Equal Status Acts 2000 to 2011
DECISION NO: DEC-S2013-004
Pierce Parker
V
Office of the President and University Advocate
University of Limerick
(represented by Peter O'Brien, B.L.,
instructed by Holmes O'Malley Sexton, Solicitors)
File Nos. ES/2012/0043 & 0091
Date of Issue: 11 June 2013
Keywords
Equal Status Acts 2000 to 2011 - Discrimination, section 3 - race ground, section 7(2)(d) expulsion from an educational establishment - Section 38A Burden of Proof, prima facie case
1 Delegation under the Equal Status Acts 2000 to 2004
1.1 The complainant referred his claims to the Director of the Equality Tribunal under the Equal Status Acts on 12 April and 18 May 2012. In accordance with his powers under section 75 of the Employment Equality Acts, 1998 - 2011, the Director then delegated the case to me, Conor Stokes, 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. The investigation, under section 25, commenced on 20 August 2012. A hearing was scheduled for 19 September 2012 and additional information was received up to 25 September 2012. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2 Dispute
2.1 The dispute concerns a claim by the complainant that he was treated contrary to section Section 7(2)(d) of the Acts, by the respondent. The respondent was notified on 12 March and 17 April 2012 in accordance with the provisions of the Acts.
3. Complainant submissions
3.1 The complainant submitted that he was discriminated against by being expelled from the respondent University on the basis that he is an Asian male person.
3.2 The complainant submitted that he was treated differently and less favourably when the University Advocate filed disciplinary charges against him on 27 February 2012 using his own racial harassment and discrimination complaint submissions as an excuse to expel him from the university.
3.3 The complainant submitted that on 3 April 2012 he received a letter stating that he had been expelled from the University because the Discipline Committee was satisfied that he was in breach of sections of the Code of Conduct. The complainant further submitted that the reasoned findings of the Discipline Committee were one sided.
3.4 The complainant submitted that in the past he has filed complainants of racial discrimination and harassment with the respondent. None of those complaints were taken seriously and it was submitted that this is evidenced by the fact that none of those named were ever brought to answer any charges before the Discipline Committee and although perfunctory actions were taken by the University Advocate, all complaints were eventually dismissed.
3.5 The complainant submitted that the respondent established a clear pattern that its students and staff are free to practice racial discriminations and that the respondent will take no action.
3.6 The complainant submitted that the disciplinary charges filed against him were a demonstration of the respondent's double standard in that he was expelled because he had misdirected his racial discrimination and harassment complaints and because his complaints contained "defamatory" statements.
3.7 The complainant submitted that the acts of 'misconduct' cited in the disciplinary charges do not rise to the level of expulsion and that it was retribution for his speaking up against the distressing state of racism on the respondent's campus.
3.8 The complainant submitted that the respondent liberally applies a double-standard of its code of Conduct for it has brought no disciplinary charges against any of the accused students in his racial discrimination and harassment complaint submissions.
3.9 The complainant submitted that the respondent's systematic flaws ensure that white students succeed while non-white students fail and further that his complaint highlights that the respondent is still not dealing with the core issues of racial discrimination and harassment.
3.10 The complainant submitted that if the University Advocate had performed his job properly and ensured equality and fairness on the campus, then there would be no need for the complainant to perform the task of combating racism for him. The complainant further submitted that illustrating the differential treatment and less favourable treatment against the him by the respondent, the complaint concludes that the respondent is failing to properly address issues of racism and racial discrimination.
3.10 The complainant submitted that he is seeking the Equality Tribunal to order:
- the creation if an office of civil rights on the respondent's campus
- immediate and unconditional reinstatement of his status as a post-graduate student
- nullification of the decision of the Discipline Committee
- immediate and unconditional restoration of the out-going function of his email account
- expurgation of any and all records pertaining to the Disciplinary Committee hearing against him
- expulsion of the University Advocate for his acts of, and complicities in, racism
- full investigation and production of reports on the racial harassment and discriminatory complaints described during the hearing and in his submissions
- proper administration of justice on the racial harassment and discriminatory complaints he submitted
- the costs of the proceedings
- the maximum against the named holder of the position of University Advocate.
4 Respondent submissions
4.1 The respondent submitted preliminary objections as to the proper respondent, the lack of a stateable case on the part of the complaint, the frivolous and vexatious nature of the complaint and the lack of particularity of detail.
4.2 Proper respondent - the respondent submitted that it would apply at the commencement of the hearing to dismiss the complaint or in the alternative to substitute the University of Limerick as the correct respondent.
