Complainant

Respondent

Anonymised Parties

A client of the respondent’s amusement arcade and betting casino

An amusement arcade & betting casino

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00011126-001

04/05/2017

The complainant works as a night manager in a city bed and breakfast. He explained that, as his family is in Bangladesh, he has a lot of time on his hands and for several years, he had been going to the amusement arcade. He said that often he had no money and he just sat at the roulette table, and other times he gambled. He said that it was a nice place to go, with free tea and coffee and good for meeting up with friends. All this came to an end in December 2016, when he won a large sum of money. He and his friends were ejected from the premises and they have not been permitted to return. The nature of his complaint was set out in his submission as follows:

“1. The complainant suffered discrimination and harassment when he was refused entry to the Respondent’s casino on the grounds of race, breaching the Equal Status Acts, as amended;

2. The complainant suffered unwanted racial verbal abuse from the Respondent company which had the effect of violating his dignity and creating a humiliating and offensive environment for the Complainant;

3. It is submitted that the Complainant was treated less favourably by the Respondent than someone else would be treated in the same circumstances, because of race including race, skin colour, nationality or ethnic origin.”

December 29th 2016 – Significant Win on the Roulette Wheel

On December 29th 2016, the complainant, his cousin and their friend spent a few hours playing roulette in the respondent’s premises. The complainant said that he put on a bet of €1,500 and he won €6,000. He explained that when a customer wins at the roulette wheel, a docket is printed out for insertion into the arcade’s cash machine and the winnings are paid out.   He said that dockets up to a value of €2,000 are paid out in this way and sums over €2,000 are paid out from the “cash box.” In effect, this is a cash office where the bet is validated and paid out by a member of staff.

Later in the hearing, the respondent clarified that the cash machine pays out up to €2,500 and not €2,000, but this fact is not material to the complaint.

Having picked up his docket for €6,000, the complainant said that he handed it in to the staff member in the cash box. The three men were then approached by the duty manager, who demanded to know who won the money. When the complainant identified himself as the winner, he said that the manager became abusive calling them “f…ing Asians,” “black people” and accused them of “robbing people.” While the complainant was told to wait, his cousin and their friend were told to get out of the premises. About 30 or 40 minutes later, the duty manager counted out €6,000 and gave it to the complainant. He said that as he was being escorted off the premises, the duty manager shouted at him and his friends telling them not to come back to the arcade. The complainant said that he was embarrassed and distressed by what happened.

The following day, December 30th, the complainant and his friend from India went back to the premises and asked to speak to the technical manager, who he knew for a few years. He said that he told this manager that they had won money and then they had been abused by the duty manager. They said the technical manager was friendly and permitted them to stay on the premises. The pair remained for about an hour and a half, with no issues.

December 31st – the Complainants are Barred from the Casino

The following day was December 31st and the complainant went back to the arcade with his friend. A security guard approached them and told them that they were barred. The complainant asked the security guard to call the technical manager who they had spoken to the day before and who had permitted them to stay. However, when he arrived on the scene, the technical manager said, “I’m sorry my friend, but you’re barred for two weeks.”   He said that when they asked for an explanation, none was given and they were told that they could come back in two or three weeks.

Two weeks later, on January 16th 2017, the complainant attempted to enter the casino again, this time in the company of his cousin. When they were stopped by a security guard, the general manager, whom they knew, approached them and told them that there were not allowed on the premises. At the hearing, the complainant said that when he went to shake hands with him the general manager held on to his wrist and led him outside. When he asked why they were being barred, the general manager said that he was not required to provide an explanation.

The complainant’s position is that by ejecting him from the casino, by preventing him from returning and by behaving in a rude and offensive manner on the evening that he won €6,000, the respondent has treated him less favourably than someone who is not an Asian person would be treated in the same circumstances.

Evidence of the Complainant

In his evidence, the complainant said that he was a regular customer at the casino and he was always treated well. He was upset that, after 12 years going to the place, the duty manager used words like “f…ing Asians” and accused him and his friends of “robbing people.”

In response to a question from the respondent’s solicitor, the complainant said that he earned €700 per week. When he was asked if he thought that placing a bet of €1,500 on a roulette wheel was a big risk, he said that he didn’t think it was a risk. He said that in the four weeks before December 29th, he won sums of €4,000, €5,000 and €6,000. In all, he said that he won about €20,000 on this machine.

