DEC-E2018-008

EMPLOYMENT EQUALITY ACTS 

DECISION NO. DEC-E2018-008

PARTIES: 

An Employee

(Represented by Aaron McKenna Solicitors ) 

Vs 

A Retailer

(Represented by IBEC)

File No: et-158774-ee-15 &

ADJ-00006553 & CA-00008968 

Date of issue:  9th of March,  2018

1. Dispute 

This dispute involves a claim by the complainant that she was discriminated against by the respondent on the grounds of age, in terms of section 6 (2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2015. There is also a claim of Harassment on grounds of age and of Constructive Dismissal.

2. Background

2.1       The complainant referred complaints against the above respondent under the Employment Equality Acts 1998 to 2015 to the Equality Tribunal and thereafter to the Workplace Relations Commission on the 14th of August 2015 and on the 4th of January, 2017.

2.2       In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the claims to me, Orla Jones Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts.   Written submissions were received from both parties.   As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 8th of September, 2017 and the 10th of November, 2017.

2.3       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.

3. Summary of complainant’s case

3.1       It is submitted that

the complainant, was employed by the respondent from 27th of February 1989 to 12th of September, 2016 in the staff canteen,

since autumn of 2013 the complainant’s workload had increased dramatically and she was required to cater for an additional 20 staff members in the canteen without any extra staff assistance,

on 19th of September 2014 the complainant signed a voluntary ‘buy out’ of her terms and conditions but received a verbal agreement from the store manager Mr. D that she would not be moved from the canteen as she submits he said “sure what would we be able to do with you where would we put you”, it is submitted that this was a reference to the complainant’s age,

by late 2014 the hours of work allocated to staff in the canteen had dropped by 20 hours leaving the complainant with a staff shortage and associated work stress due to which she was forced to take sick leave,

in April 2015 the complainant approached her manager Mr. D about staff shortages and submits that he replied “Im not going to deal with you as you look like you’re about to croak it”, again it is submitted that this was a reference to the complainant’s age. The complainant submits that she later approached Mr. D about his comment and that Mr. D in response to this shouted at her and slammed his office door,

in June and July 2015 the canteen failed two Audits relating to its cleaning practices and processes,

as a result of the failed audits the canteen was closed for a deep clean,

Ms. B, HR Manager often compared the complainant to her own mother and in July 2015 asked the complainant how long she planned to continue working,

on 18th of July 2015 the complainant was informed by Ms. B that she was to be moved to checkouts. The complainant believes this was a punishment for the failed audits,

the complainant raised a grievance with the respondent on 29th of July 2015, this matter was investigated by the respondent and an outcome issued, the complainant appealed the outcome and a further investigation was carried out,

the complainant resigned on 15th of September 2016 and submits that this amounts to a constructive dismissal,

she was subjected to bullying, harassment and age discrimination in the workplace,

4. Summary of respondent’s case

4.1       It is submitted that

The complainant commenced employment on 27 Feb 1989 with Quinsworth. When Quinsworth was purchased by Tesco, the claimant transferred over to Tesco on the same terms and conditions as per the transfer regulations,

the complainant worked as a General sales Assistant but was primarily based in the canteen,

in 2012, the complainant was given a Tesco contract with the same terms and conditions as her previous contract with Quinsworth,

in September 2014 the complainant applied for a buy-out of her previous terms and

conditions in return for a buy-out payment,

this application was approved and the complainant moved to new terms and conditions of employment from September 2014,

on 18 July 2015 the complainant met with the Personnel Manager and discussed her move from the canteen to the checkouts, the claimant was amenable to this move, the complainant went on sick leave on 20th of July 2015 and has not returned to work,

the complainant submitted a grievance on the 29th of July, 2015,

the grievance was investigated and an outcome issued to the complainant in November, 2015,

the complainant appealed the outcome of the investigation an appeal meeting was conducted and the outcome was issued in February 2016,

the complainant was due to move to checkouts in August 2015, however, she went on sick leave and has remained so since 27 July 2015 until her resignation in September 2016.

5        Pre-liminary Issue – Clarification of Claims

5.1       The complainant referred two complaints the first on the 14th of August 2015 and another on the 4th of January, 2017. The first complaint was a complaint of harassment on the ground of age. Discriminatory dismissal was also ticked in this form. The details of the form referred to bullying harassment and age discrimination in the workplace.  

