Complainant

Respondent

Parties

Ziona  Ozdoba

Frankfield Supermarkets Limited Ryan's Supervalue Grange

Representatives

Eoin McDonald Foley Turnbull Solicitors

David Gaffney Gaffney 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-00035740-001

17/04/2020

This case is concerned with an allegation of discrimination based on religion or race. That this is the case arises from a discussion described by the Complainant during which she says that she informed the chargehand that she is Jewish. Thereafter she says she experienced different and less favourable treatment from the chargehand compared to others who are either of a different race or religion.

While the Complainant was dismissed, this is not a complaint of a discriminatory dismissal, as clarified at the hearing. The complaint is concerned with the treatment she received and the failure of the manager to respond to her efforts to raise her concerns while she was in the employment and before she was dismissed. She accepts that her interaction with the CH two days before her dismissal led to her dismissal.

The Complainant commenced employment as a Confectionary Assistant and signed her terms of employment on 16 October 2019. She described her work at the outset as mainly baking consisting mainly of baking scones, cookies and dough as well as decorating cakes. In that role she was responsible as were all other bakers, for cleaning her own work area. There were four other bakers. No baker, including the Complainant, had general cleaning areas in the bakery. Prior to mid-December she was on a roster where she finished at 4pm. In or around Mid-December the CH asked the Complainant what she would be doing for Christmas. The Complainant replied she is Jewish and therefore would not be celebrating Christmas. From that point on, the Complainant contended that there was a change in the attitude of the CH, who is a Polish. This was the first time her own religion was mentioned. Up to that point the CH was quite friendly but after that conversation, her attitude changed. She was treated differently and less favourably in various ways.

She was assigned to cleaning and shop floor duties and not baking.

 Her rostered hours were changed so that she had a later start and a later finishing time than the other bakers which meant she had two hours of general duties cleaning the bakery and not just her own area as other bakers did. She finished working at 6pm on these changes. The only other person cleaning during those two hours was an employee hired as a cleaner, not a baker.

 The chargehands friendly attitude to her stopped.

She was no longer assigned to baking. Instead the change in her hours and the type of work she was allocated meant she was doing more cleaning than other confectionary assistants.

Tasks were recorded in the diary but in addition to those recorded duties, the chargehand gave her additional duties which prevented her completing the tasks allocated in the diary.

 The chargehand was rude to her, berating her for the smallest things. On one occasion she did a job on the floor and was told to do it one way by the chargehand and then criticised for doing it that way by another manager.

 She was set unreasonable tasks relating to labelling products and then told she still had 500 scones to bake.

 She was criticised for the job she did cleaning shelves, that the chargehand wanted an extremely deep clean and the Complainant was doing it wrong. The day after this criticism the chargehand wrote in the diary that she had not done her work correctly. That diary could be seen by all the other bakers which was embarrassing. No other baker was treated in this way.

 On February 18th the chargehand reprimanded her about her labelling work and the Complainant reacted-described by her representative as an emotional crescendo following all of the other issues. She was called to a meeting on February 20th. The chargehand had made a complaint about her and she was told she was dismissed as she had failed her probationary period. The submission contained criticism of the procedures.

Following the changes in the way she was treated by the chargehand she tried to bring these to the attention of the fresh food manager. She approached him three times, attempting to make a complaint of bullying and harassment by the chargehand. Once before and once after Christmas and then in February. He was too busy on the first two occasions and did say he would meet her on Thursday February 20th -which became the day she was dismissed. In response to the Respondent submission, she accepted that there was a probationary review meeting on January 20th. In her evidence she said that he did not raise her issues around the chargehand as the review meeting in January as she did not think it was the right place to do so. The chargehand was also there and she was concerned at raising the matter while she was there as she was the aggressor. She had no proper notice of the review meeting whereas other employees were given advance notice of their review meeting by the chargehand. The review meeting consisted of standard questions and she had no opportunity to raise any questions which she had.

Also, in response to the Respondent submission, she accepted that her job description stated she could be assigned to other reasonable duties, but she was not being assigned to baking and was being assigned only to cleaning duties for prolonged periods.

She provided details of her efforts to obtain employment following her dismissal.

Legal Issues.

The Complainant is foreign and was not aware she could raise her grievance at the review meeting. 58 Named Claimants vs Goode Concrete and Campbell Catering and Rasaq DetEEDo48.

