Complainant

Respondent

Parties

Julia  Skorohhodova

Jysk Limited  

Representatives

Self-represented 

Kevin Bell BL instructed by Lewis Silkin Solicitors

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-00065616-001

27/08/2024

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

CA-00065616-002

27/08/2024

The Complainant commenced her employment with the Respondent on 9 June 2023. She resigned her position with effect on 9 July 2024.

On 27 August 2024 the Complainant referred her complaints to the Director General of the WRC alleging that she was dismissed for a discriminatory reason or for opposing discrimination, and that she was discriminated against by the Respondent in conditions of employment by reason of her civil status.

The Respondent rejects the claims.

In her WRC complaint referral form, the Complainant alleged that she was dismissed for discriminatory reason or for opposing discrimination. She made allegations of bullying and harassment, false accusations, unfair lay-off, which resulted in her having to leave her job.  

The Complainant submitted that she contacted the Health and Safety Authority (‘HSA’) to request an anti-bullying policy as the Respondent declined all her grievances. The Complainant submitted that it took the HSA nearly two months to obtain the policy from the Respondent and in the meantime the Respondent created a case against her that was not a true one. The Complainant submitted that the Respondents wanted to discipline her without even informing her that there was a problem. The Complainant alleged that the Respondent did not follow any formal steps but attacked her by accusing her of being what she is not.

The Complainant alleged that, after the Respondent’s Head Office came to the Portlaoise branch following the HSA’s request, she received an email from the District Manager to invite her to an investigation meeting. The Complainant submitted that when on 4 July 2024 she received an invitation to an investigation meeting to be held on 5 July 2024, she thought it was about the complaints of bullying she had raised. The District Manager did not make her aware what the meeting was about. It transpired that she was accused of things which were complete lies. The District Manager was trying to make her to confess to and admit saying things that were not said by her. She was then sent on paid leave. The Complainant submitted that when she wanted to refuse that, the District Manager said there would be disciplinary meetings ahead.

On Saturday 6 July 2024, the District Manager invited her to a disciplinary hearing to be held on the morning of the Monday 8 July 2024. Despite the Complainant flagging the short notice and her intention to seek independent advice, the District Manager insisted that all she was entitled to was 48-hours’ notice and agreed to move the meeting to 4pm on 8 July 2024 and then to 10 July 2024. The Complainant was then invited to a disciplinary hearing to be held on 11 July 2024. The Complainant decided to resign her position by email on 9 July 2024.

The Complainant informed the District Manager that she would need time to get advice as it was clear that her employer turned its back on her.

The Complainant submitted that this only happened because she contacted the HSA regarding a bullying matter at her workplace.

The Complainant submitted that the Respondent’s reports which were created by two of her coworkers were completely false.

The Complainant further submitted that she did not want to go through unfair disciplinary as she was not even informed that there was a problem. She submitted that she was advised by her GP to leave the job which caused her such stress and led to her taking a lot of sick days as a result. The Complainant submitted that she sent her grievances to the District Manager but they were completely ignored, and she never got any mediation, any talks, or any advice.

The Complainant submitted that everyone in management team were biased, they were all friends outside of work, and they all covered for each other. The Complainant alleged that the managers abused their power.

The Complainant submitted that her coworkers were forced to write and backdate reports that reported lies. She submitted that she had a proof to clear her name. She felt that she was attacked unfairly and unexpectedly. She was victimised for protecting her rights.

With regards to the alleged discrimination on the grounds of civil status, in the WRC complaint referral form, the Complainant submitted that the Respondent ignored her complaints about alleged bullying behaviour by her supervisor (‘Shift Responsible’). She submitted that everything deteriorated after she returned from her holidays in June 2024. The Complainant submitted that she reported the matter in writing. The Complainant alleged that her Shift Responsible monitored her on camera, verbally abused her, manipulated her job description and targets, withheld information needed to do her job properly, overloaded her, spread rumours and gossip about her.

