ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006675
Parties:
| Complainant | Respondent |
Parties | Kathleen McDonagh | Dunnes Stores |
| Complainant | Respondent |
Anonymised Parties | N/A | N/A |
Representatives | Gilvarry & Associates, Solicitors, Gary Mulchrone | Byrne Wallace Solicitors, Emmet Whelan |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act 2000. | CA-00009059-001 | 9th January 2017 |
Date of Adjudication Hearing: 9th August 2017
Workplace Relations Commission Adjudication Officer: Seán Reilly
Procedure:
In accordance with Section 41 of the Workplace Relations Act 2015, Section 25 of the Equal Status Act 2000, and 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.
Background:
The Complainant had submitted a complaint under the Equal Status Act that she had been discriminated against and harassed by the Respondent on the grounds of her membership of the Travelling Community and the Respondent was denying the complaint.
Summary of Complainant’s Case:
The Complainant said that she a member of the Travelling Community living in a named area of Castlebar, County Mayo. She is a widow and has raised her 6 children on her own, most of whom are now grown up.
On 14th October 2016, the Complainant entered the Dunnes Stores premises in the Market Square, Castlebar. She wished to purchase a suitcase for a forthcoming Pilgrimage Trip to Medjugorje. The Complainant spent a long time (circa 30 minutes) going round the Store seeking a suitable item at the correct price. Eventually she found a suitcase suitable to her needs and it appeared to be the last of its kind on display in the Shop at that price and she understands it was the display model. She brought the item to the payment checkout and conversed with the woman working the till. She says that woman was very pleasant to her and she said that she knows a lot of the employees at the Store as she has shopped there on occasion over the years. She said she shops there about twice a month.
While she was at the till the woman at the till told her that suitcase would not scan properly as there was no proper sticker on it and she had to manually input the details by typing in the numbers, so some delay was caused by this. Eventually it was sorted out, the Complainant paid for her purchase and she then left the Store and she was satisfied with her purchase.
As she had left the Store and was walking along the public footpath at the exit from the Store directly opposite another named premises, a man came running behind her exclaiming in a loud voice “Excuse Me”. The Complainant believes the man shouted at least 2 or 3 times and she was not sure whether he was directing his comments at her or somebody else. When he stopped running and stood right beside her she asked him; is it me you are talking to?” and he replied; “Yes I want you to come back into the Shop.” The Complainant said she was very embarrassed and asked what was the problem. He replied “It is to do with your case.” Rather than have an argument on the Street, she agreed to walk back to the Store, as she was embarrassed and there were people on both sides of the Street watching at the time as this Man ran after her and confronted her on the Street in his Dunnes Stores Uniform. She believes he is a Security Guard and he was dressed in formal wear, in dark clothing that had a Dunnes Stores badge pinned on his clothing.
The Complainant said that when she got back inside the Store she was made to wait in the porch area by this man, who told her to wait there and a taller man with grey hair wearing a suit, who she believes was a manager came up to her and “We can do this easy way or the hard way, either you can come up to the Office and we can talk about this or we can ‘phone the Guards?” The Complainant said that she was stunned at this development and was in shock and she said she would prefer if they were dealing with it like this that they would ‘phone the Guards as she did not feel comfortable going into any private office with anybody as she had done nothing wrong.
She said the men did not ring the Gardaí and they were trying to convince her to go to the Office when another Dunnes Stores employee suddenly approached the two men standing next to her. The Complainant said that this man was wearing a pink shirt and he walked over to the two men and said to them “It’s okay, she has paid for her items. I have checked it on the CCTV.”
The Complainant said that up to this point she was not sure what was going on and whether there was some confusion with the label scanning and she then said; “Excuse me, are you accusing me of theft?”. The Complainant said that she was disgusted at this treatment of her and she asked them how dare they treat her like that. She said that when she confronted the men and told them that this was a disgraceful way to treat her and that she would be going to her Solicitor about it, all the people walked off without apologising to her.
The Complainant said that the entire incident was witnessed by a number of shoppers who were in the Store and indeed also by people on the Street who saw the man running after her. She said that many of the people who were in the Store and who were on the Street were known to her. She said these people saw her being walked around by staff from Dunnes Stores and she was mortified by what happened. She said that in particular she remembers an Indian couple standing in the Porch looking at her and she felt judged and looked down upon.
The Complainant said that she is very upset at the manner in which she was treated and she believes that there is no way something like this would have happened if she was a settled person. She said she could understand if some sort of mistake had happened and if her purchase was queried in the correct way, however she was pursued down the Street and shouted at in full view and earshot of other members of the public and marched back to the Store and she was immediately accused of theft without ever having the dignity to clarify the matter in a discreet and careful manner. The Complainant believes that the employees of the Respondent in this case treated her with complete and utter disrespect and clearly and positively discriminated against her on the grounds of her membership of the Travelling Community.
