ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000663

Complaint for Resolution:

Date of Adjudication Hearing: 3^rd March 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 3^rd November 2015, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Equal Status Acts. The complaint was referred to adjudication on the 3^rd March 2016.

The complainant attended the adjudication and was represented by Veronica McInerney, BL instructed by Eimear Gray, solicitor, Murray Flynn Maguire solicitors. Three representatives attended for the respondent.

In accordance with section 25 of the Equal Status Act, 2000 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

The complaint relates to discriminatory treatment on grounds of race as well as harassment and victimisation. It stems from the events of the 11^th August 2015 at approximately 11.20pm. The complainant completed an incident report on the matter on the 12^th August 2015 and wrote to the respondent on the 13^th August 2015. The ES1 form was sent on the 7^th September 2015.

At the adjudication, the complainant outlined that he was closing up the shop in which he worked with two colleagues on the fateful day in question. Because it was late in the evening, he had to run to catch the last bus from the suburb in which he worked to travel to the city centre, where he lived. He arrived at a junction close to the bus stop and saw that his bus was already at the junction, having passed the bus stop. The complainant said that he sought to attract the driver’s attention in order that he open the bus doors to let him board.

The complainant outlined that he went towards the bus stop and saw that another bus was coming and identified the route number of this bus. While this bus did not go to the city centre, it followed part of the same route as the bus he wished to take. He took this second bus, but observed that two people were subsequently allowed board by the driver of the bus he had initially wished to travel on, even though this bus was still at the traffic lights. The two people happened to be his work colleagues and they were both white.

The complainant outlined that the bus he had boarded overtook the bus he wished to get, and he was able to alight from this bus to board his chosen bus. As he boarded the bus, the complainant said to the driver “don’t be racist” and it was at this point that the driver refused to drive off. The driver told all the 25 or so passengers to get off the bus. At this point, a passenger told the complainant to leave the bus. A replacement service arrived some 45 minutes later and the passengers boarded this bus. The complainant outlined that he sought to board the second bus but was refused entry by the relief driver, who told him that the driver of the other service had told him not to allow the complainant on.

The complainant said that he then re-boarded the bus and was by now the only passenger present. The driver was also in attendance. The Gardaí came and spoke with the driver. One Garda spoke with the complainant. The Garda said that they were unable to judge who was right. The complainant then had no choice but to walk from this location to the city centre. He arrived home at 5am and had to see the doctor because of pain caused by the long walk. The complainant said that the harassment occurred when he had been told to leave the bus. In cross-examination, the complainant denied that the driver did not see him and denied that he had repeatedly said “don’t be racist” on boarding the bus. In concluding comments, the complainant said that the driver must have seen him as he came from the front and had been by the door; he had come back a second time to attempt to board the bus while it was stationed at the junction.

I asked the complainant why he had spoken to the driver while boarding the bus at the later stop, in particular when he had already decided to refer a complaint and knew that he could rely on CCTV. He acknowledged that he had been angry.

In submissions, the complainant relies on the cases of Maphosa v Dublin Bus [DEC-S2004-189] and Cantwell v Giles & Co Tralee [DEC-S2007-10] regarding the inferences that can be drawn in a case such as this.

Respondent’s Submission and Presentation:

The respondent denies the claims of discrimination and harassment. It denies that the complainant was not allowed on the bus because of his race and asserts that he was not permitted to travel because of his behaviour when boarding the bus at a later stop.

The bus driver gave evidence. He outlined that at the time the complainant approached the bus, he had already pulled away from the bus stop and was waiting at traffic lights. He saw two people approach the bus, and they waved to attract his attention. He let them on the bus and saw that the complainant had gone to take a bus approaching behind.

The bus driver outlined the complainant had addressed him in an aggressive fashion on boarding the bus a few minutes later and had continued shouting as he took his seat upstairs. He outlined that he made a decision not to continue the service and communicated with the respondent to inform them of this. He outlined that he had to ground the bus and transfer the passengers. He pointed out the complainant to the relief driver continuing the service. It took about an hour for the Gardaí to arrive.

