Complainant

Respondent

Parties

Rhonda  Hale

Supermacs Ireland Ltd.

Representatives

David Gaffney Padraig J. Sheehan Solicitors

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-00060751-001

27/12/2023

The Complainant made a claim pursuant to Section 77 of the Employment Equality Act 1998 (as amended).  

The matter was heard before me on the 17th of May, the 11th and the 12th of July and the 27th of August 2024 by way of online hearing. 

The complainant commenced employment with the Respondent on the 28th of August, 2023 and was dismissed on 5th of September 2023. The Complainant alleged that her employment was terminated because she objected to discrimination on the basis of her nationality. In the course of the evidence it became clear that the Complainant was alleging discriminatory dismissal, victimisation and harassment all on the nationality ground.

The Complainant represented herself at the adjudication hearing.

The claims were initiated by way of WRC Complaint Form which was received on the 27th of December 2023. The “Complaint Specific Details or Statement” part of the Complaint Form stated as follows:

This complaint is in regard to severe discrimination and hostile work environment and extreme race discrimination of me being Czech-American. The aggressive racist hate that was condoned and when it was brought to the attention of direct and executive management I was told to adapt to their Irish ways and put it behind me. When I wanted to file a report with HR I was not only discouraged I was prohibited. The hazing and racist hostility continued and only became more intense. I was made to feel that I was the problem because I reported the incidents. Never was I given the opportunity to formally submit a report or get a manager to acknowledge the incident in writing or even by email. Instead I was bullied by management for trying get some help and then after I was put in a very uncomfortable position for reporting the incidents they fired me by email only hours before promising me that my job was safe after I exposed the discrimination. I will be mailing the 3 incident reports I wrote myself and emailed as well as mailed by registered mail to their headquarters I never received acknowledgment of any type from them.

On the 11th of January 2024 the Complainant forwarded to the WRC further documentation which the Complainant described as HR Reports. These reports were delivered to the Respondent on the 13th of September 2023 after the Complainant’s dismissal on the 5th of September 2023.  

In response to my directions given after the initial hearing on the 17th of May 2024, the Complainant delivered a submission dated the 30th of May 2024 which included the following:

My employment started on 28th August 2023 and was terminated because I objected to discrimination of my National Origin, on 5th September 2023

There were many individual incidents of racial discrimination towards me that happened several times

every day while I was employed at Supermac’s. I am listing only a few of the events notes, some don’t have a date and I was not able to learn everyone's names that harassed me about being a foreigner. The details of racial harassment are as I wrote in my notes that I made on my breaks and when I got home from work there were many that I didn’t document. I have made every effort to keep this in chronological order and as concise as possible

1) From hand written note: [Named Supervisor] 5:00 am morning shift. Said she didn’t like working with foreigners. She said, “you and your daughter will never fit in here because you are an American. We are Irish here, we all know each other and work well together, you won’t last long. All your positive American attitude and smiles will only make it worse for you.” I said that I saw lots of people in Ireland from all over the world and even though Zoe [Complainant’s daughter – also working for the Respondent] and I came from America, Zoe is part Mexican and East Indian and we’re all just people. She said, “Foreigners are ruining this country.”

2) From a hand written note: breakfast crowd, I had a hard time understanding a farmer's accent. [Named Supervisor] told me, “See, that’s what I am talking about, you don’t belong here. You can’t even understand how Irish people talk.” Two other girls nearby started laughing and looking at me.

3) From a hand written note: Assault- Afternoon rush, I was working at the hot bar. As I was reaching in on the left side I looked to my right and [Named Supervisor] was there looking at me, I let her know I would be reaching in to get a serving of hot lasagna and while I had my arm inside she slammed the sliding glass and metal hot door on my arm. Quietly, she said, “Stupid American bitch.” A couple other girls heard her. Later one of them came to me and said to try to get on her good side because she had been talking about how she was going to make my life hell until I quit. She said Irish don’t get on with foreigners. I took my break and went outside and cried from the intense hostility.

4) From a hand written note: I returned from break, [Named Supervisor] was standing near the register with a group of at least 5 girls, she was loudly talking about the ‘American’ that she was working on getting out of here. One girl started to walk away and Kayleigh grabbed their arm and pulled them back in. After that, the girls were intensely mean and told me my American ways of saying thank you, yes sir, yes ma’am was ignorant in Ireland.

