THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 - 2008
Decision DEC-S2011-059
PARTIES
Razvan Ghetau
and
New Ross Coarse Angling Limited
(Represented by John G. Flynn Solicitor)
File References: ES/2010/083
Date of Issue: 14th December, 2011
Equal Status Acts, 2000 to 2008
Equality Officer Decision DEC-S2011-059
Razvan Ghetau
-v-
New Ross Coarse Angling Limited
(Represented by John G. Flynn Solicitor)
Keywords
Equal Status Acts, 2000-2008 - Direct discrimination, Section 3(1)(a) - Race Ground, Section 3(2)(h) - Disposal of Goods and Services, Section 5(1)
Delegation under the Equal Status Acts, 2000-2008
This complaint was referred to the Director of the Equality Tribunal on 11 August, 2010 under the Equal Status Acts, 2000 to 2008. On 13 September, 2011, in accordance with his powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 to 2008, the Director delegated the complaint to me, Enda Murphy, 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 to 2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 30 November, 2011.
1. Dispute
1.1 This dispute concerns a complaint by the complainant, Mr. Razvan Ghetau, that he was discriminated against by the respondent, New Ross Coarse Angling Limited, on the Race ground in terms of Sections 3(1)(a) and 3(2)(h) of the Equal Status Acts, 2000 to 2008 and contrary to Section 5(1) of the Equal Status Acts, 2000 to 2008 in relation to the respondent's refusal to allow him to fish on its grounds at Oakland's Lake on 16 June, 2010.
2. Summary of the Complainant's Case
2.1 The complainant is a Romanian national and he has been residing in Ireland since 2007. On 9 June, 2010, the complainant and his girlfriend, Ms. X, visited the respondent's fishing amenity at Oakland's Lake in New Ross to enquire about the rates for fishing and the other equipment required to fish on the lake. The complainant submitted that he spoke to one of the respondent's employees and was informed that there was a fee of €10 per person for a day permit and that he would require barbless hooks, a landing net, bait and rods. The complainant, who is a keen fisherman, and his girlfriend returned to Oakland's Lake on 16 June, 2010 and approached another of the respondent's employees, Mr. Y, at reception and requested to purchase two €10 day fishing permits. The complainant submitted that he was informed by Mr. Y that the €10 day permits did not exist anymore and that it was only possible to purchase annual permits (at a cost of €200). The complainant became suspicious upon hearing this information and he informed Mr. Y that he wished to purchase two annual permits worth €400. The complainant stated that Mr. Y responded that there was also an extra charge of €10 for each visit in addition to the annual permit fee. The complainant submitted that he realised at that juncture that he was not welcome to fish at the lake and upon leaving the premises he saw the Oakland's Lake entrance sign which stated that "Day and Annual Passes" were available.
2.2 The complainant went back to Mr. Y to speak about the pricing structure and was once again informed that day permits were not available and when he pointed out that the sign indicated that day permits were available, Mr. Y became furious and went outside to the sign and crossed out the word "Day" with a black marker. The complainant submitted that he was positive at that juncture that something was wrong and that he was not going to be allowed to fish on the lake under any circumstances so he went back into reception and asked Mr. Y to come outside and talk to him as he wanted to establish the real reason why he was being refused permission to fish on the lake. The complainant submitted that Mr. Y came outside and informed him after a lot of pressing that Eastern European people were not allowed to fish on the lake anymore and that there was a ban on Eastern European people on the premises because they took the fish home instead of returning them to the lake. The complainant submitted that his girlfriend upon hearing this tried to explain that she was an Irish national and not an Eastern European; however, Mr. Y stated that the reason he would not allow them onto the lake was because they would steal the fish. The complainant submitted that his girlfriend presented a number of possible solutions to Mr. Y in an attempt to allay any fears that he may have had in this regard, such as agreeing to fish in front of the reception area and setting their fishing spot underneath one of the CCTV cameras installed around the lake; however, Mr. Y responded by stating that "if I let you fish here, others like you will want to get in too".
