Complainant

Respondent

Parties

Kuol  Kuol

Currys Ireland Limited

Representatives

Self-represented

Ms Mallon, BL, instructed by Mason Hayes & Curran

Act

Complaint Reference No.

Date of Receipt

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

CA-00055489-001

CA-00056367-000

10/03/2023

27/04/2023

Mr. Kuol was employed as a Gaming Sales Colleague. He earned €12.30 per hour. He was employed from 26th June 2022 and was dismissed on 5th April 2023.

His case is that he has been discriminated and harassed in his workplace on race grounds. His second complaint is that because he made a discrimination complaint to the WRC that he was victimised when he was dismissed on 5th April 2023.

The respondent denies the complaints in full.

Summary of Mr Kuol’s Evidence

In mid-August 2022, Mr Kuol outlined that himself and a colleague of the same race were smoking the back area of the store. He said his manager saw this and it was reported to Ms Buckley. A notice then went up that only certain named staff could use the back area. He said that as other staff continued to use the back area that this notice was targeted at himself and his colleague who are of the same race.

On 14th October 2022, he attended a meeting with his managers, and he was informed about the theft of stock from the shop. His manager also mentioned that he was reported for scrolling on his mobile phone on the shop floor and was not available or attentive to customers. He said that he was using his mobile phone to complete his weekly log. His manager claimed that he was only making excuses. He felt it was not fair that he was reprimanded in this way and that he was not being included in conversations where it was apparent that others were discussing his affairs.

Arising from this meeting on 14th October 2022, he wrote an email the next day to his managers. He complained about not being able to voice his opinion. He said it was unfair that others were having conversations about him without him being present. He explained his use of the phone on the shop floor. He referred to the back smoking area and issue that others were still using this area even though he was not allowed.

He raised an issue from September 2022 which involved racial comments. He said he had sent a text message to this supervisor explaining he was late. Then one hour into the shift the supervisor approached him and asked if he had a new phone number. The supervisor then said to him ‘Oh, is that your dealers number?’

In the email he referred to an earlier incident when Ms Buckley asked Mr Arnold had he informed him about the stock loss. He said his supervisor’s response was ‘I asked him to bring back at least a thousand.’

He said this resulted in his bags being checked when he left the store even though other staff did not have their bags checked.

He said he got a short reply to this email assuring him he would have ‘freedom of voice’ although he said the issues were never followed up. He was informed that a mediator would be brought in although this never happened. He explained that these issues had a negative impact on him.

He raised a difficulty with an expense claim when Ms Buckley said it may not be paid. The expense was taxi fare when he had to return urgently from a work event when his son was born. He said Ms Buckley’s reaction inferred he was making a fraudulent claim.

After this, management raised issues about his attendance. This resulted in him attending a disciplinary meeting with a HR Manager, Ms Mc Garry. During these meetings, he informed her that he had a complaint about the management in his store and these matters were referred to the WRC. He claimed that Ms Mc Garry was not following up on the reasons for his absences. These included his non-attendance at an earlier investigation conducted by Mr Jacob. He said the disciplinary meeting was adjourned so that these issues could be checked with Mr Jacob. He did not get any feedback or clarification after that.

He outlined the sequence of events on 5th April 2023 when he attended a disciplinary meeting. He said the code was changed on the door, so he was delayed in entering the store. As he was dismissed at this meeting and escorted from the store, he said the decision had already been made beforehand.

HEARING RE-CONVENED ON 13th DECEMBER

Mr Kuol continued with his testimony.

He outlined that although he had made a complaint on 14th October 2022, there was still no follow up. No mediator had followed up on his complaints as he was informed. At this point he felt discriminated against particularly when his bags were being checked. He said he was victimised as other staff did not have their bags checked.

During the disciplinary process on his absences, he raised his earlier complaint of 14th October 2022. He said this contributed to his mental state which was not taken into consideration during the disciplinary process. He did not request Ms Mc Garry to look into his complaints within the store.  He had also informed Ms Mc Garry that he had bought a car and was taking steps to improve his attendance. He felt that that he was not given credit for this initiative. He was not given sufficient time to improve his attendance. He had explained at the disciplinary meeting that the buses were unreliable, and this was a reason for his lateness.

