Complainant

Respondent

Parties

Rudy  Nasr

Specsavers Swords Limited

Complainant

Respondent

Anonymised Parties

Representatives

  Self

 Matthew Richards

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-00064810-002

17/07/2024

The Complainant commenced employment with the Respondent on 22/01/2024 as an Optical Assistant.  His employment ended on 31/07/2024.  He was paid €13.00 per hour and worked 40.5 hours per week.  He submitted a complaint to the Workplace Relations Commission on 17/07/2024 seeking adjudication under Section 77 of the Employment Equality Act, 1998.  The Respondent refutes the allegations.

The Complainant have evidence on affirmation.  As the Complainant was not represented the Adjudication Officer explained how the burden of proof operates and the Complainant confirmed his understanding of this.  The Complainant withdrew his complaint of discrimination on the grounds of gender, religion and conditions of employment.  The hearing proceeded to hear evidence in relation to his complaints of discrimination on the grounds of race and access to training.

The Complainant confirmed that he commenced employment with the Respondent on 22/01/2024.  He had previous experience as an Optical Assistant and was hoping to progress his career with the Respondent.  The Complainant explained that he is from the Lebanon and there were jokes made in the canteen about him.  These consisted of remarks about how he came to Ireland, many crude sexualised gestures and other remarks.  The Complainant was called names and it appeared to him that jokes of a racial and ethnic nature were acceptable.  The manager who was present when this also happened also laughed.

In response to questions from the Adjudication Officer the Complainant confirmed that the jokes were make specifically about him.

The Complainant stated that this culture and atmosphere was present and he felt that he could not complaint to anyone as he observed that the manager was involved.  The Complainant also stated that he did not receive any employee handbook or attend any workshop on sexual harassment, racism, discrimination or anything else in relation to his workplace.

The Complainant also believes that he was discriminated against in terms of his access to training.  As he had prior experience as an Optical Assistant he had hoped to progress to an Optical Dispenser role.  He saw other employees getting this training and he was only given training two weeks before he left. 

The Complainant was cross examined by Mr Richards on behalf of the Respondent.  He was asked who he reported these issues to and he confirmed that would have reported these to Ms Green but she was there when these comments were made and she laughed.  He confirmed that he mentioned these to another supervisor.  The Complainant could not recall when this happened.

The Complainant confirmed that he had an issue in relation to access to training.  It was put to the Complainant that the Respondent’s records show that he completed 63 training courses and that about 20-30 of those related to dispensing.  The Complainant stated that many of those courses were mandatory and that he did not receive any Varifocal training and he never received any audiology training.

It was put to the Complainant that his training record shows that he undertook Varifocal training on 29/04/2024.  It was also put to the Complainant that his first dispensing course was done on 07/02/2024.  The Complainant stated that he was held back and a colleague showed him some things in relation to dispensing two weeks before he left.  The Complainant was asked if he attended Team Training on Saturday mornings and he confirmed that he did.

Mr Matthew Richards gave evidence on affirmation on behalf of the Respondent.  Mr Richards confirmed that he is the Managing Director of the business.  He outlined in evidence that he was made aware of issues in relation to the Complainant.  He was informed that the Complainant had made comments about a female colleague’s weight and she was upset by the remarks made.  She did not feel comfortable speaking directly to the Complainant about this so she informed her supervisor about what had occurred.  Mr Richards arranged to meet with the Complainant on 11/03/2023 and Ms Green was present  The purpose of this informal meeting was to discuss this matter and other issues that had arisen with the Complainant.  Mr Richards gave evidence that the Complainant showed no remorse when he was informed of the incident and he stated that he would refuse to apologise to his colleague.

Mr Richards also gave evidence about a previous meeting he had with the Complainant on 28/03/2024.  That meeting was held as the Complainant had mentioned about how he felt in a previous employment and the Respondent wanted to reassure him that his opinions and contributions were valued and that they would encourage him to highlight anything that might cause concern while he was their employee.  Mr Richards stated that the Complainant was very appreciative of this reassurance.

Mr Richards outlined that after the meeting on 11/03/2024 the Complainant sent a Microsoft Teams message which stated: 

“Hello, I would need confirmation that my contract had been terminated, you saying to me, ‘go home’ wouldn’t suffice.  Thank you Rudy.” 

 Mr Richards stated that he never told the Complainant that his employment was terminated or never used any words that could give rise to that feeling.   Mr Richards replied to the Complainant and explained that the purpose of the meeting was to seek his apology for the inappropriate comments made to a colleague. The Complainant left the meeting and Mr Richards confirmed that he advised the Complainant that it would be best if he went home for the day.   Mr Richards organised a further meeting with the Complainant and after a series of email exchanges he decided not to attend if he was going to be asked to apologise and stated that he would be submitting a complaint to the WRC.

The Respondent’s manager made further contact with the Complainant about three weeks later and advised the Complainant that he was absent from work and was not following procedures.  He was also asked to retract or reconsider his resignation. 

As the Complainant did not return to work or attend any meeting the Respondent took the decision to accept his verbal resignation and paid him all outstanding pay for annual leave.  It is the Respondent’s position that there was no dismissal and the Complainant resigned.