The Complainant was treated less favourably than the 5 bakers who are all of a different nationality and Christian. None of these bakers had to change their hours or do cleaning duties outside their own area. Section 6(1) of the Act applies. Schnorbus v Land Hassen.

Referring to Mitchell v Southern Health Board and section 85A of the Act, and other precedents, it was contended that the Complainant has proven, on the balance of probabilities that she was discriminated against in circumstances where she was treated differently than other bakers. She had established a prima facie case as required and the burden of proof passes to the Respondent.

Replying to the Respondents submission that she was not a baker but a confectionary assistant, it was submitted that if a named comparator was required-the confectionary assistant who was on probation and recruited after the Complainant was a comparator and he was not required to do cleaning duties, he was placed doing baking and was not subjected to the less favourable treatment experienced by the Complainant.

Additional Witness Evidence-Complainant

The Complainant explained that she is a from Romania and Jewish and is a qualified Chemist. She had worked in Israel as a baker and wanted to resume that work when she applied for the position with the Respondent. At the interview it was explained that she would not actually be a baker, that she would be a confectionary assistant, baking cookies, decorating cakes and scones. For the first few weeks she was baking confectionary unpacking deliveries onto the floor and cleaning her own area of work, keeping the mixer clean.

Asked when she noticed the change with the chargehand, she replied just before Christmas. The chargehand spoke to them all about their plans for Christmas as she was preparing rosters. She turned to the Complainant who replied I do not celebrate Christmas and she offered to take over shifts to help.

Asked why she did not note such an important date she said did not note the date as it did not seem important at the time, she does not flash her religion in front of everyone. There was an exchange about the Hebrew meaning of the word just.

Responding to the point about her social media postings, she said she wished people a happy Christmas, but she did not celebrate Christmas.

Asked how the chargehand had reacted when she told her she is Jewish, she said ‘oh, okay’.

In relation to the changes in the chargehands treatment of her she elaborated on these as they are summarised from the submission.

On three occasion she went to the named manager about the way she was being treated by the chargehand. In response to the Respondent she said thought it was mid-December when she first said she needed to speak to him, that there was a problem. He said he was too busy, that he would catch up with her next year.

After Christmas she approached him again and he said he would get back to her-but he did not. Asked if she could be more definite about the date, she replied no. Again, she approached him, and he did say he would meet her, and she thought this was to happen on February 20th.  The Complainant confirmed that she was on holidays from January 4-15.

The third time she approached the manager was in mid-February when things had not improved. He agreed to arrange a meeting.

Asked by the Respondent why she had not raised her complaint at the review meeting on January 20th, she said that she was intimidated-that the chargehand was there.

Asked by the Respondent why, when she had the employer policies about bullying and grievances, she did not use those to make a formal complaint to the manager when he did not meet with her, she replied that she is a pacifist, that she wanted to patch things up between herself and the chargehand.

 She accepted that she had used bad language to the chargehand on 18 February, something she very much regretted and that she was dismissed for her behaviour that day. At the dismissal meeting she asked why she was treated differently to others.

The Complainant provided material concerning her efforts to obtain work and confirmed that she is now in employment.

Aside from agreeing the dates of commencement and termination of the employment relationship all aspects of the Complainants position were rejected.

The Complainant was employed as a confectionary assistant and not a baker. Her duties were not confined to baking and her job description stated that she could be assigned to other areas of work ‘You will be required to be flexible in your position and you must beprepared to undertake such other reasonable duties as may be assigned to you from time totime. Such duties may be outside your normal work area.’ A baker is a more experienced person and is not required to do other work on the shop floor or cleaning outside of her own area.

The Complainant had changed her position regarding when a meeting occurred at which she informed the chargehand that she was Jewish. She had indicated the end of November then mid-December then just before Christmas. In any event that a meeting was conducted by the chargehand at which rosters and plans for the Christmas period were discussed is flatly denied. Surely if this date resulted in such significant changes as alleged, it would stick out in her memory, but she cannot recall the date. The claim that the reference to ‘just’ as explain different terminology is rejected. The Complainant provides a translation service.

A discussion about the Complainants religion never took place. She claims that in the discussion where her religion was mentioned she told the chargehand that she does not celebrate Christmas. Social media postings were provided which it was said showed the contrary, that in fact the Complainant was wishing people a happy Christmas and generally indicating that she did in fact celebrate Christmas.

