Complainant

Respondent

Parties

Mark O'Connor

Ballymaley Stores Limited

Representatives

Self-represented

Mr Anthony Nagle, Company Solicitor

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-00051109-002

11/04/2022

The respondent trades under the “Homesavers” banner and has around 50 stores across Ireland.  The complainant joined the business on November 1st 2021 as a supervisor in the Bunclody store.  A contract of employment submitted by the respondent shows that he was employed for a fixed term of six months at an hourly rate of €11.20.  He was dismissed on November 29th 2021 when he was informed that he failed his probation.  The complainant claims that his dismissal occurred because he is a member of the Traveller Community.  The respondent’s case is that the complainant’s employment was terminated due to issues with his performance.

Evidence of the Complainant

The complainant said that he started working as a supervisor when the store in Bunclody was newly opened.  His first few days were spent unloading pallets and packing the shelves.  He said that he “turned a blind eye” when the area manager told him to leave wooden pallets to the side because “the knackers go mad for them.”  When he heard this comment, he said that he was “surprised, but not surprised.”  He said that he felt that if he revealed his identity, he would lose his job. 

When the shop was open for a couple of weeks, the complainant said that a customer from the Traveller Community came in to return a broken vacuum cleaner.  The customer was annoyed when she was told that she couldn’t have a refund because the item was damaged and she asked to speak to a manager.  The complainant and another supervisor phoned the manager who instructed them to give the customer a refund.  The complainant said that the manager then asked if the customer was a Traveller.  When she was informed that she was a Traveller, the complainant said that the manager replied, “fuck her, let her come into me on Monday.”  The complainant said that he knew that this wasn’t fair.  He said that he felt “stuck” and that he liked the job.  The store was near his house and he had left a good job to work with the respondent.  He had a daughter aged one year and he wanted to provide for his family.

Soon after the “hoover” incident, the complainant said that three lads came into the store with navy work jackets with the name of the place where they worked on the jackets.  He said that one was his cousin, and the two others were his grandad’s brother and his son.  He was instructed by the manager to “follow the three lads with the navy jackets.”

The next day, he said that he was told to follow a “knacker woman with a child.”  The child was wearing slippers that were sold in the shop.  The complainant said that he told the manager that the woman was his aunt and the child was his cousin and that he wasn’t following Travellers around the shop.  He said that the manager asked him if he was related to “every fucking knacker in the town,” to which he said that he replied, “most of them, yeah.” 

The complainant said that the reference to members of the Traveller Community as “knackers” was like a “punch in the gut.”  He said that Traveller children were always followed in the shop, whereas settled children from after school study groups were not followed.  He said that a woman who was well known in the town as a shop-lifter walked out of the store with a Christmas tree.  He said that when he told the manager that she should be followed, he was told “don’t worry about her, worry about the knackers.”

On November 29th 2021 at 12.00, the complainant said that his store manager was in the office with another supervisor and he was asked to come to a meeting.  The store manager is Ms Leah Sullivan and the supervisor is Ms Carol Clarke and both gave evidence for the respondent.  The complainant said that Ms Sullivan told him that Ms Clarke was in attendance for her protection, and then she said, “and for your protection.”  Ms Sullivan told the complainant that he had failed his 13 weeks’ probation.  When he asked for a reason, he said that he was told that there was no reason.  He said that he was asked for his work jacket and t-shirt.  He removed the jacket left the office.  He returned the t-shirt later.  At 12.10, the complainant was walking out of the store and a colleague asked him where he was going and he told her that he had been sacked.  He said that it was the first time that he had had such an experience.

Cross-examining of the Complainant

In response to questions from Mr Nagle, the complainant said that he found the interview process positive and that he got a good feeling about the company.  He said that he was interviewed by Ms Sullivan.

Before he went to work for the respondent, the complainant said that he worked for a motor company.  He gave them a week’s notice and he took a week’s holidays before he started in his new job.  He said that he left the motor company because the job with the respondent was nearer to his home.  He was sent to the Carlow store for training.  He was taught how to use the company’s computer system, how to handle cash on the tills and how to open and close the store.  When he moved to the Bunclody store, he was one of the supervisors, reporting to Ms Sullivan, who was the manager. 

Mr Nagle referred to the complainant’s evidence that he didn’t tell anyone in the store that he was a member of Traveller Community.  The complainant said that one or two people knew.  He named some of the shop assistants who started in their jobs at the same time as him, who, he said, knew about his background. 

One day, when he was in the office with Ms Sullivan, the complainant said that she asked him what the town was like “in relation to knackers.”  He said that he can’t recall her exact words, but that this was the gist of the question. 