He said the Cork store was the number one store. He contributed to this, and it was not considered.

He explained why he could not attend the earlier investigation meeting with Mr Jacob. He was seeking every Saturday off to practice his faith. He sent this request to his manager on 8th March 2023. He was facilitated with leave on Saturday 11th March 2023, and he assumed he would also have the following Saturday off as he had made a spiritual commitment.

Mr Kuol was then cross-examined by the respondent representative. He was asked about his frequent late attendance and the instance when he left the store without permission. He was asked about the reasons for his late attendances and his excuse of late buses. He was questioned on each instance of alleged discrimination. He was questioned on the lead up to his dismissal and his request not to work Saturdays. He was asked about his failure to meet with the investigator, Mr Jacob and why he did not appeal his dismissal.

Summary of Complainant’s Closing Submission

Mr Kuol referred to some of the respondent’s witnesses lack of recall to certain events and that inferences should be drawn from this. He questioned why some managers did not respond directly to him on his complaints in October 2022. He requested consideration be given to the late witness request. He said that his mental health was not considered during the disciplinary process and that lateness alone could not be the reason for his dismissal.

He referred to the fact that the door code had been changed even before the dismissal meeting. He did not get credit for the step he had taken by purchasing a car. He said the company were negligent in their duty of care towards him and that his complaints in October 2022 were not followed up. He asserted that he was victimised in that his dismissal related to his earlier complaints.

The respondent denies the complaints and set out the defence in two detailed submissions.

Summary of Mr O’Leary’s Evidence

Mr O’Leary outlined his role as Manager and his interactions with the complainant. He said it was store policy that bags are checked when staff leave the store and that he gets another manager to check his bag.

He said the October meeting with the complainant was to discuss stock protection and that he wanted staff to be more pro-active with customers. This was the normal approach if there were stock losses in other areas of the store.

He outlined that the re-imbursement of the taxi fare was paid as soon as possible as he did not want Mr Kuol to be out of pocket.

He had a concern with Mr Kuol doing work logs when on the shop floor and wanted to ensure that this practice did not continue.

On the email complaints of 15th October 2022, he said he replied on the same day. He discussed these issues with Mr Kuol a few weeks later and he told him everything was fine. His understanding was Mr Kuol was happy to let the issues go. He did not raise with him any further.

On 8th March 2023 when he requested all Saturdays off to practice his faith, he sent him the application form for flexible working the next day. He said he discussed alternative options on providing a quiet space although the complainant was not interested in exploring these. He was able to accommodate him that coming Saturday. He said he did not receive a formal application for every Saturday off.

He said he had informal discussions with him on his lateness and attendance, and then forwarded him the absence policy. He said when things did not improve, he began to formalise issues as it was not fair on colleagues.

Mr O’Leary was then cross-examined by Mr Kuol on how he was managed. He was asked why his understanding was that he did not need to follow up on the complaints. He was questioned on the smoking issue and the bag check policy within the store.

Summary of Mr Arnold Evidence

Mr Arnold outlined his role as Senior Sales Manager. He outlined the policy on bag checks. He denied the allegation that he was referencing Mr Kuol, when he said, ‘Bring back €1,000 worth’. The loss of stock was his priority, and he wanted surplus stock to be removed from the shop floor to the warehouse.

He did not recall the incident of making a statement saying, ‘Is that your dealers number’. His understanding is that he may have got a call about Mr Kuol being late and it was from another number. On that basis, he said he may have raised this with Mr Kuol of whether he had a new number.

Under cross-examination from Mr Kuol, he said he cannot recall exact conversation on removing stock and if it did happen there was no intent on his part. He said he cannot recall laughing as it was a serious issue if stock was being lost from the store.

On the email complaints of 15th October 2022 forwarded to him, he said he did not respond as his understanding was that Mr O’Leary was handling that issue.