5) From a hand written note: Breakfast rush, [Named Supervisor] was verbally racially abusive to a man that looked like he might be of East Indian descent. She told me to help him that she hated him and can’t understand anything he says. I helped him and I told her that was racial discrimination and reminded her my daughter has East Indian heritage and she told me she hated Indians or whatever they are.

6) From a hand written note: Physical assault to the back of my right leg, during a crowded rush, I felt a searing pain in the back of my right leg on my calf, four girls stopped and stared at me wide eyed. I don’t know which one did it. I went back to work and I heard someone behind my back say, “Go back to America why don’t you” and a couple people laughed. I left for a bathroom break, I had a cut on my leg about 3 inches long that had drawn beads of blood. Same day at the hot bar another person purposely burned my right forearm with a hot plate that had been sitting under the heat lamp. It was one of the girls that was in the group when [Named Supervisor] was spreading hate about me, she said, “So, when are you going back to America?”

7) From a handwritten note; 30 August 2023 [the Deli Manager], took me to a storage room for a private talk, (it was creepy to be alone in a dark room nother office). I told her about the hostile racist behavior of [Named Supervisor] and the other girls and the physical assaults. [The Dei Manager] defended [Named Supervisor] and told me it was because I was American and they are Irish and I needed to get used to Irish ways. [The Deli manager] said everything I told her she would take as a personal attack to her being Irish and that she would be on the defense with me. She repeated it several times. I said I wanted to document it. She said she would handle it informally and she encouraged me to quit, I said no I am not a quitter and I told her I really needed the job and I would be reporting it formally. She said if I couldn’t handle Irish way’s she couldn’t promote me to manager.

8) From a handwritten note: 31 August, 2023 At the start of my shift I was called into a meeting in the Deli Manager’s office. [The Deli Manager] and [Named Supervisor] were there. I was told to put the issues that had been raised regarding discrimination about me being American, behind me. That she had spoken with [Named Supervisor] and wanted us to put it in the past that it was just a personality conflict. I said it was racial discrimination and hostility toward me.

9) From a handwritten note: 31 August, 2023 Later in the day, I was again called to the [Deli Manager]’s  office. [The Operations Manager] and [the Deli Manager] were both standing, [the Operations Manager]  had her arms folded. I was asked to take a seat. [The Operations Manager] asked me if I was happy working there. I said yes and I need the job. [The Operations Manager] said that it seemed like I had a lot of problems in a short amount of time. I clarified it was only because of the racist discrimination and hostility towards me. [The Operations Manager] said I was being dramatic and that I was the problem and asked me if I could put this behind me and I said yes. It was very uncomfortable how intimidating they were to me.

10) 4 September 2023 Breakfast rush, serving area was overcrowded with servers that there was no room to move without getting injured as the hot food and knives were everywhere. [Second Named Supervisor] was on duty. Since I physically couldn’t get near any of the food stations, I went to prepare drink orders as I had been trained. [Second Named Supervisor] yelled at me and ordered me to get back over and get busy serving. I told her there was no room, I wouldn’t fit with 8 people and she gave me such a mean look, shook her hands in the air at me and barked at me again to serve. So I pressed up near the toasting machine to butter the toast as it came out and plate it. She yelled at me again, just do something. She was very mean, loudly aggressively intimidating me, singling me out, it was very demeaning and upsetting. This was my first encounter with her. After the rush was over [Second Named Supervisor] was in the prep area talking openly to [Named Supervisor] and said, “I see what you’re talking about them. I can’t stand those fucking Americans either. I am too old for this

11) 4 September 2023: Witnessed assault to Zoe Sidhu: a bit later I was in the kitchen making panini’s for the cold deli and I saw my daughter, Zoe Sidhu was asking [Second Named Supervisor] for help. [Second Named Supervisor], who had the hot oven paddle in her hand, barked at Zoe and turned her back on Zoe. Zoe still was needing help and [Second Named Supervisor] tore into her so aggressively. She was vicious. I saw [another named supervisor] looking on in shock. Zoe moved behind [Second Named Supervisor] to get out of her way and with her back to Zoe, [Second Named Supervisor] told a coworker that she hated American tourists and the newcomers and then she looked back at Zoe and swung the paddle behind her and deliberately hit Zoe in the hip, Zoe yelped in pain and quickly moved over to the cold deli to get away from her. I stared in shock, Zoe didn’t know I was watching. Every interaction with [Second Named Supervisor] in the future was very hostile and prejudiced towards me and my daughter. She openly gossiped with the other coworkers. She said she didn’t know who she hated more, Americans or Travelers.

