ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00044862
Parties:
| Complainant | Respondent |
Parties | Bernadette Collins | Buggy Curtain Making Limited |
Representatives |
| Peninsula |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act 1998 | CA-00054396-001 | 05/01/2023 |
Date of Adjudication Hearing: 21/09/2023
Workplace Relations Commission Adjudication Officer: Bríd Deering
Procedure:
In accordance with s 79 of the Employment Equality Acts 1998 – 2015 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 and to present any evidence relevant to the complaint.
The Complainant was not represented and gave evidence under oath. At the outset of the hearing, I explained to the Complainant that it was for her to establish the primary facts from which it may be inferred that discrimination on grounds of race had occurred. I outlined that as the Complainant was not represented, I would be available to assist where necessary and appropriate as part of my statutory duty to inquire. I invited the representative for the Respondent to object if she had any difficulty with any assistance I provided during the hearing and that I would hear that objection.
The Respondent was represented by Peninsula. The Respondent, called one witness Ms Lorna Buggy (“Ms L Buggy”), Manager, who gave evidence under oath. Ms Margaret Buggy was also in attendance for the Respondent (“Ms M Buggy”) but she was not called to give evidence. The hearing was conducted in public at the Carlow Hearing Rooms, and the parties were advised that they would be named in the decision. In making my findings I have considered the written submissions of both parties and the oral evidence of the parties given at the hearing.
The Complainant referred this complaint under s 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004. The Complainant submitted that she “probably selected the incorrect legislation” for the referral of her complaint. The complaint form is not a pleading or statutory form, and therefore a certain degree of latitude is afforded to Complainants where the wrong legislation is selected provided this does not hinder the ability of the Respondent to deal with the complaint or affect the Respondent’s right to fair procedures (see County Louth VEC v Equality Tribunal [2009] IEHC 370 and Galway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210). The Respondent outlined that it had no difficulty with the WRC amending the complaint form to reflect the referral of the complaint under s 77 of the Employment Equality Act 1998. I find I have jurisdiction to treat this complaint as a complaint under the Employment Equality Act 1998 and this decision has been amended to reflect the referral of the complaint under the Employment Equality Act 1998.
Background:
The Complainant has worked for the Respondent as a seamstress for over twenty years. The Complainant submits that she is being treated less favourably because she is Irish, and that this unfavourable treatment began 14 years ago. The Respondent denies the claim. |
Summary of Complainant’s Case:
Evidence of the Complainant (under oath) The Complainant submitted that the owner of the Respondent business, Ms M Buggy, treats her differently to all other employees and that Ms M Buggy “has been chipping away” at her for over 14 years. The Complainant outlined that the differential treatment started with “smart comments” being directed towards her specifically. The Complainant submitted to the hearing various examples of the differential treatment she has been subjected to as follows: § Several years ago the Complainant was reprimanded for mentioning a customer name in the presence of another customer, despite being asked by Ms M Buggy “who owns these curtains?”. Other employees have done this too and still do but the Complainant was singled out for reprimand. § In 2019 the Complainant was the only employee who was told to make up the time after taking a personal phone call. § In 2020, Ms M Buggy instructed a polish colleague to take a rest after completing a certain number of eyelets. Completing eyelets was part of the Complainant’s duties for over 10 years until she had to cease doing them due to shoulder pain. The Complainant told the hearing that she was never afforded an opportunity to rest after completing eyelets like her Polish colleague was. The Complainant told the hearing that when she put this to Ms M Buggy, Ms M Buggy laughed at her and said: “sure you never did eyelets”. § In 2021, the Complainant had an argument with a work colleague which resulted in this work colleague accusing the Complainant of having an issue with ‘foreigners’ which the Complainant strenuously disagreed with and sought to defend herself against. Three of the Complainant’s non-Irish colleagues treated her differently after this incident. In January 2023, the Complainant reported this issue to Ms M Buggy. Ms M Buggy responded: “oh for god’s sake, it’s worse than going into a class room”. The Complainant submitted that her complaint was not taken seriously. Whereas when the Complainant’s polish colleague complained about the atmosphere at work one week later, Ms M Buggy immediately sought to have the matter investigated. The Complainant asked Ms M Buggy why the week prior her grievance had been dismissed without any investigation. This was denied by Ms M Buggy who said that the Complainant’s grievance had been dealt with and the colleague involved had apologised to Ms M Buggy. The Complainant stated that no apology was received by her. Ms M Buggy invited the Complainant to make a written grievance, which the Complainant did. The Complainant followed up on this in March 2023 when she had heard nothing further. Ms M Buggy told her she was not going to incur the expense of having an external party deal with the issue. The Complainant submitted that she was only told the matter would be dealt with “to shut her up”. § In December 2022, the Complainant was instructed by Ms M Buggy to carry out work that was not part of her normal duties, even though Ms M Buggy knew that the Complainant had a shoulder problem which made the performance of this task more difficult for the Complainant; whereas the curtains were left in such a way by Ms M Buggy that it was easier for the Complainant’s polish colleague to complete the work successfully. § In 2023 Ms M Buggy asked the Complainant why she gave a medical report to the Respondent regarding her shoulder pain and other medical issues. The Complainant responded that it was because she felt that she was not being believed by Ms M Buggy. It had nothing to do with looking for anything from the Respondent; that she was arranging her own medical appointments in that regard; and that she needed nothing from the company. § In May 2023, the Complainant ticked a date on a wall calendar indicating that she had an appointment and would not be available at that time for work. The general practice is that when staff have an appointment, they insert it on a calendar for everyone to see. On this date Ms M Buggy asked the Complainant to provide an appointment card. No one else, including any other Irish colleagues, were required to do this. § Around July 2023, a polish colleague fell while at work. Ms M Buggy picked her up and asked her was she ok. The Complainant submitted that “there was none of that with me” when she fell a few years earlier, and instead Ms M Buggy dismissed her fall saying it was probably due to the height of the shoes she was wearing. § Around July/August 2023, Ms M Buggy instructed a polish worker not to lift or drag anything heavy due to her having a sore shoulder; whereas this was not something offered to the Complainant even though she too had a sore shoulder.
