Complainant

Respondent

Parties

Ciprian  Constantin

Cobh Youth Services CLG/Re-store

Representatives

Lorna Madden BL instructed by Irish Human Rights and Equality Commission (IHREC)

Ali Bracken Ziad BL instructed by Charles C. Daly & Co Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00065683-001

28/08/2024

Preliminary determinations

Having heard preliminary argument by Counsel for both sides, and carefully considered the matter, the Adjudication Officer determined that she would hear evidence in relation to August 8th and August 20th on the protected ground of race, only.

The Adjudication Officer determined that she would not hear evidence in relation to August 21st as it was not properly notified to the Respondent.

The Adjudication Officer further determined that she was satisfied that the Complainant did not meet the definition of ‘Member of the Travelling Community’ and therefore she would not hear evidence in relation to that protected ground, only in relation to the protected ground of race. She further determined that she would hear no evidence in relation to the protected ground of ‘family status’ as it was not notified to the Respondent nor particularised – the first time it was raised was on the WRC complaint form.

The Adjudication Officer agreed to admit two videos to evidence – they were filmed by the Complainant and no objection was raised in terms of admissibility by the Respondent. The Adjudication Officer declined to admit a third video, filmed on August 21st, as she had already ruled that no evidence in relation to August 21st was properly before her. Counsel for the Respondent was given an opportunity to review the videos prior to the substantive hearing.

The Complainant alleges that he was the victim of discrimination and harassment on the basis of his race, contrary to the Equal Status Act at the hands of the Respondent. It is his submission that he was unlawfully refused service and unlawfully barred from the Respondent’s shop on the basis of stereotyping.

The Complainant’s claims are denied by the Respondent. It submits that the Complainant was lawfully refused service and lawfully barred from the Respondent’s shop on the basis of his conduct, specifically aggressive and intimidating behaviour towards staff, in the context of a consumer dispute pertaining to the return of an item he purchased.

As per the Complainant’s written submission:

It was submitted that in order to make out a prima facie case, the Complainant must prove the following three points:

1.       That he falls within a protected group.

2.       That he incurred less favourable treatment.

3.       That the less favourable treatment was ‘on grounds of the discriminatory ground.’

It was submitted that the burden or proof to establish a prima facie case was set out by the Labour Court in Southern Health Board V. Mitchell [2001] 12 ELR 201: ‘…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.’

The Labour Court further commented in Cork City Council V McCarthy EDA/21/2008: ‘It is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inference which can reasonably be drawn from those facts.’

It is submitted that the Complainant falls within a protected group. The Complainant is a Romanian national and a member of the Roma Community. The Respondent’s shop is within the Complainant’s locality and he went there regularly. The Respondent was aware of the Complainant’s Roma ethnicity, through interactions with him and his family.

The Complainant incurred less favourable treatment when the Complainant, was harassed when trying to return a defective good, and the Respondent subsequently refused service and barred him from future entry. It is submitted that this is less favourable treatment.

It is submitted that the third requirement can be inferred from the facts. It is submitted that in the Complainant’s circumstances, where he is not an Irish national and he was harassed and subsequently refused service and barred from the shop when other customers were not, it can be inferred. It is submitted that it is pertinent that the Respondent’s employees could not provide a reason for refusing the Complainant service. It is submitted that this is a most unusual situation and is clearly demonstrative of stereotyping.

 It is submitted that harassment is defined as unwanted conduct, being conduct that has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

It is submitted that the Respondent did not take such steps as were reasonably practicable to prevent the harassment.

In relation to the issue of discrimination and stereotype, it is submitted that the WRC case of Oskar Hangurbadzo V. Ladbroke (Ireland) Ltd. ADJ-00031246 is instructive; and further that the Circuit Court case of CT and FE V. Dunnes Stores Unlimited Company [2023] IECC 4.

It is submitted that it appears that the Respondent has no policies or procedures in place in relation to banning individuals from entering the premises. If such policy does exist, it is submitted that the Respondents acted in breach of it.

In relation to the Complainant’s response to the events, it is submitted that the Complainant did act calmly, and if he did not, this behaviour was understandable, especially considering the manner in which the Respondent dealt with the issue, as per the decision of the Circuit Court in CT and FT V. Dunnes StoresUnlimited Company [2023] IECC 4

The Complainant’s case is that he was stereotyped, discriminated against, and harassed. The Respondent has failed to respond to the complaint sufficiently or at all. The Respondent would not have acted in the same manner if the Complainant was not Romanian or a member of the Roma community. The discriminatory treatment suffered by the Complainant has affected him and his dealings with the community, in which he no longer feels welcome. The Complainant is seeking appropriate redress.

The Complainant’s ES1 form sets out at section 3: ‘I was disappointed by the fact that I was treated like a “criminal” who committed a theft.’

Opening statement on behalf of the Complainant, by Ms. Lorna Madden BL

The Complainant purchased a second-hand printer from the Respondent, on the 8th. It turned out to be password protected so he could not use it. He went back into the store on the 8th and was told to come back in when the manager was there. The Complainant was then in hospital. It was submitted that his wife returned the printer but the manager was not there – that was the 9th or 10th.

On the 20th, it was submitted that the Complainant went back in with the printer, in what is a consumer dispute. He went in with his son, a minor child, R. They went into the shop to pick out things. The minor child picks things out, he has his own money to go and buy things. The staff say that they cannot serve the Complainant or his son, and the reason is that the manager has told them not to serve him.

It was submitted that this was very unusual to be told ‘you’re not allowed to shop here’ until a consumer dispute had been sorted out.

It is submitted that the Complainant was refused service on the basis of his race. It was submitted that he was treated as someone who was ‘annoying’, that he was seeking a ‘credit note’, ‘treated as someone who is trying to scam [them] or that he is a criminal.’ It was submitted that he was clearly being treated differently than some other shoppers, that he was wrongly being treated as a nuisance, not just him but also his son. It was submitted that it was on the basis of race, on the basis of a stereotype.

The Complainant was refused service, the ‘manager won’t do it’, there is the background issue of a printer but the printer was returned. It was submitted that the printer is in the shop, that it is visible in the video from the 20th. It is submitted that the Complainant is seeking a credit note, and he is being told to discuss that with the manager, and in the meantime, he cannot shop there. It was further submitted that this was racial discrimination based on association.

Mr. Constantin, the Complainant

The Complainant took the oath and gave evidence on his own behalf, with the assistance of a Romanian language interpreter. He outlined that he is from Romania, that he is a member of the Roma community and has lived in Cobh for twelve (12) years. He outlined that he was familiar with the Respondent shop, that he went into the shop when he had money to buy furniture, clothes for babies, beds and so on. He said that he went into the shop every day.

He said that on the 8th, he entered to buy something, and he just saw a printer that he really needed. He asked how much it was, and was told it was 90 euro. He said that the shop assistant discounted the printer to 80 euro for him. He bought that printer, paid the money, received a receipt and afterwards, took a cab to bring the printer home.

He said that when he went home, he put in the settings and the printer gave an error a few times and then it said that you had to input a pin.

He said that he went back to the shop. He said he was speaking with [named shop assistant], that he was not raising his voice. He said he explained the situation that the printer was not working and that the printer needed a pin. He said he needed to bring the printer back because he could not use the printer. He said he tried to see if there was a solution to be paid back – he said on previous occasions, he had received a credit note. He said this time the credit was impossible. So, he was told to speak with the manager. He said he was told that he could bring the printer back and to speak with the manager. He said he went outside, he was calm and he went home. He said when he went home, he spoke to his wife about it. The next day, he had a hospital appointment. So, he asked his wife to bring the printer back to the shop.

