Complainant

Respondent

Parties

Siddarth  Thirunavukkarasu

Circle K

Complainant

Respondent

Anonymised Parties

Representatives

  In person

Dajana Sinik , Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00065895-001

10/09/2024

The complainant commenced employment with the respondent on 7th December 2022.

The complainant’s position within the respondent’s employment is as a shop supervisor.

This complaint was received by the Workplace Relations Commission on 10th September 2024.

As per complaint form the complainant alleges that he was bullied and discriminated against by a manager at his former store when he was forced to clean human waste without proper training or equipment. The complainant also contends that he believes he was victimised by management’s decision to ban him visiting a store that he had formerly worked in.

On 26th August 2024 the complainant sent an email to the respondent’s HR Business Partner, this email contained a summary of two incidents that the complainant formally wished to raise as a formal grievance.

In his grievance the Complainant stated that upon taking over as a new manager, Ms. Julita Howe assigned an overwhelming workload, including additional tasks like planogram changes and deep cleaning, while staffing levels were consistently low (often only two people working in a large store). Many tasks couldn’t be completed to a high standard due to the workload.

When the Complainant explained the difficulty of managing with two people, Ms. Howe dismissed these concerns, insisting that two people was normal. The Complainant felt Ms. Howe was overly critical of his performance, despite a strong track record of work.

The Complainants grievance also included, that he had pre-approved vacation plans, agreed upon months in advance with prior managers. However, Ms. Howe complained to staff about the vacation, making it seem like an inconvenience, which the Complainant felt was unprofessional.

Overall, the Complainant felt Ms. Howe was unreasonably critical and failed to acknowledge his past performance and pre-arranged vacation, leading to frustration and a sense of being unsupported.

Ground 2

In his grievance, the Complainant assert that he discovered faeces in the customer toilet and feared being asked to clean it.

His manager Ms. Howe confronted the person in question who a homeless man was and who was outside and threatened to report him to Garda if he didn’t clean it, which the man reluctantly agreed to.

Ms. Howe then insisted that the Complainant supervise the homeless man while he cleaned, despite the Complainants discomfort and nausea from the smell.

The Complainant repeatedly refused to assist, but Ms. Howe pressured him to stay, even allegedly scolding him for using a mask without permission.

Upon returning, the Complainant observed the homeless man handling the mess with his bare hands, further increasing his discomfort.

The Complainant also stated that Ms. Howe instructed him to provide the homeless man with a blue towel and gloves. He alleges that she then told him, in a serious tone, to hold the toilet door open and watch the man clean the mess to ensure it wasn’t smeared everywhere.

The Complainant immediately refused, explaining once again that he did not want to enter the area as he felt nauseous and could not stand the smell. Despite this, Ms. Howe insisted, saying, "Come on, be a man," and forced him to watch the man clean. Meanwhile, she stayed away, avoiding getting close to the situation.

He added that eventually, Ms. Howe ordered the Complainant to clean the remaining mess, even though he felt unwell, while other staff were not asked to do so. The Complainant felt singled out and unfairly treated.

In his grievance letter, the Complainant also raised concerns about improper training for such situations and believes no employee should be asked to clean such unsanitary conditions.

Preliminary Argument.

The Respondent wishes to raise a preliminary issue concerning the Complainant’s lack of specific details regarding his discrimination claim.

In his claim form to the WRC, under the discrimination claim section, the Complainant narrative reads as follows:

“I was bullied and discriminated against by the manager at my former store, Circle K, Belgard where I was forced to clean human waste without proper training or equipment. I believe I was also victimised by the decision from Circle K to ban me from visiting the store.”

It should be noted that there are no specific details provided in relation to the alleged discrimination, victimisation harassment claim.

Moreover, the Respondent is not in receipt of a detailed statement outlining the nature of the claim as required under the WRC procedures; rather the Complainant has only ticked two boxes (Gender and Race) and selected, harassment and Victimization included in the equality section of the WRC complaint form.

The Respondent submits that it is wholly unclear from the Complainants WRC complaint form, submitted on the 10th of September 2024, what the alleged act of discrimination is or how the Respondent has discriminated against him within the terms of the Act.

The Complainant has failed to provide the necessary basic details to enable the Respondent to prepare its defence in relation to the allegations against it.

