Equality Officer’s Decision
Source Health and Fitness
(Rep. by Coakley Moloney Solicitors)
Date of issue: 26 January 2009 File reference: EE/2007/122
1.1 This case concerns a complaint by Mr. Benson Adesida, a Nigerian national, against Source Health and Fitness in relation to discriminatory treatment in (i) conditions of employment (ii) training and (iii) promotion, on the grounds of gender, family status and race in terms of Section 6 (2) of the Employment Equality Acts 1998 – 2004 and that (iv) he was discriminatorily dismissed on grounds of race in terms of Sections 6(2) of the Employment Equality Acts 1998-2004 and in contravention of Section 77(b) of those Acts and (v) that he was victimised as a result of making a complaint to the respondent in terms of Section 74 (2) of the Acts.
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 - 2004 to the Equality Tribunal on 7 March 2007 alleging that the respondent had discriminated against him on grounds of race, gender and family status in relation to his conditions of employment, victimised him following making a complaint and discriminatorily dismissed him on grounds of his race. The respondent disputes this and maintains that the complainant was dismissed on the grounds of gross misconduct following a threat of assault on another member of staff which led to a break in trust between Source Health and Fitness and the complainant.
2.2 In accordance with her powers under section 75 of the Employment Equality Acts, the Director delegated the case on 23 September, 2008 to me, Valerie Murtagh, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts 1998-2008. This is the date I commenced my investigation. Written submissions were received from both parties. A hearing on the complaint was held on 5 December, 2008.
3. Summary of the Complainant’s case
3.1 On the day of the hearing, the complainant stated that while he had submitted that he was discriminated against in relation to promotion, in fact, this was not the case as the post in question was not a promotional post within the respondent company but another similar position to his own job. He also stated that the discriminatory treatment was primarily on grounds of race and gender and the issue of discrimination on family status grounds only relates to the alleged discriminatory treatment in relation to shift patterns under his conditions of employment.
3.2 The complainant states that he commenced employment with the respondent on 3 March 2006 as a part-time gym instructor/pool lifeguard and worked every Saturday and Sunday and 2 days during the week. He was subsequently offered full time employment in August 2006. At this time, he requested that his Saturday and Sunday shifts be reduced so that he could spend time with his family, go to church and have weekends off like other staff members. He states that his request was refused and submits that he was discriminated against in his conditions of employment on the grounds of his race, gender and family status.
3.3 The complainant states that the post of pool supervisor became vacant in July/August 2006 and he applied and was interviewed but was refused the position on the basis of his gender as the respondent required a woman who would pair up with a full-time male pool lifeguard. The complainant submits that the successful female candidate did not have a pool plant operator certificate or supervisory experience which were criteria outlined in the advertisement. He submits that he was discriminated against on the grounds of gender in relation to the post of pool supervisor.
3.4 The complainant states that he approached the human resource manager in November/ early December, 2006 and expressed his grievances in relation to access to teaching spinning classes and his weekend shifts. He states that she advised him she could do nothing about these matters. He then wrote a letter to the general manager on 14 December, 2006 outlining his concerns regarding access to teaching spinning classes and stating that other staff members employed after him were teaching spinning classes. The general manager called the complainant for a meeting to discuss the issue and advised him that instructors were required to undergo 15 classes and then they would be assessed prior to teaching classes. The complainant submits that he was discriminated against in relation to the training of spinning classes on grounds of his race and gender as he states that other staff members did not have the required 15 classes and assessment undertaken prior to being able to teach classes.
3.5 Following the letter of complaint dated 14 December, 2006 regarding the teaching of classes and the meeting with the general manager on 18 December, 2006 the complainant states that he felt victimised, in that, his workload increased and he submits that he was bullied by some members of staff.
3.6 The complainant stated that an incident took place in January 2007 whereby the complainant wascleaning the health suite by the pool listening to his mp 3 player wearing an Ipod in one ear. He states that K told him to stop using the mp3 player immediately which the complainant did. However the complainant tried to explain that he was trying to compose music to be used for his morning class. He states that K was very annoyed with his explanation and said he expected him to use his common sense. The complainant told K not to insult his intelligence and he then said to K that he was aware of K’s dislike of black people and that K had said ‘they are not to be trusted using fake papers and that they complain too much and employers will stop hiring them’. K denied the accusations. The complainant was called to a meeting with K and the human resource manager and the matter appeared to be resolved but subsequently, the complainant submitted that he started getting hassled by K and he felt that his workload increased.