4.3 Stateable case - the respondent submitted that the complainant's primary concern seems to be that his 'civil rights' were violated and that his 'legal professional privileges' were being violated and presumes that he is referring to a privilege against self-incrimination which it submitted in any event does not arise. The respondent also submitted that the complainant has made a number of unsubstantiated assertions and claims of a generalised but scandalous nature.
4.4 The respondent further submitted hat having regard to the reliefs claimed by the complainant, he appears to be attempting to use the Acts to challenge the procedure and determination of the Disciplinary Committee whereas the proper avenue to see relief in relation to a claim of unreasonableness of result or non-application of principals of procedural fairness is by way of an appeal on foot or the disciplinary procedures or alternatively to seek a judicial review quashing the determination of the Discipline Committee. The respondent also submitted that as the complainant's written submissions to the Discipline Committee substantially mirror the complaint to the Tribunal, he is attempting to re-litigate the outcome of the disciplinary hearing in front of the Tribunal
4.5 Frivolous and vexations claim - the respondent submitted that the complaint is frivolous and vexatious and has been made in bad faith. The test for whether proceedings are deemed to be frivolous or vexations was outlined by O'Caoimh in Riordan v Ireland [2001] 4 IR 463 and the respondent submitted that on several of the most important criteria, the present complaint amounts to such a complaint. In all the circumstances, it is submitted that the complainant is attempting to disrupt and/or forestall the legitimate disciplinary process in being which he is subject to.
4.6 Burden of establishing a prima facie case - the respondent submitted that the complainant has wholly failed to establish any evidence whatsoever that his (subjectively viewed)negative experiences at the respondent university were in any way motivated or caused by racial discrimination. There is a complete lack of particularity in linking the complainants' experiences to any racial motivation.
Detailed Response
4.7 The respondent submitted that notwithstanding the foregoing comments, in the first instance, the office of the University Advocate (UA) is an independent office with investigates all complaints of a breach of the Code of Conduct by registered students and the role of the UA is to present the case before the Discipline Committee. The UA has not decision making role in this regard. The respondent further submitted that each and every complainant made to the UA over which he has jurisdiction was independently investigated and determined to be without merit. The Discipline Committee, not the UA, determines what penalty is appropriate for students determined to have breached the Code of Conduct.
4.8 The respondent submitted that the complainant was found guilty of a breach of the Code of Conduct and was subject to sanction by a decision of the Discipline Committee, the sanction terminated his enrolment on the PhD Sociology programme, but suspended the termination for a period of 12 months subject to certain conditions, including that he is not permitted entry to the campus or to avail of the university's facilities.
4.9 The respondent submitted that the complainant's allegations that the investigation into his behaviour was frivolous or demonstrative of double-standards is wholly without merit, the charges filed against the complainant were done so solely on the basis of his own actions alone. In so far as the complainant was dissatisfied with the decision of the Discipline Committee, there was an appeal process available to him which he utilised.
4.10 The respondent submitted that the majority of the Complainant's submissions constitute nothing more than a diatribe against the UA and other named individuals and his allegations are unsupported by any evidence.
4.11 The respondent submitted that the complainant relies on the fact that the UA did not pursue the Student's Union regarding a complaint, however it was pointed that the UA has no jurisdiction over the Student's Union.
4.12 The respondent submitted that the complainant referred to an alleged confrontation with a fellow student and an employee of the Respondent. These allegations were comtemporaneously received by the UA and were fully investigated. Upon investigation, it was determined that there was no breach of the Code of Conduct and that the incident related to a private dispute between tenants.
4.13 The respondent submitted that the complainant states that the UA peremptorily disabled the complainant's outgoing email function without due process. The complainant's outgoing email privileges were suspended by the Vice President Academic and Registrar of the university following concerns relating to the potentially defamatory nature of statements made by the Complainant by email. The respondent further submitted that its response was both reasoned and proportionate as it suspended only that element of the email privilege which had been abused by the complainant.
4.14 The respondent submitted that the complainant referred allegations regarding a housing complaint against a private landlord to the UA, however these do not fall within the jurisdiction of the UA.
4.15 The respondent submitted that the complainant referred a complaint to the UA of a racist confrontation with a fellow student when, while the two students were waiting to access the library at student (following the tsunami in Japan) the other student enquired of the complainant whether he had any relatives in Japan. The matter was investigated by the UA who determined that the question could not constitute a racist remark and this was communicated to the complainant.
