Labour Court Database __________________________________________________________________________________ File Number: EED935 Case Number: EEO9312 Section / Act: S27EE Parties: BROOKFIELD LEISURE LIMITED - and - A WORKER;NOONAN AND LINEHAN, SOLICITORS |
Dispute concerning the alleged unfair dismissal of a worker in contravention of Section 2(a), 3(1) and 3(4) of The Employment Equality Act, 1977(the Act).
Recommendation:
1977
Division: MrMcGrath Mr Brennan Mr Walsh
Text of Document__________________________________________________________________
EED935 ORDER NUMBER EEO1293
EMPLOYMENT EQUALITY ACT, 1977
SECTION 27
PARTIES: BROOKFIELD LEISURE LIMITED
(REPRESENTED BY P. J. O'DRISCOLL AND SONS, SOLICITORS)
AND
A WORKER
(REPRESENTED BY NOONAN AND LINEHAN, SOLICITORS)
SUBJECT:
1. Dispute concerning the alleged unfair dismissal of a worker
in contravention of Section 2(a), 3(1) and 3(4) of The Employment
Equality Act, 1977(the Act).
BACKGROUND:
2. The worker was employed by the Company on the 21st of
September, 1992 in the capacity of Life Guard/Fitness instructor,
until her dismissal on the 26th of April, 1993. She claims that
she was dismissed because of her sexual orientation and, or,
because of an alleged complaint made against her concerning an
alleged incident, which incident, if participated in by a member
of the other sex, or a person of different sexuality, would not
have provided grounds for dismissal. The Company denies that the
worker was subject to discrimination contrary to the provisions of
the the Act either in the conditions of her employment or the
termination of same. The dispute was referred to the Labour Court
on the 15th of June, 1993. The Court investigated the dispute, in
Cork, on the 28th of October, 1993.
WORKER'S ARGUMENTS:
3. The worker's arguments are as set out in Appendix 1. These
arguments were expanded on orally at the hearing.
COMPANY'S ARGUMENTS:
4. 1. The Company's position is as set out in Appendix 2. In
its oral submission, the Company expressed the view, inter alia,
that even if the facts of the case were to be proven, it would not
be sufficient to allow a successful claim under Sections 2 and 3
of the Act.
ORDER:
The worker has alleged that she was dismissed from her employment
in contravention of section 3(4) of the Employment Equality Act
1977.
Section 3(4) provides that "a person shall be taken to
discriminate against an employee or prospective employee in
relation to conditions of employment if he does not offer or
afford to a person....the same terms of employment..........and
the same treatment in relation to.......dismissals..........as he
offers or affords to another person..........".
Section 2 defines discrimination for the purposes of the Act. It
provides that "discrimination shall be taken to occur.......where
by reason of his sex a person is treated less favourably than a
person of the other sex".
In this case, the worker was summarily dismissed because of a
complaint by a client of the employer that the worker acted in
such manner in the course of her employment as to cause offence
and to demonstrate her sexual orientation.
The worker argues that her dismissal was an act of discrimination
because she was treated less favourably than a man would have been
treated in similar circumstances. The employer argues that the
dismissal was not a discrimination within the meaning of the Act.
The Court is satisfied that the worker was treated in an arbitrary
and unfair manner. She was given no opportunity to respond to the
complaint that had been made, and no opportunity to alter her
behaviour if the complaint had been substantiated. Even if the
complaint had been substantiated, it does not appear to the Court
to constitute so serious a matter as to justify immediate
dismissal. The worker should at the very least have been given
another chance to conform to behaviour which was deemed acceptable
in the employment in which she was engaged.
However, the unfair manner in which the worker was treated does
not amount to discrimination within the meaning of the Employment
Equality Act, and this Court can give the worker no relief. The
Court is satisfied that the unfair treatment did not arise from
any attribute of her sex, but of her sexual orientation, and that,
in all probability, a man would have suffered the same treatment
for a similar display of his sexual orientation. The Court must
therefore dismiss her complaint as not being well founded under
the Employment Equality Act.
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Signed on behalf of the Labour Court
16th December, 1993. Tom McGrath
M.K./A.L. _______________
Deputy Chairman