ADJ-00024885

Complainant

Respondent

Parties

Customer 1

Gym

Representatives

Denis Molloy Denis M. Molloy Solicitors

Charlie Gilmartin Gilmartin & Murphy Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00031445-001

08/10/2019

There were complaints from two Complainants against the same Respondent arising from the same issue, that is to say a refusal to accept the Complainants into membership of the gym on June 24th, 2019. Both Complainants have the same name. While many of the essential features of the complaints are the same, a few facts differ in each case and so for the purposes of distinction it was agreed at the hearing that the Complainants would be described as Complainant 1 and Complainant 2. The complaint is one of discriminatory treatment , refusal of membership of the facility based on membership of the travelling community. This Decision is concerned with Complainant 1.

ADJ24887 is the reference for the complaint brought by Complainant 2.

The first issue raised on behalf of the Respondent was the failure to give notice of an intention to submit a complaint to the Workplace Relations Commission. In his response, the solicitor for the Complainant stated that his client had previously agreed to enter mediation and no point regarding compliance with the legislation was raised at that time rather the point was being raised for the first time at this hearing. It was submitted that there was no prejudice to the Respondents position in not notifying of an intention to make a complaint to the Workplace Relations Commission as the Respondent was notified of the complainant’s position in correspondence in July 2019.

On the substance of the complaint, it was submitted that Complainant 1 and 2 went to the gym for the first time on June 17th2019 and used the facilities paying the daily rate. They inquired about membership. On June 20th they both turned up and asked again about membership and gave their addresses. On June 21st Complainant 1 turned up but did not use the facilities. When he asked about membership again, he was told to wait until Monday when a named person who he was informed dealt with membership would be on duty. On Saturday June 22nd the two complainants went to the gym and used the facilities.

On Monday June 24th Complainant 1 went to the gym and the named person began to take their details. They were then told that capacity had been reached and that further members could not be accepted. This was the first time any issue of capacity was raised. Some other people turned up to use the facilities who were not members and they were told they could go ahead and use the facilities.   Complainant 1 was very upset at what had happened and rang Complainant 2 and then left the facility. Some time later he returned with Complainant 2 and they were refused entry by the respondent. He and others with him left.

Within half an hour Gardai were at his house telling him to stay away from the gym and to tell his friend the same. He said he would but different Gardai went to the house of Complainant 2 and told him the same thing. The situation was compounded by the visit of the Gardai. He regarded the refusal of membership as a disgrace. He did not accept the explanation given by the Respondent.

Complainant 1 and Complainant 2 gave evidence at the hearing.

At the outset of the hearing, the solicitor for the Respondent made a submission on the terms of section 21 of the Equal Status Act where it states that, prior to making a complaint, the complainant ‘shall give notice of an intention to make a complaint under the legislation to the Director General of the Workplace Relations Commission’. It was submitted that no such notice was served on the respondent prior to receiving notification of a complaint from the WRC. A decision by an Adjudication Officer- ADJ000-18262 was submitted at the hearing on the basis that in considering the same facts, the adjudicator in that case found that the complainant had not complied with the requirements of the legislation in terms of notification to the Respondent of the intention to make a complaint.

In response to the substance of the case, it was submitted that not much was in dispute up to June 24th . However, on Friday 21st when Complainant 1 asked about joining he was told about the named employee who dealt with membership and that there might be an issue about capacity and that he would have to wait until Monday. At that point the complainant he became aggressive and the Respondent asked him three times, are you really going to keep getting aggressive with me.

On June 24th Complainant 1 was told that capacity was reached, and various numbers were explained to him. He was told there was no room for new members on the day. He became irate and left ,returning 30 minutes later with others in vehicles. He became aggressive and the named person, seeing what was happening rang the Gardai. After Complainant 1 and the others left, the Gardai arrived. The respondent spoke of being fearful after what had occurred. She said there never was any policy of refusing members of the traveller community as members. Others in the community had availed of the facility. The issue was about numbers and they had reached a maximum figure of 130 including daily members that day. While that number would not be expected to attend on the one day it was the capacity figure they applied. On Friday the number was 126 and other members came in over the weekend as people booked on line. The four people who came in that day and were allowed to use the facilities on June 24th had booked in before they arrived on the daily rate basis.

The named other person gave evidence at the hearing as did the Respondent.

I have decided to exercise my discretion to anonymise the parties.