The Complainant said she experienced a previous incident in the Shop when her two youngest children were aged about 5 or 6 years over 10 years ago. On that occasion a female security guard accused the Complainant of stealing children’s clothes. It was clarified that the Complainant had paid for all of the items in full and had a receipt. Because she is a traveller the Complainant feels obliged to carry receipts for all her purchases in shops as she is often afraid that she will be accused of doing something like this. On that previous occasion in Dunnes Stores, Castlebar Store over 10 years ago the woman who accused her begged her not to make a complaint about the incident and because the woman had the dignity to apologise to her she did not bring the matter further. She believes on this occasion she was treated with such an utter lack of respect and harassed and abused and accused in full view of members of the public that she cannot allow the matter to be left as it is.
A letter notifying the Respondent of the incident was issued to the Respondent on 5th December 2016, requesting an apology from the Respondent, but no response whatsoever was ever received to this correspondence from the Respondent, not to mention an apology.
It was submitted on behalf of the Complainant that she has been clearly discriminated against contrary to the provisions of the Equal Status Act by a Person or Organisation or Company who provides goods, services or facilities to the public. It was submitted on behalf of the Complainant that the discrimination in this case was so deliberate and obvious and humiliating to the Complainant that the maximum compensation permissible under Section 27 of the Equal Status Act 2000 (as amended) should be awarded to the Complainant. It was submitted that in that regard it should be borne in mind that Form ES1 was served on the Respondent together with a covering letter demanding an apology and that no response whatsoever was furnished in response.
The Complainant said she works part-time as a home help carer for elderly members of the travelling community and she is a well-respected and hard working mother who feels particularly aggrieved at being treated in this manner. She said she prides herself on having a good reputation in Castlebar and believes that if she was a settled member of the public not being a member of the travelling community she would never have treated in this appalling degrading manner and again repeats her respectful request for a full and frank apology which at the time of writing has not been furnished.
The Complainant gave direct evidence. The Complainant said that she is a member of the Travelling Community and is also a widow with 6 children, who are mostly adults at this stage.
The Complainant said that in October 2016 she was looking for a suitable suitcase for a forthcoming pilgrimage trip to Medhjgorge. She said she went to the Dunnes Stores premises in Castlebar on 14th October 2016 to see if she could get such a suitcase. She said that she searched the Store for a suitable suitcase and was there for approximately 30 minutes. She said that after some searching she found a suitcase suitable to her needs and at a reasonable price. She said it appeared to be the last of its kind on display in the Stores and she understands it was a display model. She brought the suitcase to the checkout and spoke with the women working the till. She said that this woman was very pleasant to her, she told the Complainant that the suitcase would not scan properly as there was no proper sticker on it and she manually inputted the details and the Complainant then paid for it and she then left the Store with her suitcase.
She said that after she left the Store and was walking along the public footpath, a man came running behind her stating in a loud voice “Excuse me” at least 2 or 3 times and she was not sure if he was speaking to her. She said he was dressed in a Dunnes Store uniform, dark clothing that had a Dunnes Stores badge pinned on it. She said he stopped and stood right beside her, and she asked him “Is it me you are talking to”. She said he replied; “Yes, I want you to come back into the Shop.” She said she was very embarrassed and she asked what was the problem and he said “It is to do with your case.” She said that rather than have an argument on the street she agreed to go back to the Store with him. She identified this man at the Hearing as GP, Security Guard.
She said that when she got back to the Store she was made to wait in the Porch by the Security Guard and they were joined by another man who she identified at the Hearing as JF, Security Manager. She said the Security Manager said to her “We can do this the easy way or the hard way, either you can come up to the Office and we can talk about this or we can ‘phone the Guards.” She said that she was stunned by this and she was in shock, so she said she would prefer if they were dealing with it like this they would ‘phone the Guards as she did not feel comfortable going into any office as she had done nothing wrong. She said they did not call the Gardai, but rather tried to convince her to go to the Office.
The Complainant said neither of the two men rang the Gardai, but rather tried to persuade her to go to the Office. The Complainant said she then rang the Gardai and told them what had happened. She denied in the strongest terms as stated by the Security Manager that she told the Garda on the ‘phone that she had been arrested before and she said that she would have no reason to make such a statement as she had never been arrested (nor was she asked such a question). She said the Garda asked to speak to one of the men and she handed the ‘phone to the Security Manager, who spoke briefly to the Garda and then handed the ‘phone back to her. She said the Garda told her they should sort out matters among themselves.
