Equality Officer Decision No: DEC-E/2015/078
Parties
Udosen
(Represented by Mandate)
-v-
Tesco Ireland Ltd.
(Represented by Ms. Mairéad McKenna BL
Instructed by In-House Solicitors)
File No: EE/2011/601 & EE/2013/67
Date of issue: 27 August, 2015
Employment Equality Acts, 1998-2011 – Sections 6,8 and 74 –discriminatory treatment – race- conditions of employment – promotion- victimisation.
1. DISPUTE
This dispute involves claims by Mr. Ekop Akpan Udosen, who is Nigerian (hereafter called “the complainant”) that he was (i) discriminated against by Tesco Ireland Ltd. (hereafter called “the respondent”) on grounds of race, in terms of section 6(2) of the Employment Equality Acts 1998-2011 and contrary to section 8 of those Acts in respect of his conditions of employment and access to promotion and (ii) victimised by the respondent contrary to section 74(2) of the Employment Equality Acts 1998-2011. The respondent rejects the complainant’s assertions in their entirety.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent as a General Sales Assistant in April, 2007. He was a permanent part-time employee and generally worked 30-35 hours each week on the night shift. He asserts that from October, 2008 the respondent discriminated against him on grounds of race when it refused him access to the Options Programme (an internal training programme) and thereafter refused to promote him to a number of more senior positions in the company. The complainant further asserts that the respondent victimised him in terms of section 74(2) of the Employment Equality Acts, 1998-2011 for having referred a complaint of discrimination to the Equality Tribunal in August, 2011. The respondent rejects the complainant’s assertions and notwithstanding this submits that several of the alleged incidents of unlawful treatment detailed by the complainant go beyond the timelimits prescribed at section 77(5) of the Acts and are therefore not properly before the Tribunal for investigation.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2011 to the Equality Tribunal on 19 August, 2011 alleging discriminatory treatment on grounds of race. He referred a further complaint to the Tribunal on 12 February, 2013 alleging victimisation contrary to the Acts. In accordance with his powers under the Acts the Director delegated the complaints to the undersigned - Vivian Jackson, Equality Officer - for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaints commenced on 19 June, 2013 - the date they were delegated to me. Submissions were filed and exchanged and a Hearing on the complaint took place on 25 September, 2013 and 4 December, 2013. A number of issues emerged in the course of the Hearings which required further clarification and gave rise to correspondence between the Equality Officer and the parties.
2.3 On the first day of Hearing Counsel for the respondent stated that each of the complainant’s complaints included alleged indents of unlawful treatment which occurred more than six months prior to the date of referral of the complaint and submitted that they were therefore not properly before the Tribunal for investigation. In essence Counsel was seeking to rely on the Labour Court Determination in Hurley v Cork VEC[1] . The complainant’s representative was afforded an opportunity to respond and made no particular comment. Having considered the matter I decided that my investigation would focus, in the first instance, on the alleged acts of (i) discrimination which occurred between 20 February, 2011and 19 August, 2011 and (ii) victimisation which occurred between 13 August, 2012 and 12 February, 2013 – in both cases the six month period preceding the date of referral of the relevant complaint, as prescribed at section 77(5)(a) of the Acts. If I considered any of the alleged incidents within either of these periods to amount to unlawful treatment of the complainant contrary to the Acts, I would reconvene the Hearing to hear evidence on the other (earlier) incidents complained of to determine if any of them were sufficiently connected to the incident(s) within the six month period so as to make them part of a continuous act of discrimination. However, should I find the alleged incidents within the six months preceding the referral of the complaint not to be well founded the earlier alleged incidents would be statute barred.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant states that he commenced employment with the respondent as a General Sales Assistant in April, 2007. He contends that from October, 2008 he was denied access to the respondent’s Options Programme - an internal training programme to enable employees to acquire the necessary skills to advance to Line Management positions within the company. He asserts that this refusal amounts to less favourable treatment of him on grounds of race (he is a black Nigerian) and further asserts that this refusal had subsequent implications for him in his efforts for advancement within the respondent organisation. The complainant further asserts that after he referred his first complaint to the Tribunal he was subjected to treatment by his Line Manager (Mr. A) and the Store Manager (Mr. B) which amounts to victimisation of him contrary to the Acts.
3.2 Insofar as his claim of discriminatory treatment is concerned the complainant states that the first alleged incident of less favourable treatment of him occurred on 28 February, 2011. He adds that the Store Manager (Mr. B) appointed a former hotel porter (Mr. C) to a position of management in the Tullamore store and that he ceased his role in management some months later, although he still wears the uniform reserved for Management. He states that Mr. B should have advertised this position internally and that his failure to do so and to appoint Mr. C to the position amounts to less favourable of him (the complainant) on grounds of race. In the course of the Hearing the complainant accepted that around the time in issue the respondent had placed an advertisement for a position as security officer on the staff notice board. He further accepted that the respondent subsequently decided to discontinue the use of direct employees for security and engage external security personal on a contract basis. The complainant added that he never applied for the position as advertised on the notice board and was not aware if any other colleague had done so.
3.3 The complainant states that he wrote to the respondent’s Regional Director on 7 March, 2011 detailing his academic achievements and experience, seeking a more challenging role within the organisation and alleging that Mr. B was depriving him of the opportunity to progress. The complainant says that when he attempted to hand a copy of this letter to Mr. B he read it, returned it to the complainant and refused to accept it. The complainant contends that this was an attempt by Mr. B to prevent him from ventilating his issues to Senior Management. He adds that he subsequently sent this letter to the Regional Director, HR Manager and Mr. B by registered post. The complainant submits that the actions of Mr. B amount to less favourable treatment of him. He is unable to identify any other person who was treated differently in similar circumstances but submits that he would not have been treated in that manner if he was not a black Nigerian.
3.4 The complainant states that the HR Manager (Ms. X) telephoned him on18 March, 2011 advising that there was a management vacancy at the Nenagh store and asked if he would be interested in same. The complainant states he confirmed that he was interested in the post. However, Ms. X telephoned him the next morning to inform him that the position had been filled by a person from Dublin. The complainant submits that this amount to less favourable treatment of him. In the course of the Hearing the complainant was unable to say who was appointed to the post and could offer no arguments as to how the alleged treatment constitutes discrimination of him on grounds of race. The complainant further states that approximately two hours after Ms. X had called him she telephoned him again and enquired whether or not he was interested in assisting with the opening of the new store in Balbriggan. He adds that he replied he was unable to do so because he had no transport. He accepts the veracity of the written record of this telephone conversation as submitted by the respondent but notes that the record indicates the conversation took place on 18 March, 2011 and he strenuously rejects this.
