Complainant

Respondent

Parties

Roger Sargent

Harvey Norman trading ( Ire) Limited

Representatives

Self

Alastair Purdy Alastair Purdy & Co. Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00033301-001

19/12/2019

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

CA-00033301-002

19/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 81(e) of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

CA-00033301-003

19/12/2019

The complainant went to an interview on 29th November 2019. The interview was conducted by a Mr YM. The interview was arranged by an employment agency the complainant had registered with. When Mr YM heard that the complainant was English, he said to him that he wanted to employ him directly and cut the agency out of the equation. He told him to tell the agency that the interview didn't work out. Then Mr YM asked the complainant, “where in the UK are you from? The complainant was a bit taken aback by this question but told him that he was from Birmingham. Mr YM then said “ah a brummie” The complainant found this highly offensive. He feels that being called a brummie demonstrates something negative in relation to his character and his intelligence. It is the equivalent of calling someone a “Paddy” if they came from Dublin. It is highly discriminatory.

The complainant started the job on Monday. He was employed as a delivery driver. On the Tuesday morning sometime between 8:30am and 10 am, the complainant was in the depot. He was given the keys to the delivery van. An employee of the respondent, who had blonde hair, told him how the van should be loaded and unloaded. Whilst doing so he said to the complainant "look at me when I am talking to you". Again, the complainant found this highly offensive because he does have a turn in his left eye. He didn't report it at the time because he wanted to keep his job.

On the Thursday morning whilst the complainant was at the depot, another employee with black hair started shouting at him "Sunday bloody Sunday, you f***ing English". The employee must have known he was English because of his accent. He didn't report that at the time either because there was no point, it was his word against the other employee’s word.

On Wednesday the 13th December at 2:30 p.m. when the complainant arrived back to the depot he went looking for Mr YM. He wasn't in the depot so he went up to his office. A man called KM was there. The complainant tried to explain to him what was going on. Whilst he was doing that he noticed that he was looking around the room trying to get eye contact with others that were in the room. He then said "what do you want me to do? Do you want me to leave my job and go and load your van for you." The complainant couldn't understand why he had responded the way he had. He said "this job isn't for me" and then left the office. The complainant felt that the words spoken by KM where discriminatory on the grounds of race but not disability.

Later on that day, he spoke to Mr YM and explained the situation to him in relation to things that colleagues had said to him over the last few days. Mr YM had clearly spoken to KM because the complainant felt that he had already begun the process of removing him from the company because Mr YM said he would not roster the complainant for the next day. The complainant assumed this was because he had said in the office earlier “this job is not for me”.

On the 11th of December there was some issue in relation to a delivery. The complainant stated that they couldn't find the property, that they called the number that was given to them but when that didn't work they called the department and they were told to move on to the next job. Then he received a call to say that the customer was actually at home and was waiting for them and they should go back to make the delivery. They explained that when they put the address pin into the system it brought them back to the same house they were originally at and that was the wrong address. The complainant stated that he called the customer and she stated that everything was ok but then she clearly called the respondent customer service and told them a completely different story which impacted negatively on the complainant. The complainant stated that he was being blackmailed by the respondent and manipulated into going back to the customer.

The complainant was extremely unhappy with the situation, so he contacted the HR department. He quickly realised that Mr YM had spoken to the HR department already and that the HR department were completely on the company's side. The complainant stated that he had a recording of the call he had with HR and would use it if you needed to. He didn't have the recording with him at the hearing today. The complainant told them that he wouldn't sit back and take what was said to him on the phone. He then told the HR department that he was going to push this as far as he could. The complainant was asked why he did not contact Mr YM to clear up the misunderstanding in relation to the delivery. He said “I learned quickly about the character of Mr YM and the type of person he is and there is no point in talking to his type”. The complainant accept that he was asked by HR to invoke the grievance procedure, but he felt that that was just another way of telling him to get lost. He said "I am not a child, she isn't my mother. I am under no obligation to obey her. I am not her lap dog".

The matter before you today concerns a variety of claims by the complainant against his former employer, Harvey Norman Trading (ire) Limited [Hereafter to be referred to as the “Respondent”] under Section 77 of the Employment Equality Acts 1998- 2018 and Section 81 (e) of the Pensions Act 1990-2019.

It is the Complainant’s contention that the Respondent discriminated against him on the grounds of race and/ or disability and in addition asserts that he did not receive equal pay therein. In conjunction with these claims, the Complainant has also submitted a complaint pursuant to the Pensions Acts, and contends that he was not afforded the opportunity to apply to the Respondent’s purported occupational pension scheme.

