ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00050207
Parties:
| Complainant | Respondent |
Parties | A complainant | A Retail company |
Representatives |
| Niamh Ní Cheallaigh IBEC |
Complaint(s):
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-00061519-001 | 12/02/2024 |
Date of Adjudication Hearing: 18/07/2024
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant is employed by the Respondent. |
Summary of Complainant’s Case:
The Complainant is non-national. Some of the issues she is raising have been misinterpreted by colleagues, so she has brought an interpreter to the hearing for clarity. The Complainant claims she is being discriminated against, harassed and victimised due to her gender, race and age by the Respondent. The last act of discrimination took place on 11th February 2024. The Complainant says she has worked with the Respondent since 2022. She finds customers can be aggressive and racist as she is non-national. The Respondent does not have signs requesting consideration for staff, particularly for non-nationals. She has been attacked verbally on several occasions. She was laughed at by a customer due to her pronunciation, and this happened in front of a supervisor. She left the self-scan area and went to the bathrooms to cry. She wanted to go home. She was told she must continue to work no matter her condition. She has not been provided with training in how to deal with aggression from customers. When she raises the problem with management, they say they are busy, and customers are like that. She has been unsuccessful in resolving the issues in her workplace through emails and discussing issues internally. On 11th February 2024, the team leader did something violent and not professional at work. He was aggressive and overreacted. He shouted at her that she was unprofessional. She had to leave the shop as he was pursuing her and shouting at her in front of customers. The company offered support which is not sufficient. She is alone in Ireland. She has been receiving therapy since 2022. Some days her colleagues see her crying, she suffers from depression. She is being exposed to verbal and physical aggression and nothing is being done to address this. There was an internal procedure in relation to the incident with the team leader. There were interviews, he denied the incident took place and said she provoked the treatment. However, there are cameras in the store that video and record incidents, so this is not true. Since the internal process, some of her colleagues have stopped speaking to her and are distant. Before Christmas she tried to talk to some managers to say she wanted to take holidays before Christmas, but they ignored her. When she returned from holidays, she was told she was a bad example, and they would decide how to fire her. The company say they need her and never approve holidays at Christmas. The Complainant says this is not a fair way to treat her in front of customers and other colleagues. There are several CCTV screens in the store so the behaviour can be seen by management. She is fed up with the way she is being treated by colleagues, and called a nickname. She is being treated poorly, disrespected and differently to others. In October 2023, one of her doctors requested that she does not lift heavy goods as she hurt herself lifting waters. She reported the incident to her supervisor. He did not tell her about insurance for accidents. On 23-27 May 2024 she got Covid-19 and submitted a medical certificate, but she did not receive sick-benefits. |
Summary of Respondent’s Case:
The Respondent denies the Complainant has been discriminated against on grounds of her gender, race and age, or harassed or victimised. The Complainant commenced work with the Respondent as a customer assistant on 3rd December 2022 working part-time hours. The Complainant was provided with a contract of employment which she signed on 30th December 2022. The Respondent received a letter from the Workplace Relations Commission on 12th February 2024 regarding the discrimination complaint which was the first time the Respondent became aware of any concern. On 6th March 2024 a grievance hearing took place with the Complainant which discussed the nature of her alleged treatment. The Complainant outlined what she believed to be her alleged mistreatment as follows: A discrimination problem in the Complainant’s last company, the Respondent never shared how to deal with difficult customers, she failed the company’s Think 25 policy as she was upset after allegedly being treated badly by a customer, alleged incident with the Team Leader, time off prior to Christmas 2023 which were not signed off by the company, colleagues allegedly calling her “Shakira”, and her name badge was incorrect. HR investigated the allegations which were raised with administration who said they had no recollection of her badge being raised by the Complainant but would have no difficulty replacing it if it was incorrect. The Deputy Manager reported that the Complainant said at interview the reason for she was leaving her previous workplace was that she was not receiving enough hours, there was no mention of discrimination in her previous workplace. He said the Complainant did not raise any concerns regarding discriminatory behaviour in the store nor had he witnessed any discriminatory behaviour. Other colleagues said they never heard the name “Shakira” used, that the Complainant was not shouted at by the Team Leader but instructed to help customers and be more proactive. Another member of management outlined that the Complainant was previously disciplined for failing the “Think 25” in line with company policy. The warning was not appealed by the Complainant. She was trained on this policy and treated the same as any other employee. The manager was not informed of any problems the Complainant had with customers. She heard of one negative experience from another member of staff, and spoke to the Complainant regarding her alleged encounter with the Team Leader. She told the Complainant to come to her if there were any problems with managers but she did not. She clarified the Complainant took unauthorised leave at Christmas 2023 after her annual leave