He said he went back to the shop after he was home from the hospital – that he could not remember the exact date, but that it was before the 20th. He said that he went with his son, [minor child], R, who had 15 euros. He said his son put his hand on a toy and took the toy and went to the place where he was supposed to pay. He said: ‘We are both there and then I heard the lady saying ‘we cannot serve him.’’ He said there was ‘no motive’, that he had ‘never made any mistakes there.’ He said he ‘didn’t rob anyone’, that he ‘didn’t understand’ because he ‘should be treated as all the others.’

He said, on the 20th, the same thing happened. He said he tried to go there again, and they continued to refuse him because from what he could understand, he had a scheduled meeting with the manager and he didn’t attend it. He said: ‘I don’t work in that shop. I don’t need to have a meeting with the manager.’ He said on the 20th, he and one of the children – he thought it was R – went together. He said he was not informed that he could not enter the shop. He said he just entered the shop. He said that he was told near the till that he was not allowed to enter the shop. He said they continued to tell him this with no motive.

He said that they tried to talk to the manager of the shop and tried to rectify this problem. He said that he took a video on one of the days. He said he did it because he wanted to understand what was the reason because all the other employees had no issues with him. He said he asked to be served by another employee.

He was asked if he got a refund for the printer. He said: ‘On the 21st, I got a refund.’ He was asked if he brought the printer back. He said it was brought back on August 9th, by his wife.

There were two recordings taken by the Complainant accepted into evidence by the Adjudication Officer, with no objection on admissibility by the Respondent. The recording took place on the 19th or the 20th. The second video was taken on the same day as the first – it was the same visit. The first video was more than four (4) minutes in length and the second was approximately 1.5 minutes in length. Both recordings were played at hearing.

[Adjudication Officer’s Note: Both recordings were played for me. The Complainant is very aggressive in the video. They were taken without the consent of the shop assistant – she expressly did not consent, and can be heard objecting on the video. The printer is alleged to be visible in the last frame of the second video, although this was disputed.]

The Complainant was asked about the purpose of taking the printer. He said: ‘So, we can have our own proof’ that the printer was brought back.

He also went back to the shop on the 21st. He said that he had not gone back to the shop after that.

[Adjudication Officer’s Note: I did not hear evidence relating to the 21st, nor did I admit any video relating to the 21st in evidence, as per my preliminary rulings, those matters were not properly before me.]

The Complainant was asked how the interaction affected him. He said that he was really badly affected including his wife and his children. He said: ‘We made no mistakes. We didn’t do anything wrong. I don’t believe that someone should be banned from a shop just because a printer is not working. We are disappointed. Because that shop was allowing us to buy certain things that we need like a chair, plates or other things or anything else that we need it. We are marginalised and you can see that. We would like to be part of the community because we are living in the same town. When you are going to the shop to buy something, you are going to the shop and you are helping the community.’ He said: ‘It was a pleasure to go to the shop.’ He said that he did not go back after the 21st as he did not want to create any issues or problems. He said ‘they were saying I was creating issues or problems. Didn’t go back to the shop.’ He said he ‘tried to solve this problem with her privately. Didn’t want my money back. Just wanted a credit.’

It was put to him that he told people that the people in the shop told you that you were not allowed to be served until you talked to Ms. Forde. He said: ‘I am not an employee of the shop – did not see why I had to meet a manager. We are talking about a product that was bought.’ He said he ‘got on very well with the employees of the shop.’ It was submitted that the employees were of a variety of races – India, Ireland and Poland were identified.

On Cross-examination – Mr. Bracken Ziad BL on behalf of the Respondent

He was asked about his evidence that he knew this shop, knew where the money goes, knew it is a charity shop. The Complainant said that the money that is made in the charity shop is given to the children. It was put to him that a charity shop is a not-for-profit business; and that this charity shop also had a connection with a youth café serves the community in Cobh. The Complainant acknowledged this. It was put to him that the money goes to the children in Cobh. He accepted that the shop has a positive role in the community in Cobh. It was put to him that it was selling some things to cover some costs. The Complainant submitted that he is also part of the community in Cobh. He said that he had been attending the shop for years, that he knew the previous manager who was running this shop before this manager. He was asked if he was aware of the policy that the shop only gave credit notes, and did not give cash refunds. He said that he was receiving a credit, that was all, that is the policy of the shop. The Complainant acknowledged that he was aware of the policy.

He was asked about his line of work, in light of the fact that he gave evidence he attended the shop daily. He said he worked in a carwash for work.

It was put to him that Ms. Saoirse McCarthy sold him a printer priced at 90 euro, against which he received a discount of 10 euro, and for which he paid 80 euro. It was put to him that he was aware that if there was any issue, he would only get store credit. It was put to him that he went home, discovered there was an issue, he went back to the shop, that he did not bring the printer with him and he asked her for a refund. The Complainant disputed this. He said he asked for credit. It was put to him that Ms. McCarthy’s evidence will be that she had to explain to him the policy of the shop in terms of refunds. The Complainant disputed this. It was his position that nothing was explained to him. He said: ‘There was only shouting on the day from her side. I went outside because I could see that she was not understanding.’ He said he ‘would come back to talk to the manager, Sheila [Forde].’

It was put to him that Ms. McCarthy’s evidence would be that he demanded a cash refund; that Ms. McCarthy would also say that having explained the policy to the Complainant, she also explained to him that if he had a complaint, he had to speak to the manager. He disputed this, saying that he was told only that he can speak to the manager. He said that she did not explain what was the procedure with the money or the credit.

It was put to him that he was told by Ms. McCarthy to speak to the manager if he had a complaint; and that the Complainant insisted that Ms. McCarthy deal with his complaint.

It was put to him that when Ms. McCarthy explained those two things to him, he said that he would contact a Solicitor. It was put to him that he did not have the printer with him, and that he left.

It was put to him that Ms. McCarthy’s evidence would be that he was speaking to her in an aggressive way. The Complainant denied this: ‘No.’ He said that he had said on a number of occasions that he never raised his voice. He went on to say: ‘I have this kind of voice that it is a little bit louder.’

It was put to him that Ms. McCarthy’s evidence would be that when the Complainant threatened her with a Solicitor, he asked her whether he was intimidating her. ‘Am I intimidating you?’ The Complainant denied this: ‘No.’ It was put to him that Ms. McCarthy responded by asking the Complainant ‘Are you threatening me?’

It was put to him that Ms. McCarthy’s evidence would be that she felt that the Complainant was aggressive and that he was threatening her. He said: ‘I am not an aggressive person and I did not threaten anyone.’

It was put to him that we do not have a video of the 8th; We have a video of a later date. It was put to him that in those videos, he was acting in an aggressive way. The Complainant said: ‘I never attacked anyone. I was not aggressive. Just because I have a louder voice, you cannot say that I was aggressive.’

He said his son was with him: ‘I have my boy there and I have my bags there.’

It was put to him that on the 8th, he approached Ms. McCarthy in an intimidating manner. He denied this.

It was put to him that to hold out your phone to record someone is an intimidating thing to do. He said: ‘I don’t see it like that.’

It was put to him that many people would consider you filming them in the way you did as a threatening and intimidating act. He was asked whether he agreed or disagreed with that. He disagreed.

