Employment Equality Acts
DECISION NO: DEC-E2017-069
A Retail assistant
(Represented by Mandate trade union.)
V
A Retailer.
(Represented by IBEC.)
File Nos. Et-158748-ee-15
Date of Issue: 14th September 2017
1. DISPUTE
1.1. The case concerns a claim by A Retail Assistant (hereinafter referred to as ‘the complainant’) that he was subject of discrimination by A Retailer (hereinafter referred to as ‘the respondent’) on the grounds of race contrary to section 6 of the of the Employment Equality Acts (hereinafter referred to as ‘the Acts’) when he was not promoted by the respondent and that he was subject to harassment. The complainant also claims that he was the subject of victimisation by the respondent in terms of Section 74(2) of the Acts.
1.2. The complainant referred his claim to the Director of the Equality Tribunal under the Equal Status Acts (hereinafter referred to as “the Acts”) on the 13th August 2015. On the 28th April 2017, in accordance with his powers under section 75 of the Equal Status Acts, the Director General of the Workplace Relations Commission delegated the case to me, Peter Healy, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under section 25 of the Acts, on which date my investigation commenced. A hearing took place on the 20th June 2017 at the WRC offices in Ballsbridge, Dublin.
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 COMPLAINANT'S CASE
2.1 The complainant is from Bangladesh and submits that he has been discriminated against by the respondent on the grounds of his race in relation to a number of incidents and issues. It is his contention that a number of the respondent’s Employees have actively discriminated against him and he argues that their behaviour is contrary to the Employment Equality Acts, 1998 - 2004.
2.2 In November 2014, the complainant lodged a grievance with Management regarding the treatment he received from a Security Officer, when he parked his car on the footpath outside the respondents Store to rush in to purchase nappies for his child who had an accident in the car. When the complainant tried to enter the Store he was blocked by the Security Officer, who threatened to call the Police unless the complainant parked his car in the right place. The Security Officer proceeded to take photographs of the complainant’s car and showed same to the Store Manager. It is the complainant’s believe that the Security Officer reported him to the Police for parking on the footpath outside the Store, it is the complainant’s strong contention that he was treated less favourably by the Security Officer compared to his fellow colleagues who are Irish and as a result the complainant lodged a formal grievance with Management.
2.3 The complainant contacted his union (Mandate) in January 2015 regarding the delay by Management in dealing with his grievance. On 5th January 2015, Mandate wrote to Management. No reply was forthcoming and another letter was sent on 12th February 2015. Management eventually investigated the complainant’s grievance on 23rd February 2015. Management met with the complainant on 2nd April 2015 regarding the outcome of the investigation, but did not provide him with the Formal Investigation Report. On the 10th April, Mandate wrote to Management expressing concern at the unnecessary length of time for completion of the complainant’s grievance.
2.4 On the 13th April Management finally sent the Investigation outcome to the complainant. The complainant believes that throughout this process, Management treated him less favourably than they would have if he was Irish.
2.5 In May 2015, the complainant requested 3 days off to facilitate him with travelling to Bangladesh and was granted this time off by his Team Leader. When the complainant saw his roster, he was rostered to work on the days he requested off. He raised this with his Duty Manager who verbally abused him. The complainant informed another Team Leader, Supervisor and Colleague of the behaviour he was subjected to by the Duty Manager, and was told by these colleagues that the particular manager “treats everyone like this".
2.6 The complainant has an Honours Degree in Management and has requested on a number of occasions that he be trained up for a Management Position within the Company, but his Local Management have ignored his request and have promoted staff who have joined the Company after the complainant. During his Performance Appraisal Meetings. The complainant continued to request that he be put forward for Management Training. Management eventually gave the complainant the role of Stock Controller. When the complainant returned from his holidays he was called into the Office on 3 occasions in one week by Management regarding alleged mistakes he was making. At each meeting, the complainant informed Management that he had not received the proper training. He eventually received training on the systems and within 2 days of receiving the training he was again brought into the Office by the same Manager regarding mistakes and as a result his hours were cut the following week by 5 hours.
2.7 The complainant was removed from Stock Control on the basis that his performance was poor and was replaced by an Irish worker. It is the complainant’s contention that Management failed to train him in this role and therefore treated him less favourably than his Irish Colleagues.
