Complainant

Respondent

Parties

Isabela  Sfetcu

Dunnes Stores  

Representatives

Marius Marosan

Elaine Kelly, Byrne Wallace LLP, instructing Owen Keany BL.

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-00058065-002

03/08/2023

On 2 December 2022, the Complainant commenced work as a packer for the Respondent. The Complainant earned €13.34 gross per hour, working approximately 25 to 27 hours per week. Following a physical altercation with a colleague in early April 2023, the Complainant was dismissed on 20 April 2023. The Complainant submitted her Complaint Form to the WRC on 3 August 2023. She alleged that her Line Manager “always acted racist towards [her] for being a Romanian gypsy, ignored [her] grievances and allowed for [her colleague to treat [her] with superiority.” The Complainant submitted that she was discriminated against in relation to “Other” on the ground of race in violation of the Employment Equality Acts 1998 – 2015, as amended. The Respondent refutes the complaint in its entirety.

The Complainant made written and oral submissions.

The Complainant submitted in her Complaint Form and throughout the Hearing that her race is “Romanian gypsy”. The Complainant submitted, inter alia, that her Line Manager was racist towards her; treated her differently on account of her race; ignored her grievances; and allowed her colleagues to treat her with “superiority”. The Complainant submitted that the treatment was demeaning, humiliating and embarrassing. The Complaint submitted that she is seeking compensation.

The Complainant submitted that she started working as night packer for the Respondent in December 2022, initially on a temporary contract. When this contract ended, she received another contract. Around this time, she discovered that she was pregnant and she submitted that she informed the Respondent that she had a high-risk pregnancy. The Complainant submitted that she did not know if other Romanians worked for the Respondent. She submitted that she enjoyed her job and in order to keep working there, she “put up” with a lot of things:

·            The Complainant submitted that her Line Manager tasked her with lifting heavy products. She submitted that when she objected, he told her that there were there were other night packers who were also pregnant.

·            The Complainant submitted that her Line Manager did not always bring the pallets down for her from upstairs and that she would often have to pull the pallets herself over an uneven floor. The Complainant submitted that she spoke to her Line Manager about this many times.

·            The Complainant submitted that her Line Manager “treated [her] differently to all [her] colleagues”. She submitted that he “made [her] feel different to everyone else”.

·            The Complainant submitted that the Line Manager enquired after the nationality of her partner. She submitted that he told her that he would not allow his pregnant partner or girlfriend to work. She submitted that she told her Line Manager that she needed the money. She further submitted that after this incident, he “gave [her] weird looks”.

·            She submitted that the Line Manager often pushed the products which she was stacking, to one side. She submitted that he did not do this to others.

·            The Complainant submitted that when she “was attacked” at the workplace, she was the person who informed the office about what had happened.

·            The Complainant submitted that there was one incident when a manager told her to move heavy boxes, while another manager told her to move the boxes one-by-one. The Complainant submitted that she received different instructions from different managers and it was confusing for her.

·            The Complainant submitted that her colleagues would talk between themselves, “wondering if she was a gypsy”. The Complainant submitted that she believed that this speculation originated with her Line Manager.

·            The Complainant outlined that when she tried to talk to HR, they would not let her speak about her Line Manager.

Complainant – Cross-Examination:

Under cross-examination, the Complainant accepted that she was on a permanent contract with a six-month probation period. The Complainant also accepted that she was familiar with the Respondent’s employee handbook – she had read it and she had completed a quiz on its content. The Complainant accepted that she was familiar with the Respondent’s “Policy on Dignity and Respect in the Workplace” which is outlined in the same employee handbook. The Complainant accepted that if she was bullied, there was a procedure to follow. She accepted that she knew that she could go to a manager or to HR. The Complainant submitted that instead of making a complaint, she “just put up with it”.

The Complainant submitted that she was subjected to racist treatment for three months. She submitted that she asked for a meeting with the HR Manager in April 2023 to discuss her concerns. The Complainant submitted that during that meeting, she told the HR Manager that she had been attacked and about “everything that happened with [her Line Manager]”.

