Complainant

Respondent

Parties

Nedas  Juknevicius

Bettystown Leisure Ltd t/a Integral Fitness and Leisure

Representatives

Self-Represented

Company Senior Manager supported by other staff witnesses.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00060240-001

24/11/2023

The issue in dispute was the claim of Victimisation against a Gym by the Complainant on the basis that his application to renew his Membership had been refused in September 2023. The Complainant had raised issues regarding the behavior of an Instructor towards the Complainant’s wife in March 2023 which in the view of the Complainant had never been satisfactorily resolved.

A compliant of Discrimination on Race grounds was withdrawn at the Hearing.

The Gym Management resolutely denied all issues. The Case had been fully investigated and no issues had been found. The behavior of the Complainant, in his pursuit of the March issue, had been unacceptable. They were well within their rights to decline to renew his membership.

CCTV Evidence

Considerable weight was placed by the Complainant on CCTV footage that he offered to make available. He stated that it had been quite difficult to secure it from the Respondents.

Having heard the Oral Testimony from a large number of witnesses, given under Oath and Affirmation, the Adjudicator came to the view that while possibly interesting it would not add materially to the Victimisation case. He declined to use it in additional evidence post the Hearing.

The Complainant gave extensive Oral Testimony supported by a lengthy Written Submission.

The Complainant’s wife had attended the Gym on or about the 27th March 2023 for an Exercise class. During the Class the Instructor, Mr B, had very inappropriately touched his wife and made her feel very psychologically uncomfortable. On the following morning, the 28th March, the Complainant had visited the Gym to raise a complaint regarding the Instructor. A verbal exchange that became quite angry, with some very strong language, had followed with Mr B. Matters calmed somewhat when Mr J, another Instructor had intervened and effectively physically separated the Parties. The Complainant then made a formal written complaint to the Gym Management regarding Instructor Mr B. This was investigated and a reply came on the 17th April 2024. The Respondent Reply was completely unsatisfactory to the Complainant as regards the behaviour of instructor, Mr B.

Form ES1 was issued, and reply received on Form ES2.

Further exchanges of correspondence/e mails, primarily concerned the CCTV footage from the Gym, followed over the Summer. The Complainant continued using the Gym, without incident, until his membership expired at the beginning of May.

On or about the 25th September 2023 the Complainant returned to the Gym to renew his membership. At the reception the Receptionist told him she could not renew his membership and he was to contact Mr BK, the Gym Manager. Exchanges followed with Mr BK but the final position from the Gym was that the Complainant was “No longer welcome as a member at any of our facilities”.

This was allegedly based on a completely false allegation that the Complainant had been unacceptably verbally abusive to staff on the 28th March and had followed this with very aggressive behaviour on the 25th September.

The Complainant strongly contested this and sought to have the CCTV footage introduced, post the Hearing, to substantiate his case that he had not been abusive and that the initial behaviour of Mr B, the Instructor had crossed the line as regards acceptability for a female trainee/class participant.

The Respondent gave an Oral Testimony from several witnesses supported by a Written submission. Principal spokesperson was Mr BU, a Senior Group Manager

A Complaint had been received from the Complainant on the 28th March 2023 regarding a Fitness Class, incident involving Instructor, Mr B. It had been thoroughly investigated. The Investigation had been assisted by professional advice from Peninsula HR Business Services. Nothing improper or inappropriate had been found and the Investigation was closed. The result was communicated to the Complainant.

However, extensive evidence was given regarding the exchanges between the Parties on the morning of the 28th March. 2023. It was stated that the Complainant had publicly loudly labelled the Instructor, Mr B, with a most inappropriate and offensive term. The Instructor, Mr B, had replied in an angry fashion and threaten to physically harm the Complaint if he did not immediately leave the Gym. It was fortunate that Mr J, another Instructor, happened to be passing and intervened to calm matters. The Respondent accepted that Mr B, in his verbal reply to the Complainant had used threatening language but, in his mitigation, it was stated that he had been severely provoked.

The Respondent had taken the view that the approach of the Complainant and the strong language used were unacceptable in the Gym and had decided not to renew his membership once it expired in May. Oral Witness evidence was given by Mr J, Instructor and Ms W, Receptionist in March.

In September the Complainant had returned to the Gym to renew his membership.  The Staff member on duty at reception, Ms H, had declined the renewal and directed the Complainant to the Gym Manager. Robust exchanges had followed which although not involving strong language had further convinced the Respondent that the Complainant was not welcome to return.

Oral Evidence, of the very tense incidents, was given by the staff on reception on both the March and September dates. Instructor, Mr J, also gave an oral testimony.

In summary the Respondent stated that they had fully and professionally investigated the March Exercise Class complaints. Nothing untoward had been found. Considerable evidence and cross examination took place at the Hearing regarding the Reception incidents in March and September.

It was the Respondent’s perfectly legitimate view, based on the evidence from staff, that they did not wish to renew the Complainant’s Gym membership. There was nothing discriminatory on any ground in the Equal Status Act, 2000 in their actions. A complaint of victimisation simply could not be sustained.

Considerable cross examination of witnesses by the Complainant took place but served to largely reinforce positions already adopted.

3:1        Legal Discussion: The Discriminatory Grounds, Victimisation and the Equal Status Act,2000 and the Burden of Proof Section 38 A of the Equal Status Act,2000.

Burden of proof.

38A.—(1) 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the Respondent to prove the contrary.

