ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001836
Complaint for Resolution:
|
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act 2000 |
CA-00002373-001 |
3rd February 2016 |
Date of Adjudication Hearing: 26th April 2016
Workplace Relations Commission Adjudication Officer: Seán Reilly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 25 of the Equal Status Act, 2000, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Summary of Complainant’s Case:
The Complainant had submitted a complaint under the Equal Status Act 2000 that he had been discriminated against on the grounds of age, i.e. the fact that he was/is over 65 years of age, by the Respondent in relation to the provision of accommodation to him by the Respondent.
The Complainant said his complainant related to the cancellation of a number of dates of accommodation that he had pre-booked in the Hostel. The Complaint had, as required by the Equal Status Act, sent Form ES.1 a notification to the Respondent informing them of his complaint and seeking a response to a number of questions.
On the following day the Complainant sent a detailed letter to the General Manager of the Respondent outlining the details of his complaint and he said this formed the background to and details of his complaint. He said this letter was the main part of his submissions. This letter is reproduced here, without names or identification of parties as required by the Workplace Relations Act 2015: e.g. the Respondent is simply referred to as the Respondent and is not named etc.
“I understand you are the acting general manager at (the Respondent) with day to day responsibility for the running of the hostel operation based at (named location).
As you are aware I have booked into (the Hostel) a number of times on short stay accommodation arrangements starting early 2014. As a point of information I had been living in private accommodation…. In recent years, but had moved to the country in 2011, where I own my own property. Since then I have been commuting back and forth to the city for business and social reasons and staying at selected budget accommodation outlets subject to price and availability.
On my last visit to (the Hostel) 15 & 16 August 2015 I had made accommodation bookings with yourcolleague (named) for forward stay dates details as updated in an email to your Group Accommodation Manager 27 August 2015. In the past I had always found your reception staff courteous and helpful at all times. On 20/07/2015 I had received an email requesting feedback on my stay there on Sunday 19th July. Due to oversight and having being out of circulation on business follow up I had overlooked the email message and had only completed the questionnaire 20/08/2015 On the same date I posted a note for the attention of your reception at (the Hostel) correctly requesting the discount voucher which had been verified as the reward for taking the time to complete the feedback enquiry.
I heard nothing back on this and then unexpectedly on August 24th I received what I regard as a bizarre email from your colleague (named) referring to an enquiry by me for long term accommodation. In my reply I informed her that I had made no enquiry along these lines, I had no interest in long term accommodation and requesting that she revisit the content of my letter and advise in the normal way. In the course of her email she stated that you were a youth hostel catering only for backpackers, which would seem to contradict what is advertised on your web page namely group booking customers.
With respect to her comments, the cross mix staying in your accommodation and other hostels in (a named location) would vary from overnight to short stay to longer stay customers when for example the hostel is quiet or off season. To extend the comparison these would include third parties in transition to private accommodation, third party groups and individuals coming to the city for concerts and party events, education tutorials and sporting occasions. Backpacker business would fall into the area of small business potential with this style of customer chasing cheap absolute price in comparison with your higher booking rates.
In any event the response to this request was an email from your accommodation manager cancelling all booking dates with immediate effect. In this email he stated incorrectly that in the past I had been advised to find accommodation elsewhere and that on previous occasions you had decided not to honour any more bookings made on my behalf. I case there is any misunderstanding at my end let me clarify my perception of the position following this update.
In the course of overnight stays last year I understand there had been two complaints against me by two individuals on separate weekends which I responded to consistent with my recollection of the alleged offending issues. Without revisiting the detail of these alleged incidents the outcome was that I had been informed by your colleague (named) correctly or incorrectly that for any future stay arrangements at the hostel it would only be possible to book a singe room.
On the reverse side I confirm I had made 2 low key complaints over a long period of time where I had returned to the hostel early Sunday mornings to discover that my bed had been double booked with individuals sleeping in the allocated bed space. I put these lapses down to the hostel being busy and for goodwill reasons left the matter at that. To clarify my position further on these so called complaint incidents, I conform that at the time of my visit to (the hostel) 15/16 August there was a large group staying there from Italy. As it transpired I had tried to use the kitchen to cook some food at around 9pm on the Saturday night, which was not possible due to the large numbers using this facility. Again I took the view that the hostel was overbooked and let the matter rest there.