Mr Nagle asked the complainant about the issue with the customer who was returning a broken vacuum cleaner.  He said that he was at the tills, keeping an eye to see if the staff needed assistance.  The vacuum cleaner was broken where the hose attaches to the suction pole.  The customer asked for an exchange or a refund and the complainant said that he told that she couldn’t have a refund because the item was damaged.  Another supervisor said the same and the complainant said that they told the customer that the manager wouldn’t be in the store until Monday.  The customer wasn’t happy and he and the other supervisor went to the office and phoned Ms Sullivan.  Ms Sullivan asked the complainant and his colleague if the customer “seemed genuine” and when they replied that she was genuine, Ms Sullivan instructed them to offer her a refund.  Then Ms Sullivan asked, “is she a knacker?”  When they informed Ms Sullivan that the customer was a Traveller, the complainant said that Ms Sullivan replied, “Fuck her so, she can come back to me on Monday.”

Mr Nagle asked the complainant if he questioned the customer about what happened to the hoover and he replied that he asked her if she broke it.  The customer replied that there was a crack in it and, when she started using it, it broke.

The complainant said that he phoned Ms Sullivan about the vacuum cleaner because the customer wanted to speak to a manager.

Mr Nagle asked the complainant about being asked to follow the three men who came into the store who were related to him.  He said that they were his cousin, his grandad’s brother and his son.  He said that Ms Sullivan instructed him to follow them, describing them as “three knackers with navy jackets.”  She instructed him to not let them know he was following them.

Another time, his aunt was in the store with her daughter, who was wearing Christmas slippers that were on sale in the store.  Ms Sullivan instructed him to make sure that they didn’t “pull the slippers off the shelf.”  The complainant said that he told Ms Sullivan that he wasn’t following any more Travellers.  He said that he was never asked to follow anyone else.

In response to a question from Mr Nagle, the complainant agreed that Ms Sullivan would not have known that the men in the navy jackets were related to him or that the lady with the child with the Christmas slippers was his aunt.  He said that some of the shop assistants would have known.

Mr Nagle referred to a role profile document signed by the complainant on November 10th 2021 in which he agreed to certain key accountabilities.  One of these was “to support the store manager.”  Another was to “ensure that the store was kept clean and tidy.”

The complainant said that he and his colleague supervisors were “constantly keeping the store clean” and that they regularly swept the floor.

When he was sent to clean the warehouse for two days, the complainant said that he thought that this was a punishment for refusing to follow his relatives who came into the store.  After that, he said that Ms Sullivan “seemed like a different person.”  When he was finished cleaning the warehouse, the complainant said that he asked Ms Sullivan if he could come back into the store.  After his second day cleaning the warehouse, and although it was clean, he said that Ms Sullivan told him to stay in the warehouse.  He felt that this was punishment for refusing to follow Travellers around the shop.

In response to a question from Mr Nagle, the complainant agreed that cleaning is everyone’s responsibility, but he said that he had finished cleaning the warehouse and he felt that he was being punished.  He said that he thinks that a store assistant should have been asked to do the cleaning before asking a supervisor.  He said however, that he didn’t have an argument with Ms Sullivan, he just “went and did it.”

When he was in the warehouse for the two days, the complainant said that there were no incidents.  He worked with one other person.  After two days, he was let go.

The evening before he was told to clean the warehouse, the complainant said that he was told to leave the cash handling to someone else.  He said, “they didn’t want me handling money.”  He said that this instruction came from Ms Sullivan.  Up to that day, he had been handling cash as part of his job.  He agreed with Mr Nagle that, after he was told to follow the men in the navy jackets who were related to him, he continued to handle cash.  He said that he didn’t tell Ms Sullivan that he was a Traveller until he was asked to follow his aunt and his cousin.

The complainant agreed with Mr Nagle that, on Thursday and Friday, November 25th and 26th 2021, he worked from 1.00pm until 10.00pm.  (The roster submitted after the hearing shows that he worked until 9.00pm on the Friday).  The roster shows that, on Sunday, November 28th, he worked from 8.00am until 6.00pm.  The complainant said that the incident with his aunt and his cousin happened on Friday, November 26th and he was dismissed on Monday the 29th.

Mr Nagle asked the complainant if it was this incident that caused him to make a complaint to the WRC.  The complainant replied that it was “everything that happened.”

The complainant agreed with Mr Nagle that he closed the store on Thursday and Friday, November 25th and 26th and that he was rostered to open the store on Sunday, November 28th. 

