ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002237
Complaint for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 10/11/2016
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
In accordance with Section 79 of the Employment Equality Act, 1998, following 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.
Complainant’s Submission and Presentation:
The complainant contends that she was unfairly dismissed on grounds of race, being of German nationality. Her representative outlined the sequence of events which led up to her contract being terminated. Specifically, it was emphasised to her by management that there was nothing wrong with her performance and that she had to be let go because there were complaints from customers. The complainant tried to get information on who made complaints and what the nature of the complaints were. However, she was not given the information. She came to the conclusion that it could only be on grounds of race that she was dismissed.
Respondent’s Submission and Presentation:
The respondent gave a detailed submission, summarised as follows:
The complainant was dismissed during her probationary period as she was deemed unsuitable to the role of shop assistant. She had first been on deli duties, and that did not work out. She was then transferred to the tills, but the long queues and complaints from customers meant that the respondent had no option but to terminate her employment. The respondent gave the complainant the same on the job training as all other staff, and the complainant’s contract specifically states that her employment may be terminated at any stage during or at the end of the probationary period.
It should be noted that the respondent operates within a Group of three retail outlets and one fast food restaurant and employs approximately eleven different nationalities across the Group.
Having investigated the complaint I find as follows:
The complainant was employed on a written contract of employment from 12th August 2015 and her employment was terminated on 6th October 2015. The written contract provides for a probationary period of six months. It was clear at the hearing that the reason for the termination of her employment was due to unsatisfactory performance. I accept the complainant’s evidence that she received no specific performance feedback and that she was told her dismissal was due to customer complaints. The respondent employer should take some account of the need for clear dealings with employees in relation to performance issues.
Establishing a prima facie case.
The general rule in the context of the burden of proof is that the burden lies on the party asserting a particular claim.
I have examined whether the complainant has established a prima facie case of discrimination. The Labour Court, in Mitchell v Southern Health Board  ELR 201 emphasised that, in the first instance, 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 continued:
“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 was no infringement of the principle of equal treatment”.
In order to determine whether the complainant has established a prima facie case a three tier test is employed:
First, the complainant must establish that she is covered by the relevant discriminatory ground.
Second, she must establish that the specific treatment alleged has actually occurred.
Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.
In this instant case, the agreed facts of the case are that the complainant is a German national, covered by the race ground. It is common case that she was dismissed from her employment.
In considering the third tier of the test, I have noted that the respondent failed entirely to follow proper procedures in dealing with the alleged performance shortcomings of the complainant and instead relied on a general ‘customer complaints’ reason for her dismissal. While this is not satisfactory from the complainant’s side, the fact that the treatment was less favourable than what would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground has not been proven.
I find that the complainant has not established a prima facie case and her complaint therefore does not succeed.
Dated: 15 December 2016