Complainant

Respondent

Parties

Hannah  Murphy

Freshly Chopped Limited

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

William Wall Peninsula

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-00044688-001

17/06/2021

The Complainant was employed as a Store Manager with the Respondent from 7th December 2020 to 21st December 2020 and she contended that she was discriminated against by the respondent on the prohibited grounds of age in relation to her unlawful dismissal.

The respondent denied the claim, contending instead that she was dismissed during her probationary period for performance issues.

In her complaint form, the Complainant outlined that she began training for the position of Store Manager in the Swords Branch of the Respondent business on 7th December 2020.  She stated that her training took place in the Fairview branch, which was situated below the Respondent headquarters.  She outlined that over the course of 2 weeks, up until 21st December 2020, she completed both opening and closing, together with cash and other tasks to prepare her for the role.

She submitted that she met with the Area Manager Mr. Burnel (who had interviewed her and offered her the position) on several occasions during that 2 week period to discuss her training and how she was finding the role.  She submitted that at no point during any of those informal “chats” did Mr. Burnel express dissatisfaction with her performance or training.

She further submitted that on Friday 18th December 2020, Mr. Burnel arranged for her to travel to the Swords branch to meet the Team Leader and discuss store operations with her.  She submitted that “all was well” and that, in fact, Mr. Burnel had made enquires of her in relation to how many uniforms she required and in what sizes.  She submitted that, as a consequence of all these actions on the part of the Respondent, she had no sense that there was any ill feeling or dissatisfaction with her performance.

The Complainant outlined that she was due to start work in the Swords branch on Monday 21st December but that on the afternoon of Sunday 20th December 2020 Mr. Burnel requested her to attend at Fairview on the Monday morning instead.  The Complainant advised that she did as she was requested, and that upon her arrival Mr. Burnel advised her that he felt he had made a “casting error” and that despite her experience she was still very young and “not ready for the job”.  She stated that Mr. Burnel had also stated that if she was to come back in 2 years, she might be better equipped to do the job.

The Complainant outlined that on 23rd December 2020 she sent an email to Mr. Burnel requesting a written declaration of her dismissal and the reasons for such.  She submitted that this email was largely ignored.  The Complainant submitted that after she sent a further email, she received a response from Mr. Burnel on 4th January 2021 with a standard “termination during probationary period” letter.

The Complainant submitted that she understood that under probation an employee can be terminated at any point for unsatisfactory work/behaviour but that Mr. Burnel’s main concern when termination her employment was her age, and he showed little concern for her performance.  The Complainant further submitted that Mr. Burnel did not know her age at the time of offer of employment and that it was only on 7th December, her first day at the Fairview branch that he asked her age, and she advised him that she was 22 years old.

In conclusion, the Complainant submitted that she had the relevant experience for the position and that no evidence was ever put to her of unsatisfactory performance and that she could only conclude that she was dismissed on the basis of being “too young”.

Complainant Evidence (Day 1):

At the first hearing the Complainant confirmed the content of her complaint form and stated that she had been interviewed by Mr. Burnel and that he had acknowledged her previous experience as an Assistant Manager and that following that interview, she had been found suitable for the position of Manager with the respondent.  She stated that if the respondent had any difficulty with her performance, she wished that they had told her about it.  She advised that the only issue raised with her was that she had worn her uniform in a public area while on lunch.  She stated that there were others there at the time but that they had advised her that this would be a problem and she stated that once she was told about that problem, she had corrected it.  The Complainant advised that she was left out of the meeting in Swords and she asked what was the point in her meeting with the Swords team if there were serious issues with her performance.  She also stated that no meetings ever took place with her in relation to performance issues and if there were issues of such serious concern as to terminate her employment why was there no record of any performance related meetings. 

The Complainant further stated that Mr. Lim was not in the room when her employment was terminated by Mr. Burnel and that she was very clear that he did not attribute her dismissal to performance issues.  She also confirmed that she was spoken to about the wearing of uniform but not about her feet being on the chair, that this was only referred to at the termination of employment meeting.

