Complainant

Respondent

Parties

Daniel  Tchorzewski

Dunnes Stores

Representatives

  In person

 Murphy & Condon Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00041624-001

19/12/2020

The complaint relates to an allegation of discrimination on the race ground. The discrimination is alleged to have occurred on 21st June 2020. The complainant submitted an ES1 form to the respondent by registered post on 14th July 2020. No response was received. The complainant submitted his complaint to the Workplace Relations Commission (WRC) on 19th December 2020.

The complainant outlined in evidence that he was in the queue waiting to pay for his shopping at approximately 17.41pm on 21st June 2020. He stated that he was maintaining the appropriate social distance from the person in front of him and began placing his shopping on the conveyor belt. The complainant stated that the cashier shouted at him aggressively to stop moving his shopping up the conveyor belt by hand as it was automatic and to “hold on.” The complainant stated that after finishing with the customer ahead of him, the cashier stood up, removed the complainant’s shopping from the conveyor belt and said, “I won’t be serving the likes of you.” The complainant stated that the cashier then brought his shopping to the customer service desk and returned to her cash register.

The complainant stated that he then spoke to the Grocery Manager who approached the Cashier at her cash register before returning to speak to him. The complainant stated that the Grocery Manager apologised for the behaviour and attitude of the Cashier, said it was unacceptable and attributed the incident to a possible misunderstanding. The complainant stated that he did not accept this explanation and having paid for his shopping he left the Store at approximately 17.56pm. The complainant stated that he rang the Grocery Manager at 18.02pm and informed him that he would be taking the matter further.

The complainant contends that he was discriminated against by the Cashier on the grounds of race. The complainant stated that his skin tone, accent and appearance, were the reasons for the way he was treated by the Cashier.

The complainant further stated that he sent an ES1 form to the respondent and did not receive a reply. The complainant submitted a complaint of discrimination against the respondent to the WRC on 19th December 2020.

The complainant also said that he sought the CCTV footage which would, in his view, help to prove his case, and was told that the CCTV footage was not available as there was an issue with the CCTV cameras that day.

The complainant is seeking that his complaint of discrimination be upheld.

The respondent refutes that the complainant was discriminated against. The respondent outlined that the incident took place in the relatively early stages of the Covid 19 pandemic when all involved in the retail sector were attempting to keep customers and staff safe while essential retail remained open.

Ms Kathleen Donohoe, the Cashier in question, gave evidence in relation to the incident. Ms Donohoe stated that the complainant was not maintaining social distancing and she felt he was too close to the customer in front of him and was getting too close to her as well when she politely asked him to wait in line at the appropriate distance. Ms Donohoe stated that the complainant became rude and aggressive toward her at this point and she subsequently refused to serve him on that basis. Ms Donohoe stated in evidence that she did not say “I won’t be serving the likes of you” and was unaware of the complainant’s race when she asked him to wait and to move back the appropriate distance while in the queue. Ms Donohoe stated that she felt nervous around this time as it was the worst part of the lockdown and she was serving an elderly person who also seemed nervous and that she also felt intimidated by the actions and behaviour of the complainant. Ms Donohoe also stated in evidence that she deals with all nationalities on a daily basis without issue and was extremely upset by the untrue allegations made against her by the complainant.

Mr Conor Topliss, Grocery Manager, also gave evidence in relation to the incident. Mr Topliss stated that Ms Donohoe approached the Customer Services Desk with the complainant’s shopping and said she would not be serving the complainant and returned to her cash register. Mr Topliss stated that he spoke to Ms Donohoe who stated that the complainant had been rude and aggressive towards her and that was the reason she refused to serve him. Mr Topliss stated that he returned to speak to the complainant and offered an apology if the complainant perceived that he had been treated badly and/or if he was unhappy with the rules that were in place in relation to keeping customers and staff safe during the pandemic. Mr Topliss stated that it was his preference to resolve the matter locally and while the complainant did not accept his apology, he offered the complainant the opportunity to return to the Store to speak with the Store Manager the following day to resolve the matter. Mr Topliss confirmed that the complainant did not attend the Store the following day.

The respondent’s legal representative contends that the complainant was not subject to any discrimination and strongly refutes the complainant’s assertions in that regard. The respondent re-iterated its position that the Cashier refused to serve the complainant on the basis of his behaviour and attitude and for no other reason. The respondent contends that the complainant has not satisfied the burden of proof in relation to his complaint and is seeking that the complaint be dismissed.

In relation to its failure to respond to the ES1 form, the respondent stated that this was an unfortunate oversight on its part.

Note: In post hearing correspondence, the respondent confirmed that the complainant was notified in writing by registered post on 15th July 2020 in relation to the fact that the CCTV footage was unavailable due to a fault in the signal box that had occurred on the day in question.

The complainant asserts that he was discriminated against on the grounds of race. The initial burden of proof rests with the complainant to establish facts from which an inference of discrimination can be drawn.

The Applicable Law

Section 3 of the Equal Status Act 2000, states as follows:

3.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

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. 

Section 3(2) of the Equal Status Acts, 2000 at relevant part states as follows:

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

….

(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”)

Burden of Proof

Section 38A of the Equal Status Act 2000, provides as follows:

38A. (1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the respondent to prove the contrary. 

In the instant case, the complainant asserts that he was discriminated against on the race ground during an interaction with a cashier employed by the respondent. The complainant stated in evidence that it was his skin tone, accent and appearance that prompted the Cashier to say “I’m not serving the likes of you” and to take his shopping to the customer service desk for someone else to process.

The Cashier gave honest and credible evidence in my view that the reason that she refused to serve the complainant was because of his attitude and his behaviour towards her while in the queue. The Cashier stated that the complainant continued to push his shopping up the conveyor belt and failed to comply with social distancing rules while there was still a customer in front of him who had not yet left the checkout area. The Cashier stated that, when she asked him to wait, the complainant became aggressive in his tone and body language towards her and she felt nervous and intimidated by him as well as being nervous generally as a result of the ongoing pandemic and in her efforts to follow the safety guidelines that had been put in place.

In order for the burden of proof to shift to the respondent, the complainant must establish credible facts in relation to his assertion that he was the subject of discrimination.

I note in Labour Court Determination No: EDA0917 Arturs Valpeters v Melbury Developments Limited the Labour Court stated as follows:

Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn………

In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence.

While the case referred to above is a Determination under the Employment Equality Acts, 1998-2015 I am satisfied that the principles in relation to discharging the burden of proof remain the same.

Observations

It is unfortunate that the CCTV footage does not exist as the complainant stated its absence has hindered his complaint before the WRC. However, I am not of the view that the CCTV footage, if available, would have assisted the complainant in establishing that he had been discriminated against on the grounds of race as a result of his interaction with the Cashier.

I also note that there was no reply from the respondent when it received the complainant’s ES1 form. In circumstances where a complainant establishes a prima facie case of discrimination, and the burden of proof shifts to the respondent, the Adjudication Officer may draw an inference from the failure of a respondent to reply to or acknowledge correspondence. On that basis, it would be prudent for the respondent in this case to put procedures in place to ensure that, if a similar issue arises in future, correspondence is acknowledged without delay.

Conclusion

The complainant has made assertions that he was treated less favourably on the grounds of his race. In my view he has not provided any evidence to support this contention. In all of the circumstances of the case, I find that the complainant has not discharged the burden of proof and accordingly has not established a prima facie case of discrimination.

As the complaint has not established a prima facie case of discrimination, I find that the complaint fails.

Race Discrimination, Burden of Proof,