Complainant

Respondent

Parties

Pierce  Parker

An Employee trading as Ucd Campus Sports & Leisure Ltd

Representatives

Barra Faughnan BL instructed by Mason Hayes & Curran

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00051377-001

27/06/2022

The Complainant was a member of the gym in which the Respondent worked as manager.

The Complainant’s gym membership was terminated on the 23rd of May 2022. This decision was communicated to the Complainant by the Respondent.  The Complainant submitted a complaint under the equal status act alleging that he was discriminated against on the basis of family status, age, race and gender.

The Complainant made extensive oral and written submissions.  

He gave evidence under affirmation.

He is an avid swimmer and has been a member of sports and fitness centre since 2014. Up until the pandemic he spent up to 3-4 hours a day in UCD fitness centre swimming. Swimming became central to his life.

When the pandemic ended and UCD reopened he felt there was a lot of hostility towards him.  He referred to the matters which were subject to a separate WRC case, ADJ-00036331. He believes this matter is a continuum of the discrimination he says he experienced in that matter.

The swimming pool reopened in September 2021. He believed that the lifeguards were noticeably hostile against him.

On 23rd of May 2022 there were few people at the pool. He was about to go home. He was stopped by the Respondent and told that his membership was terminated.

He was shocked he didn’t know what to do. He was planning to come back there that day. He asked why and she responded that she couldn’t say why. He knew it was racially motivated. There can be no other reason.

Went back home and tried to process what happened. There had been several emails exchanged between him and a Mr Gary Ennis who also worked for the sports centre. He was told that there had been a complaint against him by parents of children who had taken lessons at swimming pool. He asked for details of complaints. He received no reply, so he made FOI requests. He was told that the sports centre didn’t come under the jurisdiction of FOI as it’s separate from UCD.

That last complaint was put in against him on the 6th of May 2022. The Complainant queries why it took so long for the Respondent to act. If the complaint is serious enough to trigger his membership being cancelled. He reviewed his journals from the time on realised he hadn’t been in on the 6th of May. Mr Ennis told him that the complaint came in that day. He felt this was then changing their story.

These complaints had been made available, in redacted form, by the Respondent in their submissions. The Complainant referred to these complaints when giving evidence. 

The first complaint arose on the 11th of November 2021. For completeness I have inserted the text of the complaint into the decision.

Hi Sorry for bothering you when I know you must be as usual ran off your feet with everything. I just wanted to drop you a quick email just outlining something that happened in the pool recently.

I don't expect anything to be done about this and I appreciate that there's probably nothing that can be done but I think it's better just to have highlighted it in case it might be of help down the line. I also talked to (redacted) about it on Monday evening. As you probably know we spend a lot of time in the pool particularly (redacted). (redacted).

Over the last seven years my husband in particular and me in later times always notice the same person-a man who would be in pool at the same time nearly always and would always wave and try to interact with (redacted).

 We would always ignore and tell to do the same as we simply didn't know him. I always thought it was a little unusual that he stayed always in the open area of pool but we never interacted or said anything to him. So basically we would and tell our children to always ignore him. (redacted) is always supervised as in an adult is with her at all times but last week she was in the pre shower area after a lesson (redacted). She might have been there for a few mins max and it was the one which was near where we had set up the changing room so was very close. She came in herself and said that that 'funny man' had came up waving at her as usual but this time had said 'Hi (redacted) '. (Redacted) was upset and was asking us how he knew her name and she said he was also doing sink downs and waving at her at points during her lesson. It's for this reason - the fact that she was upset that I think I should just bring it to attention. But again I know there is nothing that can be done and both myself and my husband mulled over just saying it at all but I just feel given 's reaction that I should. Many many thanks for the time to read this and I hope that it is the right thing to do just to note it. (redacted) I just wanted to outline what happened more for (redacted)'s sake

The Complainant responded to this complaint in the hearing. He knew which child it referred to. As he has spent so much time at the pool he has gotten to know everyone. One child was very happy to see him. Her parents had said nothing before the pandemic for 7 years. After the pandemic lifted suddenly they suddenly complained.

He questions the use of the term “funny man.” The Complainant asks why he is considered funny. He points out he is not dressed like a clown. He believes this is a racial term and that the complaint must be and is obviously racially motivated. After the pandemic he became a racial caricature. He started the pandemic to them.

The Complainant does not know if the Respondent is playing along with this or is racist herself.

