DEC-E2014-096

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

DEC – E2014-96

Sylvia Bielecka, Anna Krupa, Pawel Krupa, and Stanislaw Stepien

(represented by Conor Gallagher B.L. instructed by Mullanny Solicitors)

versus

CH Kane Ltd.

(represented by Donncha O’Connor, Johnson & Johnson Solicitors)

File reference: EE/2012/321, EE/2012/322, EE/2012/345 and EE/2012/353

Date of issue: 30th December 2014

Keywords: Employment Equality Acts, Race, Gender, Family Status, No prima facie case

Dispute

1.1. The case concerns a claim by four Polish complainants against CH Kane Ltd trading as Supervalu, Ballymote. On their EE1 forms the complainants claim discrimination regarding conditions of employment, harassment and victimisation (see table at Appendix 1) on the grounds of race contrary to 6(2)(h) of the Employment Equality Acts 1998 - 2008 [hereinafter referred to as ‘the Acts’]. One of the complainants (Anna Krupa) also claim discrimination on the grounds of gender and family status

1.2. Through their legal representative, the complainants referred their complaints under the Acts to the Director of the Equality Tribunal on the dates in Appendix 1. On 29th August 2014, in accordance with her powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, 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. A Hearing of all four complaints was heard on 26th September 2014 required by Section 79(1) of the Acts.

Summary of the complainants’ case

3.1 Sylvia Bielecka commenced employment as a Sales Assistant in Kane's SuperValu, Ballymote on 18th September 2007. The complainant submits she was reprimanded for speaking in Polish. She submits the respondent did not understand that Christmas Eve was an important celebration in Polish culture and did not give time off. She submits that she was overworked while there was a more relaxed approach to the Irish workers.

3.2 She submits that she was required to push heavy trollies. One day the back pain was so strong an ambulance had to be called. She was only paid until the ambulance came.

3.3. On another occasion a metal part of a trolley she was pushing pierced her foot and she fainted. She submits that Ms A(Human Resources Manager) was unsympathetic and said it was her own fault for wearing inappropriate shoes. She submits Irish women were allowed a full day off for antenatal visits while she was told to come back to work immediately afterwards.

3.4 Stanislaw Stepien (husband of Sylvia Bielecka) commenced work at Kane’s SuperValu in June 2009. As well as working in the shop, when Mr C (owner of the Supermarket) went on holidays the complainant was asked to check his cattle. He also submits that he assisted Mr C in bringing home turf from the bog and helping to build his new house. On one occasion that he was working there, Mr C did not supply him with water and he had to drink water from the river. As he used his own car to drive to the building site, he asked Mr B (General Manager) for mileage. Mr B gave it to him but then Mr C (owner) took offence and the complainant ended up giving the €20 back.

3.5 Mr Stepien describes himself as an eager worker and he willingly painted the stock room and put up tiles in the supermarket even though his contract states he was a shop assistant. He never received his contract in Polish. When he asked for a copy of his contract (in English), Ms A said she was too busy. Mr Stepiens submits that he put in a request for a fortnight of annual leave around the time of his child’s first communion. Ms A refused to allow him to take his full quotient of annual leave so he sent a solicitor’s letter. Only then was he allowed take his requested amount of leave.

3.6 Anna Krupa commenced employed on 2nd October 2007. She also submits that she was overworked. She submits that on one occasion she asked to leave work early as no babysitter was available and she submits that Mr B said ‘you should have thought twice about having children’ she submits that she was not treated well during her pregnancies.

3.7 Regarding Pawel Krupa (Anna’s husband) he commenced employment on 28th July 2008. The position of trainee manager was advertised and he obtained the position. He was asked to work long hours for relatively low pay. Following something happening which was not his fault, he agreed to revert to Sales Assistant. He had a credit account with the respondent but it was closed unnecessarily. He submits that when he agreed to work Christmas Eve that he should get St Stephen’s Day off. Ms A refused and when he did not come in on St Stephen’s day he was disciplined.

Summary of the respondent’s case

4.1 Regarding Sylvia Bielecka, the respondent vehemently rejects that she received a lesser voucher at Christmastime than Irish comparators. The only people who received higher bonuses were people with over thirty years of service. Christmas Eve is the busiest trading day for the respondent but Polish staff were allowed to leave earlier than Irish staff because of the day that it was i.e. Polish staff could leave work at 14:00 on Christmas Even provided one member of staff worked until 18:00. The shop did not close until 20:00. This arrangement left the respondent extremely short-staffed but that they submit they put an emphasis on facilitating family life.

4.2 Regarding the accident at work, the complainant was wearing flip-flops. Ms A followed the complainant in her car to hospital, as she was concerned for her welfare. The respondent points out that the complainant received two hampers (worth approximately €100 each) on the birth of her two children. Her husband who also o worked there were allowed to take annual leave together even on bank holiday weekends to facilitate them visiting family in Kerry. As a gift, Mr B( the general manager) gave from his own resources a playhouse to the value of €550 for her children does not deny that the complainant was asked not to speak in Polish on the shop floor. This was following a customer focus group where a customer (fluent in Polish) complained that the subject that they were talking about was extremely crude and offensive. In common with Irish employees, the complainant was expected to return to work after antenatal appointments if practicable. Her case on this issue failed at the Rights Commissioner.