3.7 The complainant states that a staff meeting was held on 22 February, 2007 and another member of staff accused the complainant of neglecting his work. The complainant states that he was very aggrieved and started voicing his concerns at the meeting but that his gym supervisor Ms W stated that this was not the appropriate venue and that she would have a one-to-one meeting with him following the staff meeting to discuss his concerns. The complainant then responded by saying that he had to voice his concerns at the main meeting as there were witnesses present and he did not want to be misquoted, accused of assault or framed for harassment by going into a one-to-one meeting with his supervisor. Following this incident, Ms W went immediately to the manager to complain about the complainant’s behaviour and later that day, the general manager suspended the complainant on full pay pending an investigation. The complainant was dismissed on 1 March, 2007. The complainant submits that he was discriminatorily dismissed on grounds of his race.
4. Summary of the Respondent’s case
4.1 The respondent states that the complainant was interviewed for the position of part-time gym instructor/pool lifeguard on 20 February, 2006. They state that during this interview, the shifts which included Saturday and Sunday were discussed with the complainant along with the job description and other aspects of the post. The position was offered to the complainant which he accepted and commenced employment with the company on 3 March 2006. The respondent states that the complainant was fully aware of his shifts /days when he took up his employment.
4.2 The respondent states that further to a request from the complainant to increase his hours, he was subsequently promoted to full-time gym instructor/pool lifeguard in August 2006. They state that, at that stage, he did not request any changes to be made to his working roster. They further state that the full-time contract which the complainant signed specified that ‘your normal working hours will be 39 hours and will be spread over 5 days per week inclusive of Sundays and public holidays’.
4.3 The human resource manager returned to the company following maternity leave on 4 October, 2006. The respondent states that at this time, the complainant requested changes to be made to his roster as he stated his wife was attending college. The human resource manager held a meeting with the complainant during which he requested to have Wednesdays and Fridays off as it would allow him to be at home when his wife was at college and the cost of childcare could be cut down. The human resource manager reviewed arrangements and was in a position to make changes to the roster in order to facilitate the complainant. She made the necessary changes to the roster and the complainant was facilitated in this regard.
4.4 The respondent states that a number of weeks later, the complainant approached the human resource manager regarding his Saturday shift. He requested that one of his days off be now changed to Saturday. She approached another staff member to enquire if they could change his/her days in order to facilitate the complainant. The other staff member was agreeable and the revised arrangement would have resulted in the complainant working in the pool on a Friday as opposed to Saturday (he had previously been off on Fridays). After consulting with the complainant, he declined the offer as de did not want to work another shift in the pool.
4.5 The respondent maintains that at the meeting referred to at point 4.3 between the human resource manager and the complainant regarding shift patterns, the complainant stated that he wanted to keep his Sunday shift as it was time and a half and he wanted the money. The respondent states that he reiterated this to the human resource manager when she was trying to meet his request for shift changes. Based on the above, the respondent rejects the allegation of discrimination against the complainant on the grounds of family status and race.
4.6 The respondent contends that the complainant was unsuccessful for the post of pool supervisor as another candidate applied who had previous supervisory experience in a pool area (respondent has a written reference for the candidate in that regard). The respondent states that the complainant did not have previous supervisory experience in a pool role and consequently, they deemed the other candidate to be more suitably qualified. They deny that there was discrimination against the complainant on grounds of gender.
4.7 The respondent states that following the letter of complaint to the general manager dated 14 December, 2006 regarding teaching of classes, a meeting was held with the complainant, the human resource manager and the general manager on 18 December, 2006 and all the complainant’s grievances including the teaching of classes, his shifts and his supervisor’s role were listened to and responded to. On conclusion of the meeting, the general manager felt that all matters were dealt with adequately and on receiving no further correspondence from the complainant believed the matter was concluded.
4.8 The respondent denies the complainant’s allegation that his workload increased and states that all workloads were shared out evenly amongst all staff members. The respondent states that on 4 February, 2007, the complainant made an allegation against K(duty manager), claiming he was being bullied by him and that K was trying to get rid of him. Prior to the above allegation, on 1 February, K and the human resource manager had a meeting with the complainant. This meeting had been as a result of K observing the complainant listening to an Ipod whilst on duty on the pool deck which had health and safety issues. When K discussed the matter with the complainant, he took offence and when K asked him to use his common sense why an Ipod could not be used on a pool deck, the complainant accused him of being a racist and accused him of bullying him. As a result of this, a meeting took place with K, the human resource manager and the complainant on 1 February, 2007. It was explained to the complainant that ‘use your common sense’ is a commonly used expression and K apologised if it had caused offence as this was not the intention. K said he was not a racist and never bullied any person. The respondent states that the complainant admitted that he said things to get a reaction from K and that they were said in anger. The meeting concluded with an apology on both sides and matters were resolved. However, the respondent contends that 3 days later, the complainant recounted the same allegations about K to another member of staff.