2.8 The complainant submits that on 26th February 2015, that he was suspended from work due to the fact that his visa had expired. Normally, the complainant receives notification in writing from the respondent a number of weeks prior to his visa expiring/reminding him to renew it/ but on this occasion he received no such notification. When this happened he contacted the Immigration Authorities and fulfilled the necessary requirements with them that would allow him return to work. Despite doing all this, Management still refused to allow him return to work. Following Union intervention the complainant was allowed return to work. It is the complainant’s strong contention that his Store Manager discriminated against him and treated him less favourably than colleagues in other Stores who had the same issue with their visas.
2.9 In December 2014, The complainant requested his Manager to allow him to stand for a few hours as he was experiencing back pain from sitting for so long at the till point. The Manager refused and made comments to the complainant stating that "his attitude stinks" on a number of occasions. It is the complainant belief that again he was discriminated against due to his race/ as this form of treatment does not happen to the Irish Colleagues within the Store.
2.10 On 23rd December 2014, the complainant refused to work on till point 2 due to the fact that he had been racially abused on a number of occasions by customers. This complaint submits that he was verbally abused by a manger in relation to this incident.
2.11 In October 2012 the complainant asked Management to increase his hours to at least 30 hours per week which Management refused to do. The complainant stated to Management that it was not fair that they were employing new staff and not allowing him increases his hours. Following this the complainant contacted Mandate outlining that he had continually worked above his contractual band in excess of 16 weeks and was not offered the option of moving to a new higher banded contract. Mandate wrote to Management, following which the complainant received a new 30 - 35 hour contract. Following receipt of his new contract, the complainant submits that he was continually picked on by Management in an effort to dismiss him. Within three years the complainant has been suspended 3 times and received 3 sanctions. On 11th July 2013, the complainant was suspended and received a Final Written Warning for the unauthorised removal of sunglasses from the lost and found area which he brought home. It is the complainant position that he notified Security that he was taking the sunglasses and they allowed him to.
2.12 The complainant received a Written Warning for not following the respondent’s policy regarding the sale of alcohol. The complainant submits that he was forced by the Security Officer to sell alcohol to two customers who were drunk, who threatened the complainant and verbally abused him. The complainant reported the Security Officer to Management and no action was taken
2.13 On 20th April 2014, the complainant submits that he was subjected to aggressive racial abuse by a customer. The complainant contention that the respondent deliberately ignored the incident and failed to act to protect the complainant. The complainant believes these are examples of the less favourable treatment.
2.14 On the 18th July 2014, the complainant was again involved in another disagreement with the security guard regarding the complaints reaction to a customer who had left without paying for some items.
2.15 Prior to The complainant raising the issue of more hours for himself and receiving a new contract, he had worked for the respondent for 5 years and in that time received no suspensions or sanctions. The complainant strongly contends that because he forced the issue of getting a new contract, that the Store Manager has actively discriminated against him and has encouraged other members of staff to aid him in such discrimination and as a result The complainant has suffered mentally as well as the stress that he has to endure.
3. SUMMARY OF RESPONDENT’S CASE
3.1 It is the respondent’s position that all allegations by the complainant are totally rejected by the company on each of the following grounds:
(i) A number of complaints have been referred outside the time limits set out in the legislation
(ii) The complainant has failed to establish a prima facie case under the Employment Equality Acts 1998 to 2011 as required. He has failed to establish that there is any link between his race and the fact that he was not chosen to participate on management training.
(iii) The complainant has failed to prove that the respondent discriminated against or treated the complainant less favourably in relation to conditions of employment and all other matters alleged by the complainant on the grounds of his race.
(iv) The complainant has not identified a comparator with whom he was treated less favourably.
In light of the above, the complaints in this case are manifestly frivolous or misconceived within the meaning of section 77(1)(a) of the Employment Equality Acts 1998 to 2011. Accordingly the respondent respectfully asks that the claims be dismissed.
3.2 It is stated that the complainant lodged a grievance in relation to “the treatment he received from the Security Officer”. However, the complainant has provided no evidence that his race influenced any decision taken in relation to his conduct. The grievance that the claimant raised regarding his treatment by the respondent’s security officer was not connected to the claimant’s race. The fact that the claimant illegally parked on the footpath in front of the Respondent’s store and was instructed by the security officer to park his car in an authorized parking space was not a discriminatory action from the security officer, rather he was carrying out the role for which he was employed.
