EQUAL STATUS ACTS 2000-2004
DECISION NO. DEC-S2016-044
PARTIES
Brendan Cheevers
-v-
Bus Eireann
File reference: et-153998-es-15
Date of issue: 21st June 2016
HEADNOTES: Equal Status Act – Discrimination in provision of services- Gender-age
1. DISPUTE
1.1 This dispute concerns a claim by Brendan Cheevers that he was discriminated against by the respondent on the grounds of his gender and age contrary to section 3 of the Equal Status Acts 2000 to 2004 in relation to the provision of services in terms of section 5 of the Act and that he was victimised contrary to section 11 of the Equal Status Acts.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on February 26th 2015 under the Equal Status Act. On May 24th 2016, in accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations commission delegated the case to me, Pat Brady an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts, on which date my investigation commenced.
1.3 Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on June 8th 2016.
1.4 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
COMPLAINANT’S SUBMISSION
2.1 The complainant is a retired person who avails of the free travel pass scheme on Bus Eireann.
2.2 There was an incident on January 10 2015 when he submits he was on the receiving end of what he says was unacceptable conduct from a Bus Eireann driver who made it clear that, because he had hailed the bus at a point where there was an unbroken white line he would not stop there to pick him up again.
2.3 The complainant submits that the driver was abusive and demanded to examine his travel pass and threatened to call the Gardai. He says that the driver’s behaviour was a form of retaliation for the complainant having made a complaint about the service earlier in the day to the company.
2.4 The complainant mentioned a previous incident where something similar had happened and this appeared to anger the driver. He asked the driver where he had been that morning (i.e. when the bus did not turn up) and the driver said that the bus had broken down. The exchanges continued with the complainant continuing to criticise the company’s poor service as he saw it.
2.5 At that point the driver stopped the bus and approached the complainant asking to see his travel pass. The exchange concluded with the driver saying that he would not be in a position to carry him later that evening.
2.6 The complainant also says that following this incident the same driver refused to stop to pick him up.
2.7 He also refers to another incident, not involving the driver referred to above when an inspector checked his travel pass but did not check a female traveller also using a pass.
RESPONDENT’S SUBMISSION
3.1 The respondent denies that any discriminatory acts took place. It confirms that on January 10th 2015 the driver did in fact tell the complainant that he would not be collected from the particular point on the road. It is not an official stop, although there is one a few minutes walk away. Drivers have some discretion to respond to being hailed but this is always subject to its being safe to do so. In this case the driver gave direct evidence to the hearing that he was not happy about picking up a passenger at that particular location on the basis that it was not safe to do so. He even had to mount the footpath in order to do so with some confidence.
3.2 Eventually he stopped the bus and approached the complainant to check his identity. He had to apologise to two female passengers for the complainant’s comments.
3.3 The Inspector in the region inspected the site of the incident and supports the driver’s view that it is unsafe to stop a bus there. In his direct evidence the driver said he had to pull the bus onto the footpath to provide some measure of safety in stopping. He confirms that he told the complainant that he would not stop there again. He says the complainant became abusive towards him and at that point he sought to check his Travel Pass and threatened to call the Gardai.
3.4 In response to the complainant’s evidence that the driver was reacting to his (the complainant’s) complaint to Bus Eireann about the earlier service the driver said he had not been aware of it at the time he picked up the complainant and so the issue of retaliation could not arise. He was only aware that the bus had broken down.
3.5 With regard to the separate incident (not involving the witness driver) the Area Manager gave evidence that there was a continuing responsibility on the company to monitor compliance with the rules imposed by the Department of Social Protection and that checking one passenger and not another could be for a variety of reasons not related to discrimination.
3.6 In respect of the allegation that the witness driver failed to stop for the complainant he noted that no details of the alleged incident were provided and he says he has never failed to stop for the complainant.
CONCLUSIONS AND FINDINGS
4.1 There can be no doubt that the complainant was very aggrieved at aspects of the operation of the service in his area and much of his complaint to the Director turned on this grievance.
4.2 There was divergence in the evidence of the parties as to the incident on January 10th. The complainant denies being abusive and accuses the driver of being so, and the driver’s evidence was the exact opposite. The complainant says there was no-one on the bus, the driver recalls having to apologise to the female passengers.
4.3 The complainant challenged the driver’s submission that he had to mount the pavement to collect him. However I see no reason not to accept the driver’s evidence on this point.
4.4 The complaints about other dates were hazy and flimsy and no supporting evidence was offered.
4.5 All of this conflict in the evidence is largely irrelevant to a complaint of discrimination under the Equal Status Acts and it is not the function of this Adjudication Service to resolve such disputes, except to the extent that an issue of discrimination lies within it.
4.6 It did not in this case. Significantly the complainant offered no evidence of any description to support his claim of discrimination on either of the grounds claimed, or of victimisation on the part of the witness driver or the company generally. He provided no comparator, or indication of less favourable treatment and he appears to have misunderstood the nature of jurisdiction of the Acts.
DECISION
5.1 In accordance with Section 25 (4) of the Equal Status Acts I conclude this investigation and issue the following decision; that the complainant has failed to establish a prima facie case of discrimination and victimisation and his complaint fails.
5.2 Accordingly I dismiss the complaint.
__________________
Pat Brady
Adjudication Officer
21st June 2016