5.2       The second complaint was a complaint of Unfair Dismissal. The complainant prior to the hearing was asked to clarify whether she was pursuing the complaint of Discriminatory Dismissal or Unfair Dismissal.   The complainant stated that she was not pursuing a claim of Discriminatory dismissal and stated that this box had been ticked in error and that it should have been conditions of employment and not discriminatory dismissal which was ticked in the first complaint form. The complainant clarified this by letter dated 1st of September, 2017. The complainant went on to state that she was still employed by the respondent at the time of submitting the first complaint in August 2015 and stated that she only resigned her position in September 2016 so therefore could not be making a complaint in August 2015 in respect of a dismissal which had not yet taken place.   The complainant went on to state that she was pursuing the claim of Unfair Dismissal as detailed in her complaint form of 4th of January, 2017.

5.3       The respondent at the first hearing objected to this stating that it had not been given adequate notice that a claim of Unfair Dismissal was being pursued and had not received a submission in respect of the Unfair Dismissal claim until the morning of the first hearing.     The respondent sought an adjournment on the first day of hearing on this basis. The complainant in response to this referred to the fact that the first complaint form clearly stated that the respondent was trying to force her to resign which she eventually did in September, 2016. The complainant went on to state that her second complaint form dated 4th of January 2017 referred a complaint of Unfair Dismissal.   I did not grant the adjournment and proceeded with the hearing on that date on the basis that the respondent was on notice of the claim of Unfair Dismissal since 4th of January, 2017. I also granted a short adjournment to allow the respondent time to read the submissions presented by the complainant on the day of the hearing, I also indicated that the respondent would be granted an opportunity to respond in writing to the submissions made.     In any event a second day of hearing was scheduled for 10th of November, 2017 thus giving the respondent a further two months to prepare for the Unfair Dismissal aspect of the claim.

6. 2nd Preliminary issue-Personal Injury Claim

6.1       The respondent advised the hearing that a Personal Injury action had also been made by the complainant in respect of an occupational in jury. The complainant advised the hearing that these proceedings had not yet been drafted by Counsel.   I proceeded with the hearing on the basis that the as yet undrafted PI claim does not prevent the hearing of the complaints submitted to the WRC.

7. Time Limits

7.1       The respondent submits that a number of the complainant's complaints have been referred outside of the six months, time limit set out in the Act.  The respondent made a preliminary argument on the Tribunals jurisdiction to hear this complaint. Section 77(5) of the Employment Equality Act requires that a claim for redress in respect of discrimination be referred within six months from the date of the most recent occurrence. This limitation period may be extended to 12 months where reasonable cause is shown.  The complainant referred her first claim to the Equality Tribunal in August 2015. The claim was received by the Tribunal on the 14th of August 2015. Given the six month time limit, the discriminatory treatment must have occurred or last occurred no earlier than 15th of February 2015.

7.2       The complainant in this case has not requested an extension of time and has not advanced any reasonable cause which would justify an extension of time to 12 months. It is however possible for a complainant to bring into their complaint more historic incidents of discrimination where they can establish that they are part of a wider discriminatory regime or where there is sufficient connection between the incidents or acts. The complainant must, firstly however, establish that a discriminatory act occurred within the limitation period (see the decision of the Labour Court in Cork County VEC v. Hurley EDA 24/2011). In this regard I decided that my investigation should focus, in the first instance, on alleged acts of discriminatory treatment which occurred between the 15th of February 2015 and the 14th August 2015 in respect of the first complaint.

7.3   If I consider these alleged incidents to amount to unlawful treatment of the complainant contrary to the Acts, I will then consider the evidence adduced on the other (earlier) incidents complained of to determine if any of them were sufficiently connected to the incident within the six month period so as to make them part of a continuous act of discrimination. However, should I find the alleged incident(s) within the six months preceding the referral of the complaint not to be well founded, the earlier alleged incidents would be statute barred.

7.4       It is clear from the above, that in order to consider the earlier alleged incidents of discrimination, I must firstly decide whether the most recent alleged incident of discrimination is proven.   In addition, I must be satisfied that the complainant has established a link between the incidents and that they can be considered as separate manifestations of the same disposition to discriminate.

8. Findings and Conclusions of the Equality Officer

8.1       The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of age, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2015, in relation to her conditions of employment and whether she was harassed on the ground of age contrary to Section 14A of these acts. There is also a claim of Unfair Dismissal. In reaching my Decision 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 at the Hearing.  

