Complainant

Respondent

Anonymised Parties

Store Assistant

Retail Chain Store

Representatives

Self Represented

22/10/2019:

Kiwana Ennis, Barrister

Rita Higgins, Walter & Beatty

Niall Bass, Walter & Beatty

15/01/2020:

Kiwana Ennis, Barrister

Walter Beatty, Solicitor

Amy McNicholas, Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00022094-001

23/09/2018

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

CA-00022094-002

23/09/2018

CA-00022094-001     Complaint under Terms of Employment (Information) Act 1994

The Complainant’s claim under the Terms of Employment (Information) Act 1994 lacks merit.   The Complainant was located in Store N for three months from November 2016 to January 2017. As expressly provided in the Complainant’s contract of employment, the Respondent was entitled to employ him in any of its trading stores. Thereafter the Complainant was based in Store R. The Complainant received his travel expenses in response to his complaint for same which was only made after he had left the employment.

CA-00022094-002     Complaint under Employment Equality Act 1998

Based on the details of his claim made under the Employment Equality Acts the Complainant has not established a prima facie case of discrimination on the basis of any of the grounds cited.   He has not made out any case of harassment whatsoever on any of these grounds. Moreover the Complainant has not demonstrated how this is a separate claim to his claim for unfair dismissal and in this respect, it is noted that he stated at the conclusion of his details of complaint on his discrimination claim: “There is a longer version of my complaint under the claim for unfair dismissal”. It is clear, therefore, that there is an impermissible overlap between these two claims and that the Complainant has not made out a separate discrimination claim. It is submitted therefore that his discrimination claim cannot succeed.

Witness evidence was given by 5 Managers and Assistant Managers,                                                      Mr K, Mr C, Mr N, Mr O and Mr J.

Mr K stated that he was the Complainant’s Store Manager. He stated that the Complainant’s work was fine, not remarkable but fine. The witness stated that the relationship between the Complainant and himself and others was not remotely confrontational, and that the Complainant had parted on good terms shaking hands with the witness before he left.     It was however, the case that before he resigned, and within minutes of the Complainant receiving his 15 minute update from Mr K in April 2019, the Complainant asked if he would be promoted. Mr K said no as he did not have leadership qualities, that he did not maintain eye contact and there may have been a confidence issue, but that it was not the case that he would never be eligible for promotion. The Complainant then said he was resigning as he needed more money. The Complainant offered to work for a further three weeks but later had to leave earlier as the course he was embarking on was starting the day after the May bank holiday.

Mr C who was the Store Manager before Mr K and was now Area Manager gave evidence of the background to the employment of the Complainant. He stated that the Complainant was working in a petrol station when he approached Mr K looking for a job. Mr K took him on as a ‘referral’ and this was not unusual or irregular, there being 3 methods of recruitment, on-line, cvs and referrals by current staff.   The witness stated that the Complainant was treated the same as everyone else in the Store. There were no ongoing criticisms of his performance. One performance review submitted in evidence contained many positive comments such as that he had a very good attitude to his work and that he really wants to succeed and gives his all on every shift. The only negative issue identified was that he was very black and white and that he needed to develop a common sense approach in order not to cause problems, and that until these issues are fixed, he would not be considered for promotion.   The witness stated that there are many examples of non-national staff being promoted in the Stores, and he named some of them. Mr C denies asking the Complainant to work faster.   The witness recalled being told by the Complainant that he was racially abused by a customer.   However, this was reported some time after the customer left the store and Mr C told the Complainant that he was to report any such incidents immediately they happened so action could be taken immediately by management. The witness had clearly advised the Complainant that if this type of incident were ever to happen again, that Mr C would tell the person in question that their custom would not be welcome in the store again if they abused the Complainant. The Complainant said he was happy with this and he would tell the Manager if it ever happened again.

Mr N provided witness evidence. He was Assistant Store Manager and is a Polish National. He stated that there were many non nationals employed in the Stores and he himself had worked his way up from Store Assistant. He stated that he had no problems with the Complainant’s work, he was a good worker and there were no complaints about him. In relation to the incident where the Complainant deactivated all tags on a customer’s shopping, Mr N denies 100% that he told the Complainant to check all customers’ bags. This would not make sense from a customer service point of view. The Complainant was told to solve the problem of the alarm but this did not entail deactivating every tag. The bag could have been scanned and the problem solved. The witness agreed he had to ask the Complainant a few times to take this action, but strongly denies harassment.

Mr O gave evidence of his investigation into 18 complaints the Complainant lodged as a grievance after he left the employment. Evidence given by others interviewed during this investigation did not concur with the Complainant’s version of events. The Complainant’s complaints were not upheld, and some issues were noted at the end of the Investigation report, such as staff will be reminded that if any member of the public is rude or abusive to them they are to report it to the Duty Manager immediately.     He also ascertained that there was no substance to the Complainant’s complaint that he was discriminated against on grounds of race by not receiving travel expenses.    Evidence was also provided regarding the Complainant’s complaint of inappropriate innuendo being made by staff member D. It is submitted that Manager Mr W told the Complainant that he would speak to D about his comments and the Complainant said he did not want the issue to be pursued.