He was asked about his name. He was asked whether he, at any time introduced himself to Ms. Forde and Ms. McCarthy as bearing the name Mohammad? He said: ‘Yes.’ He said: ‘It doesn’t mean I am a Moslem person.’ It was put to him: ‘They never knew you’re name was Ciprian until they received this claim.’

The Complainant said he did this because Mohammad was easier to say than Ciprian, and to remember it. He said: ‘We have loads of names’ stating his full name. It was put to him that ‘there is something unusual about that.’ The Complainant said: ‘I don’t work for them. I didn’t do anything wrong. I wasn’t stealing.’ He was asked if he accepted that it is unusual that a person would introduce themselves by another name?’ He said: ‘No.’

It was put to him that the shop assistant’s experience is that the Complainant often did not take a receipt. He said: ‘Because I was trusting them enormously.’ He said: ‘So, when I bought the printer, she was working there and she gave me the receipt and the receipt was on the printer.’ It was put to him that Ms. McCarthy’s evidence would be that he did not take a receipt, that he did not get it when he purchased the printer. It was put to him that her evidence would be that the Complainant did not take a receipt and that he came back later for a receipt.

The Complainant said that he was in the hospital, the day after. It was put to him that Ms. McCarthy was working on August 9th (the day after) and that her evidence will be that he attended at the shop the day after. The Complainant disputed this saying: ‘I wasn’t at the shop. I was at the hospital.’

It was put to him that Ms. McCarthy’s evidence would be that he attended on the 9th and that he attempted to hand an envelope to her. He said: ‘No.’ He did not accept that.

He was asked if he accepted that he came back at some date before the 20th, i.e. between the 8th and the 20th. He said: ‘I came back with my son, yes.’

It was put to him that what occurred on that next date was the same as what occurred on the 20th. He said: ‘That I was refused.’ He was asked if he accepted that what occurred on the next time that he came to the shop was the same as what occurred on the 20th.

It was put to him that he said he did not need to meet the manager. He accepted that: ‘Yes.’

It was put to him that he had been attending this shop for years. He was asked if he was aware that the manager Ms. Forde comes on duty in the afternoon every day. It was put to him that he was told that the manager works in the afternoon. He said: ‘I never saw her there. Sorry about that.’

It was put to him that Ms. Forde would give evidence that she made several attempts to meet him and that him failed to attend those meetings. He said: ‘I was told by one person in that shop that I would meet her on the 21st.’

He was asked whether she had called his mobile phone number. He denied this. It was put to him that she called his mobile phone and his wife answered it. He said: ‘She had talked with my wife, but not on my phone.’ It was put to him that Ms. Forde’s evidence would be that she was calling to arrange a meeting with him. He denied this: ‘No.’

It was put to him that he came to the shop on the 19th and came again on the 20th, and that the same thing happened on both days. He said: ‘The same thing – I was refused to buy anything in the shop.’

It was put to him that on the 20th, he created the ES1 form. 20th August 2024 – B3, first receipt – 13:49:50 – registered post to the shop.

It was put to him that before 1 o’clock, he attended the shop. He was asked what time in the day had he created the ES1 form. He said: ‘Maybe it was made the day before or two days before, the ES1 form. Can’t remember. But I needed time to complete it.’

He said that: ‘My intention was to find an understanding with the manager. She wasn’t there to talk with her. I tried to understand why I was being refused, if I did nothing wrong, especially my family too.’

It was put to him that at 10.26 am, the incident happened and that he posted the form at 13.49.

The video of the 20th was explored with him. It was put to him that he was acting aggressively in that video. He said: ‘I said that I wasn’t aggressive. I understand what aggressivity is. But I wasn’t aggressive.’

It was put to him that he had his phone out and he was filming people for a prolonged period of time. He said: It wasn’t for a long time.’ ‘When I was refused, I started to record.’

It was put to him that he was refused service as a result of his conduct on August 8th, with Ms. McCarthy. He said: ‘I refuse to believe this.’ And his failures to meet Ms. Forde in the interim. He said: ‘You have to understand I do not work for her. I was buying the printer from her. She wasn’t the one buying the printer from me.’

It was put to him that he made an unreasonable demand, that he asked for a refund and did not have the printer with him. It was further put to him that it was not accepted that he did not ask for a cash refund. It was put to him that it was an unreasonable demand, an unusual request to seek a refund in the absence of returning the goods. The witness denied this. He said that he told the shop assistant that the printer is not working and that he was told from the beginning if the printer would not work, he would get a credit. He said that he did not have it with him because it was difficult to bring it back. It was very heavy.

It was put to him that it is unusual to ask for a refund of any kind without having the item with you. The Complainant said that the person in the shop used to give him credit when he returned things back to the shop.

It was put to him that Ms. McCarthy and especially Ms. Forde was saying that she was dealing with his complaint in the best way she could.

It was put to him that Ms. Forde, the manager, had been made aware of a complaint where a customer did not have the item with them. He said: ‘She didn’t speak with me.’ ‘Everything was an aggressivity from their side, not from us.’

This was challenged, on cross-examination, and it was put to him that he also didn’t have the printer. It was put to him that the aggressiveness was on his side. His interaction with Ms. McCarthy was highlighted to him. It was put to him that as a result, Ms. Forde’s evidence would be that she had concerns for the safety and welfare of her staff. He said: ‘I wasn’t aggressive and I didn’t threaten anybody.’

It was put to him that Ms. Forde’s evidence would be that she only had one option open to her which was to deal with his complaint herself, between the two of them.

The Complainant disputed this. He expressed the view that there were different options than what happened ‘in front of all the people’, ‘especially tourists’, ‘like I was stealing something’. He expressed the view that a manager ‘should have had a different vision about it.’ It was put to him that Ms. Forde tried to contact him, that she made every effort to resolve his complaint.

[The Complainant suggested that the video of the 21st should be looked at. The Adjudication Officer re-iterated that she had already ruled it inadmissible, in relation to the complaint properly before her.]

It was put to him that Ms. Forde came to the conclusion that the only option was to refuse him service.

It was put to him that he had tried to insist Ms. McCarthy provide him with a refund. The Complainant acknowledged this, explaining his reasoning: ‘Because she was the one that sold the printer.’

It was put to him that Ms. Forde is the manager of the shop and all complaints are dealt with by Ms. Forde.’ The Complainant said: ‘I don’t believe it.’

He was challenged on his insistence that the particular shop assistant who sold him the printer was required to provide him with a refund. The Complainant re-iterated his position, and said: ‘Yes, I think that that was normal.’ It was put to him that ‘that isn’t normal.’ He disagreed.

Another issue arising in relation to the 8th of August, it was put to him that he had a discussion with Ms. McCarthy about another case that he had taken and that Ms. McCarthy’s evidence would be, that he had spoken to her the same day, on the 8th, about another case that he had against [Name redacted school. The Complainant said he had ‘nothing to say about that.’ It was put to him that he told her about this case, told her that he had won the case; and that she asked him why he had taken the case. The Complainant denied this.

It was put to the Complainant that in relation to the 20th, there is no claim before the WRC in respect of his son; there is no claim in relation to his daughter; there is no claim in relation to his wife either. It was put to him that he was treated in the same way as anyone else would have been in the same circumstances. The Complainant said: ‘I don’t believe that.’

