THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 to 2008
Decision No. DEC-S2011-009
PARTIES
Mr. Ayoola Muhamed Oladoyin, Mr. Bisi Adisa Oladunni, Mr. Harrison Olayiwola, Mr. Oludare Olorunfemi, Mr. Henry Ikechi Egekiu, Mr. Paul Ipeagwu, Mr. Amos Njugi Wachira, Mr. Austin Atu, Mr. Tony Okocha and Mr. Amos Ogba
(represented by Molloy Seymour McLoughlin, Solicitors)
and
Abby /Eco Taxis
File Reference No(s): ES/2008/0156 - 0157,
ES/2008/0159 - 0166.
Date of Issue: 21st February, 2011
Decision No. DEC-S2011-009
Keywords
Equal Status Acts 2000 to 2008 - Direct discrimination, section 3(1)(a) - Race ground, section 3(2)(h) - Disposal of goods and provision of services, section 5(1) - Establishment of a prima facie case - Service under the Acts.
1. Delegation under the Equal Status Act 2000 to 2008
1.1 These complaints were referred to the Director of the Equality Tribunal under the Equal Status Acts on the 18th August 2008. In accordance with her powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the complaint to me, James Kelly, 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 on the 21st January 2010. A hearing, in accordance with section 25 was scheduled for the 16th December 2010 and the final correspondence received was on the 31st January 2011.
2. Dispute
2.1. This dispute concerns a complaint, where the complainants claim that they were discriminated against by the respondent on the Race ground in terms of sections 3(1) and 3(2)(h) and contrary to section 5(1) of the Equal Status Acts in relation to the respondent's refusal to allow them to buy "shares" into the taxi business known as Abby/Eco Taxis of 11A Eyre Street, Galway city.
3. In relation to claims brought by Mr. Olorunfemi, Mr. Ipeagwu and Mr. Ogba
3.1. These complainants were not in attendance at the hearing. The complainant's legal representative was present and confirmed that he did receive notice of the hearing for these complainants. I allowed additional time for them to arrive but they did not. I contacted the Tribunal after the scheduled time for the hearing to enquire if they had made contact with it to offer an explanation for their non-attendance. However, I was informed that no contact was received.
3.3 Accordingly, I am satisfied that they were notified of the date and time of the hearing. I am also satisfied that no attempt was made by them to contact the Tribunal to inform of any delay. Finally, I am satisfied that ample time was provided for them to present themselves at the hearing so as to provide evidence.
4. In relation to claims brought by Mr. Oladoyin, Mr. Oladunni, Mr. Olayiwola, Mr. Egekiu, Mr. Wachira, Mr. Atu and Mr. Okocha
4.1. These complainants were in attendance at the hearing and gave direct evidence. All of the abovementioned complainants are originally from Nigeria with the exception of Mr. Wachira who is originally from Kenya. All of these complainants came to Ireland between the years 2000 and 2002 and have worked as taxi drivers since 2006.
4.2 They claim that they were all self employed taxi drivers up to June 2008. They claim that they paid an initial fee of €500 to the respondent for the rental of radio equipment and rights to use the name/logo on their taxis. They claim that they also paid a weekly fee of €100 to the respondent in return for it sending all its customers to them. They all maintain that they were not employed by the respondent.
4.3 The complainants claim that there were about 40 drivers connected with the respondent, 15 of whom were black. They claim that the respondent called all the drivers into a meeting in early summer 2008 and told them that it was changing the way that it operated its business. They claim that each of the drivers were invited to become a shareholder in the business. They claim that they were asked to pay €5,000 each and in return they each would become a "shareholder" in the business with all the entitlements and rights that would normally accrue to a shareholder. The complainants all agreed to accept the offer and money was paid to the respondent as consideration for the shares in the business, normally in an instalment basis, through out May/June 2008.
4.4 They claim that shortly after this offer was made and before everything was finalised, they were informed by one of the owners of the business that the offer to the black drivers to become a "shareholder" in the business was being withdrawn. They claim they were told that the business required new investment and the new investors coming into the business did not want 'them' involved. The complainants state that they were invited to claim back all the money paid up to that point and arrangements were made to make the refunds on the 10th June 2008. They were told that if they did not take up the offer of the refund and relinquish any interest in the business, and sign documentation to that effect, they might not get any of their money back at all. They claim that they were told to return the taxi radios and not to use the respondent's logo in the future, and that their business relationship with the respondent was over. They claim that they were told that the business did not want coloured drivers and there was no room for any more drivers to invest into the business at that time.
