The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774150
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Website: www.@equalitytribunal.ie
Equal Status Acts 2000 to 2011
Decision Number
DEC-S2011-046
Thomas Stralkowski
V
Dublin City Council
Case ref: ES/2010/0079
Issued: 4 November 2011
DECISION NUMBER DEC-S2011-046 CASE REFERENCE ES/2010/0079
Keywords:
Equal Status Acts 2000 to 2008- Discrimination -Harassment - Victimisation - Race - Provision of good and services - Prima Facie case
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Mr. Thomas Stralkowski (hereafter "the complainant") referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 21 September 2010. In accordance with his powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts, the Director then delegated the case to me, Tara Coogan, 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 11 October 2011. An oral hearing, as part of the investigation was held in Dublin on 17 October 2011. The respondent was notified of this complaint in accordance with the Acts on 17 August 2010.
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination, harassment and victimisation on the race ground. The complainant submitted that Dublin City Council ("the respondent") discriminated, harassed and victimised him by excluding the complainant from the 'nightbus' service which at the material time provided homeless people transport to emergency accommodation. The complainant also stated that he was called names and verbally abused by the respondent staff. The complainant submitted that the less favourable treatment began on or about 5 July 2010 and that it is on-going in that he was barred from using the service on or about 21 August 2010. His first official complaint concerning these Acts was lodged on 17 August 2010. A reply was provided by the respondent on 8 September 2010.
3. Case for the complainant
3.1. The complainant is a German national. He became homeless - for reasons other than addiction problems - on or about March or April 2010 and began to avail of the 'nightbus' service. The complainant stated that he was not complaining about the service itself, his concerns relate to some of the service providers (agents or servants of the respondent). He stated that on 21 August 2010 he was excluded from the service and that as a result he had to sleep on the street.
3.2. The complainant stated that he had major concerns about the health and safety on the bus. He maintained that the bus was often overcrowded and that this endangered the lives of the service users. He also objected to a few of the hostels that provided emergency accommodation and said that they were in bad condition with drunk and drugged people. He stated that in one named hostel another service user had attempted to repair a television set with a screwdriver while the appliance was still plugged in and that in another a person tampered with the smoke detectors.
3.3. The complainant rejected the respondent's claim that by taking photographs of the employees and other service users the complainant was intimidating the respondent's employees and other users. He stated that any person has a right to take photographs of people on a public street (here the complainant referred to a privacy case concerning defamation). He also rejected the respondent's witness statements that he could be perceived as being aggressive saying that he was smaller [in physique] than some of the respondent employees and that he never raised his voice or used abusive language. He also pointed out that some of the statements made by the respondent witnesses made 'no sense' in that they alluded to behaviour that was irrational. In general, the complainant stated that the respondent was lying and misrepresenting facts and that there was a culture of cover-up.
3.4 In relation to the harassment claim. The complainant submitted that a named employee said to him 'why do you not go home if you don't like it'. Furthermore, the complainant stated that a different employee of the respondent had called him a 'German wanker' at another time. A photograph taken of this person was showed at the hearing. He stated that such comments were racist and designed to advise him to leave the country. The complainant submitted that the respondent had failed its duty in refusing to investigate these complaints in a proper way to protect the complainant. The complainant included a number of newspaper clippings from a number of papers to highlight how the issue of saying "go home" to a foreign national constitutes harassment.
3.5. The complainant submitted that he was victimised contrary to the Acts because he had made a claim of discrimination and had objected to various health and safety breaches to a number of agencies. His first written complainant concerning health and safety issues was dated 10 August 2010 and he was barred from the bus on 21 September 2010. The complainant also maintains in his written submissions that this is partly due to the fact that the respondent's unionised employees are protected from independent investigation into abuse against foreign nationals and that the respondent is afraid to stand up to such individuals. The complainant asks for protection under the "whistleblower" legislation stating that his victimisation arises from him exposing 'criminal' activities by the respondent employees.
