ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00052451
Parties:
| Complainant | Respondent |
Parties | Paddy Mahon | New Ross Sport & Leisure Limited |
Representatives | Self-represented | Jonathan Cullen Solicitor |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00064276-001 | 17/06/2024 |
Date of Adjudication Hearing: 13/01/2025
Workplace Relations Commission Adjudication Officer: Seamus Clinton
Procedure:
In accordance with Section 25 of the Equal Status Act, 2000,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard and to present any evidence relevant to the complaint. The hearing was held in the Hearing Rooms of the Workplace Relations Commission (WRC), Carlow.
The complainant, Mr Mahon, gave evidence under oath. For the respondent, Mr Winkle, General Manager, Mr Doyle, Gym Instructor, Ms Furlong, Duty Manager, and Ms Molloy, Duty Manager, gave evidence under oath. Mr Fitzhenry, Board Member, was not called as a witness for the respondent although did clarify some matters on behalf of the Board.
Background:
The complainant, Mr Mahon, took out ‘Buddy Membership’ with his partner in or around the 11th March 2024. Due to incidents at the gym concerning his partner, his membership was terminated towards the end of March 2024. His complaint is that he was discriminated against on the grounds of his sexual orientation. |
Summary of Complainant’s Case:
Summary of Complainant’s Evidence Mr Mahon outlined that when his membership was terminated, it was never explained to him by the respondent why this occurred. Although he was only recently aware that he was welcome back, he was never notified of this formally by the respondent. He said he only used the swimming pool a few times before his membership was terminated. |
Summary of Respondent’s Case:
The respondent representative raised a preliminary issue that the respondent did not receive the required ES1 Notification Form as required under the Act. Without prejudice to the above, the respondent confirmed that the complainant is welcome to take out membership on his own account although not the ‘Buddy Membership’ with his partner. It was submitted that if the complainant had sent the notification to the respondent as per the Act that his matter would have been fully clarified. The respondent was not aware that the complainant had an issue until notified by the WRC of his complaint. |
Findings and Conclusions:
The Law Section 21, 3(b) allows for discretion as to whether the notification process was followed or not, based on the awareness of the respondent of the complaint and whether the respondent was prejudiced, due to lack of knowledge. 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)(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." Finding on Preliminary Issue I am satisfied that the respondent was aware of the nature of the complaint, specifically as they would have cancelled the complainant’s membership on foot of the behaviour of his partner. The complaint form clearly identifies that the complainant was also making a complaint on his own behalf. The respondent was not prejudiced in the case as they were fully aware of what had occurred. They were also aware that the refund of membership would have had an adverse impact on the complainant. Therefore, I decide that to proceed to investigate the substantive complaint. Finding The complainant had his membership of the gym refunded as an administrative task due to the ‘buddy membership’ with his partner. There was no evidence presented of the respondent contacting the complainant to allow his continued membership. The complainant gave evidence that this lack of communication was the basis of his complaint. It was remiss of the respondent not to contact the complainant. I do not agree with the submission from the respondent that the onus was on the complainant to outline his complaint. The onus was on them to inform the complainant he could continue in membership. As per section 38A (1) of the Act, despite the administrative error by the respondent, the onus is on the complainant to establish facts to show that this treatment was related to his sexual orientation. There was no evidence presented that a lack of contact was due to his sexual orientation. I consider the lack of contact as more likely an administrative oversight than a discriminatory omission. For the reasons outlined, I decide that the complainant was not discriminated against due to his sexual orientation. |
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.
I decide the complainant was not discriminated against due to his sexual orientation. |
Dated: 28-01-25
Workplace Relations Commission Adjudication Officer: Seamus Clinton
Key Words:
Equal Status, Notification, |