2.3 The complainant submitted that he went to the local Garda station to report the matter but was informed that it was a civil matter. The complainant submitted that he realised Mr. Y was unlikely to admit discrimination before a Court so he (and his girlfriend) decided to return to the lake and to video record a conversation with him regarding the matter. The complainant submitted that Mr. Y was not present at the lake immediately upon their return so they walked around the lake and spoke to a number of other fishermen who confirmed that they had purchased €10 day permits to fish on the lake. The complainant submitted that Mr. Y eventually returned to the reception area and he initiated a conversation with him regarding the reason surrounding the refusal to allow his partner and himself to fish on the lake. The complainant submitted that Mr. Y admitted that there was a "ban" on Eastern European nationals from fishing on the lake and he went on to explain the reasons for the implementation of such drastic measures. The complainant submitted that Mr. Y, in an effort to justify the reasons for the ban, told him a story about four people who had been fishing on the lake one day (two Russian nationals and two Polish nationals) who had attempted to steal fish from the lake.
2.4 The complainant submitted that Mr. Y would not change his position regarding the ban on Eastern European nationals and he concluded the conversation by admitting that he was not allowed to fish on the lake because of his race and the place where he had come from i.e. Eastern Europe. The complainant submitted that he informed Mr. Y that he was on camera towards the end of their conversation to which he replied that "was fair enough". The complainant submitted that he left the lake at that juncture has not returned to the premises since. The complainant submitted that he felt humiliated and degraded in terms of the events that occurred on the 16 June, 2010 and he claimed that the actions of Mr. Y, in refusing him permission to fish on the lake, clearly amounted to discrimination on the grounds of his race contrary to the Equal Status Acts.
3. Summary of the Respondent's Case
3.1 The respondent company was incorporated in 1997 as a non-profit making vehicle for the purposes of developing a course angling lake at Oaklands, on the outskirts of New Ross, Co. Wexford. The respondent submitted that a group of volunteers from the New Ross area with an interest in angling came together in the late 1990's with a view to promoting a project to enhance the local environment. The project chosen was the development of a coarse angling lake as an amenity and attraction for both local and visiting/tourist coarse anglers. The respondent submitted that funding for the maintenance and improvement of the facilities is derived from permit fees/annual membership; sales from the on-site fishing shop and from certain grants of a community nature which the company has been able to access by virtue of its volunteer status. The respondent submitted that the members of the Board of the Company (Mr. Y being a Director) are volunteers and are all unpaid for their directorships. The respondent submitted that the company, which has its origins and ethos in a volunteer community background, has a track record of promoting equality, fair treatment and is proud of its achievements in making the activity and enjoyment of coarse fishing something which can be enjoyed by everyone (not just the able bodied and adult segment of the population). The respondent submitted that the facilities are designed and laid out to facilitate people with disabilities and it also positively encourages an interest in the sport on the part of young people.
3.2 The respondent accepts that in the case of the complainant, an unfortunate set of circumstances arose, and that whilst Mr. Y tried to make it clear to the complainant that he had no issue with either him of his girlfriend, nevertheless, it was accepted that there was discrimination within the meaning of the Equal Status Acts in terms of the incident that occurred on 16 June, 2010. The respondent submitted that while the fundamental reason for the difficulty in the present case is not offered as an excuse for the discrimination, it does require an explanation as to the circumstances and background surrounding the respondent's refusal to allow the complainant to fish on the lake on the date in question. The respondent submitted that there are two different types of angling/fishing, namely: ordinary fishing, where the fish are caught and landed and killed and are generally regarded as edible e.g. trout and coarse angling/fishing, which involves catching and returning to the water (alive) fish of various species which are generally regarded as inedible. The respondent submitted that the lake at Oaklands is stocked exclusively with coarse fish and consequently, is clearly promoted and advertised as a coarse angling/fishing facility only subject to the rule that it is a 'strictly a catch and release' facility.
3.3 The respondent submitted that the differentiation between the two different types of fishing has historically caused no difficulties in Western Europe as the recreational and, indeed, culinary habits and tastes are well established and accepted. However, other cultures differ and it is apparent that in other cultures different practices are the norm and it would appear that there is not such a rigid acceptance of a clear distinction between consumable and non-consumable fish. Accordingly, the opening of the frontiers and increased movement within EU countries at the beginning of the last decade, fishermen (and women) from other countries came to Ireland and brought with them a different dispensation. The respondent submitted that it would seem that the barriers created by language, quite apart from culture, contributed to these difficulties. The respondent submitted that it did experience difficulties with the 'catch and release' philosophy of the facility and there were a series of documented problems where visiting anglers either failed to appreciate this philosophy or, perhaps, in certain circumstances, deliberately acted in breach of the fundamental rules. The respondent submitted that this involved a worrying escalation of the taking and killing of fish and were such problems to become established it would have resulted in two problems; namely, the disturbance of the ecological balance which had been developed and built up in the lake and the cultivation of certain species (including carp) is a slow and expensive process.