 8.2       Section 85A of the Employment Equality 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 from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary.   The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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”.

8.3       Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..

Section 6(2) (f) of the Acts defines the discriminatory ground of age as follows – “as between any two persons ….. that they are of different ages, but subject to Section (3) … “

8.4       Thus the complainant must be the subject of less favourable treatment in comparison to another person on grounds of age. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:

Section 85A of the Act provided 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. While those facts will vary from case to 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 establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.[1]

8.5       Harassment and Discrimination

8.5.1    Harassment is defined in Section 14A(7) of the Acts as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

8.5.2    Section 14A (2) provides a defence for an employer if it can prove that it took reasonably practicable steps to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects [my emphasis].

8.5.3    The Complainant advised the hearing that she was regularly subjected to comments and remarks about her age. The complainant by way of background told the hearing that she had been employed in the respondent’s canteen but that she had accepted a buy out of her contract in September 2014 the terms of which meant she could be moved to any area of the store in return for a financial payout. The complainant told the hearing that she had been under a lot of pressure working in the staff canteen as there were a lot of staff to feed and not enough staff employed in the canteen. The complainant outlined how these matters had come to a head in March/April 2015 when she and Ms. A had been working in the canteen with assistance from Ms. Y who had been assigned to work in the canteen from 8 to 9 am each morning in order to clean the canteen.   The complainant told the hearing that on the morning of the 20th of March 2015, Ms. Y was taken from the canteen and was instead redeployed to another area of the shop. The complainant told the hearing that she and Ms. A were struggling to get the staff breakfasts made and to clean the canteen without the help of Ms. Y.   The complainant advised the hearing that she had asked Ms. N the wages clerk why they had no extra staff in the canteen that day and that Ms. N informed her that she should ask Mr. D, as he was now the line manager. The complainant told the hearing that she then ran down three flights of stairs to where Mr. D was having a meeting with Mr. G on the shop floor and she approached Mr. D and asked for more staff for the canteen as she stated that “the night pack are still around” and “we are not coping”.   The complainant told the hearing that Mr. D replied by saying “I’m not dealing with you, you look like you’re about to croak it”, the complainant submits that this was a reference to her age and stated that she was out of breath having run down three flights of stairs to ask Mr. D for more staff for the canteen.

8.5.4    The complainant went on to state that Mr. D then walked off and Mr. G had then asked her what the problem was. She stated that she told Mr. G that she had no staff in the canteen and he replied “we’ll get someone for you”, the complainant stated that Mr. G had then called a staff member from the shop floor and sent them to assist the complainant in the canteen. The complainant submits that Mr. D’s comment amounts to harassment on the grounds of age.

8.5.5    The complainant stated that she had finished work that day and had gone home thinking about what Mr. D had said and could not sleep that night. She stated that she rang in sick the following day and returned to work on the Sunday. The complainant stated that the matter was never referred to again by Mr. D or Mr. G who was the only witness.   The complainant told the hearing that Mr. D carried on as normal the following week and said ‘hello’ as normal. The complainant told the hearing that there was a bake sale hosted by the respondent the following week and that she had stayed until 12 that night baking for it she stated that Mr. D had thanked her for this and had put a notice on the notice board thanking her.

8.5.6    The complainant advised the hearing that the canteen had in the past provided hot meals for staff members on a daily basis apart from on Sundays when they provided free sandwiches instead of a hot meal.   The complainant told the hearing that management had made a decision in 2015 that a Sunday Roast was to be provided for staff members in the canteen on Sundays and stated that following this decision she had been given extra hours on Sundays to provide the roast dinner. The complainant told the hearing that prior to the introduction of the Sunday Roast she had used Sunday as a day for cleaning the canteen.   The complainant advised the hearing that she had on Sunday the 19th of April, 2015 decided not to do a roast dinner for staff but decided instead to spend her time deep cleaning the canteen. The complainant told the hearing that she had made this decision herself and had not consulted with anyone else on it. The complainant told the hearing that her manager Mr. D had approached her in the canteen that day when he heard she was not providing a Sunday Roast on that Sunday but that she had instead decided to clean the canteen. The complainant told the hearing that Mr. D was very angry and had asked her why she was not doing a dinner for the staff, when that’s what she was brought in to do, she stated that he had said he was going to have a long long talk with her as she was not managing her time right.   The complainant told the hearing that Mr. D had said this with gritted teeth and with clenched fists. The complainant advised the hearing that Mr. D then left the canteen and went to his office.

