DEC-E2016-003

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-003

PARTIES

Piotr Bosakowski and Maciej Latajka

(Represented by Berwick Solicitors)

AND

Dunnes Stores

(Represented by Byrne Wallace Solicitors)

File reference: EE/2014/303,EE/2014/302

Date of issue: 8th January 2016

Headnotes: Employment Equality Acts – conditions of employment – race

1.DISPUTE

1.1 This dispute involves claims by Mr Piotr Bosakowski and Mr Maciej Latajka (the complainants) that they were discriminated against by Dunnes Stores (the respondent) in relation to conditions of employment contrary to section 8 of the Employment Equality Acts (hereinafter referred to as “the Acts”) on the ground of race contrary to section 6 of the Acts. The complainants also submit that they were subjected to victimisation by the respondent in terms of Section 74(2) of the Acts.

1.2 Both complainants referred their claims under the Employment Equality Acts to the Equality Tribunal on 27 May 2014. On 6th August 2015 in accordance with her powers under the Acts the Director delegated the complaint to the undersigned, Peter Healy, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on the 1st October 2015.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83.3 of the Workplace Relations Act 2015.

2. SUMMARY OF SUBMISSIONS COMMON TO BOTH COMPLAINANTS.

2.1 Both complainants, of Polish nationality, were employed as retail assistants by the respondent. During the years of 2011 to 2013 they worked in the fruit and vegetable department of a large store operated by the respondent. During that time the complainants submit that they were treated differently than other employees due to their nationality, for the reasons below.

2.2 During this time the complainants submit each of them were individually given the responsibility of placing the fruit and vegetable orders for the store, setting the sales targets, controlling the wastage, changing the layout and also giving directions to other members of staff. The complainants submit that they were acting as managers without manager pay and worked longer hours than others.

2.3 The complainants both submit that these demanding duties took a toll on their individual wellbeing resulting in them being overworked and stressed. The complainants submit that they were the only employees required to work from 6.00 a.m., three or four times a week. They submit that other employees started later and did not have as much work and duties to complete during their shift.

2.4 The complainants submit that they made several verbal complaints to their line manager and the store manager.

2.5 The complainants submit that in 2013 they were moved to different departments and that extra employees were tasked to work in the fruit and vegetable department. The complainants submit that none of these employees were asked to place orders, set sales targets or control wastage.

2.6 The complainants submit that on the 18th September 2013 they were advised that due to policy changes they would be resuming “a normal work load” in the fruit and vegetable department, like the rest of the employees. The complainants submit that the line manager began to place orders.

2.7 The complainants submit that they are being discriminated against due their association with each other.

3 Summary of submissions particular to Mr Latajka.

3.1 Mr Latajka submits that during his employment he was held personally responsible if the store exceeded the waste budget or if there was not enough stock on the shelves and cites a particular occasion were the store manager blamed him in an abusive manner for getting an order wrong.

3.2 Mr Latajka submits an example of another occasion on which he the Store Manager approached both complainants and in an aggressive manner asked them what was their problem was and told them to start doing the orders or there would be trouble, going on to shout at both of the complainants and giving them ten minutes to change their minds. Mr Latajka submits that the Store Manager did not speak to other employees in this tone. Mr Latajka submits that he was being bullied into a role at work for which he was not responsible.

3.3 Mr Latajka submits that the Store Manager threatened him that failure to place an order would result in him losing his job and that his family would be in trouble. Mr Latajka submits that the Human Resources department became involved in his request to be treated similarly to other employees.

3.4 Mr Latajka submits that in January 2014 following his transfer to another department, he initiated the second step in a grievance procedure resulting in a Regional Manager informing him that his grievance was now resolved. Mr Latajka submits that this grievance procedure was flawed.

4. Summary of submissions particular to MR Bosakowski

4.1 Mr Bosakowski submits that he would have to come in on his days off to place orders, unlike other employees.

4.2 Mr Bosakowski submits that on the 4th September 2013 an Assistant Store Manager assigned additional tasks to the Fruit and Vegetable Department. Mr Bosakowski submits that he tried to voice an opinion in relation to same and was issued with a disciplinary warning while reference was made to his family.

5 SUMMARY OF THE RESPONDNETS SUBMISSIONS.

5.1 The respondent denies the complainants claims of less favourable treatment on the ground of race contrary to the Acts and they submit that the complainant’s submissions do not support their complaints.

5.2 The respondent submits that Mr Bosakowski’s submission states that he felt overworked due to his nationality and he was cut short in voicing his opinion due to his nationality. The respondent submits that the complainant’s feelings do not ground a discrimination claim. The Respondent submits that both of the complainants’ work duties and treatment were unrelated to the ground of race. The respondent submits that the complainants never acted as managers.

5.3 The respondent submits that Mr Bosakowski was placing orders for fruit and vegetables for four years in the ordinary course of his job and was shown how to do so by their Line Manager. The respondent submits that it is standard practice for sales assistants to do so. The respondent submits that neither of the complainants were asked to set sales targets or held accountable for controlling waste. The respondent submits that the Line Manger and Store Manager would direct staff in stock control duties. The respondent submits that it is common practice for more experienced staff to show new staff how to perform their duties.

5.4 The respondent submits that Mr Bosakowski was accommodated in respect of his rosters on occasion. The respondent submits that other employees who worked in security, on the deli and bakery staff also started at 6.00am, 6.30am. or 7am including Polish an Irish employees. The respondent submits that there was no distinction made between staff in respect of their nationality.

