Complainant

Respondent

Parties

Pierce Parker

Capital Estate Management Ltd T/A Times Hostel

Representatives

None

Ben O’Connor BL instructed by Cathal N. Young, O'Reilly & Co Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00035312-001

18/03/2020

The complainant asserts that he was discriminated against by the respondent hostel on grounds of race and gender. This included occasions when the respondent cleaned the dormitory while he was still in bed as well as telling him he cannot stay at the hostel anymore. The respondent denies the claim.

The complainant outlined that providing accommodation falls within the scope of section 6 of the Equal Status Act and this includes ceasing to provide services. He said that the ES1 form was served on the 28th February 2020 and he received the response was the 10th March 2020.

The complainant said that over the winter of 2019, he was homeless and staying at different hostels. The respondent hostel was near to where he works and was a 24-hour hostel. He had been staying there since 2016. He outlined that the staff became non-white over time and he then sensed hostility. There were multiple racial incidents directed against him, for example against the Chinese. In one incident, a group were using the computer and speaking in French and German. He mispronounced ‘Autriche’ while speaking in French and was mocked. He complained about this incident. He said that there were 12 incidents recorded in his journal and he forwarded them to the respondent. The racial incidents did not then merit being referred to the Workplace Relations Commission

The complainant said that because of these incidents, he stopped staying at the respondent in March 2019. Seven months later, he thought that things would have changed. He returned to the respondent on the 17th October 2019. One named staff member became agitated on seeing him. He was not let park his bike inside the building and had to lock it outside. His bike was then stolen and there was CCTV footage of this. He reported the incident to the Gardaí so that they could get the footage, but this was not provided to the investigating Garda in time. The respondent staff member seemed glad that the theft had happened, and the complainant thought that this was an ‘inside job’.

In respect of the January 2020 incident, the complainant said that people stormed into the dormitory and opened the windows and blinds. They asked him to get out. He thought he had overslept, and panicked, but it was only 9.30 am, so one hour before check-out. He thought that they were only asking him to get out as there were other guests in the dormitory. He later asked himself whether there was a racial or gender dimension to this. He emailed the receptionist, and the reply was that this would not happen again.

The complainant stayed again at the hostel on the 6th February 2020 and spoke with the receptionist about the earlier incident. He asked to be able to check out at the normal time. He said that this intervention had enraged the staff member and the other staff, so they had to retaliate. They told him that he was banned from the respondent, invoking the 14-day clause as a rule. The complainant knew this was racially motivated.

The complainant said that he had a happy experience in the other hostel owned by the respondent, where the staff were all white. They had, for example, put up a sign on his bed to ensure that he got the lower bunk. The complainant said that the respondent would have been more careful if he was a woman.

In cross-examination, the complainant was referred to a negative review he had posted online. He had said ‘I now refuse to stay at the hostel’. It was put to the complainant that he had not mentioned race in the online review; he replied that the review was a watered-down version, and that the respondent deleted his reference to race. The complainant was asked why he returned to the hostel in February 2020 when he had had such a bad experience earlier; he replied that he was homeless so made a couple of reservations. In respect of the bike, the complainant said that the email from the Garda about the CCTV not being available was sent on the 10th June 2020 and that the bike had been stolen months before. It was put to the complainant that he was not told to leave the dormitory and that it was cleaned around him; he replied that they asked him to leave the dormitory and they should have waited for him to leave. He may have forgotten to include this in the review.

In closing, the complainant said that the respondent’s defence was that he was over-sensitive. He said that this case was not about the 14-day rule and it was retaliation because of his gender and race. He said that he was excluded because of his race

The respondent confirmed its correct legal name. It outlined that it had a 14-day rule as it was a backpacker hostel, so a guest could only stay for a maximum of 14 nights. There were complaints from staff about the complainant, especially around the bike. CCTV is retained for 30 days. A bed is cleaned after the guest has left and they try to stay as quiet as possible. The respondent did not want the complainant to return to the hostel as there were too many complaints about him.

In cross-examination, the director said that it was not normal to ask people to leave the dormitory before check-out and this did not happen in this case. He did not recall any racial complaint made by the complainant, who was treated the same as everyone else staying at the hostel. The respondent applied the same 14-day rule to everyone and there are no exceptions.