In response to Mr Nagle’s question, “you didn’t tell anyone you are a Traveller?” the complainant said that he didn’t think he needed to tell people.  He said that Ms Sullivan knew he was a Traveller when, on Friday, November 26th, he told her that he wasn’t following his aunt and cousin.

The complainant said that no one made any comments to him about the fact that he is a Traveller.  He said that he got on with everyone he worked with and no one made any remarks to him.  He said that he feels that he was punished when it became known that he is a Traveller and then he was let go.

Mr Nagle asked the complainant about his comments that Traveller children are treated differently to settled children.  The complainant said that Traveller children hang around in groups and Ms Sullivan told him that they had to be followed.  He said that the same didn’t apply to settled children.   

Mr Nagle returned to the incident with the lady with the broken vacuum cleaner.  The complainant said that, during his training, he was instructed that, if a customer damaged a product, they were not entitled to a refund.

Mr Nagle asked the complainant again about the meeting on Monday, November 29th with Ms Sullivan and Ms Clarke.  He said that he went to the office and Ms Sullivan told him to take a seat.  She said that Ms Clarke was present for her protection and then she said that she was there for the complainant’s protection also.  Ms Sullivan told the complainant that he was subject to probation of 13 weeks and unfortunately, he hadn’t passed.  He said that he asked Ms Sullivan for a reason and she replied that she didn’t have to give a reason. 

Mr Nagle asked the complainant if he accepted that there is a clause in his contract that provides for dismissal for no reason during probation.  He asked the complainant how he reacted when he was told that he didn’t pass his probation.  The complainant said that he told Ms Sullivan that “this is bullshit and you know it.”  Ms Sullivan told him that he was being let go and that he could finish out the day. 

Mr Nagle asked the complainant why he didn’t use the grievance procedure to complain about how he was treated.  The complainant said that he accepts that someone could have helped him.

The complainant agreed that he returned to the store as a customer on about four occasions.  He said that he didn’t meet Ms Sullivan, but he saw Ms Clarke and he said “hello” to her.  He said that he doesn’t like going into the store and, just because he does some shopping there, doesn’t mean that he likes going in.  He said that he has no problem with the staff and that people always greet him.

Mr Nagle asked the complainant if he thinks that he was treated differently to other employees with regard to cleaning.  He replied that no other employees were constantly cleaning, as he was in the warehouse.  He said that he can’t remember what days he was sent to the warehouse, but for these two days, he wasn’t allowed out onto the shop floor.  He said that he was let go the next time he came back to work.

At the end of his evidence, I asked the complainant if there was anyone in the company that he could have talked to about his experience of working there.  He said that most people were decent to him.  He said that he thinks that he should have been given a reason for being let go.  He reiterated that Ms Sullivan told him that she didn’t have to give him a reason.

In response to Ms Sullivan’s evidence, the complainant agreed that she spoke to him about using his mobile phone at work.  After this conversation, he said that he stopped using his phone.  In relation to his duties and her claim that he didn’t complete his work, the complainant said that he did what he was asked to do, including pricing of stock.

Initial Observations

In his submission for the respondent, Mr Nagle pointed out that, having commenced on November 1st 2021, when he was dismissed, the complainant had worked for the respondent for 15 days.  The roster submitted by Mr Nagle after the hearing shows that Monday, November 29th was the complainant’s 21st day at work.  On November 29th Mr Nagle said that the complainant was informed that his probation was unsuccessful due to underperformance.  Mr Nagle noted that the complainant’s contract provides for dismissal during probation.

Legal Submission and the Burden of Proof

Mr Nagle set out the legal provisions at ss.6 and 7 of the Employment Equality Act 1998 – 2015 which includes a prohibition on discrimination for being a member of the Traveller Community.  He submitted that the complainant has not met the necessary criteria to claim that he was discriminated against contrary to s.6.  He said that he has not set out any circumstances that show he was treated less favourably compared to another person.

Mr Nagle referred to the burden of proving that discrimination has occurred which is set out at s.85A of the Act.  The effect of this section is to place the burden of proof in the first instance, on a complainant, to set out the basic facts which, on an initial examination, lead to a presumption that discrimination occurred.

In this regard, Mr Nagle referred to the important decision of the Labour Court in Southern Health Board v Mitchell[1] where it was held that,

“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 those 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.”

Mr Nagle also cited the decision of the Equality Officer in Minaguchi v Wineport Lakeshore Restaurant[2] and the test which must establish that,

(a)    The complainant is covered by the relevant discriminatory ground;

(b)    That she has been subjected to specific treatment and,

(c)     That the treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would have been treated.

