ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006826
Parties:
| Complainant | Respondent |
Parties | A Complainant | A Respondent |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00009273-001 | 24/01/2017 |
Date of Adjudication Hearing: 27/09/2017
Workplace Relations Commission Adjudication Officer: Roger McGrath
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 by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant submitted a Complaint Form which was received by the WRC on 24th January 2017, citing the 25th of July 2016 as the date of the alleged discrimination. An E.S. 1 Form was sent by the Complainant to the Respondent on 1st September 2017. An E.S. 2 Form was returned to the Complainant on 23rd September 2016.
In the Complaint Form, the Complainant had selected Sexual Orientation as the reason for the discrimination however in the 'Complaint Specific Details or Statement' section of the same Complaint Form the Complainant had stated that he had been treated less favourably due to his Religion. In his E.S. 1 Form the Complainant had also cited Religion as the reason for the less favourable treatment. At the time of the complaint being submitted to the WRC the Complainant was a Roman Catholic.
Having discussed the matter with the parties, both were satisfied to continue the hearing on the understanding that the complaint had been made on the Religion Ground.
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Summary of Complainant’s Case:
In his Complaint Form the Complainant submitted that he was treated less favourably than the LGBTQ Community, in similar circumstances, because of his Religion, in the provision of a service.
The Complainant submitted that sometime after a flag raising and wreath laying ceremony to celebrate Gay Pride and commemorate the massacre of members of the LGBTQ Community in an Orlando nightclub had taken place, under the auspices of the Respondent, he sought a similar service from the Respondent.
The Complainant requested a service to celebrate the priestly ordination anniversary of Pope Benedict by the raising of the Papal Flag and the laying of a wreath to commemorate the massacre of Christians in the middle-east and the killing of a priest in France. In the eyes of the Complainant the Respondent declined the request, by email on 25th July 2016. Although some other correspondence took place between the parties no resolution was reached.
The Complainant alleges that he was treated less favourably, in similar circumstances, than the LGBT Community, because of his religious beliefs.
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Summary of Respondent’s Case:
The Respondent refutes any allegation of discrimination made against it by the Complainant and submits that such allegations are unfounded, misconceived and lacking in factual foundation. The Complainant, according to the Respondent, has been treated no differently than any other person of any other religion. The Respondent contends that the Complainant has presented no evidence to indicate that he has been treated any differently to persons of other religious affiliations or is at a disadvantage to such persons.
The Respondent submitted that on 20th June 2016 it received an email from the Local Government Management Agency, the body responsible for co-ordinating the delivery of Local Government services and policy, which set out details of a nationwide campaign amongst Local Authorities to coincide with the first annual LGBTQ Pride festival. In addition to setting out details of the national campaign, which included the raising of the rainbow flag on behalf of the LGBT Community, the email also set out the details for the laying of a wreath in memory of the victims of the Orlando massacre.
On 16th July 2016 the Respondent received an email from the Complainant who, in light of the aforementioned campaign and the Respondent's participation in same, requested the Respondent to hold a flag-raising ceremony for Pope Benedict and a wreath laying ceremony to mark the deaths of Christians killed by ISIS.
In reply and in refusal of the aforementioned request made by the Complainant, the Respondent issued an email on 25th July 2016. This email indicated that the LGBTQ ceremony was an initiative of the Local Government Management Association and was agreed at a national level; that the Irish Government required the Irish flag to be flown at half-mast to mark respect for the victims of the Orlando tragedy and that the Council had a duty to support marginalised groups such as the LGBTQ Community. It was further indicated that the Respondent is non-denominational and that it does not support any specific religion within the community. In addition, it was also indicated that the LGBTQ Community has no specific location which represents its community whilst the Complainant could go to the Church, which is a more appropriate body/location to exercise his wishes.
The Respondent subsequently received an E.S. 1 Form from the Complainant. The Respondent replied as obliged and refuted any suggestion of discrimination and outlined that any similar request by any other religion would also be refused. In evidence it was stated that no similar requests had been granted previously.
The Respondent also stated that it is a non-denominational body; they never refer to anyone's religious denomination when they look for a service.
In conclusion' the Respondent submitted that the Complainant has failed to establish a prima facie case of discrimination on the ground of religion, that his case is misconceived and based on a fundamental misunderstanding of the Act. In the eyes of the Respondent the Complainant has failed to establish an evidential basis to support the complaint made and, as such, the complaint made should be dismissed.
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Findings and Conclusions:
The general rule in the context of the burden of proof is that the burden lies on the party asserting a particular claim. I have examined whether the Complainant has established a prima facie case of discrimination. The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”. It continued:
“It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.
In this regard, the Complainant must show that he has been treated less favourably than another person is, has been or would be treated in a comparable situation (as per s.3 of the 2000 Act). The Complainant must demonstrate that he has been treated less favourably than another religious group. In my view the Complainant has failed to adduce any evidence to demonstrate that he has been treated less favourably than another religious group. Rather the Complainant has compared his position as a Roman Catholic to that of members of the LGBTQ Community. He has erred in doing so; the LGBTQ Community does not constitute a religion, it is social group that may/can consist of many different religions.
In my view the Complainant has failed to discharge the burden of proof which initially lies on him to establish facts from which it could be reasonably assumed that he was discriminated against on the basis of his religion.
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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.
In reaching my decision, I have taken into account all the submissions, written and oral, made by the parties. My decision is that the complainant has failed to establish a prima facie case of discrimination on the Religion ground contrary to the Equal Status Acts, 2000-2015.
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Dated: 1/12/17
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Religion, Community Group, Local Authority |