Complainant Evidence (Day 2):

The Complainant referred to the 2 photographs presented by the Respondent and stated that the Respondent was incorrect in their presentation of the facts relating to those photographs.  She stated that the photographs were taken on the same day and not on 2 separate days as evidenced by the Respondent.  She pointed to the clothes she was wearing, the way her hair was arranged and a member of the public in the background of the photographs, whom she believed to be the same person in both pictures.

She stated that as there were only two people in the room when her dismissal took place (herself and Mr. Burnel) that short of taping the conversation she had no way to prove what had been said.  She posed the question, if she had been dismissed for performance issues and if these had been clearly put to her prior to termination of employment, why then would she have sent an email to Mr. Burnel asking him to clarify the reasons for her dismissal.  The Complainant pointed out again, that Mr. Burnel did not respond and that she had to follow up with a further email before she received what was a standard probationary letter.

The Complainant confirmed that Mr. Burnel did say to her that her age was the reason for the termination of employment, and that those comments, in addition to the initial failure to respond to her email and his correspondence of 23rd December, all pointed to a conclusion that her employment was terminated due to her age.

Cross examination of the Complainant (Day 2):

In response to questions put by the respondent representative the Complainant confirmed that she did not receive a response to her email of 23rd December 2020, that the response of 4th January 2021 was as a result of her second email to Mr. Burnel.  The Respondent representative queried with the Complainant why she had not responded to that email if she disagreed that the basis for her dismissal was her performance and why she had not sought the inclusion of the reason of age if she believed that to have been the reason.  The Complainant responded that she considered the appropriate course of action to be to send her complaint to the WRC. By way of further response, the Complainant confirmed that Mr. Burnel had made the statement that she was “still very young” on 20th December 2020 when they met in Fairview.

In response to questions relating to the Complainant’s conduct the Complainant confirmed that she agreed she would not normally put her feet on a seat, that she did so on the day in questions just because it was a “comfortable way to sit” and she apologised for doing so. The Respondent representative pointed out that an apology was an acceptance of wrongdoing and he stated that there were a couple of occasions when she did so, pointing to the photographs appended to the submission.  The Complainant responded that she believed those photographs were taken during the same lunch break and again drew attention to what she was wearing, her hair clip and the member of the public in both photographs.

In relation to the non-compliance with uniform requirements the Complainant confirmed that while she did wear the correct green top she wore a black trousers with a white stripe down the side and that this was due to the need to wash her uniform.  The Complainant confirmed that she believed she had deviated from the uniform on 2 occasions.

The Complainant confirmed that of the 4 staff employed in the Swords branch one was aged 20, another aged 28 and she was unaware of the ages of the remaining 2 staff members.  She further confirmed that in the role of Manager she would be required to undertake performance reviews and that she had done so in the past.

In advance of the hearing the Respondent did not provide a formal submission but did provide a written statement of clarification on 8th July 2021 as follows:

·       That the Complainant was not dismissed on the ground of “being too young” but on the basis of her poor attitude demonstrated during the time of her training, leaving the Respondent with “raised eyebrows” in relation to her capabilities to run a store further away and not located under the Respondent headquarters

·       That Mr. Burnel outlined those issues to her when he met with her to terminate her employment

·       That the Complainant was caught on multiple occasions having lunch in her uniform in the seating area, while having her feet on the store furniture

·       That the Complainant had a “conflicted attitude” towards a member of HQ

·       That based on those poor standards the Respondent did not see any point in carrying on the training period as the basic requirements were not met.

The Respondent also outlined in that statement that Mr. Burnel categorically denied having asked the Complainant what age she was and noted that the information pertaining to her date of birth was indicated on her starter form.  The Respondent submitted that it knew the Complainant’s age from Day 1 of employment on that basis and opined that the Complainant’s statement was a lie.  The Respondent also submitted that age had never been “a criteria of recruitment” and that it has “experienced and performing managers who are young and are younger” than the Complainant.