It is also for example wholly unclear as to when the Complainant says the Respondent victimised him and when alleged harassment occurred, and when or what information was imparted by the Complainant.

 The Respondent will be strongly prejudiced if a more detailed claim is presented on the day of the hearing, and it is requested to respond.

Moreover, it should be noted that, the absence of a submission is contrary to the WRC’s documented procedures on the investigation and adjudication of employment and equality complaints whereby the Complainant is required to,

 “set out the facts, the link between the ground(s) cited and the alleged discrimination, and any other relevant information and where appropriate any legal points”.

Fair procedures require that the Complainant submits all substantive matters upon which he intends to rely in advancing his claim under the Employment Equality Acts 1998 to 2015 prior to the hearing date.

As the details of the complaint and how it is grounded in the Equality Acts is unclear, the Respondent will be forced to set out a position in relation to the claim as understood from the limited information provided with the Complainants WRC complaint form.

The Respondent reserves the right to seek an adjournment when the Complainants case is presented so that we can consider the details of such evidence prior to any response being sought by the Respondent. 

Preliminary Argument – Prima Facie & Burden of Proof

It has been the well-established practice of Adjudication Officers and the Labour Court to require a Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person is, has been, or would be treated, based on the discriminatory ground cited, Gender and Race.

The Company submits that it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Company to rebut the inference of discrimination raised.  

In Teresa Mitchell v. Southern Health Board (DEE011) the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows:

"The Complainant 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 Complainant 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 those 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. Applied to the present case, this approach means that the appellant must first prove as fact one or more of the assertions on which his complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden.”

Furthermore, in Margetts v Graham Anthony & Company Limited, EDA038,the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. 

The Labour Court stated as follows:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.” 

Further case law which considers the burden of establishing a prima facie case of discrimination by the Complainant before the Respondent has a case to answer is the case of Cork City Council v Kieran McCarthy (EDA0821),

where it is stated that the language used within section 85A

“indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts.”

The Respondent submits that the Complainant has failed to discharge this burden of proof and, consequently, the claim cannot succeed.

Section 6(1) of the Employment Equality Acts 1998 to 2015 states:

“(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) 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) (in this Act referred to as the ‘discriminatory grounds’) which— (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,”

 Section 6 (2) provides that as between any two persons, the discriminatory grounds are:

“(a) that one is a woman and the other is a man (in this Act referred to as ‘the gender ground’)”.

·        Direct Discrimination is defined as occurring where one person is treated less favourably than another is, has been or would be treated and that person is of a different race, gender, marital status, family status, sexual orientation, religious belief, age, disability or membership of the travelling community.

Direct discrimination consists of two elements.

1.      The first is the less favourable treatment of the individual making the complaint.

2.      The second is the existence of discriminatory grounds for that treatment. Both elements must be satisfied for a claim of discrimination to succeed.

The Complainant has not clearly identified another person who in comparison he can argue he had been treated less favourably than or would be treated.

Thus, the Complainant has provided no evidence of direct discrimination on grounds of gender.

Secondly, the Complainant has also failed to establish the existence of race and gender ground for that treatment.

·        Indirect Discrimination is deemed to occur where an apparently neutral provision puts persons of a particular gender at a particular disadvantage compared with other employees.

There is no evidence to show that the Complainant has been indirectly discriminated against either.

The Complainant claimed race and gender-based discrimination by his manager.

He initially raised his grievance informally, as permitted under the grievance policy, approximately 1 month after the alleged incident.

Following a thorough investigation, the Respondent issued an outcome upholding 2, and unsubstantiating 1 out of 5 points in his grievance. The Respondent maintains that all procedures were strictly followed, a comprehensive investigation was conducted, and only 1 allegation could neither be proven nor disproven.

To date, the Complainant has provided no information regarding the allegation of less favourable treatment, including the alleged victimization and harassment claim.

Given the lack of further details, the Respondent maintains that the Complainant was not treated less favourably and that no disparity existed between him and his female colleagues concerning employment conditions. As such, no discrimination occurred.

The Complainant worked across two different stores and works along-side 7 males and 1 female in the Kilnamanagh store and 6 males and 11 female colleagues in the Belgard store

This is clear evidence that Circle K is an equal opportunity employer.