Summary of Mr Jacob Evidence

Mr Jacob outlined his role as General Manager of the Waterford Store. He was contacted by Joe O’Leary to investigate lateness and absence issues concerning the complainant. He gave evidence of setting up a meeting online with Mr Kuol for 15th March 2023. Although there was a mix-up as to whether the meeting was to commence at 11am or 11.30am, Mr Kuol was still late, and the meeting had to be rescheduled.

The next meeting was scheduled for Saturday 18th March 2023 as Mr Kuol was scheduled to work. He said the meeting did not proceed as Mr Kuol had not been in attendance.

He said he was not aware that there were complaints from Mr Kuol against management in the Cork store.

Mr Jacob was cross-examined by Mr Kuol on the scheduling of the meeting and his contacts with Ms Mc Garry who handled the subsequent disciplinary process.

Summary of Ms Buckley Evidence

Ms Buckley outlined her role as Sales and Operations Manager. She confirmed that she would have had conversations with Mr Arnold on bringing stock back to the warehouse although she did not recall conversation between Mr Arnold and Mr Kuol on ‘Bringing back €1,000 euro worth’.

She outlined her actions to prevent smoking at the back of the shop. She said this area was for removal of re-cycling and there were only certain staff authorised to be back there. This is why the names of those authorised would have been posted.

She said she attended the meeting about loss of stock in October 2022 although there were no claims of discrimination raised by Mr Kuol at that meeting.

Ms Buckley was cross-examined by Mr Kuol on her actions to prevent smoking and where the complaints came from. She was also asked why she did not respond to the email complaint of 15th October. She replied that her understanding was that Mr O’Leary was dealing with this.

Summary of Ms Mc Garry Evidence

Ms Mc Garry outlined her role as General Manager of Liffey Valley store. She was appointed to deal with the complainant’s issues of lateness and absence without leave. She had documented evidence including CCTV of Mr Kuol leaving the store. She said Mr Kuol referred to complaints within the Cork store although he did not want her to do anything as the complaints were with the WRC. She said a reason he put forward for lates were the unreliability of buses. She confirmed that he mentioned that he bought a car for work.

She said she considered a lesser sanction other than dismissal. She looked at the history and trends of the absences and was not confident his attendance or reliability would improve. This was based on informal discussions previously within the store and even when issues escalated, there was still no improvement. There was a risk to the operation of the store given the pattern. She also had a concern with the lack of commitment and remorse of Mr Kuol throughout the disciplinary process.

Ms Mc Garry was cross-examined by Mr Kuol on her understanding of gross misconduct. She was questioned on the adjournment of the disciplinary process and clarifications from Mr Jacob as to why the earlier investigation did not proceed. She was also questioned on the door code and the late issuing of the dismissal letter. She replied that she was obliged to inform local management of her pending decision. She said that the letter issued a few days later as she was likely busy at that time.

Summary of Respondent’s Closing Submission

The respondent’s representative submitted that the complaints are speculative and mere assertions of discrimination. The complaints initially made have not stood up under testimony. The representative summarised each of the specific incidents and that discrimination could not have occurred.

In relation to the victimisation complaint, the senior managers who were involved in the disciplinary process were not aware of the earlier complaints withing the Cork store. Ms Mc Garry only became aware when the complainant himself informed her. The complainant specifically did not want her to follow up in any way. It was submitted that the dismissal was a reasonable decision given the absences without permission and the pattern of lateness. There was no evidence of a causal link between the dismissal and the earlier complaints.     

The Law

The Employment Equality Acts 1998 to 2015 (“the Acts”) promote equality in the workplace and provide protection against discrimination, harassment and victimisation. The Acts prohibit discrimination on nine grounds, including race. Discrimination occurs when one person is treated less favourably than another is, has been or would be treated. In general, a complainant must prove less favourable treatment as compared to another person in a similar position to the complainant.

Section 85A(1) of the Acts provides:

“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.”