3.5 The complainant states that the local SIPTU Shop Stewards sought a meeting with Mr. B on 21 March. 2011 to discuss issues which were of concern to the complainant. The complainant states that Mr. B informed the SIPTU representatives he would not meet with the complainant because the complainant had called him (Mr. B), or implied, that he was a racist. The complainant denies that he ever used that term and asserts that Mr. B’s refusal to meet with him amounts to less favourable treatment on grounds of race contrary to the Acts.
3.6 The complainant states that he wrote to Ms. Z, the respondent’s Group HR Manager on 4 January, 2011seeking advancement to a more challenging role in the company. He adds that he also copied her with his letter to the Regional Director dated 7 March, 2011. The complainant adds that Ms. Z telephoned him on 22 March, 2011 apologising for the delay in reverting to him and that in the course of this discussion she mentioned the possibility of a placement and prospect (subsequent) appointment to Manager for him. He further states that he told her of developments at the store where he worked and that she promised she would visit the store and investigate his concerns. The complainant states that Ms. Z did not revert to him as promised and that when she visited the store on 2 May, 2011she did not meet with him. The complainant contends that the actions of Ms. Z amount to discrimination of him on grounds of race contrary to the Acts.
3.7 The complainant states that he requested a meeting with Mr. B and that he was accompanied by a SIPTU Shop Steward (Ms. Y) at this meeting. He adds that the meeting (which took place outside of his working hours on 8 April, 2011) went on for almost four hours in the course of which issues connected with his lack of progression to a management position were discussed. The complainant adds Mr. B informed him that he (Mr. B) could not contemplate appointing him to a management position because there had been concerns about his (the complainant’s) performance. In the course of the Hearing the complainant confirmed the accuracy of the notes of this meeting taken by the respondent (which were furnished by him to the Tribunal) save for one minor exception. The complainant states that he was not paid for his attendance at this meeting. In the course of the Hearing the complainant was unable to elaborate on why this meeting, or what occurred at it, amounted to less favourable treatment of him contrary to the Acts. He also stated that he was not aware of the respondent’s policy that staff were not paid for attendance at meetings outside of an employee’s normal working hours and confirmed that he was paid for any meeting which took place during normal working hours.
3.8 The complainant states that he wrote to the respondent’s Employee Relations Manager on 13 May, 2011, wherein he set out specific details of issues of concern to him. He adds that the respondent appointed Mr. D (Manager at the Maynooth store) to investigate his complaint and that he received the outcome of the process in December, 2011. He further states that he took issue with some of the conclusions and comments contained in this report and communicated this to the respondent shortly thereafter. The complainant adds that he received no reply to his correspondence and that this represents a different approach to that operated by the respondent when he made a subsequent complaint to the respondent. He submits that this amounts to less favourable treatment of him on grounds of race contrary to the Acts. In the course of the Hearing the complainant was unable to identify a colleague who was treated differently in similar circumstances.
3.9 The complainant states that between late June, 2011 and end July, 2011 two new managers were appointed by the respondent. He adds that the first of these (Mr. E) just appeared – the complainant does not know how and by whom the appointment was made. He adds that as far as he is aware the position was not advertised and no interviews took place. The complainant states that the second appointment (Mr. F) was to the position of Grocery Manager. He asserts that Mr. F did not complete the necessary training to render his suitable for appointment to Manager. The complainant submits that the manner in which the respondent filled these vacancies/made the appointments amounts to less favourable treatment of him contrary to the Acts.
3.10 The complainant states that in August, 2011 an internal advertisement sought applications for contracts which provided 35 hours of work per week. He adds that he applied and was interviewed by Mr. G (his immediate Line Manager at that time). He states that he was unsuccessful and that when he sought feedback Mr. G advised him that length of service was the determining factor. The complainant adds that two colleagues (both of whom were Irish) were successful. He contends that whilst one of these had more service than him the other did not – he adds that he had some five weeks more service than that colleague. The complainant further states that when he queried this with Mr. G he (Mr. G) advised that the selection had been made by Mr. B by drawing lots. He adds that several weeks later his Second Line Manager (Mr. A) advised him that he (the complainant) had failed to secure the contract because he was slow at his work. The complainant argues that the respondent furnished inconsistent explanations for why he did not receive the contract and submits that this arose because he was a black Nigerian and consequently it constitutes discrimination of him on grounds of race contrary to the Acts. In the course of the Hearing the complainant accepted that he had less service than the candidate he tied with.
3.11 The complainant alleges that he was victimised by the respondent, namely Mr. A and Mr. B as a result of him (the complainant) referring his complaint to the Equality Tribunal on 19 August, 2011. In the course of the hearing the complainant asserted that Mr. A would have been aware of his complaint to the Tribunal because Mr. B would have told him. The complainant states that Mr. A acted in an aggressive manner towards him on 7 October, 2012 when he (the complainant) was performing functions at a check out. He adds that the incident arose as a result of the presence of some items (including frozen items) in the Returns and Waste Station located at the checkout. The complainant adds that when he sought to speak with Mr. A about this, he (Mr. A) became extremely angry and began shouting at the complainant. The complainant asserts that the alleged behaviour amounts to victimisation of him contrary to the Acts. In the course of the Hearing the complaint accepted that there had been a previous discussion between them that shift about the manner in which Mr. A proposed to close the store at the end of the day.
3.12 The complainant states that he immediately invoked the respondent’s Internal Grievance Procedure by letter dated 7 October, 2012. In the course of the Hearing at this Tribunal the complainant accepted that this letter contained references to other alleged incidents of aggressive behaviour towards him by Mr. A, some of which happened several months previously. He added that he had not raised these alleged incidents separately at those times because he wanted to give Mr. A the benefit of the doubt. The complainant states that Mr. B conducted the investigation on foot of his complaint and that he invited the complainant to a meeting on 24 January, 2013 to discuss the outcome of this investigation. The complainant adds that he sought to raise what he believed were shortcomings in the investigation process at this meeting and that Mr. B reacted angrily, rejected the suggestion that the investigation was a cover up and stormed out of the room. The complainant submits that this meeting and the manner in which Mr. B conducted the investigation constitutes victimisation of him contrary to the Acts. In the course of the Hearing the complainant confirmed that he subsequently received a copy of Mr. B’s written conclusions following his investigation of the complainant’s complaint dated 7 October, 2012. The complainant also confirmed (at the Hearing) that he no interest in appealing that decision although he was afforded this opportunity at the time.