Subsequently and irrespective management had continued to honour bookings when there was weekend availability. In the absence of availability and on a count back I had been staying very little at your hostel since early summer 2015 with the exception of an odd Sunday night having travelled into the city for business follow up the following day.
In the circumstances I am fully entitled to protest and respond to these short notice cancellations on the grounds that no commercial or other behavioural reason crossed to justify terminating booked stay arrangements. This as far as I am concerned constitutes unlawful discrimination under the equality legislation act against a third party where there were no commercial or sustainable rationale to justify this line of action. In this regard, I draw you attention to the position that in common with other hostel run operations you come under the control of the state tourist board here. The tourist board, Faille Ireland, have implemented strict regulatory and governance rules relating to the running of all registered hostels under their remit. These regulatory conditions to ensure the implementation of best practice and fair treatment towards members of the public staying at hostel outlets.
Regrettably, the recent cancellations constitute selective discrimination against a member of the public coming here to stay in open source accommodation and in the process adhering to the standard rules of engagement. Therefore and arising from this I have to advise you I am obliged to redeem infringement of my freedom rights, my good name and reputation by seeking redress to the Equality Tribunal, the authorised body set up to investigate maltreatment and equal status discrimination.
I enclose for your attention copies of your email July 20th and my response email, copy of letter to (the hostel) reception 20/08/2015, copy of my letter to your group accommodation manager (named).”
The last named letter referred to above states:
“I have just seen your email of todays date and irrespective of what you have decided on in relation to a matter which originated from your side.
My email response to your colleague effectively stands namely that I responded to a questionnaire from (the hostel) on a number of occasions where you had confirmed that in return for feedback on accommodation stay you would sanction a discount voucher at your alternative hostel in acknowledgement of this. If you now have decided that your way out of this is taking retaliatory action by recourse to cancelling future bookings that is your decision and I have no control over this.
However as a comeback I now intend to proceed and make a formal complaint to the regulatory equality tribunal for unjustified discrimination by (the hostel) on a number of grounds including the bizarre email from your colleague that I had made an approach for long stay accommodation at your hostel. This as far as I am concerned is a legitimate complaint which regrettably I will prosecute though to a satisfactory outcome. To restate my position I made no application past or present for long stay at your hostel and therefore attempting to raise this as a conveniently commercial and objectionable issue reflects poorly on the veracity at your end and will be fully highlighted in my upcoming complaint submission.
I would like to remind you in your role as a group booking manager that there are regulatory and governance rules operating in this jurisdiction central to the oversight specified in the running of all hostel operations on the ground here. There are good reasons for this compliance because in the past best practice standards did not apply with hostel management owners who instead adopted their own selective rules of engagement going forward with members of the public. Whether you know it or not this era is now past to ensure that all third parties staying in hostels short or long term are indemnified against this type of prejudice and in my case summary treatment by hostel management.
To conclude I view your unexpected email this afternoon as another attempt to enforce this style of one sided action without any apology I will act to redress this.”
The Complainant also sent a letter to the WRC, dated 16th February 2016 and received on 23rd February 2016, in which he stated:
“I confirm receipt of your letter 11/02/2016 in response to my complaint submission (the Respondent).
Going forward and without prejudice I wish to reconfirm that the respondent in this case has failed to acknowledge or respond to any correspondence sent for their attention.
Aside from this I wish to draw your attention that I booked accommodation on a regular basis at this outlet in the calendar years 2014 and 2015. At all times I would a) have accepted their commercial conditions in respect of fluctuating booking rates, b) the rules of engagement for a hostel style facility.
In the circumstances the perception emerging here is that this outlet have not accepted that there are oversight and regulatory rules in place to indemnify third parties for one dimensional and unfair treatment during the currency of staying at their place of business. Your organisation are obliged therefore to take this into account in any assessment or ruling on this matter.
