ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00047303

Parties:

	Complainant	Respondent
Parties	Akpowene Allison Odjegba	Musgrave Operating Partners Ireland Limited

	Complainant	Respondent
Anonymised Parties

Representatives

Niamh Daly, IBEC

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00057947-001	28/07/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00057947-002	28/07/2023

Date of Adjudication Hearing: 05/04/2024

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

Any complaint being made under the Employment Equality Acts concerning discrimination, victimisation, discriminatory dismissal, unequal remuneration etc. is brought before the Workplace Relations Commission following a referral by the Director General. In accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a complaint has already been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the complaint be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. In these circumstances and following a referral by the said Director General, of this matter to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose (and/or an Equality Officer so appointed). I confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing and in the course of the hearing (and which have been opened to me).

In general terms, an Adjudication Officer cannot entertain a complaint presented after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates. Section 77(5) of the Employment Equality Act states:-

“…a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

In limited circumstances, a complaint presented outside the relevant period may be entertained if the failure to present was due to reasonable cause. This will not exceed a twelve-month period.

The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in her Workplace Relations Complaint Form dated the 28th of July 2023) seeks redress from the Respondent in circumstances where he claims his Employer behaved unlawfully and discriminated against him in the course of his employment wherein he says that he was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of his Race (as detailed in Section 6 of the 1998 Act (as amended)).

The Operative Section is Section 6 of the Employment Equality Act 1998 where :-

Sub Section 6 (1) For the purpose of this Act…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) …...(the “discriminatory grounds”).

Section 6 (2) As between any 2 persons the discriminatory grounds .. are…

(h) That they are of a different race, colour, nationality or ethnic or national origins (..the ground of race”),

In the event that the Complainant’s claim is upheld, it is open to me to make an award of compensation for the effects of the acts of discrimination which have occurred and/or the victimisation experienced. It is also open to me to direct that a certain course of action be taken by an appropriate party which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act).

Section 85A of the Employment Equality Act, 1998 (as inserted) states:

(1) Where in any proceedings facts are established .. by… a complainant from which it may be presumed there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

This amounts to the Prima Facie obligation on the Complainant.

It is acknowledged that in the context of employment equality issues, a complainant may well have little or no direct evidence of discrimination. EU law recognises this and has adopted a burden of proof in all Equality Directives which recognises the difficulty of giving evidence of direct discrimination. Article 19(1) of the Recast Directive (Directive 2006/54) provides as follows –

“….when persons who considered themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.”

This has been transposed into Irish law by section 85A of the Employment Equality Act:

“in any proceedings facts are established .. by… a complainant from which it may be presumed there has been discrimination in relation to him/her, it is for the respondent to prove the contrary.”

This amounts to the Prima Facie obligation on the Complainant. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.

There is no exhaustive list of circumstances which are required in terms of discharging the initial burden - the Labour Court has consistently stated that “the type or range of facts which may be relied upon by a complainant can vary significantly from case to case. “.

The WRC and Labour Court approach to this issue and the test for applying section 85A (burden of proof) is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v Southern Health Board ([2001] ELR 201):

“the 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 where 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.”

The Labour Court has also consistently stated that:

“The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts” Kieran McCarthy v Cork City CouncilEDA082

Once the Prima Facie case is established, the Respondent must rebut the prima facie case. This will require cogent evidence on the part of the Respondent. The Adjudicator must determine if the explanation provided by the respondent is adequate to discharge the burden of proof that the protected characteristic was not a factor in the treatment complained of.

The Complainant has also, he says, been harassed in the workplace. Harassment is described in Section 14(A)(7)(i) of the Acts –

“.. any form of unwanted conduct related to any of the discriminatory grounds”

And which

“has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading humiliating or offensive environment for the person.”

This can include

“.. acts, requests, spoken words, gestures or the production, display or circulation of written words pictures or other materials.”

It is noted that in this case there is a reliance by the Complainant on Section 15 of the Act which sets out the Employer’s Liability at 15 (1) as; -

“Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purpose of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.”

In addition to the foregoing, the Complainant has brought a second complaint in accordance with Section 21 of the Equal Status Act 2000 (as amended), wherein an individual may seek redress in respect of any prohibited conduct that has been directed against him or her by referring a case to the Workplace Relations Commission.

Generally, discrimination under this Act – per Section 3 - is taken to have occurred where a person is treated less favourably than another person is (or would be) treated in a comparable situation and by reason of any of the discriminatory grounds (as specified). Broadly, the Equal Status Act prohibits discrimination in the context of buying and selling goods from and to the public (or a section thereof) and also in the context of using and providing services available to the public (or a section thereof). The service is not necessarily being provided for consideration. (See Section 5 of the ESA).

