Complainant

Respondent

Parties

Timi  Olan

Tesco Ireland Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Ade Olanrewaju – African Community Ireland

Michael Kinsley BL instructed by Aideen Smyth Tesco Ireland Legal Department

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00050500-001

07/05/2022

The Complainant is of African heritage and  alleges that he was subjected to racial discrimination at the Respondent's store on October 25, 2021, contrary  to  the Equal Status Acts-2015 2000 (ESA). The complaint  centres on an incident  at the Customers Service Desk at the Respondent retail outlet at Wilton, Cork where the Complainant alleges that he was refused service at the desk because of his race and that the Respondent’s staff member instead served a white person rather than him.  

The Respondent case is that the staff member in question  asked the Complainant  to use the self-service checkout. The Respondent submits that this  request was made because the Complainant had approached the customer service checkout, which is designated for customers purchasing lottery tickets, cigarettes, or seeking refunds. The Respondent asserts that since the Complainant did not appear to be buying any of these restricted items, he was directed to the self-service checkout. The Respondent argues that this  request was based solely on this policy and not on the Complainant's race.

PRELIMINARY ISSUES:

The Respondent submits two preliminary issues, without prejudice to its position that the complaint  is not well founded:

Complaint out of time:

The Complainant claims that he was discriminated against in an incident on the Respondent’s premises on 25 October 2021. The Respondent submits that the  Complainant lodged his WRC claim on 7 May 2022, which is outside  the 6-month time period permitted under the Equal Status Act 2000. The Respondent asserts it is for the Complainant to demonstrate that there is “reasonable cause” for the WRC to extend the period within which a complaint can be brought from 6 months to 12 months. The Respondent submits  that the  WRC has written to the Complainant  seeking the grounds upon which he claims that there is reasonable cause for such an extension. To the Respondent’s knowledge, no such grounds have been identified. Furthermore, the Respondent argues that the Complainant claims an ES1 was submitted  in the days after the incident and that this was completed with the assistance of the organisation which represents the Complainant  in these proceedings. Therefore, the Respondent asserts,  there does not appear to be any reasonable cause for the Complainant’s failure  to lodge a claim within the period permitted under the ESA.

The Respondent cites Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30(which concerned proceedings pursuant to Order 84, Rule 21 of rules of Superior Courts 1986) the High Court analysed the question of “good reasons” stating:

“The phrase “good reasons “is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time, I think it clear that the test must be an objective one and the Court should not extend the time merely because the aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (what the plaintiff has to show … is that there are reasons which both explain the delay and afford a justifiable excuse for the delay”

The Complainant further cites  Minister for Finance v CPSU and Ors [2007] 18 ELR 36where the Labour Court endorsed the approach taken in Cementation Skanska v Carroll WTC 0338 stating:

“Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Hence the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

The Respondent submits that as  the Complainant has not identified a reasonable cause for the extension of the statutory period, the WRC lacks jurisdiction to consider the claim.

ES1 Form – Notification:  

The Respondent submits that the Complainant did not notify the Respondent in the manner and within the time limit as prescribed in the ESA.

Section 21(2) of the ESA provides:

“(2) Before seeking redress under this section the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act, …”

The Respondent asserts that the Complainant  claims to have sent an ES1 form to the Respondent in the days after the incident in October 2021. The Respondent has no record of receiving an ES1 form from the Complainant  in October 2021. The Respondent received a letter from African Community Ireland (ACI) dated 4 January 2022. In this letter, the ACI claim that they have contacted the Respondent by phone and that the Respondent had “refused to return the ES2 forms”. However, the Respondent does not have a record of having received an ES1 form from the Complainant before this date. In a  letter of 4 January 2022, the ACI attached a photograph copy of an ES1 form which is dated 29 October 2021. The Respondent has no record of receiving this ES1 form prior to 4 January 2022. By letter dated 26 July 2022 the WRC wrote to the Respondent indicating that it had written to the Complainant outlining that it appeared, from the documents submitted, that no notification had been sent. By email dated 10 October 2023, more than one year later,  the Complainant’s representative forwarded a copy of an ES1 form to the WRC in response to its request. The Respondent wishes it to be noted that  this form is dated 28 October 2021 and contains slightly different information to the copy form previously sent to the Respondent by letter of 4 January 2022.

Mr Dermot Hever, Store Manager for the Respondent, gave evidence under affirmation  that he received  an  ES 1 from the Complainant’s representative on 22 January 2022. He said that prior to that date,  he had no sight of any other ES1 form.

The Respondent argues that the Complainant’s representative  has submitted 2 different ES1 forms, on two separate occasions, appearing to claim that each of these forms was sent within the time limit set out in Section 21(2) of the ESA. The Respondent submits that  the Complainant’s evidence in this regard is contradictory and asserts that the Claimant has failed to comply with the notification requirements under Section 21 ESA and therefore the WRC lacks the jurisdiction to further hear the claim.

