FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : SASHORE LIMITED TRADING AS JACKSONS RESTAURANT (REPRESENTED BY JOHN F. FLANNERY & ASSOCIATES) - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Alleged unfair dismissal under Section 77 of the Employment Equality Act 1998
BACKGROUND:
2. The worker referred his case to the Labour Court on the 4th of September, 2001, in accordance with Section 77 of the Employment Equality Act, 1998. Three Labour Court hearings took place in Galway - on the 19th of April, 17th of July and the 21st of August, 2002. The following is the Court's determination:
DETERMINATION:
The complainant claims that he was dismissed from his employment as a bar worker on grounds of his sexual orientation. He brought a claim for redress pursuant to Section 77(2)(a) of the Employment Equality Act, 1998, (the Act).
The respondent told the Court that she was aware of the complainant’s sexual orientation at the time he was offered employment and that she regarded it as being of no consequence. The respondents stated position in that regard was supported by the evidence of an independent witness. The respondent denied that the complainant’s sexual orientation was a factor which influenced the decision to terminate his employment. She told the Court that the dismissal followed on from a serious altercation between the complainant and another member of staff during the course of their employment. Following this altercation, the other member of staff told the respondent that she was no longer prepared to work with the complainant. She then offered her resignation. The complainant had also indicated that he was no longer prepared to work with this person.
The respondent told the Court that this other member of staff was a valued employee with longer service than the complainant. In the circumstances, the respondent decided to terminate the complainant's employment and retain the services of the other staff member.
On behalf of the complainant it was submitted that the respondent had not afforded him any opportunity to give his version of the events giving rise to the altercation in the bar. It was further submitted that the respondent had failed to follow fair procedure in reaching the decision to terminate the complainant’s employment.
Evidence was also presented of an incident in February, 2001, when the respondent told the complainant that his partner should no longer frequent the bar as customers had made complaints based on his sexual orientation.
Conclusions of the Court.
Taking the evidence as a whole, including that of an independent witness, the Court accepts the respondent decided to terminate the complainant’s employment when faced with having to choose between two members of staff who had refused to work together.
In this case, the onus is on the complainant to establish, on the balance of probabilities, a causal connection between his sexual orientation and the decision to terminate his employment. The Court is not satisfied that such a connection has been established on the evidence adduced. Whilst there may have been a certain degree of unfairness in the manner in which the decision to dismiss the complainant was reached, unfairness is not in itself determinative of discrimination.
Determination.
The Court finds that complainant was not discriminated against within the meaning of the Act and the complaint herein is dismissed.
Signed on behalf of the Labour Court
Kevin Duffy
29th August, 2002______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.