PRELIMINARY POINTS

A. Please note that the Complainant, as per his WRC Complaint Form, does not have a   recognisable disability for the purposes of Section 2(1) of the Employment Equality Acts. Moreover, at no stage during his tenure did the Complainant hold himself out to be disabled and/or unfit to work. Therefore, on the basis of such, we respectively ask that the Complainant be placed on full proof in respect same as per Section 85A of the Employment Equality Acts;

B. Please note that the Complainant has failed to adduce proof of any allegation in respect of race as pleaded in his WRC Complaint Form. As such, the Respondent fully denies any such remark made towards the Complainant during the course of his employment. Therefore, on the basis of such, we respectively ask that the Complainant be placed on full proof in respect same as per Section 85A of the Employment Equality Acts;

C. Please note the Complainant has failed to specify what discriminatory grounds he is relying upon and to whom his comparator is in respect of his equal pay claim. Nonetheless the Respondent fully defends this complaint and submits that all staff members engaging in“like work” for the purposes of Section 7 (1) of the Employment Equality Acts are paid equally. Any disparity in respect of such, is due to other mitigating circumstances outside the sphere of the nine grounds of discrimination. Therefore, on the basis of such, we respectively ask that the Complainant be placed on full proof in respect same as per Section 85A of the Employment Equality Acts;

D. Please note that the Complainant’s complaint pursuant to Section 81 (e) of the Pensions Act 1990- 2019 is moot as the Respondent does not have an occupational pension scheme. Therefore, we respectively request that the Adjudicator dismiss the Complainant complaint

     herein.

BACKGROUND

On the 2nd December 2019, the Complainant commenced employment with the Respondent as Delivery Driver on an 11 months fixed term contract. In accordance with said contract there are a number of relevant clauses, which are as follows:-

i.                     Probationary Period: the Complainant was subject to a 6 month probationary period and his employment may be terminated within this period upon 1 weeks’ notice being provided and same may be paid in lieu;

ii.                   Rate of Pay: the Complainant was paid €12.50 an hour in respect of 40 hours of work a week, totalling €26,000 gross annually.

On the 12th December 2019, Ms. SK [Human Resources] wrote to the Complainant and provided him with a number of documents for his attention, not limited to his Contract of Employment the Employee Handbook and the Respondent’s Code of Practice.

On the 11th December 2019, Ms. NS [Human Resources] received a phone call from Mr. YM [Logistics Manager] regarding the Complainants poor behaviour since commencing his employment. Mr. YM explained that the Complainant on a number of occasions prior to this phone call demonstrated a very aggressive attitude towards other members of staff and customers and on one occasion even “barged” into Mr.YM’s office. Equally on even date, Mr. YM noted that the Complainant failed to

carry out a number of orders contrary to his manager’s instruction. Following this, Mr. YM, along with Ms. EB [Logistics Admin Clerk], engaged with the Complainant to discuss the issue. During this brief meeting the Complainant raised a number of points regarding the fact that he is “the only English person there” and that the co-workers were “laughing and sniggering at him”. KM then explained that due to the nature of the works, i.e. retail, it is a customer facing role and requires the Complainant to be mindful of same. Despite such, the Complainant noted that this role was not for him and informed KM of his intention to resign from the post.

On the 12th December 2019, the Complainant contacted the HR Department and got through to Ms. NM [HR Administrator]. The Complainant during the phone call was irate and agitated and notified Ms. NM that he was recording the phone call. Ms.NM explained to the Complainant that as a result of the recording, the conversation would have to cease. After such, Ms. NS returned the Complainant’s phone call, whereby he once again informed Ms. NS that he was recording the conversation. Despite Ms. NS’s protest, the Complainant proceeded to explain the previous day’s events with Mr. M. The majority of the Complainant’s version was similar to Mr.YM’s account; however he noted that he was still employed by the Respondent, ignoring the fact that he had submitted his resignation the day previous. At which point, Ms. NS explained to the Complainant that his “leaver form” had been received and that his employment had been terminated, confirming his resignation there and then. The Complainant denied such and then diverted the conversation to the Respondent’s supposed negative reputation and his views on the workplace.

At this stage, the Complainant also expanded the conversation by alleging an employee by the name of “Mick”, “laughed” and “sniggered” at him for being the “only English guy” and accused the Respondent of racism. Ms. NS explained to the Complainant that these are serious allegations and reminded him that the Respondent have a diverse workforce. Ms. NS also then advised the Complainant of the available grievance procedure however the Complainant ignored this and noted that he would be sending this recording to the head office in Australia and proceeded to end the phone call.

