Complainant

Respondent

Parties

Daniel  Asari

XYZ Retail Ltd                        (amended at hearing)

Representatives

 D Sharkey O'Hara Solicitors

 L Killeen

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-51055-001

08/06/2022

This case is concerned with an allegation of discrimination based on the race ground under the Equal Status Act,2000. The contention is that the Complainant was denied a service on two occasions in March/April 2021 and that on the second occasion he was subjected to racial abuse. The employee at the centre of the allegations is no longer in the employment. There was no other direct witness to what occurred on the dates in question.

The Respondent provides a service to the public generally at a retail premises in Galway supplying fuel for vehicles with a shop and is comprehended by the Equal Status Act.

An ES1 was issued to the Respondent on behalf of the Complainant by their solicitor on 6th May 2022. The Respondent did not reply to the ES1. For the purposes of jurisdiction and compliance with the Act, it is accepted that an ES1 notice was properly served by the Complainant on the Respondent. It is also accepted that there was no reply by way of an ES2 or other correspondence and I am entitled to take such inference as is appropriate from that failure to reply as provided for in Section 26 of the Equal Status Act.

At the hearing the Respondent stated that the correct legal trading name is XYZ Retail Limited. This was not disputed by the Complainant representative who stated that there are a number of related entities trading under different names supplying fuel through service stations. The Respondent name has been amended accordingly on this decision.

Neither side provided written submissions. The Complainant was his own witness. The Respondent did not have any witnesses and relied on the submission made by Mr Killeen and cross-examination of the witness. At the hearing the Respondent was asked to provide a copy of the Company Dignity at Work Policy together with evidence that the named former employee (P) received a copy of the staff handbook and had completed associated training. That material was received on 31 January 2023. The former employee who was not present at the hearing is identified by the initial “P”. References to the Chair are references to the Adjudication Officer.

Sworn Evidence by Mr Asari

The Complainant gave evidence that he is a taxi driver usually working in Galway City. It was a frequent occurrence for him to attend at the service station in question. In the early hours of 31st March 2021, he went to the service station to obtain fuel for his vehicle. He had a passenger in the car at the time. The drill was that when he went to the pump the person at the till would then open the pump so that he could obtain fuel. On that occasion when he went to the pump there was a man at the hatch whom he did not know and when the Complainant put in the nozzle he waited; the employee was looking at him but did not open the tap so that he could obtain fuel. He waited about 30 minutes and was embarrassed because others who came in were served and obtained fuel whereas he had to obtain fuel from another taxi driver. He stated that he was denied a service. He had no previous dealings with that particular employee.

The Complainant stated that he returned the following day to make a complaint about what had happened. When he asked for a manager, he was told that there was an assistant manager on duty. He spoke to that man who said he was going to talk to the main manager and took his telephone number but nobody called him about the matter. In the early hours of the following morning, he went back again and was again denied service by the same employee. The Complainant described the employee as becoming angry, saying that he would meet him in court. He started name calling using the “N” word, a racial slur. The employee said that he was going to call the Gardaí, but the Complainant was the one who rang them. They came and took details and told him they were not in a position to make a decision, that he should get a lawyer. He clarified that it was on the second occasion that he was subjected to racial slurs about race, colour, identity.

In cross-examination by Mr Killeen the Complainant confirmed that he did call the Guards. Asked if on that second night that he was asking the employee to make him a sandwich at the deli, he confirmed that he did seek a sandwich. He was asked did he agree that sandwiches were not served from the deli after 5.00pm, to which he replied that his request was denied when he went to buy a sandwich, before this as a taxi person he would buy food at the service station every night.

On the point of the sandwich the Complainant stated that there were always premade sandwiches available, that there were no staff to make up sandwiches at night, and that he did not ask for a sandwich to be made up from the deli; these were already made. The dates in question were clarified as 31st March 2021, the date of the first alleged incident; the same date when he asked to speak to a manager; and the 1st of April when the second alleged incident is said to have occurred.

In his ES1 form the Complainant wrote”

“I believe that from my first interaction with the cashier, and subsequently the supervisor, that because of my race including my colour and accent, and despite my fluency in English, I was treated differently than I would have been had I been a native Irish customer.’

And

I was left humiliated and was forced to seek out the help of a colleague to assist me by bringing me enough diesel so that I could go to a different garage to fill my tank, …

And

The staff member treated me with obvious contempt, using a crude and prejudicial racist slur when speaking to me. They threatened to call the Gardai, insinuating that I had done something illegal, when I was merely seeking a service; a service which I believe would not have been denied to me were I native Irish customer.