Summary of direct evidence of the Complainant

The Complainant gave evidence that, from the moment the District Manager told her about the complaints against her, she knew that the Respondent wanted to get rid of her. She knew that what she was accused of was not true. She decided to leave the job herself.

The Complainant said that she loved her job.

The Complainant conceded that she did not believe that she was discriminated against or that the treatment she suffered was due to her civil status. She conceded that, while she believed she was unfairly treated, it had nothing to do with her civil status.

The Respondent chose not to cross-examine the Complainant’s evidence.

Summary of direct evidence of Mr Pawelczyk, a former employee of the Respondent

Mr Pawelczyk, in his evidence, suggested that there was collusion to get rid of the Complainant. He said that he witnessed Mr M, a manager from the Naas shop (and Portlaoise shop deputy manager’s husband) walking into the shop shortly after the District Manager’s meeting with the Complainant. He walked straight toward the office where the District Manager was. The first thing he said was “how did it go”. The District Manager responded “good” and they high fived each other. Not too long after, the Shift Responsible, Ms B and the Naas manager high fived each other and made sure Mr Pawelczyk saw them. The witness said that he had no option but to resign after witnessing how the Complainant was picked at by the management.

Mr Pawelczyk said that he did not know anything about the civil status aspect of the treatment of the Complainant.

The Respondent chose not to cross-examine the witness’s evidence.

The Complainant has initiated two complaints against the Respondent alleging discriminatory dismissal and discrimination on the basis of civil status. Nothing in the Complainant’s complaint form, or accompanying documentation, discloses what the Complainant’s civil status is or any allegation that she was discriminated against on the basis of that unknown civil status. Both claims are misconceived and are based on a fundamental misunderstanding of the Employment Equality Act 1998.

As well as not disclosing any allegation of discrimination on the selected ground of civil status, the Complainant’s complaint form and accompanying documentation fail to identify any other protected ground which it is alleged the Complainant possesses and which is alleged to have formed the basis for any alleged discrimination. Instead, the Complainant appears to be conducting these proceedings in the form of a generic workplace grievance without reference to any protected ground. The proceedings are fundamentally misconceived and should be dismissed.

The complaint of discriminatory dismissal is misconceived where the Complainant voluntarily resigned her employment.

Introduction

The Complainant was employed by the Respondent as a Sales Assistant between 9 June 2023 and her resignation on 9 July 2024. The Complainant has been employed by the Respondent in the same role for a prior period which had also come to an end by way of her resignation.

The Respondent’s Portlaoise Store Manager received an allegation on 14 May 2024 that the Complainant had referred to African taxi drivers in Portlaoise as “niggers” in the presence of two colleagues, Ms A (Sales Assistant) and Ms B (Shift Supervisor).

Following engagement between the Store Manager and the Respondent’s District Manager, and the receipt of formal written statements from the two witnesses, the District Manager invited the Complainant to a meeting on 4 July 2024. At this meeting she was informed of the allegation and suspended with pay pending investigation.

The Complainant resigned her employment six days later.

Following her resignation and around the time of the institution of these proceedings by the Complainant on 24 August 2024, she sent a WhatsApp message to Ms A which appears to be an improper attempt by the Complainant to influence the evidence that Ms A might give to this Commission in the context of these proceedings.

Law

Section 6(1) of the Employment Equality Act 1998 (“the Act”) defines “discrimination” in the following terms:

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)

Section 85A of the Act 1998 provides that:

85A.—(1) 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.

It is clear from the Complainant’s complaint form and accompanying documentation that the Complainant has not even alleged that she has been the subject of any discrimination, as defined by the Act. She has failed to identify any protected ground of which she alleges she is in possession and which she claims motivated any conduct of the Respondent.

As a result, the Complainant has failed to establish a prima facie case such as would cause section 85A of the Act to become operative and switch the burden of proof to the Respondent. The Respondent is unable to answer an allegation of discrimination which simply does not exist.