On the 12th December 2019, the Complainant sent a message to Mr. YM informing him that he had just sent an email to the head office in Australia together with a recording from the phone call with Ms. NS. The Message went on to state that the Complainant would be contacting the HSA and that the recording was “pretty bad”, and that he intended on contacting the Board of Directors in respect of same. The message concluded with the following statement “what comes around, goes around eh *laughing emoji*”.

CA 00033301-001 – (DISABILITY/ RACE)

The complainant alleges that on Tuesday the 12th December when an employee of the Respondent was explaining how to use the van he said to him “ look at me when I am talking to you” . The complainant has a “ left lazy eye” and took great exception to this. He feels that those comments were discriminatory based on his disability.

He further alleges that he was discriminated against by the respondent when he was called a ‘brummie’ and when an employee shouted “Sunday bloody Sunday, you fucking English” at him.

The burden of proof to establish a prima facie case of discrimination lies with the complainant.

“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 him or her, it is for the respondent to prove the contrary.”

The Court acknowledged in ICTS (UK) Ltd v Magdi Ahmed EDA3/2004 that there will be situations where the Mitchell test (the duty to demonstrate ‘primary facts’ from which it may be presumed that discrimination has occurred) will not be appropriate. Where the alleged discrimination consists of discriminatory questions or comments made in the course of a recruitment process, it is accepted that the only evidence which the Complainant will generally be able to adduce will be his or her own uncorroborated testimony. It is not appropriate therefore to place the probative burden on the Complainant as this would impose a higher standard of proof than was envisaged by the legislation.

In Nevins v. Portroe Stevedores [2005] 16 E.L.R. 282 the Labour Court followed Barton v Investec Henderson Crosthwaite Securities Ltd [2003] 1 I.C.R. 1205 where it was held that, since the facts necessary to prove an explanation would usually be in the possession of the respondent, it required "cogent evidence" from the employer to discharge that burden. This means that where an employer presents a series of unsatisfactory explanations or relies on mere denial, a Tribunal must be mindful that discrimination is "usually covert and often rooted in the subconscious of the discriminator".

The definition of disability contained in the Employment Equality Acts is set out in a list of broad categories as follows:

“(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour”.

The scope of protection against discrimination of the Act is delineated in Section 8.  

Section 8(1) of the Act prohibits discrimination in relation to:

                (a) access to employment,

                (b) conditions of employment,

                (c) training or experience for or in relation to employment,

                (d) promotion or re-grading, or

                (e) classification of posts.

Accordingly, the scope of prohibited discrimination is wide and encompasses every stage   of employment.  

In this jurisdiction disability has been interpreted in an extremely broad way . In An Employee v. Bus Eireann [2003] ELR 351 it was held that heart conditions amount to a disability for the purposes of the Acts. Further, in the case of Mr O v. A Named Company DEC-E2003-052 it was held that work related stress may amount to a disability. Further, as was suggested in A Government Department v. A Worker EDA094, the de minimis rule applies and the condition must manifest in a minimal level of symptoms to be classified as a disability.

The complainant had a turn in his left eye. No evidence was adduced that his eyesight or use of the eye was in any away effected or reduced as a result of the turn in the eye. It had no consequences whatsoever in relation to his ability to carry out his role. On that basis I find that a turn in one’s eye or a lazy eye does not meet the low threshold for a disability under the Act.

On that basis the complaint fails.

In relation to the allegation of race discrimination, the complainant alleges that when he was a called a “brummie” and when an employee allegedly shouted “Sunday bloody Sunday, you fucking English” at him he was treated less favourably than an Irish employee. Firstly, I do not accept that calling someone from Birmingham a “Brummie” is discriminatory. The term “Brummie” is nothing more than a demonym used to describe any person who comes from Birmingham.

I do not accept the complainant’s evidence that an employee shouted “Sunday bloody Sunday… “at him. I found the complainant’s evidence in this regard unconvincing and at times had elements of paranoia. I found the respondent’s evidence in this regard credible. On that basis I find that the complainant has failed to establish a prima facia case of discrimination on grounds of Race and accordingly the complaint fails.

CA 00033301-002 ( Equal Pay)

No evidence was adduced in relation to this claim. On that basis I find that the complainant has failed to establish a prima facia case of discrimination on grounds of pay. The complaint fails.

CA 00033301-003 (Pensions)

No evidence was adduced by the complainant in relation to this part of his claim. Furthermore, the Respondent does not have a pension scheme. On that basis I find that the complaint is not well founded and accordingly fails.

CA 00033301-001 The complaint fails.

CA 00033301-002 The complaint fails

CA 00033301-003 The complaint fails.