THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2012
Decision No. DEC-S2015-011
Jurijs Kozlovs
-v-
Department of Social Protection
(represented by Cliona Kimber B.L instructed by Juliana Quaney, Chief State’s Solicitor Office)
File Reference: ES/2013/0036
Date of Issue: 20th July 2015
Key words:
Equal Status Acts, Race, Victimisation
1. Delegation under the relevant legislation
1.1 This case concerns a complaint by Mr Jurijs Kozlovs that he was discriminated against by the Department of Social Protection on the ground of race (he is a Russian speaking Latvian). He also claims victimisation. On 15th April 2013, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts 2000-2012 [hereinafter referred to as ‘the Acts’]. On 29th August 2014, in accordance with his powers under section 75 of the Employment Equality Acts 1998 -2012 and under the Acts the Director delegated the case to me, Orlaith Mannion, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Acts. My investigation commenced on this date.
1.2 As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 22nd September 2014.
Summary of the Complainant’s Case
2.1 The complainant submits that he has been treated less favourably than an Irish person in relation to obtaining various Social Welfare payments.
2.2 He submits that the various delays in receiving payments, as well as not accepting his word that his ex-partner was not living with him, would not happen to an Irish person.
Summary of the Respondent’s Case
3.1 The respondent submits that the complainant has given scant detail on how he alleges he was discriminated on the grounds of race. It submits that it is entitled to know the case against the Department of Social Protection. The respondent cites a judicial review of a decision of the Labour Court:
7.7 Likewise, the issue having arisen at the hearing, Calor should have immediately drawn the Labour Court's attention to the difficulty which had arisen and sought an adjournment of the hearing or some other appropriate accommodation. I can readily envisage that, in circumstances where a party sought additional details in advance of a hearing but was not given them, where the additional details were presented, therefore, for the first time at the hearing, and where the party, in those circumstances, sought an adjournment, the Labour Court might have little option, in order that the proceedings comply with the standard of fairness required by reference to the principles of constitutional justice, but to adjourn the case or otherwise afford the party concerned an opportunity to lead additional evidence.[1]
The respondent submits that the Equality Officer should dismiss the complainant as vexatious.
3.2 The respondent submits that there are no arrears payable to the complainant and he has received, at all times, his Social Welfare entitlements in line with the Department of Social Protection guidelines. There have been many interactions with Mr Kozlovs in relation to his seeking various social welfare payments but the respondent submits they did not treat him less favourably on the ground of race in any way.
3.3 Mr Kozlovs first claimed Supplementary Welfare Allowance on 6th November 2008. He said that he was single and his only income was €80 per week maintenance from his son’s mother i.e. he had full custody of their son and she was not living with them. Mr Kozlovs said that she abandoned their son with him from when he was born in Latvia. However, the Community Welfare Services noticed that who he said was his ex-partner resided at the same address as him. He and his partner emigrated on the same day, their Irish mobiles were bought on the same day and the lease agreement contained both names. However the Chief Appeals Officer gave Mr Kozlovs the benefit of the doubt and he received arrears of SWA and rent allowance.
3.4 He subsequently applied for One Parent Family Payment but was refused as they had further evidence that he was still living with his partner. She had named him as her next of kin. When a Social Welfare Inspector attended his home, the inspector was not let in. Nevertheless the Social Welfare Inspector found evidence of a woman living there. Mr Kozlovs submitted that he had not a clue where the mother of his son lived despite the fact that she purportedly paid him maintenance (in cash) and they were both heavily involved in a Russian speakers group in Galway. He was also seen driving a car that was registered in her name.
3.5 Mr Kozlovs then applied for Jobseekers allowance which he was awarded immediately as cohabitation does not have a bearing on this payment. However, Mr Kozlovs did not declare that he working for TK Maxx while claiming Jobseekers Allowance ( it is axiomatic that one must be unemployed to receive an unemployment allowance) so this overpayment was subtracted from the arrears that he was owed by the Department due to the delay in processing the complaints.
3.6 The respondent submits that the complainant is forum-shopping. He also has a case with the Ombudsman on the exact same issues. An Assistant Principal in the Department of Social Protection met with him to explain why various payments were stopped. None of these reasons had anything to do with his nationality.
Conclusions of the Equality Officer
4.1 I rejected the respondent’s submission to dismiss this complaint as vexatious prior to hearing. In the circumstances of this case, I found it necessary to allow the complainant to provide oral submissions on his claim and it is for that reason that I proceeded to a hearing. Section 38(A) of the Equal Status Acts 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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 in this case, I have taken cognisance of all the oral and written submissions made by the parties. The issue for me to decide is was the complainant discriminated against on the grounds of race which includes colour, nationality or ethnic or national origins.
4.2 Not a scintilla of evidence was adduced by the complainant as to how his treatment by the Department of Social Protection was linked to ground of race. The delays in payments occurred during one of the worst recessions Ireland has experienced coupled with a public sector recruitment embargo. I accept the respondent’s contention that this put pressure on staff– hence the delays which all Social Welfare recipients experienced. All legitimate payments were paid from the date he applied so the complainant was not out-of-pocket. I find no nexus between these delays in payments and the ground of race. Regarding testing the veracity of his statements regarding cohabitation, the Department of Social Protection have a duty to protect the Exchequer from fraudulent claims. Again, I can find no discrimination in the way he was treated and a comparable Irish person would be treated. Therefore, the complainant has failed to establish a prima facie case of discrimination on the ground of race.
Victimisation
4.3 Victimisation is defined in Section 3 (2) (j) of the Acts:
(j) that one—
(i) has in good faith applied for any determination or redress provided for in Part II or III,
(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act,
(iii) has given evidence in any criminal proceedings under this Act,
(iv) has opposed by lawful means an act which is unlawful under this Act, or
(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv), and the other has not (the ‘‘victimisation ground’’).
No evidence was proffered as to how the complainant suffered an adverse reaction as a result of his stated intention to take a case to the Equality Tribunal. In fact a senior manager met him and went through all his issues. By all accounts it was an amicable meeting and was followed up by a letter explaining the actions of the respondent. Therefore, Mr Kozlov’s victimisation case also fails.
Decision
5.1 In accordance with Section 25(4) of these Acts, I conclude this investigation and issue the following decision:
that the complainant has not established a prima facie case of discrimination on the grounds of race
that the complainant has not established a prima facie case of victimisation
Therefore, I find against the complainant.
____________________
Orlaith Mannion
Equality Officer
Footnotes
[1] Calor Teoranta v Michael McCarthy [2009] 20 ELR Paragraph 7.7