It was put to him that no evidence given have been given by him, or in the documents, no evidence whatsoever that his race has anything to do with the way he was treated. The Complainant said: ‘There is clear evidence.’ It was put to the Complainant that his race had absolutely nothing to do with how he had been treated, that a different person of a different race would have been treated the same, in the same circumstances. The Complainant disputed this, asking: ‘So, why then was the wife refused? Why the children refused?’ He said: ‘I cannot admit something that I didn’t do.’ ‘If I was so aggressive as you say, why the garda wasn’t called. Because they would have all the proofs and somebody would have been there collecting all the proof necessary. They saw the video and it wasn’t an aggressive one.’ It was put to the Complainant that Ms. Forde’s evidence would be that the gardai did come and took CCTV. The Complainant reiterated that he ‘wasn’t aggressive.’ It was put to him that there is a difference between the kind of conduct that the Gardai will do something about. He was asked if he went to the Gardai about the case. He said that he tried to go to the Gardai. He said: ‘to calm down, anyway, I completed the form.’ He said he ‘let the law follow its course.’

On re-direct

He was asked about his use of the name Mohammad. He confirmed it was a name he used generally in Ireland.

He was asked about when he started the ES1 form. He said: ‘One or two days before’

He was asked if he finished it before or after the 20th. He said: ‘after.’

He was asked if he refused to meet Ms. Forde. He said: ‘She refused.’

Witness No. 2 for the Complainant, Ms. Corina Burcea, the Complainant’s wife took the oath and gave evidence.

Ms. Burcea said that she knew that the Complainant (her husband) bought a printer from the shop. She said that she spoke with Ms. Sheila Forde, the manager, [of the Respondent], on her own phone.

She said Ms. Forde called her and that she was aggressive in her voice. The witness said: ‘I was calm. I tried to speak with her calmly. She was aggressive.’ She said it was relating to the printer. She said that ‘I tried to explain that the printer has a password. ‘I tried to ask her if she can tell me the password. ‘She told me that she doesn’t know it. That someone brought the printer to her without the password.’

She said they agreed, over the phone, that ‘the next morning around 10 or 11 o clock that I would bring the printer back to the shop.’

The witness said she went the next morning, and brought the printer back. ‘[Ms. Forde] was not there. There was another colleague. She said to live the printer there until the manager would come and talk to me. So, I left the printer there and I left.’

On cross-examination

The witness was asked as to her nationality/ethnicity. She said she was a ‘member of the Roma community.’ She accepted that she spoke to the manager on the phone; and re-iterated that the manager agreed to meet her.

It was put to her that she did not purchase the printer. She accepted that. She said: ‘I’m the one that brought the printer back. I am his wife.’

She was asked whether she had asked about a cash refund when returning the printer. She said: ‘No, I didn’t ask for money back because on that day, I tried to tell the person in the shop that I had already spoken to the manager of the store. But, that person couldn’t understand me because she was shouting a lot. I tried to explain that I spoke with Sheila [Forde] the previous day. This person was saying you have to speak to the manager, you have to speak to the manager. I left because I couldn’t communicate with her.’ She said: ‘I wasn’t looking to have an argument with her. I was looking to have a normal conversation with her.’ She did not get a refund at the time.

She was asked whether her agreement with the manager was to bring the printer back. She said: ‘Yes. Because on the phone Sheila said (and the lady in the shop) said that they were going to talk to my husband.’ She added: ‘My husband was in the hospital.’ ‘I agreed that I would bring the printer because they had no password. She was going to speak with my husband.’

It was put to her that Ms. Forde’s evidence would be that she called the number that she had for Mr. Constantin. The witness answered the phone. Ms. Forde asked to speak with Mr. Constantin. The witness confirmed that Ms. Forde called her number, not her husband’s number. She told Ms. Forde that the Complainant was in the hospital. She said that she was to bring the printer back and when the Complainant got out of hospital Ms. Forde would arrange a meeting with him. Calling to arrange a meeting with Mr. Constantin, not with you.

‘I wasn’t able to say or ask anything to her. She was aggressive over the phone.’ It was put to her that her evidence was everybody was aggressive to her every step of the way. She said: ‘I told her that my husband was in the hospital. She told me she didn’t care. After, she agrees for me to bring back the printer.’ She was asked about the question of a refund. She said she did not get the opportunity to raise this matter, that she said the person on the phone was shouting. It was put to her that she was suggesting that everyone was shouting at her, all of that time, that it was just constant shouting all the time. She referred to the video.

In response to a query from the Adjudication Officer, at the hearing, the witness explained that she had taken a taxi to transport the printer back to the store.

Closing submissions by Ms. Madden BL

It was submitted that the Complainant bought the printer, there was an issue with it, he asked for the pin, and failing that then asked for a refund. It was heated and loud. Ms McCarthy was overwhelmed and said the Complainant talked over her. It is the Complainant’s evidence that was not what happened, that it was a normal interaction, that it was not loud and that he was not speaking in a threatening manner.  The evidence of the Respondent is completely contradictory to what the Complainant said. It was submitted that someone calling a Solicitor is not aggressive or a threat, and should not be taken in an aggressive manner. It is not accepted that it was aggressive or a threat. The prima facie case is that the Complainant was refused service on the basis that he was a member of the Roma community.

It was submitted that Ms. Forde has taken a view of the Complainant and stereotyped him as aggressive or as someone who is a criminal. It was submitted that they said he never returned the printer, that he was being represented as someone who was trying to ‘run something or do something.’ It was submitted that that is clearly made out in the Respondent’s submission repeatedly. There is strict proof that the printer has been returned.

The Adjudication Officer enquired as to the nature of the stereotype. It was submitted that the stereotype was that the Complainant is someone who causes difficulties, gets annoyed and causes difficulties. It was submitted that it is not in any way credible or normal that in what is a consumer dispute, that ‘the shop is going to refund the money, but in the interim you can’t buy anything else, you can’t come in here until you come and talk to me.’ It was submitted that that is not how shops work.

It was submitted that Ms. Forde did not investigate the incident on the 8th, that she formed a view, she spoke to Ms. McCarthy, she did not ask Ms. McCarthy to create a record and she did not create a record.

It was submitted that the staff were directed not to serve him; and possibly not to talk to him (not sure about that aspect of it); that the next day when Ms. McCarthy was working, she refused to interact with or talk to the Complainant. It was submitted that Ms. McCarthy needs to be given direction, that she cannot say ‘I’m not talking to you, I’m not interacting with you.’

It was submitted that there is no training in place, no policies in place. It was submitted that even after the incident on the 8th, it’s entirely unclear what the actual process is. The staff were told: ‘Don’t talk to him. Don’t serve him.’

It was submitted that other reasons would require a high barrier. It was submitted that it had not been determined that the Complainant had done anything wrong. Ms. Forde was going to have to investigate. There had not been a determination at that point. It was submitted that he had not done anything wrong. It was submitted in those circumstances, of course someone is going to get upset, if they were refused service.

It was submitted that the law is that the Complainant has to make out a prima facie case (section 38A), that there is a low barrier to that. Then, it is for the Respondent to disprove that there was any discrimination.

The recommendations set out in Judge O’Connor judgment were referred to, as set out in the Complainant’s written submissions, at paragraph 35 at page 12 and page 13 .

It was submitted that she was relying on instinct and understanding of what happened, that there is no record of the incident which then produces the refusal of service.

