Complainant

Respondent

Parties

Virgilio  Da Rocha Lyra Neto

Bray Swimming Pool Sport & Leisure Centre Ltd.

Complainant

Respondent

Anonymised Parties

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Representatives

  Self - represented

Karl Hutchinson, LawPlus Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00063361-001

08/05/2024

The Complainant is alleging that he has been discriminated against on grounds of race by the Respondent in relation to his conditions of employment.

The Complainant is a Brazilian national. He states that he commenced employment with the Respondent in September 2019.  The Complainant contends that in August 2023, when he requested equal working conditions vis a vis the other coordinator as regards working hours, he became a target by management and was subjected to ongoing bullying.

The Complainant states that the first red flag was when he sent an e-mail to the general manager about his hours of work and copied in the other managers on said e-mail. The Complainant states that the following morning the general manager started shouting at him in front of members and other staff, stating that he should not copy in anyone on his e-mails and that going forward he is prohibited from doing so. The Complainant states that immediately after, the general manager Mr B went to the duty manager’s computer and accessed it without consent and deleted the e-mail, so the duty manager could not view it.

The Complainant states that subsequently he started to feel targeted when one of the duty managers, Ms A started setting the time that the Complainant should take his break when that was never the case before. The Complainant states that it got to the stage where he was given so many extra and minor activities, he had no hours left on his shift to do his job as coordinator. The Complainant states that he informally expressed his concerns in this regard to the duty manager first and then to the general manager but nothing was done.

The Complainant states that he decided to stand up for himself and said to the duty manager, Ms A that he could not attend at the pool because he had so much other work but then he was brought to the general manager’s office.

A meeting took place between the Complainant, the duty manager, Ms A and the general manager, Mr B. The Complainant states that Ms A was incapable of understanding his view that he had so many other activities and work, the extra minor activities that he was being tasked with were interfering with his main job.

The Complainant states that he had more meetings with the general manager where he pointed out where things could have been done better but the general manager did not deal with any of his concerns.

The Complainant states that subsequently he had a job offer from another company but that he was persuaded by the company to stay with the respondent and in the same industry. The Complainant states that he was advised to apply for the duty manager position but that this position was then given to a relative of management.

The Complainant states that he requested a meeting with the CEO of the Respondent but that the CEO refused to meet with him stating that he was already “aware of the situation”.

The Complainant states that he subsequently had to go on sick leave because of the bullying and the stress he was under in the Respondent company.

The Respondent states that it is a sports and leisure company that provides gym, pool, fitness classes and swimming lessons. It states that the company employs over 30 employees of diverse nationalities.

The Respondent denies the allegation of discrimination and states that there is no basis to the Complainants claims. 

The Respondent states that in or around March 2024, management expressed concerns about the Complainant’s attitude and behaviour. It was stated that the Complainant removed himself from the swim roster and refused to carry out instructions from his Duty Manager. The Respondent indicated that there were concerns as to whether the Complainant was engaging in personal training while on duty which is prohibited.

The Respondent submits that the Complainant had difficulty with authority and acted in a disruptive  and disrespectful manner towards the Duty Manager and to staff generally.

The Respondent states that meetings were held with the Complainant and members of management to try and resolve matters but the Complainant did not co-operate in that process.

The Respondent states that on 8 April 2024, the Complainant sent in a sick certificate.  The Respondent states that the Complainant continued to send in sick certs through to the cessation of his employment on 27 August 2024.

The Respondent denies the allegations of discrimination on grounds of race. It states that the Complainant has failed to establish a prima facie case.            

The Complainant is alleging that he has been discriminated against on grounds of race by the Respondent in relation to his conditions of employment. The Respondent rejects the claims.

Discrimination for the purposes of this Act

Section 6(1) of the Employment Equality Acts 1998 (as amended) (‘the 1998 Act’) states:

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) 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) (in this Act referred to as the “discriminatory grounds”)

Section 6(2) provides that: as between any two persons, the discriminatory grounds are inter alia:

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

Section 8 of the Act states:

Discrimination by employers etc.

(1) In relation to— (a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

Burden of Proof

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The WRC and the Labour Court have held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a presumption of discrimination is established and the burden of proof shifts to the Respondent.

In the case of Melbury Developments and Valpeters EDA 0917 the Labour Court stated as follows:

‘Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.’

The Labour Court in the case of Southern Health Board v Dr Teresa Mitchell DEE 011 considered the extent of the evidential burden which a Complainant must discharge before a presumption of discrimination can be made out. The Labour Court stated that

‘The first requirement of Article 4 of the Directive is that the claimant must "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a 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 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 Graham Anthony & Co Ltd. v Mary Margetts EDA038, the Labour Court remarked:

‘The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.’

In deciding on this complaint, therefore, I must first consider whether the presumption of discrimination on the ground of race has been established by the Complainant. It is only where such a presumption has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

Comparator

Section 28 of the Acts in relevant parts provides that:

28.The comparators

(1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:

in relation to the ground of race, C and D differ as to race, colour, nationality or ethnic or national origins or any combination of those factors;

The issue for consideration by me is whether or not the Complainant was discriminated against by the Respondent on the ground of race in his conditions of employment.

While the Complainant has made allegations of unfair treatment in his employment; he lodged a claim of discrimination on grounds of race under the provisions of the Employment Equality Acts.

Having carefully examined the complaint, I find that there was nothing put before me to demonstrate thatthe Complainant was treated less favourably on grounds of his race as claimed. The Labour Court has stated previously in Melbury Developments and Valpeters [2010] ELR 64, “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

 In all of the circumstances of the within claim, I find that the Complainant has not established a nexus to the alleged treatment and his race. Therefore, his complaint fails.

I find that the Complainant was not discriminated against by the Respondent on grounds of race in his conditions of employment contrary to the Employment Equality Acts.

Employment Equality Acts, race, no prima facie case