was declined in line with company policy. The Complainant had received her full training. Other colleagues confirmed the self-scan area was always appropriately staffed. On 17th April 2024 the Respondent met the Complainant at a follow up grievance hearing and was provided with the interviews. She retracted allegations against one member of staff. The Complainant was given the opportunity to respond to the interviews. On 21st May 2024 the Respondent met the Complainant to advise that her grievance was not upheld. A right of appeal was given to her which she did not use. Mediation was recommended to assist the Complainant resolving allegations with her colleagues, but the Complainant did not want to proceed. This offer remains open. The Respondent has a grievance and bullying and harassment policy in place which the Complainant did not use and the Respondent was unaware of her alleged mistreatment prior to receipt of this complaint. The Respondent requests the complaint be dismissed and says a prima facie case of discrimination has not been established in accordance with the principles set out in Southern Health Board v Mitchell DEE011 [2001] ELR 201 and Margetts v Graham Anthony & Company Ltd EDA038. The Respondent submits the Complainant has not provided evidence of less favourable treatment or discrimination. |
Findings and Conclusions:
The Complainant complains that she has been (i) discriminated against in terms of S6 (2) (a) (f) and (h) of the Employment Equality Acts 1998-2015 (ii) harassed by the Respondent on grounds of race, gender and age in terms of S6 (2) and contrary to S14A of the Acts, and (iii) victimised by the Respondent in accordance with S74 (2) of the Acts. In reaching my decision I have taken into account all of the submissions made and evidence given in the course of the hearing. In light of the Complainant’s disability, I am anonymising the identity of the parties to this decision. The Complainant is a Salvadoran national who took up employment as a customer assistant with the Respondent on 3rd December 2022. The burden of proof is set out in Section 85A (1) of the 1998-2015 Acts which provides 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.” Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent. The Complainant details a number of alleged incidents and claims that she was discriminated against, harassed and victimised in various overlapping incidents. I will deal with these overlapping claims in the alternative in line with A School v A Worker EDA 122. S6 of the Employment Equality Acts 1998-2015 states that discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned. The “gender ground” is defined in the Acts that one is a woman and the other is a man, the “race ground” is that they are of different race, colour, nationality or ethnic or national origins and the ” age ground” is that they are of different ages. The Complainant signed her contract of employment with the Respondent on 30th December 2022. This contains reference at clause 18 and 21 to a grievance procedure and people policies being available. The Complainant’s contract of employment states that annual leave should be taken as follows one spring week and two summer weeks with the balance as individual days. Annual leave will not normally be granted during our exceptionally busy times.ie Christmas and Easter holidays. All annual leave requests to be submitted on the “Holiday Request Form” which need to be signed off by a manager. The Complainant complains that customers can be aggressive and racist to her as she is non-national. There are no signs requesting consideration for staff, particularly for non-national staff. She says she has not been provided with training in how to deal with aggression from customers. The Respondent has provided evidence that the Complainant attended all training on company policies on grievance, bullying and harassment, and diversity and inclusion. The Complainant has not requested extra training. The Complainant alleges that on 11th February 2024 her team leader was aggressive and overreacted. She says he shouted at her that she was unprofessional. She alleged she had to leave the shop as he was pursuing her and shouting at her in front of customers. Subsequent to receipt of this complaint from the Workplace Relations Commission, the Respondent carried out an investigation into the Complainant’s grievances. The investigation statements from the Store Deputy Manager and the Complainant’s line manager say they had not receive any complaints from the Complainant about aggression and verbal attacks by customers or difficulty with other colleagues. The Complainant’s line manager was only aware of her complaint regarding the customer she dealt with on the day she failed Think 25 and the incident on 11th February 2024. The Complainant’s line manager said the usual ratio of staff to customers are applied to the self-scan area. The Team Leader’s statement denies the allegations of the Complainant. He said she was not doing her job correctly on 11th February 2024 as she was not calling customers for card or cash tills, and where she stood she could not see what was happening. He said if customers are rude, a colleague can call the team leader or manager will deal with the issue, but the Complainant never asked for assistance. The Respondent clarified the store CCTV is retained for twenty-eight days and was not available to review for the investigation. The Labour Court in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the evidential burden imposed on a Complainant by section 85A of the Act 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.” I have carefully considered the evidence and submissions of the parties and find the Complainant has not raised a prima facie case of discrimination on the grounds of race, gender or age. There is no evidence of harassment or victimisation of the Complainant and I dismiss the complaint. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
There is no evidence of discrimination, harassment or victimisation and the complaint is dismissed. |
Dated: 10.04.25
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Key Words:
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