The Complainant then confirmed that she was referring to the Investigation Meeting which took place on 6 April 2023 following her involvement in a physical altercation with another employee, which ultimately led to her dismissal. She accepted that the Investigation Meetings on 8 and 17 April 2023, at which she viewed CCTV footage and at which there was a note-taker, were arranged by the Respondent. The Complainant accepted that she refused to be accompanied by a support person or an interpreter to the meetings. She also accepted that she signed the notes concerning the Investigation Meeting which took place on 8 April 2023 and that she also confirmed their accuracy during the Investigation Meeting on 17 April 2023. The Complainant accepted that there was no reference to her Line Manager’s alleged racist treatment of her in the same notes. The Complainant then submitted that she “didn’t fully agree with the notes”. The Complainant then submitted that when she tried to talk about her Line Manager, “they wouldn’t let [her]”. She then submitted that the Respondent had engaged in a cover up.

The Complainant accepted that the first time she raised her discrimination complaint was in her WRC Complaint Form, submitted on 3 August 2023. The Complainant submitted that the only people that she spoke to were: her partner; her partner’s mother; and her partner’s sister, who works for the Respondent.

The Complainant accepted that her partner’s sister, who is Romanian, works for the same Line Manager. The Complainant said that she had not said this previously as she “didn’t want to bring her into this”. The Complainant denied all knowledge of her partner’s sister giving the Line Manager a gift voucher for her mother’s business, as he had treated the Complainant and her partner’s sister so well.

The Complainant was referred to the Respondent’s “Oracle” notes of her conversations with HR in February and April 2023, during which she twice refused the transfer offer to work on a check out and stated that she did not do any heavy lifting. The “Oracle” notes also did not refer to the Complainant raising concerns about her Line Manager. The Complainant submitted that she did not mention anything about her Line Manager as she “thought that things would change”.

The Complainant accepted that if she does not tell her employer about a problem that she has, the employer cannot fix it. She stated that her Line Manager “made her feel that [she] was treated differently as she is a Romanian Gypsy”.

The Complainant accepted that she had a physical altercation with another employee on 6 April 2023. The Complainant submitted that she did not know how it happened and that she did not intend to do so, but she managed to hit her colleague on the head with a pack of kitchen roll. The Complainant submitted that she was singled out and that she was the only person dismissed following the incident. When the Complainant was informed that the other employee, of Irish nationality, had also been dismissed, the Complainant said that it was a fair outcome.

The Respondent provided detailed written and oral submissions.

The Respondent submitted that the Complainant has failed to present any facts or evidence whatsoever in support of her contention that any of the alleged treatment, which is denied, was discriminatory in nature. The Respondent submitted that the Complainant’s complaint is based entirely on speculation and unsupported assertions and that a prima facie case has not been established.

The Respondent submitted that the Complainant’s Line Manager did not know that she was a “Romanian gypsy” and that she was not singled out for more difficult work while she was pregnant. The Respondent submitted that the Complainant was accommodated as far as possible with lighter duties and was also offered the option to transfer to a check out, which she rejected.

The Respondent further submitted that despite numerous opportunities, the Complainant failed to raise any concerns whatsoever over the course of her employment. The Respondent further outlined that the Complainant first outlined her complaint in her WRC Complaint Form and in her evidence at the Hearing. The Respondent submitted that this goes to the Complainant’s credibility.

The Respondent denies and contests the complaint in its entirety.

Ms. Eimear Conifrey – Evidence:

Ms. Conifrey outlined that she is the HR Manager for the Respondent in Blanchardstown, Dublin.

She outlined that the Respondent has a “Policy on Dignity and Respect in the Workplace”. She outlined that if employees have concerns, they can come to her or to any departmental manager. She outlined that there is an informal procedure and a formal procedure.

Ms. Conifrey outlined that prior to receiving the WRC Complaint Form in this matter, she had no knowledge of any of the Complainant’s issues whatsoever. She outlined that she first met with the Complainant in February 2023, when she was told that the Complainant’s pregnancy was high-risk. She kept a contemporaneous note of all of her meetings with the Complainant, as she does for all employees, on the Respondent’s “Oracle” database.

Ms. Conifrey outlined that at their meeting on 22 February 2023, the Complainant stated that she was working only on lighter stock lanes. Ms. Conifrey outlined that she told the Complainant that she could switch to working a check out during the day if she wanted. She also told the Complainant to come to her if she had any issues.