The complainant is required to establish facts from which discrimination, harassment or victimisation can be inferred. It is only when this burden is discharged does the burden shift to the respondent to show that no unlawful discrimination or victimisation took place. The Labour Court in Southern Health Board v Mitchell [2001] ELR 201 considered the extent of this evidential burden on a complainant and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a 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 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 is no infringement of the principle of equal treatment.”

Findings on Discrimination Complaint

Although there is some conflict in evidence, the initial complaint of alleged discrimination occurred on October 15th, 2022. This was an email sent to the three managers who gave evidence at the hearing. The email referred to the meeting the previous day on operational issues and the fact that there was a loss of stock.

In the email, the complainant takes issue with his performance being discussed without him being present. This was obviously a reaction to a discussion the previous day on reports of him being on his phone on the shop floor.

In the email, the complainant outlines previous issues and conduct which form the basis of his discrimination complaint. Each of these will be examined.

Phone Issue

In the case of being on my phone, one would say it is unprofessional of me which I agree but I would argue that this was never on a regular basis or with customers around me like one of the managers “claimed”. It’s also very hypocritical of one of the managers to report whilst they are constantly scrolling on their phones even during peak hours. I work for the company and I feel I am being treated unfairly and harassed at work, I have the urge to take this up with the relevant department. I am not pointing fingers but if a manager’s opinion about me is negative it’s not rocket science that they will use their leverage to defame me therefore leaving only a biased opinion. Both sides of the story should be heard before coming to a conclusion.

The email then proceeds to raise the smoking issue of mid-August 2022.

Smoking Issue

I and Andy had gone for a smoke in the back 2 minutes later Joe followed, he peeped and saw us then went back inside. The following day, Niamh  asked if I smoked and stated that I wasn’t allowed to use the back for security reasons. This might have been an administrative call but it’s ironic seeing other colleagues still accessing the back for a smoke leaving me wondering.

The email then refers to racist comments.

Racist Comments

Lastly, this goes to Nick as you made some very racist comments in a few conversations we had on the floor which I documented as well. Sunday 24th September, I informed you that I would be late by text. 1 hour into my shift you then approach me and ask if I had texted you on a new number which I replied by saying no it’s the same number and then you went on and said and I quote “oh is that your dealer’s number?”.

Prior to this encounter, Niamh asked if you had informed me about the missing items and your response was yeah I did and you went on and said “I asked him to bring at least a thousand”. You would argue and say this was a joke but I don’t think I need to spell it out for you or explain the context as you can see where I am going with this.

This would later on lead to my bag being checked while colleagues in other departments walked out freely and Dani following me every time I took a water break.

The Manager, Mr O’Leary replied to the email within an hour as follows-

Thank you for your email in relation to concerns at work.

Please find attached Curry’s grievance policy and the steps available to help resolve any issues a colleague may have at work.

I am keen to address your concerns as soon as possible and, in that regard, will be in touch over the coming days. In the interim please feel free to speak to me with any immediate issues and I note your comments in relation to “freedom of voice” rest assured your immediate concern will be listened to openly and without immediate judgment.

Expenses

The remaining allegation of discrimination occurred on 6th March 2023 when the complainant had to return urgently from a work trip back to Ireland on the birth of his child. This is outlined on the complaint form as follows-

Niamh Buckley approached me and asked what the Uber receipt was for to which I replied that it was for my ride back to the airport as I had to leave a day early. She then repeatedly asked what it was for and I gave her the same response she then said “I don’t think we can process that”. Two minutes later Mr O’Leary asked me what the receipt was for and I gave him the same response I gave Niamh Buckley. I was reimbursed, but from my vantage point, this was a clear insinuation of an attempted fraud.    

Conclusion

There are several incidents of alleged discrimination involving several managers.

The use of the phone on the shop floor, the evidence was that Mr O’Leary, as Manager, took the lead on this issue at the meeting on 14th October 2022. He gave testimony of the reasons for his actions to ensure work logs were to be completed away from the shop floor, particularly due to stock losses. The complainant took issue that a complaint was made of being on his phone without his input or right of reply. In Mr O’Leary’s immediate response, there is an acceptance of the complainant’s concern that “freedom of voice” and his concerns will be listened to.