4.9 The respondent maintains that the issue of another staff member accusing him of neglecting his work was brought up at a staff meeting which was held on 22 February, 2007. During the meeting, the complainant got very agitated and given his body language it was deemed that his issues would be more appropriately dealt with by gym supervisor on a one-to-one basis. The respondent states that the complainant responded by saying he would be unable to hold this meeting with his supervisor as ‘what I would do to you would be considered assault in this country’. The supervisor immediately left the meeting and spoke to the general manager about the incident. The complainant’s gym supervisor and gym manager were visibly shaken by what transpired and both explained to the general manager, separately, what had happened at the meeting. The general manager subsequently spoke to the complainant about what had transpired at the meeting and decided to suspend him on full pay pending an investigation into the matter. The incident was subsequently investigated whereby the general manager got witness statements from all present at the meeting and had a comprehensive meeting with the complainant to allow him an opportunity to give his version of events. After a period of consideration, the general manager felt she had no alternative but to dismiss the complainant on grounds of gross misconduct as a result of the break of trust and a threat against one of his colleagues. She offered him the opportunity to appeal the decision within 2 working days and informed him that all appeals would be heard within 7 days. The respondent states that the complainant did not challenge the dismissal and did not make any representations to appeal the dismissal.
5. Conclusions of the Equality Officer
5.1 The issue for decision in this claim is whether or not the complainant, in relation to (i) his conditions of employment was treated less favourably because of his gender, family status and race and (ii) in relation to his dismissal was treated less favourably on the grounds of his race contrary to Section 6 of the Employment Equality Acts, 1998-2008 and whether he suffered victimisation. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.2 Section 85A of the Employment Equality Acts 1998 to 2008 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Prima facie evidence has been described as ‘ evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.’
5.3 In relation to the issue of the complainant’s shifts/days, it is clear from the terms and conditions of employment which was signed by the complainant following him getting the full-time post in August 2006 that he was aware that his normal hours will be 39 hours spread over 5 days per week inclusive of Sundays and public holidays. In addition, when the complainant made a request to the human resource manager in October, 2006 to have Wednesdays and Fridays off as it would allow him to be at home when his wife was at college and the cost of childcare could be cut down, the complainant was facilitated. Subsequently, the complainant approached the human resource manager regarding his Saturday shift and now requested that one of his days off be changed to Saturday. The human resource manager approached another staff member to enquire if they could change his/her days in order to facilitate the complainant. The other staff member was agreeable but the complainant refused as the revised arrangement would have resulted in the complainant working in the pool on a Friday as opposed to Saturday (he had previously been off on Fridays). After consulting with the complainant, he declined the offer as de did not want to work another shift in the pool. It has also been stated that the complainant wanted to keep his Sunday shift as he was paid at time and a half and wanted the money. I am satisfied that the human resource manager tried to facilitate the complainant regarding his request to change his work patterns and did so in October 2007 and made efforts to accommodate him when he subsequently requested to have Saturdays off but the complainant refused on the basis that the revised arrangement would mean he would be required to work Fridays in the pool. I am satisfied that the complainant was aware of the work shifts when he signed the contract for the full-time post and that the human resource manager made reasonable efforts to facilitate him regarding these changes. I can find no evidence to substantiate the complainant’s claim that he was discriminated against on the grounds of family status and race in relation to his shift patterns.
5.4 In relation to the post of pool supervisor, on the day of the hearing, copies of the c.v. and a reference on behalf of the successful candidate were submitted in evidence and the respondent stated that the reason the female candidate was successful was due to her previous supervisory experience, backed up by a written reference from a manager of a health spa. At the hearing, I asked the complainant if he had any previous supervisory experience in a pool area to which he replied he had not but he felt that the fact he had a pool plant operator certificate which was stated in the advertisement for the post that he was more suitable for the position. The complainant stated that the successful female candidate did not have a pool plant operator certificate at the time she applied for the post but acquired it subsequently. The respondent stated that they rated a person having previous on the job experience in pool management and supervisory experience in a pool area greater than a person with a pool certificate which could be obtained in a 2 day training course. Based on the evidence provided at the hearing, I find that the complainant has failed to establish a prima facie case in relation to the post of pool supervisor and I am satisfied that he was not discriminated against on the grounds of his gender in relation to the post but that the most suitable candidate based on qualifications and previous experience was given the position.
5.5 In relation to the issue of teaching classes, the respondent states that the persons employed subsequent to the complainant had the required training of 15 classes undertaken and were assessed for approval to teach classes. In this regard, the respondent submitted copies of the qualifications and certificates of the other employees who were giving training classes, in evidence to the Tribunal. The respondent further states that the complainant was given every opportunity to undertake the 15 training classes but only carried out training in 3 classes during his employment at the respondent company and was therefore not eligible to teach classes. Based on the above, I am satisfied that the complainant was not discriminated against on the grounds of his race and gender in relation to teaching classes as he did not undergo the 15 training classes which were a requirement prior to assessment to be approved to teach classes.
