Complainant

Respondent

Parties

Marko Marcinek

Musgrave Wholesale Partners

Representatives

Represented himself 

Emily Maverley, IBEC

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-00075509-001

17/09/2025

The respondent is a food wholesaler, with a distribution network across Ireland, the United Kingdom and Spain.  The complainant works as a general operative in the company’s central distribution warehouse in Ballycoolin in Dublin.  He generally works as a goods inwards loader.  He has a license to operate a counter balance forklift and, at the hearing, he informed me that, when he is needed, around once a week, his manager asks him to work in the yard.

The complainant is a Croatian national and he joined the company in 2019.  He continues to have a good relationship with his employer and in 2024, he was nominated by management as employee of the year.

The system for working in loading bays is set out in a document which was provided to me in advance of the hearing.  This document has the title “Safe System of Work, SSOW No.114,” with the sub-heading, “Loading Bay Doors and Dock Levellers.”  The standard operating procedure set out in this document states that a driver delivering goods to a loading bay must hand in the ignition key of their vehicle before unloading commences.  The key and the loading paperwork is then collected by the goods-inwards operator.  Before commencing the unloading, the operator hangs the key on a hook at the loading bay door.  In this way, the driver is prevented from driving away while the truck is being loaded or unloaded.

On September 9th 2025, the complainant failed to take the keys from a driver and the driver moved off while the complainant was on the ramp of the truck.  He managed to jump off the ramp without causing an injury to himself.  The complainant reported the incident and in incident report was completed.  The complainant was informed that an investigation would be carried out.  While the investigation was underway, he was moved from his job as a goods inwards driver and assigned to yard duties.

The complainant believes that, a few years previously, an Irish employee made the same mistake by not taking the keys from a driver and jumping from a ramp when the truck pulled away.  He heard from a colleague that this employee wasn’t moved from his job in goods inwards.  He claims that, by moving him from his job and requiring him to be re-trained in the standard operating procedure, he has been treated less favourably because of his nationality.

Arising from an investigation meeting on September 15th, the operations manager concluded that the complainant had failed to follow a key control procedure and the incident could have resulted in a serious accident.  The complainant attended re-training on the control procedures for unloading goods from trucks and he returned to his role as a goods inwards operator after about 10 days. 

On October 2nd, the complainant attended a disciplinary meeting and, on October 6th, he was issued with a verbal warning.

The respondent refutes the claim of less favourable treatment and argues that the complainant was not discriminated against.  Ms Maverley said that the company acted in accordance with the standard practice for the management of a serious health and safety incident.  She said that the complainant was not treated any less favourably compared to another colleague and the company applies its health and safety policies consistently across the organisation.

In his evidence, the complainant said that he accepted that he was responsible for the incident that occurred on September 9th 2025.  He was moved from his job as a goods inwards driver and he was assigned to yard activity.  At the meeting with the operations manager and the HR officer on September 15th, he said that he admitted that he made a mistake.  At this meeting, the complainant said that he asked the operations manager why he was moved from his job, when he heard that an Irish colleague who did the same thing a few years previously wasn’t moved.  He said that the operations manager told him that the purpose of the move was to allow a “cooling down” period. 

The next day, the complainant said that he sent an email to the HR department looking for an explanation about why he was moved.  In his email, he referred to the incident which, he claimed, “led to my subsequent suspension.”  The complainant had not been suspended, but he had been moved from his job as a goods inwards loader.  In his email, he referred to the colleague who, he claimed was treated more favourably some years previously.  He said that he was concerned about “national origin discrimination.”

On September 17th 2025, before he received a reply to his email, the complainant submitted this complaint to the WRC.  In response to a question from me, he said that he did a Google search and he found out about the WRC, and he used AI assistance to fill in the complaint form.  In his complaint form, he again referred to having been suspended and he compared himself to an Irish colleague who was involved in a similar incident three or four years ago who wasn’t suspended.

On September 18th, the HR officer, Ms Abbie Smyth, replied to the complainant’s email of the 16th, and explained that he wasn’t suspended, but that he had been moved from his job as a safety measure and not a disciplinary measure.  Ms Smyth sent the complainant a copy of the company’s grievance procedure. 

On September 19th, the complainant said that he completed full re-training on the procedure for handling goods inwards at loading bays.

In response to questions from Ms Maverley, the complainant said that he wasn’t present a few years ago when an Irish employee jumped from a truck ramp at a loading bay.  He said that a colleague told him about this incident.  He said that the colleague told him that the employee was back in his role two minutes later.