Following his grievance, the Respondent carefully reviewed all the relevant evidence and conducted interviews with pertinent parties. Based on the investigation findings, there was no evidence to support the Complainant's allegations of discriminatory behaviour on gender ground by his manager.

In the absence of any supporting information for his claim of gender discrimination, the Respondent — without prejudice — assumes he is referring to the comment that was found unsubstantiated during the investigation, where the manager allegedly stated, "be a man" and clean it.

It is the Respondent’s position, without prejudice or admission that this comment was made, that even if those words were used, they were merely a figure of speech rather than an act of discriminatory treatment, simply referencing the fact that he is indeed a man.

Pointing out that he is a man did not in any way harm him or affect his terms and conditions, and therefore, the Respondent is unable to understand how this could be considered discrimination on the grounds of gender.

Furthermore, the Complainant was the one who initially discovered the faeces and alerted the manager. As a result, he was asked to clean it, which did not constitute less favourable treatment compared to his colleagues. As confirmed during the investigation, cleaning and maintaining standards are part of his duties as a Sales Assistant, as outlined in his contract under the "Category" section. Therefore, this request was not specifically directed at the Complainant but fell within his job responsibilities as a supervisor.

In relation to Harassment, in the case of William McCamley V Dublin Bus (DEC-E2015-100) the Equality Officer stated that Section 14A (2) of the Employment Equality Acts gives an employer a defence against harassment if it can prove that it took such reasonable steps as are practicable to prevent the harassment or where the harassment took place to reverse its effects. (Appendix 26)

Moreover, Section 14A (2) of the Employment Equality Act 1998 to 2015:

“(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable –

(a) in a case where subsection (1)(a) applies (whether or not subsection (1)

(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and 12 (b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’ s employment and, if and so far as any such treatment has occurred, to reverse its effects.”

The Respondent in this case acted reasonably by conducting a thorough investigation into the Complainants complaint. A Bullying and Harassment policy is in place to address such issues and reinforce the company’s zero-tolerance stance on such behaviours. Additionally, employees receive training on this policy.

The Respondent further relies on Section 15(3) of the Act which provides a defence for an employer if they can prove reasonable steps were taken to prevent an employee from engaging in such conduct. The Act states:

"It shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee (a) from doing that act; or (b) from doing in the course of his employment acts of that description".

The Respondent again references its Bullying and Harassment Policy, Dignity at work and grievance policy asserting that its existence demonstrates the proactive measures taken to prevent any behaviour that could be interpreted as harassment.

Under the legislation, an employer’s obligation regarding harassment is to take reasonably practicable steps to prevent and address harassment in the workplace or during the course of employment. This includes implementing policies, providing training, and taking appropriate action when harassment is reported.

In A Worker v A Hotel [2010] E.L.R. 72 the Labour Court assessed the defence available to an employer to claims of harassment in the following terms:

“This suggests that an employer must be conscious of the possibility of sexual harassment occurring and have in place reasonable measures to prevent its occurrence as well as policies and procedures to deal with such harassment where it is found to have taken place. This requires the employer to show, at a minimum, that a clear anti-harassment or dignity at work policy was in place before the harassment occurred and that the policy was effectively communicated to all employees.”

During the investigation, the Complainant requested a transfer from the Belgard store back to his original store, Kilnamanagh. which was approved by the Area Manager. However, while the grievance investigation was ongoing, the Complainant continued to visit the Belgard store, where his manager, Ms. Howe — who was under investigation — was based. During these visits, he was observed smiling across the room, engaging colleagues in conversation and distracting them from their work, and looking at Ms. Howe in a manner perceived as intimidating.

As a result, the Complainant was instructed not to visit the Belgard store, as he no longer worked there. This message was relayed to his current manager, Ms. Liljiana Pavlovic, who reiterated it to the Complainant, clarifying that any future visits to the Belgard store should only be in the capacity of a customer.

The Respondent has a duty of care to all employees. This instruction was given, firstly, to prevent disruption to staff during their working hours and, secondly, to avoid any perceived intimidation of Ms. Howe, given the strained nature of their relationship following the grievance. This was by no means an act of victimization, but a reasonable management instruction aimed at maintaining a professional and respectful work environment.

