ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00012151
| Complainant | Respondent |
Anonymised Parties | A Customer | A Retail Chain |
Representatives | none | Solicitor |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00016110-001 | 03/12/2017 |
Date of Adjudication Hearing: 03/04/2018
Workplace Relations Commission Adjudication Officer: Stephen Bonnlander
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and 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 referred his complaint on 3 December 2017. It was delegated to me by the Director General on 6 March 2018. I engaged in preliminary correspondence with the parties on certain kinds of evidence submitted by the complainant, which I will address in more detail below. The hearing of the complaint took place on 3 April 2018. |
Summary of Complainant’s Case:
The complainant’s complaint is on the ground of civil status. At the hearing of the complaint, he clarified that it was his single status, combined with local knowledge that he was a former priest, which made him the victim of allegations of homosexuality and paedophilia. His entire complaint is in fact about harassment related to these assumptions. The complainant submitted copious correspondence with the manager of the specific store he patronises, as well as the respondent’s headquarters, on the alleged treatment he was subjected to at the store premises. He also submitted audio recordings allegedly made in the store. These were also sent to the respondent on DVD. The alleged treatment continued for many years. In 2011, he made a complaint to the store manager, which the manager endeavoured to investigate. That said, all these written complaints are greatly lacking in specificity. During the hearing of the complaint, the complainant stated that on 13 July 2017, a person in the store said that the complainant “likes children”. On 3 October 2017, the complainant stated that someone called him a “paedophile”. On 17 October 2017, someone stated that the complainant was gay and should be killed. In each of these instances, the complainant was not able to identify who made the remarks. The complainant disputed the respondent’s assertion that the store staff are obliged, under the chain’s customer service policy, to wear name badges. He asserted that the people making the remarks did not wear their badges and had possibly taken them off. |
Summary of Respondent’s Case:
The respondent had the store manager and another section manager from the store in attendance as witnesses. Both of these men were allegedly recorded on the complainant’s audio recordings. I therefore asked both of them whether they had been aware of being recorded, or had consented to being recorded. Both denied this. They also stated that they had listened to the complainant’s audio recordings, and that none of the persons named on those recordings did in fact work for the respondent store. They also gave evidence, set out above, on the issue of staff wearing name badges. They asserted that it is the respondent’s policy for staff to wear name badges. |
Findings and Conclusions:
As a preliminary matter, I refused to admit the complainant’s audio recordings in evidence. I wrote to the complainant, with copy to the respondent, on 26 March 2018 to alert him to some of the problems arising from his submission of audio files. This was to give the complainant, who is unrepresented, an opportunity to re-organise the running of his case. I did not raise the case of Arnold and Kennedy v. Attorney General [1987] IR 587 with the complainant because I wished to hear evidence from the respondent witnesses on issues of privacy and consent first. The respondent witnesses denied any knowledge or consent of these recordings. My reasons for refusing these as evidence are therefore twofold: First of all, unlike video recordings, audio recordings are harder to authenticate in terms of location and what person is speaking, which is essential in a case where a respondent could be fixed with liability because of events in a specific business premises. Even if the persons recorded could be satisfactorily identified by voice alone, the recorded conversation need to have happened on the respondent’s premises. Second, from the evidence of the respondent witnesses as noted above, I am satisfied that the recordings were made surreptitiously and without the consent of those recorded and thus illegally obtained within the meaning of Arnold and Kennedy v. Attorney General [1987] IR 587. They are therefore not admissible in evidence before the Commission, even considering the relatively lenient approach to certain forms of evidence, such as hearsay evidence, that guides the adjudicative work of the Commission. I also asked the complainant to clarify why he brought the complaint on the civil status ground when all conduct complained about relates to the sexual orientation ground. I am willing to accept the complainant’s explanation on this, which is set out in the summary of his complaint above. In any event, given the long correspondence between the parties on this matter even prior to the filing of the within complaint, I am satisfied that the respondent is not prejudiced by this shift in emphasis to matters of sexual orientation. I asked the complainant to identify specific incidents between 3 June 2017 and 3 December 2017 (the day on which the complaint was filed) to establish whether there were any incidents for which a valid prima facie case could be made out, to establish whether the complaint was in time pursuant to the provisions of S. 22(6) of the Equal Status Acts 2000-2015. The complainant then proceeded to make the allegations outlined in the summary of his complaint as stated above. I note the conflict of evidence between the parties about staff wearing their name badges. I accept the store manager’s evidence that when he sees a staff member without a name badge on the floor, the staff member is issued with a new badge on the spot. The section manager also stated in evidence that the store’s HR manager checks this regularly. I accept this evidence, too. It also tallies with my personal experience of this major retail chain, which is widely present in locations all over the country. However, management cannot be on the floor all the time, and it is not inconceivable that if staff members of the respondent did indeed make the alleged remarks, they took off their name badges so as to remain anonymous. The remarks, if true, would amount to very serious harassment after all. That said, the onus remains on the complainant to identify the people who spoke to him in this way in a satisfactory manner, to enable the respondent to establish whether they were indeed staff members and if so, to question them about it and to be able to produce them as witnesses in litigation. The complainant was not able to do so. He specifically resiled in his evidence on the hearing day from allegations that certain named individuals were in fact employed by the respondent. He was not able to name a staff member of the respondent’s in connection with the incidents he raised in his oral evidence. That is insufficient to establish a prima facie case within the meaning of Section 38A of the Acts. Therefore, given that no valid prima facie case was established within the proscribed time period of six months prior to the filing of the complaint, I find that the entire complaint must fail. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
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 find that the respondent did not discriminate against the complainant, by allowing his harassment under either the civil status ground or the sexual orientation ground, contrary to Section 11 of the Equal Status Act 2000 to 2015. |
Dated: 09 April 2018
Workplace Relations Commission Adjudication Officer: Stephen Bonnlander
Key Words:
Harassment – civil status – sexual orientation – time limits – prima facie case for an event within six months prior to the filing of a complaint – non-admissibility of audio recordings obtained surreptitiously and without consent: Arnold and Kennedy v. Attorney General [1987] IR 587. |