Complainant

Respondent

Parties

Margaret  McCarthy

Johnny's Restaurant and Takeaway

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

Cork Traveller Visibility Group

 No Appearance

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00062325-001

21/03/2024

The Complainant attended with her sister, Nora Faulkner, who appeared as a witness. Submissions were received along with the ES.1 Form, dated 14 November 2023. The Complainant sought an extension of time and presented supporting evidence.

There was no appearance by or on behalf of the Respondent.

On 17 September 2023, at approximately 5:30 p.m., the Complainant attended the Respondent’s restaurant following her son’s month’s mind. She submitted that after ordering a meal for herself, her sister, and her grandchildren, she raised a complaint with the Manager about the temperature of her soup. She requested a cup of tea instead of the soup but agreed to pay for the soup. However, the Manager refused this request, prompting her to ask to speak with the owner.

The Complainant stated that the owner, Mr. Johnny O’Mahony, approached her table and shouted at her to leave the restaurant. He further claimed that two of his staff had left because of her. The Complainant alleged that Mr. O’Mahony then attempted to strangle her, with the Manager intervening to restrain him.

Upon leaving the restaurant, Mr. O’Mahony allegedly followed her outside and made an obscene gesture toward the Complainant and her two young grandchildren as they sat in the car with her sister. She reported the incident to An Garda Síochána.

The Complainant submitted that she was refused service, shouted at, and treated less favourably by the Respondent because she is a member of the Traveller Community.

She also outlined her efforts to obtain a copy of the CCTV footage from that evening, but the Respondent did not respond.

She described feeling shaken and embarrassed, as were her two young grandchildren, as a result of the incident. Despite Watergrasshill being her closest village, she has not returned there or to the restaurant since.

Ms. Faulkner supported the Complainant’s version of events. She added that Mr. O’Mahony stated he was “sick of you lot.” She described being a regular customer at the restaurant but now having to dine elsewhere due to Mr. O’Mahony’s discriminatory attitude toward her sister

The first hearing was adjourned to ensure that the Respondent was notified of the hearing. All documents were re-sent to the Respondent at the same address where the Complainant had sent the ES.1 Form by registered post. The Respondent accepted the delivery.

Having reviewed the file, I am satisfied that the Respondent was on notice of the hearing.

After waiting a reasonable time, there was no appearance by the Respondent.

Preliminary matter

The Complainant sought an extension of time, as the Complaint Form was submitted five days outside the time limit provided for in Section 25 of the Equal Status Act 2000.

Having regard to the documentary medical evidence presented, together with the relatively short period by which the complaint was referred to the Workplace Relations Commission beyond the statutory time limit, I will allow the extension of time.

Discrimination

Section 3 of the Equal Status Act 2000 defines discrimination as:

“3.— (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,

Or                                               

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

Protected Grounds

(i)                  that one is a member of the Traveller community and the other is not (the “Traveller community ground”)”

Disposal of goods and provision of services.

“5.—(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

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.”

Having considered the undisputed evidence presented by the Complainant and her witness, I find the Complainant has discharged the burden of proof. It is accepted that she is a member of the Traveller Community. It is accepted that she attended the restaurant, and it is accepted that she was subjected prohibited conduct, both verbally and physically, by Mr O’Mahony in refusing her service at the Respondent restaurant on 17 September 2023.  It is accepted that the Respondent treated the Complainant less favourable because she was a member of the Traveller Community.

I find the Complainant was discriminated against by the Respondent by virtue of her membership of the Traveller Community on 17 September 2023.

I find the Complainant was discriminated against by the Respondent by virtue of her membership of the Traveller Community on 17 September 2023.

Redress

S. 27.—(1) Subject to this section, the types of redress for which a decision of the Director of the Workplace Relations Commission under section 25 may provide are either or both of the following as may be appropriate in the circumstances:

(a) an order for compensation for the effects of the prohibited conduct concerned; or

(b) an order that a person or persons specified in the order take a course of action which is so specified.

(2) The maximum amount which may be ordered by the Director of the Workplace Relations Commission by way of compensation under subsection (1)(a) shall be the maximum amount that could be awarded by the District Court in civil cases in contract.”

Having regard for the particular circumstances of this complaint, where the Complainant was attending her son’s month’s mind, her two very young grandchildren were with her in the restaurant, the embarrassment in front of a number of witnesses and the words, actions and gestures of Mr O’Mahony, I order compensation in the sum of €5,000 for the effects of the prohibited conduct as appropriate.

Equal Status – Traveller Community