Complainant

Respondent

Parties

Patrick  Roche

New Ross Sport & Leisure Limited

Representatives

Self-represented 

Jonathan Cullen Solicitor

Act

Complaint Reference No.

Date of Receipt

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

CA-00064203-001

17/06/2024

The complainant has made two complaints. That he was discriminated against on disability grounds and discriminated against due to his sexual orientation when he had his membership terminated. The respondent representative denies that he was discriminated against and submits that his membership was terminated due to his behaviour towards staff.

Summary of Complainant’s Evidence

The complainant, Mr Roche, gave testimony that he joined the gym in or around 11th March 2024 as a ‘Buddy Membership’ with his partner. He attended the gym in or around 25th March 2024 and sought a Personal Trainer (PT). He said he needed a PT as he had a disability and needed assistance. At the gym, he sought out a certain PT who was busy. He was then referred to Mr Doyle, Gym Instructor. He asked him to do personal training. Mr Doyle’s response was that he could not do PT. He said Mr Doyle was rude to him. He went back to reception and spoke to Mr Winkle, General Manager. Mr Winkle assured him he would be contacted, and a PT would be arranged.

The complainant said that he showed his injury to staff so they were aware of his disability.

The next day he picked up a voice message from Mr Winkle that his membership was terminated and he would be refunded membership, due to his behaviour towards staff. He drove to the gym and spoke with Mr Winkle. During the discussion, he got his partner on the phone. He said Mr Winkle refused to talk to his partner.

He made a formal complaint on 28th March 2024 that he was discriminated against due to his disability and sexual orientation. He wanted his complaints passed to the Board. On 8th April 2024, he sought CCTV of the incidents where it was alleged he was rude to staff. He wrote again on 3rd May 2024 as he had not received the CCTV.

The Board upheld the decision of Mr Winkle and refuted the allegations of discrimination. He was informed on 13th May 2024 that CCTV was not available as it only covered the previous 8-10 days. He questioned the unavailability of CCTV. He then queried this with the contractor who installed the CCTV equipment.

Under cross-examination by the respondent representative, the complainant confirmed that he did not read the membership code of behaviour although he was aware of the standard rules within clubs. It was put to the complainant that evidence would be given of a prior incident on 23rd March 2024 of his behaviour towards another staff member. The complainant denied he was in the gym on that date.

He was asked whether he knew that Mr Doyle was on probation, and was not authorised to do PT. It was put to him that Mr Doyle would give evidence that he was rude towards him. He denied that he was rude to Mr Doyle.

Closing Submission of Complainant

The complainant submitted that a separate complaint was made by his partner and that he was acting on his behalf. He said the necessary notifications were made to the respondent within the two-month timeline as prescribed in the Act.

He submitted that he was not in the gym on the morning of 23rd March 2024, so the incident could not have occurred. He said he understood how hiring PTs worked. He said he had been discriminated against while trying to obtain a personal trainer and then had his membership terminated.

The respondent representative called the following witnesses:

Summary of Duty Manager, Ms Molloy’s Evidence

Ms Molloy gave testimony that she had been working with the respondent since October 2013. She said that on the morning of 23rd March 2024, she was approached at the desk by the complainant. She informed him that she could not take bookings for PT’s, and he would be contacted. She queried his availability over the coming days and offered times up to 12pm. She said the complainant was rude and said that 12pm was not the fucking morning. She said the complainant did not mention his disability nor his sexual orientation.

Ms Molloy was cross-examined by the complainant on the exact time of this interaction and whether she had made a report of the incident. She confirmed that she would have brought this incident to the attention of Mr Winkle at a later stage. The complainant put to her that the incident could not have happened as he was not there that morning.

Summary of Duty Manager, Ms Furlong’s Evidence

Ms Furlong said she had been working with the respondent since 2013. She was present at reception and heard the interaction between the complainant and Ms Molloy. She heard the comment about 12pm not being the fucking morning and that the complainant was very rude towards her colleague.

Under cross-examination she confirmed that she did not take a note of the incident. She most likely raised it once she had heard about the other incident concerning Mr Doyle.

Summary of Gym Instructor, Mr Doyle’s Evidence

Mr Doyle said he commenced employment with the respondent in January 2024. It was his first job after college, and he was on probation at that time. He explained how PTs are hired, as the arrangement is between the gym user and the PT, who is paid directly. He told the complainant he could not do PT, and he suggested another PT could be hired. He said the complainant wanted PT there and then. The complainant told him he was shit at his job. He was offended by this comment. He said he was not informed of the complainant’s disability or sexual orientation.

Summary of General Manager, Mr Winkle’s Evidence

Mr Winkle said he had been working for 6 years with the respondent. He outlined the rules and standards of behaviour. He said they are followed strictly for everyone’s safety. He said memberships are sometimes terminated due to the behaviour of members.

He said he was informed of two incidents and the staff did not feel safe. Once aware of the complainant’s behaviour, he rang him to tell him his membership was terminated and would be refunded. As it was a ‘Buddy Membership’ he had to refund his partner’s membership also. He said he had no issue with the complainant’s partner, and he was welcome to join. He met the complainant later that morning when he arrived at the gym. He said he did not refuse to talk to his partner as the complainant was explaining the situation on the phone to him.

At the complainant’s request, he raised the issue with the Board who supported his decision. He said the gym staff prided themselves on inclusivity and the accommodation of members with disabilities.

He said the CCTV only lasted for 8-10 days and was not available. Arising from the incidents he planned to have it upgraded. He said the reason for terminating the membership was due to the complainant’s behaviour towards staff.