The cleaning manager outlined that she has worked for the respondent since March 2017. She agreed that sometimes the cleaning staff would enter a dormitory before 10.30am, for example if guests had already checked out. They might enter to change sheets but would do so as quietly as possible. Guests were never asked to leave the dormitory, including the many times when the complainant stayed. He might leave to have breakfast and return later. The staff are from around the world. She had never heard any racial discrimination and the online reviews were very positive about staff. She confirmed that she was present in the dormitory during the January 2020 incident.

It was put to the cleaning manager that it had been harsh to ban someone for asking that cleaning staff not enter the dormitory; she replied that there were many incidents with the complainant when he was not charged a late fee. She described the first occasion she met the complainant. This was when she was checking in a large group and she had asked him for identification. The complainant became upset as he had not been recognised as a regular guest. She outlined that the complainant received special treatment for example immediate check in, late check out, being assigned particular beds and the placing of a sign. There were occasions when the respondent had to change beds and the complainant always showed that he was upset. She said that the staff were afraid as he was rude.

In closing, it was submitted that the complainant has not established a prima facie case of discrimination. It submitted that there had been a long history of incidents which came to a head on in January 2020. There had been other guests in the dormitory on this day. The complainant had stayed over 14 days, so the respondent implemented the policy. The respondent did not want the complainant’s business again, although it had since closed because of the Covid-19 pandemic.

The complaint is one of discrimination in respect of providing a service and providing accommodation and is made on grounds of gender and race. The complainant cites that he is a Chinese man and discriminated against on these grounds.

At the outset of the hearing, the respondent pointed out that the complaint form did not cite the correct name of the respondent company. I have, therefore, inserted the correct company name in this decision.

Burden of proof

Section 38A sets of the burden of proof in Equal Status complaints. This provides “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.”

The complainant is required to establish facts that may give rise to an inference of discrimination (the ‘prima facie’ case) and the burden of proof then shifts to the respondent to disprove the inference of discrimination. The initial burden on the complainant is a lower standard than that applicable in civil proceedings generally.

Application to the facts

The complainant notified the respondent of the events he says amount to discrimination by serving an ES1 form in February 2020. This relates to the events of the 12th February 2020. He asserts that the respondent refused to allow him to stay in the hostel anymore, on grounds that he had exceeded the 14-day rule. On a previous stay (21/22 January 2020), the complainant had been abruptly awoken by housekeeping staff cleaning the 10-bed dormitory. This occurred again on his subsequent stay (6th February 2020). He asserts that this is discrimination.

On the 14th February 2020, the parties exchanged emails regarding refunding later stays the complainant had booked. The respondent emailed ‘We are kindly asking you not to book with us anymore’, to which the complainant replied ‘No, I will not book with you again. Thank you!’ The complainant submitted his online reviews of the hostel, where he described the respondent as being ‘revanchist’ in invoking the 14-day rule in response to his critical comments.

Having reviewed the evidence, I find that the complainant has not proven facts of such significance that raise the inference of discrimination. It is true that the relationship between the complainant and respondent deteriorated. They asked him to no longer book accommodation with the hostel, formally invoking the 14-day rule. The complainant was unhappy that the respondent did not supply CCTV of his bike being stolen to the Gardaí. He was also unhappy that the dormitory was cleaned while he was still in bed. He referred generally to earlier incidents, but they preceded this complaint by over a year.

In assessing whether any of this was discriminatory, I note that the complainant said in online reviews that the respondent retaliated for his criticisms of the hostel. It is striking that there is no reference to his race or gender. I also note that managing stays in a backpacker hostel, for example by invoking a 14-day rule, or cleaning dormitories are part-and-parcel of running a hostel. It would take a fact of real significance to draw an inference of discrimination from such routine duties. I find that the complainant was not asked to leave the dormitory on the 22nd January. I note that the complainant’s email of the 26th January 2020 (in French at 20.34 hours) where he complains that housekeeping entered the dormitory but does not mention being told to leave the dormitory. There is nothing to suggest that the respondent not allowing the bike to be locked inside or how it responded to the subsequent unfortunate theft were linked to race or gender.

I note the cogent evidence of the director and the cleaning manager. They set out how they operate a professional and well-run business. They set out many examples of more favourable treatment afforded to the complainant, for example an immediate check in, late check out, being assigned particular beds and the placing of a sign. They also charted difficult interactions with the complainant, for example the cleaning manager’s very first dealing with the complainant.

It follows from the above findings that I decide that the complainant has not established a prima facie case of discrimination on grounds of race or gender.

CA-00035312-001

I decide that the complainant has not established a prima facie case of discrimination on grounds of race or gender.

Equal Status Act / discrimination in provision of accommodation

Prima facie burden of proof