Under the Act “Prohibited conduct” is essentially set out in Section 3 – the Grounds cited are Gender, Civil Status, Family Status, Sexual Orientation, Religious Belief, Age, Disability, Race, Membership of the Travelling Community, HAP status and Victimisation.

Victimisation is set out in Section 3, Subsection 2, (j)

that one—

(i) has in good faith applied for any determination or redress provided for in Part II or III,

(ii) has attended as a witness before the Authority, the adjudication officer or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),

and the other has not (the “victimisation ground”).

In Plain English the positon is that for a victimisation complaint to be established there had to have been Discrimination as set out in Section 3(1) (a)

1) For the purposes of this Act discrimination shall be taken to occur—

(a) 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) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

The complaint here is that the Complainant was victimised by a non-renewal of his Gym membership because he had brought proceedings such as the issue of a ES1 form in relation to the alleged inappropriate behaviour of the Instructor, Mr B, towards his wife in March 2023.

The Respondent arguments are that the Complainant behaved in a quite out of order fashion at the Reception Desk on the 28th March, augmented by his behaviours on the 25th September and thereby gave the Respondent a legitimate basis, completely outside of any Discriminatory Grounds, to refuse to renew his membership.

However, legal matters notwithstanding, all cases rest on their evidence both written and from oral testimony. This has to be examined below.

3:2        Examination of the Evidence, Written and Oral Testimony from Witnesses.

(It has to be noted that all Witnesses gave Evidence under Sworn Oath/Affirmation and had been cautioned on the dangers of Perjury.)

 It is necessary to take matters in some sequential order

 3:2(1)        The Exercise Class on or about the 27th March and follow up Respondent Investigation.

The Complainant alleged that Mr B, the Instructor had physically touched the Complainant’s wife in most unprofessional manner during the class and seriously upset her.

This formed the basis of his first complaint. It was investigated by the Gym Management, under the guidance of Peninsula HR Services, and no inappropriate behaviours were found to have occurred between Instructor, Mr B and the Complainant’s wife. This was reported on in the Oral testimony from the Gym Manager, Mr BK.  He presented as a competent professional witness and was under Affirmation. There did not appear, from his evidence of the Investigation, to have been any Discriminatory acts or suggestions of Sexual Harassment of the Complainant’s wife in the Gym Class. The Complainant’s wife was not present to give possible alternative evidence to the Hearing.

3:2(2)        The Reception Incidents on or about the 28th March 2023.

Evidence here was contested by both Parties. However, it was clear that a very derogatory label, “a F* Pvt* was publicly attached to the Instructor, Mr B, by the Complainat. The Instructor replied that he would do “serious physical harm” to the Complainant. Matters got very heated and were saved only by the timely intervention of passing Instructor, Mr. J, who separated both Parties. Evidence was given by the Receptionist, Ms W, as to the heated nature of the incident.

 Quite clearly it was a borderline serious public brawl by two very heated persons.  The initial touch paper was undoubtedly the very public “F*Pvt* remark from the Complainant although he maintained that it was taken out of context.

3:2(3)       Matters over the Summer of 2023.

The Complainant sought CCTV Footage from the Gym and issued a ES1 Form. Various e mail communications followed between Mr BU and the Complainant in this regard, The Complainant stated that he had decided, over the Summer, to let matters rest. The Manger Mr, BU was also keen to, equally, let matters rest.

3:2 (4)        The Incidents of the 25th of September – Non / Renewal of Membership

The Oral testimony in relation to these incidents was somewhat contested. It was clear however that the Complainant was quite annoyed by the non-renewal and made this publicly plain.  The Oral Testimony of the Receptionist described a challenging situation at the Reception.

3:2(5)        Consideration of Respondent Arguments.

The Respondent case was that the Complainant had, by his verbal outbursts and strong language name calling of the Instructor on or about the 28th March, demonstrated that he was an individual they did not wish to have in the Gym. It was a Private Members Club, and they had the absolute right, subject to all legal restrictions regarding Discrimination etc, to accept or decline members. They were happy that the investigation of the Exercise Class issues in March had, with the oversight from Peninsula, not shown any Discrimination or as was being suggested inappropriate Sexual overtones.

3:3         Adjudication Conclusions

Having reviewed all the evidence, especially the Oral testimony for the Witnesses, it was very hard to see any firm grounds (examining all 10 grounds as set out in the Act) for a Discrimination case.

The incidents of the 28th March 2023 were decidedly unpleasant. The Complainant use of the term “F* Pvt* loudly and in public towards a Staff member was unacceptable. The Instructor’s reply that he would do “serious physical harm” to the Complainant was equally unacceptable even allowing for alleged provocation.

In view of all the Oral testimony the Adjudication view has to be that as No Discrimination could be proved, (following Section 38A, Burden of Proof requirements as set out above.) 

A Public Brawl or the next best thing to it, between two Individuals is not in itself Discriminatory under the Equal Status Act,2000 particularly as none of the stated 10 Grounds for Discrimination (Section 3) appear to have been breached.

Victimisation under the ES Act of 2000, for issuing a PS1 form could not follow.

The Gym was within its rights to decline a Membership Renewal based on the incidents of the 27th March, a decision reinforced, in their view, by the incidents of the 25th September.

Accordingly, in overall conclusion, the complaint under the Equal Status Act,2000, cannot be seen to be legally Properly Founded and has to be deemed Not to Succeed.

Gym Membership non-renewal, Victimisation.