BACKGROUND TO THE CLAIM

14th July 2024, the Complainant sent an email to Aoife Ryan, HR Business Partner, however, the email was caught in an IT firewall and the HR business Partner, did not receive it.

Once HR discovered an email had been caught in the firewall, they asked IT to unblock it, and this was then communicated to the Complainant.

15th of July, Ms. Ryan eventually received the email and subsequently reached out via telephone to the Complainant to explain the Grievance procedure.

During this phone conversation the Complainant was presented with his options and advised that Ms. Ryan would follow up via email.

16th of July, following the phone conversation, Ms. Ryan sent an email to the Complainant, attaching the grievance procedure and information about the EAP.

During this period, the Complainant approached his Sales Market Manager (SMM/Area Manager), Mr. David Farrelly, to discuss issues arising with his manager Ms. Julita Howe and requested a transfer back to his original store where he had initially started, Kilnamanagh.

7th of August, the Complainant emailed Ms. Ryan apologising for the delayed response and confirming his acceptance of Mr. Farrelly offer for a transfer from the Belgard store to Kilnamanagh and initiated a formal grievance.

12th of August, Ms. Ryan contacted Sara Murphy, HR Business Partner, to initiate the formal grievance procedure. Ms. Murphy was the appointed contact to deal with the grievance.

On the same day, Ms. Murphy reached out to the Complainant by phone to arrange a meeting to discuss his options.

21st of August, Ms. Murphy met with the Complainant to discuss his options. During this meeting, it was agreed that the Complainant would provide specific times and dates so that a formal investigation can commence.

On 26th of August, Ms. Murphy reached out to the Complainant, requesting him to provide the times and dates related to the incident to initiate a formal investigation. She also acknowledged receiving an email that he forwarded, which was initially sent to Mr. Ryan and that email contained another colleague's resignation.

On the same day, the Complainant emailed Ms. Murphy, thanking her for meeting with him to discuss the options available to him. He then proceeded to formally raise a grievance.

The grievance points are as follows:

Ground 1

In his grievance the Complainant stated that upon taking over as a new manager, Ms. Julita Howe assigned an overwhelming workload, including additional tasks like planogram changes and deep cleaning, while staffing levels were consistently low (often only two people working in a large store). Many tasks couldn’t be completed to a high standard due to the workload.

When the Complainant explained the difficulty of managing with two people, Ms. Howe dismissed these concerns, insisting that two people was normal. The Complainant felt Ms. Howe was overly critical of his performance, despite a strong track record of work.

The Complainants grievance also included, that he had pre-approved vacation plans, agreed upon months in advance with prior managers. However, Ms. Howe complained to staff about the vacation, making it seem like an inconvenience, which the Complainant felt was unprofessional.

Overall, the Complainant felt Ms. Howe was unreasonably critical and failed to acknowledge his past performance and pre-arranged vacation, leading to frustration and a sense of being unsupported.

Ground 2

In his grievance, the Complainant assert that he discovered faeces in the customer toilet and feared being asked to clean it.

His manager Ms. Howe confronted the person in question who a homeless man was and who was outside and threatened to report him to Garda if he didn’t clean it, which the man reluctantly agreed to.

Ms. Howe then insisted that the Complainant supervise the homeless man while he cleaned, despite the Complainants discomfort and nausea from the smell.

The Complainant repeatedly refused to assist, but Ms. Howe pressured him to stay, even allegedly scolding him for using a mask without permission.

Upon returning, the Complainant observed the homeless man handling the mess with his bare hands, further increasing his discomfort.

The Complainant also stated that Ms. Howe instructed him to provide the homeless man with a blue towel and gloves. He alleges that she then told him, in a serious tone, to hold the toilet door open and watch the man clean the mess to ensure it wasn’t smeared everywhere.

The Complainant immediately refused, explaining once again that he did not want to enter the area as he felt nauseous and could not stand the smell. Despite this, Ms. Howe insisted, saying, "Come on, be a man," and forced him to watch the man clean. Meanwhile, she stayed away, avoiding getting close to the situation.

He added that eventually, Ms. Howe ordered the Complainant to clean the remaining mess, even though he felt unwell, while other staff were not asked to do so. The Complainant felt singled out and unfairly treated.