It is a condition precedent to bringing any such matter before the Workplace Relations Commission that the individual complainant shall have already notified the Respondent in writing (Form ES 1) of the nature of the allegation and the intention to seek such redress if not satisfied with the Respondent’s response. This Notice in writing shall be brought within two months of the said prohibited conduct or the last instance of same.

A Respondent may choose to reply with an explanation for the treatment by returning the attached ES 2 Form.

Pursuant to Section 25 of the Equal Status Act 2000 I have had the within matter referred to me (together with the complaint under the Employment Equality Act, 1998) by the Director General for the purpose of conducting an investigation into claims of discrimination and I have heard where appropriate interested parties and have considered any relevant documentation provided in advance of the hearing and in the course of the hearing. At the conclusion of any such investigation I am obliged to make a decision and, if I should find in favour of the Complainant, I shall provide for redress (s.25 (4)).

It is also noted that discrimination can occur where an apparently neutral provision would put such a person at a particular disadvantage compared with other persons unless the provision can be objectively justified by a legitimate aim. This is Indirect Discrimination and is covered in Section 3(1) (c).

In relation to the applicable burden of proof, Section 38A of the Act is applicable to all complaints of discrimination under the Equal Status Act 2000 and requires the Complainant to establish, in the first instance, facts from which a discrimination can be inferred. It is only when such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination.

Background:

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 28th of July 2023. As previously noted, there are two complaints. One brought under the Employment Equality Acts, 1998 tht other brought under the Equal Status Act 2000.

In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to direct that all parties giving oral evidence before me, to swear an oath or make an affirmation as may be appropriate. In the interests of progressing this matter, I confirm that I have in the circumstances administered the said Affirmation. It is noted that the giving of false statements or evidence is an offence.

I have taken the time to carefully review all the evidence both written and oral. I have noted the respective position of the parties. I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.

Summary of Complainant’s Case:

The Complainant was not represented and made his own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant relied on the submission outlined in the Workplace Relations Complaint Form as forming the basis of the facts to be considered by myself.

I am satisfied that the Complainant had had sight of the Respondent’s submission in advance of the hearing. He raised no objection to any of the documents which were attached to the Respondent submission.

The Complainant alleges that he was discriminated against by his employer when he was treated less favourably than another employee would be in a comparable situation and that this less favourable treatment was given to him by reason of his race.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

Summary of Respondent’s Case:

The Respondent had IBEC representation at this hearing. The witnesses who came along to represent the Respondent company included the Regional HR Manager and the Employer Relations Business Partner. The Respondent provided me with one written submissions dated 22nd of March 2024. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All oral evidence was heard following an Affirmation. The Respondent representative tested the Complainant’s oral evidence as appropriate..

The Respondent rejects that there has been any Discrimination, racial or otherwise. The Respondent asserts operating a diverse and multi-cultural workplace wherein dignity in the workaplce is prioritised.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

Findings and Conclusions:

I have carefully considered the evidence adduced in the course of this hearing. The Complainant has worked as a Security Officer at one of the Respondent Supermarket shops since in and around October of 2022. I believe the Complainant to be good at this job and to have been generally happy in the workplace.

I encouraged the Complainant to give me details of the discriminatory Acts he says were directed at him. To be fair to the Complainant, his narrative has been consistent. What he told me in the course of the hearing was the same as that which he had written out in his WRC complaint form, and that in turn formed the basis and framework for a Grievance investigation conducted in the workplace.

I fully accept that two incidents occurred on the or about the 20th of July 2023 and the 21st of July 2023 when a duty Manager (in the shop wherein the Complainant worked as a Security Officer) treated the Complainant in an inappropriate and disparaging way. The Duty Manager seemed to be critical of where the Complainant had parked his scooter on one occasion, and on the second occasion, he was dissatisfied to find the Complainant gift wrapping his son’s present in a busy check out area. I note that the Respondent witness JM stated that whilst she could not hear what was being said during both of these incidents, the CCTV footage demonstrated that the men squared off and things escalated. From her point of view the rows that broke out on these two occasions were serious, were voluble, were public and were within earshot of staff and customers.