At the end of the hearing, the representative of the Respondent referred to an agreement between the parties to enter mediation and referencing a recent telephone conversation with the Workplace Relations Commission. The representative stated that there may be an issue with the Director General given the responsibility to arrange mediation if agreed between the parties. In noting that this point was raised at the end and not prior to the commencement of the hearing, the parties were asked if they still wished to enter mediation. The parties declined on the basis that positions had been expressed at the hearing which made a mediated solution unlikely. The parties did agree that the matters in relation to the complaints were fully heard by the adjudicator and when asked, stated there was no objection to a decision being issued on that basis.

Preliminary Issue -Notification

The Respondent presented an Adjudication Officer Decision ADJ-00018262 03/05/2019. In that decision the terms of Section 21(2)(a) of the Equal Status Act 2000-2015 were considered by the Adjudication Officer in circumstances where neither an ESI Notification or a notification of intent to take a complaint under the Equal Status Act were served on the Respondent in advance of a referral of a complaint to the Director General of the Workplace Relations Commission.

The earlier Adjudicator Decision reads as follows:

“ before seeking redress under this section, the complainant-

(a) Shall, within 2 months after the prohibited conduct is alleged to have occurred ,or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months of the last such occurrence, notify the respondent in writing of-

(i) The nature of the allegation,

(ii)  The complainant’s intention , if not satisfied with the respondent’s response to the allegation, to seek redress under this Act.”

The Complainant did not submit the ESI notification form to the Respondent at any point. The Complainants solicitor did write to the hotel on 18 June 2018 following the incident which had taken place. I reviewed this letter to ascertain if it satisfied the notification requirement under Section 21(2). I must be satisfied that it sets out:

(iii) The complainant’s intention, if not satisfied with the respondent’s response to the allegations, to seek redress under this Act.

In examining the letter of 18 June 2018 and the second letter of 24 July 2018,it does provide details of the incident of 26 May 2018 and states the Complainants request an apology in relation to the matter and requests its proposals to provide compensation for the Complainants. However, it is crucially important to note that the letters do not make any reference to the Equal Status Acts or to seeking redress under the Equal Status Acts. The letter of 18 June 2018 only stated “appropriate proceedings without further notice to you” would be brought against the Respondent if they had not responded within 14 days. The Complainant and the Complainants solicitor had not completed the ES1.

I conclude that the letters of 18 June and 24 July 2018 do not amount to notification for the purposes of the Acts and do not meet the requirements of a notification as prescribed under Section 21(2).”

Under her decision in that case, the Adjudicator decided “ As the notification requirements set out in Section 21(2) of the Act were not fully complied with, I find that I have no jurisdiction to investigate or determine a decision.” End of text ADJ-00018262

In this current case, solicitors correspondence issued on behalf of the complainant dated 23rd July 2018 stated: ’our clients……have instructed us to take appropriate action against you unless, within ten days of this date, you furnish us with satisfactory proposals to recompense our clients for the insult and injury visited upon them by the denial of membership as compounded by the unwarranted visits from the gardai.” Solicitors for the Respondent replied on July 30th2019. A complaint was received from the complainant by the Workplace Relations Commission on 08/10/2019.

Form ES1 is a form which may be used for notifying Respondents of a complaint within the period specifed for in section 21 of the Equal Status Act as revised. On the complaint form submitted by Thomas Complainant 1 to the WRC, the question is asked: ’What date did you notify the person/service provider using the ES1 form. The Complainant completed that section with the response-’23/07/2019’ and again when asked:’ have you received a reply from the person/serviceprovider on the ES2 form’-the Yes answer is ticked with the date 30/07/2019’.

Neither answer reflects the fact that the Complainant did not issue   form ES1 to the Respondent and therefore neither he or his solicitor could have received a response on a form ES2. The dates entered on the complaint form to the WRC reflect the dates of correspondence to and from the Respondent ,and no more than that was provided to the Respondent until notified of a complaint under the legislation by the Workplace Relations Commission. At no stage prior to submitting the complaint to the Workplace Relations Commission did the Complainant notify the Respondent of an intention to pursue a complaint under the Equal Status Act 2000,as revised. In summary the Complainant could have notified the Respondent of an intention to take action under the Equal Status Acts in writing or by using the ES1, within the period specified by the legislation at section 21(2) but failed to do so in any format. The use of the term ‘appropriate action’ in correspondence is not deemed sufficient to comply with the notice requirements of the Equal Status Act at Section 21.

In summary I find no reasons to arrive at a different conclusion than that decided by the Adjudicator in the earlier decision ADJ-00018262.

As the notification requirements set out in Section 21(1) of the Equal Status Act 2000, as revised, were not fully complied with, I find that I have no jurisdiction to investigate or determine a decision in this case brought by Complainant 1.

Notification Requirements, Equal Status Act