A garda who claimed a work experience student at a hotel “smirked at” him and made his family cut their breakfast short because he was a foreign national has had his discrimination complaint rejected.
In a decision published on Wednesday, the Workplace Relations Commission has ruled the complaint under the Equal Status Act against the hotel was made out of time. The decision was anonymised to protect the identity of the work placement student, who was 16 years old at the time of the alleged incident in February 2020.
However, the adjudicating officer also found that the complainant had failed to establish a prima facie case of discrimination and that the respondent did not engage in “prohibited conduct”.
The garda officer said he was eating breakfast with his family on February 21st, the day they were checking out at the end of a “badly needed” short break when he was approached by the girl.
Already their trip had been marred by a lack of central heating to their room during a period of cold weather, the commission was told, and the portable heater they were given as a replacement didn’t work.
The complainant “accepted the solution as he had committed to the holiday and there was little choice at the time”, he said.
He said that he was asked to leave the breakfast table “before he was finished” by a waitress and that he challenged her “directly” – putting it to her that “she was treating him and his family differently because he was not Irish”.
He also asked her “if she was going to ask the other guests to leave the restaurant”.
“The waitress did not reply but smirked at the complainant and his family and walked away from him, leaving the complainant feeling demeaned and shocked,” he said.
The man told the commission he later observed people who seemed to him to be Irish arriving for a “late breakfast”.
“The waitress welcomed these guests and ushered them to a table and did not indicate that the restaurant was closed or that they were under any time constraints,” he said.
He claimed her “polite and friendly manner” with these other guests was “at total variance” with how he and his family were treated.
‘Singled out’
The man said there were four other tables at “various stages of their breakfast” and argued he and his family were “singled out” and left in no doubt they were not welcome “because they were not Irish nationals”.
The hotel said it was preparing for two major events that day and that staff were under pressure to clean up after breakfast to get the restaurant set up for the functions. It said that the waitress who dealt with the man and his family was a 16-year-old student on work experience.
It argued the complainant had provided no evidence to establish the character of the interaction between its staff and other people at the restaurant, except for what he “says he saw”.
“A ‘smirk’, and that is the complainant’s word, in no way constitutes discrimination, and… he himself saw that the staff member was very young,” the hotel’s lawyers submitted.
“He should have brought this matter to the immediate attention of a more senior member of staff and not to reference this on check out,” they added.
The solicitors submitted that a full refund was given to the man and his family after their stay to resolve “the many disputed complaints that he had during the course of his stay”.
Statutory deadline
The hotel’s position was that he accepted the refund and they considered the matter closed.
It was submitted that the allegation of discrimination was not put in writing until June 11th 2020, beyond the statutory deadline of two months to take a complaint, and that the adjudicator was bound to decline jurisdiction.
The garda told the court he had been injured in an assault a number of years prior to the hearing and relied on medication to manage neuropathic pain.
Adjudicating officer Peter O’Brien found that a medical cert submitted by the complainant only dealt with travelling to attend an in-person hearing, and could not justify an extension to the statutory timeline.
Mr O’Brien added that in any event, the officer had argued at the outset that he was waiting for a response from the hotel before he “changed” his stated justification for the delay.
“This claim involves a very young and inexperienced person aged 16 on a week of work placement where a large degree of ‘latitude’ would normally be expected to be given by a person, irrespective of nationality, to their behaviour due to their age and inexperience,” he wrote.
He agreed with the hotel’s submission that there was “no evidence” to support the claim that other people were treated differently on the basis of nationality at breakfast that day and that the complainant had failed to establish a prima facie case of discrimination.
Mr O’Brien ruled the complaint was out of time to issue a decision on the substance of the complaint, adding: “I find the respondent did not engage in prohibited conduct.”