The Respondent further submitted that Mr. Burnel did tell the Complainant that “this is not going to work out” and mentioned that he didn’t feel she was ready for the position to which she had been recruited or to meet the expectations set out by the Respondent.  The Respondent submitted that Mr. Burnel wished to add that when the Complainant mentioned that she had the relevant experience for such a position in her statement that this was also inaccurate and submitted that Mr. Burnel had hired her as a store manager although her previous experience was that of assistant manager.  The Respondent submitted that, in that context, the Complainant did not have experience as a general manager as yet.

At the first hearing Mr. Lim put forward the following position:

·       That the Complainant wore her uniform at breaktime on her first and second day.

·       That the Manager had a probationary meeting with the Complainant where he raised concerns with her in relation to wearing her uniform during lunch break and having her foot up on a chair.  

Mr. Lim stated that these acts showed disrespect to customers and the business and he provided copies of 2 photographs to demonstrate the above concerns.  He stated that he did not think the Complainant was a suitable person to carry out the role of Manager, that it was about self-respect and that if a person doesn’t have that how could they lead and manage a team of people.

Mr. Lim stated that this was a frivolous case and that having a hearing of this complaint was a waste of taxpayers’ money.  He stated that he did not know the Complainant’s age but that the age profile of those working for the company tended to be younger people.  He stated that he had started the company when he was only 26 years old and that the company had a multi-site Regional Manager who was the same age as he now understood the Complainant to be.

Mr. Lim advised that Mr. Burnel had given the Complainant a verbal warning and that given the concerns about the Complainant’s attitude, manners and behaviour Mr. Burnel had dismissed the Complainant based on Mr. Lee’s instructions.  He stated that Mr. Burnel was an experienced manager and that he had no doubt that he would not have made such a comment about the Complainant’s age.

Mr. Lim confirmed that the probationary period would normally be 6 months and he confirmed that he would send in a copy of the Respondent Probationary Policy to the WRC.  Finally, Mr. Lim confirmed that he understood that Mr. Burnel did speak to the Complainant about having her feet on the furniture, that as an experienced hospitality professional he would consider it was common sense to be aware not to behave in such a manner and that Mr. Lee had seen her act in that way on 2 days in a row.  He stated that her behaviour was unacceptable, that this behaviour was not what the Respondent would want from someone who was expected to manage a site.  He stated that if this kind of behaviour was happening in the Head office what might be likely to occur in a satellite business.  He stated that the Respondent had no option but to dismiss the Complainant.

In response to commentary by the Complainant at hearing Mr. Lim stated that on 16th December Mr. Burnel communicated with the CEO Mr. B. Lee and advised him “we don’t have a manager”.  He stated that on that Friday Mr. B Lee was talking to his father Mr. J lee who advised him that if he had concerns, he should “go with your gut”.  He stated that Mr. Burnel got an instruction to terminate the Complainant’s employment over the weekend and that he executed that instruction.

Mr. Lim confirmed that the Respondent was aware of the Complainant’s age from 7th December and yet it proceeded with her training.  He stated that when concerns were first noticed these were raised informally with the Complainant.  He advised that Swords was one of the top 2 stores of the respondent and that it could not risk the business on someone in whom it did not have confidence.

The Respondent’s Formal Submission (provided on Day 2 of hearings)

The Respondent submitted that it is a fresh food outlet serving healthy food options to the public, with several locations throughout the country and employing over 500 staff nationwide.

The Respondent submitted that the Complainant was offered a position as Store Manager and that she was dismissed on 21st December 2020 as she did not follow lawful instruction as given by her manager during her training period.  The respondent noted that her complaint to the WRC was one in which she alleged that she was dismissed based on her age and the Respondent strongly denied the allegation.  The Respondent submitted that many of the employees employed by the Respondent were of a young age, with some even younger than the Complainant.

