Complainant

Respondent

Parties

Khirfa Ziwawo  Sifa

TJX Ireland Unlimited Company

Representatives

Self-represented

Katherine Mc Veigh BL, instructed by Hayes Solicitors LLP

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-00069321-001

17/02/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00069321-002

17/02/2025

The complainant worked as an Associate on part-time hours with the respondent’s Newbridge Store from 16th May 2021 until his resignation on 4th January 2025. He claims that he was discriminated against due to his skin colour. He is claiming discriminatory dismissal and harassment due to his skin colour.

He also claims that the Protection of Employees (Part-time Work) Act 2001 was breached as he did not have opportunities for promotion and newer part-time staff were promoted.

The respondent representative denies the claims in full.

Summary of Mr Sifa’s Evidence

The complainant said that this was his first job and that he worked under a previous manager and then, Mr Cooper, the current Store Manager. He felt that Mr Cooper did not appreciate his work and that new recruits hired before Christmas received more training and promotion opportunities.

He said he worked 12 hours initially and this was increased to 16 hours. He said all other associates worked part-time and only the team leaders and managers worked full-time. He said he did not know how full-time staff were treated as he mainly interacted with associates.

He said that his comparator, Mr A, was Irish and had better training and promotion opportunities. This comparator was promoted after 3 months. The complainant said he did not have the same opportunities due to his skin colour.

The other comparator, Ms D did not have his skin colour, and she also had better training opportunities, and she was promoted.

He said when his visa was due to expire that Mr Cooper had reminded him that he could not continue to work without his visa. He felt that he should have got more support from Mr Cooper and that this was a form of harassment. He said that Mr Cooper changed his shifts, and this did not suit him. He said that he had been reprimanded verbally by a former manager in 2024.

He decided that December 2024 would be his last month as he was not getting the same opportunities.

Under cross-examination by the respondent representative, he was asked about the staffing structure and the diversity of staff within the store and his reasons for resigning. He confirmed that he resigned on 17th December 2024 and his last day in work was 4th January 2025 as he was not getting the same opportunities. It was put to him that there was an inconsistency in his evidence as he resigned on good terms with his manager which was confirmed in his resignation letter. He replied that he was afraid of raising issues during his employment and he sought assistance from Mr Cooper during and after his employment with various forms. He said his relationship with Mr Cooper changed before Christmas 2024 when the store started to recruit staff. He said other staff were treated differently as they were better trained and promoted. It was put to him that evidence would be given that all vacancies were advertised, that one of his two comparators was not promoted, and that he had never applied or requested training or expressed an interest in promotion. He replied that he did not know about the promotion opportunity.

The complainant was brought through the training on procedures that took place. It was put to him and that at no time did he make a verbal or formal complaint during or after his employment other than the complaint submitted to the WRC. He replied that he was afraid to make a complaint. He agreed that all staff received the same general training although there were differences in treatment within the store. He agreed that he received training on one occasion in February 2024 when he requested it.

He was asked about his work as a barber and that he had gone from 5 hours per week to working full-time as a barber when he resigned from his employment. He denied that the reason for resigning was to take up full-time work as a barber. 

The Adjudication Officer asked if being reprimanded by the previous manager was linked with his interactions with Mr Cooper. He replied that there was no link.

He clarified that the reference to his treatment as a part-time worker was related to his discrimination complaint as he felt he was treated differently.

Complainant Closing Submission

The complainant submitted that he did not feel supported particularly towards the end of his employment. He said he made a mistake by not speaking out during his employment and he left the team as he was not progressing. After over 3 years in the store, he felt he was not supported to progress, and this was due to his skin colour.

The respondent representative referred to information on the complaint form of alleged incidents of discrimination which occurred outside of the statutory timeline. When requested by the WRC he then included incidents which were within the 6-month timeline. It was submitted that the wording on his resignation letter and assistance from the Store Manager indicated that he left on good terms. It was submitted that there were inconsistencies and credibility issues with the witness testimony. It was vague and some of the alleged incidents were not included on the original complaint form.

Summary of Mr Cooper’s Evidence

Mr Cooper confirmed his position as Store Manager and outlined his role within the Newbridge Store. He said that the complainant received training and had access to all policies. He said the complainant never made a complaint during or after his employment. The first time he became aware of issues was when they were referred to the WRC.  He did not accept that the complainant was afraid to make complaints. If necessary, he could have made anonymous complaints to more senior managers. He said there were thirty staff employed, all of different nationalities.

He said that Mr A was not promoted and that Ms D was promoted. He confirmed the promotion took place after two advertisements and an interview. He said the complainant did not interview for the post nor did he express an interest in pursuing training to prepare himself for promotion.

He was surprised when the complainant resigned. He agreed to act as his referee, if he was applying for other roles. He said he assisted the complainant in March 2025 when he sought access to his payslips from head office.  

