EQUAL STATUS ACTS 2000 AND 2012
DECISION No. DEC-S2016-
PARTIES
Charles Mutanga
(Represented by Gabriel Reynolds BL, instructed by Cyril & Co. Solicitors)
-V-
Lidl Ireland Gmbh
(Represented by McDowell Purcell)
File reference: et-151844-es-14
Date of issue: 3rd June 2016
1. Background to Claim
1.1 This claim concerns a claim by Charles Mutanga (hereinafter the “Complainant”). The Complainant is from Nigeria but lives in Shannon. The Complainant claims that he was discriminated against by being asked to leave the premises of Lidl Ireland GmbH (hereinafter the “Respondent”) on the grounds of Race contrary to the Equal Status Acts 2000 and 2012 (hereinafter the “Acts”).
1.2 The Complainant referred his claim to the Director of the Equality Tribunal on 26th August 2014 under the Acts. In accordance with his powers under section 75 of the Acts, the Director General of the Workplace Relations commission delegated the case to me, Caroline McEnery, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Submissions were received from both sides. In accordance with Section 79 (1) of the Acts and as part of my investigation both parties attended a hearing on the 10th of May 2016. The Complainant and the Respondent attended the hearing along with their representatives.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 84 (3) of the Workplace Relations Act 2015.
2. Summary of the Complainant’s case
2.1 The Complainant is from Nigeria but lives in Shannon. The Complainant stated that he was a regular shopper in Lidl in Shannon. He claims that he was accused of swapping a tray of 10 eggs into cheaper packaging in order to pay a reduced cost. This occurred at the till. He was angry of being accused of this.
He stated that the Assistant Store manager told him that he had seen him change the eggs on CCTV. He was embarrassed. He stated that the Deputy Store manager was called and that they went in to check the CCTV. He said that there was nothing on the CCTV. The Complainant then called the Gardai.
The Complainant then claims that the Deputy Store manager then changed his story and said he had a witness who saw him swapping the eggs but he was unable to call the witness.
The Complainant claims in his submission that the manager discriminated against him because of his race and muttered under his breath that people like him are always thieves.
3. Summary of the Respondent’s case
3.1 For the Respondent, the Assistant manager stated that he saw the Complainant in the eggs area. He saw that a box was open and that the eggs were swapped. It was his belief that he had swapped the more expensive organic eggs and put them in the standard egg container.
On witnessing this he spoke with the Deputy Store manager and stated what had happened also stating that he felt this had happened twice before also. Both then approached the stand and discovered standard eggs within an organic egg container.
The Assistant manager stated that there is only one Lidl store in Shannon and said that he remembers the complainants face from the shop as he shops in the store weekly. The Assistant manager said he told the guards that he had seen the complainant swap the eggs on a number of occasions.
The Deputy Store manager stated that he was working and that shortly before closing the shop that the Assistant manager and him both went to check the box in the eggs section.
There was only one till open at the time and the Deputy Store manager went to the till. He firstly scanned the eggs for the complainant. He completed the transaction and the complainant paid. He then informed the complainant that they were not the correct eggs.
The Deputy Store manager spoke to the complainant, he informed him that he was aware that he had swapped the eggs and told him that his invite to the store has been withdrawn. He then asked the complainant to leave.
The complainant called the guards at this stage. The complainant informed the guards that he didn’t take the eggs. The complainant informed the guards that he wanted new eggs as the Deputy Store manager had touched the eggs. The Deputy Store manager again confirmed that the eggs that were in the box were incorrect.
The Deputy Store manager said that he can come back to the store after a period of time possibly.
The Deputy Store manager stated that there is no Lidl store policy and that it is up to store manager with regard to how to deal with these incidences.
4. Conclusions of the Adjudication Officer/Equality Officer
The Equal Status Acts provides that between any two persons, the discriminatory grounds exists if they are of different race, colour, nationality or ethnic or national origins.
Section 38(A) of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
The Complainant stated that the manager wrongly accused him of swapping normal eggs for organic eggs so that he would be able to purchase them at a cheaper rate.
Although it had been mentioned in written submissions that the Deputy Store manager had muttered that ‘people like him were always thieves’. The complainant failed to mention this at the hearing.
A witness for the company stated that he had witnessed the complainant changing the eggs. He also stated that he had witnessed the complainant doing this on two previous occasions. He recognised the complainant as he regularly shopped in the store.
When the Deputy Store manager checked the eggs at the till he was aware that they were the organic eggs as they had a different stamp on them. He therefore spoke to the complainant about this at the time.
The Deputy Store manager denies making any comments that reference the complainant’s race.
It appears that the comments made regarded the organic eggs within the regular container and were raised with the complainant in order to protect the Respondent properties while also giving the complainant the opportunity to respond to that allegation.
5. Decision
On the balance of evidence given by the parties, I as Adjudicator accept the respondent had reason to talk to the complainant and I can find no inference that this was related to his race/nationality.
In accordance with Section 25(4) of these Acts, I conclude this investigation and issue the following decision that the complainant has not established a prima facie case on the ground of race therefore because of this this case has not reached the necessary burden of proof to confirm his claim is well founded on the grounds of her Race contrary to the Equal Status Acts 2000 and 2012.
____________________
Caroline McEnery
Adjudication Officer/Equality Officer
3rd June 2016