The Respondent submitted that the Complainant commenced employment on 7th December 2020in the Respondent’s Fairview branch, which was situated at the same address as the respondent’s headquarters.  The Respondent submitted the following account of the sequence of events:

·       That upon commencement of her training the Complainant was advised of the Respondent’s policy on employee behaviour throughout its stores

·       That the Complainant was advised of the behaviour expected of her on several occasions

·       That the Complainant failed in several areas regarding her behaviour

·       That whilst taking lunch, the Complainant was advised to take her lunch in the facilities provided for staff

·       That she ignored this lawful instruction and lunched in the dining area reserved for customers

·       That she placed her feet upon the seating provided for customers (the Respondent provided photographs of same)

The respondent submitted that the Complainant had no respect for the Respondent’s furniture nor for their customers and that on instructing the Complainant on how to carry out her role, she would argue with the Respondent’s representative instead of accepting a lawful instruction; and that for these reasons alone, the Complainant was dismissed.

The Respondent submitted that it was aware of the Complainant’s age as it was provided to them by the Complainant but that Mr. Burnel did not refer to the Complainant’s age as the reason for dismissal.

The Law

In its’ submission, the respondent drew attention

to the Act which states at Section 6(1) that “discrimination shall be taken to have occurred where –

(a)   a person is treated less favourably that another person is, has been or would be treated in a comparable situation on any grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which – ….”

and at Section (2) “As between any 2 persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act are –

…(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”)….”

The Respondent further referred to section 28 of the Act wherein it states:

“28-(1) For the purposes of this Part, “C” and “D” represent 2 persons who differ as follows:…(e)in relation to the age ground, C and D are of different ages..”

The Respondent opened the case of Margetts v Graham Anthony & Company Ltd EDA038, where the Labour Court noted that “The mere fact that the complaint falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The Respondent further referred to the case of Galway Mayo Institute of Technology v Vlad Teleanca EDA 1835, where the Court noted the “Mitchell test” was comprised of the following 3 steps:

1.      “It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination.  If the Complainant fails to do so he or she cannot succeed.

2.      If the primary facts relied upon are provide, it is for the Adjudication Officer/Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

3.      If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principal of equal treatment passes to the Respondent.”

The respondent also opened the case of Able Security Ltd. And Hardjis Langsteins, DWT1319 where the Labour Court again stated that “The Court has consistently held that a Complainant carries an evidential burden to put in issue the facts upon which his or her claim is grounded and must outline the claim with enough particularity to allow a Respondent know what it is they are being accused of”

The Respondent submitted that based on the above case law the Complainant is obliged to establish a prima facie case of discrimination before the burden of proof shifts to the Respondent.  The Respondent submitted that the Complainant had failed to discharge the burden of proof as set out in Section 85A of the Employment Equality Acts 1998-2011 in establishing facts from which it may be presumed that she suffered discrimination because of her age.

The Respondent further submitted that the Act requires that a Complainant must refer to a comparator as set out in Section 28 of the Act and the respondent submitted that the Complainant had failed to set out a comparator in her correspondence to the WRC.  In these circumstances, it was the Respondent position that it was disadvantaged in defending this claim due to the lack of information provided by the Complainant.

In conclusion, the Respondent submitted that for the Complainant to be successful in an equality claim, she must identify a comparator and that in this instance she must show how they were treated differently because of their age.  The respondent submitted that no matter the age of a prospective employee, if they behaved in the manner and fashion in which the Complainant behaved, would warrant a discussion as to the suitability of that candidate and that in all circumstances where a new employee displayed conduct like that of the Complainant, no matter their age, such behaviour would warrant dismissal.

The Respondent submitted that the Complainant was not dismissed on the grounds of age, rather she was dismissed due to her conduct.  The respondent pointed out that an employer is entitled to give a lawful instruction to employees, and this can include instructing them on where to take their breaks, how to behave in the dining area and on how to treat their customers.  In this regard the Respondent referred to the case of Ruferly v Board of Management of St. Anne’s School where Charlton J stated “correction and instruction are necessary in the function of any workplace, and these are required to avoid accidents and to ensure that productive work is engaged in.  It may be necessary to point out faults.  It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours.  It is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention.  Appropriate interventions may not be pleasant and must simply be taken in the right spirit.”