When he was asked if he remembered the technical manager telling him to come back to speak to him in two or three weeks, he said that he interpreted him as saying they could come back in to the casino and resume playing in two or three weeks. He didn’t interpret what he said as “come back and talk to me.”

Evidence of the Complainant’s Cousin

The complainant’s cousin said that he works in a laundry from 7.00am until 2.00pm and he has been going to the casino for six or seven years. He said that they spend time there because it’s a nice place with free tea and coffee. He said he goes there to accompany his cousin and to try to get some of his winnings from him and to prevent him from gambling too much. He said that he “mostly loses.”

The witness explained the technicalities of betting on the roulette machine. He said that on the evening in question, December 29th, his cousin bet whatever money he had in his pocket, which turned out to be €1,500. He got the docket which confirmed that he won €6,000. When they validated the docket at the cash box, he said that the duty manager asked his cousin if he had won, saying, “is this your money?” When it was confirmed that the complainant had won the €6,000, he said that the manager told him and their friend to wait outside. He said that they went outside and waited for over half an hour. When the complainant came out, the manager followed him outside and said, “why are you standing here? You black people, robbing money.” The complainant’s cousin said that he felt “like he had done something wrong, like a criminal.”

After two weeks went by, the witness said that they went back to the casino and he waited outside to finish a cigarette while his cousin went inside. The next thing he noticed was his cousin being led outside by the general manager, who was holding on to his arm. He said that he approached the manager and said, “excuse me sir, we are not making any problem, I would like to know the reason.” In response, he said that the manager said that he didn’t have to give him a reason.

Around the beginning of February, the witness said that he returned to the casino on his own and he went in. He said he was approached by a security guard who showed him a photo of him, his cousin and their friend and told him that they were barred. He said that the security man was not abusive.

Evidence of the Complainant’s Friend

Having come to Ireland in 2010, the complainant’s friend said that he has completed a master’s degree in computer applications. He has been frequenting the casino for around four years and he met the two Bangladeshi cousins there. He corroborated the version of events given by the complainant and his cousin about the night of December 29th and its aftermath. When they presented the winning docket, he said that the duty manager asked him, “is this your money?” He wondered why he was asking him that question. He said that when they were asked to leave the casino, he was stressed to be left waiting on the street for 30 or 40 minutes. Having given him the €6,000, he said that the duty manager came out of the casino with the complainant and rudely dismissed them.   He said that he felt “like an animal” and that he would never been treated like that in his country.

The witness said that he was upset at what had happened the previous day, but when they returned on December 30th, he said that the technical manager was “very friendly and apologised for Mr (duty manager)” and they were allowed to stay. He said that the technical manager “gave us surety that he would look after us.” On the 31st however, he told them that there were “temporarily barred” for two or three weeks.

Case Law in Support of the Complainant’s Position

In her submission on behalf of the complainant, Ms Gaffney BL referred to three specific precedents which show that discrimination occurred in the provision of services.   The first was the case of Mr Maphosa v Dublin Bus, DEC-S2004-189. Mr Maphosa claimed that when he hailed a bus at a bus stop, the driver failed to stop because he is black. Apart from the bus driver, who denied the claim, there were no direct witnesses; however, based on the facts cited by the complainant, the equality officer found in his favour.

In the case of Sajjadi v The Turk’s Head, DEC-S2002-101, Mr Sajjadi, who is from Azerbaijan, brought a successful claim against The Turk’s Head pub when he was refused admission. He claimed that he was asked for proof of identity, when two Irish men were not subjected to the same scrutiny.

Finally, in the case of Sabherwal v ICTS (UK) Limited, DEC-S2008-037, Mr Sabherwal claimed that, as the only non-white person in a queue for check-in at Shannon Airport, he was subjected to a requirement for more evidence of identity than his fellow travellers. The respondent’s evidence was that Mr Sabherwal was asked for proof of address because he had a non-Irish passport. On this basis, the equality officer found that he had been discriminated against on the grounds of his nationality.

