Complainant

Respondent

Anonymised Parties

Technician

Mobile Phone Repair Company

Representatives

Self

Nicola Dowling , Williams Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 77, Employment Equality Act, 1998

CA-00022973-001

01/11/2018

The complainant commenced employment with the respondent on 25 May 2018. The complainant was employed as a technician to repair mobile phones. He was contracted to work a 30-hour week with an initial wage of €11.00 per hour.   He was subsequently also given the title of manager and received a pay increase. The complaint is in relation to what the complainant alleges was discriminatory treatment on the grounds of his race which occurred during the course of his employment and which involved staff and management. The complainant resigned from his position on 27 October 2018.

The complainant applied for a position in a store in a town near to where he lived but was asked to temporarily work in another location a further 20 miles away. He was then left in that location.

There were issues regarding the complainant’s authority with the sales staff in the store and there was one member of the sales staff in particular whose behaviour caused the complainant so much concern that he requested company management to deal with it.

This staff member had an argument with the complainant, walked out of the store and absented herself from work.

About a week later the Sales Manager visited the store and informed him that company management had persuaded the staff member to return. At the same time a person he had never seen before began counting stock.   Shortly afterwards the complainant left the store and told the Sales Manager that he was resigning.

The Sales Manager asked him to consider a job in another store about 180 miles from his home and to think about what impact leaving his job would have on his application for citizenship.

The position offered to the complainant was in the store where he commenced employment.

The complainant’s pay was increased on two occasions to €13.25 per hour.

The complainant told company management that the shop staff were stealing from the store and even though there was no evidence of this CCTV cameras were installed.

Management on two occasions advanced personal loans to the complainant.

A complaint was received from a member of staff in relation to the complainant. The staff member was given some time off to allow company management talk with the complainant.

The Sales Manager met with the complainant and informed him that the staff member was returning to work. Shortly after leaving the store the Sales Manager received a phone call from the complainant to say he was resigning.

The complainant was not subjected to any discriminatory treatment either directly or indirectly by the respondent.

There is a dispute between the parties regarding the location for which the complainant was employed. The complainant states that he applied for a position in a store in a town near where he lived and that he then understood that he was also to be manager of another store located about 20 miles distance. He says that he was asked to take up duty in the second store on a temporary basis initially on €11.00 per hour. The date of commencement is agreed as 25 May 2018.

The respondent produced a copy of the offer of employment letter which is dated 12 May 2018.   This letter states that the employment is that of Mobile Sales and Technician and is based in the store in the second town and that the rate of pay is €11.00 per hour. I have also examined the contract of employment which was issued to the complainant. This states that the complainant was employed as a Technician and Sales Assistant and that his normal place of work was in the store located in the second town. The contract is signed by both parties. I note that the date of signing by the complainant is 2 August 2018 and that the pay rate specified is €12.00 per hour.

The next issue that arose would appear to be in relation to the complainant’s status within the store.   The complainant stated that his understanding was that he was manager of the store responsible for supervising the staff in the store. He was informed by a staff member that he was not the manager but that staff member C was. The complainant said that he queried this with company management and was told that C deals with customers. This ambivalence regarding his role continued and, at the complainant’s request, company management issued protocols regarding the processing of technical repairs in June 2018. The complainant stated in evidence that there were issues with friends and family of staff members often calling into the store. Towards the end of July, according to the respondent, the complainant advised company management of his belief that the staff were stealing from the store and CCTV cameras were installed even though the respondent had no evidence in regard to this theft. On 6 October 2018 company management advised staff in the store that the complainant was the manager of the store.

On 12 October the complainant sent a text message to the Sales Manager in which he stated that he was giving formal notice to the respondent and would not be working after 18 November 2019. The complainant in evidence said that the Sales Manager phoned him in response to this text, shouted at him and requested him to reconsider.  On 13 October 2019, according to the respondent’s submission, a complaint was received from staff member C to the effect that she could no longer work with the complainant. The complainant stated that the staff member was continuously rude to him and that on the occasion in question she had shouted at him and walked out of the store. It appears that the respondent told the staff member to take some time off whilst the matter was discussed with the complainant.

There is some confusion as to the dates that events occurred but it is accepted that the Sales Manager subsequently called to the store where the complainant was working. He was accompanied by another person who, according to the Sales Manager, was from Head Office and was there to do a stocktake. The Sales Manager informed the complainant that staff member C would be returning and the complainant told the Manager that he could not work with C.   According to the complainant the Manager told him that the staff member could not be sacked as she had more than a year’s service. The complainant asked about working between the two stores as he originally believed he was employed to do but the Manager would not agree to this.   Mention was made of transferring to another store some 180 miles distant and the complainant was asked to think about matters. The Sales Manager then left the store.