4.5 The complainants claim that the respondent advertised to recruit other Public Service Vehicles (PSV) drivers once the 15 black drivers were removed. They submitted a copy of the Galway Advertiser Newspaper, dated 19th June 2008 and highlighted an advertisement from "Abbey Taxis" for "PSV Drivers". The complainants' solicitor gave evidence that he contacted the telephone number listed in the newspaper advertisement and was told the conditions for joining the business. He claims he was also told if he was interested that he could send in an application with a valid PSV driver licence and he would also be informed of the joining on fee. He also claims that he asked it if the business related to Abby/Eco taxis of 11A Eyre Street, Galway city to which he claims that he was told it was. Mr. Ayoola Muhamed Oladoyin claims that he also rang in around this time when he saw the advertisement in the newspaper but he claims that when he rang he was told that there were no positions at that time. The other complainants claim that they did not answer the advertisement because they knew whom the advertisement was from, and it had been made clear to them that they were not going to be allowed to join the business as "shareholders".
4.6 The complainants claim that they carried out a company name search for Abby/Eco taxis in the Company Registration Office and claim that from this search Abby/Eco taxis it is not a registered company, but rather a business operating from 11A Eyre Square, Galway city.
4.7 The complainant's submitted that their claim falls within the scope of the Equal Status Acts on the basis that the respondent was offering PSV license holders the opportunity to apply to it to become a "shareholder" in its business. However, they claim that the offer was not open to them simply because they were black.
5. Respondent's case
5.1 The respondent in this case has been named as Abby/Eco Taxis, a business operating from 11A Eyre Square, Galway city. The Tribunal at first was successful in forwarding the original complaint forms that it had received and other related correspondence to the respondent at the above address. However, the Tribunal secretarial staff received a phone call from the proprietors at this address claiming that the named respondent had ceased trading and as new proprietors it was not responsible for any previous actions but they would not commit this to writing. Following that, all of the Tribunal's correspondence was returned by An Post marked "Gone Away". The Tribunal contacted the complainant's and asked them to provide it with the most recent address details of the respondent so that it could update its records to correspond with it. The complainants' solicitor claims that he visited the premises of 11A Eyre Square, Galway city in October 2010 and made enquires at the counter of the premises and asked if the business "was Abby taxis of Eco Taxis" and he claims that he was told that it was. He stated that this is the same address as provided on the original referral forms to the Tribunal.
5.2 Notice of the hearing was sent to the respondent at the above address by registered and ordinary post. The registered post was returned by An Post marked "gone away". The notice sent by ordinary post was not returned.
6. Conclusion
6.1 Section 38A (1) of the Equal Status Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainants to establish, in the first instance, facts upon which they can rely in asserting that they suffered discriminatory treatment. 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.
Preliminary Issue
6.2 The first aspect in this case that I must consider is whether I am satisfied that the complaints fall within the scope of the Equal Status Acts. In particular I must give consideration to the definition of a "service" under Section 2(1) of the Act. In considering this issue, I note that a "service" is defined as "a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes ...... ". It is clear to me that from the wording of Section 2(1) that the services and facilities which are covered by the section have to be available to the public generally or to a section of the public. It is also clear that the facilities mentioned in Section 2(1)(b) is not an exhaustive list of matters covered by the Acts.
6.3 I note the complainants' legal submission that as there was no employment contract between the complainants and the respondent that therefore these cases do not qualify for consideration under the Employment Equality Acts and that they come within the scope of the Equal Status Acts. I am satisfied that the Equal Status Acts are a remedial social statute to be widely and liberally construed. In the long title of the 2000 Equal Status Act, it is expressed to be remedial legislation and as such I am satisfied that the Tribunal must adopt a purposive approach in interpreting its provisions. This approach was adopted by the Supreme Court in The Bank of Ireland v. Purcell [1989] 1 I.R. 327 "... As has been frequently pointed out remedial statutes are to be construed as widely and liberally as can fairly be done." Therefore, I am satisfied that the definition of a "service" under the Acts must be construed in such a fashion to facilitate access for people to counter discriminatory action in society.
6.4 I note the previous decision of this Tribunal in Fitzgerald -v- Dairygold Co-Operative Society Limited where the Equality Officer had to consider whether the issue of bonus shares to its members qualified as a 'service' under the broad definition contained within the Acts. The Equality Officer stated,
5.2 In considering this issue, I note that a "service" is defined in section 2(1) of the Acts as "a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes ...... ". There follows an illustrative list of examples among which are a professional or trade service. The respondent in the present case is a society registered under the Industrial and Provident Societies Acts, 1893 to 1978. The definition of an entity which may be registered as a society under these Acts is outlined at section 4 of the 1893 Act i.e. "A society which may be registered under this Act (herein called an industrial and provident society) is a society for carrying on any industries, businesses, or trade specified in or authorised by its rules, whether wholesale or retail, and including dealings of any description with land". Having regard to this definition, I am satisfied that a society which is registered under this legislation is an entity that engages in trade and/or provides facilities for trading on behalf of and for the benefit of it's members.