3.13 The complainant states that between 24 November, 2012 and 5 January, 2013 there were a number of occasions when his wages were incorrectly calculated. He states that he raised these matters immediately with Mr. G who undertook to investigate same and revert to him. The complainant states that Mr. G did so as promised on each occasion. In the course of the Hearing the complainant agreed that these discrepancies were ultimately resolved and that he received payment of the outstanding amounts by end January, 2013. The complainant states that a further underpayment occurred towards the end of January (in respect of his meeting with Mr. B on 24 January, 2013). In the course of the Hearing the complainant that this matter was subsequently resolved and that he received payment of the outstanding amount by end February, 2013. The complainant contends that these underpayments amount to victimisation of him contrary to the Acts as Mr. B was involved in them. In the course of the Hearing (in response to questions from the respondent’s Counsel) the complainant stated that there had been occasions prior to August, 2012 when his salary had been incorrectly calculated. He also confirmed that his salary was correctly calculated for the remaining weeks during the period August, 2012-January, 2013.
3.14 It is submitted on behalf of the complainant that the treatment of him comprises a calculated effort to deny him the opportunity to advance within the respondent company because of his nationality and the colour of his skin, while at the same time promoting his white Irish colleagues to positions of responsibility. It is further submitted that when he raised these matters internally the respondent did not treat the allegations seriously. Finally, it is submitted that when the complainant referred his complaint to this Tribunal members of the Senior Management at the store where he worked subjected him to adverse treatment for having done so and that this amounts to victimisation of the complainant in terms of section 74(2) of the Acts.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent accepts that the complainant commenced employment with it as a General Assistant in April, 2007. It emphatically rejects the complainant’s assertion that it discriminated against him on grounds of race or victimised him contrary to the provisions of the Employment Equality Acts. The respondent states that the Options Programme is an internal training programme of training for staff members to enable them advance to Line Management positions, including roles as Team Leader. It adds that there are different options for different roles and departments within the organisation and that it is open to all staff. The respondent (Ms. X) rejects the complainant’s assertion that he was refused the opportunity to participate on the Programme and states that he was entered on it in August, 2010 when he first applied for same. It adds that the Programme had been in abeyance for the preceding eighteen months and was only relaunched at that time. The respondent (Mr. B) adds that as part of the complainant’s participation on the Programme he completed sessions at stores in Dublin (details supplied) and also underwent an intensive training placement at a store in Cork. The respondent (Mr. B) further states that as part of the Programme the complainant was assigned a specific task in the frozen foods area of the store in Tullamore to be signed off in January/February, 2011 but that this did not happen because of performance related issues. Mr. B adds that the complainant was made aware of these issues in the course of a meeting on 4 February, 2011. Consequently, the complainant was not signed off on the Programme.
4.2 The respondent (Mr. B) states that a position as a night security officer at the Tullamore store was advertised internally and no staff member replied. Mr. C (who was previously a night porter at a hotel) applied for the position – he was aware of same because his wife worked at the store – and was appointed to the position by Mr. B. The respondent (Mr. B) states that shortly thereafter the respondent decided to discontinue employing direct security personnel and instead to use contractors providing those services. Mr. B adds that by this stage Mr. C had given his notice to his previous employer and Mr. B decided to retain him in the position of Night Manager in Fresh Produce rather than see him unemployed. Mr. B states that a couple of months later Mr. C reverted to the role of Team Leader. In the course of the Hearing Mr. B confirmed (i) he had authority to do make the appointment and (ii) that no formal selection process took place.
4.3 The respondent (Mr. B) accepts that the incident on 7 March, 2011 took place as detailed by the complainant. He adds that on the day in question the complainant demanded to meet with him and when he did so he insisted that he take this letter – which was addressed to the respondent’s Regional Director. Mr. B adds that he took issue with some of the content of the letter as he had made several attempts to provide the complainant with support and opportunities to “prove himself” in the company. The respondent (Mr. B) states that these issues had been discussed at some length during a meeting on 4 February, 2011. Mr. B adds that he was therefore somewhat annoyed with the complainant that day but rejects the allegation that his actions were premised on the fact that the complainant is a black Nigerian.
4.4 The respondent (Ms. X) accepts that she contacted the complainant on 18 March, 2011 to enquire whether or not he would be interested in assisting in a management capacity at a store in Nenagh and that the complainant was agreeable to do so. The respondent (Ms. X) states that when she subsequently contacted the Store Manager at Nenagh she was advised that the position had already been covered. In the course of the Hearing she was unable to say by whom the position was covered. The respondent (Ms. X) accepts that she contacted the complainant on 19 March, 2011 to advise him of same. She also accepts that she telephoned the complainant a further time asking if he was interested in providing some support at the store in Balbriggan and that he declined. In the course of the Hearing Ms. X confirmed that this latter conversation took place on 19 March, 2011 but was unable to explain how the file note of same was dated 18 March, 2011. She rejected emphatically any suggestion that the complainant was not given the opportunity at the Nenagh store because of his nationality or skin colour.
4.5 The respondent (Mr. B) rejects the assertion that he refused to meet with the complainant on 21 March, 2011. He adds that the complainant had sought (and was facilitated) with several meetings, many at short notice. He further states that staff can be accompanied to any meeting with colleagues or union representatives as long as it complied with the company policy. Mr. B states that meetings in respect of the Options Programme were not covered by this. In the course of the Hearing Mr. B stated that at a previous meeting (January/February, 2011) the complainant had commented that he (Mr. B) should “look beyond the colour of my skin”. Mr. B added that he considered this comment to suggest he was a racist and he was therefore reticent to meet with the complainant when this issue was still unresolved, although he later had meetings with the complainant, in particular the lengthy meeting on 8 April, 2011. In the course of the Hearing Ms. X independently corroborated the evidence given by Mr. B as regards the complainant’s comment concerning his skin colour.
4.6 The respondent (Ms. Z – Group HR Manager) states that she spoke with the complainant in late 2010 about his participation on the Options Programme and explained the process to him. She adds that the complainant was “signed on” to the Programme in September, 2010 shortly after it was relaunched following an eighteen months’ freeze. Ms. Z accepts that she received the complainant’s letter of 7 March, 2011 and confirms that she spoke with him by telephone sometime after that. She states that she explained the process again to the complainant and advised that (i) he did not have an automatic right to a management position; (ii) he needed to be more flexible in his proposed placements under the Programme and (iii) he would need to prove himself at different departments in his own Store and at different stores in the chain. Ms. Z adds that the complainant was not prepared to listen to her and she felt he was attacking her on the phone. She rejects the complainant’s assertion that she undertook to investigate his issues and revert to him. She states that generally issues around the Options Programme are handled at Store Manager or Store HR level and that any grievance is processed through the respondent’s Grievance Procedure. She strenuously rejects the assertion that the manner she engaged with the complainant amounts to discrimination of him on grounds of race.
