that Irish colleagues who did they same were not disciplined but she has not identified anyone.

3.4 On 24 February 2010 there was another disciplinary hearing, also on the recommendation of Ms A, as the complainant had failed a mystery shopper test. The complainant was given a written warning. Again this was not appealed.

3.5 There was another disciplinary hearing on 8 June 2010 for poor customer service and a €500 safe shortfall. The complainant was given a final written warning which was not appealed. The complainant was the safe key holder at the time and is therefore fully responsible for the €500 that was missing. The money was not received back from the bank.

3.6 In July 2010 the complainant was moved to the Enniscorthy store. It was the next closest town to her home. The list of suitable staff was approached in rotation and she was not singled out. On 9 August 2010 there was a disciplinary hearing for the poor handling of cash. The complainant offered personal issues for her poor performance. The respondent took this into account by not escalating the disciplinary sanction. Instead the final written warning which had been issued in June was extended for 6 months.

3.7 In October 2010 the complainant raised a grievance against her new Area Manager (Ms B). As part of the complaint a colleague of the complainant also indicated he had been treated badly. The respondent submits that the complainant was not treated any differently than her Irish male colleague. The investigation did not agree with the complaint. The complainant did not appeal the decision.

3.8 In November/December 2010 there was heavy snow fall. Many people got stranded and a number were accommodated in hotels. The complainant was treated no differently than anyone else in these unusual weather conditions.

3.9 Regarding the complainant’s complaint about holidays being cancelled the respondent submits that here 2010 holidays were not identified as a grievance by the complainant and she received her full leave entitlement that year. In 2011 she was sick from February to May and was suspended in June. On one occasion there was an over-booking of leave and the Area Manager offered to reimburse the flight costs if the complainant supported her claim with a receipt. The complainant refused to provide the receipt. In the end the leave was given. In relation to the issue of leave on 24th December the respondent submits that Christmas is a very busy period so it is not surprising that no one else was available.

3.10 The respondent submits that mystery shopper and alcohol tests are carried out randomly by an external independent contractor with no notice given to them. When the mystery shopper visits the store they use their own discretion to decide which till to approach. Also, the test deliveries, which are controlled shortages or surpluses of stock delivered to stores, are controlled and recorded by the regional warehouse. The receiving store should check its delivery and report any discrepancies to the regional warehouse. There would be no situation where 4 -5 test deliveries would be carried out on one store in a single day. These test deliveries are carried out randomly. The respondent submits that the complainant has no rational basis for her comments about the mystery shopper tests and test deliveries.

3.11 There was another disciplinary hearing on 15 December 2010 on the recommendation of her Area Manager (Ms B). The hearing found that the complainant had wrongly accused a customer of not paying for purchases, lack of control of wastage and leaving till gates open. She was given a final written warning. The complainant appealed this but the decision was affirmed.

3.12 From February to May 2011 the complainant was off sick. The respondent submits that the complainant made efforts to avoid attending their doctor for an assessment. When she was seen by the doctor he assessed her as fit to return to work. Following this assessment the complainant reported the doctor to the Irish Medical Council for malpractice. Her complaint was not upheld.

3.13 When she came back to work in May 2011 she returned to the Wexford store in order to give her the best opportunity to perform in her role as Assistant Store Manager. 19 days after starting back in Wexford the complainant raised a grievance against the new store manager (Mr D). This included the suggestion that Mr D was somehow connected to members of senior management in the respondent’s head office. A full investigation was carried out. The complainant appealed the outcome.

3.14 On 20 June 2011 the complainant reduced the price on peaches. She held back some and sold these to herself at a greater discount (50%) than that offered to customers (30%). She was suspended by a new Area Manager (Mr C). On 10 August 2011 there was a disciplinary hearing which considered issues since the complainant had returned to work in May: selling peaches to herself at a reduced price, over ordering, not properly using stock and order form, incorrect OPC counts, wrong procedure for special reductions, not following procedures regarding the safe, cash handling, the alcohol policy, 60 day return policy, misusing the suspend and retrieve function on tills, failing to carry out instructions, low mystery shopping score and unsocial behaviour. The decision was made to dismiss the complainant.

3.15 During this hearing the complainant produced, for the first time, covert voice recordings she had made of a number of the respondent’s employees. As a result of this the respondent’s Store Operations Director carried out a disciplinary hearing with Mr D and concluded that he was guilty of threatening to use CCTV to monitor performance of the complainant and for lying about this during the investigation of the complainant’s grievance. Mr D received a final written warning.

3.16 The complainant appealed the decision to dismiss her and, following an appeal hearing held on 24 August and 13 October, her dismissal was confirmed on 10 November 2011.

3.10 The respondent submits that at the end of February 2012 47% of the respondent’s employees were Irish and 53% were non Irish. At the end of December 2011 57.53% were male and 42.47% female. There were 15 female store managers (16%), 4 non Irish female store managers (4%) and 23 non Irish store managers (male & female) (25%).

