Complainant

Respondent

Parties

Yovanah Cundapah

Ronan McDermott, trading as Spar Dolphins Barn

Representatives

  Not represented

The HR Suite

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-00043102-001

17/03/2021

The complainant is from Mauritius and she has worked for the respondent since 2017 as a delicatessen manager in the Spar shop in Dolphins Barn.  She became pregnant with her third child in 2019 and her baby was born in June 2020.  The complainant’s case is that she was discriminated against on the grounds of her gender, race and religion.  She also claims that she was victimised and harassed.  The respondent argues that the complainant has not set out the primary facts which lead to a presumption that discrimination has occurred.  He also asserted that she has not identified a comparator that shows that another employee was treated differently to her based on gender, race and religion.

On the date of this hearing, August 26th, 2021, the complainant remained in employment as the deli manager in the respondent’s shop.

These complaints were submitted to the WRC on March 17th 2021; therefore, the timeframe for consideration of an allegation of discrimination is the six months from September 17th 2020 until March 17th 2021.

In December 2019, the complainant discovered that she was pregnant and she was upset when she discovered that the respondent selected someone from another store to take over from her as the deli manager in the Spar in Dolphins Barn.  In the end, she said that the replacement manager didn’t accept the job.  The complainant said that she was out sick for two weeks during Christmas and new year 2019 -2020, but she was called in to work due to staff shortages.  She said that the job of deli manager was difficult for her when she was pregnant, as she had to lift heavy boxes and work under mental and physical stress.

In March 2020, the shop was closed for a few weeks due to the Covid-19 pandemic and when it re-opened, the complainant said that she and her colleagues were warned not to speak in their native language.  She claims that this was discrimination on the ground of her race.  The complainant went on maternity leave on June 12th 2020 and her baby was born on June 27th. 

The complainant was on maternity leave until January 2021 and, when she returned, a food operations manager had been appointed to work in the respondent’s three stores.  For convenience, I will refer to this manager as “FM.”  On February 27th 2021, the complainant had a disagreement with FM about a food safety issue.  She said that FM disposed of cooked chicken.  At a meeting the same day with the respondent and FM, the complainant said that she felt targeted and she claims that this was “a set-up” to get her out of her job.

On March 3rd 2021, the complainant said that the respondent was observing her on the closed circuit television system (CCTV) in the store.  She said that she feels she is being targeted since her pregnancy and that her anxiety levels are very high.

The complainant submitted this complaint to the WRC on March 17th 2021 and, on March 29th, she sent an email alleging that she was being “targeted” because she requested parents’ leave.

Evidence of the Complainant

The complainant described how, at Christmas 2019, she came into work when she was out sick with sciatica.  She said that she felt that she was “under pressure” of losing her job because she is a foreigner.  When questioned, she said that she was never told that she would be dismissed because she is a foreigner.  She said that when the respondent was informed that she was pregnant, he offered her job to another employee.  The other employee didn’t accept the offer, but the complainant said that “the damage was already done.”  She said that she had no one to help her when she was pregnant and she felt very stressed.

When the deli closed on March 22nd 2020, due to Covid-19, the complainant went on the pandemic unemployment payment (PUP) and she commenced her maternity leave on June 12th.  She returned to work on January 4th 2021.  A new food operations manager had been appointed the previous June.  The complainant said that another employee put pressure on the respondent to instruct the foreign staff to speak English.  She said that the respondent told her that “language is an issue.”

In her evidence, the complainant described an altercation with FM that took place on February 27th 2021.  She said that FM told her to throw out cooked chicken that had been in the deli cabinet for more than 24 hours.  The complainant said that she knows her job and that FM undermines her authority as the deli manager.  She claims that undermining, fault-finding and interfering qualifies as bullying.

The complainant said that FM was chasing her, and was behind her all the time.  She said that the store manager comforted her.  She said she attended a meeting with the respondent and FM at 10.00am on February 27th, and since then, she feels that she is being watched.  She said that she used to like working there, but she is now afraid of losing her job.