And

I believe that if I had been a native Irish customer, I would have received a follow up call from senior management. “

In response to the Chair the Complainant stated that he did not know or ask for the name of the manager to whom he made a complaint, and he did not ask or take the names of the Gardaí that he spoke to.

Asked by the Chair to respond to the statement on the Respondent’s side that the assistant manager at the time was female, the Complainant stated that it was a male to whom he spoke and made a complaint.

On behalf of the Complainant Ms Sharkey submitted that the Complainant had submitted an ES1 Form to the Respondent and had referenced both incidents. He had established a prima facie case that he was denied a service on two occasions, that there were racial slurs made against him on one occasion and that the reason for those slurs was his race and nationality. The Respondent is unable to provide any evidence to reject the complaint. The Respondent is liable for the employee concerned under section 42 of the Equal Status Act – vicarious liability. There is an obligation on the Respondent to have in place procedures for employees to try to prevent what occurred happening. A solicitor had written to the Respondent on 11th April 2022 and 6th May 2022 setting out the position of the Complainant and attaching the ES1 Form to the letter of 6th May. No reply or explanation was received until this hearing. In response to the statement that Mr Killeen could not recall receiving an ES1 and not being aware of the first incident, Ms Sharkey explained that in their legal practice there is a call logging arrangement system and on the 13th of May Mr Killeen contacted the office regarding the correspondence stating that he had received the correspondence of May 6th , that the employee in question was off, that the matter would be investigated and that he would come back to the solicitor. Nothing was heard from Mr Killeen after that. There was no attempt at an apology prior to the hearing of the complaint. If anything, the submission of the Respondent confirmed what was claimed by the Complainant, that the CCTV showed that there was an incident on the second night/morning and an altercation occurred and there was no witness other than the Complainant as to what had occurred.  The treatment of the Complainant was disgraceful and the maximum compensation allowable under the Act was sought by way of redress.

Mr Killeen stated that the Complainant was a valued customer of the business. The service is available 24 hours a day. All customers except taxi drivers are required to prepay for fuel. They would take a dim view of any incident (of the kind described). It was their understanding that an issue had arisen over a request by the Complainant that a sandwich be made for him at the deli (instead of taking a prepacked sandwich). He stated that until this hearing that he was not aware of an incident on the first night but became aware of an incident on the second night which was reported by another employee. The matter was investigated, and the employee P was interviewed and reprimanded by way of a warning and at the end of his probation he was let go in June 2021. It was their understanding that the incident was about the sandwich at the deli and P asked the Complainant to leave. If there was an incident, the Respondent wanted to apologise for what had happened. He had no recollection of receiving an ES1 Form and again stated that he was not aware of the first incident twenty minutes earlier, during the hearing. The assistant manager at the time as it happens was a lady and not a man. In clarification to the Chair, he stated that the former employee was reprimanded for failing to provide a service to the Complainant, and his description of what occurred related to an insistence on receiving a sandwich from the deli which was closed. And it was also their understanding that it was the Complainant, Mr Asari who became irate and that the former employee refused to accept his inappropriate behaviour. Mr Asari called the Guards; they spoke to him and then he took off. Mr Killeen said he did not recall receiving correspondence and the ES1. He later said he did not recall the telephone call to the solicitor’s office but that it was his understanding that it was all to do with one incident – the second incident.

Asked by the Chair if there was a Dignity at Work Policy in the employment, following a break Mr Killeen confirmed that there is a Dignity at Work Policy in the staff handbook which would have been provided to P and he explained that there was an audio system which employees were required to sign that they had listened to when they commenced employment. The Respondent was asked to provide evidence of P signing for receipt of the staff handbook including the Dignity at Work Policy and of having listened to the relevant audio material concerning policies.

Asked by the Chair how he became aware of an incident, Mr Killeen stated it was reported by another employee. Asked by the Chair if there was CCTV on the premises and whether it was viewed as part of the investigation, Mr Killeen explained that there was CCTV footage of the incident on the second occasion, the one which he investigated. This was downloaded at the time, but he cannot find it at the moment. What was observed were hand gestures by the Complainant and certain body language on the part of the employee. The incident went on for quite a long time, approximately 30 minutes, before the Guards arrived. The Guards arrived and then he, the Complainant, went off. He had not viewed the first alleged incidents as he was interested only in the one incident which was the second one described by the Complainant. There was no sound on the CCTV recording.

The following are extracts from the Equal Status Act which were reviewed in arriving at a decision in this matter and are included on the basis that they are relevant for the purposes of the complaint.

“prohibited conduct” means discrimination against, or sexual harassment or harassment of, or permitting the sexual harassment or harassment of, a person in contravention of this Act;

The behaviours described by the Complainant in terms of the racist language attribute to P amount to discrimination on grounds of race-the use of a term intended to define the Complainants status or standing in a derogatory and less favourable manner.