The Complainants hours were changed for a short period and number of days and not on an ongoing basis. The dates where the Complainant worked the later shift were eight in total:

21 23 30 December

2 4 15 16 18 January

This was not an ongoing change and the date of the discussion is relevant because the change in the hours began on 21 December well after the end of November if that was the date of the alleged discussion. This indicates there was could be no connection between any meeting, which was denied, and the date of the change of hours. The chargehand gave evidence that such a change in hours would only have occurred after a discussion with the employee.

There were performance issues with the Complainant and these are reflected in the probation assessment of 20 January when the sections of the review were each discussed with the Complainant by the Fresh Food Manager. That she did have the opportunity to raise issues of concern related to her treatment by the chargehand is reflected in the fact that she did raise issues -about wanting more baking and about different directions from the chargehand and another manager concerning work. At the meeting she said that she timed others doing work where she was told she was too slow and found they were slower than her.

At no point did she inform the fresh food manager that she was having problems with the chargehand or that she was seeking a meeting to discuss issues. If she was having such problems and felt she could not raise them at the review meeting, she could have sought out the manager after the meeting but according to her own evidence, even if were accepted, she did not so until sometime in February. She has no dates for when she says that she spoke with the manager about having issues or seeking a meeting. She had received a copy of the employer policies and if she was unhappy with the informal approaches or responses she could have put something in writing and formalised the matter. She did not do so.

The claim about the number of scones she was asked to make one day was rejected as the evidence was they did not make five hundred scones on any day at all and this was reflected in figures read to the hearing and put to witnesses.

The unsavoury behaviour of the Complainant towards the Chargehand on 18 February 2020 was unacceptable and that, combined with issues around performance led to her dismissal. She was on probation and had failed her probation which is why she was dismissed. The line manager had become frustrated at the Complainants performance and then had complained about the incident in 18 February where it was the Complainant and not the chargehand who had become annoyed and who directed her anger at the chargehand.

The Complainant was attempting to raise a case around discrimination because she could not accept that the reason for her dismissal was due to her own poor performance and behaviour.

Legal Arguments

The Complainant has failed to discharge the burden of proof.

The Complainant had provided no comparator as she is obliged to do under the Act. A baker was not a proper comparator as they had different jobs. Those with whom she seeks to compare herself had completed their probation.

Referring to case law cited relating to difficulties which may be experienced by non-nationals, -the Complainant offers translation services from English to Hebrew.

Witness A Chargehand

The witness commenced as chargehand in 2017. She described the role of the confectionary assistant as a little bit of everything.

Asked about the Complainants description of a meeting about rosters before Christmas she replied that this meeting did not happen. Christmas is the busiest time in the store. Nobody gets leave over Christmas in Supervalu and they know this-that they are not to ask. So, there was no need for such a meeting. She had no other meeting or discussion with the Complainant where she told the chargehand about her religion. Asked was there a change in her treatment of the Complainant she replied that as time went on she became more frustrated with the Complainants work. Some things she did well but others she would have to be asked to do them again. Asked the purpose of the diary-she said that it was used to put in tasks for the bakery staff to do while she was on her days off. In relation to the note on 18 January, this was about cleaning that the Complainant did not do at all. A sked if this entry was her style of management, she replied perhaps she should not have written it that way, but she was frustrated. She herself did cleaning it was part of her job and sometimes she would do it herself to make sure it was done to her standard.

Regarding the change of hours in December, she does not recall exactly why those changes were made. Usually changes are made because there is a problem, or someone asks for a change. The person has to agree to the change. She agreed the hours change meant more cleaning duties for the Complainant during the last two hours of the shift. She spoke about how busy the bakery is around Christmas and why extra cleaning would be needed in all of the area.

The witness replied to questions about the number of scones cooked and sold each day.

Asked about the Complainants work performance between the day of the review meeting on 20 January and 18 February, the witness said she thought the Complainant did not like the job. She knew the Complainant was happy with her work when cooking the scones. She spoke about others in the baking department being given baking duties over the Complainant because the way they worked or more experience. Other staff were complaining to her about the Complainant-about not doing cleaning duties. Her work performance did not improve following the review meeting in January.

Witness B Fresh Food Manager

This witness was in the employment and was the manager involved in the performance review of the Complainant. The chargehand reported to him. He has since moved to other employment.