Cross-examining of the Complainant

Ms Reidy asked the complainant if she had brought her grievances to the attention of the shop manager or the human resources manager.  She replied that she spoke to the shop manager all the time.  She said that the HR manager was only appointed in July 2021 and that there was no HR when she had problems.  She agreed that a new handbook was issued to staff in 2021.

Ms Reidy referred to the handbook and asked the complainant if she got a copy.  She agreed that there is a dignity at work policy and a grievance procedure in the handbook.

Evidence of the Complainant’s Colleague

The complainant’s colleague said that she has worked in the shop for 12 years and she is a deli assistant.  She said that during 2019, it was very difficult to get staff and the complainant was “always on the go.”  Over Christmas, this colleague said that she had holidays booked and she was asked to come in to work, but she refused, because she had plans.  The colleague said that she was out of work during the Covid-19 pandemic and she returned in August 2021.

Regarding the habit of people to speak in their own languages, this witness said that this was never an issue.  She said that there are people from Pakistan, Romania, Mauritius, India and Ireland working in the Spar in Dolphins Barn.  She said it is her view that the complainant is not respected, particularly by the Irish staff.  She said that she tries to help her as much as she can.  She said that she feels that she is treated differently as a result.

Evidence of the Shop Manager

The manager said that he started working in the respondent’s Spar shop in 2007.  His first job was as a barista.  In 2009, the shop was taken over by the current franchisee, the respondent in this case.  In 2015, this witness was appointed as the shop manager.

It is the manager’s view that the complainant is a great worker, with a lot of experience.  He said that she is friendly and down-to-earth and that she can be relied on.  She has increased the sales in the deli.

The shop manager said that another employee referred to him as “a black bastard.”  He reported this to the respondent.

The store manager said that he was always served his employer with loyalty and dignity.  He said that morale in the shop has changed, although his loyalty has not changed.  He said that he is standing by what is right. 

It was apparent from the evidence of this witness that he had some grievances about his job, and that he wanted more staff working in the shop.

Cross-examining of the Shop Manager

Ms Reidy asked the shop manager about reporting the “black bastard” comment to the respondent.  The shop manager said that the respondent replied that “nobody should be called that.”  He said that the respondent sent him some emails.

At the outset of her submission on behalf of the respondent, Ms Reidy asserted that only the allegations that fall within the statutory timeframe for hearing a complaint of discrimination may be considered; these are the allegations associated with the period from September 17th 2019 until March 17th 2020.

It is the respondent’s case that, based on the primary facts, the complainant has not established that she was discriminated against; neither has she provided a comparator that shows that another employee of a different race, religion or gender, was treated differently to her. 

The complainant has been employed by the respondent since 2017 and Ms Reidy said that she has always been treated with dignity and respect.  At no point before, during or after her pregnancy, was she treated any differently.  Ms Reidy said that the complainant’s claim that she was victimised is completely unfounded and that she was not treated unfairly or adversely by the respondent.

The first time the respondent became aware of an allegation of harassment was on the form that the complainant submitted to the WRC.  She never raised an issue with her employer and she did not use the procedures that are available to her.  She had a copy of the employee handbook, which contains a policy on dignity and respect.  On an ongoing basis, she has been advised and encouraged to invoke the internal company procedures, most recently in August of this year, but she has failed to engage.

Events of February 27th 2021

Having had a baby in June 2020, the complainant returned from maternity leave in January 2021.  While she was on leave, a new food operations manager had been recruited.  The objective of the role was to standardise and implement best practice in the three delicatessens.  A number of issues were identified in the Dolphins Barn shop and FM tried to support the complainant and the other deli staff to deal with these and to ensure adherence to high standards of food production and safety.

On February 27th 2021, FM disposed of cooked chicken when she found that the complainant had not followed food safety guidelines.  The respondent is legally required to follow food safety guidelines to retain his accreditation to sell cooked food.  Following an altercation between the complainant and FM in the deli area, the complainant attended a meeting with FM and the respondent.  The aim of the meeting was to communicate to the complainant the risk of holding cooked food for too long and to ensure that there was no repeat of the problem.  At no time did FM suggest or consider replacing the complainant .  Her objective was to support her so that she could run the deli in accordance with the expected standard.