Opening his evidence, Mr Byrne explained the classification of health and safety incidents, from those requiring first aid, to minor accidents, accidents resulting in more than three days of absence, near misses and dangerous incidents.  A dangerous incident is a near miss which, if it had occurred, would have resulted in a life-changing injury or death.  The incident that occurred on September 9th that led to the complainant being temporarily moved from his job was classified as a dangerous incident.

Mr Byrne explained the procedure for delivering goods to the warehouse, the responsibility of the driver to leave their keys with the despatch officer and the responsibility of the goods inwards operator to place the keys on a hook so that the driver is prevented from moving off during the unloading process.  The drop from the ramp to the ground is nine feet and the potential for a serious injury is significant if the driver moves away.

Mr Byrne said that every health and safety incident is reviewed at a weekly meeting of operations managers and CCTV is looked at.  A breach of a health and safety protocol results in an investigation, and this occurred following the incident on September 9th 2025.  The management of incidents has evolved over the years and the company’s policy is that an employee involved in a breach of a protocol is removed from the task until they are re-trained.  Mr Byrne said that this is in line with the guidance provided by the Health and Safety Authority.

Mr Byrne presented a schedule of seven incidents that occurred in the company between January and November 2025.  Each of these involved a breach of a health and safety protocol.  Each incident was followed by the removal of the employee from their role operating mechanical handling equipment, and their return to the role after re-training.  Four of the employees concerned are identified as Irish and two are Croatian.  The nationality of one employee was not given.

I understand that, in addition to Irish people, many different nationalities are employed in the respondent’s business.  While the complainant said that he is happy in his job, he has a sense that Irish employees are treated more favourably.  The only example he gave is the report from his colleague that an Irish employee who jumped off a truck ramp some years ago was not moved from his job or required to undergo re-training.

Considering the issue of the burden of proof which is set out at s.85A of the Employment Equality Act 1998, the onus is on a complainant to set out facts that lead to a presumption that the treatment complained about is discriminatory.  In her submission, Ms Maverley referred to the decision of the Labour Court in Melbury Developments Limited v Arturs Valpeters[1], where the Court expanded on what is required to establish the initial proof that discrimination has occurred:

“This requires that the complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

From this, it is apparent that, while the burden of proof resting on a complainant in the first instance simply requires the facts to raise an inference of discrimination, the facts presented by the complainant in this case must be “of sufficient significance” to lead me to conclude that the respondent was biased in favour of Irish people.  At the hearing, I explained to the complainant that it is not sufficient to refer to an incident that may have occurred some years ago which was related to him by an unnamed colleague who has not been called to give evidence about the incident.

It must be clear to any reasonable person that there is logic to the respondent’s policy to remove an employee from a job where they have behaved in an unsafe manner, to investigate what occurred and to provide refresher training before they return to their assigned position.  This is primarily for the protection of the employee concerned and, at the hearing, the complainant agreed that he suffered no loss of wages or any other detriment as a result of being stood down from his job as a goods inwards loader. 

Although no evidence was submitted to support the complainant’s allegation that an Irish employee was treated differently, even if this did occur, I am not satisfied that the treatment was more favourable.  Requiring an employee to step down from a role after a dangerous incident and requiring them to take refresher training is an indication that safety is a priority for the employer, and that robust procedures are in place to prevent similar incidents occurring in the future.

Although some employees in the respondent’s company are organised in a union, the complainant said that he didn’t seek advice before he submitted this complaint.  This is regrettable, because an experienced union representative may have been able to explain the mechanics of the Employment Equality Act and the responsibility of an employee who claims that they have been discriminated against to present facts that show that they have been treated less favourably.  

In the case of this employee, the facts do not show that, compared to an Irish person, he was treated less favourably.  I note that, in response to his email of September 16th, he HR business partner sent the complainant a copy of the company’s grievance procedure.  It is my view that this was the vehicle for dealing with his concerns and it is regrettable that, when he submitted this complaint to the WRC, someone in the HR team didn’t give him some guidance about how to submit a grievance.

In conclusion therefore, having examined the facts set out at the hearing by the complainant, it is my view that, in line with the authority of the Labour Court, he has not shown that he was discriminated against because of his race.  For this reason, the burden of proving the absence of discrimination does not shift to the respondent.

As I have concluded that the complainant has not established the primary facts which show that he was discriminated against on the ground of race, I have decided that this complaint is not well founded.

Discrimination on the ground of race