Mr Nagle referred to the decision of the Labour Court in Melbury Developments Limited v Arturs Valpeters[3], in which the Court expanded on what is required to establish the initial proof that discrimination has occurred:

“This requires that the complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Mr Nagle submitted that the complainant must establish facts based on credible evidence, which must not be mere speculations, assertions or uncorroborated evidence.

Submission

Mr Nagle referred to the statement made by the complainant on the form he submitted to the WRC in which he stated, “As a member of the Travelling Community I am sick of the way we are treated by some places.”  Mr Nagle submitted that this suggests that the complainant is sensitive to and predisposed to seeking out elements of alleged discrimination.

The area manager that the complainant alleges made the remarks about Travellers and their interest in wooden pallets no longer works for the respondent but Mr Nagle provided an email in which the manager denied that he made the remarks.

It is denied that the complainant had a conversation with the store manager about Bunclody and Travellers and it is further denied that he was instructed to follow certain people in the store and Mr Nagle said that the respondent’s evidence will corroborate this.

It is denied that the incident about the customer who wanted to return the vacuum cleaner occurred in the way it is described by the complainant.  Mr Nagle said that no aspect of the conversation between Ms Sullivan and the complainant contained discrimination and the store manager followed the normal industry practice with regard to the return of goods.

Mr Nagle referred to the employee handbook which was signed by the complainant and included in the respondent’s documents at the hearing.  At page 10, the respondent confirms that it is committed to equality of employment for all employees.  The respondent also confirms its intention to promote a culture of inclusion.  All employees are issued with a copy of the employee handbook, so they are aware of the company’s policy and ethos in relation to equality and that the company strongly opposes discrimination of any kind.

The respondent denies that the complainant was sent to clean the warehouse for two days.  The requirement to do cleaning and tidying was part of the complainant’s job and was also part of the job of other employees.  In this regard, the complainant was not treated differently to others.  Although the complainant claims that supervisors were not supposed to do cleaning, Mr Nagle said that the job of cleaning and tidying is included in the role profile of the job of supervisor.

It is denied that the respondent didn’t want the complainant to handle cash or to count up at the end of the day.  During the entire time that he was employed, the complainant did handle money and did count up.  The complainant was rostered to close the store on November 25th and 26th 2021, which involved the cashing up of tills and placing money in the safe.  He had full responsibility for opening the store on November 28th.  Mr Nagle said that this is not the action of an employer who subjected the complainant to discriminatory treatment.

Mr Nagle said that the complainant has not shown that the respondent was aware that he is a member of the Traveller Community.  He does not state that the respondent was aware that the individuals he was allegedly asked to follow were related to him.  It is the respondent’s position that they were not aware that he was a member of the Traveller Community, so, the issue of discrimination does not arise. 

It is the position of the respondent that the complainant has not met the burden of proving that he was discriminated against.  The respondent also submits that the complainant’s case contains significant misrepresentations of fact.  Mr Nagle said that he has not proved that he was subject to specific treatment or that the treatment was less favourable compared to any person not covered by the discriminatory ground.

Mr Nagle summarised the respondent’s position as follows:

The complainant has not proved that the two alleged incidents of discrimination that he complained about actually happened.

No comments or actions that were discriminatory in nature were made in the store in Bunclody.

The company’s policy is that discriminatory treatment is not permitted and the employees were trained in this regard.

The company takes a serious view of discriminatory conduct.

The tasks given to the complainant were consistent with those of his job as a supervisor and in accordance with his role profile.

The issues raised by the complainant were not specific to him but were applicable to other supervisors.  He was not treated any less favourably to another supervisor.

The complainant was dismissed due to the following issues related to his underperformance:

(a) Failure to manage and drive the team;

(b) Unauthorised use of mobile phone on the shop floor;

(c) Failure to complete own tasks;

(d) Failure to communicate to the Line Manager.

The complainant’s contract of employment provides that the company can terminate an employee’s employment during the probationary period if it considers the person unsuitable. 

Mr Nagle referred to the decision of the Court of Appeal in the matter of Donal O’Donovan v Over-C Technology Limited and Over-C Limited[4].  Mr O’Donovan was dismissed during his probationary due to his underperformance.  The Court stated as follows:

“During a period of probation, both parties are – and must be- free to terminate the contract of employment for no reason, or simply because one party forms the view that the intended employment is, for whatever reason, not something with which they wish to continue.  Neither party can hold the other to the continuation of the employment against the wishes of the other.  I do not accept that a court can imply a right to fair procedures – still less uphold a cause of action for the breach of such an alleged right – in relation to the assessment of an employee’s performance by an employer (other than for misconduct, which does not arise here) during the probationary period as this would negate the whole purpose of a probationary period.” 