The Respondent submitted that since the termination of the Complainant, it had employed over 75 new employees and that age was not one of the grounds on which it employed staff, rather it was based on suitability for the role.  The respondent further submitted that as part of training, the respondent has an opportunity to review as to whether the candidate is suitable to the requirements of the respondent and submitted that there is nothing unlawful in an employer reviewing the conduct of a potential employee during the commencement period of employment as to their suitability.

In conclusion, the Respondent denied that the Complainant was dismissed on discriminatory grounds but was dismissed for the performance and behavioural reasons set out above.  In those circumstances, the Respondent asked the Adjudication Officer to find in favour of the Respondent and to dismiss the claim.

Evidence Mr. B Lee (Day 2)

Mr. Lee confirmed that he is the CEO of the Respondent and it’s former Managing Director.  He advised that the company was founded in 2011 and that he had worked at the Fairview Headquarters for 7 years.  He advised that he would be in the store several times on any given day.  He advised that he was 25 years old when he founded the company, that during that time more than 400 employees had come and gone, that there were no restrictions in relation to the age of employees, in fact “the younger, the better.”  He advised that he hired staff based on ability.

Mr. Lee confirmed that he had no direct involvement with the Complainant but that he had to ask who she was when he observed her with her feet up on the seat and he confirmed that he had observed her so doing on two occasions.

He stated that the required attitude was “not there” and that he had made the final decision about her employment over the weekend.  He advised that he had regular meetings regarding new managers and that ultimately it was on the Area Managers’ head.  He stated that over that weekend he was very aware that the Complainant was due to start in the Swords store the following week and that he concluded there was no point in sending someone when they were not fit for the position.  He confirmed that he advised Mr. Burnel of his decision and that Mr. Burnel carried out his instruction on 20th December.

He further confirmed that he was not aware of any issues in relation to the age of the Complainant and that he considered Mr. Burnel to be an experienced manager.

Mr. lee confirmed that he had spoken to the Area Manager twice in relation to the Complainant and that he understood that in terun the Area Manager had a conversation with the Complainant.  He advised that Mr. Burnel had reported back that the Complainant had responded to say that she “didn’t relaise it was such a bi issue” and Mr. Burnel had opined that the Complainant wasn’t owning that she had done something wrong.

Under cross examination by the Complainant Mr. Lee confirmed that he was concerned that the “attitude was not there”.  He confirmed that there was no written record of the issues raised with the Complainant and that the Respondent does not keep a record of meetings.  He further confirmed that the warning given was a verbal warning, not a written warning and therefore not recorded.

Evidence Mr. Burnel (Day 2)

Mr. Burnel confirmed that at the time relevant to the instant complaint he was working as Area Manager with the Respondent and that he was in that position from May 2019 to July 2021.  He advised that during that time he was responseible for overseeing the management of 12 stores and that in the role he was responsible for managing the managers including carrying out performance reviews, recruitment etc.

Mr. Burnel confirmed that he had managed the recruitment process in relation to the Complainant and that as far as he could recall there were between 5 and 8 applicants for the position, that the interviews were approximately 45 mins to 1 hour in duration and that he saw potential in the Complainant.

He confirmed that the Complainant commenced employment on 7th December, but he could not specifically recall if he was present on that day. 

Mr. Burnel stated that during the first week issues about the wearing of uniform came to attention and that he had a conversation with her about the matter.  He advised that he did not witness her with her feet on a seat, he only witnessed the issue regarding the uniform.  He stated that he also had to speak to the Complainant to advise her to use the staff lunch area rather than the public area, as there was reduced capacity due to Covid.

In response to questions put by the Respondent representative Mr. Burnel confirmed that he had been due to meet with the Complainant on 18th December in Swords and that he had cancelled that meeting as he couldn’t make it.  He also confirmed that the Complainant was due to start in Swords on Monday 20th December but that he requested her to attend at the Fairview office instead.  He stated that the Complainant had been seen on the Friday “in uniform with her feet on a chair”.