8.5.7    The complainant advised the hearing that she had then followed Mr. D to his office where he was engaged in conversation with Ms. L, the complainant stated that she had stood at the office door and told Mr. D that she did not appreciate the way he had spoken to her and stated that she was going home as her blood pressure was now very high she also made reference to the incident where she alleges Mr. D had said she looked like she “was about to croak it”. The complainant told the hearing that Mr. D had then stated “I’ll show you how I deal with liars” and that he had then slammed the door in her face.   The complainant told the hearing that she had then shouted through the door at Mr. D that she was going home now as her blood pressure was now very high and that she then shouted at Ms. L who was still in the office with Mr. D “you’re a witness”. 

8.5.8    Witness for the respondent Mr. D gave evidence at the hearing. Mr. D denied making any comment in respect of the complainant looking like she was “about to croak it” during the incident of 20th of March, 2015, but said that the complainant herself had made this comment a few weeks later on Sunday the 19th of April, 2015 when she said to Mr. D “you already think I’m going to croak it”.

8.5.9    Mr. D advised the hearing that the complainant had come up to him on the shop floor on the 20th of March, 2015 in an agitated state shouting at him about not having enough staff in the canteen while he was engaged in conversation with Mr. G another manager.   Mr. D stated that this had happened in front of staff and customers and that he had told the complainant he was not going to deal with her while she was in that state. Mr. D stated that he told the complainant to go back upstairs and calm down. He stated that he also told her that he was not going to be shouted at.   Mr. D advised the hearing that he then turned to Mr. G and had asked him to go with the complainant to find out what had caused such an outburst on the shop floor in front of staff and customers.   The complainant herself at the hearing stated that she was out of breath when she approached Mr. D and that her heart was beating really fast having run down three flights of stairs to find Mr. D and ask him for more staff. Mr. G was not present at the hearing to provide me with direct evidence on this though his witness statement was provided to the hearing which corroborated Mr. D’s account that the complainant had approached him on the shop floor in an agitated state.   Mr. G’s statement does not make any reference to a “croak it” comment. Mr. G in his statement also stated that Mr. D had said he was not going to deal with the complainant and Mr. G’s statement indicates that he himself told the complainant to calm down as she was agitated, before he agreed to call another staff member to help her in the canteen. Mr. D told the hearing that the only reference to ‘croak it’ which was made came from the complainant herself on the 18th of April, 2015 when she was shouting at Mr. D from his office door and she shouted “you already think I’m about to croak it”.

8.5.10  Mr. D in outlining the events of the 18th of April, 2015 corroborated the complainant’s version of events up to a point. Mr. D stated that the complainant was brought into work on Sunday to provide food for the staff on duty and that on Sundays this consisted of a Sunday Roast. Mr. D told the hearing that he himself had not been rostered to work on the Sunday in question but that he had come in to do some paperwork in his office. He stated that he was in his office when Ms. L, duty manager, had come to him and told him that there was no Sunday dinner being provided in the canteen today as the complainant had decided instead to clean the canteen. Mr. D stated that he then went to the canteen to find out why the complainant was not providing a Sunday dinner when she was brought in specifically to provide same. Mr. D told the hearing that the complainant had told him that she would not be cooking that day and that she would instead be cleaning the canteen. Mr. D stated that he told the complainant that cleaning the canteen was part of her daily tasks and should not prevent her from cooking dinner. Mr. D stated that he told the complainant that he was not happy about this. Mr. D stated that he then returned to his office and called Ms. L to ask her to notify staff that there would be no hot dinner that day and to make alternative arrangements.  

8.5.11  Mr. D told the hearing that the complainant had then followed him to his office and had stood at the door shouting at him that her blood pressure was very high and that she would have to go home.   He stated that she then added “you never listen to me, you hate me” and “you already think I’m going to croak it”. Mr. D told the hearing that he responded by saying “(name of complainant) you are lying now and I’m going to close the door as I will not be shouted at by you after coming in here on my day off”.   Witness for the respondent Ms. L who was in Mr. D’s office during the incident corroborates Mr. D’s version of events. Both Mr. D and Ms. L gave evidence at the hearing that it was the complainant who had stated “you already think I’m about to croak it”.