It was submitted that ethnic minority people face challenges and obstacles that other people would not face, that they may therefore be more sensitive to issues, could take more umbrage at issues than somebody who had not previously faced those issues. It was re-iterated that there was no training and no policies.

It was submitted that just because you don’t think or don’t intend for there to be discrimination does not mean that there is not.

The refusal of service was queried. It was submitted that someone should not be refused service in the circumstances in which the Complainant was refused. It was submitted that the response was to bar him and his family. It was submitted that this was clearly a stereotyping, and that there was an assumption of his behaviour and what it is like.

As per the Respondent’s written submissions

Without prejudice to the preliminary arguments set out in the background section, it is submitted that the Complainant has failed to make out a prima facie case on any of the grounds set out at paragraphs 1 or 2 of the said ES1 Form, and/or the Complainant has failed to make out a prima facie case on any of the grounds provided for under the Equal Status Act, 2000, or otherwise known to law.

Without prejudice to the foregoing, the Complainant’s claims are denied by the Respondent.

The Respondent is a limited liability company that operates a charity shop, namely Re-Store, and youth café in Cobh, Co. Cork. The Respondent operates on a non-profit basis and all proceeds from the charity shop go towards the running of the youth café. Therefore, the Respondent operates community-based organisations in the area of Cobh, Co. Cork, and is not a commercial company as a result. The Respondent provides a positive form of social utility to the community in Cobh, and is well-known in the area as a result. (Copy of the relevant sections of the Constitution/Memorandum of Association of the Respondent submitted at Appendix 1).

It is submitted that the policy of Re-Store in respect to returning goods is that store credit is given rather than re-imbursement of the purchase price. (Copy of the policy submitted). It is also the policy of Re-Store that any complaints are dealt with by the manager of the shop.

It is submitted that the Respondent was never aware that the Complainant’s full name until the issuance of the within proceedings.  The Complainant introduced himself as Mohammad. It is submitted that the Complainant regularly purchased items from the Respondent and was fully aware and/or was on notice of the Respondent’s policy on returning items.

It is submitted that the Complainant purchased a printer on 8th August 2024. The shop assistant on duty who sold him the printer was Ms. Saoirse McCarthy. The Complainant asked for a reduction on the price of the said printer, and Ms. McCarthy gave a €10 reduction on same. The Complainant failed, refused, and/or neglected to take a receipt upon being offered one by Ms McCarthy at the conclusion of the transaction. The Complainant initially left without the said printer and returned approximately a half hour later to collect it.  

It is submitted that the Complainant then returned to the Respondent’s shop some time thereafter. The Complainant did not bring the printer back with him to the shop. It is submitted that despite not actually having the product in his possession, the Complainant demanded a refund from Ms. McCarthy on the basis of an alleged defect in the product. Ms McCarthy explained the store policy on returns to the Complainant and that she could not give him a refund in the circumstances. Ms. McCarthy further explained to the Complainant that if he had a complaint to make that he would have to make such a complaint to the manager of the shop, Ms. Sheila Forde, and that he could return in the afternoon to do so, as Ms. Forde always came on duty in the afternoon.

However, the Complainant did not accept what had been explained to him by Ms. McCarthy, and insisted that Ms. McCarthy resolve the issue. The Complainant represented to Ms. McCarthy that he would contact a Solicitor if she did not resolve the matter, and Ms. McCarthy asked the Complainant whether he was threatening her. Thereafter, the Complainant raised his voice and asked Ms McCarthy whether he was intimidating her, and Ms McCarthy responded to the Complainant by asking again whether he was threatening her. Thereafter, the Complainant left the shop.

Some time thereafter, the Complainant returned and demanded a receipt and he was duly given one.

For the avoidance of doubt, the Complainant was refused a refund in circumstances whereby he was seeking such a refund without actually having the printer in question in his possession at the time of seeking to return it.  The Complainant was also refused a cash refund on the basis of store policy, which he knew or ought to have known, at the time he was seeking such a refund. It is respectfully submitted that the Complainant was acting unreasonably in the course of making an unreasonable request.

Arising from the conduct of the Complainant on the 8th August 2024, Ms Forde directed the other servants or agents of the Respondent not to serve the Complainant until such time as his outstanding grievance was resolved, and because his abusive conduct posed a threat to the safety and welfare of the servants or agents of the Respondent whilst at work.

It is submitted that the Complainant was treated in the same manner as any other patron of the shop would have been treated in similar circumstances, particularly where such a patron was making an unreasonable demand for a refund without actually returning the product in question.

It is accepted that the Complainant was refused service on 20th August 2024. It is submitted that it was reasonable and proportionate in the circumstances. The Complainant had failed, refused, and/or neglected to meet with Ms Forde on several occasions at this stage. Therefore, his grievance was outstanding and had not yet been resolved.  

The Respondent, its servants and agents treated the Complainant and his family in the same manner as they would have treated any patrons of the shop that were attempting to return an item to the shop in similar circumstances, particularly where the patron did not have the product in their possession when attempting to return it, where the servants and agents of the Respondent were being threatened and abused by the said patrons, and where such patrons were upsetting the peace in the shop in the presence of other customers.

At the hearing, Ms. Saoirse McCarthy, took the oath and gave evidence on behalf of the Respondent.

She outlined that she worked in the shop on August 8th. She said that she worked there for 2.5 years in total, that she split her time between the youth centre and Re-Store (both part of the same charitable organisation). She explained that the shop was a second-hand shop, an operation to fund the youth centre, the homework club, youth café etc. It was not-for-profit. The Youth café is for the older children. There are days away organised, teenaged groups, study groups, an after-school service (primarily for primary school aged children).

Ms. McCarthy sold the Complainant the printer. Selling the printer was the first interaction with him. The problem with the printer was the second interaction with him.

She said that there was general conversation, chit chat; and the Complainant said to her ‘Oh by the way I got good news I won a case against [name redacted] school.’ He said she asked him why he took that case. She said it was to do with his son. She said that their children knew each other, and their children had the similar educational needs. [Adjudication Officer’s Note: I have generalised her evidence in relation to the minor children involved.] She outlined that she had three children herself.

She expressed the view that the Complainant had characterised that it was ‘good news’, because he won. She said that she queried why he did it. She expressed the view that [name redacted] is such a small school, his child is not in the school anymore. So, what’s the point?

She said: ‘my tone changed.’ At least those accommodations are there for our children in the future. She said that her perception was the Complainant did not get the reaction he expected.

She said that it was not uncommon for the Complainant to buy things in the shop, do his jobs in the town, and then come back collect the items, and get a taxi home. She said it was ‘not unusual for him to buy stuff and then come back and collect [his items].’

She said in relation to when the Complainant was buying the printer, that he requested a discount. She said he always asks for one. She said that she gave a receipt, and left it on the counter/desk. She said ‘he never takes receipts but we have a policy that we do have to give it.’ There is a basket for receipts on the counter.

In relation to the second encounter, she said the Complainant came in saying the printer doesn’t work and he wanted a refund. She said initially he said that he either wanted a refund or wanted her to find the person who had the password. She said that she told him that there is no way she can get the password. She explained that money or returns have to be cleared by (the manager) Ms. Sheila Forde first. She comes in at 3.30pm. She said that he said: ‘No, you’re the one who sold it to me. You’re the one who is going to sort it.’

She said that he had one of his children with him, and there was also a customer in the store. She said that she said: ‘Calm down, there’s a child there.’