12) 5 September 2023 I was preparing a roll and my daughter was next to me with teary eyes. She said she had just been called to a meeting in [the Deli Manager]’s office and [Second Named Supervisor] was there too. She would not go into detail but that it was horrible and there were hateful racist words from [Second Named Supervisor] and [the Deli Manager] about Americans and us being too polite and nice. Then she lost her composure and started to weep, she said she needed to walk home and rest, she clocked out and left

13) 5 September 2023, Soon after, I was called into [the Deli Manager]’s office. [The Deli Manager] and [the Operations Manager] were waiting. [The Deli Manager] closed the door, it locked us in. [The Deli Manager] asked if Zoe was safe. I asked why she wouldn’t be safe and that all I knew was she said there was a meeting and it was horrible, she was crying and went home to rest. [The Operations Manager] asked me if I were really happy there, and referenced all the issues I had been having with the discrimination. I asked her if she was firing me and she said no, absolutely not. I said that even with the harassment of being American, I was looking forward to being promoted to manager as [the Deli Manager] had said she intended for me. [The Operations Manager] said it seemed like I was bringing up drama again because I couldn’t put the harassment behind me. [The Operations Manager] said if I couldn’t let the discrimination go then I certainly couldn’t be promoted to manager. I said I was happy to but I still needed to have all the discrimination formally documented. [The Operations Manager] said it had been documented. I told her I had not received any copies. Then [the Operations Manager] got heated and asked me why was I trying to make a big deal of this, how could I expect to be a manager? They both began talking at the same time pressuring me to drop it, that I was the problem. I told them that they were both harassing me and bullying me because I reported that I was a victim of discrimination, bullying and a hostile work environment because I was not Irish. [The Deli Manager] objected to me using the word bullying. I told her that is what they were doing and it was very unwelcome and I was in trouble for being the victim who wanted to document the racial discrimination. I said that I had asked them both numerous times the procedure to document discrimination as well as emailed … HR for help but no one had replied or helped me. As I returned to my shift [The Deli Manager] said see you tomorrow and to tell Zoe that she would love to see her at work the next day. I said Zoe and I would be at work.

14) 5 September 2023 When I got home Zoe told me the details of the meeting and that Deirdre and Noreen had verbally attacked her and me about our nationality and heritage. Only a few minutes later we each received emails from [the Operations Manager] dismissing us.

The Respondent did not provide a written submission. 

The Respondent’s solicitor denied on the Respondent’s behalf the entirety of the facts alleged in the Complainant’s submissions which, it was contended, never happened. The Complainant’s employment was terminated after a short period of employment as she was deemed by the Deli Manager to be unsuitable due to her inability to accept direction and to work as part of a team. It was denied that the Complainant at any stage had been assaulted and the Complainant never reported any assaults. It was further denied that the Complainant at any stage had complained of discrimination, harassment or victimisation on the grounds of her non-Irish nationality.

The term Nationality in Section 2 of the Acts includes “race, colour, nationality or ethnic or national origins”. The ground is referred to in the Act as in this Act referred to as “the ground of race”.

From a discussion with the Complainant at the hearing I clarified that what the Complainant (who was unrepresented) intended to pursue were claims for victimisation, harassment and discriminatory dismissal.

In the absence of an identified comparator, no claim in relation to discrimination in terms and conditions of employment can be sustained. However the claims for victimisation, harassment and discriminatory dismissal will be considered.

Victimisation is defined in Section 74(2) provides:

“(2) 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.”

Harassment is defined at section 14A(7)(a)(i) as any “unwanted conduct related to any of the discriminatory grounds”

This unwanted conduct as per Section 14A(7)(b) “may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material”.

To constitute harassment the acts requests etcmust have the “purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.

Section 85A of the Acts makes specific provision in relation to the burden of proof in Discrimination Claims

Section 85A (1) of the Acts states that:

“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.”

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12E.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 presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”

The Labour Court has held in Hallinan v. Moy Valley ResourcesDEC-S2008-025 that to establish the relevant facts the Complainant must:

(a)    establish that he or she is covered by the protected ground;

(b)   Establish the specific treatment has allegedly taken place;

(c)    The treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground.