The Complainant has maintained that he did nothing wrong, and that the duty Manager was combative, hostile and aggressive. The Complainant clearly found the whole experience to be very unsettling and it has made him cautios in the workplace. The Complainant is convinced that these attacks were racially motivated. For the Complainant, the Duty Manager treated him badly quite simply because of his race. I can well understand that if this was correct, then this would make the Complainant’s ongoing enjoyment of his job and ongoing presence in the workplace very difficult for him.

As is his right, the Complainant escalated this matter with the Regional HR Manager (JM) who took immediate steps to investigate the two incidents. I could not be critical of the Grievance Investigation thereafter conducted. The Complainant brought the issue to JM’s attention on the 28th of July 2023, and she conducted a thorough investigation, met with all the witnesses and studied the CCTV footage. The Complainant was provided with Grievance & Dispute Resolutions policy and Dignity at Work policy. I note that the complainant was fully represented by his Union Representative throughout the process and that when he was given the outcome to the investigation, he did not appeal same. I further note that the Duty Manager in question was sent forward for Disciplinary sanction for his role in the two unprovoked and excessive dressing downs he had given to a subordinate. I understand that that the Duty Manger’s behaviour was found to constitute an affront to the dignity in the workplace policy. However, it is crucial to note that there was no finding that his behaviour was in any way racially motivated and whilst said behaviour was unacceptable it was not unacceptable because the Complainant was targeted for his race.

I note that the Complainant appears to suggest that there was a pattern of malevolent behaviour towards him perpetrated by the said duty Manager and another line Manager all through this employment. This was not fully explored nor was it asked to be by the Complainant in the course of the Grievance investigation. I cannot fully know whether the Complainant is correct in this assertion. On balance, I have no reason to believe that any past friction had a racial overtone. The Complainant has not contended that it did, he has simply felt that the Duty Manager has not been particularly and appropriately civil as might be expected of a Duty Manager.

I should say by way of an aside that the Respondent company was able to demonstrate that it has a comprehensive dignity in the workplace policy. I understand from the evidence given that the workplace obliges all employees to take refresher courses and training every two years after the first instruction on the policy. Every employee is instructed in dignity in the workplace as part of the initial on boarding process. I am satisfied that this is a diverse workplace that takes its responsibility to provide harmony and cohesion very seriously. Musgrave Operating Partners Ireland is an equal opportunities employer and is committed to equality of opportunity in all its employment practices, policies and procedures. The Respondent has a Dignity at Work policy (Appendix 7) in place to address issues such as this and to ensure that employees are aware that the company will not tolerate such behaviour and that all colleagues are trained on the Company Dignity at Work policy. The existence of this policy demonstrates that the Respondent did indeed take such reasonably practicable steps to prevent any employee from acting in a manner which could be construed as harassment.

I note that the Complainant had also made a complaint to the WRC as of the 28th of July 2023. That is to say, that on the same day that he triggered the internal workplace Grievance he also initiated a complaint before the WRC. The Complainant was unable to fully explain why he did this.

The Respondent submits that the Complainant has not demonstrated the primary facts on which his case relies so as to shift the onus of proof onto the Respondent. As previously noted, the burden of proof is on the Complainant to demonstrate facts from which it may be presumed that there has been discrimination in order for the burden of proof to then shift to the Respondent. The facts that have been established demonstrate an overbearing, rude Duty Manager who overstepped his position in reprimanding the Complainant in the workplace in a public and humiliating way. I can find bad behaviour but not discriminatory behaviour. More importantly the Employer herein has stepped up and implemented its central tenet of providing employees with dignity in the workplace.

On balance therefore I am finding that the Complainant has not disclosed a prima facie case under the Employment Equality Acts 1998 - 2011 as is required and has failed to outline a comparator to demonstrate how he believes he has been treated less favourably under the grounds cited. As such, the burden does not shift to the Respondent in this instance.

Regarding the claim under the Equal Status Act 2000 it has pointed out to me by the Respondent representative that the preamble notes that the purpose of the Act

“An act to promote equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access.”

The Act does not cover Acts of discrimination occurring within the workplace, i.e. between employees or between employee and employer. I fully accept that the Respondent has not been provided details of any way the Equal Status Act would be applicable within this claim. It is also noted that Complainant never notified the service provider (if there even is one) with the ES1 form or similar). I therefore accept that I do not have the requisite jurisdiction to hear this claim.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

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

CA-00057947-001 - I do not have the jurisdiction to hear a claim under this Act

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00057947-002 – The Complainant has failed to demonstrate that his Employer has treated him less favourably than it would a comparator by reason of his race. The complaint therefore fails.

Dated: 15th of May 2024

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Key Words: