Complainant

Respondent

Parties

Jill  Wheeler

RD Heating & Plumbing

Representatives

Self-Represented

Mr D Kearney / Owner Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00048350-001

26/01/2022

Then issues in contention concerned the allegation from the Complainant that she was discriminated against on grounds of her Nationality by a Plumbing Company.

On the 11th of October 2021 the Complainant, (who represented herself and made an Oral testimony supported by a brief Written submission,) had a domestic household water leak. She contacted RD Heating & Plumbing (abbreviated hereafter as RDHP) and was given an appointment for 14:00 the following day. The Plumber did not keep the appointment and a series of phone calls/texts ensued. The Office Administrator of RDHP, Ms. SJ was particularly rude and dismissive. Eventually by the 27th of October the leak was repaired but a new water cylinder was required. Eventually a new cylinder was installed on the 29th of November 2021.  Throughout the process the Complainant felt that as a non-Irish National with a New Zealand accent, she was treated considerably less favourably that an Irish National would have been.

The Respondent Principal, Mr DK, attended the Hearing. He made an oral Testimony supported by some copy e mails.  He admitted that the Complainant had not had the best possible Customer Experience but pleaded in mitigation that the incident took place in the throes of the Covid pandemic.  The Company was very restricted in the efficient utilisation of manpower and vans. Customer delays were inevitable. The company had to “Triage” repair calls based on the seriousness of the problem. The Receptionist, Ms Sj, was facing a very difficult situation with numerous phone calls to field. She had experienced some personal family issues & stresses at the same time which had not helped her. She had subsequently left the company. The Principal, Mr DK, apologised profusely for any difficulties the Complainant had experienced. Her plumbing issues had eventually been resolved satisfactorily. There was absolutely no suggestion that she had been discriminated against in any way either in the Age, Gender or Nationality grounds.

He would make sure that the Company would learn from the incident as regards proper Customer Care.

3:1       The Legal Position – Grounds of Discrimination under the Equal Status Act, 2000

Section 3 of the Act defines Discrimination as

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,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

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

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

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

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

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

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

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

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

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

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

(j) that one—

(i) has in good faith applied for any determination or redress provided for in Part II or III,

(ii) has attended as a witness before the Authority, the adjudication officer or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),

and the other has not (the “victimisation ground”).

In plain English this is taken to mean that a Complaint has to qualify under one of the grounds identified in the Act such as for example Age, Religion, Disability, Race, Ethnic origin etc.

A Customer complaint against a Service Provider that cannot be traced to a Discriminatory Ground listed in Section 3 (2) above cannot form the basis of an Equal Status Complaint under the Act.

Section 38A – the Burden of Proof section is, in addition, worth noting Burden of proof.

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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the Respondent to prove the contrary.

Again, in plain English what this is generally accepted to mean is that the Person bringing the Complaint has to establish at the start of proceedings sufficient prima facie facts or sufficient inferences to establish that the case is wroth proceeding with. This is not to be taken that the Case has to be proven from the start only that there are sufficient inferences to justify the pursuit of the case. 

Notwithstanding the Legalities above all cases eventually rest on their own facts and circumstances and we must now look at the evidence presented bearing in mind the Legal requirements.

3:2        Consideration of the Evidence presented, both oral Testimony and Written Submissions.

The evidence presented, both written and Oral Testimony, pointed to a difficult situation that had arisen between a Plumbing Company and a client during the latter stages of the Covid pandemic.

The Office Administrator, Ms SJ, who it was alleged had made dismissive remarks etc was not present to give any evidence as he is no longer in the Respondent employment. On Adjudicator questioning, Mr DK replied that he was not sure how best to contact her. It was also very possible that she was unwell and under Medical care.

However, (bearing in mind “Hearsay” difficulties but conscious that all parties were under Oath), none of the reported conversations while undoubtably unpleasant to the Complainant appeared to have crossed the line, so to speak, into any of the stated grounds of Equal Status Act,2000 Discrimination. The New Zealand background of the Complainant (accent, voice tones etc) would have been impossible to guess at unless the listener was so informed by the Complainant.

3:3       Conclusions

There was no doubt from either side that the “Customer Experience” of the Complainant could have been better. The Complainant was well within her rights to have raised the issues with the Respondent Owner/Manager. She was a very competent witness who gave clear persuasive evidence of incidents that genuinely upset her. It appeared to the Adjudicator that the Complainant was also speaking on behalf of many mature citizens who may have experienced negative customer experiences especially during the Pandemic. She was an able Advocate.

In the Complainant’s favour he attended the Hearing and was sincerely apologetic. He was a very competent witness who also spoke persuasively. He was genuinely concerned regarding the incidents.

He had been trying to run a Plumbing Company in the midst of Covid restrictions on staff and transport. The Receptionist had her own “personal” issues over which he had no control. All told it was an experience that he would learn from and seek to put in place Company measures to absolutely avoid similar incidents in the future.

The view of the Adjudicator was that the entire series of incidents would, ironically, be a good experience for all concerned and would lead to better customer service in the future. This outcome is to the credit of both Parties and reflects their open approach to the Adjudication Hearing.

None the less, the formal Adjudication finding has to be that, strictly Legally, no Discrimination as set out in Section 3 of the Equal Status Act,2000, quoted above, took place.

Equal Status, Customer Care issues.