The Equality Tribunal
Equal Status Acts, 2000 to 2008
Equality Officer Decision
DEC-S2012-008
Parties
Mr Mahieddine Baziz
-v-
Noonan Services Group
(represented Mr John Barry,
Management Support Services (Irl) Ltd)
File Ref: ES/2010/069
Date of Issue: 28 Feb 2012
Keywords: Equal Status Acts 2000-2008 - Section 3(2)(h), race ground -prima facie case - discrimination, harassment.
Delegation under the Equal Status Acts, 2000 to 2011
This complaint was referred to the Director of the Equality Tribunal on 5 December 2008 under the Equal Status Acts, 2000-2008. In accordance with his powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2008, 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 2 August 2011 my investigation commenced. As required by Section 25(1) and as part of my investigation, an oral hearing was held on 6 December 2011 and both parties were in attendance.
1. Dispute
This dispute concerns a claim by the complainant, Mr Baziz that he was discriminated against and harassed by the respondent on the grounds of race in terms of Sections 3(2)(h) of the Equal Status Acts, 2000-2008 by being asked to leave a shopping centre.
2. Summary of the Complainant's Case
2.1 The complainant alleged that he was discriminated against and harassed because he is Algerian. The complainant was a regular user of the Jervis St Shopping Centre; however between October 2009 and May 2010 he submits that he was made to feel unwelcome there. There was a particular security guard who appeared to be following him and watching him all the time. On 11th May, the complainant asked to speak to the Site Manager to report what had been happening. The security guard in question did not wear an identity badge, so the complainant could not identify him specifically, but he described him. He had a good talk with the Site Manager, who promised to investigate and report back to him. A week later the Site Manager called him and said that his staff told him nothing had happened and that they never had a problem with the complainant.
2.2 On 25th May 2010, the complainant was leaving the Shopping Centre when he was approached by a different security guard, who made a threatening gesture towards him. The complainant asked him why he made this gesture and the guard asked him if he had a problem. The complainant was afraid the guard was going to hit him and he found the incident intimidating. The Security Supervisor arrived on the scene and the complainant explained what had happened and emphasized that he had done nothing wrong. The Supervisor contacted the Site Manager and after this call, he asked the complainant to leave the centre and never come back. The complainant insisted that the Gardai were called and when they arrived he explained that he was being bullied by Security. The Garda sided with the security staff and advised him to walk away.
2.3 On 27th May the complainant spoke to the Site Manager again and was told that he was barred. The complainant followed up with a letter of complaint to the Head of Security at the respondent company, but he did not receive any response to the letter or to his calls.
3. Summary of the Respondent's Case
Witness for the Respondent - Site Manager
3.1 The Site Manager met the complainant in May 2010, when the complainant informed him that he had been "assaulted" the previous day. The witness took a detailed statement from the complainant and promised to investigate. He also assured the complainant that he did not think there was a racism involved - as a non-national himself, he believed that the company treated everyone equally. Based on the description the complainant gave, the Site Manager was able to identify the security guard in question, but he had not been working on the day the complainant complained of. The witness spoke to him and all the other officers also, but was unable to find anything to support the complainant's claim. The witness met the complainant a week later to advise him of this outcome. The complainant was not happy and accused him of being racist. The witness advised the complainant to contact him again immediately if anything should occur, so that he could deal with it straight away.
Witness for the Respondent - Security Guard
3.2 On 25th May 2010, the witness stated that he had been on duty when the complainant approached him in an aggressive manner, asking why he (the security guard) had been staring at him. He could not hear him, so he moved closer. The complainant began to shout and point in his face. The witness asked him to keep his voice down and stop pointing. Then he asked him to leave the centre. The complainant told him that he knew his (the security guard's) boss and he was not going anywhere. The witness called in the incident to his control room and his supervisor arrived. The supervisor advised him to go back to his duties in the centre and the supervisor asked the control room to call the Gardai. The witness had experienced a previous incident a few weeks earlier where the complainant and his friends stood outside the shopping centre staring at him.