In his grievance letter, the Complainant also raised concerns about improper training for such situations and believes no employee should be asked to clean such unsanitary conditions

Additionally, the Complainant stated that he was informed he could no longer visit the Belgard store and seeks written clarification for this decision, preferring not to discuss it with his current manager, Ms. Liljiana Pavlovic.

31st of August, the Complainant was issued an invitation to a grievance investigation meeting scheduled to take place on the 4th of September. He was also informed of his right to representation and was provided with sufficient notice and a reference to the relevant policy in advance of the meeting. (Appendix 8 – Meeting Invite & (B) Grievance policy)

4th of September, the grievance meeting took place. In attendance was, Ms, Murphy as the grievance officer, Ms. Mirjana Hurtic as company note taker and the Complainant, who was accompanied by Amal Antu as the employee representative.

During the grievance hearing, it was confirmed at the outset that the Complainant had received the grievance policy, was informed of his right to representation, and had received the meeting invitation.

Main Grievance Discussion Points

The Complainant began by discussing the first ground of his grievance, claiming that his manager assigned him an excessive workload, including tasks like cleaning walls, areas around the toilets, the deli, and coffee machines — tasks he described as unusual. However, he was unable to provide specific times, dates, or names of colleagues who could serve as witnesses, merely asserting that this happened every day. He also stated that, at times, instead of cleaning customer toilets, they were made to clean staff toilets.

While acknowledging that these tasks were necessary to maintain proper standards, the Complainant argued that due to the store’s busy environment, it was difficult to complete them with only two people on shift. He also confirmed that it wasn’t just him being assigned these tasks — his colleagues were as well.

The Complainant then presented a written list of tasks he considered excessive. This list included cleaning fuel pumps, cleaning the road, deep cleaning both customer and staff toilets, deep cleaning coffee machines, cleaning the deli area, reporting multiple drive-offs, cleaning the storeroom, shop floors, and dining area, and restocking shelves. He stated that they were expected to complete all these tasks every day with only two people on shift.

Additionally, he claimed that the manager and supervisor often made him walk around the store at the end of the shift to point out tasks they felt hadn’t been completed properly. Although he admitted that other managers followed a similar approach, he felt these "shop walks" were unnecessary when everything appeared to be running smoothly. He also alleged that Ms. Howe had threatened to record perceived underperformance in the system. Once again, he confirmed that this treatment was not exclusive to him but also affected his colleague.

On the same day, Ms. Murphy contacted Ms. Howe, to inform her of the raised grievance and invite her to an investigation meeting.

5th of September, the Complainant emailed the Area Manager, Mr. David Farrelly, copying Ms. Murphy in the email, to seek clarification on the reasons regarding his ban on visits to the Belgrade store, which had been imposed on him on the 13th of August.

Ms. Murphy responded with the following.

“I have now spoken to the relevant stakeholders and understand that you were requested not to attend the Belgard Store for any purposes other than as a ‘customer’ as you were speaking to belgard employees during their working time.”

6th of September, Ms. Murphy was scheduled to hold a grievance investigation meeting with Ms. Julita Howe, Belgrade, Line Manager. However, Ms. Howe stated that she had not seen the invitation in time, so the meeting was rescheduled for the 10th of September.

10th of September, Ms. Murphy held an investigation meeting with Ms. Howe, and Ms. Hurtic as the company note taker.

12th of September, Ms. Murphy held an investigation meeting with Ms. Zahida Mustaq, Assistant Store Manager, to gather her version of events. Ms. Hurtic was in attendance as the company note taker.

13th of September, Ms. Murphy held an investigation meeting with Ms. Lena Czapiga, Fresh Food Manager, to gather her version of events. Ms. Hurtic was in attendance as the company note taker.

During this period, Ms. Murphy took unexpected leave, which caused a delay in the outcome report being issued to the Complainant.

9th of October, a grievance outcome report was issued to the Complainant. The Complainant was provided with the investigation report, and the right to appeal the outcome.

