ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001797

Complaint for Resolution:

 A Customer   V. A Nightclub

Date of Adjudication Hearing: 05/07/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

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.

Complainant’s Submission and Presentation:

The complainant made a complaint to the Workplace Relations Commission on 9 February 2016 under the Equal Status Legislation .The complainant stated that he had been discriminated on race grounds on 8 November, 2015.

“Upon leaving X Nightclub, I was verbally abused by staff/agents of the respondent company with specific reference to my skin colour, including being called a “black cunt”.

The complainant lodged his ES1 form with the company by registered post on 4 January, 2016. At that time, he sought a response on the ES2 form, requested that the CCTV footage of the event be preserved and sought a copy of same. The complainant did not receive a response to this request.

The complainant is a Libyan National, who had worked for a subsidiary of the present company as a security man previously.

On the night of 8 November, 2015, the complainant attended the nightclub with his cousin visiting from Jordan. He met another man at the club and was socialising .He recognised a Turkish gentleman called Mr R and walked around the club. When he was preparing to go home, the complainant was approached by Mr A (security manager) and told to “get out, Black Cunt”. He was puzzled as he did not have anything to do with anyone there and was irate. What followed was a heated exchange of vigorous insults between, Mr A, Mr Mr Mc C and the complainant.

He contacted the Gardaí from his mobile phone to report the provocation while he was lawfully leaving the Building and was very upset. The complainant’s representative submitted that the company did not manage the episode. He submitted that the complainant only had the benefit of review of the CCTV and Body cameras at the actual hearing, not beforehand, as requested and it was clear from this that the complainant had been under surveillance by the security staff for an extended period before any intervention was made by them.

The complainant gave evidence that he arrived at the Nightclub before 11.30 pm. He had one drink .He was aware that Mr R, a Turkish man, another customer was in attendance and surrounded by 4-6 girls. The complainant submitted that he was approached from behind, by the security manager, Mr A, whom he knew, he was told by Mr A

“Don’t show your face here, black cxxx” He understood that he was being asked to leave the premises. There was approximately a 4 metre distance from the floor to the door.

This shocked the complainant as it was an unprovoked attack .He went outside and called 999. He was aware that 4 coloured people had also been refused entry to the premises on an earlier occasion and submitted that the Nightclub had an issue with coloured people.

He made a complaint and a statement to the Gardaí but did not follow it up.

During cross examination, the complainant accepted that he was admitted for free to the nightclub and was there for a three hour time span. He enjoyed the nightclub. The respondent’s representative confirmed that Mr R was in fact Italian and had originally called security for intervention with the man who was accompanying the complainant. It appeared there was an issue between a female customer and this man. The complainant was clear that he was totally unaware of this development.

The complainant denied having any issue with Nigerian people or that he had used the word “cunt “himself in the exchange between the agents of the club. He denied ever accosting the Managing Director of the company. He submitted that he was simply following up on a salary issue. He confirmed that he had worked with Mr A in a security company for a 38 week period without a problem. He hadn’t been at the Nightclub for 4 years.

The Complainant sought redress of compensation for the wrong done to him. He contended that he was not drunk, he was speaking to girls in a Nightclub and there was no reason for him to be singled out by the respondent in such a racist manner.

Respondent’s Submission and Presentation:

The respondent commenced the submission by seeking an adjournment on the grounds of not having two key witnesses available to them. They submitted that the respondent had changed legal teams and they were in the process of familiarising themselves with the file. The respondent categorically denied all claims levied against the company. The respondent also denied that the company was a “service provider “for the purposes of the Act .The present solicitor was on notice from 18 April, 2016.

In their opening statement, the respondent referred to the response forwarded to the ES1 form on 16 March 2016 by the first company of solicitors.

This constituted a contention that the complainant “ was responsible for racist comments in addition to threatening , abusive and intimidating behaviour directed at our clients, staff and security personnel” The response went on to make counter allegations further against the complainant based on alleged intimidation of patrons of the nightclub on the night in question .

In response to a request from the Adjudicator, the respondent took some time to prepare and exhibit a combination of internal CC TV footage (no audio) and some shots from a body camera worn by security staff from the episode in question on November 8, 2015. This covered Saturday night /Sunday morning.

The footage was introduced against a contextual backdrop advanced by the respondent. They received a report from a member of the security staff that three male customers of the nightclub were observed to be in an argument towards the end of the evening. These men were

The complainant

His friend who accompanied him at the club, Mr S

Mr R, a long term customer

Several security staff was involved on surveillance of the club and the argument was thought to be concerning two female customers, Mr S and the complainant.

The nightclub had a duty of care to the Patrons, especially women. The security manager made a mild intervention to avoid an escalation of the disagreement between the parties and accompanied both Mr S and the complainant towards the front door. The combined footage demonstrated a highly charged exchange of profanities between the complainant, security staff and the company Managing Director immediately in the aftermath of this. There was a several minute void in the footage .The respondent clarified that the incident highlighted by the complainant was a lot more expansive than the initial complaint to the WRC. All encounters happened in the passageway exiting the building and immediately outside the front door. The respondent asked the adjudicator to consider all footage shown as evidence.

The footage displayed

1 Antecedent event of security surveillance

2 Approach made by Security staff to two gentlemen within the Nightclub

3 A number of people placed outside the club in argument and physical contact

References were made to areas of origin in a negative way (Complainant)

References were made to racism (complainant)

References were made to Judaism (complainant)

References were made to Allah Akbar and Gadhafi (respondent)

The respondent submitted that the Gardaí eventually moved to walk the complainant down the street and away from the club.