The Complainant said that as she and the two Security Staff were in the porch they were approached by a man in a pink shirt, who she identified at the Hearing as PW a Department Manager. She said this man said to the two Security Staff, “Its okay, she has paid for her items. I have checked it on CCTV.” The Complainant said that at this stage she realised that she was being accused of theft and she said to the Security Guard and the Security Manager “Excuse me are you accusing me of theft?” She said she was disgusted at this treatment of her and she asked the two men how dare they treat her like that. The Complainant said that the Security Manager then said to her “You are barred. We are not accusing you of stealing, but you are barred.” She said that she told them that this was disgraceful way to treat her and that she would be going to her Solicitor about it. She said that all the people then walked off without saying anything else or apologising to her.
In response to questions about the Respondent’s evidence the Complainant responded as follows.
In respect of the incident on 26th May 2011, the Complainant denied that she had been arrested by anyone. She said that she had never been prosecuted for any offence. She said that it was not she, but rather her then 14 year old son who had changed the price tag on the shirt. She said when they were brought to the office and the matter discovered she offered to pay the full price for the shirt but this was refused. The Complainant did accept that what occurred in switching the price tags was wrong. However In response to questions as to whether it would be reasonable to bar her from the Store in such circumstances she said she did not accept that it was fair or reasonable to bar her from the Store for something her son had done, even though he was a child accompanied by her as his Mother and under her charge at the time.
The Complainant said that she had she frequently, about twice a month, shopped in the Store and that she never had any problem except with the Security Manager. She said that the security manager would behave badly to her if he saw her in the Store and ask her to leave the Store, she said no one else in the Store behaved that way towards and no one else told her to leave the Store. The Complainant said that the security manager behaved the same way with all members of the Travelling Community, but she did not encounter this treatment from other members of staff.
The Complainant’s Representative questioned why the Respondent only retained some of the CCTV coverage and not the part that showed the Complainant in the Store without any let, hindrance or problem for circa 30 minutes or the part where the Complainant was at the checkout till and her interaction with the woman on the checkout till, which would tend to support the Complainant’s position. He further questioned why it would be necessary or appropriate to follow a customer who had already left the Store to inform them they were not welcome in the Store.
The Complainant sought a favourable decision.
Summary of Respondent’s Case:
The Respondent said that they are a retailer of grocery products and textiles and they operate a number of stores throughout the Country, including the one in Castlebar involved in the instant case. The Respondent said they operate a cash and stock business. They said that in order to reduce stock as result of theft, they employ an on-site security team to monitor the Store. They said that when a member of the security team observes that a person has not paid or has only part paid for an item s/he is required to approach the person for the purposes of making an enquiry to establish if a theft has occurred. When a theft occurs the security guard will request the support of An Garda Síochána on-site to deal with the incident as they deem appropriate.
The Respondent said that on 26th May 2011, the Complainant was arrested in the Store by the then Store Security Manager, MH, when she was found to have swapped a price tag of €25 on a shirt with a price tag of €7 and then proceeded to purchase the more expensive shirt at the incorrect lower price of €7. The Respondent said that a call was made to An Garda Síochána and a Garda attended on site. The Respondent said that as result of this incident, and in line with Store policy, the Complainant was informed that she was no longer welcome in the Store. The Respondent submitted the Store Security Manager’s note from 26th May 2011 and the Diary entry from 26th May 2011.
The Respondent said that the Complainant has entered the Store in Castlebar on a number of occasions since 26th May 2011, even though she has been informed that she is no longer welcome to shop in the Store. The Respondent said they raise these other occasions to make it clear that the Complainant has been informed and is well aware that she is no longer welcome to shop in the Store and that the reason for this is her arrest in 2011 and not her membership of the Travelling Community.
The Respondent said that on 14th October 2016, the Complainant entered the Store in Castlebar and purchased a suitcase. The Respondent said that contrary to what is claimed by the Complainant, the Respondent, its servants or agents, did not claim or suggest that the Complainant did not pay for the suitcase. They said the Complainant was told she was not welcome in the Store because of the incident in the Store in 2011. The Respondent submitted the Complainant should not have been in the Store on that day or any other day.
The Respondent said the Complainant left the Store at 15:29:30 on 14th October with the suitcase she had purchased. As she was leaving, PW, Department Manager, recognised the Complainant as someone who was no longer welcome in the Store, he notified JF, Security Manager and GP, Security Guard. The Security Guard left the Store to speak to the Complainant and the Security Manager followed him. The Security Guard informed the Complainant that she should not have been in the Store. The Complainant said that she had paid for the suitcase and the Security Guard said he had no interest in the suitcase, but if the Complainant continued to come into the Store he would call the Guards. The Respondent said the Complainant responded, “Fuck you, I will call the Guards.”