Conclusion

The within proceedings are fundamentally misconceived having been predicated on an allegation of discrimination on the ground of civil status in circumstances where no such allegation is made by the Complainant, and where the Complainant voluntarily resigned her employment.

The Respondent submits that the proceedings should be dismissed as not well founded.

The Complainant alleges that she was discriminated against by the Respondent in conditions of employment by reason of her civil status and that she was dismissed for discriminatory reason or for opposing discrimination. The Respondent rejects the claim.

Discrimination for the purposes of this Act

Section 6(1) of the Employment Equality Acts 1998 (as amended) (‘the 1998 Act’) 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”)

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

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

Section 8 of the Act states:

Discrimination by employers etc.

(1) In relation to— (a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

Burden of Proof

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The WRC and the Labour Court have held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a presumption of discrimination is established and the burden of proof shifts to the Respondent.

In the case of Melbury Developments and Valpeters EDA 0917 the Labour Court stated as follows:

‘Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.’

The Labour Court in the case of Southern Health Board v Dr Teresa Mitchell DEE 011 considered the extent of the evidential burden which a Complainant must discharge before a presumption of discrimination can be made out. The Labour Court stated that

‘The first requirement of Article 4 of the Directive 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 was no infringement of the principle of equal treatment.’

In Graham Anthony & Co Ltd. v Mary Margetts EDA038, the Labour Court remarked:

‘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 occurred.’

In deciding on this complaint, therefore, I must first consider whether the presumption of discrimination on the civil status ground has been established by the Complainant. It is only where such a presumption has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

Comparator

Section 28 of the Acts in relevant parts provides that:

28.The comparators

(1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:

in relation to the civil status ground, C and D have different civil status;

Time limit

Section 77 provides as follows:

(5)(a) 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.

(b) On application by a complainant the Director General or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly.

(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant's notice.

(6A) For the purposes of this section—

(a) discrimination or victimisation occurs—

(i) if the act constituting it extends over a period, at the end of the period,

(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and

(iii) if it arises by virtue of a provision which operated over a period, throughout the period,

(b) a deliberate omission by a person to do something occurs when a person decides not to do it, and

(c) a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either—

(i) does an act inconsistent with doing it, or

(ii) the period expires during which the respondent might reasonably have been expected to do it.

The time limits which govern the referral of complaints under the legislation are provided for in section 77 of the Acts as set out above. The effect of these provisions is that the Complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the WRC unless the discrimination in issue is part of a continuum of events.

The Complainant referred the within complaint to the Director General of the WRC on 27 August 2024. Therefore, the cognisable period for the purpose of the complaint in accordance with the time limits provided for in section 77(5) of the Acts is the six-month period prior to the referral of the complaint, namely from 28 February 2024 to 27 August 2024.

The issue for consideration by me is whether or not the Complainant was discriminated against by the Respondent on the grounds of her civil status and/or whether she was dismissed for discriminatory reason or for opposing discrimination.

It is clear from the Complainant’s submission that her claim relates to the Respondent’s approach to her complaints of bullying. It appears that the Complainant believes that she was unfairly treated following her raising the bullying complaints and, as a result, she decided to resign her employment. The Complainant conceded at the adjudication hearing that the treatment and the subsequent resignation was not due to her civil status.

I am restricted in my decision to the provisions of the Employment Equality Acts. There was nothing put before me to show thatthe Complainant was treated less favourably by virtue of her civil status as claimed. I, therefore, cannot draw a conclusion that discrimination on grounds of civil status occurred in this case and/or that the Complainant was dismissed for discriminatory reason or for opposing discrimination. 

I declare the complaint bearing reference number CA-00065616-001 pursuant to the section 77 of the Employment Equality Act, 1998 to be not well founded.

I declare the complaint bearing reference number CA-00065616-002 pursuant to the section 77 of the Employment Equality Act, 1998 to be not well founded.

No prima facie case- not well founded- civil status-