He confirmed that he met with the Complainant but that he did not use the term “casting error”; he stated that he had chosen her over older candidates, that she had good experience but that her behaviour was of concern.  He further confirmed that he did not say that in 2 years the Complainant would be better equipped to do the job.  He advised that he could not recall exactly what he had said to the Complainant but that it was along the lines of her probation was not satisfactory.  Mr. Burnel stated that he had said nothing about her age, that the Complainant wasn’t happy, that the conversation was “one-sided and that they shook hands at the end. 

In response to a query from the Respondent representative Mr. Burnel confirmed that he could not recall the ages of the other candidates who competed for the job, many were older but age was not an issue as the Respondent did not serve alcohol and he confirmed that the Complainant’s appointment was based on her suitability and the fact that she had 2/3 years’ experience in a similar role in the food industry.

Under cross examination Mr. Burnel confirmed that he could not recall exactly when he had spoken to the Complainant regarding concerns but that he thought he had the first conversation with the Complainant regarding her uniform during her first week of employment.  He advised that he also spoke to her about taking her break in the staff lunch area at that time.  The Complainant asked Mr. Burnel when he had spoken to her about her feet on the seat and Mr. Burnel stated that it was “part of the same conversation”.

He confirmed to the Complainant that her attitude had been dismissive and he further confirmed that he had only one conversation with her.  He stated that there was no need to have a second conversation. 

He stated that during her second week of employment Mr. Lee had raised concerns about the Complainant and that he had taken photographs and sent them to Mr. Lim.  He stated that these photographs showed the Complainant with her feet up on the seat, in the public area and not wearing the correct uniform on 2 different days.  He stated that the management were concerned about the Complainant and that he had the view you can train for skill but not for attitude.

Mr. Burnel confirmed to the Complainant that he had not formally put those issue to her but that he had verbally put the issues to her as was normal practice.  He stated that the Respondent considered she had not officially started, that no contract had been issued and that the clear instruction was to terminate her employment, which he did.

In considering this matter I took into account the information supplied in the Complainant’s complaint form and in the Respondent’s written submissions and other supporting documentation. I also considered carefully the information and evidence provided by the parties at the hearing.

The Complaint alleged the Respondent had discriminated against her under the Act on the prohibited grounds of age and that the Respondent treated her unlawfully by discriminating against her in dismissing her for that discriminatory reason.  The Respondent contended in its submission that the Complainant was dismissed during her probationary period for not following a lawful instruction given by her manager during her training period and in evidence it contended that she was dismissed for her poor attitude and behaviour.

In any case involving an allegation of discrimination the Adjudication Officer must first consider the allocation of the burden of proof as between the Complainant and the Respondent

Prima Facie Case

Section 85A provides that “where a Complainant establishes facts from which discrimination may be inferred it then falls to the Respondent to prove that the principle of equal treatment was not infringed.  Once these facts are proved, and if the Adjudication Officer considers that to be of sufficient significance to raise an inference of discrimination, then the onus of proving that discrimination did not occur shifts to the Respondent.  If a Complainant does not prove the primary facts upon which they rely or if those facts are insufficient to raise an inference of discrimination, then the claim cannot succeed.”

It is for the Complainant in the first instant to establish surrounding or primary facts which could lead to an inference that discrimination has occurred before the burden of proof shifts to the Respondent.

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that

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

The established test for ascertaining if the burden of proof shifts to the Respondent was set out by this Court in its determination in Mitchell v Southern Health Board[2001] E.L.R. 201. That three-tier test provides: -

1) It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so. he or she cannot succeed.

2) If the primary facts relied upon are proved, it is for the Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

3) If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent, (Mitchell v Southern Health Board [2001] ELR 201)

In this case the primary facts contended by the Complainant are: -

·       That she commenced employment (with 2 weeks’ training) on 7th December 2020

·       That her employment was terminated by the Respondent on 21st December 2020 at which time the Area Manager told her that he had made a “casting error” and that despite her experience she was “still very young” and “not ready for this job” and that if she was to come back in 2 years’ she might be better equipped to do the job

·       That despite her dismissal on 21st December she was not given written confirmation of her dismissal or the reason for that dismissal

·       That she emailed the Area Manager on 23rd December seeking a written declaration of her dismissal and the reasons for same but that she received no reply.