3.4 The respondent submitted that several instances were noted and recorded where carp (in particular) were taken and killed and regrettably, this practice was noted as being prevalent with anglers coming from what might be loosely described as 'an Eastern European' background. The respondent submitted that this was the problem which Mr. Y was attempting to explain to the complainant on the date in question and that he repeatedly tried to explain to the complainant that he had no personal objection or animosity towards him. The respondent submitted that it is, of course accepted, that Mr. Y was not entitled to discriminate against the complainant on the basis of race and it was further submitted that Mr. Y deeply regrets any distress that he caused to the complainant and that he failed to adequately explain to him (on the date in question) the fundamental cause of the difficulty in the matter. The respondent submitted that there are currently a significant number of anglers of all nationalities, including those of Eastern European origin, who regularly fish at the facility without any difficulty whatsoever. The respondent submitted that it is important to put on record that anglers of any nationality and or cultural background are welcomed and do actually fish the facility on a regular basis (subject to adherence to the rules, the primary one being that it is a 'catch and release' facility).
3.5 In conclusion, the respondent accepted that the complainant was subjected to discrimination within the meaning of the Equal Status Acts in terms of the incident that occurred at the lake on 16 June, 2010 and it submitted that it wished to unreservedly apologise to the complainant for what occurred on that date. The respondent submitted that the complainant and his girlfriend would be welcome at the lake on the same basis as all-comers.
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 can rely in asserting that prohibited conduct has occurred in relation to him. 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. In making my decision, I have taken into account all of the evidence, both written and oral (including the video recordings), made to me by the parties to the case.
4.2 In the present case, the complainant has claimed that he was subjected to discrimination on the grounds of his race on 16 June, 2010 when he was refused permission by the respondent to fish on its lake because of the fact that he was of Eastern European origin. Having regard to the evidence adduced, I note that the material facts surrounding the events that occurred between the complainant and the respondent's Director, Mr. Y, on this date were not in dispute between the parties. In this regard, it was accepted by the respondent that the complainant was refused permission by Mr. Y to purchase a fishing permit to fish on the lake on 16 June, 2010 because of his nationality i.e. that he was of Eastern European origin. The respondent did not seek to adduce any rebuttal evidence in relation to the complainant's claim and it accepted that the manner in which he was refused access to its fishing facilities on this date amounted to discrimination on the grounds of his race within the meaning of the Equal Status Acts.
4.3 I note that the respondent did adduce evidence in relation to the circumstances surrounding the implementation of the policy that was in place at that juncture whereby persons of Eastern European origin were prohibited from accessing the fishing facilities at Oakland's lake. In this regard, it should be noted that the type of conduct to which the complainant was subjected in the circumstances of the present case is strictly prohibited by the Equal Status Acts. I therefore cannot accept that the reasons advanced by the respondent for the implementation of the discriminatory policy in question in any way mitigates against the discriminatory treatment to which the complainant was subjected on the date in question. Based on the evidence adduced in the present case, I am satisfied that the complainant was clearly subjected to less favourable treatment by the respondent on the grounds of his race in terms of his request to obtain a fishing permit on 16 June, 2010. Accordingly, I find that the complainant has succeeded in establishing a prima facie case of discrimination on the grounds of his race in the circumstances of the present case and that the respondent has not sought to rebut the inference of discrimination raised.
5. Decision
5.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that the complainant has established a prima facie case of discrimination on the race ground in terms of Sections 3(1) and 3(2)(h) of the Equal Status Acts and that the respondent has not sought to rebut the inference of discrimination raised. Accordingly, I find in favour on the complainant in this case.
5.2 In accordance with section 27(1)(a) of the Acts, I award the complainant the sum of €1,250 as redress for the effects of the discrimination. I also order that the respondent provide the complainant with complimentary annual membership to its facilities for one full year which shall be activated at the discretion of the complainant.
5.3 I also order, in accordance with Section 27(1)(b) of the Acts, that the respondent put in place a written policy which clearly outlines that permission to fish on its facilities will not be determined in any manner by reference to the race or nationality of a potential customer. This policy should be clearly displayed at the respondent's reception desk and also in any advertising literature which it distributes to the public in relation to its facilities.
Enda Murphy
Equality Officer
14th December, 2011