PRELIMINARY ISSUES:

The witness said that the reasonable cause for not sending in the complaint within the original 6-month period was because the Respondent had not produced CCTV footage, which was crucial to the case, within that period.

I requested Mr Ade Olanrewaju, the Complainant’s representative to go into evidence because he accepted that he would have been the person who had responsibility for the submission of the complaint to the WRC and also had control of the processing of the ES1 form for notification purposes. The witness gave evidence under oath. The witness said that he went to the Respondent’s store on 29 October and handed the ES1 to an employee who had no name tag but would not sign for the form. He said he requested that the employee call a manager. A man called John appeared who took the form. The witness accepted when pressed in further questioning that he did not have a copy of the form and that the second purported copy of the original sent to the Respondent in January 2022 was a separate form which was filled out by  him separately. He accepted that there was a different narrative and different signing dates in October 2021; one was signed and  dated 28 October whilst another was signed and dated 29 October. (These documents were exhibited).

SUBSTANTIVE ISSUE;

The Complainant gave evidence under oath. The Complainant is of African heritage. He said he approached the Customer Service Desk on the day in question with a can of Red Bull in his hand, which he wished to purchase, and he also wanted to buy a Lotto ticket. He was accompanied by his friend, Mr David Ion.  The staff member at the desk told him that she couldn’t serve him, but instead served a white, older gentleman who was carrying a newspaper in the queue behind him. He was taken aback because he felt it was a racial issue. He called a manager who promised to call him back after viewing CCTV. She called him back after viewing the footage and he felt she knew that he had discriminated against. He said he was told by that manager that the white gentleman was served because the staff member knew him. He later described that he was offered  a €100 gift voucher by a senior manager which he refused.

In cross-examination he accepted that his Lotto slip was in his pocket. It was put to the witness that  the evidence of the Respondent would be that he had not queued up but came from the side with his friend and that he had gestured with the can as distinct from having a verbal interaction. The witness refuted this. The witness accepted that the white person who was served  was frail in stature and had a walking stick. The witness did not recall a group of teenage white girls, who carried sandwiches and drinks, being directed to the self-service area also.

Mr David Ion, the friend who accompanied the Complainant on the day, said he wished to purchase cigarettes and he persuaded the Complainant to come with him into the store. He said that the staff member said that they would not be served. He described himself as a sales executive and felt that  they were treated badly on the day with customer care sadly lacking.

The Respondent operates a number of checkouts at the relevant store, including full-service checkouts as well as self-service checkouts. The Respondent also has a customer service checkout which serves customers who are purchasing lottery tickets or other restricted items such as tobacco, or customers obtaining refunds. The  Respondent submits that its  policy generally is  to confine the use of the customer service checkouts to transactions of this nature.

Ms Geraldine McCarthy who dealt with the Complainant at the Customer Service Desk gave evidence under oath.  The witness testified that she was in the process of organising a refund for a customer when she noticed the Complainant coming in from the side towards her desk, apparently intending to purchase drinks. The Complainant waved his drink. Since these items are not typically processed at the customer service checkout, Ms. McCarthy directed the Claimant to use the self-service checkouts. She said that neither the Complainant nor his friend mentioned lotto tickets or cigarettes. The witness said that she sent a group of young Irish white girls  who were behind the Complainant, and carrying sandwiches and drinks, to the self-service area also. She knew the older white gentleman in the queue, who had a walking stick and a newspaper. She served him because he was regular shopper whom she knew to be frail. It was at her desk  where customers with physical disabilities are accommodated. In cross-examination she said she did not see the relevant CCTV footage. In further questioning she testified that she tended to the needs of all nationalities and colour every day and makes no distinction.

Ms Marjorie O’Donovan, the line -manager on duty at the Respondent store, gave evidence under affirmation. The Complainant  lodged a complaint about his treatment with her. Upon reviewing the CCTV footage, she observed that Ms McCarthy  had asked the Complainant , as well as other young white customers , to use the self-service checkouts. The witness then informed the Complainant  about the procedure for obtaining the CCTV footage from the Respondent if he wished to do so. On the issue of the white gentleman who was served, she noticed that he walked two steps at a time with the help of a walking stick  and seemed very frail. The witness testified that there was no “John” who was employed by the Respondent at the material time. In cross-examination she said she saw what appeared to be  a verbal interaction between the Complainant and Ms McCarthy.

Mr Hever, the General Manger gave evidence that there was construction work on at the time of the incident, which continued until after Christmas, and whilst the CCTV footage  was viewable in the immediate aftermath, it had been  erased. He said the  delay in the Respondent's notification resulted in the footage no longer being available to the Respondent. Despite efforts to retrieve this footage from the company that carried out the works, the Respondent was unsuccessful. The witness exhibited an email from the outside contractor who installed and maintained the system, as verification of a crashed hard drive in the system itself. The witness  testified that he viewed the footage himself and had no detailed recall of what transpired.

