EQUAL STATUS ACTS 2000 to 2011
DEC- S2016-063
Thomas Whelehan
versus
Bailieboro Celtic
File reference: et-153050-es-15
Date of issue: 26th October 2016
Keywords: Equal Status Acts, Disability, Failure to provide reasonable accommodation,
Dispute
1.1 The case concerns a claim by Mr Thomas Whelehan, (hereinafter referred to as ‘the complainant’) that he was subject of discrimination by Bailieboro Celtic (hereinafter referred to as ‘the Respondent’) on the grounds of age under section 5 of the Acts when he they refused to allow him to participate in the clubs activities. The complainant also submitted that treatment of him by the respondent amounted to victimisation under section 3 of the Acts.
1.2, The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 3 February 2015. On 9 February 2016, in accordance with his powers under section 75 of the Equal Status Acts, the Director General of the Workplace Relations Commission delegated the case to me, Peter Healy, an Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under section 25 of the Acts, on which date my investigation commenced. A hearing took place on the 6th October 2016 at the WRC, Davitt House, Dublin 2. The respondent did not attend.
1.3This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83.3 of the Workplace Relations Act 2015.
Summary of the complainant’s submission
2.1 The complainant submits that he has a lifelong commitment to involvement in football and became involved with the Respondent club in 2008, not only playing but coaching teams. The complainant submits that his good relationship with the club committee began to degenerate in 2009 following a number of specific incidents.
2.2 The complainant submits that in 2009 he voiced his dissatisfaction and disagreement to the club about the manner in which the club was spending a recent financial windfall. It is the complainant’s evidence that personal exchanges between himself and committee members were not civilised, became very volatile and continued in that manner for a number of months.
2.3 It was the complainant’s direct evidence at the hearing of this complaint that in 2010 the club “institute a procedure of not responding to any issues” that he raised.
2.4 The complainant submits that he was the subject of a Kangaroo court in 2010 by the club. He submits that was not given proper notice of a disclipanary notice and did not attend. The complainant was banned from the club for two years.
2.5 The respondent club had one senior team in which the complainant wished to participate. A particular Committee member (Mr A) was the manager of that team and it is the complainants submission that from 2011 onwards Mr A co-ordinated a campaign of intimidation to prevent his participation in that team, including targeted comments that he was too old to participate culminating on one occasion with the complainant being physically harassed in the car park of the club and prevented from entering the premises.
2.6 It is the complainant’s submission that his personal relationships with the majority of the committee members degenerated to “the point of hostility, from their side”.
2.7 On one occasion, in 2015, the complainant left a voice mail for a member of the committee responding to an advertisement in the local paper, but that no response was received. It was this incident that prompted the complainant to lodge the complaint under consideration. In complainant’s written complaint states that that it is his right to partake in over 35 football should not be infringed because he was over 60.
Victimisation.
2.8 It is the complainant’s submissions that elements of the respondent’s behaviour, specifically harassment, were motivated by the fact that he had previously taken an equality complainant against the club.
Summary of the respondent’s submission.
3.1 The respondent denies any involvement in the complaint and there submission consists of short letters insisting that they will that “they will be taking no further part in replying to this matter” They do however allude that the advertisement to which the complainant refers was not sanctioned by the club.
Conclusions of the Equality Officer
4.1 Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where: “On any of the grounds specified... (in this case the age ground).... A person is treated less favourably than another person is, has been or would be treated.”
Section 3(2) provides that: as between any two persons, the discriminatory grounds are,
(f) subject to subsection (3), that they are of different ages (the “age ground”),
4.2 Victimisation is defined in section 3(2),
(j) that one—
(i) has in good faith applied for any determination or redress provided for in
Part II or III,
(ii) has attended as a witness before the Authority, the Director or a court
in connection with any inquiry or proceedings under this Act,
(iii) has given evidence in any criminal proceedings under this Act,
(iv) has opposed by lawful means an act which is unlawful under this Act, or
(v) has given notice of an intention to take any of the actions specified in
subparagraphs (i) to (iv),
and the other has not (the “victimisation ground”).
4.3 Section 38A (1) provides that the burden of proof is: " Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary." It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.
4.4 I note the manner in which respondent failed to attend the hearing of this complaint and I infer from their behaviour that they have limited credibility in this matter. I attach significant weight therefor to the direct evidence of the complainant presented at the hearing of this complaint.
4.5 Based entirely on the complainant’s own account and accepting that account as no contrary evidence has been given, I find the following are the salient facts.
· The complainant’s personal relationships with the club committee had broken down in 2009 over an administrative matter. There has been significant animosity between the complainant and club members since that time. These personal relationships continued to deteriorate to the point where the club decided through its own procedures to ban the complainant from the club. There is no evidence that age was a factor in the breakdown of these relationships or in the manner of the disciplinary process.
· Even after the complainant was banned from the club in 2010, the complainant refused to accept the wishes of the club and continued to carry out activities for a club with which he had no association.
· After years of hostility and person acrimony the complainant in 2015 lodges a complaint of discrimination on the grounds of age. The complainant has offered no evidence other than speculation regarding discrimination on the ground of age.
4.6 Taking into account the above I am satisfied that the club members and specifically Mr A are avoiding all contact with the complainant for interpersonal reasons.
Victimisation
4.7 Based on the account of the complainant there is no difference in treatment of the complainant by the respondent prior to or after his invoking of any Equality complaints.
Decision
5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaints, I hereby make the following decision in accordance with section 25 of the Employment Equality Acts, 1998 to 2012. I find that
(i) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against him on the ground or age.
(ii) the complainant has failed to establish the facts from which it may be presumed that he was subjected to victimisation from the respondent as defined under the Acts.
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Peter Healy
26 October 2016