8.5.12  It is clear from the evidence adduced that the complainant and Mr. D did not agree on certain issues and that Mr. D was annoyed about the complainant approaching him on the shop floor on the 20th of March in an agitated state while he was speaking to Mr. G, to complain about the staffing level in the canteen. It is also clear that Mr. D was not happy with the complainant’s decision not to provide a hot lunch for staff in the canteen on the 18th of April, 2015 as she instead decided to spend her time cleaning the canteen. The complainant in asserting her claim is submitting that the respondent’s treatment of her amounts to evidence of harassment and age discrimination.   It appears to me from the totality of the evidence adduced in relation to this matter that the complainant and Mr. D did not have a very good relationship as it is unusual to find a manager and staff member who shout at each other, but it is also unusual that a staff member would refuse to do a crucial aspect of their job such as refusing to provide a hot meal for staff and would instead decide to clean the canteen in and of her own accord. It does appear that the complainant in doing this was seeking to make a point and was also refusing to do what was expected of her by her manager.   It is clear from the evidence adduced that Mr. D was annoyed at the complainant firstly for interrupting him on the shop floor having run down three flights of stairs and secondly for refusing to provide a hot meal for staff on the date in question and choosing instead to clean the canteen despite an instruction from management to provide a Sunday dinner.   I am however satisfied from the totality of the evidence adduced on this matter that the behaviour of Mr. D in the circumstances does not amount to harassment or discrimination of the complainant on grounds of age.

8.5.13  The complainant told the hearing that Ms. B the Personnel Manager had also on occasions made reference to the complainant’s age and had referred to the complainant as being like the “mammy of the store” and had compared the complainant to her own mother.   The complainant has submitted that Ms. B had on a number of occasions since June 2015 compared the complainant to her own mother and it is submitted that this amounts to harassment and discrimination on grounds of age. Ms. B in her evidence at the hearing stated that she did compare the complainant to her mother as the complainant had told her her age and Ms. B had commented that she was the same age as Ms. B’s mother.   Ms. B went on to state that she and the complainant would often sit and chat together about old times and old ways and that the complainant had many of the same sayings as Ms. B had heard her own mother use. Ms. B stated that she had only started in the store on the 10th of June 2015 and stated that on her second day in the store she had sat and chatted with the complainant who had told her her age and that Ms. B had told the complainant that she was the same age as Ms. B’s mother. Ms. B stated that the she had a very good relationship with the complainant and that the complainant had even baked for her outside of work. Ms. B in her evidence at the hearing was clear and consistent and appeared to be genuinely upset that harmless friendly conversations were now being used to ground a claim of age discrimination and harassment against the respondent.   I am satisfied from the totality of the evidence adduced on this matter that the behaviour of Ms. B in the circumstances does not amount to harassment of or discrimination against the complainant on grounds of age. 

8.6       Failed Audits and Move to tills

8.6.1    The complainant advised the hearing that the canteen had failed an Audit in June 2015 and again in July 2015. The complainant told the hearing that the canteen had failed this audit due to out of date vegetables being present in the canteen. The complainant submits that she was not at work on the day the canteen failed the first audit and that she was only back to work from holidays with three days when the canteen failed the second audit. The complainant submits that she was moved to checkouts as a sanction for the canteen failing the audits.

8.6.2    The complainant told the hearing that the canteen had failed the first audit due to an out of date tomato and that it had failed the second audit three weeks later due to out of date onions and a pepper.   The complainant told the hearing that she and her colleague Ms. A had been called to a meeting after the audit failure and that she was accompanied by her union rep Ms. R at this meeting. The complainant told the hearing that she had been asked at this meeting “why two veg were out of date?” The complainant told the hearing that she had replied that she wouldn’t worry about vegetables and best before dates as “they are fine once they are not soft or sprouting” she stated that she had at this meeting advised Mr. D that the tomato in question which was out of date was still perfectly safe to eat even if it was out of date.

8.6.3    The complainant told the hearing that she had gone in to work on 3rd of July, 2016 to find the canteen closed and a notice stating that the canteen was closed for a “deep clean”. The complainant advised the hearing that Ms. B and Mr. D had called a meeting that day with the complainant and Ms. A who also worked in the canteen. The complainant stated that she had called her union rep Ms. R and Mr. S to come in and attend the meeting. The complainant stated that Ms. F was also at the meeting. The complainant told the hearing that she had at the meeting asked Mr. D a number of questions about the auditors and the qualifications held by the auditors.   The complainant stated that Mr. D was firing questions at her and that Ms. R had intervened and told him to calm down and act like a manager. The complainant told the hearing that she had told the meeting that veg could still be used when it was out of date. The complainant told the hearing that she had been very upset that the canteen had been closed for deep cleaning and that she had seen it as a reflection on her that the canteen was dirty, the complainant stated that it was like an attack on her reputation and stated that it was the first time in 27 years that the canteen had to be closed.