The Respondent said that contrary to what is claimed by the Complainant in her Complaint Form and Submission, the Security Guard did not run out on to the Street after the Complainant, did not shout at the Complainant, did not state the problem “was to do with your case” and was not wearing a Dunnes Stores Uniform.
The Respondent also said contrary to what was stated by her, nobody said to the Complainant “we can do this the easy way or the hard way , either you can come up to Office and we can talk about this or we can ‘phone the Guards.” Also contrary to what is stated by the Complainant nobody, (whether in a pink shirt or any other shirt) walked over to the Complainant when she was in discussion with the Security Manager and the Security Guard and nobody said to them “It’s okay, she has paid for her items, I have checked it on CCTV”. We note that there is no reference to a person in a pink shirt in the Complainant’s Complainant Form. The Respondent said they the confirmed at the time of the incident the issue was not if the Complainant had paid for the suitcase. The only issue for the Respondent was that the Complainant was not welcome in the Store.
The Respondent said that after the Complainant responded “Fuck you, I will call the Guards”, she returned to the Store. They said that contrary to what is claimed by the Complainant, she did not return to the Store at the request of the Security Guard or the Security Manager, also contrary to what is stated by her she was not “made to wait in the porch area” or anywhere else. The Respondent said the Complainant returned to the porch area of the Store of her own volition and was accompanied by the Security Guard and the Security Manager. The Respondent said the Complainant stopped for less than a second in the porch area before entering the Store.
The Respondent said that at 15:31:03 the Complainant entered the Store and walked towards the fruit and veg area and the Security Guard followed her. The Complainant then turned around and returned towards the door. She then had a discussion with the Security Manager and at 15:31:03 she took out her mobile ‘phone and made a call to the Gardaí. The Security Manager understands that she admitted to the Garda that she had been arrested before and the Garda asked to speak to the Security Manager. At 15:33:33 she handed the telephone to the Security Manager and he talked to the Garda on the ‘phone and he explained that the Complainant was no longer welcome in the Store. The Garda asked the Security Manager to put the Complainant back on the telephone and at 15:33:57 he handed the ‘phone back to the Complainant The Complainant then spoke to the Garda and ended the telephone call. The Security Manager then said to the Complainant “You know you are not welcome in this Store” and she replied “fuck you, I’m going to my Solicitor” and she then left the Store at 15:34:23. The Respondent said they note there is no reference to this telephone call in the Complainant’s ES1 Form or her submissions.
The Respondent said they are not aware of and have no record of an “Incident in the Shop” over 10 years ago as referred to by the Complainant in her written submission. They said that however an incident from over 10 years ago is irrelevant when considering the complaint in respect of 14th October 2016.
The Respondent said that contrary to what is claimed by the Complainant, she was not threatened, humiliated or embarrassed. The Respondent said they, their servants or agents, were not rude to the Complainant and did not treat her in a manner that disrespected her dignity of 14th October 2016 or on any other day. The Respondent said that contrary to what was claimed in the ES1 Form, the matter was not dealt with in a high handed or humiliating way. They said the matter was dealt with in an appropriate manner and in accordance with normal practice in such situations. They said the Complainant has not been unlawfully harassed as claimed and has not been discriminated against as claimed by her.
The Respondent quoted from Section 38A(1) of the Equal Status Act 2000 Act and they submitted that it is analogous to Section 85A of the Employment Equality 1998, which they also quoted from.
The Respondent said they note that this requires that the complainant has to not only establish the primary facts upon which she or he will seek to rely upon but also that those facts are of sufficient significance to raise an inference of discrimination. They quoted from Labour Court Determinations in Cork City Council -v- McCarthy EDA21/2008 and Melbury Developments -v- Valpeters [2010] ELR 64 in support of their position.
The Respondent also quoted from Section 3(1)(a); Section 3(1)(c); Section 11(1) and Section 5(a) of the Act.
The Respondent submitted that the Complainant has failed to establish a prima facie case of direct or indirect discrimination on the grounds of membership of the Traveller Community or any other protected ground and/or that she suffered harassment at the hands of the Respondent on 14th October 2016 or at any other time and they said that accordingly they submitted that the Complainant has failed to establish a prima facie case that discrimination and/or harassment has occurred.
The Respondent said that the above account of events on 14th October 2016 is verified by witness statements from a Department Manager, a Security Guard and the Security Manager, and the Respondent said they also had CCTV footage that they wished to have viewed at the Hearing.
A number of witnesses presented statements and gave evidence on behalf of the Respondent:
Witness No.1: PW gave evidence on behalf of the Respondent. He said that he was employed by the Respondent as a Department Manager in their Castlebar Store. He confirmed that the Witnesses Statement signed and dated 12/12/16 (2 months after the incident in dispute) was his and was accurate. He confirmed that he was told or asked by the Respondent to make a statement on that date and it was confirmed this was following receipt by the Respondent of the Complainant’s Complaint Notification Form ES. 1, being received by the Respondent.