4 FINDINGS & CONCLUSIONS

4.1 The complainant submitted a claim to the Equality Tribunal on 2 December 2011 and cited the ground of race. Subsequently, in a written submission received in February 2012 she added the ground of gender to her claim. The respondent contends that as the gender ground was not included in the original claim then I do not have jurisdiction to investigate this element of the claim. In the decision of the High Court in County Louth Vocational Educational Committee v The Equality Tribunal, (Unreported, High Court, 24th July 2009, McGovern J). Judge McGovern stated:

"6.2 I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But under the legislation it is clear that the complaints which are made within that expanded period are not time-barred. That is not to say that complaints going back over a lengthy period would have to be considered as an issue of prejudice might arise. But this is something that would fall to be dealt with in the course of the hearing in any particular case.

6.3 Of course, it is necessary that insofar as the nature of the claim is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice."

4.2 It is clear from this judgement that in advancing a claim under the Acts a complainant is not limited solely to what is contained in the originating form. However, in these claims the complainant has added the ground of gender and I have to treat this as a new claim made on the date of the complainant’s written submission: 22 February 2012. The last possible date of discriminatory act was the date the appeal hearing confirmed her dismissal on 10 November 2011. This is inside the six months time limits for making a claim under section 77 (5) of the Acts. Furthermore, the respondent was given a copy of the complainant’s submission and therefore was “given a reasonable opportunity to deal with these complaints”. I will therefore deal with the claim on the grounds of gender, as well as the initial ground of race.

4.3 Therefore, I have to decide if the complainant was dismissed in a discriminatory manner and if she was harassed on the grounds of race and gender. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.

4.4 The complainant has put forward a series of events and incidents which she has presented as being part of a plan by the respondent to ensure that she, as a non Irish female, would not become a manager. The respondent, on the other hand, says they dealt with the complainant in the same way as any other employee in her position as Assistant Store Manager and implemented the grievance and disciplinary process in accordance with their own procedures.

4.5 The respondent gave detailed evidence at the hearing in relation to the mystery shopper tests, alcohol tests and test deliveries. These tests are part of the respondent’s business model to ensure staff maintain standards of efficiency. It is clear that on a number of occasions the complainant did not pass the tests and the respondent then took what they considered to be the appropriate action. I found the evidence of the respondent to be credible and I conclude that these tests took place in a random manner that did not target the complainant.

4.6 The complainant has also referred to a number of incidents in which she alleges that three different Area Managers were unreasonable in their work demands and this treatment started because she told one of them that she wanted to become a Store Manager. From the evidence given by the respondent it is clear that good performance by any member of staff is a route to promotion. I can find nothing from the evidence adduced to suggest that three different Area Managers would act in the manner alleged by the complainant. Furthermore, I can find nothing that would link anything in the complainant’s allegations to her race or gender.

4.7 At the complainant’s request three former colleagues gave evidence at the hearing. None of them gave any evidence which corroborated the complainant’s allegations. Also, two of the Area Managers (Ms A and Ms B) gave evidence at the hearing and none of their evidence led me to think that the complainant was treated any differently than any other member of staff would have been in the same circumstances.

4.8 Following a succession of disciplinary procedures against the complainant she was dismissed and it is her contention that this dismissal was discriminatory. Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.. Furthermore, the Labour Court in Arturs Valpeters v Melbury Developments Ltd, Determination No. EDA0917 [2010] 21 E.L.R said there has to be ”evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."

4.9 An assessment of all the evidence that led to her dismissal leads me to the conclusion that the complainant had problems with the responsibilities given to her by the respondent as an Assistant Store Manager. At times she had difficulties complying with respondent’s procedures and coping with the volume of work and responsibility, which also seems to have caused her personal difficulties. The respondent has its own business model and this gives each member of staff their own duties and responsibilities which require everyone to work hard and to be flexible. I also find that there is a greater degree of clarity around the processes and procedures for the running of a store than was presented by the complainant. From the evidence presented during this investigation I conclude that staff are treated the same and would receive the same treatment if they did not achieve the respondent’s expectations in relation to their duties and responsibilities.

4.10 Therefore, in this claim I have to conclude that the complainant’s evidence is “mere assertion unsupported by any evidence”. She provided no facts from which it would be reasonable to infer that discrimination on the grounds of race or gender was a part in any of the disciplinary procedures being invoked and which led to her dismissal. The complainant has failed to establish a prima facie case of discrimination in relation to her dismissal.

4.11 The complainant alleges she was harassed and harassment is defined bysection 14A (7) of the Acts which states:

“references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds ….being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.

4.12 The complainant contends that she was subjected to harassment from the three Area Managers and one Store Manager. There is no evidence that any of the actions from the three Area Managers could be considered harassment. It is my conclusion that in the accusations made by the complainant they were carrying out their duties in accordance with the remit given them by the respondent and none of their actions had any connection to the discriminatory grounds cited by the complainant. The Store Manager was subject to disciplinary action in relation to the threatened use of CCTV against the complainant and was sanctioned. It appears he went beyond the remit given to him by the respondent. I note this to record the actions of the respondent. However, the complainant has shown no connection between Mr D’s actions and any of the discriminatory grounds. I find that the complainant has failed to establish a prima facie case of harassment.

5 DECISION

I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that:

• the complainant has failed to establish a prima facie case of discriminatory dismissal on the race and gender grounds, and
• the complainant has failed to establish a prima facie case of harassment on the race and gender ground.

____________________

Hugh Lonsdale

Equality Officer

11 December 2014