8.6.4    The complainant told the hearing that following the failure of the audits she and Ms. A were called to a disciplinary meeting on the 10th of July 2015 by Ms. F and were advised by Ms. F that they needed retraining. The complainant told the hearing that this retraining was given by Ms. F on the 17th of July, 2016 and stated that it was an enjoyable day. The respondent agreed that the complainant had completed this training but stated that she refused to sign a training card confirming this training as she claimed it would be held against her in the future.

8.6.5    The complainant told the hearing that following this training she was called into the office by Ms. B who advised her that she was being moved from the canteen to work on the tills and that Ms. B had stated that this was due to the fact that the canteen had failed two audits. The complainant went on to state that her colleague Ms. A had also moved to tills from the canteen but that the complainant had said to her I’ll give you three months and if you like it then I’ll go. The complainant advised the hearing that this meeting took place following the training by Ms. F.

8.6.6    The respondent disputes that this meeting took place on the same day as the training by Ms. F, the respondent advised the hearing that the meeting to discuss issues with the canteen and a possible move for the complainant took place on 18th of July, 2015 and provided a note of this meeting which took place between Ms. B and the complainant. The respondent advised the hearing that the complainant was not sanctioned following the failure of the audits. Witness for the respondent Ms. B advised the hearing that it was the complainant herself who requested a move to tills. Ms. B told the hearing that she had a meeting with the complainant on the 18th of July 2015 regarding the complainant’s concerns and issues in the canteen and a possible move to checkouts.   Ms. B advised the hearing that the complainant had at this meeting asked to go to checkouts and had said that the canteen was too much pressure, Ms. B submitted a note of this meeting in support of her assertion as evidence to the hearing. The note of the meeting gives an account of a conversation between the complainant and Ms. B and indicates that the complainant requested a move to checkouts stating that her colleague Ms. A was happy to move there and that she herself would also be happy to go there.   The note of meeting also indicates that the complainant stated that she hated (the respondent) and that she would retire soon adding that she had also told the staff not to eat in the staff canteen. The note of meeting indicates that Ms. B challenged the complainant on this asking why she would tell staff not to eat in the canteen to which she replied, Mr. S “told me to as he hates (the respondent) too”. The note also indicates that the complainant said she wanted to be moved to tills and the sooner the better, it also indicates that Ms. B asked the complainant if she would be going to tills under protest to which she replied “No I want to go to tills”. The complainant requested that she be provided with a chair at the tills which Ms. B promised she would provide. The note of meeting indicates that the complainant made a number of references during the meeting to her intention to retire soon. The complainant also refused to sign anything at the meeting stating that she didn’t trust anyone since signing the buyout and stated that she didn’t trust the union or the respondent. The note of meeting also indicates that the complainant made reference to joining Ms. A at the tills and states that Ms. A will be glad to see her join her. The respondent told the hearing that the move to checkouts never took place as the complainant went on sick leave two days after the meeting and did not return to work

8.6.7    The complainant told the hearing that she had gone on sick leave on the 20th of July, 2015, she stated that she had suffered a number of personal tragedies and circumstances around the same time and stated that she had also suffered a panic attack while out with her daughter. The complainant told the hearing that she had gone to her doctor and that her blood pressure was high, she stated that she was told that she was suffering from stress and was not fit to work. The complainant told the hearing that she went on sick leave from 20th of July, 2015 and did not return to work after that date.

8.6.8    The complainant told the hearing that Ms. B had phoned her at home on the Monday after this and again at a later date and that Mr. D had also phoned her. The complainant stated that she had told Mr. D that he should not be ringing her as she was out of work on stress leave.

