Complainant

Respondent

Parties

Briama  Gassama

Pennys

Representatives

Niamh Cassidy Hayes 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-00040721-001

02/11/2020

The complainant submits that he was discriminated against by the respondent on grounds of Gender, Civil Status, Family Status, Age and Race in the provision of goods and services when the Complainant was shopping at the Respondent’s premises on 26 and 27 September 2020.

The respondent denies that they discriminated in any way against the complainant.

The complainant submits that he was discriminated against by the respondent on grounds of Gender, Civil Status, Family Status, Age and Race in the provision of goods and services when the Complainant was shopping at the Respondent’s premises on 26 and 27 September 2020.

He submits that he was subjected to discrimination, harassment, verbal abuse, racism, and discrimination by another customer while shopping in Penney’s.

He submits s that the respondents  security team did nothing about it and allowed the offender to go home peacefully because she was a woman and a white national of Europe also.

The complainant submits that on the 26th of September 2020 after selecting some shoes, clothes in the respondents store another customer began screaming at him

He submits s that the respondents staff did not do anything for him or stop the woman from verbally abusing but called the security guards to arrest him because he is a black man.  

It is submitted that the next day, he went back to the store to complain  to the manager, but she refused to allow him to talk about the incident and sent him away from the shop.

It is submitted that the manager did not allow him to speak but instead called security on her headphone and sent  him away.

The respondent submits that the complainant failed to notify them in writing within two months of the prohibited conduct that is alleged to have occurred,   stating the nature of the allegation and their intention, if dissatisfied with the response, to refer the case to the WRC.

The respondent submits that it has never received an ES1 form in respect of this matter despite the complainant having claimed to have notified them on the 30th of September 2020.

The first time the Respondent became aware of the complaint was in early 2021, when it received the WRC complaint form, following periods of lockdown.

The Respondent’s representative has written to the Complainant requesting a copy of the ES1 and it has not been provided. 

Notwithstanding the preliminary matter the respondent submits that on 26 September 2020 the Complainant was shopping in the older girl’s section of the children’s department of its store  

According to the CCTV footage the Complainant appeared to be talking to someone on his mobile phone while recording images of the products. At the same time, a female customer (the “Customer”) appeared to be looking for her child in the same section of the store.

The Customer found her child standing beside a clothing rail where the Complainant was on his mobile phone recording products. It appears that an incident then took place between the Complainant and the Customer.

The Customer appears to have said something to the Complainant who became angry and showed his middle finger, in an insulting manner, to the Customer, and they began shouting at each other.

No staff member of the Respondent saw the initial interaction between the Complainant and the Customer. The attention of staff members was brought to the interaction when the Complainant and the Customer began to shout at each other on the shop floor.

 Mr S and Mr I, both managers in the store were completing a roster while standing on the shop floor, when they heard screaming and shouting nearby. The Complainant and the Customer were shouting at each other.

The two managers approached the scene of the incident to try to diffuse the situation. By the time they reached the scene, the Customer was walking towards the cash outs, and was approximately 20 meters away from the Complainant, however, the Complainant was still shouting at the Customer.

Mr, I went to notify a member of the security team. Mr S approached the Complainant and asked him to stop shouting at, and being aggressive towards, the Customer, and told him to calm down.

Mr S stated that the Complainant was roaring at the Customer calling her a “gypsy” or “Romani gypsy”. Mr S informed the Complainant that if he did not calm down and stop shouting at the Customer, that they would have to ask him to leave the store.

Mr S confirms that he did not ask the Complainant to leave the store but asked him to calm down and stay away from the Customer.

Mr S stated that the Complainant asserted that the Customer was rude to him and made allegations about him, however Mr S himself did not hear or see this alleged incident.

Mr, I returned to the scene with the security guard, Mr M.  Mr M did not interact with the Complainant but remained at the scene to endeavour to diffuse the situation. According to Mr S, Mr M  then walked behind the Complainant as he descended to the lower floor of the store. This was simply to ensure that the situation did not escalate again as it was likely that the Complainant and Customer could come into contact again when in the store.

Mr M did not ask the Complainant to leave the store. It was open to the Complainant to purchase any goods that he wished before leaving the store, but he did not appear to do so.

The respondent submits that the Complainant was not wearing a mask on 26 September when he entered the store which was both against regulations, public health guidelines and store policy in place to protect customers and staff.

On 27 September at around 1pm, the Complainant came back to the Store, he alleges that the reason for this was to complain about the previous day’s events.

The Complainant alleges that he was not allowed to do so by the manager and was asked to leave the store immediately. Ms R, a manager in the Store, dealt with the Complainant on the 27 September. Ms R was on the shop floor when she was approached by the Complainant who asked if she was a manager. Ms R confirmed to the Complainant that she was. As the Complainant was not wearing a mask, Ms R asked him if he could put on a mask while he was speaking to her. The Complainant did not indicate to Ms R that he had a health reason not to wear a mask, but simply refused to wear a mask. Ms R advised him that she would not be in a position to have a conversation with the Complainant if he did not put a mask on.