4.7 The respondent (Mr. B) accepts that he attended a lengthy meeting with the complainant and his union representative on 8 April, 2011 to discuss a number of issues of concern to the complainant. The respondent (Mr. B) states that during this meeting he attempted to address each of the issues raised by the complainant and adds that he attempted to support him by suggesting a number of ways he (the complainant) might prove himself suitable for progression to a management position. He adds that these suggestions were dismissed by the complainant because they were not acceptable to him for a variety of reasons; in particular they were on day shifts. The respondent furnished the Tribunal with contemporaneous note of this meeting and rejects the assertion that the manner in which this meeting was conducted, or the outcome of same, constitutes less favourable treatment of the complainant on grounds of race contrary to the Acts.
4.8 The respondent accepts that it received a letter from the complainant dated 13 May, 2011 wherein he claimed that the Management at the store in Tullamore was consistently denying him the opportunity to advance within the organisation. The respondent states that it appointed the Manager of its store at Maynooth (Mr. D) to investigate the matter. It states that Mr. D interviewed all relevant personnel as part of the process (Mr. B, Ms. X and two Night Managers who the complainant reported to at that time) and found that the complains were unfounded. It adds that Mr. D issued his conclusions to the complainant on 17 December, 2011. The respondent submits that the process it adopted was thorough and impartial and rejects the assertion it was discriminatory.
4.9 The respondent (Mr. B) accepts that two new managers were appointed in June/July, 2011 as stated by the complainant. Mr. B adds that the first of these (Mr. E) had previously worked with him when they were trainee managers. He had also previously served as an Assistant Manager with the respondent at another store and had extensive retail managerial experience with several other retail chains. Mr. B state that the appointment was made by him pursuant to his authority as Store Manager and confirms that the position was not advertised. He adds that in any event the complainant would not have the same level of experience as Mr. E. The respondent (Mr. B) states that the second person (Mr. F) was a Team Leader in Tesco.com. and was offered the position of Grocery Manager. The respondent (Mr. B) states that Mr. F had also completed an appropriate placement and demonstrated to Mr. B that he (Mr. F) was capable of the role of Manager. Mr. B states that he appointed Mr. F to the position pursuant to his authority as Store Manager and confirmed that there was no internal advertisement of the post. He adds that the complainant had not demonstrated similar ability to him and consequently he was not considered for the post. The respondent (Mr. B) rejects the assertion that the appointment of either person, or the fact that the complainant was not appointed to the positions, had anything whatsoever to do with the complainant’s nationality or skin colour.
4.10 The respondent accepts that two members of staff were furnished with 35 weekly hour contracts in August/September, 2011. It (Mr. B) adds that the award of the contacts followed a selection process involving an interview which the complainant competed in. Mr. B further states that there were only two contacts available at that time and that after the interviews the complainant and one other candidate were equally tied in second position. He (Mr. B) adds that he decided the fairest way to differentiate between them was on length of service and that the complainant had less service than the other candidate and consequently he was not offered the contact. Mr. B emphatically rejects the complainant’s assertion that the manner in which the successful candidates were selected had anything to do with their nationality or colour. In the course of the Hearing Mr. G stated he had informed the complainant that length of service had been used as a factor in the selection process but denied the assertion that he informed him that the selection process involved drawing of lots. Also in the course of the Hearing Mr. A emphatically rejected the comment attributed to him, adding that he had no role in the selection process.
4.11 The respondent rejects the complainant’s assertion that he was victimised by Mr. A and Mr. B because he (the complainant) had referred his first complaint to the Tribunal. In the course of the Hearing Mr. B confirmed that he was aware of the complainant’s initial complaint to the Tribunal from shortly after it had been referred and that this knowledge arose in his capacity as Manager of the store where the complainant worked. He added, however, he was also aware that the matter was confidential and rejected in the strongest terms, that he had discussed the existence of the complaint with any member of the store Management Team. In the course of the Hearing both Mr. A and Mr. G stated (independently of each other) that Mr. B did not discuss the complaint with either of them at any time prior to August/September, 2013 when the case was coming on for Hearing in the Tribunal. It is submitted on behalf of the respondent that none of the alleged behaviour of Mr. A and Mr. G advanced by the complainant could amount to victimisation in terms of the Acts as they could not be as a consequence of him referring a complaint to the Tribunal as they were unaware of it at all times relevant to the allegation.
4.12 The respondent (Mr. A) accepts that there was a heated discussion between him and the complainant near the checkouts on the morning of 7 October, 2012. He adds that several hours prior to this the complainant had questioned why he (Mr. A) instructed that customers should leave the store through a particular exit. He adds that he felt the complainant was arguing with him unnecessarily and reminded the complainant that he (Mr. A) was the boss and he (the complainant) should carry out his instructions. The respondent (Mr. A) states that on the morning in question he noticed that there were a number of items in the returns area of the complainant’s checkout, some of which were frozen items which could not be returned for sale. He adds that he raised the matter with the complainant asking why the items were still there and the complainant replied that he was required to remain at the checkout. Mr. A further states that he was not satisfied with this response as he believed the complainant should be aware this was part of his duties. He states that he was dumb founded and frustrated with the complainant’s reaction to his query but rejected the assertion that he was aggressive and denied in the strongest terms that his treatment of the complainant amounted to victimisation contrary to the Acts.
4.13 The respondent accepts that the complainant immediately referred a complaint under the Internal Grievance Policy about the alleged events of 7 October, 2012 in which he included a number of other alleged incidents which occurred some months previously. The respondent (Mr. B) states that he investigated the complaint in accordance with the respondent’s Grievance Policy. He adds that as part of his investigation he interviewed the complainant, Mr. A and Mr. G and reached his conclusions which he communicated to the complainant in writing on 14 January, 2013. Mr. B adds that he met with the complainant and his trade union representative on 24 January, 2013 to discuss his conclusions. Mr. B further states that early in this meeting the complainant was clearly unhappy with the conclusions and he (the complainant) accused Mr. B of being involved in a falsehood or cover up of the alleged events and investigation. Mr. B rejects this assertion in the strongest terms and accepts that he ended the meeting because of the complainant’s accusations – which Mr. B believed impugned his honesty and integrity. The respondent (Mr. B) states that his letter of 14 January, 2013 offered the complainant the option of appealing his conclusions and the complainant did not avail of this. The respondent submits that the investigation process was fair, objective and thorough and argues that it cannot amount to victimisation of the complainant contrary to the Acts.