8.6.9    The complainant advised the hearing that she had no more contact with the respondent after going out sick on the 20th of July 2015 until they contacted her in respect of a grievance meeting. She stated that the grievance had been raised on her behalf by her solicitor by letter dated 29th of July, 2015. The complainant stated that following this the respondent invited her to a grievance meeting to discuss her grievance and to investigate it. The respondent told the hearing that it had responded to the letter from the complainant’s solicitor by invoking the grievance procedure.   The respondent stated that Ms. K, Regional Personnel Manager was appointed to investigate the grievance raised by the complainant. The investigating officer Ms. K gave evidence at the hearing of this matter and advised the hearing that she had met with the complainant to discuss her grievance. She stated that these meetings took place offsite at the complainant’s request and that the complainant was represented by Ms. R union rep at this meeting. The respondent advised the hearing that Ms. K had interviewed the complainant as well as all those named by the complainant against whom allegations were made as well as witnesses named by the complainant.   Ms. K met with the complainant on the 4th of November and on the 25th of November, 2015 to discuss her grievance.

8.6.10  The respondent in the conduct of its investigation into the grievance raised by the complainant interviewed the parties named by the complainant as well as witnesses to incidents outlined by the complainant. Witness statements were provided to the complainant in support of the witness evidence. These were also provided to the WRC at the hearing of this matter. Ms. K told the hearing that she had presented the complainant with the witness statements and provided her with an opportunity to give her side of the story and to respond to the witness statements.      Regarding the incident on the shop floor where Ms. F stated that Mr. D said he was not going to deal with her as she looked like “she was about to croak it”.   Mr. D’s statement and his evidence at the hearing was that he did tell Ms. F that he was not going to deal with her as she had come up to him on the shop floor shouting while he was engaged in conversation with Mr. G. Mr. D denies that he made any reference to her looking like she was about to croak it. Mr. G in his statement also stated that Mr. D had said he was not going to deal with the complainant and Mr. G’s statement indicates that he himself told the complainant to calm down as she was agitated, before he agreed to call another staff member to help her in the canteen.

8.6.11  The grievance raised by the complainant’s solicitors on 29th of July, 2015 refers to bullying harassment and age discrimination. The letter refers to the alleged references made to the complainant’s age by Mr. G in the “croak it” allegation and also refers to Mr. D calling her a liar and closing the door in her face. This letter also raises allegations of age discrimination against Ms. B whom the complainant alleges made references to her age by telling the complainant that she reminds her of her mother.

8.6.12  The letter of 29th of July also submits that the complainant was subjected to a disciplinary sanction on foot of the failed audits though it does not state what this sanction was and also refers to the fact that the complainant was asked to sign a training card but submits that she had not received any training since 2013. The letter also submits that moving the complainant from the canteen to the checkouts amounts to a breach of her contract notwithstanding the fact that she accepted a financial buyout of her contract in September 2014 which cites her title as Customer Assistant.

8.6.13  The letter of 29th of July submits that the treatment of the complainant was a deliberate action to force the complainant to resign from her employment. It was agreed at the hearing that the respondent following the raising of these issues by the complainant’s solicitor proceeded to treat the matter as a grievance under its grievance procedure and carried out an investigation of the allegations. The investigator appointed was the respondent Regional Personnel manager Ms. K who gave evidence at the hearing in respect of the investigation. Ms. K provided witness statements from all those named in the complainant’s allegations and states that she reached her findings following meetings with all of those involved. Ms. K advised the hearing that she met with the complainant on the 4th of November 2015 and again on the 25th of November when she provided her with the witness statements of the individuals named in her grievance. Ms. K told the hearing that the complainant did not comment on the individual witness statements except to say “its all lies”.

8.6.14  As regards the complainant’s submission that she was sanctioned due to the canteen failing the audit, the respondents evidence is that the complainant was subjected to a disciplinary hearing for this matter but that no sanction was applied. It is agreed by both parties that the complainant and other staff were provided with additional allergen training and the respondents evidence is that the complainant took part in the training but refused to sign the training card afterwards as she said it would be held against her. The complainant did not deny this.

8.6.15  The complainant has also submitted that the closure of the canteen for deep cleaning was a sanction imposed on her for the canteen failing the audit. As regards the closure of the canteen for deep cleaning it is clear that the complainant saw this as an attack on her reputation as she states that this was the first time the canteen had been closed in all her time in the respondent organisation. In addition, the respondents evidence at the hearing was that the closure of the canteen for deep cleaning was a genuine business need following the failure of two audits. Witnesses for the respondent Ms. B and Ms. F stated that they had carried out the deep clean on the date in question while the complainant refused to help but instead sat at a table in the canteen flicking through a newspaper. The complainant did not deny this at the hearing.   From the totality of the evidence adduced in relation to this matter it is not unreasonable that the respondent would close the canteen for a deep clean after it failed two audits and I am not satisfied that this amounts to a sanction on the complainant. The complainant by refusing to take part in the deep clean does not show herself to be very co-operative. I am satisfied from the evidence adduced on this matter that the behaviour of the respondent in the circumstances i.e. the closure of the canteen for deep cleaning following the failed audits, does not amount to harassment or discrimination on grounds of age.

