Complainant

Respondent

Parties

Jarmilia  Trstanova

Aldi Stores (Ireland) Limited Aldi

Representatives

Jack Healy B.L., instructed by Daithi O’Maonaigh Ormonde Solicitors

Lorna Lynch S.C., instructed by Walter Beatty Solicitor, Flynn O’Driscoll

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-00066434-001

02/10/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and one witness for the respondent undertook to give their evidence under affirmation.

The complainant submitted that she worked as an Assistant Manager, having been employed by the respondent since 2010. She submitted that her employment went very well and without issue until June 2023 when a new Area Manager was appointed.  She submitted that she saw the Irish staff being treated more favourably on a regular basis.

She stated that in her duties as an Assistant Manager; she was told repeatedly that Irish staff "needed to be kept" or some variation of this - implying that no discipline or warnings should be issued in circumstances where policy was not followed.  In late 2023, the respondent issued a new sick pay policy which was more generous than what has previously in place. Thereafter, a significant spike in staff calling in sick was noted.

The complainant submitted that on one occasion in May, two staff members (both Irish) called in sick while the Store Manager and the Area Manager were both on holiday. The same morning, an early morning staffer realised that the shop had been without power. A rush to clear the fridges and freezers began, and she attended work earlier than scheduled to assist. When the Area Manager returned to work after his annual leave, he said her performance was lacking and the store was suffering as a result. She submitted that she had been flagging the issue with absenteeism and abuse of this policy for a while and was consistently being shut down so as not to upset the Irish staff. 

The complainant submitted that she was told that she was to be put on a PIP, despite dealing with what was extremely tough circumstances that morning and that week generally. She was due to go on annual leave in the following days and while off, attended her doctor who certified her unfit for work.  While on certified sick leave, within two or so weeks of providing a sick certificate, she received a call from the Area Manager telling her that it was necessary to attend a Company Doctor. This was a huge shock as in all her time in that store (almost one year under this Area Manager), she knew of no staff member that was sent to a Company Doctor.  

The complainant submitted that as she was the one responsible for doing return to work interviews etc, she would be privy to this information. She asked her Area Manager on the same call, why this was necessary and told him that she knew this was not the case for Irish staff.  She submitted that suddenly her appointment was unnecessary and being pushed back.   She submitted that she since attended an appointment with Company Doctor, who said she was suffering with burnout, although she never received a copy of the report. She submitted that in the days and weeks after, she was asked to return her keys, removed from the management group chat and in a separate discussion where she asked to take a sabbatical or a leave of absence (which was refused), she was asked her Area Manager what he wanted her to do where he was refusing requests, she am asked him if he wanted here to resign but he refused to answer. However, his position was very clear following this discussion.

The complainant submitted that in the absence of credible contradictory evidence, she is entitled to succeed as per DCC v Gibney (EE 5/1986).  The complainant sought to rely on a hypothetical comparator.  It was submitted that evidence was put forward by the complainant in her oral testimony.

Witness testimony:

The complainant stated that the retail outlet she worked in was of low sales unit so there were only four staff.  She provided a number of conflicting dates as to when she was out on annual leave.  She stated that her relationship with her manager was difficult in that he was detail orientated and was micromanaging her.

She noted that several staff were always out sick but noted that they did return to work. She stated that a new policy was introduced in early 2024 with a return-to-work interview being conducted for each person when they came back.

She stated that for hourly paid staff their leave was based on their tenure with the respondent.  A number of staff were regularly out sick and when she raised this with her manager she was told that we cannot afford to lose staff. She queried whether it was just because they were Irish or not. The complainant stated that she escalated this to her managers manager, as was her job. She stated that he did not like that and he asked her how this affected her work. She noted that she could not be blamed for the performance of staff who would not attend. She felt that this was partly being blamed on her nationality. She stated that she felt undervalued.

The witness stated that after this interaction she was referred to the company doctor, after two or three weeks of being on sick leave. She stated that when she saw the doctor the medical assessment was that she was suffering from burnout. She said that she started to feel like a burden to the company and felt that when she was open with her manager it was used against her. She confirmed that she undertook other activities while employed with the respondent and that these were disclosed to the operations manager.  She also confirmed that she was also studying at the same time.