4.14 The respondent accepts that there were a small number of occasions between November, 2012 and January, 2013 when the complainant queried underpayments in his wages. The respondent (Mr. G) states that these issues were genuine errors on the part of the respondent and that when the complainant raised the queries with him he followed them up with the Compliance Manager. He adds that these errors concerned premium time, sick leave and payment for meetings the complainant attended. The respondent (Mr. G) states that all of these errors were rectified as soon as possible and where there was an error the full payment was made. The respondent states that there had been errors in the complainant’s (and other employees) salary on previous occasions and this was a feature of processing payroll for a large workforce. It further states that the complainant’s wages were calculated correctly other weeks and submits that the errors were small in number in the overall context of processing the complainant’s wages each week. It submits that in all of the circumstances the underpayments could not be considered victimisation of the complainant in terms of the employment equality legislation.
4.15 In summary, the respondent rejects the complainant’s assertions in their entirety. It states that the respondent offered the complainant several opportunities to advance within the organisation but he refused them because they were not suitable to him. It adds that these opportunities were offered to him notwithstanding there were issues with his performance – these issues were identified to the complainant at the meetings on 4 February, 2011 and 8 February, 2011. The respondent accepts that not all vacancies in the store were advertised and a competitive selection process followed. It adds that Mr. B, as Store Manager head hunts/talent spots and recruits staff whom he believes can perform at the required level and he has authority to do so in that capacity. The complainant did not convince Mr. B he had the capacity/ability to perform at those levels, despite opportunities to do so. The respondent further submits that the complainant has failed to establish a prima facie case of victimisation contrary to the Acts. It adds that neither Mr. A nor Mr. G were aware of the existence of his complaint to this Tribunal at the time relevant to his claim of victimisation and submits that consequently, any treatment of him could not have been linked to that fact and could not therefore amount to victimisation.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of race in terms of section 6(2) of the Employment Equality Acts 1998-2011 and contrary to section 8 of those Acts in respect of his conditions of employment and access to promotion and (ii) victimised the complainant contrary to section 74(2) of the Employment Equality Acts 1998-2011 In reaching my decision I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal as well as evidence advanced at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998- 2011 sets out the probative burden which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove, in the first instance, the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainantdoes not discharge the initial probative burden required his case cannot succeed.
5.3 The first part of the complainant’s case relates to several alleged incidents of less favourable treatment of him because he is a black Nigerian. The first of these incidents relates to the appointment of Mr. C to a management position at the store in Tullamore by Mr. B. Having evaluated the evidence adduced by the parties I am satisfied that there was a vacancy for a security officer at the store at that time. I am also satisfied that Mr. B offered the position to Mr. C and that circumstances subsequently changed with security services to be provided on an external contract basis. Mr. B accepts that he appointed Mr. C to a management position at that time and states that he did so because he had offered him a position and it fell through. In essence, Mr. C would have been unemployed through no fault of his own and Mr. B felt somewhat responsible for the situation he (Mr. C) found himself in. Mr. B sought to rectify this by offering Mr. C a management position in the Fresh Produce Department. Mr. B accepts that he did so without a competitive selection process – adding that he had the authority to depart from such a process – and I am satisfied that this was the case. In exercising this authority Mr. B clearly impacted on the complainant as he (the complainant) was denied the opportunity to compete for the position. However, he was not the only person so affected. A number of his colleagues, two of whom were Irish – the same nationality as Mr. C- were also denied the opportunity to compete for the post. Whilst the approach adopted by Mr. B may, on the face of it, seem unfair and clearly lacked transparency, I am not satisfied cannot find that it was discriminatory on the ground cited by the complainant. Consequently, I find that the complainant has failed to establish facts from which it could be inferred that he was treated less favourably on grounds of race contrary to the Acts and this element of his complaint must fail.
5.4 It is common case that there was a somewhat heated exchange between the complainant and Mr. B on 7 March, 2011. Mr. B states that he was annoyed at the complainant for insisting he meet with him and then attempt to force him take a copy of a letter addressed to the Regional Director which suggested that he (Mr. B) had deliberately attempted to frustrate the complainant’s progress within the company. Mr. B states that this issue had been the addressed in the course of a discussion between him and the complainant on 4 February, 2011 and that the complainant was aware of his (Mr. B’s) position on the matter. A copy of the minutes of this meeting was opened to the Tribunal. They clearly indicate that the respondent had issues with the complainant’s performance and that things would be different if he (the complainant) could prove himself capable of a line management position. I note that the complainant did not take issue with the accuracy of these minutes in the course of my investigation. In the circumstances it is understandable why Mr. B reacted as he did on 7 March, 2011 – although it lacks the standards of professionalism that one might expect from someone at Senior Management level. The complainant asserts that Mr. B’s response was an attempt by Mr. B to prevent him from ventilating his issues to Senior Management. This was clearly not the case as the complainant subsequently sent this letter to the Regional Director and HR Manager. It is noteworthy that the complainant was unable to identify any colleague who was treated differently in similar circumstances. Having carefully examined the evidence adduced by the parties on this matter I find, that whilst Mr. B’s response to the complainant was perhaps brusque and lacking in professionalism, the complainant has failed to satisfy me that it was connected to the fact that he was a black Nigerian and this element of his complaint cannot succeed.
5.5 Several of the alleged incidents of discriminatory treatment advanced by the complainant are centred on his belief that he was capable of performing a management role and it is therefore appropriate that I address the matter at this juncture. The respondent contends that the complainant was not capable of performing such a role and states he had failed to be signed off its internal Options Programme due to performance related issues. It adds that the complainant was advised of his shortcomings and was offered significant support and opportunities to demonstrate his ability. In this regard it relies on the contents of meetings between Mr. B and the complainant on 4 February, 2011 and 8 April, 2011. I have examined the minutes of these meetings which were opened to the Tribunal by the complainant and it is clear that the respondent’s version of events is an accurate one. Moreover, the uncontroverted evidence of Ms. Z, the respondent’s Group HR Manager, was that she had spoken with the complainant about his performance and application in March, 2011. Consequently, I find that the complainant’s belief he was competent and capable of performing duties at a management level, in terms of the standards required by the respondent, was misguided. It is clear that being signed off on the Options Programme was not an essential requirement for appointment to a management position, but in the complainant’s case it was the primary avenue of advancement available to him. I am satisfied that the respondent signed him on to the Programme in August, 2010 and that this was the first opportunity which presented itself for his registration. I am further satisfied that at the meeting of 8 April, 2011(which was a long meeting) a number of suggestions were put to him that would have afforded him the opportunity to progress through the Programme and he refused them. In fact the minutes reflect that the complainant sought to dictate where he would complete the necessary placement for progression through the Programme. No evidence has been adduced by the complainant which could lead me to the conclusion that the respondent placed a barrier to his advancement within the organisation at all, least of all that that any such impediment was linked to the fact he was a black Nigerian. Moreover, the complainant has not advanced any evidence that might support an assertion that others, of a different nationality to him, had no barrier placed in their way and/or were permitted to dictate how they would achieve advancement within the organisation. In light of the foregoing I find that the complainant has failed to discharge the initial probative burden required of him in terms of his general assertion that he was treated less favourably on grounds of race as regards advancement with the organisation and this element of his complaint fails.