Regarding the roster hours for Christmas, these would be decided well in advance and never a month or a few weeks before Christmas. Sometimes an employee going abroad would be facilitated but sometimes this could not be done, sometimes employees would do swops. The rosters would be submitted to him and he would look to see they met the needs of the business. He recalls the Complainant speaking to him one day about different instructions from the chargehand and another manager.

The witness replied to questions about the number of scones cooked and sold each day. 

The witness had no recollection of the Complainant coming to him about issues with the chargehand. He would have fobbed someone off who asked to meet with him about a problem. A meeting would be arranged within an hour or two.

Regarding the Complainants work performance-she lacked get up and go around the floor-he didn’t see it. At the review meeting he had referred to the pace- slower than others, not fast enough, that was the way he put it.

He never heard anything about the Complainant being Jewish. She was dismissed on grounds of performance and attitude.

The Employment Equality Act at section 85A refers to the burden of proof as follows:

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.

(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 a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

In terms of this first principle, the issue to be considered here is whether on the balance of probabilities it can be concluded that a conversation took place between the Complainant and the Chargehand in which the former spoke about her religion.

That the question of whether the Complainant ever spoke about her religion to the chargehand as part of a discussion about Christmas arises under the burden of proof rule is due to the contradictory evidence provided by the parties. The Complainant asserts she did inform the chargehand of her religion and her evidence was that this occurred at a meeting about Christmas arrangements. There is an emphatic denial by the chargehand that the meeting about rosters over the Christmas period described by the Complainant at the hearing took place at all; that there was no such discussion between them at any time and her equally emphatic denial that she did not know of the Complainants religion while they worked together. The Complainant on the other hand has been consistent in her assertion that the discussion took place, but unable to date the event and providing different timelines for when such a discussion took place i.e., end November early December; mid-December; just before Christmas. However, she has provided no witnesses for the discussion and neither has she named any person who could have overheard the discussion. The evidence of such a discussion is, at best vague and did change as between submissions and oral evidence. However, deciding such a serious matter based on a lack of preciseness about a date would be very harsh and unsound, given the reasonableness of the Complainants representatives argument that she did not know at the time that the events which followed would occur and had no reason to make a note of the date of conversation. And a failed memory test is not perhaps the soundest basis for deciding a matter of such importance when so many other aspects of the Complainants evidence are factually correct. And indeed, it was the respondent side who had lapses in memory around key parts of the facts concerning the working arrangements for the Complainant.

To this point, the balance of the burden of proof is fifty fifty which could lead to a dismissal of the case on the balance of probabilities.  However, in this case, there is such a link between cause and effect in the case presented by the Complainant that further examination of the evidence is merited before deciding if the terms of 85A were met by the Complainant in terms of the burden of proof.

All the indications and the evidence point to a chargehand who did change the Complainants hours to a later start time in December 2019. She can provide no evidence as to why she made that change at a time when she gave the strong impression that rosters are virtually unchangeable around Christmas and required no meeting to discuss them at all. That she was not informed of the complaint until many months after it was notified to the Respondent does not help in terms of recollections. However, there is no doubt that the change to a late start was of no benefit to the Complainant unless she sought the change and there is no evidence that she did so. From that point on both during her shift and at the later part of her shift she was required to take on more non-baking tasks. The chargehand did not dispute that fact because she could not do so, and she accepted that she had in fact assigned other male workers to more baking duties. Post the hearing the material provided interestingly enough shows that the male employed after the Complainant had a higher rate of pay-evidence not provided at the hearing.

The Chargehands evidence suggested she was more impressed with the speed at which another male worker completed Bakewell tarts than the speed of the Complainant at baking. Indeed, although there was much concentration by the Respondent on the number of scones claimed as requiring baking in a particular incident, inferring at best exaggeration on the part of the Complainant, the fact that the Complainant was criticised for her work and not having enough time to bake scones was not disputed.

The chargehand had supported a male worker in preparing for his performance review. She gave no such support or prior notice to the Complainant. The review sheet for the meeting on January 20th is interesting because it confirms that virtually all the areas of work where the Complainant fell short in the eyes of the chargehand were on the floor ‘merchandising’ ‘labelling’ ‘hygiene’. This implies that the majority of the Complainants work by then was not baking-as she has claimed. The Respondent refers to the job description as justification for the switch of the Complainant from doing primarily baking to doing primarily non-baking duties with considerable emphasis on cleaning. The difficulty with this contention is that the Respondent did not provide any evidence of the Complainant being assigned confectionary baking duties or to what extent after the change of her roster in December and after the review meeting in January when she asked for more baking duties. It isn’t even clear when the issue about the scones to be baked and the time allotted arose i.e. whether this was in December January or February.