I now await confirmation of the place and date of adjudication for my case hearing.”
Following the written submission of the Respondent of 16th February 2016, the Complainant sent the following response to the Respondent by letter of 4th March 2016.
“I refer to the discrimination complainant Case Ref: ADJ-00001836 lodged by me in 2015 with the Equality Tribunal at The Workplace Relations Commission. In response and follow up to this complaint I have received acknowledgement letters ((2) from the Commission attaching a copy email from you as respondent on behalf of (the Respondent), date reference 16/02/2016.”
The Complainant then referred to the allegations contained in the Respondent’s correspondence to the WRC of 16th February 2016, which he responded to and denied
Shortly I will be forwarding for the attention of the Commission a detailed and background history of what happened at (the Hostel) during the currency of various stays in your outlet. To this end I enclose for your attention copy of an interim letter reply forwarded to the Commission to address the backdrop of the above allegations.
At the Hearing the Complainant reiterated that the foregoing was his position and his submission and he again confirmed that his complaint related to the cancellation of a number of bookings that he had pre-booked.
Following the submissions of the Respondent the Complainant denied the complaints made against him and provided an explanation for what had occurred on both occasions.
He also said that when there were no single rooms available, he was booked into a multiple room.
The Complainant repeated at the Hearing as stated in his written correspondence that it was only after he gave a ‘review’ that he was refused accommodation / had his prebooked accommodation cancelled, implying again that the two matters were related.
In response to a question as to how he saw what had happened and the cancellation of his pre booked accommodation was related to his age and the fact that he was over 65 years of age as cited in his complaint the Complainant said that “all he can perceive it to be is his age”.
The Complainant sought that his complaint be upheld.
Following the Hearing the Complainant sent a letter received on 13th May 2016 in which he stated:
“I refer to the above adjudication hearing conducted at the Glasshouse Hotel, Sligo. The date of the hearing 26/04/2016 in the presence of the respondent acting on behalf of (the hostel).
The complaint was lodged by the undersigned citing in the first instance age related discrimination in breach of the Equal Status 2000. In view of the comments raised by the Chairperson at the hearing I have now revisited the detail of the listed grounds for prosecuting the said complaint. Implicitly or otherwise I understood that in the fall out from this discrimination I was the victim of circumstances leading to cancellation of valid pre booked accommodation arrangement.
Without prejudice to the pending outcome of this complaint I request that this explanation be now accepted as part of my submission in the normal course of evaluation preparatory to completing a fair and impartial process.”
Summary of Respondent’s Position:
The Respondent was denying that they had discriminated against the Complainant as alleged by him or at all.
The Respondent’s Operations & Business Development Manager had submitted the following written statement in 16th February 2016, in response to the Complainant’s complaint.
“(The Respondent) is a backpacker student hostel comprising 270 beds and have been in operation for 25 years. We are a private business with both private rooms and shared dorms. As management we reserve the right to refuse admission when we feel the need is necessary.
(The Complainant) booked into our shared accommodation on several occasions, however during his last stat we had several complaints brought to our attention as regards the behaviour and actions of (the Complainant)”. The Respondent then provided details of these allegations.
“……….. (the Complainant) was asked to book single accommodated of which we have plenty, however he proceeded to book shared rooms when asked not too. It was after this he was informed his bookings would not be honoured going forward.
To conclude I do not know (the Complainant) personally and therefore have no reason to discriminate against him but as a manager I have responsibilities and a legal obligation to protect both my staff and guests.
The reception manager who dealt with (the Complainant) at the time will be happy to give a statement if necessary. Please feel free to contact me if any further information is required.
The Respondent said they ran a hostel at a named location. The said that there are 3 different kinds of accommodation available to the public at the hostel, namely: multi-bed rooms; smaller type bed rooms and private rooms. The Respondent said that they encourage customers for reasons of privacy to avail of private rooms.
The Respondent said that the Complainant did stay at their hostel from time to time.
The Respondent said that two guests had made separate complaints in relation to two separate incidents in relation to the Complaint, when he was staying in one of their multi-bed rooms.