Ms. Conifrey outlined that at their next meeting on 6 April 2023, she again told the Complainant that she could switch to working on a check out during the day if she wanted. She also told the Complainant again to come to her if she had any issues. Ms. Conifrey stated that the Complainant told her that she was only packing light items. Ms. Conifrey outlined that she did not understand why the Complainant was now saying exactly the opposite in her evidence.

Ms. Conifrey outlined that she was 100% certain that her contemporaneous “Oracle” notes accurately reflected the meetings.

Ms. Conifrey outlined that the Investigation Meeting on 8 April 2023 took place to investigate the physical altercation incident between the Complainant and another employee which occurred on 6 April 2023. Ms. Conifrey was clear that it was HR who instigated the meeting and not the Complainant.

Ms. Conifrey outlined that the Complainant did not attempt to raise concerns of discrimination or bad treatment regarding her Line Manager as alleged. Ms. Conifrey outlined that her understanding was that the Complainant was unhappy that her Line Manager did not investigate the physical altercation incident on the night that it happened.

Ms. Conifrey outlined that the Respondent has a multinational workforce and that employees are not employed on basis of their race, but on the basis of their ability.

Under cross-examination, Ms. Conifrey confirmed that the Irish employee involved in the physical altercation on 6 April 2023 was dismissed later than the Complainant as she was on holiday and a disciplinary meeting could not take place in her absence.

Mr. Seán Campbell – Evidence:

Mr. Campbell outlined that he is a Night Pack Manager for the Respondent in Blanchardstown, Dublin. He outlined that he has worked for the Respondent for 27 years.

Mr. Campbell outlined that the majority of his colleagues are non-nationals and that most are from Eastern Europe. He outlined that he would not know where his colleagues are from, unless it comes up in conversation. He further outlined that he did not know that the Complainant was a “Romanian Gypsy” until he saw her WRC Complaint Form.  He outlined that all employees are treated the same, regardless of nationality.

Mr. Campbell outlined that he had a good relationship with the Complainant. He outlined that he never had a conversation with the Complainant regarding her partner’s nationality, as alleged. He outlined that he never pushed the Complainant’s products aside, as alleged. He further outlined that the Complainant’s partner’s sister gave him a gift voucher for her mother’s business, as he had treated her and the Complainant so well on “Night Pack”.

Mr. Campbell outlined that he was “absolutely gobsmacked” by the allegations. He outlined that they were really unpleasant and there was “no truth in them”.

Mr. Campbell outlined that no issues were ever raised with him. He outlined that at the end of January 2023, when the Complainant told him that she was pregnant, she was allocated lighter products to work on and that stock was made available on the trolley for her. He outlined that she mostly worked on cosmetics and that if she needed anything, he would get it for her. He outlined that they “bent over backwards to make sure that everything was ok for her”. He outlined that there was no animosity whatsoever.

Mr. Campbell outlined that he could not investigate the physical altercation incident on the night it happened as he required access to CCTV footage.

Under cross-examination, Mr. Campbell stated that he never saw the Complainant’s passport as he does not hire employees.

Mr. Arnold Anis –  Evidence:

Mr. Anis outlined that he is a Night Pack Manager for the Respondent in Blanchardstown, Dublin. He outlined that he has worked for the Respondent since 2005.

Mr. Anis outlined that when the Night Pack Managers are informed that an employee is pregnant, the employee is allocated lighter duties and stock is ready on the floor for them. He further outlined that they tell the employees to speak to them if they have any difficulties and/or if they want to move to days.

Mr. Anis outlined that he had heard from another manager that the Complainant was pregnant. He outlined that she was allocated very light products such as kitchen rolls, toilet rolls and cosmetics.

Mr. Anis outlined that in his experience, the Complainant’s Line Manager has never been racist to anyone.

Under cross-examination, Mr. Anis outlined that as soon as they found out that the Complainant was pregnant, he, her Line Manager and another manager met and discussed lighter duties for the Complainant. He said that they always do this when an employee is pregnant.

The Law:

Discrimination:

Section 85A of the Employment Equality Act 1998-2015, as amended (the “EEA”), provides:

“(1) where in any proceedings 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”.