The Complainant then referred to the email the Respondent furnished in evidence sent amongst the lifeguards.

Hi guys,

We had a complaint about Pierce Parker tonight.

(redacted) said that after one of his private swim lessons the parent told him that Pierce was waving at their child and that she was upset by it. He said that he was also waving at kids in the changing village.

It was brought to our attention after it had happened.

Kind Regards

(redacted)

He was upset that he was discussed this way amongst the lifeguards.

The Complainant then referred to the email sent the next day which also concerns the same events.

Good Evening,

I want to report a number of incidents involving another member in the swimming pool. We do swimming lessons (private) with (redacted) on a Monday evening at 5.30pm. (redacted).

In late November (redacted) noticed another swimmer (adult male) in  the pool close to where we do the lessons. He was waving at what (redacted) thought was the lifeguard or someone behind her. At the next lesson in December ((redacted)) she realised he was waving at her and kept watching her or trying to get her attention. She only told me about the incident that evening when we were at home. I asked her that if she ever saw the man again to tell me immediately.

At the end of the lesson yesterday (usual Monday slot at 5.30pm), (redacted) got upset and told me that the man was in the pool. She got very upset. She found it difficult during the lesson as she felt the man swimming close by and constantly looking at her trying to get her attention.

In hindsight, I should have contacted (redacted) in December after the last lesson to let him know so that (redacted) could have told him yesterday straight away.

(redacted) yesterday did react immediately when I told him and also told (redacted) to always tell him straight away.

I know (redacted) then felt really uncomfortable in the changing room and was crying and upset. It was not a good situation.

I understand that this man has been complained about before. It seems that he swims in the pool on a Monday at 5.30pm when we are there.

I do not want to be (redacted) completly put off the swimming lessons or coming to UCD (redacted). Hence could you please let me know what plan you have in place to ensure that this never happens again. The behaviour is completely inappropriate and I know (redacted) will not want to swim in the pool if the same man is present.

Kind Regards,

The Complainant read this email in the hearing and concluded that they didn’t want him to be there because he is not a white person.

On the 13th of January Mr Gary Ennis told him to stop distracting children by waving to them. The Complainant took the matter seriously because swimming is a big part of his life. No further complaints were lodged against him and he stopped talking to children.

The next incident report was dated the 8th of February.

Hi

I received a complaint from a lady today that Pierce collided with her today in the pool.

Pierce was doing a butterfly while the lady was going across the lane and they collided.

It is not the first complaint we have had about Pierce swimming aggressively.

Kind Regards,

(redacted)

The Complainant did remember the incident. He had established his favourite lane. This happens to every serious sports person. He was swimming the breaststroke. An elderly lady cut across pool mid way. The Complainant stopped. The lady made a rude remark and swam away. Later on the manager came to him and accosted him for creating a collision. This conduct has to be racially motivated.

On the 6th of May 2022 a further complaint was submitted against the Complainant.

Hi

I bring two of my kids to swimming lessons with (redacted) on Monday evenings (5- 5.40pm) and started a second set of lessons with (redacted) on Thursday afternoons (2.30-3pm) last week.

During the Monday evening classes (redacted) one becomes familiar with others who swim at the same time. One of these people is a young man with dark hair on top and a very tight shaved head around the back and sides. He often lingers at the shallow end of the pool and removes his hat (hence I know his hairstyle) before putting the hat on again and swimming down the pool.

When in the changing rooms for the first Thursday afternoon class (redacted) was scheduled to have with last week (28th April), I noticed the same guy repeatedly coming in and out of one of the family changing rooms in his underwear. What struck me as strange is not only that, but that he was using one of the family changing units when he was by himself.

Perhaps it's nothing but (redacted) immediately knew who I was talking about (and he was also there yesterday afternoon too -ie 5th May) and as a parent ( (redacted) ) one is acutely aware of others behaviour, body language etc and I'd noticed this person since we started the lessons with (redacted).

 If you'd like to meet me to discuss this further please do not hesitate to get in touch. Regards,

The Complainant notes that none of these reports contain any racial term. Except funny man. They must be fabricated explicitly because they say nothing about his race. This point is very important.

He notes that there was a delay in between this last complaint as his expulsion. The report mentioned him walking around in his underwear which he believes is a harmonised script related to the allegations which arose in ADJ-00036331. He believes that the Respondent should have doubted the authenticity why would he act strange in a place he frequented so much.

