ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00053896
Parties:
| Complainant | Respondent |
Parties | Fahim Sarwar Sahi | Md Burns Co Ltd trading as More 4 Less |
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Representatives |
| John Keenan, JRK Services. |
Complaint:
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-00065729-002 | 02/09/2024 |
Date of Adjudication Hearing: 27/11/2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a complaint has been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the Complaint be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. In these circumstances and following a referral by the said Director General, of this matter to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose (and/or an Equality Officer so appointed).
An Adjudication Officer cannot entertain a complaint presented after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates, or such other date as may be set out in Section 41(6) of the WRC Act of 2015. In limited circumstances, complaint presented outside the relevant period may be entertained if the failure to present was due to reasonable cause. The Complainant form herein issued on the 2nd of September 2024. At the outset I must consider the six-moth period immediately preceding this date.
Where a person believes they have been discriminated against on one of the nine recognised grounds or in any other way has been treated unlawfully under the Employment Equality Acts they must write to the party that they believe has treated them unlawfully using the EE2 form asking for relevant information to determine their course of action. The proposed Respondent may reply by way of form EE3. No issue has been raised in relation to this formality.
The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in his Workplace Relations Complaint Form dated the 2nd of September 2024) seeks redress from the Respondent in circumstances where he claims his Employer (the Respondent) behaved unlawfully and discriminated against him in the course of his employment wherein he says that he was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of his Religion (as detailed in Section 6 of the 1998 Act (as amended)).
The Operative Section is Section 6 of the Employment Equality Act 1998 where :-
Sub Section 6 (1) For the purpose of this Act…discrimination shall be taken to occur where… a person is treated less favourably than another person is, has been or would be treated In a comparable situation on any of the grounds specified in subsection (2) (the “discriminatory grounds”).
Section 6 (2) As between any 2 persons the discriminatory grounds .. are…
(e) That one has a different religious belief from the other or that one has a religious belief and the other has not… (the “religion ground”)…
In the event that the Complainant is successful it is open to me to make an award of compensation and /or give direction on a course of action which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act).
It is acknowledged that in the context of employment equality issues, a complainant may well have little or no direct evidence of discrimination.EU law recognised this and has adopted a burden of proof in all Equality Directives which recognises the difficulty of giving evidence of direct discrimination. Article 19(1) of the Recast Directive (Directive 2006/54) provides as follows –
“….when persons who considered themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.”
This has been transposed into Irish law by section 85A of the Employment Equality Acts:
“in any proceedings facts are established .. by… a complainant from which it may be presumed there has been discrimination in relation to him/her, it is for the respondent to prove the contrary.”
This amounts to what is known as the Prima Facie obligation on the Complainant. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
There is no exhaustive list of circumstances which are required in terms of discharging the initial burden - the Labour Court has consistently stated that “the type or range of facts which may be relied upon by a complainant can vary significantly from case to case. “.
The Labour Court’s (and WRC’s) approach to this issue and the test for applying section 85A (burden of proof) is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v Southern Health Board ([2001] ELR 201):
“the claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only where these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”
The Labour Court has also consistently stated that:
“The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts” Kieran McCarthy v Cork City CouncilEDA082
Once the Prima Facie case is established, the Respondent must rebut the prima facie case. This will require cogent evidence.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.
It should also be noted that the Complainant and Respondent witnesses were all agreeable to giving a formal affirmation that all evidence provided would be truthful. The giving of false statements or evidence is an offence.
The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 2nd of September 2024.
At the completion of the hearing, I did take the time to carefully review all the oral evidence and documentation together with the written submission made by the Respondent. I have noted the respective position of the parties. I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a
“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.
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Summary of Complainant’s Case:
The Complainant was not represented and made his own case. At the outset the Complainant agreed to make an Affirmation to tell the truth. The Complainant did not provide me with any submission or supplementary documentation. The Complainant relied on the narrative set out in his workplace relations complaint form and gave his own comprehensive oral evidence. The Evidence adduced by the complainant was responded to by the Respondent representative. Much of the Complainant’s evidence has been challenged. The Complainant alleges that he was discriminated against on religious grounds when his Employer would not allow the Complainant to be absent from work for seventeen consecutive working days. The Complainant says he needed all these days to facilitate a religious ceremony in Saudi Arabia followed by a visit to his family in Pakistan. The Complainant says that not allowing these days amounted to a discrimination by reason of his religion, a victimisation and unlawful treatment. Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance. The issue of the Prima Facie case came into sharp focus in this case. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent had representation at this hearing in the person of Mr. Keenan of JRK services. The Respondent provided me with a written submissions dated 25th of November 2024. The Administrative Manager attended to give evidence for the Respondent had it been required. In the end, Mr. Keenan was happy to rely on the submission made. The Respondent rejects that there has been any discrimination, and alternatively suggests that the Complainant was caught out fabricating an illness so that he could leave the country on a date that suited the Complainant. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. At the outset I must confirm that everybody acknowledges that the complainant herein was an excellent store Manager whose performance had been widely appreciated across this business. The Complainant had come to be placed in the Respondent ‘s Kilbarrack shop in and around 2022. In early 2024 the complainant addressed the issue of his Annual Leave with the Area Manager a Ms. T. The Complainant was proposing the following: That on the week ending Friday the 9th of August the Complainant would switch his two rostered days off from the Sunday and Monday to the Thursday and Friday (the 8th and 9th of August). Thereafter the Complainant proposed he would also take a further three working weeks of annual leave returning on the 31st of August 2024. This is 24/7 operation. The request was refused on the basis that the company does not allow absences for more than fifteen working days in a row. This was seemingly being described as company policy though the Complainant says he was not aware of this policy. The Company was happy to sanction the Complainant’s holidays from the 10th of August to the 31st of August- three working weeks. The Company was not happy to sanction the further two days rostered leave immediately preceding the 10th of August. At a point unknown the Complainant indicated that he needed to travel for religious purposes. In his evidence to the WRC he indicated that he had wanted to perform Umrah. The Respondent contends that it was never told what religious ceremony the Complainant was seeking to perform, and it seems, in fact, that the Respondent never really asked. From what I can understand, millions of Muslims travel to Mecca from across the globe to perform Umrah which is an act of worship and devotion. Worshippers from outside Saudi Arabia usually travel in by plane and need to apply for a special Umrah visa that is valid for a month. Umrah can be completed in under two to four hours, depending on how busy it is. Umrah can be performed throughout the year unlike Hajj (another religious ritual) which is performed only at a specific time, between the 8th and the 13th of Dhul Hijah, the last month in the Islamic lunar calendar. The Complainant told the WRC that he had arranged to be in Mecca for the 10th of August and required the 8th and 9th presumably for travel purposes. These specifics had not been mentioned previously to his Employer. What is not clear to me is why the Complainant could not have included the three days of the 8th 9th and 10th of August as a part of his annual leave and come home three days earlier on the 29th of August. Alternatively, it seems to me that the complainant could have travelled on the 10th and performed Umrah on the 11th of August as the performance of Umrah is not date specific. I am satisfied that in discussion with his Employer, the Complainant was vague about the need to be away to perform a religious ritual and that the Employer did not make further inquiries. It seems to be common case between the parties that in and around March of 2024 the Complainant made a throw away comment to the effect that he would or could simply be calling in sick on the 8th and 9th of August. This comment was made to Ms. T who appears to have noted it. I understand that some time after this the Complainant sought three weeks annual leave to commence on the 10th of August 2024. In and around July of 2024 a policy circular was sent around to all branches of the retail outlets concerning applications for annual leave. I understand that the policy was formally articulated in this way on foot of a recommendation by the external HR expert Mr. Keenan. Mr Keenan had met with the Complainant in May of 2024 on foot of the issues and complaints he was making as regards not being allowed to apply for up to 24 consecutive days away from the workplace. The Policy notes that a maximum of 21 days can be applied for at any one time. I must also note that the policy specifically stated that Annual Leave cannot be taken immediately following Sick Leave. The practicality of such a policy must be in doubt as nobody can control when they are sick. However, I must assume that at that point in time the Complainant was at least on notice of the fact that the Employer was looking out for attempts to run sick leave up against annual leave to extend time off. On the 7th of August the complainant went home from work sick and did not return to the workplace until early September 2024. The Complainant says that he was sick for the 8th and 9th of August and although a medical certificate is provided, its provenance is not clear and there is no diagnosis. This medical cert was provided to the Respondent on the 12th of August. It simply stated he would not be at work on the 8th and 9th of August. Crucially, the Complainant has not now or at any time in the past been able to adduce any credible evidence that he flew out of the country to Saudi Arabia on August the 10th 2024. Nor has the Complainant been able to establish that he was in the country on the 8th and 9th of August respectively. The Respondent is firmly of the belief that the Complainant acted on the proposition that he had made back in March 2024 when he had stated that he would simply call in sick on the two days concerned. This, the Respondent says, was his solution for sticking to his travel plans. The Respondent is therefore of the belief that the Complainant left the country on one of the two days he said he was out sick – the 8th or 9th of August. It must also follow that the flight had been booked and paid for in advance too. Certainly, I can understand that the Respondent felt it was dealing with a situation where a trusted employee was seemingly acting in an untrustworthy way. However, whether the employer was entitled to stop holiday pay to my mind is questionable. The non-payment of the Complainant’s wages in the middle of August caused great upset and inconvenience to the Complainant who was after all on his deserved annual leave. I understand that the rationale behind this decision was the implementation of the policy recently articulated - that Annual Leave cannot be taken immediately following Sick Leave. As previously noted, I have my doubts about the fair implementation of this policy. On his return the Complainant was suspended on full pay pending an investigation into the conduct. I am advised that on the advice of the HR Consultants, the complainant’s lost pay was paid to him. The Complainant resigned his position before the matter moved to the disciplinary phase. The facts of this case might more comfortably have fitted into an IR claim or a constructive Dismissal claim. I am being invited to consider this matter as it might fit into the Employment Equality legislation. On balance I am not satisfied that the complainant has made out a Prima facie case of having been treated less favourably than anyone else has on the basis of his religion. The root of the problem is the stance taken by the Employer to limit the number of consecutive days it would want an Employee to take off. Some workplaces will not allow employees to be gone for more than two consecutive weeks. The limit here is a more generous three weeks. This is not of itself an unreasonable policy, and the store Manger might be considered more crucial than others in this regard. To suggest that the implementation of this policy is discriminatory to the complainant’s religious beliefs or rights is not tenable. There is an expectation on the Complainant as with all Employees to organise his/their time off around events (religious or otherwise) that are meaningful to them. It is simply a question of good management. On balance therefore I do not find that the Complainant has made out a Prima facie case in this matter.
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Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00065729-002 – The Complainant has not established that he was discriminated against on grounds of his religion and the complaint herein fails.
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Dated: 11-02-2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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