She said that he said to her: ‘Well if you don’t sort it now, I’m going to phone my Solicitor.’ She said she asked him: ‘Are you threatening me?’ and that he said to her: ‘Am I intimidating you?’ She said it was the same back and forth. Then, he took out his phone and was speaking Romanian. She said she was a bit ‘rattled’, she didn’t know what he was saying. He had the phone up to his ear. ‘What’s your name?’

One minute later, he came back and asked for a copy of the receipt. She said she picked it up from the basket on the counter and gave it to him. She said he left, moving fast, talking on the phone.

She said, in terms of his name, that she always knew him as Mohammad, that in the book, he was always down as Mohammad.

She said that what he wanted was a cash refund. She had spoken with him about the policy on credit – that it always has to go through Sheila [Forde]

She was asked about the signs displayed in the shop. She explained that a part-time employee made the signs herself.

She said that she only works three days a week in the store. The Complainant was there a lot.

She was asked why she needed to calm down. She said: ‘It was heated and loud, someone’s talking at you and you don’t get a second to process. I have ADHD and autism. Needed to take a moment to decompress. Spoke to Ms. Sheila Forde.’ She said Ms. Forde told her to ‘go to the office, sit down, calm down, catch your breath and when you get a chance, when you have calmed down, write it all down.’

She said that the following day, August 9th, the Complainant came in at 1.30pm. She said the Complainant would usually come in at 3.30pm, [another named shop assistant/volunteer, C] was there. She said the Complainant, Mr. Constantin, tried to give her an envelope. The other person said to him: ‘She doesn’t want to speak to you. She doesn't want to talk to you.’ He kept saying: ‘but why, but why, but why.’

She was asked why she had not refunded him for the printer. She explained that she did not refund the Complainant for the printer because she is not allowed to. The policy is that it has to go through the manager first anything to do with money or refunds. She said it is ‘the exact same for anyone else.’ She said, in terms of refunds: ‘We can’t do it.’ We’re ‘not allowed.’ She said that it was a charity, that it has to go through the system, that it has to go through the till, with the accounts etc. ‘You have to be able to explain.’ She said that Cobh is a tourist town, and there are cruise liners that stop at Cobh, but the shop only brings in small amounts of money.

She said she was ‘present and aware’ when Ms. Forde rang the number they thought was the Complainant’s. His wife answered. There was supposed to be a meeting between Ms. Sheila Forde and Mr. Constantin.

She was asked if he was shouted at, that the Complainant had alleged that he was constantly shouted at. She said: ‘No, I didn’t witness that at all.’

Did you shout at him? ‘No, I don’t shout.’

Was he calm? She said: ‘He would appear calm until what you said didn’t align with what he didn’t agreed with.’ ‘He was speaking at me. He was talking down at me and not listening to what I had to say.’ ‘I found it very hostile.’ ‘I had to process my thoughts, process what was being said to me, and I was in charge of the shop so had to process all of that.’ It wasn’t very friendly or social.

On cross-examination by Counsel for the Respondent

It was outlined that the Complainant was working on a Community Enterprise (CE) Scheme.

It was put to her that there was ‘normal chit chat’ between her and the Complainant. It was put to her that the ‘tone shift’ she referred to occurred after what the Complainant ‘says you took him up wrong’. He buys his printer after your interaction. He came back later that day, looking for a refund or the pin.

The witness was asked whether there was CCTV in the shop. She confirmed that there was. She was asked if there was CCTV of the interaction. She said it was given to the Gardai.

She explained that she had a file in work but that the file went when she left, that it had all her timesheets etc. She outlined the impact of her ADHD and the requirement to record things.

She explained that, in relation to the incident, she had written it all down for herself ‘because of how addled I was.’

She was asked if she had seen the videos from the 20th. She confirmed that she had. She was asked if she had seen the manner in the videos. She confirmed that she had. She was asked whether the Complainant’ interaction with her was similar or different on the 8th. She said that she thought,  with her on the 8th, it was similar to the videos but dialled up a tiny bit more. She expressed the opinion that she thought he had restrained himself a bit, when he was filming. She said: ‘I was answering back. I was responding, but not aggressive.’

She was asked whether there were any policies in place, in the shop; and she was asked about some signs which were displayed. She said that the policies were that there had to be two people on, at the same time – that there always has to be someone behind the counter; that there are no dogs, except guide dogs. She explained in terms of refunds, that it was credit notes that were given.

She explained that someone who worked there previously had made the signs herself.

She was asked whether there had been policies/training on discrimination and equal access. There were not.

She was asked about policies barring someone from the shop. Again, there was no policy; and not something that had happened. [Everything had to go through Sheila.]

She said that her training was received through the CE Scheme, and it included things like manual handling and first aid. She explained that she was employed by the CE Scheme and then positioned in the areas.

She was asked if there is any policy in the shop in relation to consumer disputes. She said: ‘Everything had to go through Sheila.’

She said that there is a phone number on the counter which says to ring the gardai if anyone is getting aggressive etc.

She explained that ‘with my neurodiversity, on the spot, trying to focus, that can be an issue.’ In this case, the customer stepped in.

She said that ‘It’s not the training there [is the issue]. I’m trying to focus on my response and what I’m responding to.’

Ms. Sheila Forde, the manager of the Respondent took the oath and gave evidence on behalf of the Respondent.

She outlined that the Complainant has been coming in the shop for years. She said he has always been ‘Mohammad.’ She said a lot of times people come in but they can’t take [an item] with them at the time.’ ‘So, we put a sticker on it’, whether it’s ‘paid or not paid’ and ‘we put it on a shelf.’

She was not present when Mr. Constantin purchased the printer. She said Ms. McCarthy told her that Mohammad had been in, and that there had been an issue in relation to a printer and a refund.

She said that she told her: ‘Don’t do anything. I’ll sort it.’ She said that it was much easier when there is just one person doing things.

Ms. Forde said that Ms. McCarthy phoned her. She said she was ‘clearly distressed.’ She said she told her to ‘say nothing.’ ‘I’m coming in.’ She said she then came into the shop and met and spoke with Ms. McCarthy. She said Ms. McCarthy was ‘very shaky’. She said: ‘We sat down and discussed everything.’

She said: ‘To be honest, I wasn’t that surprised because he [the Complainant] tended to get upset if things didn’t go his way.’ She said he might ask for a discount – sometimes you would give it and sometimes you might not. She said: ‘He never liked it if you didn’t go along with him.’

Ms. Forde said: ‘I decided I would speak to him.’ She said that afternoon, the gardai rang her and said that the Complainant had been in to report an incident. She said she told the gardai that they could take the CCTV, which they did. She said: ‘We never heard any more about it.’

She said she never saw him on that day. She rang his wife and said she needed to speak to him. She said she made two appointments and he did not show up.  On one occasion, he showed up in the morning but the appointment was for the afternoon. [Ms. Forde worked afternoons.]

She explained that the Respondent is a charity, that it deals with children, there are certain grants for after school etc. and she has to account for anything in and out. She said she had a rule - ‘everything goes through me.’ She said she had been in the role 8.5 years. She outlined that she did not have prior retail experience but that she was used to people, and that she ran the homeless unit for Westminster Council (people in distress etc) in a previous role. She had also previously spent six (6) years working for a Solicitor.

She was asked if she was aware of whether he had brought the printer back with him. She said: ‘No, not aware whether he had or he hadn’t.’