This Witness’s Statement states: “Above date and time I saw Kathleen McDonagh who purchased luggage in store, heading towards side door. I was aware that Kathleen McDonagh had previously been arrested in store and was not welcome. So I walked over towards exit. As it did, I saw JF and GP approach in front of Fruit and Veg Dept. I told JF that the lady that bought the luggage was not welcome here and that her name was Kathleen McDonagh. JF and GP went outside to speak to the lady. I waited inside the foyer to see was everything ok. So then she walks past in. She was talking to JF and went on the phone. I stood by podium after. After a few minutes the lady left.”
The Witness said the Complaint had previously been pointed out to him and other department managers as someone who was not welcome in the Store. He said the Respondent policy was that he would report seeing such a person in the Store and he would not approach such a person, but rather would inform security who would deal with the matter as he did on this occasion.
The Witness denied the evidence the Complainant gave, in which she identified him as a man in a pink shirt who approached the two men with her in the Foyer/Porch (Security Manager and the Security Guard) and said to them “Its okay, she has paid for her items. I have checked it on the CCTV.” He said he did not approach these two men in the Foyer and/or say anything to them; he also said he was not wearing a pink shirt on the day in question. He said the Complainant was wrong in that respect.
The Witness said that he did not view the CCTV of the day, either on the day or subsequently.
Witness No. 2: GP, Security Guard gave evidence on behalf of the Respondent. He said he is employed by the Respondent as a Security Guard in their Castlebar Store. He said that he had only been employed by the Respondent for a relatively short period at the time of the incident involved in the instant case. The Witness said his statement was written by him on 12th December 2016, at the request/instruction of the Respondent because of the letter of complaint sent by the Complainant’s Solicitor on 5th December 2016. He further said his statement was based on contemporaneous notes made by him at the time of the incident.
The Witness’s statement states: “On the 11thof October I was on the shop floor with JF. Approximately 15.29 hours we were called over by PW and told the lady who just went out the door was not welcome in the Shop as she had her privilege withdrawn due to an earlier incident. I went outside with Jason and I spoke to the lady who I now know to be Kathleen McDonagh. I informed her she should not have been in the Shop and not to come back. She said ‘I paid for the case’, I told her I had no interest in the case, but if you keep coming into the Store I will call the Guards. She replied ‘fuck you I will call the Guards” She followed us back inside and called the Guards. She passed the ‘phone. JF then passed the ‘phone back to her. She was told by JF again she was not welcome in the Store; her reply was “Fuck you, I am going to my Solicitor.”
The Witness said he had no role in preserving CCTV coverage. The Witness did not know how long the Complainant was in the Store on the day in question.
The Witness was asked what the point of following the Complainant when she had left the Store, to tell her she was not welcome in the Store when she had already left. He said that it was to tell her she should not have been in the Store and not to come into it again as she was not welcome there.
The Witness denied that he said to the Complaint it is to do with your suitcase. He further said that neither he nor the Security Manager asked the Complainant to return to the Store, he said that they had no reason to want her to return to the Store and the reverse was the case and she returned of her own violation.
He denied that the Security Manager told the Complainant we can do this the easy way or the hard way, either you can come up to the Office and we can talk about this or we can ‘phone the Guards or asked her to go to the Office. He also said there was no approach by another member of staff informing them it was okay she had paid for her items that he had checked it on CCTV.
The Witness denied he was rude, ignorant or ill-mannered to the Complainant or did anything that would humiliate or embarrass her. He denied that his approach or treatment of the Complainant had anything to do with her membership of the Travelling Community; he said it was entirely and solely because she was not welcome in the Store due to a previous incident in May 2011.
Witness No. 3: JF gave evidence on behalf of the Respondent. The Witness said he is employed by the Respondent as a Store Security Manager and that he has been employed by the Respondent for 16 years with 9 of those years been as a Manager. The Statement submitted by him was signed by him and dated 12/12/16 and he said that it was based on detailed notes taken by him at the time. He said that he took detailed notes at the time as the Complainant said that she was going to her Solicitor. He said he sought the statements from the other witnesses when he was asked by Head Office after the Complainant’s Solicitor made their complaint on 5th December 2016.
