Complainant

Respondent

Parties

Amaal  Zaki

Motivated Fitness Gym

Representatives

 Self-represented

Internal

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00067436-001

16/11/2024

The Complainant’s membership at the Respondent gym was terminated.

The Complainant submits that the termination of her membership was caused by a man with whom she had a personal relationship, after she broke the relationship off, and that he threatened that he was going to get her ‘kicked out’ of the gym as retaliation. She submits that he is an employee of the gym, which the gym denies.

The Complainant submits that the termination of her membership was discrimination on the ground of disability, specifically ADHD. The Complainant alleges that she has been excluded from multiple gyms and alleges that gyms in Cork are acting like a network to exclude her.

The Respondent denies the Complainant’s allegations. The Respondent submits that the Complainant’s gym membership was terminated due to the Complainant’s conduct and that she breached the terms and conditions of her gym membership.

It submits that the person in question identified by the Complainant is not an employee of the gym, as alleged.

The Respondent submits that it was not on notice of any disability and further submits that the reason the Complainant’s membership was terminated was her behaviour, specifically her persistent filming (and asking other patrons to record her) within the gym despite being requested to desist by the Respondent, leading to several complaints from other patrons. It further submits that the Complainant engaged in abusive behaviour towards its staff members. It submits that her conduct is in breach of the terms of her membership of the gym, and that it was for those reasons, and on that basis, that her membership was terminated, and not for any discriminatory reason or on any discriminatory ground. It submits that it is a standalone gym and has had nothing to do with any other gym (its competitors) banning the Complainant.

The Complainant submits that she was discriminated against, on the basis of disability. She said that she had ADHD and mental health issues. She outlined that she had been a previous member of the Respondent gym, left for a time and then re-joined. She outlined that there was a personal matter between her and a man, GM. She submitted that he was an employee of the gym, that he does their social media. [The Respondent denies that GM is an employee and explained that he is a member.] She alleged he told her ‘I’m going to get you kicked out.’ She characterised it as ‘retaliation.’ She said that she was accused of being ‘overtalkative.’ She said that was ‘part of mental health, part of ADHD.’

The Complainant was told that her gym membership was being terminated, on November 22nd, 2023 and then received a letter confirming that, dated November 24th, 2023.

The Complainant did not submit an ES1 form.

When she was notified that her gym membership was terminated, her response were words to the effect that ‘this is discrimination and I’m going to take it further.’ However, she did not identify a protected ground. The gym responded to her saying that it was not discrimination and then blocked her on all social media. The Complainant then filed a WRC complaint.

She further submitted that a different gym employee clicking on her public Instagram page constituted ‘harassment.’

She queried whether there was ‘any written thing about that’, in relation to the five complaints which the Respondent is pointing to. [The four written complaints were submitted to the WRC as part of the Respondent’s documents.]

She queried the sequence of events. Her view was that the issue with GM ‘came out of nowhere’. All the events happened over the course of two weeks, in total.

Her view was that the ‘retaliation’ – the termination of her gym membership - came first. She insisted that GM is an employee, despite the Respondent’s denial and clarification of the nature of the relationship. She submitted that the complaints were made up by the Respondent, after the fact. She said it ‘wasn’t communicated to me – if it was real, it wasn’t communicated to me.’ She said there was ‘no written thing.’

She submitted that she had a disability and that she was being excluded on the basis (an)other gym member(s) did not like her. She submitted that the allegations in relation to her filming was not the reason for her exclusion. She submitted that the reason used – the complains by five people that she had disturbed their workout – constituted discrimination whether the gym knew she had ADHD or not. She said, of the gym: ‘What did they do?’ They provided ‘no warning’, ‘no chance’, no-one ‘reached out and tried to rectify’ or said ‘we can accommodate you etc.’ She submitted that she was ‘overtalkative’, which she submitted was a symptom of ADHD.

Ms. Emma O’Sullivan presented the case on behalf of the Respondent.

The Respondent gym said that it was receiving multiple complaints, both verbal and also in writing, in relation to the Complainant. The complaints pertained to her filming in the gym (with other patrons in the background) or her asking them to film her, and being disruptive to their workouts and their use and enjoyment of the gym. It outlined that its members did not feel it was a comfortable environment. It submitted that the Complainant had been spoken to previously, and requested to alter her behaviour. She persisted in the same behaviours and it cancelled the Complainant’s membership. She was told this verbally on November 22nd, 2023, and then that was confirmed in writing, by letter dated November 24th, 2023.

The Respondent outlined that it was not on notice of the Complainant’s disability, that the google review that the Complainant left the Respondent, subsequent to the termination of her membership, in which she made a number of disparaging comments was the first time she had made any mention of her neurodivergence.

Summary of the Respondent’s written submissions

The Respondent highlighted in particular, by way of supporting documentation:-

1. Membership Terms & Conditions with relevant sections highlighted.

2. Letter to the Complainant dated 24.11.2023 and emailed on the same day.

It submits that the Complainant breached the Terms & Conditions of the Respondent, in particular:- ‘You must treat all club members and staff with the consideration that you would reasonably expect them to show to you. In particular, you must not make remarks that are rude or offensive or behave in a manner that is dishonest, aggressive or indecent.’

