Complainant

Respondent

Anonymised Parties

Complainant

Kildare Sports and Leisure Facilities Limited

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00010493-001

29/03/2017

This case concerns a complaint by the Complainant that she was discriminated against by the Respondent on the grounds of race contrary to Section 6(2)(h) of the Employment Equality Acts in relation to her conditions of employment and discriminatory dismissal. The Complainant also claims that she was subjected to harassment contrary to Section 14A on the grounds of his race.  

The Complainant, who is a Spanish national, has fifteen years’ experience working in the fitness industry and she commenced employment with the Respondent as a Gym Instructor on 30th May, 2016.

The Complainant’s duties involved the conducting of gym classes for members and attending to members in the gym. The Complainant claims that she performed to a high standard during the initial months of her employment and that she received many text messages from gym members attesting to her high level of performance.  

The Complainant claims that she was subjected to discrimination by the Respondent on the grounds of her race in relation to her conditions of employment. The Complainant claims that she was not afforded equal opportunities compared to other members of staff in relation to the teaching of specific gym classes to members.

The Complainant submitted that she was sent to participate in a number of training courses relevant to her duties during her period of employment including a “Body Attack” course in September, 2016. The Complainant submitted that she completed this course and passed the initial assessment stages but contends that she was not afforded an equal opportunity compared to other staff members to practice teaching the class as part of her duties.

The Complainant submitted that she was requested to deliver “Body Attack” classes at short notice on a number of occasions in December, 2016 and that she received complaints and was subjected to harassment from club members concerning her ability to properly conduct the classes. She contends that the comments directed by the customers towards her were derogatory and that one customer indicated that she “was not doing the class with that bitch”. The Complainant contends that the complaints made by the customers were racially motivated on the grounds of her ethnic origins and colour. The Complainant made a complaint to her Manager, Mr. A, in December, 2016 in relation to the treatment by the members but she claims that the Respondent failed to take any action in relation the matter.

The Complainant submitted that she experienced further discriminatory treatment in her employment following the appointment of a new Supervisor, Mr. B, in January, 2017. The Complainant claims that Mr. B refused to converse with her because of her race and also denied her equal opportunities in the workplace compared to her Irish colleagues. The Complainant claims that shortly after the new Supervisor commenced working with the Respondent, he made racist comments about Travellers and Gypsies in her presence. The Complainant contends that these comments were aimed as a personal attack at her on account of her ethnic origins.

The Complainant also claims that she was subjected to discriminatory treatment by Mr. B in relation to denigrating comments which he posted about her on a staff WhatsApp group conversation in relation to a gym class.

The Complainant submitted that she raised these issues in relation to the discriminatory treatment and harassment with her Manager, Mr. A, at a meeting on 6th March, 2017. However, she claims that Mr. A failed to address any of these issues and instead she was summoned to a meeting by him a week later on 13th March, 2017 and informed of her dismissal with immediate effect. The Complainant claims that the Respondent indicated in the dismissal letter that her employment was being terminated as a result of performance and timekeeping issues. However, she contends that the Respondent did not raise any such issues with her during her period of employment.

The Complainant appealed the dismissal and her appeal was heard on 24th March, 2017 by Mr. C, the General Manager of one of the Respondent’s other leisure facilities. The Complainant contends that Mr. C was very discourteous towards her during the appeal and sought to challenge her level of professionalism in the job. The Complainant’s appeal was not successful and her dismissal was subsequently upheld by Mr. A.

The Complainant contends that she was discriminatorily dismissed on the grounds of her race and ethnic origins.

The Respondent operates leisure facilities across three separate sites and provides a range of services including swimming pools, fitness classes, gyms, and astro-turf pitches.

