Complainant

Respondent

Parties

Mary Ellen  Stokes

Dunnes Holding Company Ulc Dunnes Stores

Complainant

Respondent

Parties

Mary Ellen Stokes

Dunnes Holding Company ULC

Representatives

Anjana Hanratty Liam Keane & Partners

Justin P. Condon Murphy & Condon/ EJ Walsh BL

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00064133-001

18/06/2024

On or about the 23rd of December 2023 the Complainant was shopping at the Dunnes Store in Navan. This is a very busy time for any supermarket if not the busiest period.

The Complainant a young mother had her 3 children with her, ranging from 6 to 2 years of age at the time.

The Children were playful, and one child climbed up on display and dislodged clothes that fell onto the floor. Another child placed items into a bag. There is no allegation of theft against a child.

The mother had shopped in that store from several years without incident.

The Assistant Manager following store protocol was checking the area particularly regarding product displaced or on the floor. He was checking store areas in line Health and Safety protocols.

The Complainant alleges that the assistant manager excessively and without cause followed her and in effect she was put under surveillance. This would not have occurred to a mother of the settled community with 3 young children.

She had 3 young children and because she was a member of the Traveller Community she was placed in effect under surveillance and stared at as a way of intimidating her.

This is denied in its entirety. The Assistant Manager stated that he was supervising the area only regarding his obligation to make sure that no product is left lying on the floor. His actions are consistent with policy and would be applied exactly in the same way to all customers. The Manager stated he had no way of knowing in the first instance that the Complainant was a Traveller; however, when he spoke to her, he accepted at that time, but not before, that he believed her to be a member of the Traveller Community. That did not inform his actions as he was doing his job by checking shop areas and that they were safe.

The mother believes that in contrast to parents from the settled community she and her children were subjected to excessive surveillance. Her very young children aged from 6 and under were simply normal children exploring and were appropriately told to put things back that they picked up out of curiosity and playfulness. Her 3-year-old child was putting clothes in a bag and believes the Manager believed that she was stealing. The Manager didn’t’ move when she left to pay for her purchases and kept staring to make her feel uncomfortable and that she did something wrong. This in turn led to a scene at the till itself. The Complainant had shopped her for many years and was never subject to such aggressive and intimidating conduct previously. The Complainant was so upset about how she and her children were treated she came back to store shortly afterwards to talk to the manager and to his superior. That conversation became heated, and she threatened to go to the Gardaí about the oppressive conducted visited upon her and her children.

The account does not reflect what occurred and was objectively a normal part of store management to ensure that goods don’t fall on the floor and that children are supervised by parents so that no accidents occur. The manager was following store safety and product display protocols. There was no intent to offend the Customer or her children. At no time was a young child accused of theft. The child had product that had to be put back on display. No staring took place. The area where product had fallen was close a cash till. There was no attempt to follow the customer or intimidate the customer.

It is vey clear that the mother was very upset at what she saw was a slight upon her and her children by the store manager. The question arises was the Complainant visited with unnecessary supervision because she was a traveller? The mother has shopped at the store many times without incident. This incident must be seen as very unusual based on what was a normal and good experience up until the 23rd of December 2023.

The 23rd of December 2023 is one of the busiest if not the busiest for the store. A young mother with 3 young children active and displacing product is likely to receive attention in the light of store protocols. A child climbed up onto a display. All of this is normal behaviour; however, it poses risks to a store with so many customers shopping on that day.

There is a conflict in evidence between the manager and the Complainant. The Mother is alleged to have made very insulting and defamatory allegations about the assistant manager to his store manager. Those allegations are denied by the mother.

There is no doubt that there was a very heated and intense encounter. The question arises did that intense and very heated encounter occur because of misunderstanding and believing that a child was being accused of theft? Would that exchange have occurred if the Customer was not a traveller?

The assistant manager, who is accused of treating the mother and her children less favourably stated that he didn’t know the customer was a traveller until he spoke to her, he was simply auditing his designated work and display areas when he noticed the dislodged product on the floor. He denies ever accusing the child of theft and simply asked for product not be to be dislodged.

There are several explanations for explaining the mothers very angry reaction to what she perceived to be intrusive and intimidating conduct:

·        The manager treated her differently to other customers because she was a traveller.

·        The manager treated her the same as other customers and the mother perceives that her child is being accused of stealing.

·        The manager treated her the same as any customer who has 3 very young children making a mess of an area on a very busy trading day and the mother perceived she was being accused of not controlling her children.

The manager stays in the area. Under cross examination he is asked why he didn’t pick up the clothes from the floor and why he just stayed in the area. His answer was that was not required rather he had to make sure that customers were not put at risk, so he was supervising rather than fixing the problem. Does this omission create an inconsistency that gives more credence to what the mother perceives to be treatment given to her because she was a traveller.

The meeting that subsequently takes place at the store is reported to be a tirade and a very abusive conversation between the store manager and the parents. It is denied; however, on balance I believe very harsh statements were made about the assistant manager.

There appears to have been an exchange between the mother and a customer at the till and for that reason the manager stayed in the area longer than normal.

The more likely explanation in this case is that the children were causing product to be displaced and to fall on the ground. It was a pressurised day for all the staff. The manager probably had less time to be more diplomatic allowing for that pressure. That in turn probably led to the mother perceiving that she was personally being criticised for not controlling her children. This is what caused her to become angry. There is not enough competing evidence to displace this explanation and that would lend support to the allegation that she was treated less favourably because she is a member of the travelling community.

I can understand why the mother was very upset and angry in what she saw as a manager who doesn’t show empathy or give time to a young mother doing her best to shop and mind 3 active and playful children. However, the allegation of discrimination is a very serious one and the evidence must meet a threshold where it can be said on the balance of probabilities she was treated less favourably because she was a traveller. In this case that test has not been met as there are competing explanations that are more likely to explain what happened.

I find that the Complainant was not discriminated against, and the Respondent did not engage in prohibited conduct. The allegation of discrimination is a very serious one and the evidence must meet a threshold where it can be said on the balance of probabilities she was treated less favourably because she was a traveller. In this case that test has not been met as there are competing explanations that are more likely to explain what happened.

Discrimination