In responding to questions from the Adjudication Officer, the Complainant confirmed for the hearing that her work colleagues were a mix of Irish and many other nationalities. The Complainant also confirmed that her Irish colleagues were not subjected to the same unfavourable treatment she had been subjected to. The Complainant submitted: “I feel it is targeted at me personally” and that Ms M Buggy “hates me”. The Complainant also confirmed to the hearing that the unfavourable treatment “has nothing to do with her shoulder or other medical issues” and that she “was not treated differently because of my shoulder”. The Complainant confirmed to the hearing that the differential treatment she was experiencing was due to her not being liked by Ms M Buggy but also her nationality. The Complainant added that she feels that Ms M Buggy wants her to leave. The Complainant confirmed to the hearing that the Respondent did seek to engage an external party to resolve her grievance in relation to being accused of having an issue with foreigners but added that this was only offered after her colleague also complained of the atmosphere and after she had referred a complaint to the WRC.
Cross-Examination The Complainant agreed in cross-examination that Ms M Buggy treats all other Irish staff ok; that she likes them and chats with them; and that it was just her that she felt Ms M Buggy did not like. The Complainant added that it was also because she was Irish that Ms M Buggy disliked her, but that she “accepts that she doesn’t treat any of the other Irish differently”.
The Complainant accepted that she asked Ms M Buggy for a raise the month previous and that she was given that raise.
The Complainant accepted that when the Respondent offered to bring in an external party to investigate her grievance, she told the Respondent and confirmed in writing, that she did not want this. This written confirmation was opened to the hearing. The Complainant added that she did not think a formal investigation as necessary, but rather a mediator. It was put to the Complainant that an external mediator was offered to her also. The Complainant was asked why then she thought a WRC referral was necessary, to which the Complainant responded that she thought she was coming to mediation and not adjudication. It was put to the Complainant that she wanted her grievance investigated, yet refused to participate when the Respondent sought to engage an external consultant and mediator, to which the Complainant responded that the Respondent only sought to do this after she had referred her complaint to the WRC.
The Complainant was asked why she refused an occupational health referral in relation to her shoulder. The Complainant responded that she refused an appointment because she had arranged one herself.
The Complainant accepted that the Respondent was entitled to ask for an appointment card, and she accepted that she could not speak to whether other staff had been asked for an appointment card too.