Conclusion

Mr Nagle concluded by reiterating that the burden of proof is on the complainant to establish facts that demonstrate that discrimination occurred.  The complainant must show that he is covered by the relevant ground, has been subject to specific treatment and that the treatment is less favourable when compared to another who is not covered by the relevant ground.  Mr Nagle submitted that the complainant has not demonstrated that he was covered by the ground, was subject to specific treatment or less favourable treatment.

Evidence of the Store Manager, Ms Leah Sullivan

In response to questions from Mr Nagle, Ms Sullivan said that she started working for the respondent in 2020, when she was recruited as the assistant manager of the Arklow store.  She then became the manager of the Bunclody store.

Ms Sullivan said that all the respondent’s employees are responsible for security, cash and cleaning.  Only the management team are responsible for opening and closing the stores. 

Mr Nagle asked Ms Sullivan about the complainant’s evidence about the pallets and the interest in them by members of the Traveller Community.  Ms Sullivan said that she wasn’t aware of the remarks referred to by the complainant.

Mr Nagle referred to the complainant’s evidence that Ms Sullivan asked what the town of Bunclody was like in relation to Travellers.  Ms Sullivan said that she wasn’t familiar with the town and, on the day of induction, she asked her team what it was like.  She said that all the employees were new starters and her intention was to make them feel at ease.  She said that the complainant could have been present when she asked the employees what the area was like.

Mr Nagle referred to the customer who returned a broken vacuum cleaner.  Ms Sullivan remembered getting a phone call from the complainant one evening about this customer.  She said that she thinks it was a Wednesday evening.  She said that she told the complainant what the returns policy was and that there was no entitlement to a refund or an exchange without a receipt.  She remembered that the complainant told her that the customer wasn’t happy and she told him to tell her that she could come into the store on Thursday.  Ms Sullivan said that she didn’t ask the complainant if the customer was a Traveller, and her only concern was about the receipt and proof of purchase.

Ms Sullivan said that she didn’t ask the complainant to follow people in the store and she was not aware that his relations were in the store.

Mr Nagle asked Ms Sullivan about the complainant’s evidence that she asked him if he was related to “every knacker in the town.”  Ms Sullivan said that she had no issue with the complainant’s relations.

Mr Nagle asked Ms Sullivan about the complainant’s evidence that he was instructed to clean the warehouse for two days.  Ms Sullivan said that the warehouse wouldn’t have needed to be cleaned for two days and that the complainant was asked to re-organise the pallets.  She said that all staff do cleaning and maintenance and, in this regard, the complainant wasn’t treated any differently to any other employee.

Ms Sullivan said that the complainant was allowed to handle cash, and that he had the responsibility of being a key-holder.  She said that these responsibilities didn’t change during the course of his employment.  He handed back the keys at the meeting on November 29th 2021.

Ms Sullivan said that she discussed the termination of the complainant’s employment with the area manager and with the HR business partner.  She said that he was dismissed because of his lack of communication with her, because he was not leading or driving the team, for the unauthorised use of his mobile phone and because he did not complete his duties.

Ms Sullivan referred to the meeting of November 29th 2021.  She said that the complainant was working the closing shift.  She asked Ms Clarke to attend the meeting as “a silent witness.”  She said that she asked the complainant to take a seat “for a little conversation.”  She said that she told him that his probation was unsuccessful and that he could work until the end of the week.  She said that he was upset and angry and he decided to leave that day.  She said she told him that she couldn’t answer any questions.  She gave him the email for team members to contact the HR department and she asked him to hand back the keys of the shop.  Ms Sullivan said that she didn’t ask the complainant to return his uniform.  She said that he threw the keys in her direction. 

Ms Sullivan said that she was never aware that the complainant was a member of the Traveller Community.  She said that she became aware in late 2024, when she was informed that he had submitted a complaint to the WRC.  Ms Sullivan said that she is upset about the allegations made by the complainant and she said that he wasn’t treated differently to anyone else.

In response to questions from me, Ms Sullivan said that five supervisors were employed in the Bunclody store, with 12 store assistants and one warehouse assistant.  She said that one other employee was dismissed after six weeks in the job. 

Ms Sullivan said that she wasn’t aware that the complainant was cleaning the warehouse for two days and she doesn’t think he was doing it for two days.