“refusal” includes a deliberate omission;

The failure to provide fuel to the Complainant on the first night/morning if found to have occurred, constitutes a refusal by a deliberate omission consistent with the definition if it is found to have occurred. The correlation between the first and second incidents involving the same Complainant and the same member of staff has the potential to bring the first incident within the ambit of behaviour or conduct based on the race ground.

“service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

(a)   access to and the use of any place,

There is no dispute that the Respondents business falls within the definition of a service available to the public generally.

Discrimination (general).

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,

The characteristic of colour as a defining feature in the case of the Complainant existed at the time of the incident and still exists. The term said to have been used by the P relates to colour and could be send to extent to other characteristics also.

(2) 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”),

The two people directly involved in the incidents described by the Complainant are of a different colour and race and national origins.

Having considered the available evidence I am satisfied that the Complainant has reached the threshold of the burden of proof required to support his complaint of discrimination on grounds of race. The obligation on the Complainant to establish the facts necessary to discharge the onus on him regarding the burden of proof is set out in Section 38A of the Equal Status Act:

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.

In this case I am required to address the events described by the Complainant as occurring on two separate dates and the following are the considerations and facts which lead to the conclusion that the burden of proof is discharged:

·       Early reporting to a third party: the Complainant reported the events on the first night to a member of staff described to him as an assistant manager. He reported the second incident to An Garda Siochana before he left the premises-sending for them himself and, finally, acting on the advice of the Gardai, he sought the advice of a solicitor.

·       Consistency. The Complainants evidence whether his advice to his solicitor; the text of the ES1 or the text of other correspondence to the Respondent from the solicitor based on his instructions and in his oral evidence to the Hearing was consistent. There was one omission related to the second incident he complains of which must be addressed. the source of what was self-evidently a disagreement on the second occasion involving P.

·       Credibility arising from the consistency oi his accounts and the early reporting and his evidence to the Hearing.

On the Respondent side they have failed to investigate the complaints made to them satisfactorily, or at all. This is a reference to the most incredible and repeated assertion that the Respondent was not aware of a complaint about the first night until the day of the hearing. That this is not the case was ably demonstrated by the solicitor for the Respondent when she rejected Mr Killeen’s account by being able to draw on the call logs in her own legal practice. In terms of the matter they did investigate, the second incident, the material they provided post the hearing is a typed signed and undated statement said to have been made by P. That statement contains very formal language which suggests that Mr P may have had some assistance preparing it and it is noted that it concludes that ‘Mr Asari was aregular customer and always treated with kindness, courtesy and respect.’ This language is very striking for the very reason that it is Mr Asaris consistent account that he had never been served by P prior to the night he describes as being refused a service i.e., not opening the pump so that he could get fuel for his car. Finally, and also interestingly, the typed statement also refers to June 2022-whereas the incidents described in the complaint occurred in March/April 2022. There is no written report of the meetings conducted with P, no evidence that the charge of racist behaviour made by Mr Asari was put to P at all and no written outcome of any investigation -other than a statement at the hearing that P had his employment terminated for refusing service to a customer.

The Respondent has failed to discharge the onus of proof required to demonstrate that the prohibited conduct described by Mr Asari did not occur.  

The failure of the Respondent to reply to the ES1 and the direct charge of racism having advised the Complainants solicitor they would do so, supports the contention by Mr Asari that the Respondent directly discriminated against him on grounds of race. I find that the manner in which the Respondent dealt with the complaint and the repeated failures to reply to those complaints, infer an attitude of unimportance attaching to Mr Asaris complaints which he had taken great care to bring to the Respondents attention, repeatedly and in detail. On the balance of probabilities that indifference and neglect in the handling of the complaints and the failure to respond to the ES1, represents an attitude of inherent racism. This is the inference which I take from the inactions of the Respondent including the failure to respond to the ES1.

Vicarious Liability

On the matter of policies and procedures which the Respondent has in place to prevent any harassment or discrimination on grounds of race, I have examined the documentation provided post the hearing. The policy contained in the staff handbook contains details of an anti-bullying policy and uses the term Harassment without any detail. There is nothing in the policy which contains any of the grounds of discrimination which must not be breached by the employees or the consequences for any discrimination. The policy provides for sanctions for those engaged in bullying behaviour. However, there is no reference to the treatment of customers or service users and implicitly or potentially no consequences for any discriminatory treatment of service users or customers. Training consisted of P saying that the policy was explained to him which he confirmed in writing. But if the policy does not refer to discrimination or the ground of discrimination at all or the consequences of any discriminatory behaviour towards customers and only refers to other employees, the Respondent cannot say that they took any meaningful steps to prevent or forewarn their employees against such conduct in the case of customers such as Mr Asari.