4. Case for the respondent
4.1. The respondent is a local authority who used to provide a transport service for homeless people in Dublin. Users of this service were homeless individuals who have been unable to satisfy the 'habitual residence condition' (hereafter "HRC") as set out in Social Welfare legislation and who must therefore avail of emergency homeless accommodation instead. It was submitted that approximately 70% of these service users were non-nationals. The service provided for between 80 to 100 service users a night, 365 days a year. A majority of the service users are male. Due to social welfare legislation, persons who do not satisfy the HRC cannot be provided with long-term homeless services. Such persons must avail of emergency services that can be provided one night at a time in night hostels only.
4.2. It was submitted that the respondent merely requested a name and a date of birth from service users. Nationality is not requested nor known. It was submitted that until the complainant's complaint form was received, the respondent employees had presumed that the complainant, because of his surname, was from Eastern Europe. The respondent denies that the treatment received by the complainant had anything to do with his nationality. The complainant was barred from the service because, inter alia, his behaviour put the complainant at risk; he caused delays; intimidated employees by taking photographs; refused to go into hostels offered to him; and was disrespectful to other service users. It is accepted that the complainant was barred on 21 August 2010. It was submitted that he was provided with a service between 10 and 20 August, with the exception of 16 August 2010 when the complainant did not appear at the pick up point.
4.3. The respondent denies harassment. It was submitted by one of the named witnesses that the complainant himself was abusive. This witness stated that the complainant would turn up at a pick up place to take photographs of the bus and its passengers. He stated that on one occasion the complainant stood in front of the bus taking photographs of the staff and the witness stated that when he got out of the van to look at the complainant the complainant shouted: "I'll get you fired, you Irish bastard". In relation to the claim that one of the employees had suggested to the complainant that he ought to go home, the person in question accepted in his oral evidence that he had said this but elaborated that these comments were in the context of the complainant yet again refusing to enter a hostel offered to him. The employee merely mentioned the possibility of a repatriation grant in order to highlight the fact that if the complainant was so unsatisfied with his lot over here [in Ireland] then he may wish to avail of a grant that would enable him to go somewhere where the complainant may be happier. In relation to the separate claim of the complainant been called a 'German wanker' the respondent was at a loss as it was submitted that the complainant's German nationality was not known to them. None of the witnesses were able to identify the photograph of the alleged abuser shown at the hearing.
4.4. Furthermore, the respondent stated that it had barred 6 service users for anti-social behaviour from the 'nightbus' in 2010. Four of these were individuals who had satisfied the HRC and 2 were individuals who had not. The respondent denied that the complainant was barred from the service because he was exercising his rights under any legislation. The complainant, like other users, was barred because his behaviour was deemed unacceptable. Allocation of hostel places was done on a first come first served basis and efforts are made to ensure that the same person does not always end up in the same place.
4.5. A meeting was arranged with the complainant and a named manager on 30 September 2010 to ensure that the complainant had an opportunity to have his say. At this meeting the complainant was told that he would remain barred until he stopped 'acting the maggot' and that the service must accommodate all people regardless of their addiction problems. An offer of an alternative arrangement was made to the complainant with the rule that he inform a named employee by phone whether he wished to avail of this offer. The complainant did not take up this offer of accommodation.
4.6. The respondent accepted that at times there was some overcrowding on the bus. This, it stated, was due to the fact that the service was attempting to provide accommodation to up to 100 people per night in 10 different hostels and that during difficult weather conditions it was important to get people off the streets. It was stated that journeys were normally short and that such situations were exceptions rather than the norm and had always taken place 'good heartedly'. It was also highlighted that no action had been taken by any of the parties that the complainant had complained to.