5.6 It is common case that there was contact between the complainant and Ms. X on 18 March, 2011 in respect of him assisting in a management capacity at a store in Nenagh and that he was agreeable to the assignment. It is also common case that it did not occur because the position was filled by another person. The complainant asserts that this amounts to discrimination of him on grounds of race contrary to the Acts. I note that he was unable to say who filled the post or advance any other relevant information in support of his assertion. Consequently, that it what it remains – an assertion on his part. It is settled law that mere assertions are insufficient to discharge the initial probative burden required[2]. I therefore find that the complainant has failed to establish a prima facie case that he was treated less favourably on grounds of race contrary to the Acts and this element of his complaint fails.
5.7 The complainant states that he sought a meeting (though his trade union representative) with Mr. B on 21 March, 2011 to discuss issues of concern to him. He adds that his request was refused because Mr. B accused the complainant of calling him or implying that he was a racist – an accusation the complainant emphatically rejects – and contends that Mr. B’s refusal amounts to less favourable treatment of him on grounds of race contrary to the Acts. The respondent (Mr. B) rejects the complainant’s assertion that he refused to meet with the complainant. He adds that at a previous meeting sometime in January/February, 2011 the complainant had commented that he (Mr. B) should “look beyond the colour of my skin” and he considered this comment to suggest he was a racist and he was therefore reticent to meet with the complainant when this issue was still unresolved. In the course of the Hearing Ms. X independently corroborated the comment attributed to the complainant by Mr. B. I note that Mr. B met with the complainant on a number of occasions subsequently – at a time was this matter was still unresolved – in particular the lengthy meeting of 8 April, 2011. I further note that he had met with him on 7 March, 2011 at a time when the matter was also unresolved and that this was closer to the event and could have given rise to a greater sense of reticence on his part. Consequently, I do not accept Mr. B’s explanation that he was reluctant to meet with the complainant solely because he felt there was an allegation of racism hanging over him. It seems to me more likely that Mr. B was still somewhat exasperated at the complainant following events of 7 March, 2011 (see paragraph 5.4 above) and his refusal to meet with him – and I find he did refuse – was underpinned by this along with the ongoing irritation he felt following the complainant’s comment to him detailed above. It does not however, follow that his refusal amounts to less favourable treatment of the complainant on grounds of race. Having evaluated the evidence adduced I am satisfied, on balance, that Mr. B would have reacted in similar fashion regardless of the nationality or colour of the other person involved. I therefore find that the complainant has failed to discharge the initial probative burden required of him and this element of his complaint cannot succeed.
5.8 The complainant states that Ms. Z telephoned him on 22 March, 2011 following receipt of his letter of 7 March, 2011. He asserts that in the course of this discussion she mentioned the possibility of a placement and possible (subsequent) appointment to Manager for him. He further states that when he told her of developments at the store where he worked that she promised she would visit the store and investigate his concerns. The complainant states that Ms. Z did not revert to him as promised and that when she visited the store on 2 May, 2011she did not meet with him and submits that her actions amount to discrimination of him on grounds of race contrary to the Acts. Ms. Z accepts that she spoke with the complainant by telephone around this time but has a different recollection of its contents. She states that she explained the Options Programme to the complainant again – she had previously spoken with him when he signed on to the Programme the previous September and advised that (i) he did not have an automatic right to a management position; (ii) he needed to be more flexible in his proposed placements under the Programme and (iii) he would need to prove himself at different departments in his own Store and at different stores in the chain. The evidence of Ms. Z on this matter is consistent with the general trend of the evidence adduced by others in the respondent and I therefore prefer, on balance, her version of the conversation. She states that the complainant was not prepared to listen to her and she felt he was attacking her on the phone. It is clear to me (from my investigation) that the complainant is a person who firmly believes he was being treated unjustly by the respondent and his vigour and persistence in pursuit of justice may be perceived as aggressive by others. Ms. Z rejects the complainant’s assertion that she undertook to investigate his issues and revert to him. She states that generally issues around the Options Programme are handled at Store Manager or Store HR level and that any grievance is processed through the respondent’s Grievance Procedure. I have examined the Grievance Procedure and this is the case. Moreover, it seems unlikely that someone at such a senior level in the organisation would undertake to get involved in such issues and accordingly I prefer, on balance, the version of events advanced by Ms. Z. Having carefully considered the evidence of the complainant and Ms. Z on this issue I find, on balance, that the complainant has failed to establish facts from which it could be inferred that he was treated less favourably by the respondent on grounds of race, contrary to the Acts and this element of his complaint fails.
5.9. The complainant’s submission made reference to a meeting on 8 April, 2011. In the course of the Hearing he was asked to elaborate on why this meeting, or what occurred at it, amounted to less favourable treatment of him contrary to the Acts and he was unable to elaborate in any significant detail. I note the complainant confirmed the accuracy of the notes of this meeting taken by the respondent (which were furnished by him to the Tribunal) save for one minor exception. I also note the complainant sought the meeting in the first intance and his request was accommodated by the respondent. Consequently, the fact the meeting was convened could not amount to discrimination of the complainant. I have closely examined the minutes of this meeting and there is nothing in them which could lead me to a conclusion that what occurred at it could constitute less favourable treatment of the complainant contrary to the Acts. The sole issue advanced by the complainant in respect of this meeting is that he was not paid for his attendance at it. The respondent states that it was not its policy to pay staff for attendance at meetings outside of an employee’s normal working hours. I note (i) the complainant states he was not aware of the respondent’s policy in that regard, (ii) the meeting in question took place outside of the complainant’s normal working hours and (iii) the complainant confirmed that he was paid for any meeting which took place during normal working hours. In light of the foregoing I find that the complainant has failed to establish a prima facie case of discrimination in respect of this element of his complaint – that he was not paid for attendance at this meeting because of his nationality and/or skin colour - and it therefore fails.
