Complainant

Respondent

Parties

Siphelele Victoria Mawuli

 A&G Couriers Limited T/a Fastway Couriers (Ireland)

Representatives

  Self represented

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00044640-001

15/06/2021

The Complainant contends that she was discriminated against by the Respondent on the ground of race.

The Complainant made extensive written and aural submissions summarised as follows:

She contends that on 22nd May 2020 she had to go to the depot to collect a parcel, and that when she got there, the depot was closed.  She could not get any reply when she knocked on the door.  She then was reported to the Gardai for breaching the 5km rule in force at the time due to Covid-19 lockdown.  She stated that two Gardai attended her house, not wearing masks.  She alleges that there were “two other Caucasian ladies” outside the depot also on the day, but no Gardai had called to their homes with the alleged report from the Depot Manager Mr P that the 5km rule had been breached.  This, the Complainant contends constituted discrimination on the ground of race.  The Complainant rejects the Respondent’s assertion that Depot Manager (who made a report to the Gardai) Mr P did not know her colour as it is in her WhatsApp profile.  The Complainant outlined a history of complaints against the Respondent. She stated that the most recent was on 12th April 2021.  This event involved the Complainant being told she would have to go to the Depot to collect her parcel.  She did not feel that she could do so, as she had been provided with no evidence of any investigation into what transpired following incident on 22nd May 2020.

The Complainant believes Fastway Couriers unfairly treated her due to ongoing service issues. Mr P, the depot manager who failed to review CCTV footage before filing the complaint, maliciously reported her to the Gardai. On Sunday, 24 May 2020, two gardai arrived at her residence without protective masks and informed her that Fastway had filed a complaint. She sent multiple emails regarding the incident throughout the entire year of 2020 but received no response. She contacted customer service and requested that K the customer manager, call her back. However, she was always instructed to leave her contact information, and he would contact her. He never did until 22 April 2021.

The respondent claims that the discrimination complaint was submitted via Linkedin on 4 May 2021. However, the complainant had already submitted a copy of the discrimination complaint to LW on 21 April 2021. She complained via email in May 2020 and by telephone, notably to Fastway customer service employees C and O mentioning she felt discriminated against. O advised her that she would log a complaint on her behalf and escalate the matter.

Fastway blocked her phone number after the incident, making it impossible for her to contact them.  A Fastway employee from the corporate head office notified PM, a company courier who used to deliver to our area, not to deliver her parcels.  Parcels were refused delivery numerous times, particularly before vacations, resulting in extra expenditure and exceeding her wardrobe budget.

The respondent’s submission is summarised as follows:

We would like to place on record that complaints in terms of discrimination are required to be submitted within 2 months of the alleged incident. This complaint was only received by Fastway on the 5th April 2021, almost one year after the alleged incident of 22 May 2020. This is not in compliance with the correct procedure or timeframes. We refer Section 21 of the Equal Status Act 2000: Equal Status Act Section 21:

21.—(1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director.

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

(a) shall, within 2 months after the prohibited conduct 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 by referring the case to the Director, and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

(3) If, on application by the complainant, the Director is satisfied—

(a) that exceptional circumstances prevented the complainant from notifying the respondent in accordance with subsection (2), and

(b) that it is just and equitable, having regard to the nature of the alleged conduct and to any other relevant circumstances, that the period for doing so should be extended beyond the period of 2 months provided for in that subsection,

the Director may direct that, in relation to that case, 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; and where such a direction is given, this Part shall have effect accordingly.

(4) The Director shall not investigate a case unless he or she is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent. 

The complainant states that she delivered a written complaint to Fastway regarding discrimination on the 25 May 2020.   There was no allegation of discrimination included. What Ms Mawuli does allege is that she was reported to the Garda for being at the depot when it was closed. Issues in this complaint are issues relating to service.

The complainant states that she has submitted additional complaints in respect of discriminatory practices to Fastway. Fastway has records of service-related complaints, but no discrimination complaints. It is our submission that this complaint was submitted outside of the required timeframes.

SERVICE ISSUES

It is our submission that this complaint relates to service issues and that discrimination is being alleged in order to address service issues experienced that have nothing to do with discrimination at all. Thousands of parcels are delivered on a daily basis, using a scanning system to find the correct address. Service issues do happen, there are misdirects, and sometimes parcels are late because of poor labelling. This is not due to discrimination, but is unfortunately something that does happen. Fastway has tried to accommodate Ms Mawuli and address all her queries and issues but despite efforts to be of assistance, Ms Mawuli continues to allege discriminatory practices which we believe to be unfounded.  Fastway have had no other complaints from any person alleging that there are discriminatory practices in respect of service, based on race. It is highly unlikely that Ms Mawuli is the only person of colour to whom delivery services are provided.