4.7. The respondent submitted that it operates a customer care policy that ensures that all service users are treated in a similar manner. It was stated that the complainant has shown no evidence of different treatment by the respondent. The respondent has - by having thoroughly explained how the service operates - shown that there is no discrimination or victimisation. The harassment claim has been put into context by the witness and it is clear that the conversation was not racist or one that intended to intimidate the complainant. The complainant was excluded from the service for reasons that had nothing to do with his nationality and thus no claim for victimisation arises.
5. Conclusion of the equality officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he 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.
5.2. The complainant stated at the beginning of the hearing that he was supposed to be accompanied by a legal representative. The whereabouts of said counsel were not known. A request for an adjournment was made in the circumstances. I explained to the complainant that if he was of the opinion that he would be unable to proceed with his case without the assistance of a legal representative I would have no option but to grant an adjournment. I explained the hearing procedure and stated that the Tribunal's approach normally lends itself to an approach that does not necessarily necessitate the presence of a legal representative. I informed the complainant that it was fundamentally a matter for him to decide whether he required a legal representative but that he ought to bear in mind that any adjournment granted by me would mean that his complaint could not be heard for a couple of months due to other investigation commitments. The complainant considered the matter and stated that he wished to proceed. The complainant was accompanied by a person with a 'watching brief'.
5.3. The complainant stated as a preliminary issue that he objected the respondent submitting facts concerning the complainant's background as a defence for their actions. These facts, submitted on paper, relate to matters outside this investigation and concern third parties. The complainant is correct in relation to the admissibility of such character evidence in circumstances where it is entirely hearsay and I have given such submissions no consideration in reaching my decision.
5.4. The issues to be addressed by this Tribunal are: Firstly, whether the complainant was treated less favourably in similar circumstances than a person with a different nationality was, is or would be treated? This argument that the complainant received less favourable treatment appears to relate to overcrowding on the bus and the manner in which hostels are allocated. Secondly, was the complainant subjected to harassment contrary to the Acts? And, finally, whether the complainant was adversely treated since his notification of 10 August 2010 was received by the respondent? This adverse treatment refers directly to the complainant being barred from the service on 21 August 2010. This fact, the barring, is accepted by both parties.
5.5. The complainant stated that he became very concerned about his safety on the bus because he stated that it was often overcrowded. He showed the Tribunal a newspaper article concerning a passenger car in which a number of young people were killed. The complainant stated that he had reported the matter to the Health and Safety Authority, the Garda Siochana and to a number of insurance companies operating in Ireland (copies of these letters were submitted to the investigation). He also accepted that he had on a number of occasions refused to go into an allocated hostel because he considered the conditions in them to be poor and that two named hostels in his opinion were not safe. The complainant explained that when he was brought by the 'nightbus' service to a hostel that he found unacceptable, he would have simply got off the bus and find alternative arrangements. The complainant also accepted that - in order to pursue what he viewed as flagrant breaches in health and safety regulations - he began to take photographs of the bus and his passengers. I note that he does not accept that his conduct could be viewed as threatening.
5.6. Having heard the full facts I am satisfied that the overcrowding on the bus or the way in which hostels are allocated has nothing to do with the complainant's nationality. There is no evidence to suggest that other nationalities availing of this service experienced any different treatment. The fact that the complainant chose not to stay in some of these hostels is simply a matter of the complainant exercising his right to reject a service offered to him. It is, however, a little disingenuous to suggest that such matters have anything to do with the complainant's nationality when he himself told this Tribunal that he was accompanied on the bus by Irish, Polish, Russian and other nationalities and that different hostels were allocated to all.