I asked Ms Sullivan whose decision it was to dismiss the complainant.  She said that she and the area manager had a discussion and he advised her to talk to the HR business partner.  She said that the area manager had spoken to the complainant about being on his mobile phone and that she had a conversation with him about this also.  She said that even after this conversation, he still used his phone on the shop floor.

At the shift handover, Ms Sullivan said that the complainant didn’t tell her about tasks that hadn’t been completed.  She said that she needed to be “in the loop” about such matters.  She said that she had to look for answers the next day.  She said that the complainant didn’t fully carry out his duties, for example, some stock was priced and other stock wasn’t priced.

Evidence of the Area Manager, Ms Carol Clarke

Ms Clarke is now the assistant manager in the respondent’s Arklow store.  When the complainant was dismissed, she was in the same job as him, a supervisor in Bunclody.  Ms Clarke said that she had no issues with the complainant and that he worked well in the team.  She said that sometimes the early staff had to follow up on jobs not completed by the evening staff.

Ms Clarke said that she never heard anything about the comments that the complainant alleges were made by the area manager in relation to members of the Traveller Community and wooden pallets.  As a supervisor, she said that she was never instructed to follow customers.  She said that she never came across anyone being asked to clean the warehouse for two days and she doesn’t remember the complainant being assigned to the warehouse for two days.

Ms Clarke said that she did the same job as the complainant, but she said that she was never asked to follow his relations.  She said that she didn’t know that the complainant was a member of the Traveller Community.

I asked Ms Clarke if she was informed beforehand, what the meeting on November 29th was about.  She said that she didn’t know that the purpose of the meeting was to dismiss the complainant.  She said that the complainant was upset when he heard that he didn’t pass his probation and that he threw the keys on the counter.  Ms Clarke said that in her opinion, the complainant was treated the same as other staff.

The Legal Framework

The issue for consideration here is discrimination against a person because of his membership of the Traveller Community, which, as pointed out by Mr Nagle, is listed at section 6(2)(i) of the Employment Equality Act 1998 – 2015 as one of the nine discriminatory grounds.  It is the complainant’s case that, as a member of the Traveller Community, the respondent discriminated against him when he was dismissed on November 29th 2021 after four weeks in his job. 

The Burden of Proof

Mr Nagle also pointed to s.85A of the Act which transposes into Irish law Article 19(1) of EU Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.  Sub-section 1 of s.85A states:

“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 effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Mr Nagle cited the decision of the Labour Court in Southern Health Board v Mitchell wherethis “evidential burden” was described.

My first task therefore, is to consider if the complainant has shown that, based on the primary facts, he was discriminated against by the respondent when he was dismissed on November 29th 2021.

The Primary Facts

The complainant is a member of the Traveller Community and he was dismissed after four weeks’ working as a supervisor in the respondent’s store in Bunclody.  The store manager, Ms Sullivan’s evidence is that, at the meeting at which she informed the complainant that his employment was terminated, she told him that she couldn’t answer any questions regarding why he was being dismissed.  At the hearing of this matter in January 2025, the reasons were given as:

(a) Failure to manage and drive the team;

(b) Unauthorised use of mobile phone on the shop floor;

(c) Failure to complete own tasks;

(d) Failure to communicate to the Line Manager.

As someone on an hourly rate of €11.20, it seems to me that the requirement to “manage and drive the team” is outside the remit of that person’s job.  I note from the role profile document for the job of supervisor that there is no reference to “managing and driving the team” and that the responsibilities of the job are focussed on supporting the store manager.  In his evidence, the complainant agreed that Ms Sullivan spoke to him about using his mobile phone on the shop floor and he said that, when he was spoken to about this, he stopped using his phone.  He said that he did all the work that he was asked to do. 

For the duration of his four weeks of employment, apart from the issue of the mobile phone and a reference to pricing, Ms Sullivan never raised any concerns with the complainant about his work, attitude, performance, communications or conduct.  Most reasonable managers try to avoid dismissing people they have recruited and, it is my view that, having spoken to him about using his phone, if there were other problems with his performance or conduct, Ms Sullivan would have raised them with the complainant.  The fact that she did not do so, and her failure to give reasons for dismissing him leads me to assume that the explanation given by the respondent in their submission of January 2025 was not the reason that he was dismissed. 

Considering the burden of proof established by the Labour Court in Southern Health Board v Mitchell, I am satisfied that the primary facts submitted by the complainant, that he is a Traveller and that he was dismissed without explanation after four weeks, is sufficient to raise a presumption of discrimination.  The burden of proving that discrimination on the Traveller ground did not occur now shifts to the respondent.