Therefore, the burden of proof is on the Complainant to show that she was treated less favourably on account of her race.

In Southern Health Board v Mitchell (2001) E.L.R. 201, the Labour Court held:

“The first requirement … is that the claimant must “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that 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. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In Melbury Developments Ltd. v. Valpeters [2010] 21 ELR 64, the Labour Court held that:

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

Findings and Conclusion:

The Complainant alleged that she was discriminated against on the basis of her race. The Complainant alleged that this discrimination took the form of, inter alia, a failure to accommodate her pregnancy; her Line Manager’s treatment of her; and her Line Manager allowing her colleagues to treat her with “superiority”.

Allegations regarding her Duties while Pregnant:

The Complainant submitted that her pregnancy was not accommodated and therefore she was discriminated against on the ground of race. However, there was no evidence in support of this allegation whatsoever. By contrast, the evidence of her Line Manager, the Night Pack Manager and the HR Manager was detailed and consistent regarding the fact that the Complainant was put on lighter duties. The contemporaneous “Oracle” notes taken by the HR Manager in February and April 2023 documented the Complainant’s: confirmation that she did not lift heavy boxes; confirmation that she worked on lighter stock lanes; and refusal of the offers to transfer to a check out.

In the circumstances, I find that the Complainant’s allegations regarding her duties while pregnant are not supported by the evidence.

Allegations regarding her Line Manager’s Comments and Actions:

The Complainant submitted that, inter alia, her Line Manager discussed her partner’s nationality with her; and that he pushed her products to the side on numerous occasions. The Line Manager denied that these events ever occurred. The Line Manager’s evidence was consistent. Moreover, I note that there was no evidence whatsoever to support the Complainant’s allegations. By contrast, I note that the Complainant’s credibility was at issue:

·            The Complainant failed to raise her concerns with the Respondent despite having the knowledge and opportunity to do so. The Complainant confirmed that she was on notice of the Respondent’s “Policy on Dignity and Respect in the Workplace” and the relevant complaints procedure. She had completed a quiz concerning the same. Moreover, the HR Manager proactively arranged meetings with the Complainant in February and April 2023, regarding her duties; her pregnancy; and to address any concerns. The Complainant failed to raise any concerns regarding her Line Manager at any stage. The Complainant’s discrimination complaint first came to the Respondent’s attention by way of her WRC Complaint Form and her oral evidence at the Hearing.

·            The Complainant alleged that she sought to complain about her Line Manager to HR and requested a meeting with HR in April 2023 to do so. However, it transpired from the evidence, that the Complainant was referring to the Investigation Meeting dated 8 April 2023. This meeting was instigated by the Respondent, following the Complainant’s involvement in a physical altercation in the workplace, for which the Complainant was ultimately dismissed.

·            Under cross-examination, the Complainant revised her evidence on a number of occasions – concluding, without any supporting evidence, that the Respondent had engaged in a cover-up.

In the circumstances, I prefer the Line Manager’s evidence that the events as alleged, did not occur.

Allegations regarding her Line Manager’s and Colleague’s Treatment of her:

The Complainant alleged that:

·                Her Line Manager “made [her] feel different to everyone else”;

·                Her Line Manager “gave [her] weird looks”;

·                Her Line Manager “made [her] feel that [she] was treated differently as she is a Romanian gypsy”; and

·                Her colleagues were “wondering if she was a gypsy”.

The Complainant provided no further evidence in support of these allegations. In the circumstances, I find that these allegations amount to mere speculation and assertions unsupported by evidence.

On the facts of this case, and in applying the test outlined above in Melbury Developments Ltd. v. Valpeters, I am satisfied that the Complainant has made only mere speculation or assertions unsupported by evidence. The Complainant has not established a prima face case that she was discriminated against on the ground of race. Therefore, I find that the Complainant was not discriminated against in any form, as alleged. I find that this complaint is not well founded.

For the reasons outlined above, I find that the Complainant has not established a prima facie case of discrimination on the ground of race. Therefore, I find that the Complainant was not discriminated against in any form, as alleged. I find that this complaint is not well founded.

Employment Equality Act 1998, Discrimination.