Complainant

Respondent

Parties

Daniela  Krause

Fedex Express Ireland Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Katherine McVeigh BL Eversheds Sutherland  

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00062520-001

29/03/2024

A delivery driver tried to deliver a parcel to the Complainant on two occasions on 26th and 27th February 2024.

The Complainant says she has been discriminated against on the grounds of her nationality,  harassed, victimized and her front door vandalised by the Respondent’s delivery driver on 26th and 27th February 2024.

The Complainant was on a call at 2pm when the delivery driver telephoned her mobile phone. He aggressively banged and damaged her front door leaving marks and scratches. He shouted loudly to her neighbours and she could hear racist remarks “That German slut who lives here is not opening”. The lock on the door was damaged so it won’t close, and she has to use another lock inside the door. There was no note left about the parcel. The driver was not answering her calls or messages.

On 27th February 2024, she received another call to her mobile phone at 12.55. The driver said he would not deliver the parcel unless he received proof of her f*****up German identity and proof of address. She notified the driver she was raising a legal claim for harassment, discrimination, victimisation and vandalism and would not accept physical aggression. The parcel was not delivered to her.

She made a complaint to the company on 28th February 2024. She was notified by Ms. Ward that the parcel would be returned to the sender, and no further parcels would be delivered to her by FedEx. The drivers dispute the acts of vandalism and discrimination. She reported the matter to the Gardai.

She says the refusal of FedEx to deliver to her is further discrimination and victimisation as she has no control over what delivery company merchants use. She did not receive evidence of any investigation by FedEx. She did not receive a refund. She collected the parcel from her post office. The Complainant served an ES1 on the company on 29th February 2024. She had to replace her door and there are additional costs incurred as a result of the incident.

The Respondent takes its duties to prohibit discrimination under the Equal Status Act 2000 very seriously. The claim is denied in its entirety. The incidents did not occur as claimed by the Complainant. The individuals involved are contractors to the company.

The Complainant has named FedEx Express on the Form ES1 not FedEx Express Ireland Limited. The Form ES1 is not constituted correctly and has an incorrect address. The Complainant has not complied with the requirements of S21 (2) of the Equal Status Act 2000.

S21(2) Before seeking redress under this section the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act, and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

The Complainant must establish that she put the company on notice of her nationality and the alleged discrimination is connected. The Respondent says it was not on notice of her nationality.

The Respondent denies discrimination and relies on Section 38A (1) of the 2000 Act. The burden rests on the Complainant to establish a prima facie case of discrimination. Only at that point will the burden shift to the Respondent to prove there was no infringement of the principle of equal treatment or to objectively justify the discriminatory treatment. The Respondent relies on the  decision of the Labour Court in Mitchell v Southern Health Board [2001] 12 ELR 201 and the decision in Refah v Corless, ADJ-00049805.

The Complainant cannot satisfy the burden of proof required to shift the burden to the Respondent. She has not identified a comparator to whom she can compare herself to demonstrate that she was treated less favourably than another person. The Complainant’s case of harassment relies on an identical set of facts to the discrimination complaint, which cannot be used to support more than one claim. The Complainant has failed to make out a case of victimisation.

I heard and considered the submissions and evidence of the witnesses at the hearing.

Section 5 of the Equal Status Act 2000 prohibits discrimination in providing services to the public generally or a section of the public, whether the service is provided for consideration or otherwise.

The Complainant claims that she was discriminated against by the Respondent on grounds of her race in terms of Section 3 (1) and S 3 (2) (h) of the Equal Status Acts 2000-2015 and contrary to S 5 (1) of the Acts in the Respondent failing to provide goods, service or facilities.

The ES1 form was sent to the Respondent on 29th February 2024 by registered post. No reply was received from the Respondent.

Section 3 (1)(a) of the Equal Status Acts 2000-2015 provides that discrimination shall be taken to occur 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”. Section 3 (2) (h) provides that as between any two persons, they are of different race, colour, nationality or ethnic or national origins (the race ground).

S38A of the Acts sets out the burden of proof which applies to a claim of discrimination under the Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case of discrimination has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

The Complainant alleges discrimination on the grounds of her race, harassment and victimisation under the Acts. The Respondent raises a preliminary issue that it was not aware of the Complainant’s nationality prior to the alleged incidents.

The Complainant gave evidence of two attempts by the company drivers to deliver a parcel on 26th and 27th February 2024. On the first occasion she alleges her nationality was referred to in a derogatory manner which she overheard. She was unable to open the door at the time of the call. On the second occasion she alleges further racist comments by the driver on the phone. The Complainant was asked to produce proof of identity and address for the driver on 27th February 2024. She made a complaint to the company on 28th February 2024.

James Tierney on behalf of the Respondent gave evidence that he commenced employment in February 2024. He was training with a Supervisor on the day. A neighbour let him into the building as he could not access the apartment. He gave a knock to the door as trained and left as there was no answer. He never met the Complainant previously and was not aware she is German. He was shocked about the allegations made against him. He has never received any complaints against him.

Alan O’ Brien gave evidence that he is a contractor to the Respondent. He is a supervisor and was in the car with James Tierney on 26th February 2024. He said Mr. Tierney went into the apartment block for three or four minutes and then returned to the car. The following day Mr. O’ Brien went to deliver the parcel, but the gate was closed. He said he telephoned the Complainant’s mobile. She was very aggressive and said he was not allowed on the premises. He told her if she was coming to collect the parcel at the gate, she must bring proof of identification to collect the parcel. He did not know the Complainant was German.

The Respondent’s representative submitted any scratches to the door were wear and tear and there was no evidence a full replacement of a front door was required. The representative submitted the drivers are fearful of the Complainants actions, and this is why the company did not wish to deliver parcels to her address. This is not discrimination or victimisation.

I have considered carefully the evidence of the Complainant and witnesses. There had been a prior incident between the Complainant and another driver some months previously when she complained to the company, she had not received a delivery but subsequently found the parcel. On this occasion on 26th February 2024, Mr. Tierney who was a new driver had never met the Complainant. He could not have been aware of the Complainant’s nationality when attending the property. I am not satisfied that any alleged damage to the Complainant’s front door arose from this delivery, nor that a replacement door was required.

In Mitchell v Southern Health Board (DEE011 15.2.01) the Labour Court held:

“…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 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.”

I find that a prima facie case of discrimination, harassment and victimisation by the Respondent on the race grounds has not been established by the Complainant.

No prima facie case has been established and the complaint is dismissed.