The Complainant accepted that she was the person asked by Ms M Buggy to do the curtains in December 2022 because she was the most experienced seamstress. |
Summary of Respondent’s Case:
Preliminary Issue The Complainant has sought to use the WRC as a court of first instance and has not only failed but has outright refused to engage in any resolution or grievance process offered by the Respondent but is in fact seeking for the WRC to adjudicate on something over which the WRC have no jurisdiction. The Respondent referred to Geoghegan t/a Taps v A Worker INT 104; Melinda Pungor v MBCC Foods (Ireland) Ltd (UD548/2015) and Aryzta Bakeries v Cacs (UDD1812) as authorities for the proposition that an employee is obliged to exhaust all internal procedures before referring a complaint to the WRC. Evidence of Ms Lorna Buggy (under oath) Ms L Buggy is a manager of the Respondent business. Ms L Buggy submitted that she had not personally witnessed the Complainant being treated any differently to other staff and that the Complainant had not raised a grievance with her in that regard. Ms Buggy described a positive and flexible working environment. Ms L Buggy submitted that the Respondent ceased the practice of staff inserting an appointment on a calendar because the calendar was publicly displayed. All staff are now required to provide a medical note/appointment card. Ms L Buggy submitted that the Complainant was not treated any differently to any other staff member in that regard. Ms L Buggy submitted that no staff member was ever asked to work if they were suffering from an injury. Ms L Buggy stated that an external mediation process was offered to the Complainant, but she declined to participate in same. The Complainant declined the invitation to cross-examine Ms L Buggy. Closing Remarks The representative for the Respondent submitted that the Complainant failed to establish a prima facie case of discrimination on grounds of race. The Complainant confirmed that the reasons she believed she was being treated differently was because she was not liked by Ms M Buggy and that this is not a protected ground under the Employment Equality Act 1998. The Respondent employs 7 Irish employees and 9 foreign employees. At no time prior to the referral of the complaint to the WRC did the Complainant complain of race discrimination. The Complainant failed to exhaust the internal grievance process before referring a claim to the WRC and has refused to engage in a formal investigation into her grievance. |
Findings and Conclusions:
Law The Employment Equality Acts 1998 to 2015 (“the Acts”) promote equality in the workplace and provide protection against discrimination, harassment, and victimisation. An employer cannot discriminate against an employee in relation to several areas including conditions of employment. The Acts prohibit discrimination on nine grounds, including race (race is defined as meaning different race, colour, nationality or ethnic or national origin). Discrimination occurs when one person is treated less favourably than another is, has been or would be treated, on one of the nine grounds. In general, a Complainant must prove less favourable treatment as compared with another person in a similar position to the Complainant. Section 85A(1) of the Acts provides: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” The Complainant is required to establish facts from which discrimination can be inferred. It is only when this burden is discharged does the burden shift to the Respondent to show that no unlawful discrimination took place. The Labour Court in Southern Health Board v Mitchell [2001] ELR 201 considered the extent of this evidential burden on a Complainant and held: “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a 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 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 is no infringement of the principle of equal treatment.” Therefore a Complainant must establish both the primary facts upon which they rely and that those facts are of sufficient significance to raise an inference of discrimination. In Valpeters v Melbury Developments [2010] ELR 64, the Labour Court stated: “Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”. To determine whether the Complainant has established a prima facie case a three-tier test is employed: (1) the Complainant must establish that they are covered by the relevant discriminatory ground; (2) the Complainant must establish that the specific treatment alleged has actually occurred; and (3) 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. Section 77(5)(a) of the Acts provides: “Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.” It is well recognised that discrimination is rarely a once-off issue and that often it occurs over a period. Where the discrimination is alleged to be continuing discrimination over a period, s 77(6A) of the Acts permits the referral of such a complaint, provided that the claim is submitted within six months of the end of the alleged discrimination. Findings This is a complaint of discrimination on the race ground. The Complainant must point to less favourable treatment which arises due to her race, colour, nationality or ethnic or national origin. The Complainant must first establish a prima facie case of discrimination, i.e. facts of such significance that raise the inference of discrimination. Where such a prima facie case is raised, it falls on the Respondent to rebut the inference of discrimination. I find that the Complainant has not discharged the burden which the Acts place on her to show that the difference in treatment was due to discrimination on the race ground for the reasons set out below. It is the Complainant’s case that she has been treated differently for 14 years by Ms M Buggy. The Complainant gave examples of differential treatment dating from 2009 to December 2022. The Complainant also gave other examples of differential treatment which post-date the referral of her complaint to the WRC. Most of the examples of differential treatment provided by the Complainant were not disputed in evidence by the Respondent. Therefore I accept the uncontested evidence of the Complainant that she was treated differently on occasion by Ms M Buggy, however, I find that there is insufficient evidence to make out that this differential treatment arises due to the Complainant being Irish. It was the Complainant’s evidence that the differential treatment was directed at her personally; that all her non-national and Irish colleagues were not treated in a similar way to her; and that the differential treatment arose because Ms M Buggy disliked her. While the Complainant submitted that the differential treatment was also due to her nationality, the Complainant has failed to proffer evidence of sufficient significance to give rise to an inference of discrimination on the nationality ground. It was the Complainant’s evidence that she was treated differently to all her colleagues. The fact that some of whom are non-Irish nationals is not enough to make out a claim of race discrimination. The examples of the preferential treatment the Complainant states was afforded to her non-Irish national colleagues were also afforded to her Irish national colleagues. Therefore, I find that the Complainant has not made out a prima facie case of discrimination on grounds of race. |
Decision:
Section 79 of the Employment Equality Acts 1998 – 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under s 82 of the Act.
I find that the Complainant has not established a prima facie case of race discrimination, and therefore I decide the complaint under the Employment Equality Act 1998 is not well-founded. |
Dated: 4th October 2023
Workplace Relations Commission Adjudication Officer: Bríd Deering
Key Words:
Race discrimination. |