The Respondent provided details of the complainants made.
The Respondent said that in the case of the first complaint the person making the complaint was moved.
The Respondent said that the Complainant was spoken to about the complaints and he gave an explanation. The Respondent said that the Complainant was not barred from the Hostel. However in the best interests of all parties including the Complainant to avoid the potential for similar complaints in the future the Complainant was asked to in the future book a private room and they said it was made plain to him that it was only on that basis that they would accept bookings from him going forward. The Respondent said the Complainant did in fact stay with them again after this.
The Respondent said that on the occasion that the Complainant’s pre-booked booking was not accepted it was because there was no private rooms available and for no other reason. The Respondent said that it was most certainly not because of his age, nor any of the other 8 grounds listed in the Equal Status Act, nor was it victimisation for having made a complaint under the Act.
The Respondent said that in addition it was not, as suggested by the Complainant, because he gave a ‘review’ in relation to accommodation.
The Respondent said there was no discrimination as defined under the Equal Status Act by them against the Complainant and the complaint should be rejected.
Findings and Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 25 of the Equal Status Act, 2000 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Section 27 of that Act.
I have carefully considered the evidence and the submissions made and I have concluded as follows.
The Complainant has submitted a complaint under the Equal Status Act 2000 that the Respondent has discriminated against him in relation to the cancellation of a pre-booked accommodation on the grounds of age and I am required to decide if that is the case. That is the only complaint under the Act that is properly in front of me and accordingly the only one on which I can make an Adjudication Decision.
The Complainant states two total different reasons for the cancellation of his pre-booked accommodation by the Respondent. The Complainant firstly states – and this is the only valid basis for a complaint under the Equal Status Act 2000 – that it was based on his age and in particular the fact that he was/is over 65 years of age. However the Complainant produced absolutely no evidence or proof for this assertion. When directly asked at the Hearing as to how what had happened and the cancellation of his pre-booked accommodation by the Respondent was related to his age and the fact that he was over 65 years of age his response that “all he can perceive it to be is his age.” He gave no reason whatsoever for any such perception on his part and baldly making such a statement is not evidence of discrimination and most certainly does not constitute prima facie evidence of discrimination requiring to be refuted by the Respondent. I note that the Complainant states that he had regularly stayed in the Respondent’s accommodation very shortly before the cancellation of the pre-booked accommodation – he would at that time have been (almost) the same age and this does not support any contention that he was discriminated against on the grounds of age on the contrary it completely undermines it. I was presented with no evidence of age based discrimination by the Respondent in this case.
In addition the Complainant twice submitted, including in writing to the Respondent on 26th August 2015, that the reason for the cancellation was because he had given a review and the Respondent did not want to provide him with the discount voucher promised in return for same. In his letter of 26th August 2015 the Complainant states inter alia:
“My email response to your colleague stands namely that I responded to a questionnaire from (the Hostel) on a number of occasions where you had stated that in return for feedback on accommodation stay you would sanction a discount voucher at your alternative hostel in acknowledgement of this. If you now have decided that your way out of this is taking retaliatory action by recourse to cancelling future bookings that is your decision and I have no control over this (my emphasis).
However as a comeback I now intend to proceed to make a formal complaint to the regulatory equality tribunal for unjustified discrimination………”
Plainly this is totally different to, and not at all compatible with the assertion that the cancellation of the pre-booked accommodation was based on or because of his age, indeed it has nothing to do with age.
While this assertion would, if correct, be reprehensible, it would not be in breach of any provisions of the Equal Status Act and most certainly not be discrimination based on age or indeed any of the discriminatory grounds as laid down in Section 3 of the Act.
Obviously both of these contentions by the Complainant are contradictory.
The Complainant has not discharged the burden of proof necessary to demonstrate discrimination by the Respondent on the grounds of age; he has failed to establish a prima facie case of discrimination on the grounds of age and accordingly I must, in accordance with the provisions of Section 25 of the Equal Status Act 2000, find and declare that the complaint is not well founded; it is rejected and is not upheld.
Dated: 22nd July 2016