While speaking to the Complainant, Ms R received a communication to her earpiece through the store’s radio system about breaks. Ms R did not make a call asking security to attend on that occasion. Ms R was not aware that the Complainant has been in the Store the previous day or any details of the event.

 The conversation ended and the Complainant walked away. The Complainant approached Ms R on the shop floor and had not been prevented from entering the Store.

The Respondent at all times treated the Complainant and Customer with respect and patience, while trying to diffuse an aggressive situation between two customers on 26 September, and on 27 September when the Complainant was not wearing a mask. The Respondent rejects any assertion of discrimination of the Complainant on grounds of Gender, Civil Status, Family Status, Age and Race, when he attended the Store.

Preliminary Issue Notification

The Respondent objected to jurisdiction to issue a Decision on the substantive issue as the matters complained were not notified to the respondent prior to a complaint being submitted to the WRC. 

The Law

Section 21 of Equal Status Act 2000 as amended requires that:

(2) Before seeking redress under this section, the complainant—

( a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act.

Section 21(3) of the Act states:

(a)    On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may –

(i)                  for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii)                exceptionally, where satisfied that it is fair and reasonable in the particular circumstances of the case to do so direct that subsection (2) shall not apply in relation to the complaint to the extent specified in the direction,

          and where such direction is given, this Part shall have effect accordingly.

(b)    In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including –

(i)                  the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii)                the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.

Thus, there is a prescribed form available (Form ES1) to assist complainants in regard to this matter.  It is not mandatory to use this form, however, providing that the complainant complies with the requirements of Section 21 of the Act. 

The respondent advised the hearing that it had not received an ES1 form within 2 months of the alleged incident or at all.  The respondent went on to state that the first it had heard of the allegations was when it received the complaint form from the WRC .

The complainant in his complaint form to the WRC indicated that he had notified the respondent using the ES1 form on the 30th of September 2020.   The complainant did not produce a copy of the ES1 form and did not submit any ES1 form to the WRC. 

The respondent advised the hearing that it had requested a copy of the ES1 form from the complainant prior to the hearing but that it had received no response. 

The complainant when questioned at the hearing about the ES1 notification stated that he had sent the complaint form.    The complainant when asked for a copy of the ES1 form at the hearing stated that that he had printed off a copy of the complaint form and had sent it to the WRC.     The complainant when asked again about the ES1 notification form reiterated that he had sent his complaint form to the WRC.    The complainant at all times appeared to be referring to the complaint form submitted to the WRC and not the ES1 form.  The complainant did not produce or show any evidence of an ES1 form.

According to the complaint submitted the actions of the respondent which were the subject of the complaint occurred on 26th and 27th of September.  The complainant at the hearing clarified that it had been his intention on the 27th of September to complain about the matter to the manager and stated that he went back to the store on the 27th for that purpose but he stated that the manager did not give him an opportunity to speak about the matter.   The respondent’s reason for this was that the complainant was not wearing a mask when he approached the manager and when asked if he had an exemption replied ‘no’ and so the manager in question advised that she could not speak to him without a mask and the conversation ended.  The manager in question confirmed at the hearing that she had asked the complainant why he was not wearing a mask and if he had an exemption.   She stated that he had replied ‘no’ to her question and so she told him that she could not speak to him unless he was wearing a mask and the conversation ended.   She stated that she had not been aware of the incident the previous day.

Having considered this matter I am satisfied from the evidence adduced and based on the balance of probabilities that the complainant did not comply with the notification requirements set out in Section 21 before submitting a complaint to the WRC.   The ES1 notification notifies the respondent of the allegations and seeks a response to same and furthermore it notifies the respondent that, if the complainant is not satisfied with the response to that notification, they will seek redress under the Equal Status Act.

In considering this matter I note the provision in subsection 3(a)(ii) which provides for a discretion to set aside the provisions of subsection 2(a)(ii).    I note, however, that this should only be applied “exceptionally”.  The Labour Court in the case of Gaelscoil Thulach na nOG v Fitzsimons-Markey, (EET034), stated:

“The term exceptional is an ordinary familiar English adjective and not a term of art.  It describes circumstances such as to form an exception, which is out of the ordinary course or unusual or special or uncommon, to be exceptional a circumstance need not be unique or unprecedented or very rare; but it cannot be one which is regular or routinely or normally encountered.”

It is clear therefore that any decision to apply this discretion should only be taken in circumstances that are out of the ordinary.   In considering this matter, I have heard no evidence that would support the position that ‘exceptional circumstances’ exist in this matter such as to satisfy me that it would be fair and reasonable to initiate the process of directing that subsection (2) not apply in respect of this complaint.

Consequently, I find that I do not have jurisdiction to hear this complaint.

For the reasons set out above I find that the complainant has failed to comply with the provisions regarding the notification of a complaint as set out in Section 21(2) of the Equal Status Acts, 2000 – 2015, and that consequently I do not have jurisdiction to hear the complaint.