The Complainant commenced employment with the Respondent as a Gym Instructor on 30th May, 2016 and was dismissed due to poor performance on 13th March, 2017. The Respondent submitted that a major role of Gym Instructor is to conduct gym classes for members. In this respect, the Respondent received numerous complaints about the Complainant’s performance in these classes. The Respondent adduced evidence that a number of customers completed feedback forms which were highly critical of the Complainant’s performance and in particular highlighted that her classes were lacking structure, that she did not know the routines, that she was not motivating participants and that the classes ended early.

The Respondent submitted that following the receipt of these feedback forms the Complainant wrote an e-mail on 20th December, 2016 to members of the Respondent’s management team alleging that the feedback given by these members was racially motivated. The Respondent submitted that poor performance is not a trait specific to the Complainant’s race, colour, nationality or ethnic origins and that she had no basis for accusing these members of racism other than the fact that she is of a different nationality, that she did not appreciate negative feedback about her performance and that she erroneously drew a nexus between the two.

In January, 2017, the Respondent instructed a new Supervisor, Mr. B, to conduct quality assessments of gym classes conducted by all instructors and to give feedback in respect of class set up, music choice, volume, safety, structure, motivation and overall class quality. The Respondent submitted that all instructors received feedback, including constructive/negative feedback, and all instructors took this feedback in the spirit in which it was intended, except the Complainant. The Respondent adduced evidence that the Complainant’s response to this feedback was that her performance was above reproach. The Complainant subsequently labelled her Supervisor, in her e-mail of appeal regarding her dismissal dated 22nd March, 2017, as being “clearly a racist person” and goes on to refer to him as “our new racist manager”. The Respondent submitted that the Complainant formed this view of her Supervisor based on unsubstantiated allegations that he made derogatory comments about members of the Traveller community which are denied.

The Respondent submitted that the complaints of racism made by the Complainant against two gym members and her Supervisor were dealt with by her Manager at the material time of the complaints. In relation to the complaints against the two gym members after they had submitted negative feedback about her classes, the Complainant’s Manager met with her in December, 2016 and reviewed the complaints but could find no evidence of racism. The Complainant’s Manager also dealt with the complaint of racism made against her Supervisor in February, 2017 and informed the Complainant that she could have the matter investigated in accordance with the Respondent’s Personal Harassment Policy and Procedure. The Respondent submitted that the company has detailed procedures in place in this policy in relation to bullying and harassment in the workplace and that the Complainant was fully aware of the existence of this policy. However, the Complainant did not subsequently pursue a complaint against her Supervisor or invoke the internal Personal Harassment Policy and Procedures in relation to this matter.

The Respondent submitted that members frequently cancelled their classes on the occasions where the Complainant was the Gym Instructor. It was also submitted that members would frequently call the gym and ask who the class instructor was and upon discovering that the Complainant was the instructor the member would then either cancel their attendance or request to be removed to a different class. The Respondent submitted that the Complainant’s poor performance and failure to take instruction and guidance in respect of same had the potential to damage the Respondent’s reputation in addition to having the potential to cause financial loss through lost customers.

The Respondent submitted that the Complainant repeatedly breached the implied duty to obey the lawful and reasonable orders of her employer when it came to improving the quality of her classes and in the context of performance assessments.

The Respondent submitted that the Complainant was also dismissed for the secondary reason of her persistent lateness and it was contended that she had 36 recorded incidents of lateness between 30th September, 2016 and 7th March, 2017. The Respondent submitted that the Complainant’s persistent lateness was indicative of her general poor attitude to her work.

The Respondent submitted that had the Complainant’s performance been at the requisite standard, or had she shown the slightest inclination to improve her performance and to take constructive feedback in respect of same on board and in the right spirit, that the Respondent would not have dismissed her from her employment. The Respondent submitted that the issue of lateness when combined with the Complainant’s poor performance and her unwillingness to take feedback on board in respect of her performance culminated in her dismissal.

