ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00023864
Black Cap & Company LTD T/A Healy Rae Mace Shop
Maeve O’Driscoll, Solicitor
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000
Date of Adjudication Hearing: 31/10/2019
Workplace Relations Commission Adjudication Officer: Úna Glazier-Farmer
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 25 of the Equal Status Act, 2000, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints
The Complainant’s claims are for discrimination on the grounds of gender, disability, member of the Traveller Community and Race arising out of an incident on 20 May 2019 at the Respondent’s shop.
The Complainant advised that she was told on the morning of the hearing that her representatives would not attend. She was provided with an opportunity, on two separate occasions, to take additional time to contact them or wait for them and she stated twice she wished to go ahead.
The Complainant was given an opportunity to view the Respondent’s CCTV footage before the hearing begin.
During the hearing both parties were a break to clarify instructions.
Summary of Complainant’s Case:
On the evening of 20 May 2019, the Complainant attended the Respondent’s store. She attended the shop approximately once a week. It was her evidence that she handed in one single €50 note to the sales assistant (JS). It was her evidence that she remembers JS put the €50 note on top of the till and not into the till. It was her evidence that JS gave her the wrong change and when she approached him to correct it he became abusive and aggressive. It was her evidence that the JS told her to “f off and she was wrong”. The Complainant stated that he lost control of his temper and she became very upset. The Complainant asked for a pen to work out the correct change on the back of the receipt.
The Complainant stated that another member of staff (DW) intervened to assist her. She stated that JS initially refused DW’s offer of assistance but after her repeated requests, she took over the transaction and JS left the till area. The Complainant stated that DW apologised for JS’s behaviour saying she was “very very sorry” and gave her back the correct change. The Complainant later clarified that she was unable to remember exactly how much exactly the change was. She than accepted when questioned by the Respondent’s solicitor that DW returned the full amount of money.
In her evidence, the Complainant confirmed that JS did not make any comment or gesture regarding her gender.
The Complainant when questioned by the Respondent’s solicitor confirmed that JS would not have known she had a disability from their interaction but did state that there are many people with disabilities who do not have visible disabilities The Complainant stated in response to questioning from the Respondent’s solicitor “if JS did or did not know that I had a disability is not an issue. It isn’t a question whether I have or have not a disability” it is to do with the way he treated me.
The Complainant stated that JS did make a comment regarding her being a member of the Traveller Community stating; “I’m sick of ye” during the transaction. She understood the use of the word “ye” was meant a member of the Traveller Community.
The Complainant confirmed that JS did make a comment regarding her race stating; “I’m sick of ye” during the course of the transaction with “ye” understood to refer to her race.
The Complainant return to the Respondent’s shop on 23 May 2019 seeking an apology. The Complainant confirmed that the Managing Director of the Respondent did attend her home in or around August 2019 to discuss the matter.
The Complainant having watched the CCTV footage prior to the hearing did object on the basis it had no sound and therefore, could not fully represent what happened on the day. However, she did accept that the incident she complains of was recorded on the CCTV footage shown.
The Complainant gave evidence of the effect of the discrimination has had on her, both at the hearing and in her submission, and her attempts to stop smoking. She stated that as a result of the incident on 20 May 2019 she took up smoking again and was forced seeking help from the HSE.
The Complainant stated that since this incident the Respondent brought this matter this far when all she wanted is an apology. She had not received an apology, and nor had it did not come to her with the CCTV.
Summary of Respondent’s Case:
The Respondent denied that the Complainant was discriminated against in the manner she alleges or at all. The Respondent provided three witnesses, the Owner of the Respondent, Store Manager and the Sales Assistant who served the Complainant (JS). It is noted that the second Sales Assistant (DW) was not in attendance to give direct evidence, as she no longer worked for the Respondent.
It was JS’s evidence that the Complainant purchased €10 worth of diesel, four packets of ham at €1 each and a cup of tea which totalled €16.10. She handed him one €20 note. He disputed that she handed him a €50 note. During the transaction she asked for a packet of cigarettes for which he required additional money to cover the cost, approximately €13. He gave her a receipt. The Complainant questioned the change he had given her. It was his evidence that he printed a duplicate of the receipt for himself and using a pen and blank side of the receipt tried to explain the transaction to the Complainant. It was his evidence that the Complainant became irate with him. JS states that his co-worker sought to intervene, and he told her to “f off” when she asked him to go into the office and “stop treating him like a child”.
JS’s evidence was that it was his practice that he placed the note on top of the till while he removed the change from the till. It was his evidence that he inputted the transaction into the computer, which would tell him how much change to give.
The Owner of the Respondent gave evidence that this was a process that JS carried out and he had confirmed this subsequently to the incident on 20 May 2019. He also gave evidence that JS was known for being helpful, chatty and friendly with customers and the Complainant’s description of his behaviour on 20 May 2019 was not reflective of his character.