Similarly in Minaguchi v Mr. Ray Byrne, T/A Wineport Lakeshore Restaurant DEC-E/2002/20 where Equality Officer, Vivian Jackson stated:

“It appears to me that the three key elements which need to be established by a

complainant to show that a prima facie case exists are (i) that s/he is covered by the

relevant discriminatory ground(s), (ii) that s/he has been subjected to specific treatment

and (iii) that this treatment is less favourable than the treatment someone, who is not

covered by the relevant discriminatory, has been or would be treated.”

The way in which Section 85 A has been applied has been further clarified. In Cork City Council v. McCarthy, Labour Court, EDA0821 the Labour Court had the following to say about the process:

“The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. 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.”

In Dyflin Publications Ltd. v. Spasic EDA0823, the foregoing passage was cited with approval.  In addition the Court had regard to the judgement of Mummery LJ in the U.K. Court of Appeal in Madarassy v Nomura International plc, [2007] IRLR 246. In that case a provision similar to Section 85A was considered and the Court said that the provision:

“does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant's evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which comparisons are made are not truly like the complainant or the situation of the complainant; or that, even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy.

Approving of the foregoing passage, the Labour Court in Dyflin Publications held that:

“…in considering if the burden of proof shifts the Court should consider any evidence adduced by the Respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the Complainant.

Evidence

The Complainant gave evidence. On behalf of the Respondent, the Deli Manager gave evidence. Both witnesses made affirmations. There was a conflict of evidence as between the Complainant and the Deli Manager.

The Complainant was recruited by the Deli Manager and it was the Complainant’s understanding that although she was starting at an entry level she was being “groomed for management”. The Deli Manager said that she had indicated to the Complainant that she could work her way up to a management position, but she was not being “groomed for management”.

The Complainant provided multiple and lengthy written submissions but there were inconsistencies as between those submissions and further inconsistencies emerged in the course of the Complainant’s evidence and cross-examination. She had a poor recollection of dates and times of meetings and incidents. She did not report many of the incidents which were the subject matter of her complaints. She did not report the interactions with customers and the use of allegedly racist language by the supervisors nor did she report either of the alleged assaults. Her explanation for this was that she did not want to lose her job and she was resolved to press on with her employment and put the incidents behind her and remain positive. As regards her meetings with the Deli Manager the Complainant’s evidence was that she specifically referenced her nationality as the reason for the ill-treatment to which she was being subjected by both of her supervisors. She agreed that she had shaken hands with one of the supervisors with whom she had come into conflict. However, as the Complainant perceived that interaction, the supervisor had apologised to her. Although she was prepared at that meeting to put the matter behind her, she said that she still wanted her complaints to be documented. She did not herself ever make a written complaint alleging racist behaviour or discrimination, but she insisted that she raised these complaints verbally to the Deli Manager in her meetings with her and she expected that the Deli Manager would in turn report these complaints to HR. The Complainant specifically recalled that the Deli Manager spoke to herself and her daughter on the telephone later that day following the final meeting on the 5th of September 2023.

The Deli Manager gave conflicting evidence regarding the content of the meetings which she conducted with the Complainant. She denied that the Complainant ever mentioned her nationality or referenced any racist behaviour nor did she ever use the term discrimination. There are no records of any reports by the Deli Manager or any other staff-member of any allegations by the Complainant of racist behaviour or discrimination on the basis of her non-Irish nationality. The Deli Manager said that she had various meetings with the Complainant to attempt to address friction which had occurred between the Complainant and her supervisors. One of those supervisors emailed the Deli Manager to say that the Complainant was trying to implement changes to the running of the Deli, and this was interrupting the flow of the work. The supervisors were reporting difficulties managing and training the Complainant. The Deli Manager arranged a meeting between one of the supervisors and the Complainant at the end of which they shook hands, and the Deli Manager thought that the issue had been resolved. However, the problems continued. On the 5th of September 2023 the Deli Manager called the Complainant into a meeting with herself and the Operations Manager ostensibly to enquire after her daughter’s welfare. The Complainant’s daughter was recruited at the same time as the Complainant and was doing the same type of work in the Deli. She had left work earlier that day and the Deli Manager was concerned for her welfare. The Complainant assured the Deli Manager that her daughter would be ok and that both she and the Complainant would be at work the next day. The Deli Manager and the Operations Manager were concerned that the Complainant was still not happy. The decision to dismiss was made by the Deli Manager after her final meeting with the Complainant. Although she did not make this decision in the meeting, she thought about it afterwards and decided that the Complainant was not suitable to the work and that her employment would be terminated. The reason for this decision was that the Deli Manager was concerned at how quickly the conflict between the Complainant and the supervisors had escalated and continued to escalate. She formed the view that the Complainant was not willing to work as a team member and that she was reluctant to follow the existing procedures.  Although she was not the signatory to the dismissal email, she made the decision and the email dismissing the Complainant was then signed by her superior, the Operations Manager in accordance with the Respondent’s HR protocols and sent at 3:42 pm on the 5th of September 2023. The email stated that “events over the last number of days have forced me to consider your fit in the role of Deli Assistant…. I do not believe you are a suitable fit for the role you were hired for, and as a result, as Operations Manager, I am compelled to end the employment at this stage. Today, 5th September 2023 is your last working day …”