5.10 It is common case that the complainant wrote to the respondent’s Employee Relations Manager on 7 May, 2011 seeking an investigation of why he had not been appointed to a management position at the store in Tullamore. The respondent appointed Mr. D (Store Manager in Maynooth) to investigate the matter. The respondent opened the interview notes and final response issued by Mr. D in the matter to the Tribunal. Mr. D did not attend the Hearing. It appears from the notes adduced that Mr. D interviewed four members of senior management staff (including Mr. B and Ms. X) and reached his conclusions. It is not for this Tribunal to evaluate whether or not it would have reached the same conclusions as Mr. D (unless it is manifestly irrational) rather it is to look at the process adopted and decide whether or not it infringes the principle of equal treatment on the grounds of race. Having considered the evidence adduced I find that Mr. D conducted the investigation in a fair, transparent and objective manner and I am satisfied that his conclusions were consistent with the information he acquired during the process. He issued his conclusions to the complainant on 17 December, 2011 and the complainant replied shortly thereafter raising a number of points about these conclusions. Whilst the respondent could not indicate the basis upon which Mr. D conducted his investigation, it appears to me that the only appropriate mechanism for processing the matter was the respondent’s Grievance Policy. It is surprising therefore that the complainant was not afforded a right of appeal of the outcome of the process. It is not surprising then that the complainant’s aforementioned response makes no reference to an appeal. However, the complainant has not established facts of sufficient significance which could lead me to conclude that this shortcoming in the process was linked to the fact that the complainant was a black Nigerian. I therefore find that the complainant has failed to establish a prima facie case of discrimination in respect of this element of his complaint and it therefore fails.
5.11 The respondent (Mr. B) accepts that he appointed two people (Mr. E and Mr. F) to management positions within the store in June/July, 2011. He adds that both these people had significant relevant experience for the positions and were suitable appointees. Mr B further states that the complainant did not possess the level of experience required and was not therefore considered for the posts. In the course of the Hearing I found Mr. B to be a credible witness who furnished his responses in a clear and forthright manner and I accept his evidence in this regard. I have already found at paragraph 5.5 above that the complainant’s belief he was competent and capable of performing duties at a management level, in terms of the standards required by the respondent, was misguided. In O’Halloran v Galway City Partnership[3] the Labour Court adopted the conclusion of the Northern Ireland Court of Appeal in Wallace v. South Eastern Education and Library Board[4] as follows: “Where a better qualified candidate is passed over in favour of a less qualified candidate an inference of discrimination can arise”. This test has been applied subsequently by the Court and this Tribunal on numerous occasions across the full range of discriminatory grounds provided in the employment equality legislation. Applying it to the instant case I find, on balance, that the complainant has not established facts from which it could be inferred that he was treated less favourably on grounds of race contrary to the Acts in respect of either of these two appointments and this element of his complaint fails.
5.12 The final element of the complainant’s discriminatory treatment claim concerns the circumstances under which contracts which provided 35 hours of work per week were awarded in August, 2011. It is common case that the complainant interviewed for this and was unsuccessful. He states that when he sought feedback from his Line Manager Mr. G (who had interviewed him) he (Mr. G) advised the complainant that length of service was the determining factor. He adds that when he queried this further Mr. G changed his story and informed him that the selection had been made by Mr. B by drawing lots. In the course of the Hearing Mr. G denied this latter comment. The respondent (Mr. B) states that there were only two contracts available at that time and that after the interviews the complainant and one other candidate were equally tied in second position. Consequently, if the complainant was treated less favourable on grounds of race I am satisfied that the comparison must be made in terms of that candidate. Mr. B states that he decided the fairest way to differentiate between them was on length of service; that the complainant had less service than the other candidate and consequently he was not offered the contact. I note the complainant’s evidence was that at the time this was the explanation given to him by Mr. G. I further note that at the Hearing the complainant accepted that this candidate had more service than him. In the circumstances I am satisfied that the selection process was not tainted by discrimination and this element of the complainant’s claim fails. One further issue requires attention – the alleged comment by Mr. G about the drawing of lots. The question of whether or not this comment was made is disputed and I make no finding on that as in my view nothing turns on it. I would say however, that even if the comment was made and the selection process was decided on that basis, it could not amount to discrimination of the complainant as the outcome would not be dictated by objective or discriminatory factors rather it would be reduced to a game of chance in which both he and the other candidate had an equal chance of winning.
5.13 In summary, I find the complainant’s claim of discriminatory treatment not to be well founded on an individual incident basis or when combined in their totality. It appears to me that for the complainant’s claim to succeed there would have to have been a concerted effort by several members of the respondent’s Senior Management – at store level and in HR – over several months, to do the complainant down. I find this proposition stretches credibility to the extreme and indeed that the contrary is the case – the respondent made every effort to support the complainant in his career path.
5.14 I shall now turn to the second part of the complainant’s claim – that he was victimised by the respondent in terms of Section 74(2) of the Acts for having referred his complaint to this Tribunal on 19 August, 2011. Section 74(2) of the Employment Equality Acts, 1998-2011 defines victimisation as follows:
“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to –
(a) a complaint of discrimination made by an employee to the employer………….
(g) an employee having given notice of an intention to take any action mentioned in the preceding paragraphs.”
In Tom Barrett v Department of Defence[5] the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant. The test provides, in effect, that victimisation occurs where a person is subjected to adverse treatment as a reaction to, inter alia, the bringing of a complaint under the Acts. That suggests that “but for” the complaint the complainant would not have suffered the alleged detriment.
5.15 The complainant states that the focus of his allegation of victimisation is the alleged treatment of him by Mr. A and Mr. B in the period following the referral of his complaint to this Tribunal. However, I am satisfied that his allegation also involve Mr. G. In light of the test outlined in the previous paragraphs it follows that all three of them must be were aware of the existence of the complainant’s complaint to this Tribunal in order for any alleged treatment of him to be as a reaction to the complaint. The complainant asserts that Mr. B must have spoken with other members of the store Senior Management about his complaint to this Tribunal. He offered no tangible evidence that this was indeed the case. Mr. B states that he was aware of the complainant’s initial complaint to the Tribunal from shortly after it had been referred. He adds, however, he was also aware that the matter was confidential and rejected in the strongest terms, that he had discussed the existence of the complaint with any member of the store Management Team. In the course of the Hearing both Mr. A and Mr. G stated (independently of each other) that Mr. B did not discuss the complaint with either of them at any time prior to August/September, 2013 when the case was coming on for Hearing in the Tribunal. I found both of these gentlemen to be credible witnesses who gave their evidence in a clear, concise, consistent and forthright manner and I accept their veracity of their responses in this regard. This is in contrast to the lack of contradictory evidence in the matter by the complainant. Accordingly, I am satisfied that any alleged treatment of the complainant by either of them could not be regarded as a reaction to his complaint to this Tribunal and therefore could not amount to victimisation contrary to the Acts. However, in the interests of completeness and in order that the parties have a decision on the alleged incidents at first instance, I will deal with the incidents raised. The alleged incidents of victimisation involving Mr. B are properly before the Tribunal for investigation.