The Respondent referred to the Disciplinary Procedures outlined in its Employee Handbook which specifies “We reserve the right to take into account an employee’s length of service and to vary the procedures accordingly. If you have a short amount of service, you may not be in receipt of any formal warnings before dismissal”. The Respondent submitted that employment tribunal bodies in the State have all outlined in the past that a Complainant’s length of service ought to be taken into account in accessing the appropriateness of disciplinary action. For example, in Tesco Ireland Limited -v- LD[1] the EAT, in finding an unfair dismissal, took into account the employee’s “8-year unblemished employment record”. The Respondent submitted that this can be contrasted with the Complainant who had just 10 months’ service which was very much blemished with incidents of poor performance and lateness.

The Respondent submitted that it was entirely reasonable for the company to terminate the employment relationship with the Complainant in circumstances where it had received complaints about her from customers and where she had unreasonably refused to take guidance from her supervisors in respect of improving her performance. The Respondent contends that had a person of different race, colour, nationality or ethnic or national origins had a similar level of poor performance and had a similar reaction to receiving feedback about their performance that such a hypothetical comparator would have been similarly dismissed.

The Complainant was afforded the opportunity to appeal her dismissal which was heard by the General Manager of another of the Respondent’s leisure facilities. The Complainant’s appeal hearing was held on 24th March, 2017 and the dismissal was upheld.

In summary, the Respondent denies that the Complainant was subjected to discrimination in relation to her conditions of employment, harassment or discriminatorily dismissed on the grounds of her race. The Respondent denies that the complaint’s dismissal was in any way attributable or linked to her race/nationality and submitted that had she been of any other race, and specifically if she had been Irish, that she would have been similarly dismissed due to poor performance.

The Respondent relied upon the following cases in support of its case, namely: Toker Developments -v- Grods[2], Mitchell -v- Southern Health Board[3], Melbury Developments -v- Artur Valpetters[4], Ruffley -v- The Board of Management of Saint Anne’s School[5], Berber -v- Dunnes Stores Limited[6] and Cashman -v- St. Patrick’s Hospital Cork C.E.S. Limited[7].

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her.   If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.   The Labour Court elaborated on the interpretation of Section 85A in the case of Melbury v. Valpeters[8] where it held that Section 85A:

"…. provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..”. Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows – “as between any 2 persons …. that they are of different race, colour, nationality or ethnic or national origins”.

The issues for consideration by me are (1) whether or not the Complainant was subjected to discriminatory treatment on the grounds of race in relation to her conditions of employment (2) whether or not the Complainant was subjected to harassment on the grounds of race contrary to Section 14A of the Acts and (3) whether or not the Respondent subjected the Complainant to discriminatory dismissal contrary to Section 8 of the Acts on the grounds of race. In reaching my decision I have taken into account all of the evidence, written and oral, submitted by the parties.

Conditions of Employment

The first issue that I must decide relates to the Complainant’s claim that she was subjected to discriminatory treatment on the grounds of race in relation to her conditions of employment. The Complainant gave evidence in relation to a number of different incidents during her period of employment which she contends were discriminatory against her on the grounds of her race, namely:

·         That she was denied equal opportunities in the workplace compared to other staff members in relation to the teaching of specific gym classes (i.e. the Body Attack class) to members.

·         That she was treated in a discriminatory manner by her Supervisor, Mr. B, on the basis that he ignored her and refused to converse with her in the workplace.

·         That she was treated in a discriminatory manner by her Supervisor, Mr. B, in relation to denigrating comments which he posted about her on a staff WhatsApp group conversation in relation to a gym class.

Having considered the evidence, I am satisfied that the Complainant has failed to establish facts from which it could be inferred that persons of a different nationality, race or ethnic origins were, or would have been treated more favourably than her in relation to these matters. The Complainant has failed to adduce any significant evidence to support her claims that the alleged treatment was discriminatory on the grounds claimed but rather has essentially relied upon supposition and assertion, unsupported by evidence, in support of these claims.