Mr Richards was cross examined by the Complainant.  Mr Richards was asked if the Complainant was made aware of the employee handbook when he started.  Mr Richards confirmed that he was and informed where it is accessible on their system.  Mr Richards confirmed that copies were not given but all employees access it online. 

Mr Richards was asked what training the Respondent provided in relation to sexual harassment and providing a safe workplace.  Mr Richards said that there are many courses available and he confirmed that the Complainant attended a number of courses including, Understanding Neurodiversity, Dignity and Respect, Attitude and Behaviour and the mandatory training in relation to Dignity in the Workplace and Staying Safe.

Mr Richards was asked what the purpose of the meeting on 28/03/2024 with the Complainant was.  Mr Richards outlined that there were two interlinked issues.  Firstly, they were aware that the Complainant had made comments about his fear of speaking up in his previous employment and they also wanted to speak with him in relation to an incident with a store supervisor.  Mr Richards was asked if he started the meeting by saying “I don’t  give a F*** about anyone out there”.  Mr Richards denied saying so.  Mr Richards stated that he was trying to calm things down at the meeting.

Mr Richards was asked if the Complainant was ever aggressive towards “any of you”?  Mr Richards stated that there were several instances.  It was put to Mr Richards that these were not put to the Complainant.  Mr Richards stated that they were in the process of collating the relevant information and when the incident which arose as a result of the inappropriate weight comment occurred it was decided that the Complainant should be met.  Mr Richards noted that he had a meeting with an employee (MQ) on 12/07/2024 and she clearly outlined her concerns in relation to the ongoing issues about the Complainant’s behaviour and attitude.  Mr Richards noted that a copy of the note of this meeting was included in the Respondent’s submission and copied to the Complainant.

Mr Richards was asked to explain the purpose of the meeting on 11/07/2024.  He stated that he took the opportunity to speak to the Complainant about his general behaviour based on the feedback he had received from a number of colleagues.  Mr Richards was asked if the Complainant was asked to apologise and Mr Richards confirmed that he told the Complainant that there were two ways to deal with this issue, the easy way which was by way of apology or the hard way which would involve a formal investigation.

It was put to Mr Richards that the Complainant never admitted saying the comment about the weight of a colleague.  Mr Richards said that he did and Ms Greene who was also at the meeting would confirm this.

The Complainant submitted a complaint to the Workplace Relations Commission on 17/07/2024 that he was discriminated against by the Respondent  on the ground of race and access to training.   He believes that he was dismissed by the Respondent.  The Respondent denies that it discriminated against the Complainant and that their records show that he took part in a significant amount of training during the almost six months of his employment with the Respondent.  The Respondent  refutes the Complainant’s assertion that he was dismissed and notes that this is the subject of a separate complaint.

The Respondent submits that the complaint is not well founded as no discrimination took place and that it had complied with its obligations under the Employment Equality Acts.

In evaluating the evidence before me, I must first consider whether the Complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has consistently held that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.

Section 6 of the Employment Equality Act states:

“6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) 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) (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) 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.]

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

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “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 (in this Act referred to as “the religion ground”),

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

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”)”.

This complaint is made pursuant to the Employment Equality Acts on the basis that the Complainant was discriminated by the Respondent because of his race and that he was further discriminated against in relation to his access to training. 

The onus of proof is on the Complainant to first establish a prima facie case of discrimination of, in this case, race and access to training, before the burden shifts to the Respondent to set out its defence. The principles were set out by the Labour Court in Southern Health Board v Mitchell (2001) DEE 011:

“(2) A claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

(3) Only if these primary facts are established to the satisfaction of the Court, and they are regarded as being of sufficient significance to raise a presumption of discrimination, does the onus shift to the Respondent to prove that there was no infringement of the principle of equal treatment Wallace v. South-Eastern Education and Library Board[1980] NI 38; [1980] IRLR 193 followed”.

Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 at para 2-207 commenting on Mitchell:

“This test requires that facts relied upon by a Complainant must be proved by them to the satisfaction of the Tribunal or Court at the level of balance of probabilities and if proven, must be of sufficient significance as to raise an inference of discrimination. In the case before it, the Labour Court found, on the facts of the case, that the Complainant could not demonstrate superior qualifications and experience than the successful appointee and that she therefore failed to discharge the burden of proof that rested on her”.

Section 85A of the Acts states that where facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary. 

I find that the Complainant has not made out a prima facie case that the Respondent discriminated against him on the  ground of race and access to training within the meaning of Section 16 of the Acts. 

Having considered the submissions of both parties and the evidence put forward at the hearing of this complaint on 19/11/2024, I find that the Complainant has not raised a prima facie (upon initial examination) case of discrimination on the grounds of race or access to training contrary to the Employment Equality Acts, 1998 – 2015.

I find that the Complainant  has not succeeded in discharging the burden of proof required to establish that he was discriminated against by the Respondent on the race ground and/or access to training and therefore I find that the Respondent did not discriminate against  the Complainant on the ground of race and/or access to training.

Discrimination.  Race. Access to training.