The Respondent’s Case that Discrimination has not Occurred

It is the respondent’s case that the complainant’s contract provides that he may be dismissed during probation.  Strangely, although the contract submitted by the respondent shows that the complainant was employed on a fixed-term contract for six months, the contract states that he was subject to probation of 12 months.  The following statement is on page 3, under the heading, “Probation Period:”  

“A probationary period of 12 months will apply from the commencement of your employment.  This allows you time to familiarise yourself with your new role and it gives us time to assess your performance.  If any aspect of your work is not up to standard, your line manager will advise you of the same and give you time to improve.  Once you have successfully completed your probationary period, or any period of extended probation (which will not exceed 18 months), your employment will be confirmed in writing.

If however, your Line Manager considers that you are unsuitable to the Company’s requirements, and that your appointment will not be successful, your employment may be terminated either during the course of or at the end of your probationary period, this will be confirmed in writing (sic).  The Company reserves the right not to confirm your employment during this 12-month period.”

Although Mr Nagle emphasised the entitlement of the respondent to dismiss an employee during probation if they are unsuitable, it is apparent from the two paragraphs above that this provision is subject to the line manager having advised the employee about what is needed to address their performance and giving them time to improve.  While this paragraph also provides that dismissal during probation will be confirmed in writing, that didn’t happen in this case.

The respondent’s employee handbook also contains a comprehensive statement regarding probation:

“On joining the company, employees are required to complete a period of probation.  Details of this will be in your contract of employment.  This allows you time to familiarise yourself with your new role and it gives us time to assess your performance potential abilities.  If any aspects of your work is not up to standard your Line Manager will advise you and give you time to improve.  If however, the Line Manager or any other Manager considers that you are unsuitable to the Company’s requirements and your appointment will not be successful your employment will be terminated during the course of or at the end of your probationary period in accordance with the Minimum Notice and Terms of Employment Acts, 1973/1991.  Your probationary period will automatically be extended to consider any period of absence, either authorised or unauthorised (sic).”

I accept that the respondent was entitled to dismiss the complainant during probation, but it is clear from these contractual provisions that the employer’s policy is to address issues of concern with a new employee in the first instance, and to give them time to improve on their performance or to address any conduct issue.  In the case of the complainant, the line manager did not follow the company’s probation policy and the respondent provided no explanation why this wasn’t done.  This leads me to believe that there were in fact, no problems with his performance or his conduct and that he was dismissed because he is a Traveller.

The complainant gave evidence regarding five specific incidents that, for him, demonstrated that the company had a negative view of members of his community.  These were,

1.       His recollection that the area manager remarked that the Travellers “go mad for” wooden pallets.

2.       His recollection that the store manager asked what Bunclody was like in relation to its Traveller population.

3.       His recollection of the store manager’s response when she was informed on the telephone by him and a colleague that a customer looking for a refund on a vacuum cleaner was a Traveller.

4.       Being asked to observe three men in navy work gear who were in the store.  The three men were related to him.

5.       Being asked to observe a woman with a child wearing slippers on sale in the store.  The woman was his aunt and the child was his cousin.

Ms Sullivan wasn’t involved in the first incident about the pallets, and the manager who allegedly made the remark has left the company.  With regard to the second incident, Ms Sullivan said that she asked the staff a general question about what Bunclody was like.  When she was asked about the customer who wanted a refund on the vacuum cleaner, Ms Sullivan recalled that, when the complainant and another supervisor phoned her about this, she instructed them to tell the lady to come back into the store the following Thursday.  She said that she didn’t ask the complainant to follow anyone in the store.  The complainant’s evidence is that, when Ms Sullivan instructed him to follow his aunt, he informed her that he is a Traveller and he told her that he wasn’t going to follow any more Travellers around the store.  Ms Sullivan said that she didn’t know that the complainant was a Traveller. 

The complainant was cross-examined by Mr Nagle, but, because he wasn’t represented, the evidence of the respondent’s witnesses wasn’t probed to the same degree.  I am required therefore to weigh up the credibility of Ms Sullivan’s unchallenged evidence against the evidence of the complainant.  Ms Sullivan was unable to recall certain parts of the events described by the complainant, although, for the most part, she remembered the incidents themselves; she said that she asked the staff what Bunclody was like, she told the complainant and his colleague to tell the customer with the vacuum cleaner to come in to meet her on the following Thursday and, with regard to the cleaning of the warehouse, she said that the complainant was asked to tidy the pallets and not to do cleaning for two days.  She said that she wasn’t aware that the complainant’s relations were in the store. 