5.16 It is common case that there was a heated discussion between Mr. A and the complainant on the morning of 7 October, 2012. It is also common case that words had been exchanged between them earlier in that shift when the store was closing to the public. I have carefully examined the evidence adduced by the parties in respect of these issues and I am satisfied (taking the latter incident first) that the complainant had questioned Mr. A for announcing that the store would be closing prior to the allotted closing time and that customers should leave the store through a particular exit. I am further satisfied that Mr. A responded brusquely to this advising the complainant that he (Mr. A) “was his boss”. In my view this is a natural response for him to make in circumstances where a member of his staff openly challenged a decision he made in his (Mr. A’s) capacity as a Manager. It could not, by any objective measure, be considered a response by Mr. A for the complainant having referred his original complaint to this Tribunal some fourteen months previously. The second incident occurred several hours later. It is common case that there were a number of frozen perishable goods in the returns area of the complainant’s checkout. Mr. A states that these items could not be sold to the public and that the loss of the associated revenue constituted an unnecessary cost to the respondent and he asked the complainant why they were still there. He adds that he was dumbfounded by the complainant’s response to his query as he (Mr. A) believed the complainant should be aware that keeping this area under review and returning perishable items to the appropriate storage area promptly (or arranging for same) was part of his duties. Having considered the evidence adduced I am satisfied that this exchange grew heated and that voices were raised. However, I am not satisfied that Mr. A’s behaviour amounts to victimisation of the complainant contrary to the Acts. Rather it is more likely that his terse response was influenced (i) by the complainant’s own behaviour at that time and (ii) the strong possibility Mr. A was still somewhat annoyed at the complainant in respect of the previous incident some hours earlier. Moreover, I am satisfied that Mr. A was entirely within his rights as the Manager on Duty to raise the matter with the complainant. In light of the foregoing I find that the complainant has failed to establish a prima facie case of victimisation contrary to the Acts and this element of his complaint fails.
5.17 It is common case that the complainant immediately referred a complaint under the respondent’s Internal Grievance Policy later that same day. It is also common case that this complainant made reference to other alleged incidents of aggressive behaviour towards him by Mr. A, some of which happened several months previously. The complaint was investigated by Mr. B and he issued his conclusions to the complainant by letter dated 13 January, 2013. The complainant submits, in the first instance, that the manner in which Mr. B conducted the investigation constitutes victimisation of him contrary to the Acts. A copy of Mr. B’s conclusions was opened to the Tribunal. As mentioned at paragraph 5.10 above it is not for this Tribunal to evaluate whether or not it would have reached the same conclusions as Mr. B, rather it is to look at the process adopted and decide whether or not it amounts to victimisation in terms of section 74(2) of the Acts. Having considered the evidence adduced I find that Mr. B conducted the investigation in a fair, transparent and objective manner in accordance with good practice. His conclusions set out the reasons why he reached those outcomes and the complainant was afforded the opportunity to appeal his decision. The complainant clearly took issue with some of the conclusions reached by Mr. B and his remedy was to exercise his right of appeal. Whilst he subsequently raised these concerns with the respondent a few days later, he did not pursue the matter despite a number of opportunities to do so.
5.18 It is common case that a meeting took place between the complainant and Mr. B (along with others) on 24 January, 2013 to discuss the outcome of Mr. B’s investigation. It is also common case that Mr. B cut this meeting short. The complainant asserts the behaviour of Mr. B in this regard is a further incident of victimisation. The respondent (Mr. B) states that he ended the meeting because he interpreted the complainant’s comments as impugning his integrity and accusing him (Mr. B) of being involved in a cover up. A copy of the minutes of this meeting was opened to the Tribunal. These minutes are consistent with Mr. B’s version of events. The complainant did not take issue with the veracity of these minutes at the Hearing. In the circumstances I find it perfectly understandable that Mr. B would respond as he did in circumstances where his honesty and integrity were impugned. This is all the more pointed when ones considers that the complainant had previously implied that Mr. B was a racist. Having carefully assessed the evidence adduced I find that the complainant has not furnished a scintilla of evidence to support his assertion that the manner in which Mr. B conducted his investigation, the outcome of same and the manner in which he responded at the meeting of 23 January, 2013 constitute victimisation of him contrary to the Acts and this element of his complaint cannot therefore succeed.
5.19 The final element of the complainant’s allegation of victimisation relates to a number of discrepancies in his wages between November, 2012 and January, 2013. The respondent accepts that these discrepancies occurred but submits that they were genuine errors on its part. It adds that when queried by the complainant it took action on same and that in time all the underpayments were rectified. This latter fact was confirmed by the complainant at the Hearing. I note the complainant accepts that (i) there had been errors in his wages prior to August, 2011 and (ii) his wages was calculated correctly every other week after August, 2011 save for those indicated by him. I have examined the details of the discrepancies involved and there are five separate occasions during the period where errors occurred. One of these relates to the meeting (payment for thirty minutes) on 24 January, 2013. Two others occurred during the Christmas/New Year holidays when rosters were in chaos due to annual leave etc. One refers to payment in lieu of the October Bank Holiday and the last one refers to payment for a particular number of hours for a day when the complainant was on sick leave. I am satisfied that each of these occasions involved circumstances which were atypical and that it is entirely possible for errors to occur. Having regard to the totality of the evidence adduced I am satisfied, on balance, that the complainant has not established facts of sufficient weight to enable me reach the conclusion that he was subjected to victimisation contrary to the Acts for having referred his complaint to the Tribunal in August, 2011 and this element of his complaint fails.
6. DECISION OF THE EQUALITY OFFICER.
I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2011. I find that the complainant-
(i) has failed to establish a prima facie case of discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts 1998-2011 and contrary to section 8 of those Acts in respect of his conditions of employment and access to promotion, and
(ii) has failed to establish a prima facie case of victimisation in terms of section 74(2) of the Employment Equality Acts 1998-2011
and his complaint fails in its entirety
_______________________________
Vivian Jackson
Equality Officer
27 August, 2015
Footnotes
[1] EDA 1124
[2] EDA 0917 Melbury Developments v Arturs Valpetters
[3] EDA 077
[4] [1980] IRLR 193
[5] EDA1017