December 29th 2016 – Significant Win on the Roulette Wheel

The manager on duty on the evening of December 29th 2016 attended the hearing. He corroborated the evidence of the complainant with regard to the win of €6,000 on the roulette wheel. He said that he was informed by the staff member in the “cash box” that a docket had been submitted for a big win. While he was checking the docket, he noticed the complainant, his cousin and a friend standing nearby and he wasn’t sure who the actual winner was. He said he asked the complainant, “did you win?” The complainant said that he had put on the bet. The duty manager said, “I don’t think you won.” He said that he turned to the complainant’s cousin and their friend and asked them why they were standing there. He said that he felt that one of them, and not the complainant, had won the bet. He said that he asked them to leave and he went to check the docket against the information available from the machine. In evidence, this manager denied cursing at the complainant’s friends when he asked them to leave. He said that he spent about 30 to 45 minutes checking the machine and then counted out €6,000 and gave it to the complainant.

The manager said that he knows the complainant for about five years from coming to the amusement centre and he never had any problem with him. In the four or five weeks prior to the day in question, the manager said that the complainants won unusually large amounts, sums of €2,000, €4,000 and €5,000 totalling up to about €20,000. For this reason, he was suspicious that they knew something about how the roulette machine worked. Having handed over the winnings, the manager said that he walked outside with the complainant in an attempt, from any conversation between the three men, to find out if there was something untoward about how they had won the money. In the form ES2, he said that he got a sense that they might know something about how the machine worked.

The manager said that about 90% of the customers in the amusement arcade are not Irish and that he did not refer to the complainant and his friends as “f***ing Asians” nor did he say they were “robbing people” and he did not abuse them in any way. He said that if he was abusive in the way the complainant had described, they would have no customers. In cross-examination, the duty manager accepted that, in asking the three men to leave, he “was forceful,” but that he didn’t use any racist terms.

The duty manager said that the complainant’s friend is an intelligent man, with a qualification in computers. In his view, the complainant and his cousin were collaborating with this man and using his skill to win on the roulette wheel. He said that, on the evening in question, he asked them to leave, because, with the particularly large win coming after a series of significant wins, he felt that “they knew more than we do about the machine.”

He said that he knows the complainant for five years, and he had never asked him to leave before but, on this evening, with the particularly large win coming after a series of significant wins, he felt that “they knew more than we do about the machine.”

The technical manager said that he was also familiar with the complainant and his colleagues and that he never had any difficulties with them. On the morning of December 30th, when he arrived at work, a note had been left for him by the duty manager. The note said to give him a call about a large win the night before. Around 11.00am, the complainant and his friend came in and told him that they had been thrown out the night before, having collected €6,000 on a win on the roulette wheel. The technical manager said that he apologised for the fact that they were upset and the two friends stayed for a while in the casino. He said that he started looking at the CCTV footage of the roulette wheel the evening before and that he saw “things I didn’t like.”

 December 31st – the Complainants are Barred from the Casino

While it seems that there was no problem when the complainant and his friend went to the casino the day after the €6,000 win, when they arrived the next day, December 31st, a security guard told them that they were barred. The technical manager said that they asked to speak with him and he told them he was carrying out an investigation and that they should come back to speak to him in two or three weeks.

Having looked back at the CCTV footage of the roulette wheel on December 29th, the technical manager said that he then started to examine the dockets for the previous two weeks. As a result of his investigations, he concluded that, for the complainant and his friends, they had replaced chance with skill, and they were “beating the house.” The technical manager said that, if the complainant and his friends had come back to speak to him in two or three weeks, as he had asked them to do, he would have told them why they were barred. Instead, they returned with an expectation of being permitted to resume playing. The technical manager said that if they had asked to speak to him, he would have told them that the reason they were barred was because in his view, they had discovered how to play the roulette machine using skill rather than chance. As they now appeared to know how to “beat the machine,” they would not be permitted to use the facility again.

The Legislative Framework

Section 5(1) of the Equal Status Act 2000 – 2012 provides that:

“A person shall not discriminate in the disposing of goods to the public generally or to a section of the public, or in providing a service, whether the disposal or provision is for a consideration or otherwise and whether the service can be availed of only by a section of the public.”

One of the definitions of “service” defined in section 2(1) of the Act of 2000 is:

“(a) access to and the use of any place.”