The person who had accompanied the Manager, whom the complainant thought was related to the owner, asked the complainant a question about stock and, according to the complainant, this led to an exchange between them. The complainant left the store and drove to his home.   He phoned the Manager to give him notice. The Manager asked him to think things over and in particular how leaving his job would affect his citizenship application. The complainant was also again asked to consider transferring to the store mentioned. After several days consideration the complainant advised the respondent that he would not be taking the position in the other store.

The complainant lodged a complaint with the WRC on 1 November 2018. In that complaint form he alleged that he was discriminated against by the respondent by reason of his race and filed his complaint under the Equal Status Act, 2000. I raised this issue at the commencement of the hearing and the complainant stated that he had meant to make the complaint under the Employment Equality Act, 1998. The respondent said that they understood from the complaint form that an error had been made and that they had no objection to the complaint being heard under the Employment Equality Act that day rather than going to the expense and inconvenience of returning on another date for the hearing of an amended claim. On that basis it was agreed by both parties that the complaint would be dealt with as a complaint under Section 77 of the Employment Equality Act, 1998.

Section 6 of The Employment Equality Act, 1998, defines discrimination in the following terms:

(1)    For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where –

(a)    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) (in this Act referred to as the “discriminatory grounds”) which –

(i)                  Exists,

(ii)                Existed but no longer exists,

(iii)               May exist in the future, or

(iv)               Is imputed to the person concerned…..

(2)    As between any 2 persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are –

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”.

The Act distributes the burden of proof between the parties in the following manner:

Section 85A of the Act states:

(1)    Where in any proceedings facts are established by or on behalf of the complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

The Labour Court in A Vocational Training Provider v A Worker stated:

“The test for applying this provision is well-settled in a line of decisions starting with the determination in Mitchell v Southern Health Board (2001) E.L.R.201.   The test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment. If the complainant does not discharge the initial probative burden which he bears, his case cannot succeed.

In looking at the complaint before me I must determine if the complainant in this case has established facts of sufficient significance to raise a presumption of discrimination that shifts the onus to the respondent to prove that there was no infringement of the principle of equal treatment.

The complainant has established that he is Pakistani and was employed by the respondent. The complainant would appear to have had a problem as regards his status within the employment. In particular he raised the issue of whether his position was of managerial grade. The letter of offer and his contract of employment do not specify that he is a manager and there appeared to be an ambivalent attitude on the part of the respondent as to whether the complainant was to exercise authority over the other staff in the store. It is only in early October that an announcement is made to staff that the complainant is a manager.

The other main issue would appear to be how the complainant was treated after the row with the sales staff member C. That employee walked out of the store and made a complaint about the complainant saying she could not work with him. The complainant also made a counter complaint regarding the staff member.   It transpired that the respondent allowed that staff member time-out after the row and then informed the complainant that the staff member would be returning to the store. When the complainant said that he could not work with the staff member the response of the Sales Manager was that the complainant could transfer to a distant branch of the respondent. It would appear to me that the respondent handled this matter very badly and that the complainant had a right to feel aggrieved.   He chose, however, to walk out of the store rather than process his grievance.

Other issues raised by the complainant included the location of his employment and his wage rate.   I note that the copy of the final pay slip produced at the hearing indicates an hourly rate of €13.25. In looking at all these matters I do not believe that the complainant has established facts that would suggest that these issues arose from any matter connected with his race or nationality.   The Labour Court in Intesa Sanpaola Life Ltd. v Nowak (EDA 1840) stated:

“It is settled law that, in circumstances such as this, the mere coincidence of nationality and a perceived detriment is not sufficient to ground a complaint of discrimination. Something more must be established that would suggest the possibility that there is a relationship between the two facts.”

The only matter mentioned in the context of nationality was the remark made by the Sales Manager when asking the complainant to reflect on his giving notice to think about how that would affect the complainant’s citizenship application.   The complainant stated that he felt this was a threat in order to get him to transfer to the distant store.   I am of the view that while it was an argument used to endeavour to get the complainant to withdraw his resignation having walked just out of the store it was not a threat to affect his application.

For their part the respondent pointed out that they had facilitated the complainant by twice extending personal loans to him during his employment. I have also noted the copies of many text messages that passed between the parties and cannot detect any comments that infringed upon the principal of equal treatment.

I therefore find that the complainant has failed to produce evidence that he was discriminated against on the grounds of race by the respondent.

Complaint No. CA-00022973-001: As detailed above this complaint was amended with the consent of both parties to be a complaint under the Employment Equality Acts, 1998 – 2015. For the reasons given above I find this complaint not to be well founded and it fails accordingly.