Complainant alleges that on the 22/05/2020, Garda were notified by Mr P that she was outside her 5km radius and Mr P provided the Garda with her personal information without consent.  Complainant alleges there were 2 other caucasian ladies also trying to collect parcels who were not reported to the Garda for being outside their 5km radius (complainant notes that she spoke to these ladies).  Complainant alleged racism and notes that everyone at the depot who were outside their 5km radius should have been reported.  Complainant alleges that her parcels are consistently not delivered on time and complains about having to collect a parcel from the depot despite having paid a delivery fee.  Complainant alleges discriminatory practice in that her number has been blocked.

Complainant wants to be reimbursed for phone calls and fuel related to service issues, because of having to drive to collect parcels dating back to 2018. She mentioned a figure of €1000.00. Complainant furthermore requested a copy of an investigation into Mr M (driver) whom she claims was going to be investigated because of allegedly pushing into her/ over her doorstep.  A subject access request was made to which the DPO responded.

A full investigation was carried out into the Complainant’s complaint regarding 22/05/2020.

Complainant had advised due to ongoing issues with the driver that her parcel was to be delivered to top oil Petrol station Waterford. This had been an ongoing issue.

Customer service notified Ms Mawuli that should she require her parcels to be left at the Top Oil Station, that the parcels should be addressed as such.

Discussions with customer service and depot staff as well as statement taken from ES indicate that when delivery was attempted, the shop keeper at Top Oil refused to take these parcels and they were returned to the depot. Complainant was advised that her parcel was at the depot.  The depot staff rang the shop to see if they could amend the situation and arrange for store drop off of the parcels and the parcels were delivered to the shop as requested.

The complainant decided to go to the depot in New Ross to collect her parcels but by this time, the parcel had already been delivered to the shop. Complainant stated she was not aware of her parcel being delivered to shop. The depot was closed for collections due to the Covid-19 pandemic. The customer turned up to the depot and phone texted Mr P alerting him that she would be coming to collect her parcel. She also tried to call him, numerous times. This was confirmed in a telephonic conversation between Ms Mawuli and Dawn Julyan, and confirmed in Mr P’s statement as well as in an email from D Julyan to Ms Mawuli on the 7 June 2020.

He got a call from a driver to say a customer was in the New Ross depot Car park banging on windows and doors, he states she was also stopping vans and recording them on her phone. This apparently happened to a few drivers and Mr P states that he phoned the Garda to report this. He was aware of the complainant being at the Depot due to the calls and texts she had sent him and was able to provide the Garda with these details.  The Gardai apparently arrived at the complainant’s house a few days later. The complainant states that they were firm with her about being outside the 5km permitted radius. As per our email response to complainant of 7 June 2020 Fastway were not in a position to comment as we were not party to that engagement.  Complainant asked why the Garda were called on her on her when she went to the depot to retrieve her parcel. She stated that she was within in 5km distance. Mr P confirmed that the Garda were called not because she was breaking a 5km distance from her home, they were called as he received reports of someone stopping drivers and recording them as well as banging on windows of the depot.

On the claim of Fastway being racist - Mr P confirmed he is unaware of her or her partners ethnicity and had never met either of them so would not be aware of their ethnicity.  He also confirmed that he was unaware of any other customers being at the depot – he was only aware of Ms Mawuli having been there due to her missed calls and texts. 

SERVICE ISSUES 

We checked the audit trail of service issues. Each complaint was dealt with as it arose in terms of standard policy. 

INCIDENT AT DEPOT  

Mr P has never met or seen the complainant, although he has communicated with her via telephone and text. He was completely unaware of her ethnicity.  Complainant notes in her correspondence that the only way she gets a response in respect of service is through doing an Equal Status complaint. She furthermore limits the complaint to an incident in 2020 but demands compensation for service delivery issues dating back to 2018.  There have been several complaints from this customer over the last number of years. Ms. Mawuli has escalated queries to customer service since December 2018. These queries have been to escalate non-delivery or late delivery of parcels to her house.  There was an investigation done on this and driver advised that he delivered the parcel to the address with no issues to report. In addition to this, customer service provided the depot email to the complainant – no other e-commerce customer has been given this much support. The complainant was also provided with Mr P’s number, this is also not something which happens in the usual course of business. Contrary to what is stated, the customer was provided with preferential treatment.  It was confirmed that the Garda were called as Mr P received telephonic reports of a person harassing drivers coming into, and leaving the depot, and shouting and banging on the windows and doors. As the complainant had texted him that she was at the depot, he was able to identify her.

After much investigation, neither HR nor Legal believe anyone in Fastway has acted in a racist manner towards this customer. No racist actions could be identified and it appears as though this was a customer service issue, not a discrimination matter.     

There is a history of service issues the complainant has with the respondent.  For the purposes of this investigation, the alleged discriminatory acts submitted by the complainant are alleged to have taken place on 22nd May 2020 (‘the first occurrence’), and 12th April 2021 (‘the most recent occurrence’).

There are essentially two steps to a complainant when submitting a complaint or complaints.                  The first is serving notice on the respondent of the alleged discrimination and the second is submitting the complaint(s) to the WRC within 6 months from the date of the alleged discrimination or the date of its most recent occurrence.  The time limits can be extended as outlined below. 