·       That she forwarded that email to Mr. Lim on 29th December 2020 and that she received a response on 4th January 2021

·       That the response received was a standard “termination during probationary period” letter, containing only a general statement regarding not reaching a satisfactory standard during her probationary period.

The Complainant in this case alleges that she was discriminated against on the grounds of age.

Section 6(1) of the Employment Equality Acts, 1998-2015 states that:

“For the purpose of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.”

Section 6(2) of the Act expands:

“As between any 2 persons, the discriminatory grounds (and the discretion of those grounds for the purpose of this Act) are –

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”)

In this case the Complainant did not provide any comparator in relation to her claim of discrimination on age however, it is settled law that a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such comparator would have been treated more favourably in the circumstances of the particular case.

In this case the Complainant contends she was dismissed because of her young age and it is clear that an older person in similar circumstances could not have been dismissed for those reasons.  In addition, the staff of the Respondent seemed to be predominantly of a young age and therefore would not be valid actual comparators.

In these specific circumstances I consider it appropriate to compare the treatment of the Complainant to that of a hypothetical comparator.

The Respondent position, that the Complainant was not told that she was being dismissed rests entirely on the evidence of Mr. Burnel and his denial of making such a statement.  In essence this issue comes down to a case of one person’s word against another.

In this regard I found the Complainant to be very forthcoming and honest in providing evidence at hearing, even when that evidence was to her own detriment.  On the other hand, I found Mr. Burnel to be hesitant about a number of issues, with poor recollection of the timing of when he raised issues with the Complainant.  I also noted contradictory evidence provided by him in relation to the allegation that the Complainant had her feet up on the seat.  In giving evidence, he initially stated that there was just one such occasion, and that he had not spoken to her about it initially.  However, under cross examination he advised that he spoke to the Complainant about her uniform and eating in the public area during her first week and then confirmed that he spoke to her about her about her feet on the seat at the same meeting.  Base on his poor recollections and his contradictory evidence I did not find Mr. Burnel to be a reliable witness.

Taking the above into account, on the balance of probabilities I consider that Mr. Burnel did make comment to the Complainant about her “young age” in the meeting where he dismissed her.  I noted the case of Dublin Corporation v Gibney’s EES/1986 where a prima facie case was defined as “evidence which, in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.”  In accordance with that definition and in the instant circumstances, I find that the Complainant has established a prima facie case of discrimination on the prohibited grounds of age.  It is now for the Respondent to rebut or disprove the inference of discrimination raised.

Discrimination on the Ground of Age

In summary the Respondent submitted that the Complainant was dismissed as she did not follow the lawful instruction given by her manager during her training period.  In evidence the Respondent clarified this to be in relation to 3 issues:

·       Non-compliance with uniform policy

·       Failure to take breaks/lunch in the staff eating area

·       Having her feet up on the seat in the public area

The Respondent gave evidence that despite bringing these matters to the attention of the Complainant she repeated these behaviours and demonstrated a poor attitude to correction and lost the confidence of the Respondent in relation to her ability to lead and set standards for the team she was expected to manage.  The Respondent gave evidence that these matters were put to her, that she was given a verbal warning and in the face of continuing poor behaviour her employment was terminated during her probationary period.

I noted that the parties were not in dispute that the Area Manager had spoken to the Complainant informally about her non-compliance with uniform policy and the need for her to take her breaks in the staff area during her first week.  It is also clear from the evidence given by the Complainant and Mr. Burnel that these issues were not raised with the Complainant again until the meeting of 21st December 2020 when the Complainant’s employment was terminated.

I noted that Mr. Lee provided copies of 2 photographs, citing that these were taken by him on 2 separate days.  I noted further, the cover email dated 16th December 2020 from Mr. Lee to Mr. Lim where he referred to the attached photographs and described them as “one from last week and one from today.” I considered the Complainant’s position that these were 2 photographs taken on the same day, showing the Complainant in the same seat in the facility, wearing the same clothes, and the same hair clip.  I also noted the Complainant position that the same customer was in the background of both photographs. I carefully examined the 2 photographs and have concluded that both photographs show the Complainant as described by her. While I cannot be emphatic about the identity of the customer, it is clear that the person in both photographs appears to be of the same or similar stature, wearing an anorak with a hood and wearing a face mask.  There is nothing on either photograph denoting either the time and/or date when the photographs were taken.