The Witness’s statement states:
“On Friday 14th October 2016 at about 3.29pm I was called over by PW, GP, a Security Officer in the Store, who was with me. PW said ‘that lady that just bought a suitcase is not welcome here, her name in Kathleen McDonagh. We went out to speak to the lady who I knew is Kathleen McDonagh. George spoke to the lady. He said you should not have been in the Store, you are not welcome in there. She said ‘I paid for this case’. GP said ‘I am not worried about the case, I am just telling you that you should not be in the Store and if you keep coming in we will call the Guards’. She said ‘feck you, I’ll call the Gardai’. She asked (by telephone) the Gardaí attend the Store. She admitted to the Garda that she had been previously arrested in the Store. The Garda asked to speak to me. I said Kathleen is not welcome in the Store, myself and GP went out to speak to her after another manager pointed her out to us. The Garda asked me to put Kathleen back on the ‘phone, which I did. She then spoke to the Garda and put the ‘phone away. I said to Kathleen you are not welcome in this Store. She said ‘feck you, I’m going to my Solicitor. She then left the Store. GP started with the Company in June 2016, and as part of his ongoing training it is the procedure to point out to him any person in the Store that that for various reasons had their invitation to shop withdrawn and are therefore not welcome in the Store. That is what we were doing on this occasion.”
The Witness said that after it was pointed out to him and the Security Guard that the Complainant, who was not welcome in the Store, had been in the Store and had just left he and the Security Guard left the store and the Security Guard spoke to her as outlined above, he said that he was 5/6 yards behind when the Security Guard spoke to the Complainant. He said she was not asked to return to the Store, but she walked back there of her own violation. He said the Complainant paused in the Foyer for a few minutes and he asked her why she was coming back if she was not welcome. The Witness said the Complainant wanted him to call the Gardai, but he had no reason to so do. He said she then went into the Store proper and he said to her ‘You can’t come in’. He said she then called the Gardaí and she wanted the Gardaí to attend at the Store. He said she admitted/said to the Garda on the ‘phone ‘I have been arrested before’.
The Witness said the Garda asked to speak to him and the Complainant passed the telephone to him. He said he told the Garda what had happened and he handed the ‘phone back to the Complainant, she finished her discussion with the Garda and ‘hung up’ the ‘phone. He said he then again told her ‘you should not be here’ and she responded stating “Feck you, I’m going to my Solicitor” and she then left the Store.
In response to questions the Witness confirmed that on the day in question he viewed the CCTV footage, he said that he reviewed it within minutes of the incident.
The Witness denied that he had said to the Complainant we can do this the easy way or the hard way, either you can come to Office and we can talk out it or we can ‘phone the Guards. He also denied that he asked the Complainant to come to the Office. He further denied that they had been approached by another member of staff who told them it was okay she had paid for her items and he had checked the CCTV.
The Witness said he was fully aware of the incident in 2011 that he said that was the reason the Complainant had been barred from the Store.
Despite viewing the CCTV at the time of the incident the Witness was unable to confirm or deny that the Complainant was in the Store for a period of 30 minutes on the day in questions, nor was he able to state why the full period of the Complainant’s time in the Store on the day in question was not retained on CCTV coverage presented to the Hearing, but rather only commenced at the point that the Complainant left the Store with the suitcase.
The Witness said that he had encountered the Complainant in the Store a number of times since the incident in May 2011 when he said the Complainant was informed she was no longer welcome in the Store. He said that on each occasion he asked her to leave the Store.
I was shown some diary entries to confirm this. However I note the first such entry if March 2013 refers to an alleged incident earlier than the one in May 2011, i.e. an alleged incident of 21.12.10, for which no evidence was submitted to me and for which apparently she was not ‘barred’ from the Store (or told she was no longer welcome in the Store). I note that there is no specific reference in these entries that the Complainant was asked not to return or that she was not welcome in the Store. I note that there were mentions of other persons in some of the entries.
The Witness denied that he behaved in biased or discriminatory fashion towards members of the Travelling Community or that he asked any and all of them to leave the Store and he said some or many members of the Travelling Community did in fact shop in the Store and were not asked by him (or any other members of staff) to leave the Store.
The Respondent showed some CCTV coverage of the day in question. The Respondent afforded no explanation as to why all of the CCTV coverage, including the time the Complainant spent in the Store and of her interactions with the employee working the checkout till, and just showed the part demonstrating her return to the Store (it does not cover all of the Porch Area).
The Respondent submitted that the complaints were not well founded and that they should be rejected.
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Both parties were asked for their views on the naming the parties in the decision uploaded to the WRC Website.
Both parties said they had no issue with being identified in the decision published on the WRC Website and neither party requested that the decision be anonymised in the decision published on the WRC Website and they were informed that the decision published would not be anonymised.
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Findings and 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 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Section 27 of that Act.
I have carefully considered the evidence and the submissions of the parties and I have concluded as follows.
I note the submissions of the parties differ greatly and cannot be reconciled accordingly I will be making my findings on the balance of probabilities.