Time Limits

There are a number of preliminary points to be addressed here in relation to the time limits set out in the Equal Status Acts.  Firstly, in order to progress a complaint, a Complainant must formally notify the Respondent their claim that a prohibited conduct has occurred and their intention to seek redress.   The relevant section of the Equal Status Act 2000 (as amended) is as follows:

21.—(1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission..

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

(a) shall, within 2 months after the prohibited conduct 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, and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission, or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions..

(3) (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 circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,

and where such a direction is given, this Part shall have effectaccordingly.

(4) The Director of the Workplace Relations Commission or the Circuit Court, as the case may be, shall not investigate a case unless the Director of the Workplace Relations Commission or the Circuit Court, as the case may be is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent... 

The usual official notification to a respondent of a complaint is by way of an Equal Status 1 (ES1) form which must be sent to the Respondent within two months of the alleged discrimination.            

Although the respondent states that they have no notice of the complainant’s complaint of the most recent occurrence, I have decided to accept the complainant’s evidence that she submitted her complaint to a member of the respondent’s staff Ms LW on 21st April 2021.  I am satisfied that the complainant did notify the respondent by email on 21st April 2021 of her complaints.   However, it appears that these relate to incidents which occurred in May 2020.

Section 21 (6) of the Acts provide:

(6) (a) Subject to subsections (3) (a) (ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates, or as the case may be, the date of its most recent occurrence.

As the alleged actions of the respondent in May 2020 are clearly outside the time limits I now examine the ‘most recent occurrence’ of the alleged prohibited act.

In this case, the main complaints by the Complainant relate to customer service issues she has had with the Respondent dating back to 2019, and in particular one incident on 22nd May 2020 and its aftermath on 24th May 2020.  The Complaint received by the WRC on 15th June 2021 refers to the most recent occurrence of alleged discrimination being 12th April 2021.  The main evidence adduced from the complainant at the hearing was that she was not comfortable having to attend at the depot to collect the parcel that was to be delivered.  Her discomfort arose she said as there had been no notification to her of the outcome of any investigation into her complaint in May 2020. In order for the complainant’s complaint of ongoing discrimination to be investigated, the matter complained of regarding the 12th April 2021 must be considered.

First the actual law in relation to definitions of discrimination must be examined.

Section 3 of the Act provides:

3.(1) 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. 

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

( a) that one is male and the other is female (the “gender ground”),

( b) that they are of different civil status – (the civil status ground”),

( c) that one has family status and the other does not or that one has a different family status from the other (the “family status ground”),

( d) that they are of different sexual orientation (the “sexual orientation ground”),

( e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (the “religion ground”),

( f) subject to subsection (3), that they are of different ages (the “age ground”),

( g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),

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

( i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”)..

(3B) For the purposes of section 6(11)(c), the discriminatory grounds shall (in addition to the grounds specified in subsection (2)) include the ground that as between any two persons, that one is in receipt of rent supplement (within the meaning of Section 6(8), housing assistance (construed in accordance with Part 4 of the Housing (Miscellaneous Provisions) Act 2014) or any payment under the Social Welfare Acts and the other is not (the “housing assistance ground”).

The relevant clauses in this case are Section 3 (1) (a) and Section 3 (2) (h). In order for her claim to succeed, the Complainant must have been “treated less favourably than another person” on the ground“that they are of different race, colour, nationality or ethnic or national origins.  

The onus is on the Complainant in the first instance to discharge the burden of proof that an inference of discrimination may be drawn from the established facts, this is the ‘burden of proof’ on her to establish a prima facie case.  If she succeeds, then the burden of proof shifts to the Respondent to prove that it has not discriminated against the Complainant.

Burden of proof.

38A of the Act provides:

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.

Section 38A refers to the requirement to “establish facts” to create a presumption that “prohibited conduct” i.e. discrimination occurred.

It is well established law that in order for the Complainant to succeed a prima facie

case must be made out by a Complainant.  

In this case the evidence adduced pointed to a long running dispute between the Complainant and the respondent regarding service issues.  Many complaints have been submitted to the respondent and the issue of race had not arisen until the complainant submitted her complaint to the WRC. 

In the case of Valpeters v Melbury Developments ltd [2010] ELR 64 the Labour Court found:

”Mere speculation or assertions, unsupported by evidence, cannot be elevated to

a factual basis upon which an inference of discrimination can be drawn”.

In relation to the incident on 22nd May 2020, that complaint is clearly out of time.  In relation to the complainant’s contention that she was discriminated against on 12th April 2021 on ground of race, no evidence has been submitted by the complainant to discharge the burden of proof that she has been treated less favourably than another customer of a different race, colour, nationality or ethnicor national origins on the date of 12th April 2021.  The complainant has not discharged the burden of proof in relation to the date of the ‘most recent occurrence’ and the date of the ‘first occurrence’ being more than 12 months before the date of the receipt of the complaint is clearly out of time.            I find therefore the complaint to be not well founded.  

Discrimination on ground of race.  Service issues with respondent. Not well founded.