The Deli Manager said that she spoke later that day to the Complainant’s daughter by telephone, but she did not speak to the Complainant on that or any other call.

Findings

The Complainant accepted in her evidence that the allegations relating to allegedly racist attitudes to and behaviour towards customers were not reported. The same was true of the allegations of the two serious assaults. In such circumstances the Respondent was not made aware of these complaints and thus they could not have played a role in the decision to dismiss the Complainant and cannot therefore ground a claim for victimisation or discriminatory dismissal.

The failure to report those allegations deprived the Respondent of the opportunity to investigate them and in the absence of any reliable corroborative evidence I do not accept that the facts alleged are established. Accordingly, no facts from which an inference of discrimination having been established, these allegations do not meet the threshold of proof required to establish liability on the part of the Respondent for harassment on the ground of race/nationality.

The Complainant was insistent that she did raise the issue of discrimination and harassment in her meetings with the Deli Manager. The Deli Manager denied that the Complainant ever did so. The Complainant sought to rely on extensive reports and submissions and handwritten notes which she submitted constituted evidence supporting her claims in this regard. These documents do not constitute evidence as such and to the extent that they were relied on as an accurate record of what occurred there were numerous inconsistencies as between the various written reports, submissions and handwritten notes and there were further inconsistencies in the Complainant’s evidence. Moreover, none of these notes were provided to the Respondent before the dismissal and it is the case that no written complaint of discriminatory treatment was ever made to the Respondent by the Complainant prior to the dismissal.

From the Respondent’s submissions and the evidence of the Deli Manager the explanation for the dismissal was that the Complainant was deemed unsuitable for the role. It was submitted that the Complainant’s belief that she was being groomed for management was not realistic but that this belief nonetheless influenced how the Complainant interacted with her supervisors. The Deli Manager said that the supervisors found it difficult to train and to manage the Complainant which led to friction. The Deli Manager said that she tried on several occasions to discuss this issue with the Complainant but she eventually formed the view that the Complainant was unsuited to the work.

The Complainant said that she specifically complained that she was being bullied, which the Deli Manager denied. Whilst I have some doubt as to whether the Complainant used the word “bullying” I am satisfied that the Complainant voiced her unhappiness about the way her supervisors were treating her. However, I am not satisfied that the Complainant has adduced credible evidence that she ever complained of discriminatory behaviour as distinct from any other type of objectionable behaviour. Even if an allegation of bullying was made verbally, this is not the same as an allegation of discrimination on grounds of nationality/race.

Having heard and considered the evidence and submissions from both sides in its totality I find that the Complainant has not adduced credible evidence such as to establish facts from an inference of discrimination can be drawn within the parameters of Section 85 A. As no discrimination has been established it follows that the claims for victimisation, harassment and discriminatory dismissal, all of which are predicated on race/nationality must fail.

The Complainant was not discriminated against by the Respondent.

The Respondent did not discriminate, victimise or harass the Complainant on the grounds of natonality/race.

The Complaint of discriminatory dismissal is not well-founded. 

Employment Equality Act, Sections 2, 14A(7), 74(2), 85A (1) - Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] - Hallinan v. Moy Valley Resources DEC-S2008-025 - Minaguchi v Mr. Ray Byrne, T/A Wineport Lakeshore Restaurant DEC-E/2002/20 - Cork City Council v. McCarthy, Labour Court, EDA0821 - Dyflin Publications Ltd. v. Spasic EDA0823 - Madarassy v Nomura International plc, [2007] IRLR 246