3.3 It is alleged that the claimant was treated less favourably than an Irish employee throughout the grievance process. This is incorrect. The complainant was afforded all the necessary steps as laid out in the company’s grievance procedure. This included the carrying out of an investigation into his grievance and an appeal of any decisions made. The claimant was also offered a number of options connected to his grievance such as mediation between the complainant and the employee who he had raised the grievance against. The complainant was also offered the option to transfer store at the time. The complainant refused to consider either of these alternatives.
3.4 A number of the complainant’s complaints have been referred outside the six months’ time limit set out in the Act. The respondent makes the following preliminary argument on the Tribunals jurisdiction to hear this complaint. Under Section 77(5) of the Employment Equality Acts the time limit for referring claims of discrimination to the Equality Tribunal is as follows:
‘‘(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.
(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly”
3.5 There is a six month time limit for referring a claim from the date of the occurrence of the discrimination or victimisation to which the case relates or six months from the date of the last occurrence of the act alleged to constitute discrimination. The complainant referred his claim to the Equality Tribunal in August 2015. The claim was received by the Tribunal on the 13 August 2015. Given the six month time limit, the discriminatory treatment must have occurred or last occurred no earlier than 13 February 2015.
3.6 The complainant also alleges that he had booked three days leave which were cancelled by the duty manager. There is no record of the complainant’s request for these days nor did the complainant formally raise the issue of not receiving these days. Without prejudice to the above, the complainant also expressly states in his submission that he was told by colleagues that the manager in question “treats everyone like this”. If this quote is correct then it is clear that the complainant was not treated in a manner differently to any other member of staff, regardless of race.
3.7 The complainant alleges that he has been “rejected” or not allowed to take part in the Management Training programme. He also contended that “Management failed to train him in this role”. The Complainant was given an opportunity to progress his career as a Stock Controller, however there were capability questions around his performance in this role. When the Complainant began the role of Stock Controller, there were issues around his performance. The Complainant was then offered training on the stock control systems. Due to continuing issues with the complainant’s poor performance, he was removed from the Stock Control role.
3.8 The complainant alleges that he did not receive a notification from the respondent in relation to his visa expiry. A letter which was sent to the complainant, and signed by him, reminding him to renew his visa and the consequences the visa was not renewed in time. On February 27, 2015 the complainant was suspended without pay due to the expiry of his visa. Once the respondent had confirmed that the claimant was eligible to continue working pending the renewal of his visa, the claimant was allowed to return to work.
3.9 The claimant alleges that he was verbally abused by management and also reprimanded for spending a certain length of time in the bathroom in December 2014. As the complainant’s complaint refers back to December 2014 and he lodged his grievance in August 2015, these claims are outside the six month time limit in which a claim must be referred as stipulated by Section 77(5) of the Employment Equality Acts. Without prejudice to the complaint being out of time, the complainant has not defined a specific comparator and never formally reported either of these incidents. The complainant had been provided with a copy of the company handbook which outlined how to lodge a grievance and was aware of the procedure as he had lodged a grievance a month prior to these alleged incidents.
3.10 Final written warning for theft
The complainant was issued with a final written warning in July 2013 due to theft of a customer’s sunglasses from lost and found. As the complainant’s complaint refers back to July 2013 and he lodged his grievance in August 2015, these claims are outside the six month time limit in which a claim must be referred as stipulated by Section 77(5) of the Employment Equality Acts. Without prejudice to the complainant being out of time, the warning was issued due to the complainant taking a pair of sunglasses belonging to a customer from lost and found without the permission from the security officer or any member of management. The security officer requested that the complainant return the glasses. However, the complainant proceeded to bring the glasses home and they were only returned to the store three days later when requested by management as the customer (owner of the glasses) came to the store looking for the sunglasses. This behaviour was perceived as serious misconduct and the complainant was issued with a final written warning. The complainant was also notified of his right to appeal but did not appeal this decision.
3.11 Failure of internal test purchase
The complainant was issued with a verbal warning in December 2013 for not complying with the company’s sale of alcohol policy. As the complainant’s complaint refers back to December 2013 and he lodged his grievance in August 2015, these claims are outside the six month time limit in which a claim must be referred as stipulated by Section 77(5) of the Employment Equality Acts.
Without prejudice to the complainant being out of time, this warning issued following an investigation and disciplinary and was due to the complainant failing an internal test purchase where the complainant did not ask for an identification proof for an age restricted sale. The complainant failed to observe the company’s sale of alcohol procedure despite being trained on same.