8.6.16  Regarding being moved to checkouts. The complainant submits that she was being moved to work on the checkouts against her will and that it was a breach of her contract. It is accepted that the complainant signed a buyout of her contract in September 2014 which cited her as a Customer Service Assistant and which the respondent submits allowed them to move the complainant.   The note of meeting between Ms. B and the complainant on the 18th of July 2015 indicates that the complainant accepted that she could be moved and then stated that she wanted to go to the checkouts. This note also states that the complainant said that Ms. A had gone to checkouts and that she would gladly follow her and refers to a statement made by the complainant that she was going to retire soon and that there was too much pressure in the canteen. This note of meeting was corroborated by Ms. B in her evidence to the hearing.   The complainant in her evidence stated that this was lies but she also stated in her own evidence that she had told Ms. A that if she liked working on the tills she, the complainant would follow her in three months.   The complainant in her evidence on this matter was not consistent. She initially stated that she was moved against her will but later stated that she had told Ms. A that she would move if Ms. A liked the tills.   I must decide whether or not I am satisfied that these matters amount to harassment or discrimination of the complainant on the grounds of age. Based on the totality of the evidence adduced in relation to this matter I am satisfied that the behaviour of the respondent in the circumstances and the proposed move of the complainant from the canteen to the checkouts does not amount to harassment or discrimination of the complainant on grounds of age.

9. Constructive Dismissal

9.1       The complainant has submitted that the respondent’s treatment of her was so unreasonable that it forced her to resign her employment and that this amounts to a constructive dismissal.  The complainant submitted her resignation on the 12th of September, 2016 having been out on sick leave due to work related stress since 20th of July 2015.

9.2       Sec 1(b) of the Unfair Dismissals Act states, “the termination by the employee of his/her contract of employment with his/her employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

9.3       In a constructive dismissal claim the burden of proof shifts to the person making the claim. They also have to demonstrate that they were justified in their decision and it was reasonable for them to resign. The claimant needs to demonstrate that they have no option but to resign. In addition, there must have to be something wrong with the employer’s conduct.

9.4       In UD 1146/2011 the Employment Appeals Tribunal (EAT) held “in such cases a high level of proof is needed to justify the Complainant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary”.

9.5       It is well established that the Complainant is required to exhaust the company’s internal grievance procedures in an effort to resolve her grievance prior to resigning and initiating a claim for unfair dismissal. In UD1350/2014 M Reid v Oracle EMEA Ltd the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”

In Allen v Independent Newspapers (Ireland) Ltd (2002 ELR 84) it stated,

1. i) the onus is on the claimant to prove his case,
2. ii) the test for the claimant is whether it was reasonable for him to terminate his contract”.   In addition The EAT in Donnegan Vs Co Limerick VEC UD828/2011 stated,”In particular, the claimant must show that the respondent acted in such a way that no ordinary person, could or would continue in the workplace”.

In McCormack v Dunnes Stores : EAT UD 1421/2008

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable”.

10. DECISION OF THE ADJUDICATOR

10.1     I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find that-

• (i) the complainant was not discriminated against by the respondent on grounds of her age in terms of section 6(2) of the Employment Equality Acts, 1998 -2015 and contrary to section 8 of those Acts, and

• (ii) the complainant was not harassed on grounds of age contrary to section 14A of the Employment Equality Acts, 1998 -2015

10.2     In respect of the Unfair Dismissal aspect of the claim I have completed my investigation of this complaint and in accordance with section Section 8 of the Unfair Dismissals Act, 1977 I issue the following decision. I find that

• (i) In all the circumstances, I cannot find that the Respondent’s conduct was so unreasonable as to make it impossible for the complainant to continue in the employment or could justify the Complainant’s terminating her employment by way of constructive dismissal nor was it such as to show that the respondent no longer intended to be bound by one or more of the essential terms of her contract of employment. Accordingly, I must hold that the complainant’s employment did not come to an end by dismissal and that the complainant was not subjected to a constructive dismissal.

___________________

Orla Jones

Adjudicator/Equality Officer

9th of March, 2018

[1] Labour Court Determination No. EDA0917