I have found the Respondent’s evidence in relation to these matters to be more compelling and I accept the Respondent’s evidence that the Complainant was afforded equal opportunities to all other gym instructors, including those of Irish origin, in relation to the teaching of gym classes such as the Body Attack class. I accept the Respondent’s evidence that all gym instructors were expected to practice and prepare for these classes in their own spare time following completion of the initial training course. I have not been presented with any evidence from which I could reasonably conclude that the Complainant was treated less favourably than any of the other instructors in terms of the Respondent’s requirements or expectations associated with the delivery of these classes.

I have also found the evidence of Mr. B to be more compelling on these issues and I accept his evidence that he did not treat the Complainant any differently or less favourably than other gym staff during her period of employment. I have also had sight of the screen shots of the WhattsApp conversation involving Mr. B and other gym staff which the Complainant contends was discriminatory against her. The conversation thread in this exchange centres around the use of microphones by staff members during gym classes. I have not found any evidence of any disparaging or discriminatory comments being directed at the Complainant during the course of this conversation.

Having regard to the foregoing, I find that the Complainant has failed to establish a prima facie case of discrimination on the grounds of race in relation to her conditions of employment. Accordingly, his element of her complaint fails.

Harassment

The Complainant has also claimed that she was subjected to harassment and bullying contrary to Section 14A of the Acts on a number of occasions during her period of employment with the Respondent.

“Harassment” is defined by section 14A(7) of the Acts which states: “references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds …. being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”. Section 14A(7)(b) further states that "such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material". For a complaint of harassment under the Employment Equality Acts to be made out, the Complainant must demonstrate a nexus between the alleged treatment and the discriminatory ground. For a complaint of harassment under the Employment Equality Acts to be made out, the Complainant must demonstrate a nexus between the alleged treatment and the discriminatory ground.

The Complainant has claimed that the alleged bullying and harassment related to the following incidents, namely:

·         That she was subjected to racist comments by customers after they submitted negative feedback about her classes.

·         That she was subjected to racist behaviour by her Supervisor, Mr. B, during her period of employment. In particular, the Complainant claims that Mr. B made racist comments about Travellers and Gypsies in her presence and she contends that these comments were aimed as a personal attack at her on account of her race and ethnic origins.

In relation to the alleged harassment by customers, I heard compelling and credible evidence from the Complainant’s Manager, Mr. A, in relation to the feedback and complaints which the Respondent received from a number of customers concerning the standard of the Complainant’s gym classes. I have had sight of the feedback comment cards completed by customers in relation to the standard of the Complainant’s gym classes. I accept that there were a number of complaints made by customers, both directly to management and by way of written feedback on comment cards, in relation to issues concerning the manner in which the Complainant performed her duties. However, I have not found any evidence that the comments or feedback from customers was racially motivated or that it related in any manner to the Complainant’s race, nationality or ethnic origins.

In relation to the alleged harassment by the Complainant’s Supervisor, Mr. B, I note that there was a conflict in the evidence between the parties in relation to this matter. I have found the evidence of Mr. B to be more compelling in relation to his interaction with the Complainant and the feedback that he provided in relation to the manner in which she conducted her gym classes. Whilst I note that Mr. B accepted that he had given both positive and negative feedback to the Complainant, and indeed the other gym instructors in relation to their performance, I have not found any evidence to suggest or substantiate the Complainant’s claim that he engaged in any form of unwanted or prohibited conduct which could be construed as harassment on the grounds of race within the meaning of Section 14A of the Acts.

I also accept the Respondent’s evidence that the Complainant’s Manager, Mr. A, reviewed the complaints of harassment when the alleged conduct was brought to his attention by the Complainant. I am satisfied that the Respondent has a detailed policy on Harassment and Bullying in the workplace and that this policy was brought to the attention of the Complainant by Mr. A in the context of the inquiry that he carried out in relation to this matter. I also accept that Mr. A made it clear to the Complainant that she could invoke a formal grievance in relation to the alleged harassment in accordance with the internal procedures. However, the Complainant did not pursue a complaint or invoke the Respondent’s Personal Harassment Policy and Procedures in relation to this matter.