The complainant has not named a specific comparator so it can be presumed that the comparator was a hypothetical other worker who was not of the same race and was not treated in this manner. The complainant has not provided any evidence of how other workers were treated about their input on complaints or phone use on the shop floor. Therefore, no evidence was provided to ground a claim of racial discrimination on this issue. The actions of the manager were reasonable under the circumstances. He also accepted the complainant had a right of reply if there were any further criticisms of him.

On the smoking issue, Ms Buckley gave testimony on who could access the back area on health and safety grounds. She said only certain staff were authorised to access this area. Again, the complainant has not particularised or given sufficient evidence of colleagues not of his race who were allowed access this area. Therefore, no evidence was provided to ground a claim of discrimination. I am satisfied that Ms Buckley was carrying out her role and that any less favourable treatment was unrelated to the discriminatory ground.

On the racist comments’ allegation, Mr Arnold gave testimony of the circumstances under which he approached the complainant when he got a text message that he was running late that morning. He said that he may have queried whether the complainant had changed his mobile number and did not recall saying to the complainant ‘Oh is that your dealer’s number’. Prior to this, the complainant alleges that Ms Buckley asked Mr Arnold if he had informed the complainant of stock losses and Mr Arnold said, ‘I asked him to bring back a thousand worth’.

There is a conflict in evidence on these issues. If the comments were made, under what circumstances were they made. Mr Arnold cannot recall the dealers number comment and gave testimony that if he made the comments that these related to bringing surplus stock back to the warehouse. The complainant at a late stage in the process said he had a witness to this event. Even if the comments were made, I am not satisfied that these comments related to the race of the complainant.

The complainant alleges that this led to his bag being checked and being followed every time he took a water break. Mr O’Leary gave testimony that it was store policy that bags are checked on leaving the store and that another manager checks his bag when leaving. Again, there is a conflict of evidence on bag checking. The complainant is making an assertion that his bag was the only bag being checked and that this is linked to his race. There was no evidence to back up this assertion as there is no testimony from other staff that their bag was not checked or was checked less regularly. As there was no evidence of different treatment between staff, there is insufficient evidence to ground a claim of race discrimination. I am satisfied from the testimony of the manager that bag checking was store policy.

In relation to the complaint of being followed on water breaks, there was no detailed testimony on this issue. There were no comparisons with how other staff were supervised and therefore there is insufficient evidence that this was race discrimination.

Investigation of Discrimination Complaints

The alleged incidents documented in the email of 15th October 2022 were not investigated. Mr O’Leary gave evidence that he discussed these matters with Mr Kuol a few weeks later, and he told him everything was fine, and he was happy to let the issues go. He said he did not raise any further as he understood he did not want the issues to be pursued. This is somewhat consistent with the evidence of Mr Arnold and Ms Buckley as they gave testimony that they did not respond to the email of 15th October as their understanding was that Mr O’Leary was dealing with this.

For his part, the complainant did not raise his complaints further. He was copied with the grievance procedure that day and did not submit a grievance. There appears to be no other correspondence on these matters other than a brief reference by the complainant during the disciplinary process. From his testimony the complainant expected these issues to be investigated and a mediator appointed.

It is worth examining how the complainant concluded the email of 15th October 2022.

‘I feel like my role is very underappreciated and to be told I don’t have the initiative is very absurd. My numbers speak for themselves.

I would like to also state that in the event of any future meetings or talks held. I will have a representative present.

And just so all parties in receipt of this email are aware. I will be documenting a copy of this as well.’

The conclusion is unclear as to what he wanted management to do. It is unclear in sending the email if the complainant was making a formal complaint. It is also unclear from the testimony whether a commitment was given that these matters would be mediated on. There was no follow-up by the complainant, despite having been forwarded the grievance procedure. I am satisfied that due to the circumstances, there was no onus on management to investigate or mediate on the issues. Furthermore, I am satisfied that the manager would have taken a similar approach if similar issues were raised by any other staff member.

