Equal Status Acts, 2000 to 2008
Equality Officer Decision
DEC-S2008- 079
Dr Anthony Kudryavitsky
-v-
Ballyfermot Resource Centre
File Ref: ES/2006/0007
Date of Issue: 31 October, 2008
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts, 2000-2004. In accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2004, the Director delegated the complaint to me, Elaine Cassidy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000-2008. On 21st July, 2008, my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 27th August, 2008.
1. Dispute
This dispute concerns a claim by the complainant, Dr Kudyravitsky that he was discriminated against and victimised by the respondent on the grounds of race in terms of Sections 3(1)(a) and 3(2)(h) of the Equal Status Acts, 2000-2004 in not being provided with a service which is generally available to the public contrary to Section 6(1) of the Equal Status Acts, 2000-2004.
2. Summary of the Complainant’s Case
2.1 The complainant is a Russian national with Irish citizenship via a grandparent. The complainant visited the Ballyfermot Family Resource Centre on 9th November 2005 to use the internet facilities which were available free of charge to the public. When the complainant asked at reception to use the computer, the receptionist ignored him for about three minutes before giving him permission. While the complainant was reading his email, the receptionist moved closer and tried to read it also. The receptionist said he could not understand it and asked him if he was looking for a job. The complainant responded that he was not looking for a job and that the receptionist should not be reading another person’s private correspondence. The receptionist became agitated and started using foul language. The complainant asked him why he was being so rude and the receptionist told him that “.. this is the kind of English you f***ing foreigners are supposed to understand”. The complainant says that the receptionist refused to give his name. The complainant left immediately afterwards.
2.2 The following day, November 10th 2005, the complainant visited the Centre and asked to speak to the manager, Ms A. The complainant was taken to the manager’s office where he handed over a letter of complaint about the previous day’s incident. He requested that Ms A look into the violation of privacy and the racist jibe which had occurred the previous day. He requested the name of the receptionist and warned that he would take his complaint to the Equality Tribunal if they continued to victimise him like that. Ms A told him that she did not tolerate racism and she invited the complainant to walk around the building to find the employee in question. The man, Mr B, was identified and Ms A asked both men to come to the canteen to discuss the matter further. Mr B denied the incident and used foul language during the meeting. The complainant asked for his name, but this was not provided. The complainant asked Ms A to respond to his letter, but she refused. The complainant advised Ms A that he was not happy with the situation and that he would file a complaint with the Equality Tribunal. The complainant then left the canteen and went to reception to book a PC for the following day. Ms A followed him to reception and told him that he could not use the PC until the complaint was resolved. The complainant says that he was not offered any other options and that this effectively meant he was barred from the facility for good. The complainant maintains that this constitutes victimisation, as it occurred after he had threatened to contact the Tribunal.
3. Summary of the Respondent’s Case
3.1 The respondent was represented by two employees at the Tribunal; the manager Ms A and the chairman Mr C. Mr C began by giving some background regarding the Ballyfermot Resource Centre. He explained that it is a multi-cultural centre with a purpose of serving the community, generally free of charge, using a combination of paid employees and volunteers. The Centre is funded by Pobal, Fas and the FSA, and it provides, among other things, a counselling service, a crèche service, meeting rooms and internet facilities. One of their mandates is to assist people in the transition back to work from long-term unemployment/ drug use /homelessness. The people who participate in this programme are given the opportunity to work in all areas of the centre (except the crèche) in order to provide them with a variety of work experience. The respondent provides training for these employees, but points out that the very nature of the centre is to assist people with limited skills to re-integrate into the workplace and therefore the service they provide would not necessarily be of the same level as a commercial enterprise.
3.2 Regarding the allegation of discrimination against the receptionist (Mr B), the respondent explained they could not ask Mr B to attend the hearing, because he had unfortunately reverted to drugs and was now homeless and uncontactable. Mr C pointed out that at the time of his employment with the Centre, Mr B had given up drugs and was considered fit for work. In the absence of Mr B, the respondent was unable to directly defend the allegations, other than to say that Mr B had denied it during the November 10th meeting with Ms A and the complainant. Mr B did agree during this meeting that he had tried to make conversation with the complainant, but said that he did not invade his privacy by reading his email. According to Mr C and Ms A, it may have appeared to the complainant that Mr B came too close to him, because of the set-up of the area. (As a result of building renovations, they had to move the public PC’s into the reception area, which was a very confined space.) The respondent also explained that Mr B was just covering reception for a few hours that day and was not experienced in this area. As a result of the complaint, they changed their reception cover so that Mr B would not be working there again. The respondent went on to say that they very much regretted the upset caused to Dr Kudryavitsky, and that racism was not characteristic of the multi-cultural ethos of the Centre. They said that they had not received any other complaints of this type and that generally people who used the Centre would be aware of the limitations of their service and their employees.