She said that she told the other employees not to serve him until she had dealt with the issue. She was asked whether he was treated differently on the basis of his race? She said: ‘Absolutely not.’ She said: ‘We had five (5) different nationalities [working/volunteering] in the shop.’ She said: ‘That’s the same way I would have dealt with anyone.’ She said: ‘In the beginning, I thought it was ridiculous. If you want a refund, you would bring the item back to the shop.’

She said: ‘I think he is wrong, very wrong.’ ‘He was not treated more or less favourably than anybody else.’ ‘We’re a small town. If we didn’t look after our customers, we wouldn’t last very long.’ She said: ‘Normally, we don’t do refunds. But if there is a problem, we do give credit notes.’ In this case she did give a refund (on the 21st). She was asked why she did that. She said: ‘But I thought in this case, as it had blown up, it would be better to give a refund.’ She was asked about her experience of the Complainant. She said: It depends on his mood. He could be very nice when he came in. If something was wrong, his whole demeanour changed.’

She said ‘between him buying the printer and the 20th, I didn’t see him at all. I made two appointments with him, but he didn’t come.’

She said: ‘The customers were talking about it the next day. So, that’s why I asked him not to come back.’

She said that shop normally had two people on duty - one on the front desk and one in the back. She said typically there were three Community Enterprise (CE) Scheme workers, and three volunteers. Generally, two or three per day. She outlined that CE workers are only allowed to work around 19.5 hours. They spread it over three (3) days. She said CE workers normally come for 3 years.

She was asked in relation to barring people and refusing service, whether there was any policy. She said: ‘No.’ She said it was ‘not an issue’, that they had ‘only one issue years ago.’

She outlined that the staff get regular training, that it is dealt with by a person (MC) ‘who runs the HSE part of it. So, she deals with all the training.’ She said: ‘All the courses are dealt with by (MC).’

She was asked whether they get training in equality or diversity or access to the service. She said that they ‘get training on how to handle customers.’ She said: ‘We’ve got very good relations with the customers.’ She said there is ‘no need for a policy written down because normally if somebody has a problem, it can be sorted.’ She said ‘some do customer service [training]’

She refunded him on the 21st [Adjudication Officer’s Note: The 21st is beyond the remit of the complaint properly before me.]

It was explored with her that she had told her staff/volunteers: ‘Don’t talk to him. Leave it to me.’, i.e. that they were told not to serve him and not to interact with him. She explained that she thought the matter would have been resolved very quickly. She said: ‘I never knew anything about the hospital until now. She said his wife answered the phone. Ms. Forde asked for him.’ She said: ‘I’m his wife.’ Ms. Forde told her: ‘I need to see him.’ His wife said: ‘I’ll come in.’ [Ms Forde] said: ‘No. I need to talk to him.’’ She said: ‘Mohammad can be a bit awkward at times. So, I wanted to get everything straight. I thought it was easier face to face.’ She said: ‘She [the staff member] told me that he had come back and asked for a refund but he didn’t have the printer with him. She said: ‘He didn’t come into the shop then for a good couple of weeks because I had the money in an envelope in the office. She said the staff member got very upset; didn’t like being filmed [on the 20th].’

Ms. Forde said that she told the staff not to serve him until she had sorted everything out. She said: ‘It was just to keep the peace while it was getting sorted.’ She said: ‘I think it was the circumstances, I do. If you have a girl in a shop all on her own and she thinks somebody is being threatening, I mean, you can’t have it.’

She was asked if she had looked at the CCTV on the 8th.  She said that she had not. She said: ‘The police took it a couple of days after the 8th.’

She was asked how she knew the Complainant was acting in a threatening way. She said: ‘Because they told me. And I had seen it before myself.’ She said: ‘This wasn’t the first incident.’ She said: ‘I don’t want to go into old things. But in this circumstance, I just thought it would be best [to deal with it the way she did.]’

It was put to her that if someone is returning a defective product, it’s highly unusual that they would not be allowed to shop there in the meantime. Why wasn’t he allowed to shop there? She said: ‘Because of his manner.’ She was asked why wasn’t his child allowed to shop there? She said: ‘I just wanted it to stop. I was thinking of my staff more than anything.’ She was asked if the staff can issue credit notes. She said: ‘With my say-so, yes. Normally, a credit note would be a small amount of money. This was a large amount of money. There’s no way the staff would handle that.’

It was put to her that there were no policies or procedures in place. She said that quite a lot of the volunteers have all worked in shops before. A lot of it is ‘common knowledge.’ She said, in relation to the Complainant: ‘It wasn’t the first dispute. I had my reasons.’

It was put to her that she did not view the CCTV footage on the 8th. She said that the Gardai took it. ‘I thought they would look at it and put it back.’ [But they did not.] She said her staff member told her that there was a confrontation with the Complainant. She said ‘him and I had had run-ins before. I thought it was nothing.’ She said that she thought it would be sorted out. It was put to her that despite that, you told everyone to refuse him service. She said she thought it would be dealt with in days rather than weeks.

It was put to her that his son was refused service? She said: ‘I never saw his son.’ She said: ‘You’ve got to put yourself in a woman’s place if she is feeling threatened.’ She was asked about the current position. She said: ‘Obviously, are they allowed back in the shop there. I run the shop but it’s a board of directors that is over it. I have to speak to the staff and see how they feel, and get an overall view.’ She said, of the situation: ‘We have never had it before. It has never come up.’

It was put to the witness that she had taken a view on him, and that that that view was coloured by his race, that he is a member of the Roma community. That was denied. She said: ‘It was his attitude. Nothing to do with his race. Nothing at all.’ It was put to her that she did not investigate what happened on the 8th, that she made an assumption. She said that two members of staff there on the 8th – Ms. Saoirse McCarthy [and another staff member]. It was put to the witness that the Complainant is effectively being refused service until he speaks with her. She said: ‘That was the situation on the 8th.’ She said: ‘I expected that to be resolved very quickly after that.’

On re-direct

It was outlined that the Respondent was a charity shop, which is run on donations, that most of the people working there are volunteers. This case involved a person looking for a refund from a charity shop. The staff are all women.

The witness reiterated that she thought it would be dealt with in days.

She said that management has the right to refuse [service] – she thinks every shop has the right.

Closing statement – Mr. Bracken Ziad BL

He outlined that on August 8th, the Complainant made an unreasonable demand. He was seeking a refund but did not have the particular item in his possession, and acted aggressively at that time. He had some kind of interaction to Ms. McCarthy which led her to feel threatened. The combination of those two things creates the context for this.

Counsel submitted that looking for a refund without the product beggars belief, in the absence of bringing the item back. That would have to occur to resolve the matter from a legal perspective.

He was aggressive and rude towards the staff. The manager made the decision to refuse this man service until we resolve this particular issue. It was submitted that he made an unreasonable request in an unreasonable manner, and that it is perfectly logical for the Respondent, servants or agents to act the way they did.

It was submitted that the requirements of s. 38A were not complied with, that the Adjudication Officer is being asked to presume that the race of the Complainant had a role here. That presumption that will arise where particular facts are shown but in this case, no facts before the Adjudication Officer from which it could in any reasonable or logical way be presumed to have been connected with his race or ethnicity. It was submitted that the Complainant has not made out a prima facie case.

It was further submitted that none of the case law cited helps the Complainant. It was submitted in relation to the facts of the Labour Court case Southern Health Board v Mitchell [2001] 12 ELR 201, that the oral evidence given by the Complainant in that case was that it was expressed to her by somebody else that being a woman would be a weakness for her in applying for the job. That case itself was dismissed, notwithstanding the oral evidence, before the Labour Court. It was Counsel’s submission that there was more factual evidence in the Mitchell case, than in this case.