Having regard to the evidence adduced, I am satisfied that the Complainant has not presented any evidence from which I could reasonably conclude that she was subjected to harassment on the ground of her race, nationality or ethnic origin contrary to Section 14A of the Acts. Accordingly, I find that the Complainant has failed to establish a prima facie case of harassment within the meaning of Section 14A of the Acts.

Discriminatory Dismissal

The final element of the complaint that I must decide relates to the Complainant’s claim that she was discriminatorily dismissed from her employment on the grounds of her race.

The fact of dismissal was not in dispute between the parties. However, the actual reasons and circumstances surrounding the Complainant’s dismissal was very much in dispute between the parties. The Complainant, on the one hand, claims that she had been performing to a high standard during her period of employment and she totally refutes the Respondent’s contention that she was dismissed as a result of performance related issues. The Respondent, on the other hand, denies that the Complainant’s dismissal was in any way attributable to her race and contends that her dismissal was wholly attributable to poor performance in her position as a gym instructor.

I heard direct evidence from both the Complainant’s Manager, Mr. A, and her immediate Supervisor, Mr. B at the oral hearing. In particular, I have found the evidence of Mr. A to be very compelling in relation to the performance related issues that arose in relation to the Complainant during her period of employment with the Respondent. I accept the Respondent’s evidence that there were several complaints made by customers in relation to the standard of the Complainant’s gym classes and that there were instances of classes being cancelled by customers on becoming aware that the Complainant was the instructor. I also accept the Respondent’s evidence that there were difficulties with the Complainant’s punctuality and that she had a significant number of lateness’s during her period of employment.

Having regard to the evidence adduced, I am satisfied that the Complainant was dismissed as a result of the performance related issues that arose during the course of her employment. I am not satisfied the Complainant has adduced any evidence from which I could reasonably conclude that her dismissal was in any way attributable to her nationality, race or ethnic origins or that a hypothetical Irish comparator would have been treated more favourably in similar circumstances.

The Complainant has also argued that the Respondent treated her in a discriminatory manner by failing to apply any proper procedures in relation to her dismissal. However, the issue for decision in this claim is whether or not the Complainant was discriminated against on the grounds of race in relation to dismissal. I do not have any jurisdiction in the context of the present complaint to decide on the unfairness or otherwise of the procedures applied in relation to her dismissal; the Complainant needs to prove that it was connected to her race.   The Labour Court has stated in the case of Mulleadys Ltd -v- Aidotas Gedrimas[9] that: "the Complainant has presented no evidence of racial discrimination to the Court. The Court is not satisfied that others of a different nationality to the Complainant were/would be treated any differently.   The Court has dealt with many cases where employers are accused of dismissing employees without recourse to appropriate disciplinary procedures and such cases are by no means confined to workers whose national origin is outside of Ireland".

As I have already stated, I am satisfied that the Complainant has not adduced any evidence to suggest that the Respondent would have treated other workers of a different nationality (including those of Irish origin) more favourably in terms of the manner in which her dismissal was effected. In the circumstances, I find therefore that the Complainant has failed to establish facts from which it could be inferred that that the termination of her employment was influenced in any way by her race, nationality or ethnic origins.   Accordingly, I find that the Complainant has failed to establish a prima facie case in relation to discriminatory dismissal.

Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts. I find that:

(i) the Respondent did not discriminate against the Complainant on the race ground pursuant to section 6(2) of the Acts in terms of her conditions of employment and contrary to section 8(1) of the Acts;

(ii) the Respondent did not discriminate against the Complainant on the race ground pursuant to section 6(2)(h) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts;

(ii) the Respondent did not subject the Complainant to harassment contrary to section 14A of the Acts.

Accordingly, I find in favour of the Respondent in this case.

Employment Equality Acts - discriminatory treatment - race - conditions of employment - harassment - discriminatory dismissal - failure to establish a prima facie case of discrimination