ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00009101
Parties:
| Complainant | Respondent |
Anonymised Parties | A Member of the Traveller Community | A Fast Food Restaurant |
Representatives | Peter Duff & Co. Solicitors | DAC Beachcroft, Solicitors |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00011912-001 | 13/06/2017 |
Date of Adjudication Hearing: 07/02/2018
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 25 of the Equal Status Act, 2000following 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 by me and to present to me any evidence relevant to the complaint
Background:
The complainant is a member of the Traveller community and is also homeless. She also is visually impaired and is accompanied by a guide dog. |
Summary of Complainant’s Case:
The complainant entered the restaurant where, she says, she is well known to the staff. She has had some difficulties in the past getting service in the restaurant, but has been served many times. When she entered the restaurant on March 22nd, 2017 she was assaulted by a security guard in the course of which she sustained a fractured wrist. Following the incident, she made her way to the service counter but was refused service. She made it clear that she wanted to purchase food to take away. She overheard a member of staff say to another ‘Don’t worry about her, she is just an itinerant’. She says the sequence of events was as follows. She was initially refused admission and following the altercation with the security guard she asked to see the manager. While she was awaiting his arrival she went to the counter and asked to be served and again asked to see the manager. She was refused service and as she left the manager approached her. She again asked to be served but he refused. Regarding the preliminary matter of jurisdiction raised by the respondent (below) the complainant says there is no duplication as the personal injuries claim arises from a different issue to that raised in this complaint; i.e. the refusal to serve the complainant. The incident which gives rise to the personal injuries complaint is referred to only as part of the narrative leading up to the refusal to serve the complainant. |
Summary of Respondent’s Case:
The respondent raises a preliminary issue regarding the jurisdiction of the WRC to hear the case. It says that the complaint is a duplication of the complainant’s personal injuries action and relies on the rule in Henderson v Henderson to the effect that all matters arising from the same set of facts must be litigated together. The respondent says that the two incidents are not separate. On the substantive matter of the complaint the respondent denies that the incident giving rise to it happened. However, if there was an issue regarding service it did not happen on discriminatory grounds and some account must be taken of the altercation which had preceded it. The respondent denies that its staff were aware of the complainant’s membership of the traveller community. The respondent says that after the incident involving the security guard the complainant did not proceed to the service counter. The manager (shift supervisor) gave evidence that the security guard stopped her twice and told her she was not being admitted. As far as he was aware she did not make it to the counter. The respondent says it has robust ant-discrimination policies. Specifically, its Dignity at Work policy says it is committed to ensuring that; ‘All employees, managers, customers and other visitors are treated equally and fairly, regardless of their age, race, sex/gender. Religion, Civil or Family status sexual orientation or membership of the travelling community’. Following the incident the respondent Operations Manager write ti the complainant apologising for the incident involving the security operative and expressing the hope that he would see her in one of their restaurants again |
Findings and Conclusions:
The respondent has raised a preliminary point on jurisdiction. I find that the two incidents are quite separate in respect of the remedies being sought. The personal injuries claim arises in relation to the alleged assault by the security guard. This complaint arises from an alleged refusal to serve the complainant in the restaurant. They are clearly linked as part of the narrative of the day’s events, but entirely separate in terms of the remedies being sought. I find therefore that there is no impediment to my jurisdiction in respect of that aspect of the complaint. In respect of that complaint the respondent points out that section 38A of the Equal Status Act sets out the burden of proof applicable in cases of discrimination. It is for the complainant to establish facts from which discrimination may be inferred. This is merely for the purpose of establishing a prima facie case and the bar for this is set quite low. However, they must at a minimum be established as facts. In A Complainant v A Hotel (ADJ 00004778) the Adjudication Officer set out the three criteria which must be met. 1) The complainant must be covered by a discriminatory ground 2) The specific treatment alleged must actually have occurred, and 3) It must represent less favourable treatment. The first of these is clearly met in this case. The lack of independent corroboration of the claims and counter claims in this case makes it very difficult. There is a stark conflict in such evidence as was offered. It is not in dispute that the incident involving the security guard did take place. He was not a direct employee of the respondent but an employee of a contract security company. The respondent wrote to the complainant and apologised for it. The Operations Manager described the security guard’s actions as ‘unacceptable and unprofessional’ and he undertook to ensure that the individual would never again work in any of their restaurants. The security guard’s direct employers were proposing to carry out an internal disciplinary investigation and apparently were intending to contact the respondent in due course. As noted above this is not the incident giving rise to the complaint of discrimination. But as part of the background to the complaint not only can it not be ignored but some regard must be had to its impact on the complainant. She was pushed to the floor twice. She sustained a fracture of the wrist and bruising. It clearly created quitter a commotion in the restaurant and the facts surrounding the incident are relatively clear. What is a good deal less clear is what happened next. The complainant says that she asked to see the manager and while waiting for him she approached the counter for service, where, she says it was declined. The basis for her complaint of discrimination was a remark by one of the respondent’s employees to another ‘Don’t worry, she is just an itinerant’. There is no independent corroboration of the remark, although the respondent witness who offered the opinion that the complainant could not have approached the counter had no means of knowing whether she had or not. She has also made a complaint on the grounds of her disability but no evidence was offered to support it. One of the documents offered in evidence was an online account of the incident posted by the complainant. While this account was primarily on her treatment as a homeless person it contained an account of the incident with the security guard which gave rise to this complaint. Interestingly, it includes the following; ‘His [the security guard] actions were extremely unprofessional. He was joking with a colleague that I was just an itinerant….’ The WRC complaint form grounds the complaint of refusal of service as follows; She was refused service. No reason for the refusal was given. She heard an employee say to another ‘She is just an itinerant’. In correspondence from her solicitor this is repeated as follows; ‘…an employee of [the respondent] refused to serve the claimant and was heard to say to a colleague ‘She is just an itinerant’. So, to add to the confusion about whether the complainant made it as far as the service counter, there appears to be, or have been some confusion as to who made the discriminatory comment; a member of the service team employed by the respondent or the security guard. There was no suggestion at the hearing that the comment was made twice, or by different people. The respondent has submitted, while denying that any refusal of service took place, that it was more likely to have been a result of the fracas with the security guard. This is possible. Having considered all of the submissions carefully, I find insufficient evidence of the alleged facts from which to draw safe conclusions about the alleged discrimination. On the one hand the complainant had just been through a traumatic experience and has offered conflicting versions of where, and by whom the comment was made. Bear in mind her entire complaint of discrimination turns on the making of this comment. There is the complainant’s own evidence that she had been served on previous occasions by the respondent (although also denied service). The respondent relied on its Dignity at Work policy and vital as such policies are it is more important is to ensure that they are always and regardless of the circumstances fully complied with. Also, the letter of apology from the respondent Operations Manager was fulsome in its apology to the complainant although it does not address the refusal of service aspect of the matter. However, all of these are merely circumstantial aspects of the complaint. The complainant was a credible witness, but in these particular circumstances I do not consider it sufficient simply to proceed to a finding based on her word alone. The requirements placed on an Adjudicator are to look for evidence that the actions complained of actually happened. Even if there had been a refusal of service I think it likely that it was attributable to the fracas with the security guard. Either way, I find that the complainant has failed to meet the burden of proof and her complaint fails. |
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.
Dated: 11th April 2018
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
|