Witness for the Respondent - Acting Supervisor
3.3 The supervisor submitted that he had come upon an incident between the complainant and the security guard on 25th May 2010. He observed that the complainant was shouting and waving his hands at his colleague and he went over to investigate, as the Site Manager was away that day. He asked if he could help, but the complainant wanted to speak to the Site Manager. He sent the security guard away and told the complainant that he was sure they could resolve the matter. The complainant would not listen to him or even let him speak. He called his management and they decided to ask him to leave. At this point he realised that the complainant was the same person who had made the complaint previously, but he stated that they could not tolerate aggressive behaviour from anyone. The Gardai were called and they escorted the complainant away. The complainant told him he would get his payback.
Legal Submission on behalf of the Respondent
3.4 The respondent's legal representative stated that on the 25th May 2010, the respondent was presented with a situation where they believed that the complainant was a potential danger to their staff. They submit that under S.15(1) of the Equal Status Acts, they were entitled to remove him to prevent further disorderly conduct. The respondent submitted that the complainant's right of access to the centre was withdrawn as a result of the complainant's own behaviour. The respondent further submits, on the issue of harassment, that it was the complainant in fact who harassed its employees and not the other way around.
3.5 The respondent submitted that in the normal course of their security work at this shopping centre, they would remove about 60 persons a week of every nationality, for a wide variety of reasons which are usually connected with disorderly conduct.
3.6 The respondent submitted that it employs several hundred foreign nationals and does not tolerate discrimination in any form.
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 This is a case which primarily turns upon the credibility of parties. With respect to the claim of discrimination:
4.2.1 I accept that the complainant made his first complaint in good faith to the Site Manager and the Site Manager investigated the complaint to the best of his ability based on the information available. In the circumstances and with such limited information, I accept that the Site Manager's submission that he did not find any evidence of racist behaviour by his staff and that he communicated this to the complainant, who was unhappy with the outcome.
4.2.2 I noted at the oral hearing that there had been some personal incidents between the complainant and the security guard and neither side were fully credible on the subject of how their dispute of May 25th was initiated. I concluded from this that they both participated in winding each other up on this occasion. However the actual discrimination complained of, is the fact that the complainant was barred from the shopping centre. This decision was not made by the security guard involved in the incident. It was made by his supervisor, in conjunction with the Site Manager.
4.2.3 The Supervisor stated that came upon an incident involving the complainant shouting and waving at his colleague. When he tried to intervene to resolve the matter, the complainant began shouting at him also. The supervisor was a credible witness, whose account was matched by his contemporaneous written report. I accept his evidence, which was that he followed normal protocol for such a situation - ie: to try to calm the person down and then call his control room/Gardai for back-up if required. I accept that this was his normal procedure and that the decision to call the Gardai and eventually remove the complainant was not influenced by the complainant's race. I also find that the complainant completely refused to engage with the Supervisor to resolve the situation. On this basis I find that the complainant has not established a prima facie claim of discrimination.
4.3 With respect to the claim of harassment under the Acts, I accept that the Site Manager engaged with the complainant to investigate his initial claim of racist harassment. However the claim was vague and unsupported by any consistent details or facts, leading the respondent to conclude there was insufficient evidence to uphold the claim. The claim made to the Tribunal was similar. The complainant was given the opportunity both during the oral hearing and in written submissions; however he was unable to give any more than general assertions that he was being watched and "visually assaulted". The examples were inconsistent and contradictory. I find insufficient detail to support the claim and I note the comments of the Labour Court regarding such "mere assertions" in the case of Melbury v Valpeters EDA 0917:
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
5. Decision
5.1 On the basis of the foregoing, I find that the complainant has not raised a prima facie case of discrimination or harassment on the grounds of race and I therefore find in favour of the respondent. I note that the respondent has now lifted its ban on the complainant entering the Jervis Street Shopping Centre.
Elaine Cassidy,
Equality Officer
28 February 2012