5.7. In relation to the harassment complaint. The complainant was unable to identify the person who allegedly called him a 'German wanker' from the individuals who attended the hearing saying that the man was 'someone in his late twenties'. From the photograph provided I could only identify an arm which bore no marks of identification. The respondent stated that all of its 'nightbus' staff were in attendance and the complainant was determined that the person was not there. In such circumstances I cannot be satisfied that - even if I accepted that such words had been spoken - that such words were spoken by an employee of the respondent. Furthermore, I do not accept that the statement "why don't you go home?" was made in a context that could be construed to be harassment. I note that the complainant submitted a number of newspaper clippings concerning judgments with racial abuse aspects in District Courts to the investigation. I ought to be noted that these news items concerned drunk and disorderly conduct (including a possession of a knife) involving aspects of racial abuse where clearly abusive language has been linked with ethnic or racial signifiers. While telling a non-national person "to go home" may, in certain circumstances, be sufficient to constitute harassment I am compelled to look at the entire sequence of events. Harassment is defined in section 11 of the Acts as "any unwanted conduct related to any of the discriminatory grounds" that has "the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person". Furthermore, such unwanted conduct may consist of "acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material". It is clear that the definition of harassment provided in the Acts is a subjective test whereby no intent of harassment requires to be proven on behalf of the alleged harasser. However, the words used must also be objectively capable of being viewed as being be both unwelcome to the recipient and reasonably capable of being regarded as 'offensive, humiliating or intimidating'. This means that I must be satisfied that the complainant genuinely regarded these words of having the effect of violating his dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
5.8. I do not accept that the employee of the respondent who suggested that the complainant, who was rejecting emergency accommodation and was clearly dissatisfied with other aspects of the service being provided to him, was being abusive or offensive when he made the remark. Nor do I accept that the complainant viewed these remarks as such. I find that the complainant took these words out of context to pursue his case against the respondent employees. In this regard I find the respondent's witnesses statement about the whole incident to be much more compelling than the edited version offered by the complainant. While the complainant maintained that he was not abusive or threatening, I find that he certainly was capable of complaining. I find it perfectly natural that in such circumstances the respondent employee, having listened to his dissatisfaction, merely suggested an alternative option that may have offered the complainant with solution to his grievances concerning homeless services in Ireland.
5.9. I note that the complainant accused the respondent from having collectively agreed prior to the hearing to a consistent story, a 'cover up', that it has put forward to rebut his case. It ought to be noted that the respondent's witnesses were called separately and the complainant was given an opportunity to cross-examine each one. Having had the opportunity to observe the witnesses during the hearing I found their demeanour to be credible and forthcoming. I find that all of the respondent employees found the complainant to be a challenging service user, for a variety of reasons. While the witnesses gave different accounts of the issues that they personally had with the complainant, I find that they all agreed that the complainant, in various ways, hindered the service from operating efficiently. Witnesses used a mixture of descriptive words to describe the complainant's manner - he was seen as 'uncooperative', 'disruptive', 'obstinate' 'unmannerly' and so on. I note that the complainant does not accept the witnesses' perspective of his behaviour and maintains that he at all times maintained his composure while the respondent employees behaved badly. I accept that the complainant is entitled to his view point but, equally, he ought to accept that others are similarly entitled to theirs.
5.10. It is clear to me that the respondent had genuine concerns about the complainant's manner and that his manner may have aggravated other service users who simply wanted to get to a bed at the end of a long day. It is also clear that the complainant was viewed to be a difficult customer whose behaviour warranted his exclusion from the service. It is not a matter for this Tribunal to determine whether the sanction taken against the complainant was disproportionate in circumstances where there is no evidence of less favourable treatment linked with a protected ground. I am satisfied that the complainant has relied on the mere coincidence of his nationality when setting out his case and has provided no evidence of less favourable treatment linked with his nationality in a comparator situation. I have found no evidence of adverse treatment within the meaning of the Acts and note that while the complainant was excluded from the service an alternative solution was offered to the complainant who chose not to avail of it.
6. Decision
6.1. In accordance with section 25(4) I conclude my investigation and issue the following decision:
6.2. The complainant has not established a prima facie case of less favourable treatment and/or harassment on race ground. His complaint fails in this regard.
6.3. The complainant has failed to establish a prima facie case of victimisation.
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Tara Coogan
Equality Officer
4 November 2011