Complainant

Respondent

Anonymised Parties

Shop Assistant

Supermarket

Representatives

Ms. Aislin Reid  

IBEC

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-00029391-001

01/07/2019

The Complainant commenced employment with the Respondent on 7 May 2019 as a customer assistant on a contract of employment for 25 – 30 hours per week.

She had previously worked in the store for several weeks on a temporary Christmas contract.

She had a performance review with her line manager on the 15 June 2019.

She had an interaction with her line manager on the 20 June 2019 following same she went on sick leave on 20 June 2019.

The Complainant lodged her complaint with the WRC on 1 July 2019.

She wrote to the Respondent setting out her grievances on 17 July 2019.

The Complainant's employment was terminated by the Respondent on 24 September 2019.

The Complainant's case is that she was discriminated against by the Respondent by reason of her race and that she was victimised. She also submitted that the Respondent treated her unlawfully by discriminating against her in conditions of employment and harassing her. She set out the most recent date of discrimination was 20 June 2019.

She explained that she was bullied at work by her line manager and blamed for problems and mistakes that she did not cause. She set out that she had to work under extreme pressure, was excessively monitored in her work and threatened that her contract would not be extended. She submitted that she did not receive proper training by the Respondent to include safety and manual handling training.

The Complainant set out that she was not informed that she was making some mistakes. She later submitted that she was subject to endless accusations and intimidation.

She explained that she was accused of being a liar and a cheater.  She was accused of costing the Respondent money.  Because of this she was terrified and scared.  Her colleagues were rude to her. She was not provided with enough time to learn how to do her tasks.  She was not provided enough information about what she was expected to do.

As a result of this, she experienced stress and panic attacks. She had chest pain and disrupted sleep.  The Complainant went on sick leave on 20 June 2019.

She submitted that she was a victim of intimidation at work and negative racial behaviour.

She explained that she didn't receive any support or help from the Respondent.  Nobody in the Respondent would listen to her or help her.  She made at complainant about what had happened to her. Her health was so bad, she felt that the meetings were making her worse. She said it looked to her like the Respondent wouldn't help her.

The Respondent made a preliminary submission that the Complainant had failed to establish a prima facie case of discrimination. It referred to section 85(A)(1) of the Employment Equality Act and the requirement "where in any proceedings facts are established by her 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 Respondent submitted that the Complainant failed to provide comparator who is not of the same nationality, who has been treated differently or more favourably than she was, or that there was any causal link between her race and her claim before the WRC.

The Respondent further submitted that the Complainant failed to show that she was victimised bullied or harassed within the meaning of the Employment Equality Acts 1998 as amended.

On the 1 July 2019 the Complainant made a verbal allegation against her line manager. The Complainant was directed to speak with the personnel manager to raise a formal complaint. The personnel manager tried to contact the Complainant by telephone several times on 1 July 2019 to no avail.

On 4 July 2019 the personnel manager spoke with the Complainant and requested her to meet her in-store or at an alternative venue to discuss her health and any support that could be offered.

The Complainant was invited to the meeting on 12 July 2019 to discuss her health and any support that the Respondent could offer.

The Complainant advised that she did not feel up to meeting the personnel manager.

The Store manager wrote to the Complainant to advise that although she had not raised a formal grievance, he was aware of a complaint she had against her line manager and was keen to resolve it. He asked the Complainant to meet with them and provide more information.

On 17 July 2019 the Complainant wrote to the store manager. She set out her grievances.

The store manager responded on 26 July 2019 and asked the Complainant to meet with him or as an alternative he would commence an investigation based on her correspondence.

On 8 August 2019 the store manager wrote to the Complainant outlining that her probationary period would be extended by eight weeks to allow further time for improvement in her performance and attendance.  The store manager requested the Complainant to engage with the Respondent to progress her grievance complaint and to support a return to work.

The Personnel manager commenced an investigation on 12 August 2019. She met with the Complainant's team leader and four other colleagues on her team. 

On 12 September 2019 the personnel manager wrote to the Complainant to arrange a meeting to discuss her extended probationary period as well as to arrange a grievance meeting.

The Complainant did not contact the personnel manager. A further letter was issued on 24 September 2019 to advise the Complainant that due to the performance issues and attendance during her probationary period, she had not passed her probation and her employment was terminated with effect from 24 September 2019. The Complainant was offered the right to appeal the decision which she did not exercise.

The Respondent argued that the Complainant failed to establish facts to infer victimisation or racial discrimination.

At a performance review on 15 June 2019 the Complainant's line manager advised the Complainant there were issues with her performance she was provided with an opportunity to improve. Five days later she went on sick leave.  She the Complainant failed to meaningfully engage with the Respondent in relation to her grievance return to work plan. The Respondent had no alternative but to fail the Complainant's probationary period due to the performance issues which were on file before the Complainant made a complaint against her manager.

In reaching my decisions I have considered all the submissions, oral and written, made to me during my investigation as well as the evidence presented at the hearing.

I have to consider if the Complainant was discriminated against in accordance with Section 6(1) of the Acts which states that: "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 claim the ground is race.

The Labour Court in ED/01/13, Determination No. 045 Citibank and Massinde Ntoko set out an approach which is applicable in this case

 "The Court normally requires the complainant to establish the primary facts upon which the assertion of discrimination is grounded. If those facts are regarded by the Court as being of sufficient significance to raise an inference of discrimination, the respondent must prove the absence of unlawful discrimination. (See Mitchell v Southern Health Board [2001] ELR 201).

This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant’s power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondents capacity of proof.”

Despite allowing an adaption of the rules of evidence the Complainant has failed to any facts that she was treated differently than other employees of the respondent and her race complaint fails.

Workplace Bullying is defined as repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual's right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying. 

The Complainant has failed to any facts that she was bullied by her line manager.  I accept that the Complainant was involved in a performance review on the 15 June 2019 with her line manager.  She had received training as to her role and was new to her role and still on probation.  She signed her Performance Review Report on the 15 June 2019 which set out improvements she needed to carry out in her role. 

The Complainant had an altercation with her line manager some five days later and went on certified sick leave and never returned to her workplace.  She briefly engaged with the Respondent in relation to a grievance she made against her line manager but on the whole did not engage any further with the Respondent or the grievance process it commenced.

Based on the failure of the above, and the lack of any facts provided at the hearing, the Complainant’s claims of harassment, victimisation and discrimination fail. 

The complaint is not well founded. 

Bullying and harassment.