Mr J is a Senior Manager and gave evidence regarding handling the Complainant’s appeal against the Investigation findings of his grievance. The witness also gave evidence and information regarding the issues raised by the Complainant in his complaint and evidence to the hearing.   In relation to the allegation made by the Complainant that the Respondent is not an Equal Opportunities Employer, especially in regard to their recruitment methods, the witness stated that there are a number of methods. The ‘On line’ route is preferable, but referrals by current staff are not irregular. In relation to the expenses issue, it should be noted that the Complainant spent a short time in Store N, and when the issue of expenses was raised by him, after he left, the Respondent paid him. There may have been some error in relation to what was regarded as his ‘home store’ but that did not constitute discrimination. The witness estimated that there is an equal split of nationals and non nationals in many of the Respondent’s Stores.

CA-00022094-001   Complaint under Terms of Employment (Information) Act 1994

The Complainant stated that he was recruited to work in Store R and he signed a contract for this.   He stated he was then sent to work in Store N and the Respondent did not notify him in writing or pay him travel expenses. I note that the Complainant was located in Store N for three months and the Respondent did pay the expenses after the Complainant left the employment and lodged a grievance.   However, I am obliged to consider here the application of the Terms of Employment (Information) Act 1994. Section 5 of the Act provides that where a change is made to the statement furnished by the employer under Section 3, 4 or 6, the employer shall notify the employee in writing not later than one month after the change takes place.     In this instant case, the written employment contract of the Complainant clearly states:

“The Company is entitled to employ you in any of its trading stores in the Republic of Ireland”.

I find that as this is expressly provided for in his written terms of employment, there was no change in the terms which the Complainant could rely on to succeed in his claim that the Respondent acted in breach of the Act. I find his complaint to be not well founded.

CA-00022094-002   Complaint under Employment Equality Act 1998

The Complainant had a number of complaints under the Act, and there was a lack of evidence as to the exact dates when the alleged incidents occurred.

I note that the Complainant resigned his employment in April 2018. He subsequently submitted complaints to the Respondent in the form of some 18 grievances. The Respondent paid the Complainant expenses and refunded a small sum of money for alleged losses of some €2 coins.

In relation to the specific allegations of discrimination on grounds of race, and conditions of employment and harassment, in the first instance, the law as it relates to burden of proof must be examined.

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

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

Put simply, the onus in the first instance lies with the Complainant to establish the primary facts from which it may be inferred that discrimination has occurred. If these facts are established substantiated by evidence, the burden of proof then shifts to the Respondent to prove that discrimination did not occur.

The extent of evidential burden has been established by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 where the Court found that the Complainant must :

“establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities the primary facts on which they rely in seeking to raise a presumption of unlawful 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”.

In Elephant Haulage Ltd v Garbacevs The Labour Court stressed that facts based on credible evidence were necessary to prove a prima facie case of discrimination and that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” The Court observed that the language of Section 85A admitted of no exceptions to the evidential rule laid down.

The formulation of the test by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 was described by the Court in HSE North Eastern Area v Sheridan EDA0820 involving a three step process of analysis:

First, the Complainant must prove the primary facts upon which he or she relies in alleging discrimination.

Second, the Court or Tribunal (or in this case, Adjudicator) must evaluate these facts and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.

Third, if the Complainant fails at stage 1 or 2, he or she cannot succeed. However, if the Complainant succeeds at stages 1 and 2, the presumption of discrimination comes into play and the onus shifts to the Respondent to prove, on the balance of probabilities, that there is no discrimination.

In this instant case, the evidence shows:

The Complainant was clearly frustrated at not receiving expenses for the three months he travelled to Store N.   He did not claim the expenses formally until after he left the employment and was paid them. The Complainant has failed to submit evidence that he applied for and was refused expenses on grounds of race.

The Complainant submitted that he was subjected to bullying and harassment during his employment.

Section 14A of the Act provides:

Harassment and Sexual Harassment

Section 14A of the Act provides:

“14A.-(1) For the purposes of this Act, where –

(a) an employee (in this section referred to as “the victim”) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as “the workplace”) or otherwise in the course of his or her employment by a person who is –

(i) employed at that place or by the same employer,

(ii) the victim’s employer, or

(iii) a client, customer, or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,

or

(b) without prejudice to the generality of paragraph (a) –

(i) such harassment has occurred, and

(ii) either –

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.”

In this instant case, the Complainant complained of an incident where he claimed he was instructed to remove tags from a customer’s shopping. The evidence heard at the hearing clearly indicated that this was not an incident of harassment. The breakdown of communication which happened can be attributed to the Complainant having a ‘black and white’ inflexible attitude as stated in evidence by the managers to whom the Complainant reported.

In relation to the complaint that he had been subjected to inappropriate sexual innuendo, I note the cogent evidence that the Complainant was told by the Manager that the staff member would be spoken to but the Complainant requested that the issue be not followed up.   I note the Respondent has an “Employee Handbook” containing copious and clear policies and procedures concerning Equal Opportunities and Prevention of Discrimination, Bullying Policy and Grievance Procedures.   The Complainant chose not to avail of the procedures.

In relation to the Complainant having been subject to name calling in the form of racial abuse, The evidence shows that he failed to notify management until after the customer had left the shop. He was emphatically advised to tell management immediately if this ever happened again. The Respondent in this case could well rely on Section 14A (2) of the Acts which provide a defence for the employer in situations where they took steps to prevent harassment or sexual harassment.

In the light of the evidence and submissions, I find that the Complainant has not established a prima facie that he was discriminated against on grounds of race, conditions of employment or harassment. His complaints are not well founded.

Terms of Employment, Discrimination on grounds of race, not well founded, prima facie