One of the complainant’s key accountabilities was set out in the role profile for his job:

“To ensure that all statutory and Company regulations regarding hygiene, fire, health and safety, cash collections and store security are followed to protect customers, staff and the business interests of the company.”

From this, it is apparent that one aspect of his role was security and it is not unreasonable therefore, that he would be asked to monitor certain people.  Ms Sullivan’s evidence is that the complainant wasn’t asked to follow anyone, and I accept that Ms Sullivan may not have uttered the words, “follow that person.”  As I have mentioned, Ms Sullivan was not cross-examined and her evidence wasn’t probed or challenged.  I am satisfied however, that, if she had been asked if she instructed the complainant to keep an eye on certain customers, she would have said that this was part of his job.

I find it difficult to accept that Ms Sullivan did not know that the complainant is a Traveller and I find it entirely credible that the complainant informed her of this fact when he was asked to keep an eye on his aunt who came into the store her child.  I accept the evidence of the complainant that some of the staff knew that he is a Traveller and it is unlikely, in my view, that this fact would have been hidden from the manager.  It is my view that it is more than likely that Ms Sullivan was told that the complainant is a Traveller and I am satisfied that, if she didn’t know when she instructed him to observe the lady and the child with the slippers, she knew from that point on.

As a member of the supervisory staff, I accept the complainant’s position that it was unusual for him to be sent to the warehouse for two days, when his responsibilities were for security and supervision.  He said that there was a person employed to keep the warehouse organised and that it wasn’t necessary for him to be there also.  Ms Sullivan’s evidence is that she consulted with the area manager and the HR department about dismissing the complainant.  In the absence of any other more credible explanation, it seems to me that, when the complainant told Ms Sullivan that he is a Traveller, she consulted with someone in authority and was instructed to assign him to the warehouse until they decided what to do. 

In defence of the respondent’s position, Mr Nagle asked me to consider the case at the Court of Appeal of Donal O’Donovan v Over-C Technology Limited.  Mr O’Donovan, who was the chief financial officer at Over-C Technology, was informed that his probation was unsuccessful because of his performance.  The Court held that his contract provided that he could be dismissed for unsatisfactory performance during his probation and that it was not necessary to adhere to the fair procedures normally followed in cases of misconduct.  Unlike the complainant, Mr O’Donovan was told why he was dismissed.  Although Mr Nagle submitted that, at the meeting on November 29th 2021, the complainant was informed that he was being dismissed because of his performance, Ms Sullivan’s evidence is that she told him that she didn’t have to give him an explanation.  With regard to this particular matter, I am satisfied that Ms Sullivan’s evidence is entirely credible.  It would have been difficult to tell the complainant that he was dismissed because of his performance, when there were no problems with his performance.

Conclusion

I found the complainant to be a credible witness.  He described what occurred during the four weeks of his employment without embellishment or emotion and his statement on his complaint form that “I am sick of the way we are treated,” concurs with his experience of being dismissed.  Contrary to Mr Nagle’s submission that he was sensitive to discrimination, I found the complainant to be a stoic, pragmatic individual.  He tolerated very poor treatment in the first three weeks of his employment, until he was asked to keep an eye on his aunt, when he decided that this was unacceptable.  It is apparent that his objective was to hold onto his job, despite the disrespectful attitude of certain managers to members of his community.  It seems to me that he presented the respondent with a challenge, to live up to its policy not to discriminate against employees who are members of the Traveller Community and that they resiled from that challenge.

The respondent submitted no evidence that another employee on probation was treated in the same manner as the complainant by being dismissed with no explanation after four weeks.  I am satisfied that, as a member of the Traveller Community, the complainant has shown that, when he was dismissed, he was treated less favourably than others employed by the respondent.  I find therefore, that there is substance to his claim that he was discriminated against.

I have concluded that the complainant was discriminated against on the grounds of his membership of the Traveller Community and I decide therefore, that his complaint is well founded.  In accordance with my powers of redress under s.82 of the Employment Equality Acts, as compensation for the effect of discrimination, I order the respondent to pay him €13,000, equivalent to approximately 26 weeks’ pay.  This award is for the infringement of a statutory right and is not subject to deductions for PAYE, PRSI or USC.

In accordance with section 82(1)(e) of the Acts, I direct the respondent to consult with an advocacy body for the Traveller Community and to provide training for managers regarding the promotion of dignity and respect in the workplace.  

Discrimination on the Traveller Community ground