Complainant

Respondent

Parties

Dean  Sherlock

Spar Christchurch

Representatives

  Self-represented

 Mr Peter Walshe, HR Consultant

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-00054919-001

07/02/2023

The complainant contends that the respondent discriminated against him, harassed and victimized him on family status grounds, contrary to the provisions of the Employment Equality Acts,1998-2015, during the period December 2022- January 2023.

He was employed as a manager in the respondent’s food store from 4/8/2022 to 2/2/2023.

 His gross weekly wage was €682.

He submitted his complaint to the WRC on 7/2/2023.

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The complainant submits that the respondent discriminated against him on family status grounds on dates between the 1 and 19 January 2023 when he denied him family friendly work arrangements, that he harassed him in shouting at him and making baseless accusations against him and that he victimised the complainant.

He was appointed store manager in August 2022, tasked with turning the store around and increasing profit margins. This he did by increasing profits from 29% to 35 %. The deli was doing well. His relationships with staff and customers were good. There was no shoplifting. The manager gave him a bonus before Christmas

 Sales dropped in early November

The complainant got food poisoning over Christmas, yet the respondent asked him to come into the shop in early January.

When he returned on 3 January, the owner / manager told him that there was money missing to the tune of €250 from the safe.

The following Monday, the 9 January, the respondent manager rang him and told him not to touch any cash in the safe. He told the complainant that he would process wages for staff out of cash that was stored in the safe.

The manager began to come the shop more frequently.

The complainant continued to order stock for the shop but on 5/1/23 the manager told him to stop doing orders for the shop.

On 6/1/23 the respondent told him not to do the weekly roster for staff, that he himself would do it. He was told to work with another supervisor. The supervisor was assigned to cash up the tills.

The complainant refused to work an evening shift for family reasons

On 12/1/ 23 he asked the manager for his wages. His contract specified that he would be paid each Thursday. The respondent delayed the payment of his wages by two weeks.

On 19/1/23, the complainant was discussing an order with a sales rep when the respondent manager screamed at him within earshot of customers and staff alike that he would do the orders in future.

He noticed that the cameras in the shop were turned now on tills. The complainant alone was on the tills from 7am -12md.

The manager checked as to whether he had paid for a drink in the shop.

He did not want the complainant to give leave to the staff.

The respondent’s treatment left him with no option but to resign which he did on 19/2/23. He did not advise the respondent that he was leaving.

The respondent denies that they discriminated against the complainant on any of the grounds cited in the Acts. Neither did they harass or victimise the complainant.

Evidence of respondent owner /manager given under affirmation.

There was no question of any discrimination against the complainant.

The witness discovered in early January that there was sum of €250 missing from the safe. What was registered at the tills, reported as lodged by the complainant in the safe, was €250 short. It was the complainant who lodged the cash in the safe.

On 3 January the witness went to the shop and asked the complainant for an explanation as to the discrepancy of €250. He asked him to check the tills. The complainant could not explain the discrepancy between what was reported to have been lodged and the actual amount in the safe. Cash was collected twice weekly

The witness denies that he screamed at the complainant on 19/1/23. Rather he asked the complainant to help out with new members of staff.

Regarding the missing money, the complainant was the only person who recorded the takings at the till, placed them in a sealed bag and took them to the safe. The same amount of money collected in the store, sealed by the complaint must tally with the lodgement. Only the complainant had access to the cash.

He did not initiate any disciplinary procedure, merely asked questions.

He submits that the above incidents do not amount to discrimination of any type and that complainant’s complaint of discrimination is baseless and misconceived.

I am required to establish if the complainant was discriminated against or harassed or victimised on grounds of family status contrary to section 6 (2)(c) of the Acts.

Relevant law.

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur 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)”.

Section (2) provides

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

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

Burden of Proof.

Section 85A of the Employment Equality Acts 1998-2015 lays the onus of proof with the complainant to establish a prima facie case of discriminatory treatment contrary to the Acts. Section 85A of the Acts provides that facts must

“established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him/her”

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201 the Labour Court concluded that

 “a complainant 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 was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed.”

What a prima facie case means for the complainant is best exemplified in Minaguchi v Mr. Ray Byrne, T/A Wineport Lakeshore Restaurant DEC-E/2002/20 which requires him to satisfy three elements of a test laid out in that case and in other decisions. They are:

- That s/he is covered by the relevant discriminatory ground(s);

- That s/he has been subjected to specific treatments; and

- That this treatment is less favourable than the way someone who is not covered by the relevant    discriminatory ground is, has been or would be treated.

Application of the laws to the circumstances of the instant complaint.

Is the complainant covered by the relevant discriminatory ground?

The complainant was unable to identify a comparator, possessing a different family status to his own and doing the same or similar work, who was treated more favourably than him, whose responsibilities were not diminished, who was permitted to opt out of the requirement to work an evening shift, and who was spared the scrutiny and questioning applied to him in circumstances where money was missing.

The complainant has been unable to demonstrate that he comes within any of the protected grounds cited, which is a sine qua non for the establishment of a prima facie case and the consequential obligation which flows to the respondent to rebut the inference of discrimination.

I do not find that that the complainant has established facts from which discrimination based on family status grounds can be inferred. Therefore, his complaint cannot succeed.

A complaint of harassment on grounds of family status.

Relevant Law.

Section 14A (7) provides

“In this section— (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds,

and (ii) n/a .

I have found that the complainant has failed to establish that he is covered by the family status grounds contained in section 6 (2)(c) of the Acts.

I do not find that the complainant was harassed contrary to section14A (7) of the Acts.

A complaint of victimisation

Section 74(2) of the Act of 1998, as amended, provides:

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

 (e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

 (g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

The evidence indicates that the complainant took none of the steps as set out above.

That being the case, it is unnecessary to consider if adverse treatment of the complainant occurred as it can only arise if preceded by the complainant activating any of the above steps.

I do not find that the complainant was victimised.

I do not find that the complainant was discriminated against contrary to section 8(1) and in terms of section 6(2)(C) of the Acts.

I find that the entire complaint is misconceived.

I decide that the complainant has failed to raise an inference of discrimination and his complaint OF discrimination cannot succeed.

I decide that the complaint was not harassed or victimised contrary to sections 14A(7) or 74(2)of the Acts.

I decide that the entire complaint is misconceived

Failure to raise an inference  of discrimination.