5.6 In relation to the issue of victimisation, Section 74 (2) states:
…..victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant, …….”
The complainant stated that he was victimised following a letter of complaint to the general manager on 14 December, 2006 in relation to access to teaching classes. He states that following making a complaint, his workload increased and that he was picked on by staff, I cannot find evidence to substantiate this allegation. I find that the incident regarding the complainant listening to his Ipod while supervising the pool area which happened on 1 February, 2007 was a serious breach of the health and safety regulations and the fact his duty supervisor K approached him and chastised him over the incident was reasonable under the circumstances. The complainant also admitted that he did make derogatory statements to K as mentioned at 3.6 above as he felt that he was racist but I cannot find any evidence to substantiate the complainant’s statement. Therefore, I am satisfied that the complainant was not victimised following a letter of complaint to the general manager in relation to access to teaching classes as no evidence was adduced to substantiate the claim that his workload increased and that he was picked on/bullied by colleagues.
5.7 On the day of the hearing, Ms W, supervisor to the complainant, who has since taken up employment with another company came to the hearing and gave evidence relating to the incident leading up to the complainant’s dismissal. She states that there was a general staff meeting held on 22 February, 2007 to discuss issues including general staffing, membership, equipment etc. At the start of the meeting, the general manager spoke to staff expressing gratitude for their work and then left the meeting. Ms W then continued with the meeting in relation to general matters and asked members of the group had they any questions/issues. The complainant stated that he had a problem with another staff member (M) also present at the meeting where she ordered him to hoover the carpet earlier in the week. The complainant stated that he was working in the company almost a year and that on the day in question his day was very busy and M had no right to order him to do anything. At this stage, Ms W stated that it was not appropriate to discuss this matter now and that there would be one-to-one meeting with him to discuss such issues. The complainant started to raise his voice and acted in an aggressive manner by waving his arms in the air and stated that ‘M was not the boss of him and that she didn’t respect him or that Ms W didn’t respect herself.’ M tried to explain her point of view but the complainant didn’t allow her as he was very loud and irate at this stage. Ms W restated that she would have a one-to-one meeting to discuss the complainant’s concerns. To this, the complainant responded that ‘he could not have a one-to-one meeting with her as for what he would do to her would be considered assault in this country’. Ms. W immediately left the meeting and spoke to the general manager about the incident. The complainant does not accept that he made this comment, he states that he responded that ‘he would not wish to have a one-to-one meeting with Ms. W as she may twist what he is saying and make a false accusation of assault against him’.
5.8 The general manager carried out an internal investigation into the matter whereby she spoke to each person at the meeting and submitted written statements from witnesses at the meeting as evidence at the hearing. The statements corroborate Ms. W’s evidence as given above at 5.7. The general manager spoke to the managing director of the company and decided that they had no alternative but to dismiss the complainant on 1 March 2007 on the grounds of gross misconduct based on his aggressive manner and the alleged threat of assault on another member of staff as they felt there was a break down in trust between the complainant and the respondent. On balance, I find that the evidence given by Ms. W was comprehensive and coherent and I am satisfied based on Ms. W’s evidence together with witnesses written statements present at the meeting of the 22 February, 2007 (submitted in evidence at the hearing) that a threatening remark was made against Ms. W. I am satisfied that had another employee of a different nationality reacted in similar circumstances to the complainant, the outcome would also lead to dismissal.
5.9 On the day of the hearing, the complainant stated that he felt very aggrieved that he lost his job on the grounds of gross misconduct. He stated that an injustice was done to him and that he was not happy with the procedures that a person can be dismissed for gross misconduct in the manner in which he was dismissed. Although the complainant has argued that fair procedures were not complied with in relation to his dismissal, the issue for decision in this claim is whether or not the complainant was discriminated against on the grounds of his race in relation to his dismissal. The Tribunal has no jurisdiction to decide on the unfairness or otherwise of the dismissal, the complainant needs to prove that it was connected with his race.
5.10 In this claim, it is alleged that the complainant was treated less favourably on the grounds of his gender, race and family status in his conditions of employment, that he was victimised as a result of making a complaint to the respondent and that he was discriminatorily dismissed on the grounds of his race. Having regard to all the evidence, I am satisfied that the complainant has not established that he was treated less favourably on the grounds of his gender, race and family status in his conditions of employment or that he was victimised as a result of making a complaint and I can find no evidence to substantiate his claim that he was discriminatorily dismissed on the grounds of his race from the respondent organisation.
Having investigated the above complaint, I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts 1998-2008; I find that the complainant has failed to establish the facts from which it may be presumed that (i) he was discriminated against on grounds of gender, family status and race in relation to his conditions of employment (ii) he was discriminatorily dismissed on grounds of his race and (iii) that he was victimised as a result of making a complaint.
Therefore, I find against the complainant.
26 January, 2009