The note with exclamation marked in the day diary for other staff to see was on January 18 just two days before the review meeting-was about cleaning. The Complainant did ask for more baking duties at that review meeting, but that request appears to have been ignored by the chargehand in the weeks that followed although the hours of the shift changed back to the earlier start/earlier finish. But since the explanation for the cleaning of the bakery area was linked by the Respondent to the amount of work over Christmas those hours may no longer have been required in any event. The Complainant was on leave for a period in early-mid January. It is also interesting to note that the reaction of the Complainant to more criticism of her work on 18th of February which lead to her dismissal meeting was her reaction to being treated as a cleaner-or maid as she may well have put it. Her resentment at that stage seemed to boil over-and she was summarily dismissed as a consequence.

More than one conclusion follows from the forgoing analysis of the evidence. The first is that in applying for the job, the Complainants evidence that she applied wanting to be involved in baking is accepted. It is reasonable to conclude therefore that she was very disconcerted and unhappy at being assigned on a constant basis to non-baking duties.   And because of her own dissatisfaction, lack of training and in general probable lack of interest in that type of work, given she had not signed up to be mainly a cleaner or bakery shop floor worker, that she did not really perform very well. Certainly not to the Chargehands standards and expectations. And her lack of enthusiasm was observed by the Food Production Manager, and he referred to it at the review meeting on January 20th and at the hearing.

The treatment of the Complainant by the chargehand was repeatedly inappropriate; the note on 18 January for all to see was disgraceful; the opportunity for the Complainant to do the baking job she was primarily employed to do was consciously undermined by the Chargehand. That is a person with very exacting standards. Indeed, it is accepted from her own evidence that she would clean areas herself to ensure her own high standards were met. And it is accepted therefore that she found the Complainants standards around the floor duties and hygiene fell far short of her expectations.

However, this is not a case about employee relations, or repeated inappropriate behaviour or an employee grievance or the dismissal- the issue to be determined here is one of alleged discrimination based on religion.

On balance I have concluded that the more likely scenario in terms of why the Complainant was treated unfavourably, was due in the main by the chargehands poor view of the Complainants performance, first as a baker and later as a general factotum around the floor with particular emphasis on cleaning. And that the first aspect-not really quick enough around baking and related pieces such as recipes not being written led to the decision to use other employees to do baking where possible and the Complainant around the floor and on cleaning as much as possible. This conclusion leads to the finding that on the balance of probabilities, even if it is accepted that the Complainant did tell the chargehand of her religion-that factor was not the driver for the chargehands treatment of her-the factor was the chargehand being herself allied to the food managers own observations about her attitude to the work. In arriving at this conclusion, I recall the response of the Complainant when asked how the chargehand reacted to her telling her she is Jewish-and it was simply ‘oh, okay’ and nothing more. That reply denotes a level of disinterest rather than a significant reaction which I find consistent with the earlier conclusion that the only driver for the chargehand was work. The failure of the Complainant to meet the chargehands own standards and her frustration with the Complainant came across in her evidence as genuine, related to the Complainants work performance and only these factors. It is for this reason that I find the allegation that the chargehand and by extension the Respondent, treated the Complainant less favourably than others because of her religion improbable rather than established on the balance of probabilities.

As the Complainant has not passed the required threshold to establish a presumption of discrimination, the Respondent has no further case to answer. The complaint is not well founded.

In the interests of completeness, the case related to race was never well founded even on the facts as described by the Complainant. Religion is not race and the Complainants case is that she informed the chargehand of her religion and there was no mention of nationality. And no case was made out of anything of substance which could distinguish the Complainant from the other workers named-other than religion.

Nothing in this decision should be taken to condone the way the Complainant was treated by the Respondent in relation to her hours of work, the assignment of duties or the manner in which she was addressed personally and in written form or indeed the procedures adopted at the point of dismissal.

The complaint brought by Ziona Ozdoba against Ryan’s Supervalu Group trading as Frankfield Supermarkets Ltd is not well founded.

Discrimination-Race/Religion.