Events of March 3rd 2021

The complainant alleged that the respondent was observing her at work using the CCTV system in the stores.  Ms Reidy said that the CCTV is used in accordance with the policy outlined in the company handbook, a copy of which she included in her book of documents for the hearing. 

Request for Parents’ Leave

The complainant submitted her original complaint of discrimination to the WRC on March 17th 2021.  On March 25th, she applied in writing for parents’ leave, not parental leave.  She said that she notified the company of her request in November 2020, but there is no record of this.  The respondent’s submission states that, in February 2021, the complainant mentioned to FM that she was taking parents’ leave, but she did not make a formal application for the leave.  Although the complainant gave two weeks’ notice of her intention to take the leave, and not six weeks, as set out in the company’s policy, the leave was approved.  Ms Reidy included a copy of the Department of Social Protection confirmation of the complainant’s request in her book of papers for the hearing.  This confirmation from the Department is dated March 30th 2021.

When her application for parents’ leave was approved, the respondent wrote to the complainant saying that the way in which she applied for the leave was unacceptable, and she was informed that any future leave would be granted only in line with the company’s policies.

The Legal Position Regarding a Claim of Discrimination

Ms Reidy referred to section 6 of the Employment Equality Act 1998 – 2015 (“the Act”) which sets out the definition of discrimination and the specific references to discrimination on the grounds of gender, race and religion.  She also referred to the burden of proof at section 85A of the Acts. 

In support of the respondent’s position, Ms Reidy referred to the decision of the Labour Court in the case of Mitchell v Southern Health Board[1] where the Court held that, in the first instance, a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of discrimination.  Only when these primary facts have been established and when they are sufficient to raise a presumption of discrimination, does the onus shift to the respondent to show that there has been no infringement of the principle of equal treatment.

Secondly, Ms Reidy referred to the decision of the Labour Court in Melbury v Valpeters[2] where the Court stated that the provision at section 85A of the Act “places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Evidence of the Fresh Foods Operations Manager

In her evidence, FM said that her role was that of fresh foods operations manager.  She joined the business in June 2020, around the time as the complainant went on maternity leave.  She said that her job is mainly focussed on food safety, although she has some input into sales.  FM said that she has worked in the food industry for 28 years, in kitchen management, catering and team management.  She has been responsible for hiring and developing employees and for customer relations and food safety.

Referring to the incident on February 27th 2021, FM said that the complainant came back from maternity leave in January and she herself had been working in the shops since the previous August.  She said that the respondent has a legal obligation to adhere to food safety regulations and she was ensuring that records were kept in each of the stores.  She observed that, in some instances, records were not being kept, and some were filled in late; other records were falsified.  On February 27th 2021, FM asked a member of the deli counter staff how long food had been held since it had been cooked.  FM said that the complainant heard her asking this question and she became irate.  The complainant said that FM was interfering.  She asked FM if she wanted to be the deli manager and said that she could take over.  FM asked the complainant to sit down to talk about the food safety issue, but she wouldn’t engage with her.  She said that she explained to the complainant the purpose of the regulations and they talked about how to move forward.  She said that the only subject of their discussion was food safety and there was no mention of the complainant’s gender, race or religion.  FM said that she doesn’t know what religion the complainant is.

Regarding the complaint about being observed on CCTV, FM said that she is on the shop floor most of the time and that she doesn’t watch the CCTV. 

Cross-examining of the Food Operations Manager by the Complainant

Referring to the incident on February 27th 2021, the complainant asked FM why she instructed a staff member to dispose of roast chicken which was cooked less than 24 hours earlier.  FM replied that the chicken was not disposed of and that she was trying to get the staff to follow procedures.  She said that the complainant told FM to stop interfering and that the staff member didn’t get a chance to respond.  The chicken was disposed of later that day, although FM said that she didn’t instruct the employee to throw it away.

