ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00036812

Parties:

	Complainant	Respondent
Parties	Colm Faherty	West Wood Club CLG Cathal Khan

	Complainant	Respondent
Anonymised Parties

Representatives

Peter Duff Solr.

Peter Duff and Co. Solicitors

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00048219-001	07/01/2022

Date of Adjudication Hearing: 22/02/2023

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure: In accordance with Section 21 of the Equal Status Act 2000 (as amended) an individual may seek redress in respect of any prohibited conduct that has been directed against him or her by referring a case to the Workplace Relations Commission. It is a condition precedent to bringing any such matter before the Workplace Relations Commission that the individual complainant shall have already notified the Respondent in writing (Form ES 1) of the nature of the allegation and the intention to seek such redress if not satisfied with the Respondent’s response. This Notice in writing shall be brought within two months of the said prohibited conduct or the last instance of same.

A Respondent may choose to reply with an explanation for the treatment by returning the attached ES 2 Form.

Pursuant to Section 25 of the Equal Status Act 2000 I have had the within matter referred to me by the Director General for the purpose of conducting an investigation into claims of discrimination and I have heard (where appropriate) interested parties and have considered any relevant documentation provided in advance of the hearing and in the course of the hearing. At the conclusion of any such investigation I am obliged to make a decision and, if I should find in favour of the Complainant, I shall provide for redress (s.25 (4)).

Generally, discrimination under this Act – per Section 3 - is taken to have occurred where a person is treated less favourably than another person is (or would be) treated in a comparable situation and by reason of any of the discriminatory grounds (as specified).

It is also noted that discrimination can occur where an apparently neutral provision would put such a person at a particular disadvantage compared with other persons unless the provision can be objectively justified by a legitimate aim. This is Indirect Discrimination and is covered in Section 3(1) (c).

Broadly, the Equal Status Act prohibits discrimination in the context of buying and selling goods from and to the public (or a section thereof) and also in the context of using and providing services available to the public (or a section thereof). The service is not necessarily being provided for consideration.

In relation to the applicable burden of proof, Section 38A of the Acts is applicable to all complaints of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which a discrimination can be inferred. It is only when such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination.

Under Section 27(1) of the Act, redress may be ordered where there has been a finding in favour of the Complainant. The Act allows for an Order for compensation (up to a maximum amount) for the effects of the prohibited conduct. The Adjudication Officer can direct that a person or persons take a specified course of action. The AO can also order that the service provider has to do something aimed at ensuring that similar discrimination does not happen again. For example, to take a specific course of action to upskill and train up staff. The maximum amount of compensation which can be awarded under the Equal Status Act is €15,000.00 (which is line with the maximum award available in District Court contract cases per Section 27(2). In assessing compensation, I can consider the effect that the discriminatory treatment has had on the Complainant.

Background:

This hearing was to be conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was to be conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

Had evidence been given it would have been in compliance with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came intoeffecton the 29th of July 2021 and which accommodates situations where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint. In such circumstances, an oath or an affirmation may be required to be administered to any person giving evidence before me. It is noted that the giving of false statements or evidence is an offence.

The Complaint herein was brough to the attention of the WRC on the 7th of January 2021.

Summary of Complainant’s Case:

The Complainant did not attend. I am satisfied that the Complainant was notified of the date, time and venue for this hearing by a letter sent from the WRC - dated the 26th of January 2023 - and sent to the address provided by the Complainant on the workplace relations complaint form.

From the Complaint form provided, I have discerned that the Complainant seeks to establish that he was discriminated against by the Respondent health and fitness club when staff in the said club requested that he wear a facemask (in response to Covid health guidelines) when he said he was exempt from doing so.

Summary of Respondent’s Case:

The Respondent had legal representation at this hearing. The evidence for the Respondent entity was to be given by the General Manager of the Health Club against which this Complaint was brought.

I understand that the Respondent intended defending the within complaint.

Findings and Conclusions:

The Complainant did not attend. I was provided with no evidence by the Complainant and no Prima Facie case was made. I am not satisfied that the Respondent engaged in the prohibited conduct complained of.

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

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

CA-00048219-001 - The Complainant did not attend. The Complaint fails as there is no evidence that the Respondent engaged in prohibited conduct.

Dated: 5th April 2023

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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