3.3 Regarding the allegation of victimisation, Ms A gave her account of the incident of November 10th 2005. She said that the complainant had come to her office and given her a letter to read. She described the complainant as very agitated and said that he kept making comments about racism while she tried to read the letter. As a result she did not feel could digest the letter properly and invited him instead to come with her to try to talk directly to the employee and sort it out. Ms A invited both men into the canteen instead of her office, because it was more open and she was concerned that there would be tension between the two. During the meeting between the three of them, Ms A said that the complainant was extremely upset and called both her and Mr B racists. She denies that Mr B used foul language during this meeting. The meeting ended when the complainant left to go to reception to book a PC for the following day. Ms A told him he could not do that until the matter was resolved. She says that she was concerned that the situation could become aggressive and unsafe for her other employees. Ms A is adamant that she advised the complainant of other locations where he could avail of free internet facilities. Ms A provided an incident log covering the above event, however this log was unsigned and not dated. Ms A’s written response to the complainant was sent in response to his notification under the procedures of the Equality Tribunal.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.2 Regarding the first alleged incident of discrimination on November 9th, on balance I believe the complainant’s version of events; ie: that he perceived the receptionist to be invading his privacy and that when he complained, the receptionist used abusive language towards him. The specific content of the abusive language amounts to less favourable treatment on the grounds of race. In coming to this conclusion I have regard to the complainant’s detailed letter written on the day itself, compared with the respondent’s lack of any contemporaneous notes on the incident and lack of direct witnesses to contradict him. Thus the respondent has failed to rebut the allegation.
4.3 Regarding the second incident and the allegation of victimization by the manager Ms A, I generally accept the complainant’s factual account of what took place during his meeting with Ms A and that I accept that he genuinely believed that he was barred from the Centre following his threat to complain to the Equality Tribunal. There were some discrepancies between the two parties’ version of events, but I note that the complainant wrote an immediate account of the events whereas the respondent’s version appeared to be written some time afterwards. Therefore I consider that the complainant has established a prima facie case of victimization and I must examine whether the respondent has successfully rebutted the allegation. As a rebuttal, Ms A claimed during the oral hearing that she did not have time to fully comprehend the complainant’s letter due to his agitated interruptions. Ms A also claimed that it was not her intention to bar him completely – rather that she wished to diffuse an immediate and potentially threatening situation. Ms A also claims that she advised him of alternative internet facilities as a compromise. On balance, I believe that Ms A was concerned at the level of tension during the incident and genuinely felt that there was a threat posed by allowing the complainant to use the facilities again while the matter between the two men was unresolved. Therefore I accept Ms A’s defence that she did not bar him as a result of the threatened complaint, but instead she barred him as a result of her concern about everyone’s safety. Thus I consider the allegation of victimization to be successfully rebutted.
5. Decision
5.1 On the basis of the foregoing, I find that a prima facie case of discrimination has been established by the complainant on the race ground in terms of sections 3(1) and 3(2)(h) of the Equal Status Act, 2000-2004 and that the respondent has failed to rebut it. On the issue of victimisation contrary to section 3(2)(j), I also find that the complainant established a prima facie case, but this was rebutted by the respondent.
5.2 In coming to the issue of redress, I am aware of the need to ensure the amount is effective, proportionate and dissuasive. However there are some circumstances which I also consider significant:
- That one of the purposes of the centre is to help disadvantaged people back into the workplace. As a result their resources are limited and their employees may not yet be in a position to provide the same professional standards as other organisations.
- That this was a one-off incident.
- That the respondent apologised to the complainant for the upset suffered, invited him back to the Centre and advised that they had moved the employee away from reception duties following the incident.
Therefore I award the complainant 150 Euros for the upset caused by the discrimination. Finally I consider that the respondent may wish to consider providing training for management and employees in the subject of complaint-handling and conflict management.
Elaine Cassidy,
Equality Officer
31 October 2008