Under cross-examination by the complainant, he was asked about the interactions with the complainant and his follow up on arranging a PT. It was put to him that there were no incidents of him being rude to staff which is why the CCTV was sought by him as evidence. Mr Winkle replied that the decision was based on his behaviour towards staff.

Summary of Board Member, Mr Fitzhenry’s Evidence

At the end of the hearing, Mr Fitzhenry explained that the Board had considered the issues referred to them by Mr Winkle. His decision was upheld. He said the Board did not meet the complainant as this was not normal practice when memberships are terminated.

Closing Submission of Respondent

The respondent representative outlined that testimony had been given that the reason why the complainant’s membership was terminated was due to his behaviour towards staff. The reason for termination was unrelated to his disability or his sexual orientation.   

The Law

Section 3(1) provides, inter alia, that 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) (in this Act referred to as the ‘‘discriminatory grounds)’’

Section 3(2)(g) provides that: as between any two persons, the discriminatory ground of disability is,

(g)  that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),

Section 3(2)(d) provides: that they are of different sexual orientation (the “sexual orientation ground”),

Section 38A (1) 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."

Findings

Disability Complaint

The complainant submitted that he is a person with a disability for the purposes of the Act. He outlined this in medical reports submitted to the WRC. He said in testimony that he showed his injury and staff were aware of his disability which is why he was seeking a PT.

He submitted that he was discriminated against due to his disability by having his membership terminated.

In accordance with the Act, and based on the evidence, a presumption that prohibited conduct could have occurred has been made out. It is necessary then to go into the respondent evidence for them to prove the contrary. The respondent position is that the membership was terminated due to the complainant’s behaviour towards staff.

Although it was accepted that there was a discussion with Mr Doyle to provide PT, there was a conflict in evidence on what was actually said. Mr Doyle said he was told by the complainant that he was shit at his job. The complainant denies making this statement.

On the alleged prior incident, Ms Molloy who was working on the desk, said that the complainant was rude towards her. She said the complainant commented to her that 12pm was not the fucking morning. This testimony was consistent with Ms Furlong’s evidence who overheard the conversation. The complainant denies he was present in the gym that morning.  

Even though the complainant submitted evidence that he was driving from 10.59am to another location on 23rd March 2024, it was unclear what time the interaction took place. Based on the consistent testimony of the witnesses, on balance, I find the discussions most likely took place. I decide that this is the more likely reason why the complainant’s membership was terminated.

The complainant had only attended the gym on a few occasions and the testimony revealed that the staff were not on notice of his disability nor any request for reasonable accommodation which he may have required.

Although I find the respondent has rebutted the presumption of discrimination, I have some reservations as to why the CCTV was not made available. The respondent was on notice of discrimination complaints within days of the incidents and did not retain the footage. The respondent was also relying on this evidence to terminate the membership. Although inferences can be drawn from failure to supply information as per section 26 of the Act, I am not satisfied that this is sufficient to presume there was discrimination (the ability to draw inferences is outlined in Iarnrod Eireann v Mannion [2010] IEHC 326.)

There is the evidence of the respondent witnesses on the behaviour of the complainant which is consistent and reliable.

For the reasons outlined, I find there was no prohibited conduct by the staff of the respondent. I decide that the complainant was not discriminated against on the grounds of his disability.

Sexual Orientation Complaint

The complainant said his sexual orientation was the reason why his membership was terminated. It was necessary to go into the respondent evidence for them to prove the contrary. The respondent position is that his membership was terminated due to his behaviour towards staff.

Although it was accepted that there was a discussion with Mr Doyle to provide PT, there was a conflict in evidence on what was actually said. Mr Doyle gave testimony that he was told by the complainant that he was shit at his job. The complainant denies making this statement.

On the alleged prior incident, Ms Molloy who was working on the desk, said that the complainant was rude towards her. She said the complainant commented to her that 12pm was not the fucking morning. This testimony was consistent with Ms Furlong’s evidence who overheard the conversation. The complainant denies he was present in the gym that morning. 

Even though the complainant submitted evidence that he was driving from 10.59am to another location on 23rd March 2024, it was unclear what time the interaction took place. Based on the consistent testimony of the respondent witnesses, on balance, I find the discussions most likely took place. I decide that this is the more likely reason why the complainant’s membership was terminated.

The complainant had only attended the gym on a few occasions. The testimony revealed that the staff may not have been aware of his sexual orientation. The testimony revealed that the staff were more focussed on his behaviour as they shared their experiences and then reported these to Mr Winkle.

Although I find the respondent has rebutted the presumption of discrimination, I have some reservations as to why the CCTV was not made available. The respondent was on notice of discrimination complaints within days of the incidents and did not retain the footage. The respondent was relying on this evidence to terminate the membership. Although inferences can be drawn from failure to supply information as per section 26 of the Act, I am not satisfied that this is sufficient to presume there was discrimination (the ability to draw inferences is outlined in Iarnrod Eireann v Mannion [2010] IEHC 326.)

There is the evidence of the respondent witnesses on the behaviour of the complainant which is consistent and reliable.

For the reasons outlined, I find there was no prohibited conduct by the staff of the respondent.

I decide that the complainant was not discriminated against on the grounds of his sexual orientation.

I decide the complainant was not discriminated against on the grounds of his disability.

I decide the complainant was not discriminated against on the grounds of his sexual orientation.

Equal Status, Disability, Sexual Orientation.