In relation to the incident in the Store on 26th May 2011, which the Respondent seeks to use to justify what occurred on 14th October 2016 that led to the complaint in the instant case I note the following. A price tag on a shirt was changed from the correct one of €25 to one of €7 and the lower wrong price was paid for the shirt. This was deliberate and knowing act of dishonesty and could not have been a mistake or error, nor could it reasonably be overlooked by the Respondent, regardless of whether it was done by the Complainant as alleged by the Respondent or by her then 14 year old son without her knowledge as alleged by the Complainant. Even if one accepts the Complainant’s version of events her son was, at the time, a child/minor accompanied by her as his Mother and under her charge at the time and accordingly the Respondent was entitled to and it was reasonable of them to bar her and her son from the Store at that time. However whether it was reasonable for the Respondent to treat the Complainant as they did on 14th October 2016, some 5 years and 5 months later in relation to a matter that did not involve her son is a different question.
In relation to the CCTV coverage presented to the Hearing I note the following. I note that there was no sound on the CCTV coverage. I further note that the CCTV coverage does not fully cover the Porch/Lobby area and accordingly it is impossible to confirm how long the Complainant and the two Managers spent in that Area and confirm which party’s version of events is correct in that respect. Indeed the CCTV was of little assistance as it merely confirmed matters that were not in dispute and was of no assistance in resolving the matters in dispute in relation to the matter. I note that at the Hearing it was confirmed that, following the statement of the Complainant that she would be consulting with her Solicitor, it was decided to retain the CCTV coverage. I note with concern the decision of the Respondent only to retain part of the CCTV coverage (and the part of the matter that was not in dispute) and not to retain the full CCTV coverage of the Complainant in the Store, which would include the length of time of 30 minutes she was in the Store, the fact that she was not approached by any members of staff during that time despite the fact that the Respondent maintain that numerous managers and others were aware she was not welcome in the Store and what they should do if she were spotted in the Store, or her interaction with the employee on the checkout, all of which would tend to support her version of events and demonstrate her proper behaviour and honesty on 14th October 2016. I note that Store Security Manager confirmed he had viewed the CCTV footage within minutes of the incident. It is difficult to escape the conclusion that this part of the CCTV coverage was not retained because it did not support the Respondent’s position.
In relation to the evidence of the 3 witnesses called by the Respondent I note the following.
Witness No. 1: Department Manager: I note that this witness did note take any contemporaneous notes at the time of the incident on 14th October 2011 and he confirmed that he, at no stage viewed the CCTV coverage. Thus when he made his statement on 12th December 2011, he did not have the assistance of either contemporaneous notes or viewing the CCTV coverage, he was relying entirely on his memory of an event that was then 3 months old, memory after that length of time of such details is notoriously unreliable and accordingly his statements must be viewed with reservations.
I also find the Witness’s evidence inconsistent. The Witness confirmed that the policy which he followed at all time was that if he (or anyone else) saw in the Store a person that was ‘not welcome’ in the Store they would report it to Security and would not intervene in any way or approach such a person and that this was what he did on this occasion. He says when he saw the Complainant heading towards the side exit, he walked over to the side exit, this does not appear to be consistent with the policy he was following. He said that following speaking together to the Security Manager and the Security Guard that he waited in the Foyer to see was everything okay, according to his own evidence and that of the other witnesses he had no reason to do this and his involvement should have ended when he informed Security. He also stated that he watched the Complainant walk back in, speaking to the Security Manager going on her telephone and leaving and that he stood by the podium. None of this was done from or at his Department and it is inconsistent with the policy as outlined by him and others. I find this Witness’s evidence to be inconsistent, difficult to understand and accept.
Witness No.2: Security Guard: I note that this Witness was employed by the Respondent since June 2016 and was considered to still be under ongoing training in October 2016. He appears to have been acting under instruction from the Security Manager and he was closely followed by the Security Manager from the Store when he followed and approached/confronted the Complainant. I note that the Witness accepts that he quickly followed the Complainant out into the public street, even though he accepted that she had paid for the suitcase in the Store; he did not deny that he called out to her a number of times “excuse me” loudly enough for her and others in the street to hear. He said that despite the fact that she had left the Store and that he had no reason to believe she had done anything wrong or dishonest while in there he followed her out into the public street called after her and remonstrated with her in full public view and informed her she was not welcome in the Store and he considered this to be reasonable behaviour in light of being informed of the incident some 5 years and 5 months earlier on 26th May 2011. I find that it was not necessary, appropriate or reasonable to follow the Complainant into the public street to confront her in full public view to inform her she was not welcome in the Store as she had not done anything wrong or dishonest or concealed anything while in the Store, there was no urgency that would prevent the Respondent approaching the Complainant if and when she returned to the Store to inform her she was not welcome there and advise her not to return.
Witness No. 3: This Witness is the Store Security Manager and he is an experienced Security Manager having held that position for 9/10 years.