The investigation or so-called investigation of the complaints was all but non -existent, what occurred could not be regarded as taking the Respondents liabilities seriously and represents a failure to do so.

The liability of the Respondent for what occurred based on the evidence of the Complainant which they have failed to disprove in any significant way is completed by their own failure to follow up with the Complainant, to engage with him or his solicitor and then to deny receiving the full text of the complaints in the first, second or third instance on April 6th, May 6th attaching the ES1 and the copy of the WRC complaint form.

I am satisfied that Daniel Asari was discriminated against on grounds of race and or colour in the early hours of the morning of 31 March when he was ignored and denied service and in the early hours of the following morning when he was subjected to racial discrimination in the form of abusive language related to his race and or colour.

The Respondent is vicariously liable for the discriminatory treatment of the Complainant by the former employee P. The Respondent is  directly responsible for their own inferred discriminatory treatment of the Complainant in their response or the lack of one to his complaint, their failure to properly and fully investigate the complaint including specifically their failure to respond to the ES1.

Redress

27.—(1) Subject to this section, the types of redress for which a decision of the Director of the Workplace Relations Commission under section 25 may provide are either or both of the following as may be appropriate in the circumstances:

(a) an order for compensation for the effects of the prohibited conduct concerned; or

(b) an order that a person or persons specified in the order take a course of action which is so specified.

(2) The maximum amount which may be ordered by the Director of the Workplace Relations Commission by way of compensation under subsection (1)(a) shall be the maximum amount that could be awarded by the District Court in civil cases in contract.

(3) The maximum amount specified in subsection (2) applies notwithstanding that conduct the subject of the investigation constituted—

(a) discrimination on more than one of the discriminatory grounds (other than the victimisation ground), or

(b) both discrimination on one or more than one of those grounds (other than the victimisation ground) and harassment or sexual harassment.

In arriving at a Decision that the Complainants complaint is well founded and then awarding redress I do take account of the fact that I am satisfied that Mr Asari did engage actively in a dispute with P on the second night and his ES1 form and the impression of his evidence at the hearing was that the dispute on the second night was also concerned with buying diesel. No evidence was provided of purchasing diesel was provided and if it was purchased the dispute and refusal of a service on the second night was down to what sandwich he requested-something he omitted to mention until put to him by Mr Killeen. Mr Asaris evidence on that point was somewhat evasive. I am satisfied on the balance of probabilities that the issue of discrimination on the second night is down to the racist language used by P towards the Complainant during an altercation and not any unjustified refusal of service on race grounds. This does not mean that racist abusive language towards Mr Asari by P can be justified or was not discriminatory.

The award of fifty per cent of the maximum award allows for all of the evidence and factors presented to the hearing and taken into consideration as set out in this text and what I find is the pattern of humiliating treatment of Mr Asari by the former employee compounded by the Respondents response to the complaint, which is also found to be discriminatory and for which the Respondent is directly liable.

In addition, I am issuing an order that the Respondent who operates a number of retail outlets, amends his staff policies within three months of this Decision to include specific references to forms of discrimination under the Equal Status Act, that discrimination under these grounds in words or deeds is not acceptable and that any acts of discrimination by employees will be liable to disciplinary action up to and including dismissal. The Respondent to introduce a complaints policy for handling any complaints of less favourable treatment by customers on grounds of discrimination. The Respondent to arrange for training and familiarisation with the Equal Status Act in 2023 for all managers and supervisors and on the handling of complaints. A copy of the revised policy and the complaints system to be provided to each member of staff. For the avoidance of doubt an audio recording of the staff handbook and or policy will not suffice as training for the managers.

CA-51055-001 The complaint of Daniel Asari against the Respondent XYZ Retail Ltd is wellfounded.

I order the Respondent to pay Daniel Asari €7500 compensation for the discriminatory treatment of him on grounds of race and or colour.

I direct that the Respondent revise their staff handbook to include all of the grounds of discrimination contained in the Equal Status Act, a policy within the staff handbook intended to deter discrimination against service users on such grounds and the consequences of findings of such discrimination. The Respondent is directed to introduce a complaint system for customers where they consider that have been discriminated against by staff on any of the protected grounds. I direct the Respondent to provide training for all managers on the Equal Status Legislation, the revised staff policy and the complaints system before the end of 2023. Each member of staff is to receive the revised policy personally together with a copy of the complaints procedure.

Allegation of Racism -denial of service-Vicarious liability