3.12 Verbally abusing a customer
The complainant attended a disciplinary meeting in May 2014 in connection to verbally abusing a customer, however, no sanction was taken after this meeting. As the complainant’s complaint refers back to May 2014 and he lodged his grievance in August 2015, these claims are outside the six month time limit in which a claim must be referred as stipulated by Section 77(5) of the Employment Equality Acts. Without prejudice to the complainant being out of time, the complainant attended a disciplinary meeting connected to verbally abusing a customer and using offensive language to them. The investigation found that although the complainant had verbally abused the customer, he had also been racially abused by the customer and as such, no sanction was imposed and the customer’s invitation to trade with the respondent was removed (i.e. he was barred from the store).
3.13 Suspension with pay for defamation of character
The complainant was suspended with pay during an investigation for defamation of character of a customer in July 2014. As the complainant’s complaint refers back to July 2014 and he lodged his grievance in August 2015, these claims are outside the six month time limit in which a claim must be referred as stipulated by Section 77(5) of the Employment Equality Acts.
Without prejudice to the complainant being out of time, the complainant was suspended with pay and required to attend an investigatory hearing on July 24. This investigation was in relation to an incident occurred on the 18 July 2014 when the claimant was working on the self-check out tills. In this incident, the claimant allegedly shouted at a customer who he believed had left the self-service checkout till without paying. Both the claimant and the customer were involved in an argument where the customer produced his receipt for the goods he had paid for. Witness statements claim the complainant had hit the store windows to get the customer’s attention and shouted loudly at the customer saying “you didn’t pay”.
After investigation, the respondent concluded the complainant had not received adequate training in using the self-service checkout tills and no sanction was imposed. The claimant was duly given corrective training in this area.
4. FINDINGS & CONCLUSION
4.1. I have to decide if the complainant was harassed on the ground of race and it he was subject to victimisation. In reaching my decisions I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2. Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. 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. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
4.3. Section 14 of the Employment equality act sets out the conditions under which harassment in relation to access to employment can take place. It provides as follows: -
(7) (a) In this section—
(i) references to harassment are to any form of unwanted
conduct related to any of the discriminatory grounds,
and
(b) Without prejudice to the generality of paragraph (a), such
unwanted conduct may consist of acts, requests, spoken
words, gestures or the production, display or circulation
of written words, pictures or other material.
4.4. The complainant attended the hearing of this complaint. The respondent sent all of the relevant witnesses to the hearing of this complaint also. The complainant’s written and oral testomy simply sets out a sequence of events in which he repeatedly presented his employer with a series of problems and his employer reacted rationally. For example the complainant admits that he was parked illegally or that he took the sun glasses. In relation to both of these incidents I am satisfied that an Irish national would have been treated in the same manner. The complainant now seeks to link every action of his employer to discrimination on the ground of race. The complainant has offered no evidence whatsoever of a link between the actions of his employer and the ground of race. Specifically the complainant has presented no evidence that his demands to be promoted were rejected because of his race. The complainant is clearly speculating years after the fact of a number of events. I cannot elevate such speculation to a factual basis upon which an inference of discrimination can be drawn.
4.5. In every respect I accept the account put forward by the respondent as set out above in section 3. of this decision. It is clear that the respondent has been extremely patient and has at all times acted professionally in relation to its treatment of the complainant and has investigated properly any allegations by the complainant. I find no evidence of less favourable treatment and no evidence of victimisation under the acts.
4.6. The accusations made by the complainant are extremely serious and I have examined all details put forward but I find that his accusations are completely without any foundation. It is clear that the complainant had a poor relationship with a particular security guard. That security guard attending the hearing of this complaint. I prefer the account put forward by the security guard. On the basis of the complainants oral and written testimony I am satisfied that he has not established a prima facia case. It follows that the vast majority of the incidents put forward in this complaint are outside the six month time limit in which a claim must be referred as stipulated by Section 77(5) of the Employment Equality Acts.
5. DECISION
5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find that
(i) The complainant was not subject to discrimination or harassment on the ground of race and his conditions of employment were not affected,
(ii) The complainant was not subject to victimisation in terms of section 74 (2) of the Employment Equality Acts.
____________________
Peter Healy
Adjudication officer
14th September 2017