Complainant

Respondent

Parties

Mark J. Savage

Musgrave Operating Partners Ireland Limited t/a Supervalu

Representatives

Self

Mason Hayes & Curran

Act

Complaint Reference No.

Date of Receipt

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

CA-00026635-001

27/02/2019

The Complainant has also submitted a complaint of discrimination on the religious ground to the WRC against the same Respondent in relation to an incident which occurred on 10th April 2018. That complaint is the subject of a separate adjudication officer decision – ADJ-00017395.

The Complainant submits that when he attempted to purchase electricity credit in the Respondent’s premises on 4th September 2018 the employee at the counter initially ignored him and continued talking to other individuals who she was not serving but appeared to know.

The Complainant submits that when the employee of the Respondent eventually took his electricity top-up card she appeared to be unable to process the transaction. The Complainant submits that the employee then loudly and sarcastically said to the Complainant – “it’s not working, is it your brother’s card?”.

The Complainant submits that he then asked the employee if she was implying that he was using someone else’s card. According to the Complainant, the employee responded “no, I said that the machine wasn’t working”.

The Complainant submits that he is adamant that he clearly heard the employee say “it’s not working, is it your brother’s card?”.

The Complainant submits that he then left the store and purchased electricity credit elsewhere.  

The Complainant submits that it suddenly dawned on him that he was being victimised contrary to the Equal Status Acts for having filed a previous complainant against the Respondent with the WRC alleging discrimination on the grounds of religion.

The Complainant submits that he then returned to the Respondent’s premises and approached the Store Manager to complain that he had been victimised by an employee of the Respondent.

The Respondent submits that on 4th September 2018, some 5 months after the incident which gave rise to the initial complaint to the WRC of discrimination on the grounds of religion, the Complainant attended the Respondent’s premises (which he continues to do on a regular basis) to top-up his pre-pay electricity card.  

The Respondent submits that an employee of the Respondent scanned the card into the card machine but the machine did not recognise the card (this was not an unusual occurrence as the machine can be troublesome). The employee then tried to swipe the care manually but to no avail. The employee asked the Complainant if he was having trouble with his card and explained that the machine was not working and that there was nothing more that she could do.   The employee did not question whether the Complainant was using his brother’s card.

The Respondent submits that the Complainant complained to the Assistant Manager and asked whether the employee in question was gong to be fired from her employment. The Assistant Manager spoke with the employee in question and reviewed the CCTV footage and was satisfied with the employee’s explanation of the interaction.

The Respondent submits that the employee fully intended to process the Complainant’s transaction but the card machine did not permit her to do so.

The Respondent submits that the Complainant was not known to the employee and she was not aware that the Complainant had applied for a determination or redress under the Equal Status Acts or had given notice of his intention to bring such a complaint.

The Respondent submits that the Complainant was not treated any less favourably than another person in similar circumstances.

The matter for me to decide is if the Complainant was discriminated against pursuant to section 3(1)(a) and 3(2)(e) and (j) of the Equal Status Act, 2000 and in terms of section 5(1) of that Act.

Section 3 of the Act provides inter alia as follows:

“(1) For the purposes of this Act discrimination shall be taken to occur—(a) 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) or, if appropriate, subsection (3B),] (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

…………….

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

…………..

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (the “religion ground”),

…………..

( j) that one—

(i) has in good faith applied for any determination or redress provided for in Part II or III,

(ii) has attended as a witness before the Authority, the adjudication officer or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),

and the other has not (the “victimisation ground”).”

Section 5(1) of the Act provides as follows:

“5.—(1) 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) of the Equal Status Act defines “service” as

“a service or facility of any nature which is available to the public generally or a section of the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes [various examples]”

I am satisfied that the respondent was providing a service to the public and/or sections of the public through its operation of a retail premises and, therefore, I am satisfied that the Complainant’s claim comes within the above definition

Section 38A of the Acts sets out the burden of proof which applies to a claim of discrimination under the Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case of discrimination has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

The Labour Court in Mitchell v Southern Health Board (Cork University Hospital) [2001] 12 ELR 201 determined that a Complainant must prove, on the balance of probabilities, the primary facts on which they rely on 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 as being of sufficient significance to raise a presumption of discrimination, does the onus shift to the Respondent to prove that there was no infringement of the principle of equal treatment following Wallace v South Eastern Education and Library Board [1980] NI 38.

The Labour Court has also determined in Melbury Developments v Valpeters [2010] ELR 64 that a 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 …… the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

I note that the Complainant submitted an ES1 to the Respondent on 9th June 2018 in relation to an alleged incident of discrimination on the religious ground which occurred on 10th April 2018. On 9th October 2018 the Complainant submitted a complaint to the WRC under the Equal Status Acts in relation to the same incident.

At the hearing, both parties agreed that the Complainant is a long-stranding customer of the Respondent who continued to shop at the Respondent’s premises on a regular basis between the first alleged incident of discrimination which occurred on 10th April 2018 and the alleged incident of victimisation which occurred on 4th September 2018 and is the subject of the herein complaint.

At the hearing, the Complainant accepted that he had no issue between 10th April 2018 and 4th September 2018 with the employee who is alleged to have victimised him on 4th September 2018.

Applying the approach of the Labour Court in both Mitchell v Southern Health Board and Melbury Developments v Valpeters to the herein case, I find that the Complainant has not adduced any cogent or credible evidence to support his contention that an employee of the Respondent who was unable to top-up his electricity card on 4th September 2018 victimised him within the meaning of section 3(2)(j) of the Equal Status Acts.

Having given careful consideration to the submissions of both parties on this issue, I find that the evidential burden resting on the Complainant has not been discharged and a prima facie case of victimisation has not been established.

No prima facia case of victimisation