5.5 The respondent submits that both complainants after years of placing orders decided in late 2013 that they would now longer do so. The respondent submits that this required management to deal with this issue in the manner of any workplace relations issue. Initially this required the Line Manager to verbally inform the complainants that refusal to carry out their jobs could result in action being taken which could result in sanctions up to and including dismissal. The respondent submits that the complainants have chosen to interpret this basic managerial function as harassment. The respondent has submitted minutes of relevant meetings and correspondence with the complainants where this issue and (other IR issues) are addressed and they submit that these records demonstrate that race never a motivating factor.

5.6 The respondent denies allegations from either of the complainants that they were required to work seven days straight without a statutory break unlike other staff who are not foreign workers. The respondent denies any allegations that either of the complainants were bullied into doing anything or that their Line Manger was abusive in any way.

5.7 On the 29th of January 2014 the respondent issued a written warning to Mr Bosokowski following a disciplinary process regarding his conduct.

5.8 The respondent submits that there is no connection whatsoever between the complainants race and ethnicity and the treatment which they allege to have received from the respondent on the ground of race.

6. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER

6.1 I have to decide if the complainants were discriminated against in relation to conditions of employment on the ground of race and if they were victimised by the respondent in terms of Section 74(2) of the Acts . In reaching my decisions I have taken into account all of the submissions, oral and written, made to me by the complainants in the course of my investigation as well as their evidence presented at the hearing. Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.

6.2 The complainants contend that they were given unfavourable working hours and made to carry out the duties of a manager without receiving appropriate compensation. 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”.

6.3 I have heard direct accounts from both complainants of all aspects of their complaints. I have also heard direct accounts form the relevant Line Manager Store Manager and HR person directly involved with all relevant incidents to the complaints. I find that the vast majority of what has been put forward by both complainants as less favourable treatment, to be normal behaviour by managers in a retail store who are confronted by employees who suddenly refuse to place orders for stock. I find no evidence of any link to the ground of race. Having examined the extensive notes of the disciplinary meetings and having heard direct evidence from the relevant line Manager and Store Manager, I prefer the version of events put forward by the respondent. I find the following to be the relevant facts in relation to the complaints under examination.

· Both complainants had been placing orders for stock for a number of years as a normal part of their work. They complainants decided that placing orders was not part of their job and demanded a pay rise. The respondent had a different view and an Industrial Relations (IR) process ensued. I accept the respondent’s assertion that in is normal practice for other experienced and trusted retail assistants to place orders for stock.

· There were no overt examples of racial abuse put forward by the complainants but rather examples of heated exchanges between managers and the complainants all directly related to the issue of placing orders. I find that race was never an issue for the managers concerned.

· All Industrial Relations issues and disciplinary procedures were dealt with in a fair, patient and reasonable manner by the respondent. The issue of race was not raised at the outset by the complainants and was only raised by one of them very late during a disciplinary process.

· The complainants have provided no evidence that their shift patterns were less favourable then other employees. There is no evidence that race was ever a motivating factor for the respondent.

· The complaints had been asked to orient new staff to their duties due to their extensive experience. I accept the respondents version of events and find that neither complainant was acting as a manager.

· I am satisfied that an Irish person (the comparator put forward by the complainants) would have been treated in the same manner by the respondent at all times.

· I find no evidence that the respondent treated either of the complainants less favourably due to their association with each other on the ground of race.

· Both complainants have failed to establish facts from which discrimination may be inferred.

7. VICTIMISATION.

As stated in by the Labour Court in EDA 1312, Frances Donnelly v National Gallery of Ireland:

“This section of the Acts is based on Article 11 of Directive 2000/78/EC on Equal Treatment in Employment and Education (The Framework Directive). Both the Acts and the Directive provide that victimisation occurs where a detriment is imposed on a worker ‘as a reaction to’ a complaint or other protected act. The use of the expression ‘as a reaction to’ connotes that the making of a complaint, or other protected act, must be an influencing factor in the decision to impose the impugned detriment although it need not be the only or indeed the principal reason for the decision.”

At the hearing of this complaint it was confirmed by the complainants that the protected act in their view was a letter to the respondent dated 10th January 2014 in which Mr Latajka states

“ It is also very interesting that within the Department only me and another Polish worker were doing ‘managers job’ and no Irish employee was asked to do it for the salary of sales assistant”

Having examined all of the evidence, I find that the respondent was at all times motivated by the requirement to deal with an IR issue and at no time motivated in their treatment of the complainants by the fact that a complainant had raised the issue of race or made a complaint related to the ground of race.

8. DECISION OF THE EQUALITY OFFICER.

8.1 I have investigated the above complaints and make the following decisions in relation to the complainants in accordance with section 79(6) of the Acts that:

· Mr Piotr Bosakowski was not discriminated against by the respondent in relation to conditions of employment, on the ground of race.

· Mr Piotr Bosakowski was not subjected to victimisation by the respondent in terms of Section 74(2) of the Acts.

· Mr Maciej Latajka was not discriminated against by the respondent in relation to conditions of employment, on the ground of race.

Mr Maciej Latajka was not subjected to victimisation by the respondent in terms of Section 74(2) of the Acts.

_____________________

Peter Healy

Adjudication Officer/Equality Officer

8th January 2016

Footnotes

[1] EDA 0917