4.16 The respondent submitted that the complainant alleges that the UA 'trawled' through his facebook account in order to manufacture or find evidence that could be used against the complainant. The respondent submitted that a complaint was submitted to the UA by a third party and had to be investigated. Despite meeting with the complainant regarding the content of a facebook posting, the complainant refused to withdraw the offending page without reservation.
5 Findings
5.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3(1)(a) and 3(2)(h) of the Equal Status Act and in terms of Section 7(2) of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
5.2 Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where: "On any of the grounds specified... (in this case the race ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2) provides that: as between any two persons, the discriminatory grounds ... are ... (h) that they are of different race, colour, nationality or ethnic or national origins (the "ground of race"),"
5.3 Section 7(2) provides that:
"An educational establishment shall not discriminate in relation to --
(a) the admission or the terms or conditions of admission of a person as a student to the establishment,
(b) the access of a student to any course, facility or benefit provided by the establishment,
(c) any other term or condition of participation in the establishment by a student, or
(d) the expulsion of a student from the establishment or any other sanction against the student.
5.4 The burden of proof is set out in Section 38A which provides that: " Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."
5.5 It is not for me to consider whether the investigation, findings or sanction imposed of either the University Advocate or of the Disciplinary Committee were the correct ones, rather the Acts enable me to consider whether investigation, findings or sanction imposed were tainted by discrimination.
5.6 Although the instant case is taken under the Equal Status Acts, Section 38A is analogous to Section 85A of the Employment Equality Acts. In this regard, I consider that it is appropriate for me to consider the Labour Courts comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".
5.6 Oral evidence was presented to the Tribunal by both parties. From that evidence and the documentary evidence presented prior to the hearing, I am satisfied that the following has been established as being the relevant facts at the time of the complaint:
- The complainant took three complaints against various students and student bodies during his time as a registered student at the respondent university, one in 2008, one in 2009 and another in 2010. These complaints were not upheld
- A number of complaints were made against the complainant including his housemates complaining that they felt unsafe around him and that he acted in an intimidatory manner,
- There were a series of complaints made by faculty and staff to the effect that he acted in an aggressive and intimidating manner
- The complainant put a posting on facebook wherein he referred to another student as a '"sex tourist" and when called upon to remove the offending post, refused to do so
- Following an incident where a number of students were pelted with eggs from a passing car (though did not report the matter), the complainant took it upon himself to send out a university-wide email denouncing the incident and calling the university's commitment to combating racism into question
- The complainant sent around a number of emails with other derogatory comments regarding several individuals including several females who had complained about his behaviour
- The complainant made a number of complaints regarding several females who had complained about his behaviour
- The University Advocate took a case regarding the bullying tactics of the complainant to the Discipline Committee
5.7 I am mindful of the decision of the Labour Court in the case of Melbury Developments Limited and Valpeters (ADE/09/16). In that case the Labour Court stated, inter alia, that:
Section 85A of the Act 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 be 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.
Mr Grogan, Solicitor for the Complainant has pointed to the difficulty for the Complainant in obtaining evidence concerning how others were treated. He submitted that in these circumstances the Respondent should be required to prove that others were treated similarly to the Complainant. In the Court's view such an approach would amount to placing the entire probative burden on the Respondent. That would involve an impermissible departure from the plain language and clear import of Section 85A of the Act and the Community law provision upon which it is based.
5.8 During the preceeding two year period three other students were expelled from the university. Two were female and one was male, all were Caucasian. In all three cases, in a similar manner to the complainant, the sanctions were suspended to enable to students to finish their course of study (although none of the four were allowed to avail of the respondent's facilities).
5.9 Having regard to the foregoing consideration by the Labour Court and having considered the complainants evidence, I am not satisfied that the complainant has established facts from which if can be shown that he was treated in a less favourable manner than others. Rather, I consider that all the complainant has put forward is mere speculation or assertions unsupported by evidence. In general terms he was treated in a similar manner to other students who have been found to be in breach of the Code of Conduct, regardless of race. Accordingly I do not consider that the complainant has established a prima facie case and there is no onus on the respondent to prove the contrary.
Additional grounds
5.10 - The complainant raised grounds of victimisation and gender during the course of the hearing. I am not satisfied that the respondent was on notice (as required by the Acts) that the complainant was pursuing complaints on these grounds and accordingly any such consideration would be ultra vires.
6 Decision
6.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the race ground has not been established and this complaint fails.
______________
Conor Stokes
Equality Officer
11 June 2013