It was JS’s evidence that he did not use discriminatory or bad language towards the Complainant. He accepts that he did use bad language directed towards his co-worker. He denied the Complainant’s allegation that the said “I’m sick of ye” as he stated in evidence, not only did he not say it but “ye” is not a phrase in his day to day vocabulary. He said he was from a city in Northern Ireland where “ye” is not used.
JS apologised to the Complainant that she had to witness his use of bad language directed to a co-worker but gave evidence that he did use bad or discriminatory language towards her.
The Owner of the Respondent stated that in or around August 2019 he attended the home of the Complainant to resolve matters following receipt of notification of the claim. He spoke with the Complainant however the matter remained unresolved. A follow up letter was sent to the Complainant dated 13 August 2019. He stated that he was in business since 1990 and that the shop and tyre shop before it had many dealings with members of the Traveller Community and never had an issue. At the hearing the Owner of the Respondent stated that he “cannot apologise to you for JS’s bad language against a co-worker. I can sincerely apologise to you for witnessing the interaction between two members of staff.”
Findings and Conclusions:
The Complainant sent the ES1 Form, dated 17 July 2019, to the Respondent. The Respondent called to the Complainant’s home in August 2019 and followed up with a letter dated 13 August 2019. The Respondent’s attempt to resolve the Complainant’s complaints was rejected by the Complainant and she submitted a Complaint Form, signed on 25 August 2019, to the Workplace Relations Commission which was received on 27 August 2019.
Discrimination is defined at section 3 of the Equal Status Act 2000 as:
(1) For the purposes of this Act discrimination shall be taken to occur -
(a) 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) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which -
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
(b) where a person who is associated with another person -
(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and
(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination, or
(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
Section 5 of the Equal Status Act 2000 prohibits discrimination in the disposal of goods or services:
5.—(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.
It must be considered 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”. The Court 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”.
The Complainant confirmed at the hearing of the case that the Respondent did not make any comment or any action, discriminatory or otherwise, regarding her gender on the date of incident. Consequently, she has not established a prima facia case of discrimination on the ground of gender against the Respondent.
The Complainant confirmed in her evidence that the Respondent could not be aware that she had a disability on 20 May 2019. The Complainant further confirmed at the hearing that the Respondent did not make any comment or any action, discriminatory or otherwise, regarding her disability on the date of incident. Consequently, she has not established a prima facia case of discrimination on the ground of disability against the Respondent.
Traveller Community and Race
The present complaint of discrimination has been grounded on both the Traveller Community and Race grounds. It was not in dispute that the Complainant is a member of the Traveller Community nor as any question raised as regards her Race. I am therefore satisfied that they are covered by the Traveller Community and Race ground.
It was clear from the CCTV footage, Respondent’s evidence and not disputed by the Complainant that she was served by the Respondent and received the goods which she sought to purchase from the Respondent’s store. She was not refused service or the goods. The Complainant confirmed that she did receive a refund from DW of the Respondent for the goods purchased. Consequently, it can be concluded that she was not treated less favourably by reason of her membership of the Traveller Community and/or Race by the Respondent on 20 May 2019 in disposing of goods or the provision of service available to the public.
For completeness, at the hearing the Complainant gave evidence that JS said “I’m sick of ye” which she understood to mean as referring to her membership of the Traveller Community and/or her Race
The Complainant included a detailed sworn statement to An Garda Síochana dated 26 May 2019 in her submission. She confirmed at the hearing that this was her statement. It was noted from that statement there are no such words in relation to her membership of the Traveller Community and/or her race recorded nor was any reference to the allegation that JS said “I’m sick of ye” or words to that effect. It only referred to the use of non-discriminatory bad language.
Having carefully considered all the evidence before me, I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that the Complainant was treated less favourably on the grounds that she is a member of the Traveller Community and/or Race on 20 May 2019 in the Respondent’s store. Accordingly, I find that the Complainant has failed to establish a prima facie case of discrimination in relation to this complaint on the grounds of her being a member of the Traveller Community and/or Race.
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under section 27 of that Act.
Having carefully considered all the evidence presented and in accordance with section 25(4) of the Equal Status Acts 2000 - 2004, I find that:
• The Complainant has failed to establish a prima facie case of discrimination on the gender ground within the meaning of Section 3(1)(a) of the Acts.
• The Complainant has failed to establish a prima facie case of discrimination on the disability ground within the meaning of Section 3(2)(h) and Section 4 of the Acts.
• The Complainant has failed to establish a prima facie case of discrimination on the race ground within the meaning of Section 3(2)(h) of the Acts.
• The Complainant has failed to establish a prima facie case of discrimination on the Traveller Community ground within the meaning of Section 3(2)(i) of the Acts.
Accordingly, the Complainant’s claims must fail.
Dated: 17th December 2019
Workplace Relations Commission Adjudication Officer: Úna Glazier-Farmer
Equal Status Act 2000 – provision of goods – discrimination – gender – disability – race – member of the Traveller Community – failure to establish prima facia case