He said that extra shifts were made available to all staff and the complainant never requested these.

He said automated emails are received when staff visas are due to expire. He would then remind staff to renew which he did with the complainant.

Under cross-examination by the complainant, he was asked why he did not provide more support on the visa renewal particularly as he was a loyal member of staff. He replied that he was not asked to assist and that in general he always assisted the complainant when he could.

He was asked whether the complainant knew there was an available promotion. He replied that the post was advertised and available for all staff to apply.

Respondent Closing Submission

The respondent representative submitted that the complainant had not discharged the evidential burden for a part-time worker claim. Although it was confirmed in testimony that the part-time complaint related to the discrimination complaint, the complainant had not withdrawn this complaint.

It was submitted that there was a lack of specific detail with the complainant relying on his feelings. He had not submitted credible evidence on harassment or discriminatory dismissal. There was no detail or consistency of when alleged incidents of discrimination occurred.

It was submitted that when resigning, he went out of his way to thank the employer, and the resignation letter reflects the true employment relationship. A comparator was not promoted. The other comparator applied and interviewed for the position.

Without prejudice to the respondent’s position that there was no discrimination or harassment, as per Section 14A of Act, the testimony demonstrated the training and policies that were in place. The complainant did not make a complaint during or after his employment other than to the WRC.

CA-00069321-001 Discriminatory Dismissal Complaint

The Law

Discrimination for the purposes of this Act. 6.— (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,

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as the race ground)

Section 77(5) of the Employment Equality Act provides:

(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.

Section 77(6A) provides:

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 operates over a period, throughout the period,

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.”

Applying the Law to the Facts of this Case

The Employment Equality Acts 1998 to 2015 (“the Act”) promotes equality in the workplace and provides protection against discrimination and harassment. The Act prohibits discrimination on nine grounds, including race. Discrimination occurs when one person is treated less favourably than another is, has been or would be treated. In general, a complainant must prove less favourable treatment as compared to another person in a similar position to the complainant.

The cognisable period is from 18th August 2024 to 17th February 2025 (when the complaint form was received by the WRC).  

It is common case that for a discrimination/harassment complaint to be in time, there must be discriminatory treatment/harassment within the cognisable period itself.

Discrimination on Skin Colour

The complainant gave testimony that this treatment occurred before Christmas 2024 when part-time staff were hired who received more favourable treatment (additional hours, training, and access to promotion). The complainant also gave evidence on the visa issue and felt he was not supported. He named two comparators, one of which it was confirmed was not promoted. Along with the incidents within the cognisable period, he also outlined an incident that occurred with another manager which he said was not linked to the later treatment by the Store Manager.

The incidents described by the complainant were not particularised on the difference in treatment on hours, training, and promotion. On these, the Store Manager gave testimony which was more convincing in that extra shifts were available to all staff, training opportunities were available to all staff, and the complainant had not applied for promotion. Even though a comparator who was not dark skinned was promoted, she had applied and was interviewed.

The testimony on his treatment by the Store Manager on the visa renewal was that he felt unsupported. On this, no comparator was referenced. Also, there was evidence submitted of a good relationship with the employer when he resigned.

I am satisfied that the respondent witness (Store Manager) has rebutted the alleged incidents of discriminatory treatment. I decide that the complaint of discriminatory dismissal is not well founded.

Harassment Complaint

Section 14A of the Acts provides that harassment of a worker on any of the discriminatory grounds at his workplace constitutes discrimination by the employer. Harassment is defined as any form of unwanted conduct related to any of the discriminatory grounds being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Having reviewed the evidence, the only allegation of harassment could be the treatment by the

Store Manager on his visa renewal. The fact that the complainant never raised this issue afterwards tends to show that it was an insignificant issue. Also, any feelings of the complainant were never made known to the Store Manager despite the extensive training on policies provided. There

 was no evidence presented on how a comparator staff member of a different skin colour

 was treated in the same circumstances.

For the reasons outlined, I decide that the harassment complaint is not well founded.

CA-00069321-002-Complaint under Protection of Employees (Part-Time Work) Act 2001

The Law

Section 9 of the Act states that a part-time employee cannot be treated in a less favourable manner than a comparable full-time employee on conditions of employment.

Finding

The complainant gave testimony that this aspect of the complaint related to discriminatory dismissal. He also confirmed in testimony that he did not know how a comparable full-time employee was treated.

Therefore, as there is no valid complaint under the Act, I decide that the complaint is not well founded.

CA-00069321-001- Discriminatory Dismissal Complaint

I decide that the complaint of discriminatory dismissal is not well founded.

I decide that the harassment complaint is not well founded.

CA-00069321-002- Complaint under Protection of Employees (Part-Time Work) Act 2001

I decide that the complaint is not well founded.

Discrimination, Part-time work