Complainant

Respondent

Anonymised Parties

A Complainant

A Respondent

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00011376-001

16/05/2017

The complainant is alleging that he was discriminated against on grounds of his race by the respondent in relation to access to a service.

The complainant’s country of origin is Sierre Leone. He states that on 27 March 2017, he called to the respondent premises (which is in the business of providing car parts and accessories) and requested assistance from the person at the counter. The complainant states that the man behind the counter ignored him so the complainant repeated himself again and the assistant behind the counter replied that he was busy with a customer and that the complainant would have to wait.   The complainant states that he obeyed the assistant’s rude instruction and waited patiently but after waiting for so many minutes, no one was attending to him. The complainant submits that he then walked up to the counter where the sales assistant (Mr. K) was serving another customer.

The complainant submits that immediately the sales assistant finished with that customer, he walked away from the complainant and completely ignored his presence and his reminder of calling for his attention. The complainant asserts that the assistant stated he never saw him in the place before and that he should go back to wherever he was coming from. The complainant states that he said to Mr. K that he had been waiting on him for a long time and that Mr. K refused to answer him. The complainant states that Mr. K then said to him “get out of the building or you will be beaten up and dragged out on the floor”.   The complainant reiterated that it was his turn to be served and Mr. K replied he was not serving him and he should leave the premises.

The complainant said that the threat of being beaten up did affect him and he was shocked and afraid to remain in his presence and that the other staff were laughing at him and none of them came to his assistance. Contrary to the respondent’s allegations that he insulted staff and subjected them to name calling, the complainant completely refutes said allegations. The complainant is alleging that he was discriminated against by the respondent on grounds of his race.

The respondent denies the allegations of discrimination. It states that the complainant came into the shop on 27 March 2017 and queued at the retail counter. Mr. K, sales assistant was dealing with a trade account customer at the designated trade counter/collections work station. Mr. K was processing this customer’s returns, his credit notes, taking his orders and taking his payment which was a lengthy transaction. The respondent submits that the complainant walks away from the counter, walks around the shop and continues on his conversation on his mobile phone. In the meantime, other customers have walked into the shop and form a queue at the retail counter. The respondent states that the complainant finishes his call and then walks to the trade/customer collections area of the counter skipping the queue that had formed at the retail counter expecting to be served immediately. The respondent states that when Mr. K (sales assistant) informed the complainant that he had been on the phone and had walked away from the counter and that the complainant would have to wait until he was finished dealing with the next person at the retail counter before being served, the complainant became aggressive and shouted abusing language and as a result he was requested to leave the shop. The respondent refutes the allegations that its staff used abusive language towards the complainant or laughed at him or stated that the would “drag him outside and beat him up if he did not leave the building”. The respondent states that the complainant left the building and staff got back to serving customers in the queue including a coloured person who was treated with the same respect as every other customer who visits the store.

The respondent maintains that it can understand why the complainant may have been frustrated as on the particular day in question, the respondent was short staffed as a member of staff was out sick and it was not happy that all of the customers on that day were queueing for that length of time at the counter. The respondent states that it was not pleased that it did not meet a level of customer service that the complainant and all of its customers deserve and for this the respondent apologised.

The respondent submits that its company is a family business which has been in existence for 37 years and employs 35 employees. It states that in that time, it has never received such an accusation and has found the allegations very upsetting. The respondent states that its company’s handbook very clearly defines and describes what is deemed as harassment and all employees are instructed that these policies must be adhered to when interacting with customers, suppliers and employees alike. In conclusion, the respondent states that there is no evidence that the complainant received different treatment on the day in question because of his race. The respondent states that while it could be argued that the complainant received poor customer service and for that the company is truly sorry but the respondent categorically refutes that Mr. K used abusive language or uttered the words that the complainant “would be dragged outside and beaten if he did not leave the shop”. The respondent states that after the incident with the complainant, Mr. K served the next person in the queue without any issues who was of a different race and a person of colour. The respondent denies the allegations of discrimination on grounds of race and submits that there is no basis for said allegations.     

The matter referred for investigation is whether or not the complainant was discriminated against pursuant to section to section 3 (1) and 3 (2) of the Equal Status Act and in terms of section 5 of that Act. In reaching my decision, I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.

Section 5 – (1) provides; “A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public”.

Section 2 defines a service as follows; “service” means a service or facility of any nature which is available to the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes –

(a)   access to and the use of any place,

(b)   facilities for – (i) banking, insurance, grants, loans, credit or financing

                                 (ii) entertainment, recreation or refreshment

                       (iii) cultural activities, or

                     (iv) transport or travel

I am satisfied that the respondent is the provider of a service under the Act within the meaning of service as outlined above.

I have to consider whether the complainant has established discriminatory treatment on the race ground. A person making an allegation of discrimination under the Equal Status Acts must first establish a prima facie case of discriminatory treatment. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination. In making my decision, I have taken cognisance of all the oral and written submissions made by the parties.

Having adduced all of the evidence in the instant case, I find that while the complainant was initially in the queue to be served, he received a call on his mobile phone and as he did not want to discommode the other persons in the queue, he moved from the queue to the back of the store to have the conversation. However when he returned more individuals had joined the queue and this is where the issue arose. As the complainant moved to the counter, Mr. K (sales assistant) was serving the next customer in the queue, however the complainant was very annoyed as he was in the shop prior to this customer.

At this stage, it appears that the complainant became annoyed and demanded to know why he was not being served. Mr. K stated that he would be served after he had finished with the current customer. Having adduced the evidence on the matter, I am of the view that a misunderstanding arose, in that, the complainant made the call and went to the back of the store so as to have the conversation and subsequently when he had completed the call returned to the counter, the sales assistant was serving another customer. Having taken testimony from the relevant witnesses on the day of the hearing, I prefer the evidence presented by the respondent’s witnesses as it was more cogent and convincing. I accept that the company was short staffed on the day in question and customers were waiting longer than usual to get served and the respondent apologised for this delay. I am of the view that having left the queue to have the conversation on his mobile, a misunderstanding arose when he returned to the counter, another person was being served and a fracas arose as a result. Based on the testimony given at the hearing, I take on board the bona fides of the respondent where it admits that they were short staffed on the day in question and while it could be argued that the complainant received poor customer service, the complainant did not provide any evidence to link his treatment to his nationality. Consequently, having carefully evaluated all the evidence in the instant case, I find that the complainant has not shown a nexus to the treatment he received and his race and therefore has not demonstrated a prima facie case of discriminatory treatment under the Equal Status Acts.  

I find that the complainant has not established a prima facie case of discriminatory treatment on grounds of race. Therefore, the complainant’s case fails.