Grievance Outcome / Findings

·        In her findings, Ms. Murphy determined that regarding the Complainant’s assertions — where he stated that there were typically more than two people closing the store and, as a result, he found the workload to be unreasonable — the investigating officer established that before March and prior to Ms. Howe’s return, the manager had no involvement in the staffing changes. Additionally, Ms. Howe was not involved in the decisions made regarding night shift closures prior to her return, as these were business decisions. Therefore, this aspect of the grievance was not upheld.

·        Regarding the list of tasks, the Complainant provided during the investigation meeting, Ms. Murphy found that these tasks were consistent with the responsibilities expected during a closing shift with two employees and were standard across other stations. As a result, this point was not upheld.

·        Furthermore, regarding Ms. Howe’s behaviour and the Complainant’s assertion that the tasks assigned and delegated to him were not in line with the Light of Day policy and were inappropriate in nature, during an investigation interview with Ms. Mushtaq, Assistant Store Manager, she confirmed that Ms. Howe’s behaviour and language were indeed inappropriate and not aligned with the aforementioned policy. Therefore, this point was upheld.

·        Regarding the Complainant’s assertion that Ms. Howe told him to "be a man" and clean the mess, there were no witnesses to this exchange, and Ms. Howe disputes this claim. As a result, this point cannot be substantiated.

·        Ms. Mushtaq also corroborated the Complainant’s statement that he was asked to clean the toilet. However, through her investigation, the Ms. Murphy found that witness statements confirmed Ms. Howe had initially asked the homeless man to clean the toilets and then instructed the Complainant to do so when it became clear the task had not been completed adequately.

In her findings, Ms. Murphy determined that this did not constitute a breach of the bullying and harassment policy. However, she concluded that the manager should have recognized that the homeless man was not of sound mind to carry out this task properly and asking the Complainant to take over — despite him voicing his concerns and expressing his discomfort — was not in line with the dignity and respect policy. Therefore, this point was upheld.

Following the investigation into his grievance and the issuance of the outcome report, the Respondent took the appropriate actions in line with the process. The Complainant did not appeal the outcome of his grievance.

10th of September 2024, the Respondent received notice of the WRC complaint.

Failure to exhaust local procedures

The Respondent has a comprehensive grievance procedure in place, through which all grievances are fully and fairly processed, in accordance with the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000).

Moreover, the Complainant's contract of employment also contains the provision in relation to the Grievance Procedure, see full details within the contract of employment and employee handbook both signed by the Complainant.

“From time to time, grievances caused by misunderstanding, disagreement or general dissatisfaction may occur among employees or between the organisation and its employees. Full recognition is given to the significance of personal grievances and it is our policy that all grievances will be dealt without undue delay and resolved at the earliest possible stage. Details of our grievance procedure are contained in the company handbook and should be read fully as it forms part of your contract of employment.” (Extract from Contract)

The Complainant was afforded the opportunity to put his submission in writing, and every opportunity was afforded to him to resolve his grievance.

The Complainant did not appeal the outcome of the grievance investigation.

As such, the Complainant did not fully utilize the internal avenues available to him. He failed to raise his concerns with the area manager in the first instance and, although he engaged with the grievance procedure, he did not pursue the appeal mechanism before referring the matter to the WRC.

In fact, upon being notified of the complaint, the HR team made every effort to meet with the Complainant, provide him with the available options, offer support, and promptly initiate the investigation.

The investigation was not yet concluded, and the investigator was still conducting interviews with witnesses when the Complainant decided to file a WRC complaint on September 10th.

Therefore, the Respondent’s position is that the Complainant did not exhaust all internal procedures before taking this step.

The obligation to exhaust internal grievance procedures can exist even in situations whereby there exists a purported breach of contract.

In Travers v MBNA Ireland Limited, UD720/2006 the Complainant's role was changed by the employer in a manner which was "not in keepingwith the contract of employment". The Complainant initiated the company's internal grievance procedures but did not exhaust them and resigned without lodging a final appeal.

The Tribunal found:

“the Complainant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the Complainant’s case” and stated “in constructive dismissal cases it is incumbent for a Complainant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

Therefore, it is the Respondent's position that the Complainant's failure to utilise/exhaust internal grievance procedures is detrimental to his claim.

CONCLUSION

The burden of proof rests with the Complainant to show that he has been treated less favourably on the race and gender ground specified.