I noted that at the first hearing Mr. Lim indicated that he would forward a copy of the Respondent Probationary Policy to the WRC.  This was never received and therefore I cannot comment on whether or not the Respondent acted in accordance with their own Probationary Policy.

In any event, it is generally accepted good practice that a probation period is a time period at the beginning of employment which allows the employer to assess the employee’s suitability for the role and address any performance related issues early in the employment and employers are expected to follow best practice guidelines, including fair procedures in managing the probation of any employee.  Generally, a probationary policy would provide for a number of review meetings throughout the probationary period where the employee would be given feedback on the different aspects of the employee’s performance by explaining both the areas where they are excelling, and areas where improvement is needed.

It would be normal practice that if an employee failed to reach the standard required and the employer had followed the practice outlined, the employee should be invited to a final probation review meeting where the employer would inform the employee that their contract of employment is being terminated.   All of these meetings would be formal meetings, held under the Probationary Policy and would have supporting correspondence inviting the employee to the meeting and follow up correspondence confirming the outcome of the meeting.  It would also be best practice that if the employee was likely to have their contract terminated then this should be referred to in correspondence to the employee inviting them to the final review meeting.  Following the termination of employment the employer should issue the employee with a final follow-up letter outlining all the aspects of performance that were not improved upon, final date, notice period, and a statement that any accrual of annual leave will be paid.

It is clear from the evidence given by witnesses for the Respondent that no review meetings took place and that the Respondent relied entirely on one informal discussion with the Complainant to explain the decision to dismiss her.  In addition to the evidence at hearing this position is underpinned by the fact that there were no letters inviting the Complainant to meetings and no follow up letters outlining any poor performance or deficiency in actions or behaviours.  In all these circumstances it is difficult to accept that the Respondent had such concern in relation to the Complainant’s attitude and behaviour as to warrant her dismissal on those grounds.

Finally, in considering the Complainant’s position that the Area Manager advised her that she was “still too young” for the position and that her employment was to be terminated I have already outlined under “Prima Facie Case” above the reasons why, on the balance of probabilities I preferred the Complainant’s evidence on this matter.  In addition, I noted that when the Complainant wrote to the Area Manager, Mr. Burnel on 23rd December 2020, following her dismissal she requested that he provide her with a written statement declaring her termination and the reasons for said termination.  In that email correspondence she specifically asked him to include “the two specific reasons you gave on Monday morning, 21 December 2020 that having my feet on the chair amounted to a lack of respect for the company and that you feel I am very young and not ready for this job”.

I am firmly of the opinion, that a manager who had not made such a comment would immediately respond to make their position clear.  Instead, the Complainant did not receive any reply.  I noted that, in the absence of a reply, the Complainant emailed Mr. Lim a copy of her previous email on 29th December 2020 and that she received a letter of response from Mr. Burnel dated 4th January 2021.  I noted the content of that response which stated that “your performance has not reached a satisfactory standard during your probationary period” but provided no specific detail as to how/where the Complainant failed to achieve required standards.  In addition, it is particularly noteworthy the Mr. Burnel did not make any denial of the allegation that he had attributed the Complainant’s dismissal in part to her “young age”.

In all of these circumstances, I find that the Complainant was dismissed by Mr. Burnel and that one of the reasons cited by him for that dismissal was her “young age”. 

As set out above I have found that the Complainant was dismissed by Mr. Burnel and that one of the reasons cited by him for that dismissal was her “young age”.  In that context it is my decision that her complaint of discrimination on the ground of age is well founded.  It is also my decision that the Respondent is to pay the Complainant the amount of €10,000 as compensation for the discrimination.

Discrimination on the ground of age