Expenses

The complainant has included his treatment in recouping his expenses on 6th March 2023 as an example of race discrimination. The allegation is that due to Ms Buckley questioning the taxi expenses that this amounted to an inference of fraud. From the testimony at the hearing, after confirmation of how the expense was incurred, the monies were paid immediately. Although there was a question raised by Ms Buckley on this expense, there was insufficient evidence that this related to the race of the complainant.

This treatment on the taxi expenses was not raised by the complainant within the company as a discrimination complaint. It was included as an example of race discrimination on the complaint form sent to the WRC.

As the earlier complaints were made in October 2022 and were not investigated, when the expenses issue arose this was an opportunity for the complainant to raise this new complaint along with the previous complaints. He did not do this and instead all issues from October 2022 along with the expenses issue was referred to the WRC. 

Having reviewed each of the incidents and the testimony of witnesses, I find that the complainant has not provided sufficient evidence to ground a claim of discrimination on race grounds.

Having reviewed the series of incidents, I am satisfied that management did not discriminate against the complainant. Although the complainant was not satisfied with the way he was supervised by management, there is insufficient evidence that this was discriminatory treatment due to his race. I am satisfied that any perceived detrimental treatment was not due to his race. The actions of managers were all responses to operational issues and challenges within the store.

For the reasons outlined, I decide that the complainant of race discrimination is not well founded.

Harassment Complaint

Section 14A of the Acts provides that harassment of a worker on any of the discriminatory grounds at his workplace constitutes discrimination by the employer. Harassment is defined as any form of unwanted conduct related to any of the discriminatory grounds being conduct 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. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Having reviewed the evidence on each of the incidents, I find that the conduct of the managers within the store was solely related to challenges within the store and was unrelated to the complainant’s race. I am satisfied that the phone on the shop floor issue, smoking issue, bag checking, and the expense issue all related to company policies. On the other interactions complained of, there was insufficient evidence that the complainant was harassed. Significantly, the complainant did not follow-up on or specifically make a complaint of being harassed over the course of his employment.

I decide that the harassment complaint is not well founded.

Victimisation Complaint

Section 74 (1) of the Act states-

“victimisation” shall be construed in accordance with subsection (2).

(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

The test and case law for establishing whether there has been victimisation is as follows-

In Department of Defence v Barrett EDA 1017 the Labour Court stated-

“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”

That obligation is given effect in Irish law by s.74(2) of the Acts. The definition of victimisation contained in that section contains essentially three ingredients. It requires that: -

1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.

Protected Act

I find that the complaints submitted to the WRC on 10th March 2023 constituted a protected act as per section 74(2) of the Employment Equality Act. Therefore, this engages the second part of the test as to whether the complainant was subjected to adverse treatment.

Adverse Treatment

The complainant outlined on his 2nd complaint form dated 27th April 2023 that ‘I believe that my dismissal without notice could be a case of victimisation as it occurred after I filed a discrimination complaint against the managers. Despite my attempts to address the issues with my managers, they were not adequately addressed and, in fact, I was unfairly dismissed without notice.’

Therefore, any adverse treatment from 10th March 2023 needs to be examined along with the dismissal itself.

Mr Jacob gave testimony on setting up an investigation meeting with the complainant to deal with four occasions of lateness and three occasions of leaving the store early. He understood the meeting was to commence at 11am and the complainant understood a start time of 11.30am. Mr Jacob left the meeting at 11.40am as the complainant had not arrived. A further meeting was set up for Saturday 18th March 2023. This meeting did not proceed either as the complainant said that he could not work on Saturdays due to his faith.

The background to this was that on 8th March 2023 the complainant sought every Saturday off to practice his faith. On 9th March 2023, Mr O’Leary sent him the flexible work application as this was a permanent request not to work Saturdays. Although the complainant was accommodated on Saturday 11th March 2023, he also understood that he would not work the following Saturday either, 18th March 2023.