Under cross examination it was put to her that she had a poor recollection of dates, but she disagreed with this. However, she confirmed that she did get dates wrong and that she thought that she was out for two weeks rather than three weeks. She stated that she had three annual leave weeks planned and didn't feel that she could return to work after the unusual leave.

It was put to her that information and dates in her complaint form were incorrect. She related events as having taken place in May, but she was not present in the workplace during that month. She responded that she thought she would be supported by her area manager.

It was put to her that there were other exaggerations in her complaint form, for example it is company policy to refer people to see the company doctor when they have had a number of days sick leave, but she noted that she was not aware of that. It was put to her that she completed the return-to-work forms and so should have been aware of this in her role.

She stated that the discrimination against her occurred when she was referred for medical assessment.  She also stated that she was not very happy with her area manager calling her out on a number of issues. She stated that they were under resourced and that she had to work long hours. She confirmed that after a particularly heavy week she had left early but felt that the store would be in good hands and had 100% confidence in her colleague who was due to close up the store that evening.

She was then asked whether she was stating that her referral for a medical assessment was discriminatory and she confirmed that it was. It was put to her that one of her (named) Irish colleagues had also been preferred for a medical assessment, but she said that she couldn't recall that. It was put to her that she was treated exactly the same as employees on a nationwide basis in accordance with the policies in place. 4 all retail out outlets run by the respondent,

The complainant confirmed that she never sought to pursue a complaint or a grievance with the respondent and that she resigned after having submitted her complaint to the WRC.  She sought a sabbatical from the workplace, but this was not approved nor was a period of unpaid leave.

Under redirect put to the witness that what she was saying was that the discrimination was cumulative after having raised issues regarding absenteeism on a number of occasions and the subsequent medical referral when she was out sick.

The respondent submitted that the burden of proof rests on the complainant to demonstrate that she was discriminated against.  It was noted that a passing reference to harassment was not mentioned in her submission, and it was submitted that there were fundamental errors in the dates and times recounted by the complaint.  She was not even in the store during the May period that she referenced.

The respondent submitted that even if she was told to treat Irish staff differently, the onus is on her to establish that.  It submitted that another (named) employee was referred for medical assessment too.

The respondent submitted that the complainant changed her linked-in profile before leaving and submitted a reference request prior to her resignation.  It was submitted that this is an artificial attempt to make a claim. It was also noted that the complainant did not try to take either a formal or informal complaint or grievance at all, but specifically prior to resigning.

The respondent declined to proffer any oral evidence noting that the complainant submission should be dismissed as it amounts to ‘mere speculation’ as outlined in the case of Valpeters v. Melbury Developments Ltd [2010] ELR 64.

The complainant appears to have gone on annual leave for three weeks and then took sick leave. She resigned her position before returning to the workplace.

The evidence put forward by the complainant was not contradicted by evidence provided by witnesses for the respondent.  In fact, no oral evidence was provided by witnesses for the respondent.  The complainant submitted that in the absence of credible contradictory evidence, she is entitled to succeed (as per DCC v Gibney (EE 5/1986)).  However, that is dependent on the quality of the evidence put forward by the complainant.  The complainant did not come across as a particularly credible witness in that she had no great recollection of dates or events, the information being given was imprecise at best, or wrong on occasion, as outlined by the respondent’s representative when challenging some of the dates.  I do not find the complainant to be a reliable witness.

The respondent suggested that all the evidence proffered by the complainant amounts to ‘mere speculation’ a phrase used in the Valpeters case, cited by the respondent.  In that case the Labour Court determined, amongst other things, that “Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

The complainant refers to hypothetical comparators however the respondent is a large employer, and the complainant has worked for them for quite some time.  The respondent employs a large number of nationalities across its retail outlets.   In these circumstances, a hypothetical comparator is not acceptable when actual comparators are available and were, or ought to have been, known to the complainant.

Having considered the evidence provided by the complainant, together with the absence of concrete fact relating to actual comparators, I find that the case put forward by the complainant amounts to assertions which were not supported by credible evidence.  I find that this cannot be elevated to a factual basis from which an inference of discrimination can be drawn. 

Accordingly, I find that the complainant was not discriminated against.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was not discriminated against.

Employment Equality – credibility – mere speculation – not discriminated against