LEGAL SUBMISSION

The Respondent cited Section 38A(1) of the ESA which  provides:-

“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.

The Respondent submits  it is for  the Complainant  to “establish” facts from which it can be presumed that prohibited conduct occurred. The Respondent submits that Complainant bears the burden of establishing the facts which he claims were the basis of the prohibited conduct. The Respondent contends that the Complainant has not provided the WRC with evidence which establishes that he was discriminated against on the grounds of race.

The Respondent refers to  Dyfen Publications Limited v. Diana Spasic (ADE 08/7) where  the Labour Court (adopting the approach of the UK Court in Madrassy v. Nomura International plc [2007] IRLR 246 stated that “…the Court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent”.

The Respondent further cites  Smith v. Office of the Ombudsman & Ors. [2020] IEHC 51 where  the High Court, per Simons J. discussed the provisions of Section 38A and the burden of proof which arises from the section, when he stated :-

“Section 38A gives effect to article 8 of the Racial Equality Directive (Directive 2000/43/EC). The complainant must establish a prima facie case of discrimination, i.e., the complainant must establish facts from which it may be presumed that there has been direct or indirect discrimination. The effect of these legislative provisions is that a complainant is required to discharge a reduced burden of proof, and once this is done, the burden of proof is reversed. As explained by Advocate General Mengozzi in Case C-415/10, Meister ECLI:EU:C:2012:8, [22], the effect of the burden of proof provisions under the Racial Equality Directive (and other related Directives) is that a measure of balance is maintained between the parties, enabling the complainant to claim his or her right to equal treatment but preventing proceedings from being brought against a respondent solely on the basis of the complainant’s assertions.

 Where it is alleged that discrimination has occurred on the ground of race, it is necessary to establish a prima facie case that the complainant has been treated less favourably than another person is, has been or would be treated in a comparable situation, on the ground that the complainant is of a different race, colour, nationality or ethnic or national origin.”

The Respondent argues  the Complainant’s evidence at its best shows that  the Complainant  was not refused service but was instead  asked to move to an alternative checkout. This is in line with the Respondent’s policy, as the Complainant did not appear to be purchasing relevant items and was instead purchasing drinks which could be paid for at the self-service checkout. The Respondent submits this is a policy applied generally in the Respondent’s store and is in not connected with the Complainant’s race. The Respondent concludes that the Complainant was simply asked to avail of another checkout to obtain his goods and was not refused service by the Respondent.

PRELIMINARY ISSUE ON JURISDICTION:

The Respondent raised a jurisdiction issue on two counts: (1) That the complaint was not submitted within the six-month period under Section 21(6) of the ESA and, and furthermore that the Complainant did not make a legitimate  application for reasonable cause to extend the period to 12 months and (2) that the Complainant did not fulfil the obligation of notification contained within 21(2) of the ESA. I will firstly deal with the out of time objection.

Complaint Out of Time:

Section 21(6) of the ESA provides:

“(a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.”

The applicable test in relation to establishing if reasonable cause has been shown for the purposes of granting an extension of time is that formulated by the Labour Court in the case of Cementation Skanska v Carroll, (DWT 38/2003) as follows; 

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

The Complainant’s representative gave evidence on behalf of the Complainant that the reason for the delay in submitting the complaint was the Respondent’s failure to produce CCTV footage within the six-month period. The incident in question occurred on 25 October 2021, and the complaint was submitted to the WRC on 7 May 2022. I am satisfied that the Complainant’s representative is an experienced advocate who acknowledged in evidence that he was acquainted with the requirement to submit a claim to the WRC within six months of the date of the alleged discrimination incident. The Complainant’s argument that the non-production of CCTV footage within that period restricted him from submitting the complaint on time does not constitute “reasonable cause.” The  evidence in this case showed  that the Complainant was aware that a cause of action had arisen immediately after the events of 25 October 2021. Therefore, I am satisfied that he possessed the necessary factors to pursue his case. Moreover, the non-disclosure of specific pre-hearing evidence by a respondent  a complainant may be unsatisfactory, but it cannot justify extending the time period as envisaged by the Labour Court in Cementation Skanska. I therefore decide that the Complainant has failed to establish a reasonable basis for the delay in issuing proceedings and find that I can go no further in this case as I deem it  out of time.

For the reasons outlined above, I find that the Complainant did not submit his complaint within the six-month period required under section 21(6)(a) of the ESA, nor did he establish a reasonable cause for extending that period under section 21(6)(b) of the ESA. I, therefore, find that I do not have jurisdiction to investigate the complaint as it is out of time.

Equal Status Acts 2000-2015. Race Grounds. Out of Time.