Evidence of the Respondent

The respondent said that the complainant told him about her pregnancy before Christmas 2019 and that he instructed her not to be lifting heavy items and to ask the store manager or someone else for help.

The complainant alleged that the respondent offered her job to an employee in another store, “RL.”  The respondent said that he told RL that she should work with the complainant before she went on maternity leave and that she should then cover for her maternity leave.  He said that they were struggling to get staff in Dolphins Barn and RL went there, but there was a personality clash and she returned to her old job.  Another person was recruited during the complainant’s maternity leave, and, when the complainant returned, that person went to work in the same store as RL.

On February 27th 2021, the respondent said that he got a call from the store manager in Dolphins Barn.  He said that the complainant was upset.  She had said that she couldn’t work with FM and that it was a case of “either me or her.”  The respondent said that he explained FM’s role to the complainant and they had a meeting, at which he repeated his explanation. 

The respondent said that the complainant spoke to him about general grievances, but she never complained about discrimination on the basis of her gender, race or religion.  Around May or June 2020, the respondent said that they started working with a human resources consultancy.  They drafted new contracts and a company handbook was issued to all employees.  If issues are raised, he said that they refer to the policies.  The respondent said that the complainant never made a complaint.  He said that the issues referred to by the complainant on her complaint form “are grievances that can be dealt with.”

Asked about the complainant’s assertion that on March 3rd  2021, he was watching her on CCTV, the respondent replied that he wasn’t watching her and that the company has a CCTV policy in place which sets out the purpose of the system.

Concluding his direct evidence, the respondent said that the Food Operations Manager has introduced new processes over the last year.  Her job is to focus on the details of the food offering in the shops.  Issues came up in other stores, and they were dealt with.

Cross-examining of the Respondent by the Complainant

Answering questions about the CCTV, the respondent said that he spends about 30 minutes a day in the Dolphins Barn shop and he does not spend that time watching the CCTV.  He said that the monitor has access to 16 locations in the store.

The complainant suggested that the respondent was “spying” on her, because he commented that she prepared the food nicely.  The respondent said that he was commenting on how the counter looked.

Conclusion

Ms Reidy summarised the facts of this complaint as understood by the respondent:

Many of the allegations made by the complainant are outside the statutory time frame for referring a complaint;

The complainant’s written complaint contains no factual evidence that amount to primary facts that establish the burden of proof with regard to her allegations;

The complainant was treated fairly at all times;

With regard to the events of February 27th 2021, the respondent addressed a legitimate issue with the complainant where the potential consequences of her failure to safely produce cooked food could have had a catastrophic outcome for the business and the customers;

An employer must address performance issues with an employee, particularly where an employee is responsible for legally complying with rules and guidelines;

The respondent would have treated any other member of staff in the same way, without any regard for their gender, race or religion;

The complainant’s claim of victimisation is completely unfounded, as she was not treated unfairly and was never the subject of adverse treatment by the respondent;

The complainant never raised an issue of harassment with the respondent;

The complainant has a copy of the company’s policies on dignity at work.

For all of the reasons set out here, Ms Reidy asked me to find that the respondent did not discriminate against the complainant.

The Legal Framework

Ms Reidy referred to the legal framework prohibiting discrimination which is set out at section 6(1) of the Employment Equality Act 1998 – 2015:

“…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 sub-section (2), in this Act, referred to as the ‘discriminatory grounds’…”

The complainant alleges that she was discriminated against on the basis of her gender, religion and race which are set out at sub-section 6(2) (a), (e) and (h) respectively, as three of the nine discriminatory grounds.

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015 (“the Act”). 

“85A – (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 him or her, it is for the respondent to prove the contrary.”

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts, which, on an initial examination lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, she has been treated less favourably than a man, and a person of a different religion and a different race.