4.2 In relation to Stanislaw Stepien, the respondent submits that his evidence is disingenuous in the extreme. They submit that his wife Sylvia approached the owner numerous times to employ her husband. She said that were husband previously worked as a building labourer and would be willing to do any kind of work. That is what he was initially employed as by Mr C before he began to work in the shop. The respondent submits that Mr Stepien specifically requested to continue working on the farm as he comes from an agricultural background and enjoyed the work.

4.3 Regarding the location of Mr C’s home and farm, this was one kilometre further from his home than the Supermarket. Mr Stepien requested mileage from Mr B (Manager) which Mr B paid from his own wallet. When Mr C(the owner) heard about this, he was extremely embarrassed Mr B paid from his own pocket and insisted Mr Stepien give back the €20 to Mr B and Mr C then gave Mr Stepien €50. Then Mr Stanislaw became embarrassed as he knew, the respondent submits, that he had taken advantage of Mr C’s generosity.

4.4The respondent submits that Mr Stepien had an arrangement which no other staff member had to leave work at 8:50 to bring his children to school. Mr Stanislaw was frequently allowed to borrow the company vehicle. Mr Stepien was also allowed credit for groceries until the following payday.

4.5 Regarding the annual leave, the respondent maintains that Mr Stepien did take more annual leave than he was entitled to but on receipt of a solicitor’s letter decided to avoid further acrimony and acquiesce on this issue. In relation to the Mr Stepien’s contract, he requested it on a day they were short-staffed and Ms A was helping on the shop floor. He received by the end of the day. The respondent does not have a policy of translating their contracts into other languages. They point out the complainant’s wife has excellent English. The respondent reiterates that the Stepien children received a playhouse as a present from Mr B.

4.3 The respondent vehemently denies they treated Anna Krupa badly during her pregnancies. They specifically asked her would she prefer to work on the tills but she said that she preferred working on the shop floor. On her third pregnancy, she approached the owner and asked had he any suitable rental accommodation as their family was expanding. He offered them the penthouse of his development at a significantly reduced rent which was inconvenient for him. Ms Krupa also received hampers on the birth of her children as Ms A also gave her presents. After the birth of her third child, the complainant approached Mr C requesting that he dismiss her or make her redundant and sign a declaration for the Department of Social Protection to state that the respondent had no work for her. The respondent refused to do this and this complaint followed almost immediately.

4.6 It is accepted that Pawel Krupa saw the advertisement on the noticeboard shortly after commencing employment, applied for the position of Trainee Manager and obtained it. However, Mr Krupa was abrasive with his colleagues but the final straw was when he forgot to lock the shop shutters at night which is a significant security breach. Mr Krupa agreed to revert as he realised himself that he was not suitable for management The respondent does not deny that he was asked to occasionally work unpaid overtime while trainee manager but that this is ‘par for the course’ regarding this role. The respondent maintains that Mr Krupa abused his credit facility as it was spent on cigarettes and alcohol which was not allowed. That is why the facility was removed. Regarding Christmas Eve, that arrangement was agreed among the staff and it was Mr Krupa who reneged on it.

Conclusions of the Equality Officer

5.1 Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The common discriminatory ground in this case is race. Therefore, on the race ground, the issues for me to decide are:

(i) Were the four complainants discriminated in relation to conditions of employment on ground of race in terms of 8(1)(b) of the Acts?

(ii) Were the four complainants harassed in terms of 14A of the Acts?

(iii) Were the complainants victimised in terms of Section 74 of the Acts?

On the ground of gender and family status was Anna Krupa discriminated in terms of three ways above?

5.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:

Section 85A of the Act provided for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.[1]

In seven years as an Equality Officer, I have not come across a case where so little evidence of less favourable treatment has been adduced by the complainants. Their evidence characterised by outright fabrication as well as lies of omission reflected a tremendous sense of overentitlement. In this role, I encounter employers who are lacking in compassion, even brutal but CH Kane Ltd is not one of them. The owner and the management team at Kane’s Supervalu went far beyond the duty of care to their employees. The four complainants have utterly failed to establish a prima facie case of discrimination on any of the grounds.

Decision

I have concluded my investigation of the complaints of Sylvia Bielecka, Anna Krupa, Pawel Krupa, and Stanislaw Stepien and I hereby find that

(i) the four complainants were not discriminated in relation to conditions of employment on ground of race in terms of 8(1)(b) of the Acts?

(ii) the four complainants were not harassed in terms of 14A of the Acts

(iii) the complainants were not victimised in terms of Section 74 of the Acts

(iv) Anna Krupa was discriminated, harassed on the grounds of gender or family status. Neither was she victimised.

The complaints fail in their entirety.

________________

Orlaith Mannion

Equality Officer

Appendix - table of details of complaints 

'Footnote'

 [1] Labour Court Determination No. EDA0917