This Witness was centrally involved in the incident that is the subject of the instant complaint and he was the focus of much of the Complainant’s complaints. The Witness offered no explanation as to why it was necessary for two members of security staff to follow the Complainant out of the Store.
This Witness said that the Complainant “admitted to the Garda (on the telephone) that she had been previously arrested in the Store” This was vehemently denied by the Complainant. This is a most unlikely, implausible and improbable statement for the Complainant to have made on the telephone to the Garda and particularly in front of the two employees of the Respondent. It is impossible for me to conceive of any reasonable reason why the Complainant would make such a statement and in front of two employees of the Respondent and indeed it is unlikely in the extreme that the Complainant would be likely to ring the Gardai if she knew they were aware she had been ‘arrested’ previously in the Store. In addition it is extremely unlikely that a an ordinary member of the public would consider even what was described by the Respondent as having occurred on 26th May 2011 as being ‘arrested’. I note this statement was not made by the Security Guard who was beside the Complainant and this Witness at the time of the telephone call to the Gardai. I find that the Complainant did not make this statement to the Garda in her telephone discussion with him/her. Accordingly I do not accept the evidence of this Respondent Witness in this respect and I further find that it must call into account the accuracy and veracity of his other evidence.
When asked why he considered it necessary to pursue or follow the Complainant out on to the public street just to inform her that she was not welcome in the Store when she had already left and had done nothing wrong/dishonest while there, what the urgency was that necessitated following her into the public street rather than waiting to when/if she returned to so inform her that she was not welcome in the Store, the Witness said because of the incident in May 2011 the Complainant was not welcome in the Store and that she should not return and they felt it was necessary she should be so told. As stated above I find that it was not necessary, appropriate or reasonable to follow the Complainant into the public street to confront her in full public view to inform her that she was not welcome in the Store as she had done nothing dishonest or wrong that would justify confronting her in the public street in such a fashion; there was no urgency that would prevent the Respondent approaching the Complainant if and when she returned to the Store and informing her that she was not welcome there and to advise her not to return.
I note that it was established at the Hearing that the Complainant had attended at the Store in Castlebar fairly regularly since the incident in May 2011 and that the only member of staff that asked her to leave the Store was this Witness when he saw her there, she was not asked to leave by any one else. Clearly the problem here rest largely with this Witness. I note that it was established at the Hearing that he also asked other members of the Travelling Community to leave the Store.
I have concluded and I find that this Witness’s problems with, and treatment of the Complainant was because of her membership of the Travelling Community.
I do not accept the submissions of the Respondent and their witnesses that the Complainant of her own violation returned to the Store after her being confronted in the Street by members of the Respondent’s Security Staff and after allegedly saying that she herself would call the Guards.
Even based on the Respondent’s witnesses own statement there would be no reason for the Complainant to return to the Store of her own violation. She could just as easily have rung the Gardaí on the Street. The two witnesses state the Complainant returned to the Store accompanied by them, this is a strange way to describe the Complainant returning of her own violation to the Store. It appears to me much more probable that the Complainant was asked by the two members of Security Staff to return to the Store and I accept that the Complainant’s evidence in this respect is much more probable and it is accepted by me. I find that the Complainant was asked by the Security Staff to return to the Store.
I note that the Respondent states that an incident from 10 year earlier was irrelevant to what happened on 14th October 2016, but apparently not one that occurred 5 years and 5 months earlier!
It is clear to me that all of the staff involved were fully aware that the Complainant was a member of the Travelling Community and I find that this was the main factor in their treatment of her, which would not have occurred with a member of the Settled Community.
After the Complainant was in the Store for 30 minutes on 14th October 2015 without any problem, let or hindrance and after she had paid for the item she had purchased and had exited the Respondent’s premises she was pursued out of the Store up the public street, called after and she was confronted by a member of the Respondent’s Security Staff in full view of the public and was informed that there was a problem with her she was asked to return to the Store and was accompanied there by two members of the Respondent’s Security Staff.
I find that the actions of the Respondent towards the Complainant on 14th October 2016 were humiliating, offensive, insulting, demeaning and discriminatory and were based on her membership of the Travelling Community.
I am satisfied and I find and declare that the Complainant was discriminated by the Respondent on the grounds of her membership of the Travelling Community
Accordingly I find and declare that the complaints by Complainant under Section 25 of the Equal Status Act are well founded and they are upheld and in accordance with the provisions of Section 27 of the Act of 2000 I require the Respondent to pay the Complainant compensation in the sum of €12,500.00c (say twelve thousand and five hundred euro).
Dated:7th September 2017
Workplace Relations Commission Adjudication Officer: Seán Reilly
Key Words: Discrimination on grounds of membership of the Travelling Community.