Ms Reidy referred to the Labour Court decision in Mitchell v Southern Health Board (cited on page 6)  to support her contention that, based on the primary facts, the complainant has not shown that she was discriminated against.  Describing the evidential burden on the complainant, the Labour Court held that,

“The first requirement is that the claimant 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 those 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 is no infringement of the principle of equal treatment.”

The Primary Facts

The complainant alleged that she had to lift heavy products during her pregnancy, and that she and her colleagues were asked to speak English at work.  These matters are alleged to have occurred before September 17th 2020, and are outside the time limit for making a complaint.  No application was made for an extension of the time limit and I intend to confine my deliberations to events from September 17th 2020 until March 17th 2021.

The complainant returned from maternity leave in January 2021 and the first incident she complained about occurred on February 27th when the food operations manager enquired about the length of time that cooked chicken had been on display in the deli counter.  On March 3rd 2021, she complained that the respondent was watching her on the CCTV in the shop.  On March 29th 2021, after she submitted these complaints to the WRC, she added a complaint regarding her application for parents’ leave.

I have considered the complainant’s evidence, and the testimony of her colleague and the store manager.  It is apparent to me that the grievances she described relate to new procedures introduced by the food operations manager when the complainant was on maternity leave.  When she returned from her leave, the food operations manager had been in her job for more than six months and she had introduced new ways of working to comply with food safety regulations.  The complainant described the food operations manager as “interfering” in her work, which indicates to me that she resisted the new procedures.  The complainant provided no evidence that the way in which the food operations manager or the respondent dealt with her was in any way related to her gender, or the fact that she had been pregnant and that she had taken maternity leave.  No evidence was submitted that shows that the altercation between the complainant and the food operations manager was related to her religion or the fact that she is from Mauritius.  

The complainant based her allegation that the respondent was “spying” on her on his comment that she had done  good job setting out the deli counter.  I accept the evidence of the respondent when he said that he is in the store where the complainant works for around 30 minutes a day.  It occurs to me that he hasn’t got time for spying on his employees.  Regarding this matter, the complainant has presented no facts that lead to a presumption that she was discriminated against.

The complainant formally applied for parents’ leave on March 25th 2021 and the respondent approved the leave the following day.  The complainant did not give six weeks’ notice of her intention to take the leave, although this was a requirement of the company’s policy on parent’s leave.  Despite the confusion that arose between parental leave and parents’ leave, I can find no evidence of unfavourable treatment in the way this application was handled by the respondent.

While the complainant resisted the direction and instructions of the food operations manager, I find no evidence that she was treated unfairly or that she was victimised for any reason.  For the duration of her employment, she raised no complaint about harassment and I find that there is no substance to this allegation.

Findings

Having listened to the evidence of the respondent, it is clear to me that the complainant is a hard-working employee who is committed to doing a good job in the store where she works.  I observed that the respondent respects the complainant’s strong work ethic and her ability to manage the deli.  On the date of this hearing, August 26th 2021, the complainant remained in her job, despite having submitted a serious complaint of discrimination against her employer.  It is clear that she has not been targeted for any reason and that there is no objective to remove her from her job.

It is clear that the complainant was upset about the changes in the food handling procedures that were introduced while she was on maternity leave.  It appears that she considers these new procedures as challenges to the way she was carrying out her work since she joined the respondent’s business in 2017.  It is my view that the issues that she complains about are entirely unrelated to her gender, or her religion and her race, and are about her reluctance to adapt to new ways of working.  It is regrettable that she did not seek to resolve the issues that upset her by using the respondent’s grievance procedure. 

Conclusion

Having examined the primary facts set out at the hearing by the complainant, it is my view that, in line with the decision in Mitchell v Southern Health Board,  they are inadequate to show that, on the balance of probabilities, she was subjected to discrimination on the gounds of her gender, her religion or her race, or on any grounds.  For this reason, the burden of proving the absence of discrimination does not shift to the respondent.

As I have concluded that the complainant had not established the primary facts which show that she was discriminated against on the ground of her gender, religion or race, I have decided that this complaint is not upheld.

Discrimination, gender, religion, race