It is the Respondent’s position that the Complainant has failed to provide facts from which it may inferred that discrimination has occurred and has therefore failed to establish a prima facie case of discrimination.

On 10th September 2024 the complainant submitted a complaint (CA- 00065895 – 001) to the Workplace Relations Commission, this complaint was submitted under s.77 of the Employment Equality Act of 1998. The complainant is alleging that he has been discriminated against on the grounds of his gender and race, he further alleges that he has been victimised and has been the victim of harassment from his employer.

It should be noted that Equality Law is based on comparison; how one person is treated by comparison to another who does not possess the relevant protected characteristic. It is therefore necessary to ground a claim of discrimination by pointing to how another person, not having the protected characteristic relied upon, was, is or would be treated in a comparable situation. This is referred to as a comparator. A comparator must be employed by the same employer as the complainant or by an associated employer.

A comparator is an evidential tool. They are intended to contrast the treatment of the complainant, in respect to the matter complained of, with that of another person in similar circumstances who does not have the protected characteristic relied upon. It is for the person bringing the complaint (the complainant) to select their comparator.

In the instant complaint no comparator has been identified by the complainant.

Harassment.

The definition of harassment is very wide. It can include any form of unwanted conduct which is related to any of the discriminatory grounds. The conduct constituting harassment must have the “purpose or effect” of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. The conduct need not be intended to harass the victim. It is sufficient if it has that effect.

The conduct can comprise any form of communication. The effects of the conduct must be experienced by the victim in the course of their employment, although the perpetrator need not be at work or acting in the course of employment, when the conduct occurred. So, for example, a posting on social media made by a person from home which was intended to disparage the victim at work was considered harassment (Labour Court Determination EDA 165 McCamley v Dublin Bus).

The requirement that the harassment must be suffered by the victim in the course of their employment is given a wide interpretation and can include conduct occurring outside the workplace. S.I. No 208 of 2012, Employment Equality Act 1998 (Codes of Practice) (Harassment) Order 2012, provides that conduct outside the workplace, such as while attending a conference, a training session or while attending a work-related social event, can amount to harassment in the course of employment for the purpose of the Act.

In the instant case I note that in relation to the incident that took place on 14th May 2024 the manager told the complainant when he objected to escorting the drunk man in cleaning the toilets “Come on, be a man”. The complainant contends that this was harassment.

Looking at the definition of harassment outlined above it is very difficult to disagree with the complainant.

The definition of harassment is very wide. It can include any form of unwanted conduct which is related to any of the discriminatory grounds. The conduct constituting harassment must have the “purpose or effect” of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. The conduct need not be intended to harass the victim. It is sufficient if it has that effect.

Victimisation.

The Act provides protection for workers against dismissal or any other adverse treatment in consequence of making a complaint or exercising a right under the Act.

The dismissal or adverse treatment must be in reaction to the worker having committed what is referred to as a “a protected” act. The protected acts which can give rise to victimisation are listed at section 74(2) of the Act, as follows:

a)      A complaint of discrimination made by the employee to the employer

b)     Any proceedings by a complainant

c)      An employee having represented or otherwise supported a complainant

d)     The work of an employee having been compared with that of another employee for any purpose of this Act or any enactment repealed by this Act,

e)     An employee having been a witness in any proceedings under this Act or the Equal Status Act  2000 or any such repealed enactment,

f)       An employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

g)      An employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

The Labour Court has held that the concept of “victimisation” should be “construed as widely and liberally  as can fairly be done and should be given a sufficiently wide ambit so as to encompass all forms of detriment inflicted on a worker by their employer for having committed a protected act” (Determination EDA 099, Watters Garden World Ltd v Panuta).

The adverse treatment must be by the victim’s employer.

Looking at the instant complaint I believe there has been no act of victimisation against the complainant.

Overall, I conclude that there has been no act of discrimination or victimisation. There has been an instance of harassment shown against the complainant and I now order the respondent to pay the complainant compensation in the amount of €1,000. Such amount should be paid to the complainant within 42 days from the date of this decision.

Overall, I conclude that there has been no act of discrimination or victimisation. There has been an instance of harassment shown against the complainant and I now order the respondent to pay the complainant compensation in the amount of €1,000. Such amount should be paid to the complainant within 42 days from the date of this decision.