He does sometimes use the family changing stalls. He can’t see why it’s so strange. This report was insinuating he is a paedophile. He points out that if he is a paedophile why did he not act on it for the previous 8 years while he was a member.

He is the only non-white person in the sea of white people and his a very good swimmer, and they wanted to get rid of him for this. So they needed to come up with these excuses.  No other human factor would compel someone to act that this. It had to be a racial reason.

The letter terminating his membership doesn’t fully address all of these issues. He is surprised that they consulted with UCD’s legal department and that this should have been stated in the letter.  

I asked about the other grounds if discrimination that the Complainant cited.   He believes they are all factors but did not elaborate further.

The Complainant was cross examined by Mr Barra Faughnan BL for the Respondent.

The Complainant commenced his PhD with UCD in 2014. He was previously in Latvia and prior to that UL. At time he ceased being a student of UCD he had been in third level for 15 years.

Mr Faughnan pointed out that he is extraordinarily privileged to pursue academia fulltime for so long. The Complainant disputed this and outlined that being a person of colour had erased any privilege. He argued privilege is all relative. When asked for a relative comparison the Complainant pointed out that compared to Prince William he is under privileged.

The Complainant accepts that when he was doing a PhD in 2021 he was sleeping in a research building. This was initially allowed by a senior academic. When he was challenged he left the building but admitted returning number of times.  

On foot of these incidents disciplinary proceedings were brought and he issued a letter of apology which was a condition of the outcome of the disciplinary.

Mr Faughnan referred to ADJ-00036331. The Adjudication Officer in that case had concluded that he had made allegations without any factual basis and that when someone challenges him he retaliates with complaints of racism even without any evidence of racism. The finding made in that case was that his complaints had no prospect of success and were made in bad faith.

The Complainant replied stating that his is a pathological person and loves to fight racism.   

Mr Faughnan brought the complaint to the UCD service’s membership application form which provides for a termination clause. The Complainant believes that management can only terminate membership for heinous behaviour.

He accepts that people made complaints but believes that the complainants wrote lying complaints and then UCD colluded with them to get him removed.

The Complainant is aware of the child who is subject of the first complaint and named her in the hearing. He had not talked to her mother. He does not understand why the child would be upset by a man not known to her using her name. Though he argues that the family did know him from attending the pool regularly. He accepts that that is not what is in the complaint. He suggests that if Ryan Tubridy was talking to their child they wouldn’t have an issue. He believes the parents manufactured the allegation that their child was upset.

He accepts that he has used that family changing rooms by himself due to the non-family rooms being full. He accepts that there may be good reason for families to have their own changing spaces.

The Complainant does not accept that these complaints were the reason for his termination and believes that it was due to his race.

The Respondent was not present due to illness a doctors note was supplied.

The Respondent’s counsel made detailed oral and written submission on her behalf. He argues that the complaints are entirely without merit even on the Complainant’s own evidence and that this fits into a well established pattern of behaviour where the Complainant makes spurious allegations against anyone who causes him upset.

The Complainant has recognised that there were a series of complaints made against him in a relatively short period of time. He attended the swimming pool daily to swim and relax. The Respondent communicated a decision by her employer to terminate his membership after these complaints.

The Complainant has concluded that these complaints must be racially motivated. He has failed, even in any marginal way, to show that this is the case. His response to text of these complaints while in evidence was, frankly, bizarre. He concludes that the absence of any reference to his race in these complaints is proof that they were racially motivated and were hiding the fact. For whatever reason the Complainant appears to conclude that any adverse treatment of him must be racially motivated.

He has also alleged that he was discriminated against by reason of his family status, age and gender, though he has failed to explain these allegations even in the most general way. That failure does damage his credibility more generally and supports the Respondent position that he fabricates complaints as a means of retaliation against those who thwart him.

After having listened only to the Complainant’s case and not yet having given the opportunity for the Respondent to put forward her evidence, I conclude that the complaints fail to have any substance whatsoever.

I have authority, under Section 22(1) of the Equal Status act, to dismiss a complaint at any stage if I am of opinion that it has been made in bad faith or vexatious or misconceived. On review of the Complainant’s evidence, I am satisfied these complaints must either be misconceived, vexatious or made in bad faith.

I dismiss the complaint pursuant to Section 22(1) of the Equal Status Acts 2000-2018.