It submits that the Complainant sent staff members am email telling them to 'f*** off', which the Respondent submits is verbal abuse, and further submits it is not something the gym is willing to tolerate. (copy of email submitted).

The Respondent denies the Complainant’s claim that this allegation is ‘new’ or ‘false.’

The Respondent submits that it received five complaints in respect of the Complainant and did not disclose the identities of those customers (gym users) to the Complainant in order to avoid them suffering harassment. [Copies of the (four) written complaints were submitted to the WRC and copied to the Complainant.]

The Respondent denies the Complainant’s allegation that the complaints emanated from a person with whom she ended a personal relationship and his ‘friends.’ It further denies the Complainant’s allegation that it ‘fabricated’ the complaints against her.

The Respondent submits that the Complainant’s Instagram page was public. It therefore denies her claims that accessing her public page constitutes or could constitute ‘stalking or harassment.’ It submits that it accessed the page as the Complainant had alleged she was unable to access other gyms – something for which she blames the Respondent. However, it submits the content posted on her public Instagram page contradicts this claim.

The Respondent submits that it stands over its decision to terminate the membership of the Complainant and reiterates that it was not done on the basis of a bias or for the purpose of discrimination. Instead, it submits that it was done for the best interest of its staff and of its members.

The Respondent denies the Complainant’s allegation that it ‘bad-mouthed’ her, and/or that it had anything to do with her being unable to get membership in other gyms due to her membership being terminated by the Respondent. It further highlights that the Complainant stated in her complaint that she had been ‘kicked out of’ more than one gym (unconnected with the Respondent gym).

The Respondent submits that it was the Complainant’s actions which were the reason it cancelled her membership; and that it was not a personal decision or one made with any bias or discrimination. It submits that it has provided comprehensive evidence of same, and further highlights what it submits is a lack of evidence in support of the Complainant’s case.

At the hearing, the Complainant alleged that ‘they made up a story because I am neurodivergent.’ The Respondent gym re-iterated that it was not on notice that the Complainant had ADHD, and further re-iterated that was not the basis of the termination of her gym membership. It further submitted that ‘a lot of people would talk too much. It’s not specific enough to ADHD. There is no evidence of discrimination.’

It stated that the Complainant’s gym membership was terminated on the basis of her filming in the gym, which was objected to by other gym members, asking other gym members repeatedly to film her, which was objected to by other gym members, and failing to alter or desist from those behaviours, when requested to do so by gym management. It further submitted that she had engaged in verbal abuse, subsequent to the termination.

I have carefully reviewed this case, and reviewed all of the documentation submitted by both sides as well as the oral evidence and submissions presented at hearing.

There is a statutory obligation under s. 21(2) to notify the Respondent within 2 months after the prohibited conducted is alleged to have occurred, setting out the nature of the allegation, and the Complainant’s intention if not satisfied with the Respondent’s response to the allegation to seek redress by referred the case to the WRC. This can be done by ES1 form or some other means.

Statutory Requirement of Notification

The Complainant did not send an ES1 form.

The Adjudication Officer enquired as to whether the Respondent was otherwise notified. The Complainant had said words to the effect that ‘this is discrimination and I’m going to take it further’, in respect to being told that her gym membership was being terminated. The Respondent submitted that it was a stranger to the Complainant’s neurodivergence (ADHD) until she subsequently published a disparaging GoogleReview of its gym which referenced it.

I find that that is insufficiently particularised in order to meet the statutory notification requirement set out under s.21 of the Equal Status Act 2000, as it fails to identify the protected ground upon which the Complainant is alleging discrimination took place. The purpose of the provisions set out in s. 21 is to provide the Respondent with an opportunity to respond to the allegation raised against it. There is also a requirement that the notification be in written form (typically by ordinary letter). I have had regard to the decisions of DEC-S2007-039 Tracey O'Brien & Frances McCarthy V. Ruaraí 's Bar, Tralee and DEC-S2010-031 Andrew Ennis V. Navan O'Mahony's Football and Hurling Club, when considering the issue of statutory notification.

The termination of the Complainant’s gym member occurred at a meeting, verbally, on 22nd November 2023, and then confirmed in writing, by letter dated 24th November 2023.

I find that the notification was insufficient to meet the statutory requirement set out under s. 21 of the Equal Status Act 2000.

Statutory Time-limit: filing of the WRC complaint

The Complainant filed her complaint with the WRC outside the statutory time-line of six (6) months). She did file it within the potential extended period of twelve (12) months.

However, I find that there are no exceptional circumstances which would warrant the extension of the time frame for filing a complaint with the WRC from 6 months to 12 months. I therefore find that this complaint is out of time.

Burden of Proof

The initial burden is on the Complainant to adduce facts from which an inference of discrimination can be drawn, i.e. the Complainant has to establish a prima facie case, which would then reverse the burden to the Respondent requiring it to disprove that the complained of conduct occurred on the basis of a protected ground.

I find that the Complainant has presented no facts from which it could be inferred that she was the subject of unlawful discrimination.

I therefore find that the Respondent has no case to answer.

I find for the Respondent.

Equal Status; Disability; No notification; Out of time; Prima Face case;