5.3 It is clear from the "Objects of the of the Society" which are contained at page 9 of the Rules of Dairygold Co-operative Society Limited that the respondent is such an entity which provides the aforementioned facilities for and on behalf of its members. It is the case that the members of the respondent are shareholders and the rules of the society make provision for the distribution of a net surplus or reserves at the end of a trading year among its members (in the form of an allocation of bonus shares). The aim of this allocation of bonus shares is to provide a reward to members (albeit those in the A1 category) for their trade with the respondent and to provide an incentive for these members to continue trading with the respondent. I am of the view that the relationship which exists between the members of the society and the respondent (which includes the distribution of profits in the form of an allocation of bonus shares), in the circumstances of the present case, is covered by the broad definition of "service" contained within the Equal Status Acts. Having regard to the foregoing, I am satisfied that the Tribunal has the jurisdiction to investigate the substantive allegations of discrimination that have been made by the complainant in the present case.
6.5 I will now consider the facts of the case before me in light of the Fitzgerald -v- Dairygold Co-Operative Society Limited decision. I note that the complainants have stated that to become, what they claim, "a shareholder" they were invited to pay a fee to gain access to the shareholding status and that this facility was open to taxi drivers who held PSV licences. I note that they claim that the normal benefits that would accrue to a shareholder, including voting rights and a share in profits, would then accrue to them under such an arrangement. I am satisfied that this opportunity was a facility that was withdrawn from the complainants and then was subsequently advertised in the local newspaper, aimed at a section of the public, - holders of PSV licences-, under the name of Abbey Taxis. I agree with the conclusions of the Equality Officer in the Fitzgerald -v- Dairygold Co-Operative Society Limited case and as the question in relation to the definition of a "service" in that case, is similar to the question that is before me for consideration, I am satisfied the same conclusion apply, although I am mindful that the bonus share option in the Fitzgerald -v- Dairygold Co-Operative Society Limited may differ from the co-operative type share option arrangement in the case before me for consideration. However, in the circumstances of the present case, I am of the view that such a "share option" facility is covered by the broad definition of "service" contained within the Equal Status Acts. Therefore, having regard to the foregoing, I am satisfied that the Tribunal has the jurisdiction to investigate the substantive allegations of discrimination that have been made by the complainants' under the Equal Status Acts.
Discriminatory Treatment - Race Ground
6.6 I am satisfied that the complainants have presented clear and consistent evidence of their interaction with the respondent in the period from May to June 2008. I am satisfied that the sequence of events presented to me demonstrates that the complainants were offered an opportunity to enter into a business relationship with the respondent in June 2008, having worked closely with the owners of the taxi business for a number of years prior to that. It is also clear from their evidence that at first all drivers were invited to partake in this new business venture. However, when the owners encountered financial problems and sought external investment a decision was made in relation to the 'black drivers' and they were ousted from their positions and refused access to the respondent because of their colour, before the new business model was completed. This evidence was clearly established and then corroborated independently by the complainants through their oral evidence at the hearing, one after another. I am satisfied that the complainants have established a prima facie case of less favourable treatment and discrimination on the Race ground under Section 3(2)(h) of the Equal Status Acts.
6.7 Having considered the facts before me I conclude that the respondent has decided not to engage with the Tribunals investigation of these cases and therefore has failed to rebut the serious allegation raised against it. As I have been presented with no explanation from the respondent as to why the complainants were not allowed to be considered suitable to become shareholders. Therefore, on the balance of probabilities, I accept the complainants' evidence.
7. Decision
7.1. In accordance with section 25(4) of the Equal Status Acts, 2000 to 2008, I issue the following decision.
7.2 As part of my investigation under Section 25 of the Acts, I am obliged to hold a hearing. I find that Mr. Oludare Olorunfemi, Mr. Paul Ipeagwu and Mr. Amos Ogba failure to attend such a hearing was unreasonable in the circumstances and that any obligation under Section 25(1) has ceased. As no evidence was given at the hearing in support of the allegation of discrimination I conclude the investigation and find against these complainants.
7.3 I find that Mr. Ayoola Muhamed Oladoyin, Mr. Bisi Adisa Oladunni, Mr. Harrison Olayiwola, Mr. Henry Ikechi Egekiu, Mr. Amos Njugi Wachira, Mr. Austin Atu and Mr. Tony Okocha have established a prima facie case of discrimination on the Race ground. The respondent has not engaged with the Tribunal investigation and therefore has not rebutted the inference of discrimination raised. The maximum amount which may be awarded in compensation under the Acts is €6,349. In light of the unlawful and blatant overt policy of discrimination inflicted on the complainants, I find that €6,349 each is the appropriate amount of compensation for the effects of the prohibited conduct.
_______________
James Kelly
Equality Officer
21st February 2011