Evidence of Mr A, Security Manager

Mr A was Head of Security at the respondent Nightclub. On November 8, he was on duty at the club door when he was approached by a security officer, who informed him that 3 male customers were arguing involving two female customers. Mr R had approached the security Officer to tell him this. Mr A took on an Observer role inside the club and noted that the complainant and Mr S were   circulating the club.

As the night drew to an end, the lights went up and he observed that the two females were approached by the complainant and Mr S . Mr A contended that both men were taunting Mr R, whose company the female customers were in. Mr A approached Mr S and asked to speak to him outside. Mr S approached the door and was followed by the complainant.

Mr A attempted to remind Mr S about previous conversations where he had been warned by security at the club. Mr S did not respond but the complainant became very aggressive, while standing at the door waving his finger at Mr A and other security staff. Mr A heard the complainant target abusive and racist comments towards him involving his wife, his area of habitation and, Irish citizenship. He also heard him become abusive towards Mr Mc C when he sought to explain the situation .Security staff stepped in between them as heads had met and Mr C was afraid of a Head Butt. The complainant was escorted up the street after a security officer called a Guard.

During cross examination, Mr A denied having a close relationship with the MD of the company outside of work. He confirmed that he had compiled a report of the incident in the Night Club roster and in the form of a three page report. He submitted both of those in evidence. Mr A admitted that there had been complaints in the past from customers regarding the complainant harassing women. He denied that he was friendly with Mr R, the original complainant on the night of Nov 8^th .He confirmed that he had established the facts of his unease with the complainant and his companion at the door of the nightclub .Mr A confirmed that Mr R was not recorded in the footage as he remained in the club until after 3 am. Mr A explained that he had felt very hurt at the allegations of racism directed towards him by the complainant. He never used the word “Black” preferring to use the descriptive term of “coloured people”. He denied any racism towards the complainant.

Evidence of Mr McC , Managing Director

Mr Mc C gave evidence that he oversaw 11 Pubs and was one of the driving forces on Multiculturism in the city area. He recalled the night of Nov 8^th where he, himself was in attendance. There was a lot of shouting and this was not conducive for the patrons still in the environs of the nightclub.

He recalled that the complainant had approached him in the street around 2011, when he had worked for the business previously seeking his P45. Which had been delayed? Mr Mc C confirmed that the Nightclub was a licensed premise.

He recalled that the complainant had previously informed the staff that he had been a Libyan Leaders body guard and this name had stayed with him as a nickname. It was not a racist slur .He recalled hearing references from the complainant about his boxing past from which he had retired .On cross examination; he denied that he had escalated the fight at the doorway. He received feedback from Mr A and was in earshot of the aggression. He submitted that he was entitled to clear the aggression from his business.

Mr Mc C submitted that the business had a mission statement on multiculturism at the business. He denied racism and stated that he was not Jewish in response to the negative comments made towards him by the complainant.

In conclusion, the respondent representative stated that the company had done nothing wrong towards the complainant. They had defended their business and their customers when an argument occurred between the complainant and the staff of the Nightclub. Racism towards the complainant was denied.

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.

Findings and Conclusions of the Equality Officer

Section 38A(1) of the Equal Status Acts 2000-2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely on in relation to the allegation of discriminatory treatment. It is only where such a prime facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

The issue in this case is the brevity associated with the presiding complaint:

“Upon Leaving X Nightclub, I was verbally abused by staff/agents of the respondent company with specific reference to my skin colour, including being called a black cunt “

This was not expanded on in the ES1 form. In addition, the response received to the ES1 on 16 March 2016, was short on actual detail. Neither party submitted a written submission, both preferring to rely on oral submissions. I accept these respective positions.

The respondent sought an adjournment due to lack of availability of witnesses. I refused this, given the presence of two witnesses to the night in question. In addition, I found that the respondent representative was on notice of the claim since April, which I judged to be a sufficient lead in time frame to submit a defence to the claim.

At the commencement of the hearing, I requested that the respondent exhibit any footage of the event of the November 8^th. I needed to establish the precise location of the events complained of. I was very conscious that the complainant had requested this information on his ES1 form and this had not been shared with him or commented on in the company response dated 16 March, 2016

I am grateful to the respondent for placing this evidence before the hearing, albeit without a footage of the key moment complained of.

The complaint of discrimination made by the complainant refers to “upon leaving X nightclub…….”

I heard evidence from the respondent that the Nightclub was in fact a licensed premises. This was not contested by the complainant representative. I asked both parties for their submissions on the jurisdictional point of “on or at the point of entry to licensed premises “as provided for in S.19 of the Intoxicating Liquor Act, 2003. The respondent submitted that the premises were licensed. The complainant submitted that it was important for the complainant’s case to be heard.

I have given consideration to all submissions made on this point. I find that in light of the CC TV/Body Camera footage shown at the hearing which validated the events complained of as taking place on the egress corridor and at the point of entry to the Nightclub, I conclude that the events complained of fall under the jurisdiction of the District Court in accordance with S19 of the Intoxicating Liquor Act, 2003, in particular

(11) (A) The Act of 2000 shall cease to apply in relation to prohibited conduct occurring on, or at the point of entry to, licensed premises on or after the commencement of this section.

This section of the Act commenced by statutory instrument in September 2003.

In Patrick and Tony Dunne v Planet Health Club DEC-S2011-018, the Equality Officer found a complaint regarding termination of Gym membership on licensed premises to be inadmissible. I find that this is an analogous case and is distinguished from Mr Peter McGuffin and Mr Enda Harte v Eyre Square Hotel DEC-S2008-051, where the Equality Officer was satisfied that “that the incident complained of did not take place in, or at the point of entry to a licensed premises “and proceeded to decide the case under the Equal Status Acts.

Legislation involved and requirements of legislation:

Section 19 of the Intoxicating Liquor Act, 2003 was commenced by S.I. 362 on 29 September, 2003.