The Equality Tribunal
Employment Equality Acts 1998-2011
Equality Officer’s Decision No: DEC-E2014- 065
Parties
Ms. Olimpia Augustyniak
And
Eurogeneral Retail Ltd
(Represented by Lavell Coleman solicitors)
File No: EE/2012/270
EE/2012/117
Date of issue: 3 September 2014
1. DISPUTE
This dispute involves a claim by Ms. Olimpia Augustyniak (hereinafter referred to as ”the complainant”) that she was discriminated against by Eurogeneral Retail Ltd (hereinafter referred to as ” the respondent”), on the grounds of gender contrary to section 6 of the of the Employment Equality Acts (hereinafter referred to as ‘the Acts’) in terms of harassment in accordance with section 14 of the Acts, and conditions of employment in accordance with section 8 of the Acts. The complainant also claims that he was victimised by the respondent in terms of Section 74(2) of the Acts.
2. BACKGROUND
2.1 The complainant commenced employment as a retail assistant with the respondent on 17 October 2011. The complainant submits she was subjected to periodic verbal abuse and harassment from her manager until she was dismissed on 20 December 2011. The respondent rejects any allegations of discrimination, submitting that the complainants’ employment was ended for business reasons.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2011 to the Equality Tribunal on 20 February 2012 and a further related complaint of victimisation on 11 May 2012. On the 4 June 2014, in accordance with his powers under the Acts the Director delegated the complaint to me, Mr. Peter Healy, an Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Submissions were received from both parties and a hearing of the complaint took place on 6 June 2014.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant commenced employment with the respondent in October 2011 as a sales assistant, in a retail unit located in a Dublin city centre location. She says there were eight sales assistants (three men and five women) reporting to one shop manager (a woman) and that her first few weeks of employment were spent preparing the shop to open for business.
3.2 The complaint, who is of Polish nationality, says she reported for work on 17 October and introduced herself to the shop manager, also a female of Polish Nationality. The Complaint submits that the shop manager was instantly unfriendly and aggressive, measured her up and down with a spiteful look and said “ in such shoes do not come to work at all” The complaint says that other staff were wearing similar footwear. The complaint submits that, at a later date, the shop manager made unwelcome comments about her perfume.
3.3 The complainant states although the manger forbade the use of Polish language in the shop the manager would, on occasion, use Polish vulgarisms towards her which were unacceptable.
3.4 On the day of the opening of the shop, the complainant submits the shop manager picked on her unfairly regarding unfounded allegations over minor errors using a scanner at the point of sale. The complaint says that the shop manager harassed her in a humiliating manner regarding use of the toilet during business hours.
3.5 The complaint gave specific details of occasions when she says the shop manager shouted at her in front of other staff and treated her in a humialting fashion and other occasions when she says the shop manager miscalculated her hours of attendance.
3.6 The complainant says that as a result of the shop managers poor organisation skills that staff often had to stay late and work on an unpaid basis. The complainant submits that she made a suggestion to the assistant manger on how to work more efficiently that the shop manager punished her through unfavourable work shift allocations.
3.7 The complainant submitted a particular example of harassment in that the shop manager specifically selected her to be the only person to work on a task at the open front door during what was a particularly bad winter.
3.8 The complainant submits that she had agreed with the shop manager to take leave over the Christmas holiday but that the shop manager made an error by allocating her work during the agreed period. The complainant submits that on 19 December 2011 she pointed out the mistake to the shop manager who became verbally abusive. The next day the complainant says she was taken aside by the assistant manager who informed her that “there was no longer work” and that all of the workers would be let go.
3.9 The complainant says that after returning from the Christmas holiday that she discovered she had been the only member of staff who had been let go.
3.10 The complainant submits that she was victimised by the respondent because of the manner in which they dealt with her query about her dismissal, after the fact.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertion that her treatment or dismissal was on the basis of her gender. The shop manager was not in attendance at the hearing as she had left the company some time ago.
4.2 The respondent submits that there is a dress code which is applied equally to all retail staff.
4.3 The respondent submits that staff were let go during the time in question for business reasons.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the complainant was harassed and dismissed by the respondent, in circumstances amounting to discrimination, on grounds of gender, in terms of section 6 of the Acts and contrary to section 8 of the Acts, when it terminated her employment in September 2010. In reaching my decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the hearing.
5.2 Section 85A of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the she suffered discriminatory treatment. It is only when those facts have been established and are regarded by an Equality Officer as sufficient to raise an inference of discrimination that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.3 In Melbury Developments v Arturs Valpetters [1] the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case 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". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”. That Court more recently extended this analysis when it affirmed the approach adopted by this Tribunal in Businkas v Eupat Ltd [2]that one of the facts which a complainant must establish is that there was a difference in treatment between him/her and another person who does not possess the relevant protected characteristic, (see Glasgow City Council v Zafar [1998] 2 All ER 953)
5.4 The complaint gave an account of a period of very poor treatment at the hands of the shop manager. I found her to be a very credible witness and accept that she was mistreated by the shop manager. However, the complainant has failed to offer any evidence linking the unwanted behaviour to the ground of gender. To the contrary, the complaint has offered evidence in her written submission and in oral evidence at the hearing that the manager was abusive to all staff regardless of gender.
5.5 Specifically, the complainant gave evidence of a male employee who had been verbally abused by the shop manager to such a degree that he walked out of the shop and never returned.
5.6 When asked directly if she believed that she was treated differently by the shop manager because of her gender the complainant responded that she ”did not know” and went on to speculate that it could be for other reasons, which I find are not linked to the ground in question.
5.7 Having regard to the foregoing consideration by the Labour Court and having considered the complainants evidence, I am not satisfied that the complainant has not established facts from which if can be shown that she was treated in a less favourable manner than others on the ground of gender. I find based entirely on the complainants’ account that the managers’ unwanted behaviour, in relation to all aspects of this complaint, was due to interpersonal reasons and was not related to the ground of gender.
6. DECISION OF THE EQUALITY OFFICER.
6.1 Having considered all of the written and oral evidence presented to me. I find that that a prima facie case of discriminatory dismissal on ground of gender has not been established and this element of the complaint fails.
6.2 I find that that a prima facie case of victimisation has not been established and this element of the complaint fails.
____________________________
Peter Healy
Equality Officer
3 September 2014
'Footnotes'
[1] EDA 0917
[2] Arturas Businkas v Eupat Ltd (In Liquidation) EDA103