Counsel submitted that the Labour Court also dismissed the complaint in Cork City Council v McCarthy EDA/21/2008, wherein it was held that the mere fact of a difference in status (in that case, age) and a difference in treatment is insufficient to shift the probative burden.

Counsel submitted that the Complainant is asking the Adjudication Officer to say he is Roma, ergo he was discriminated against, instead of substantiating it with one shred of evidence. It was submitted that he has not established anything pertaining to being a different race, to different treatment, something to do with this man’s race.

Harassment & stereotyping

Oskar Hangurbadzo v Ladbroke (Ireland) Limited ADJ-00031246:It was submitted that in that case, the issue in question was admittance to a casino being denied to the Complainant. The comparator was other people of a different race who were granted admittance. That does not support the Complainant’s claim, on the facts.

CT and FE vs Dunnes Stores Unlimited Company [2023] IECC 4 It was submitted that the Complainants in that case were the subject of racial profiling on the basis of their particular race, which is distinguishable from the facts in this case. It was further submitted that the Respondent in that case was a large Respondent required to have policies. In this case, you are dealing with a charity, dealing with a non-profit.

It was submitted that the Complainant bought a printer and did not bring it back, that he was seeking a refund in unreasonable circumstances, expecting exceptional treatment. It was submitted that he was expecting from his oral evidence to get a refund and leave without having brought back the printer. It was submitted that is contrary to all common sense, that he was seeking truly exceptional treatment – that he would have gained the benefit of both the printer and the value of it. If there was any difference, that difference was created by the Complainant himself. It was submitted that it [what he was seeking] just does not occur in the real world, not least to allow the seller to make their own investigations as to the cause of the problem.

Counsel for the Respondent submitted that it was even more unreasonable when dealing with a charity – truly off the charts – in terms of any expectation a person might have when trying to return a product. He submitted that he simply cannot see how this man was treated differently on the basis of his race, characterising it as ‘beyond all belief.’

He submitted that the Complainant’s case is inherently based on an unusual logic, on utterly unfounded assumptions, not supported by Mr. Constantin’s own evidence. He said that it was utterly and entirely unfounded, no lawful basis for it, no moral basis for it, and that the Respondent is absolutely taken aback by the allegations before the Adjudication Officer.

Counsel for the Respondent queried if there were a comparator (different race, same facts), creating at least a perception of threat against the staff, where in this narrative does the allegation of different treatment on the basis of race occur? He submitted that anybody else would be treated exactly the same, in the same circumstances. He submitted that Ms. Forde’s approach was practical and reasonable thing to do, that she had to act in the interests in her staff; that Ms. Forde anticipated that this would be over within days. She did not anticipate that people would be in the shop, filming on their phones etc. nor that the matter would be long and drawn out. He submitted that the case was unsustainable both in law and in fact.

I have formed the view, having heard the evidence and carefully listened to the witnesses before me, that the Complainant’s interactions with the Respondent were in bad faith.

In that regard, I note the timeline of events with respect to the ES1 form and the sequence of events with respect to the videos, which were recorded by or on behalf of the Complainant.

I also note the content of the two videos admitted to evidence and shown at hearing, which despite being proffered by the Complainant in support of his case, undercut and contradict the Complainant’s case. There is aggression, but it is from the Complainant.

I did not find the evidence put forth by or on behalf of the Complainant to be credible, and I am not persuaded by it. I do not accept, for example, that the Respondent’s staff members were shouting at him or at his wife, in relation to their interactions with him within the relevant timeframe properly before me (August 8th – August 20th).

By contrast, I found the evidence given on behalf of the Respondent to be highly persuasive.

I accept Ms. McCarthy’s evidence that the Complainant’s behaviour, tone and attitude on the 8th was worse again, by a measure, than it was on the subsequent date (20th) when he made the recordings shown at hearing (and therefore knew he was being recorded). I found her to be an honest, cogent and credible witness and I am persuaded by her evidence.

I also fully accept the evidence given by Ms. Forde. It was highly persuasive.

I note that a shop sits at the nexus of Equality Law in terms of its duties to its customers under the Equal Status Act 2000 (as amended) and its duties to its employees under the Employment Equality Act 1998 (as amended). The evidence in this case really highlighted that fact. Ms. McCarthy gave evidence in relation to her own neurodivergence and navigating that in the context of her working life; and Ms. Forde highlighted the fact that all of the people in the shop were women, and the significance of that in the context of being subject to aggression and intimidation by the Complainant, as they did their public-facing job.

On its face, this is a consumer dispute. It should be capable of being resolved amicably and in line with consumer protection law.

Simply because someone does not get the outcome they want does not, in and of itself, indicate discrimination. Businesses are entitled to refuse service. They are just not entitled to refuse service on the basis of a protected ground contrary to the Equal Status Act 2000 (as amended). In this case, service was not refused on the basis of a protected ground. It was refused on the basis of the attitude and conduct of the Complainant.

I do not accept that the Complainant was stereotyped, in contrast to the situation in CT & FE V. Dunnes Stores Unlimited Company [2023] IECC 4, a case in which a person of the same ethnicity but the wrong person was excluded from the shop i.e. stereotyping. In this case, the correct person was excluded. He was not excluded on the basis of his race or ethnicity, but rather on the basis of his conduct. He was excluded temporarily until he addressed the matter with the manager, which was entirely reasonable. She has a duty to her staff. There is no case of mistaken identity in relation to the case before me for determination.

It is reasonable to expect adults to have the ability to cope with the cut and thrust of life, and navigate its day-to-day happenings, as they occur, in the ordinary course. Not getting your own way having forcefully demanded it does not indicate discrimination.

Discrimination by Association

In relation to the question of discrimination by association, there is no complaint before me in relation to any of the Complainant’s family members. I do not accept the interpretation of the legislation put forward by Counsel for the Complainant which suggests that the Complainant can advance a case for discrimination by association in circumstances where a family member of his was refused service. In that instance, he would not be the Complainant, in my view, having carefully considered the wording of the legislation, i.e. it seems to me that the family member excluded by virtue of his/her association with the Complainant, would be the Complainant in relation to any such claim, not the other way around.

Step 1 – Shifting the Probative Burden

Having heard the factual matrix of this case, and considered it measured against the steps set out in the legislation, and in light of the applicable case law:-

I find that the Complainant has not adduced any facts sufficient to shift the probative burden under s. 38A of the Equal Status Act 2000 (as amended).

I find that he was involved in a consumer dispute, that he was told to engage with the manager in respect of it. He declined to do so. He instead sought to insist that a shop assistant refund him and was aggressive in his interactions with her (on or about the 8th). He opened an ES1 form, then returned to the shop (on the 20th), filmed without the consent of those present - videos which capture him being aggressive in his interactions - then completed the ES1 form alleging himself to have been the victim of discrimination and harassment, and subsequently filed a WRC complaint on significantly expanded grounds. Nothing in the fact pattern set out is connected to his race or ethnicity.

I therefore find, having carefully considered this case, that it falls at the first fence. I find that no facts sufficient to shift the probative burden have been adduced by the Complainant in support of his case.

I find for the Respondent.

I find that this complaint is not well founded.

Equal Status Act 2000 (as amended); race;