In keeping with this legislation, the complainants have a right to access the amusement arcade of the respondent, without being harassed or discriminated against on any grounds. Their complaint specifically relates to discrimination on the ground of their race, colour, nationality or ethnic origin.

Section 38A of the Equality Act 2004, sets out the burden of proof in discrimination complaints:

“(1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

On this basis, where the complainant establishes that there are grounds for considering that discrimination has occurred, the burden of proof shifts to the respondent to show that on the balance of probabilities, discrimination has not occurred.

No Dispute about Certain Facts

Certain critical facts about this complaint are not in dispute:

1. The complainant and his friends were long-time customers of the respondent’s amusement arcade;

2. They were well known to the managers, with whom they appeared to have a friendly relationship;

3. Having been regulars for a number of years, in late November and into December 2016, the complainants won unusually large amounts on the roulette wheel, culminating in a win of €6,000 on December 29th;

4. On December 31st, when the technical manager began to uncover some evidence that the complainant was using an element of skill to place bets, he and his cousin and their friend were temporarily barred;

5. When they arrived at the casino on February 16th, they were informed that they were permanently barred.

From these facts, it is apparent that the complainant was barred because the managers considered that by observation and skill, he, in collaboration with his cousin and their friend, had achieved significantly higher winnings on the roulette wheel than is intended by a game of chance. If they were permitted to continue to use their skills in this way, they would consistently “beat the house” and this is not the business strategy of the enterprise.

Findings

At the hearing, it was notable that the relationship between the managers present and the complainants was respectful. The complainant and his friends referred to the managers as “Mr J” and “Mr P” and the managers addressed them on first-name terms. The complainant had been enjoying the facilities in the casino for 12 years and there was no evidence that there had ever been a disagreement between him and the management, apart from on the night of December 29th 2016, following the big win.

It is clear that the complainant was barred from the amusement arcade because he had an advantage in the manner in which he was placing bets on the roulette wheel. I find the evidence of the complainant that the respondent referred to him and his friends as “f***ing Asians” and “you black people, robbing people,” not credible. The manager and the complainant had been friendly for a number of years and there is no reason to find that, on the evening in question, the manager began to act in a racially discriminatory manner. Also, the fact that the complainant returned to the casino three times after December 29th, the day on which he alleges that he was subject to racial discrimination, undermines his assertion that he was treated in an abusive manner. The majority of customers in the respondent’s premises are not Irish and many are of Asian origin. From the facts set out above, I find that the complainant has not established grounds from which it may be presumed that discrimination has occurred.

Consideration of the Case Law Cited by the Complainant

I have considered the legal precedents cited by the complainant’s counsel in support of his claim of discrimination. In all three cases, (Maphosa v Dublin Bus, DEC-S2004-189, Sajjadi v The Turk’s Head, DEC-S2002-101 and Sabherwal v ICTS (UK) Limited, DEC-S2008-037) the complainants were not known to the respondents prior to the “discriminating incident.” In the case under consideration, the complainant was known to the respondent for many years, and there was no issue with his nationality. The findings in the cases adduced and the reasons that the equality officers reached a conclusion of discrimination do not support this complainant’s argument that he has been discriminated against.

Conclusion

It is my view that there is no basis for this complaint of discrimination on the grounds of race, colour, nationality or ethnic origin. The complainant was barred from the respondent’s premises because he no longer relied on chance to win bets and this was in contravention of the objective of the enterprise.

I do not accept the evidence of the complainant that he suffered racial abuse from a manager of the respondent, as, for 12 years previously, he attended the casino and was treated in a friendly and respectful manner. Also, following the night on which he alleges that he suffered abuse, the complainant returned to the arcade to play again. This is not consistent with someone who feels embarrassed and distressed, as he claims.  

Finally, it is my view that, if an Irish person had been discovered to be using their skills to achieve significant winnings on any game in the casino, they would have been barred. On this basis, the complainant has not been treated any less favourably than someone who is not of Asian origin.

I have decided, based on the facts and the evidence presented by both parties at the hearing, that there is no substance to this complaint of discrimination.   Therefore, the complaint fails.

Discrimination on the grounds of race, racial abuse