The outcome of this was that the meeting did not proceed. The disciplinary process continued with Ms Mc Garry as decision maker. The non-attendance of the complainant at the previous stage then became contentious between the complainant and Ms Mc Garry. The complainant requested all matters to be reviewed after Ms Mc Garry had checked with Mr Jacob on the full circumstances of the mix-up at the previous stage. The complainant requested feedback on this discussion which he claims he was entitled to.

Nevertheless, Ms Mc Garry proceeded with the disciplinary process. She gave testimony that she afforded due process to the complainant and considered the complainants responses on his attendance record. She said the matters were serious as the store relies on staff being present and remaining until the end of their shifts. She considered the complainant’s reasoning of ‘Corks unreliable buses’ as an inadequate excuse. She gave testimony that she was not convinced that there would be an improvement in attendance. Another consideration was his attitude to the serious matters raised. She said that even though the complainant had sought a permanent change of Saturdays off, he had not even made an application despite being sent the form.

The complainant alleges that when he arrived on the day of his disciplinary meeting, the door codes had already been changed. He claims that the decision was already communicated to store management that he was going to be dismissed. Ms Mc Garry gave testimony on this issue that she had considered all facts and had more or less come to her conclusions and decided to inform the store manager of her likely decision.

The complainant alleges adverse treatment as he did not receive the reasons in writing until several days after the dismissal had taken place. On this issue, Ms McGarry gave testimony that she was busy over this period, and this is why it took a few days to issue the dismissal letter.

Having considered these events from 10th March 2023 onwards, the complainant was treated in an adverse way. He went through a disciplinary process and was ultimately dismissed which on its face would appear to be adverse treatment. From management’s perspective there were attendance issues which needed to be dealt with.

I can only conclude that there was adverse treatment even though the respondent could rightfully claim that the disciplinary process was required and was undertaken in accordance with fair procedures.

Adverse Treatment. A Reaction?

There was insufficient evidence of a causal link or that these events were a reaction to the protected act of the WRC complaint form. The attendance record and subsequent actions of management were all related to the stand-alone disciplinary process. I am satisfied that the complainants attendance records were the reason why management conducted the disciplinary process which culminated in dismissal.

Both Mr Jacob and Ms Mc Garry were from outside the store and set about their tasks in a professional manner. They both gave testimony that they were not aware of the October 2022 complaints in advance of their involvement in the disciplinary process. Ms Mc Garry confirmed that the complainant did raise this issue with her although did not want her to do anything to follow up. This is the only causal link to the WRC complaint, and this was raised by the complainant himself.

The complainant was facilitated with a day off on Saturday 11th March 2023, and then could not attend an investigation where he could put his case. At this stage he had not made a formal application on flexible working for Saturdays off. He was afforded due process by Ms McGarry during the disciplinary process even though the complainant asserts that too much weight may have been placed on his non-attendance at the previous investigation meeting.

Given the preceding events, I do not consider the steps taken by management of changing the door codes as significant. I do not consider anything significant in the delay in issuing the dismissal letter. These matters could not be linked to the fact that the complainant made an earlier complaint to the WRC.

For the reasons outlined, I find that any adverse treatment of the complainant was related to a standalone disciplinary process on his attendance issues and was not linked to the WRC complaint.

I decide that the complaint of victimisation in the form of dismissal is not well founded.

For completeness, as the complainant gave testimony that he was victimised by having his bags checked on leaving the store, this issue also needs to be considered. As per the test on victimisation, the earlier complaint of October 2022 could be classified as a protected act. Therefore, the bag check issue comes afterwards, and it needs to be determined whether this was adverse treatment. I do not consider this as adverse treatment based on the testimony of the store manager that it was policy and applied to all staff.

I decide that the complaint of victimisation on the bag check as not well founded.

CA-00055489-001

I decide that the complainant of race discrimination is not well founded.

I decide that the harassment complaint is not well founded.

CA-00056367-

I decide that the complaint of victimisation is not well founded.

Discrimination, Harassment, Victimisation