In cross-examination, it was put to the driver that there was a conflict in when he said he first saw the complainant; he replied that this had been at the junction. It was put to the driver that he had pointed out the complainant to his colleague. It had been Control’s decision to ground the bus and to call the Gardaí. The driver had told Control that the complainant was repeatedly shouting about not being racist. Control informed him not to move and that they would contact the Gardaí. The respondent indicated that it was not ordinarily permitted for a driver to allow passengers to board a bus at locations other than designated bus stops.

Findings and reasoning:

In the course of the adjudication, the respondent played CCTV footage of the relevant incidents that led to this complaint. At the outset, the footage shows the bus leaving the bus stop and travel the short distance to a set of traffic lights. The bus is positioned in the second of three lanes, the inside of which is a left-turn lane. The bus route proceeds straight ahead. The footage depicts the complainant approach the bus at some speed and he gesticulates to the bus driver to allow him on. The complainant remains on the footpath, so there is some distance between him and the door of the bus as the left-hand turn lane is between them. Observing the driver, he looks directly ahead and makes no eye contact with the complainant. The driver does not turn his head. The complainant is observed looking back to see if other buses are approaching. He runs off and then runs back to the bus. He then moves back to the bus stop to catch the bus coming behind.

At this time, two other people are seen to approach the bus, then still parked at the traffic lights. A white man is seen to arrive first and he is followed a few seconds later by a white woman. The bus driver then opens the door. While the white man makes some effort to catch the driver’s attention, I am satisfied on viewing the CCTV that the driver opened the door on the arrival of the woman, which was shortly after that of the man. I note that the driver studiously looked ahead at the time the complainant was to the left of the bus door and took the same approach as the second man arrived. The driver, however, immediately turned his head when the woman approached and she, almost without breaking stride, was able to board the bus. The white man joined her and at this stage the complainant had gone to the bus stop to board the bus coming behind. I reach this conclusion because of the quick reaction of the driver in turning his head and opening the door on the woman’s arrival. Observing the events, I find that the two men, the complainant and his white work colleague, were blanked.

The next relevant portion of the footage occurs at the arrival of the bus at a later stop. Two people are seen in conversation with the driver, paying their fares and the bus is stopped. The complainant is observed appearing over the shoulders of the passengers and saying something to the driver. The complainant immediately moves down the corridor of the bus and up the stairs. The driver turns off the engine of the bus and the matter proceeded as outlined in the evidence of the parties.

Having considered the oral evidence and the CCTV, I consider the claim to be well founded. I reach this conclusion for the following reasons. At outlined above, I find as fact that the driver did see the complainant as he initially attempted to board the bus. The driver also observed the white man that followed. I contrast the driver’s immediate response to the arrival of the woman to his studious look-ahead while the complainant gesticulated to catch his attention and the more limited efforts made by the white man to attract the driver’s attention. Because the complainant had already gone to board the bus that followed, he was not able to join the woman and man in boarding at the traffic lights.

I find that the complaint is well founded because of what happened at the bus stop a short while later. The complainant boarded the bus and addressed the driver over the shoulder of two customers. While it is apparent from the video that the complainant was sharp with the driver, it is not at all apparent that anything else was said beyond this comment, made in an instant. I observed the complainant moving quickly down the bus and up the stairs after his entry to the bus. I also infer that the driver knew who he was. I have found that the driver had, in fact, seen the complainant at the stop. Given the proximity of the two bus stops and the fact that the driver would have seen the second bus overtaking him, he would have anticipated that the complainant would be at the later stop, a busy stop accommodating passengers going from the suburb to the city centre.

On balance, I find that there was discriminatory treatment on the part of the respondent. One element was the decision made to cease the service, which I believe was an overreaction. The second was not to allow the relief driver to assess the passengers on their own merits. Had the complainant’s behaviour merited his disbarment from the relief bus, this would have been a decision for the relief driver to make. Taking the evidence as a whole, I find that these two steps occurred on the basis of the complainant’s race. I find that a passenger of different race would have been treated differently in these same circumstances. This amounts to discriminatory treatment within the definition of the Equal Status Acts.

In relation to redress, I have regard to the inconvenience caused to the complainant in having to walk home, in particular the time of night and the distance. On this basis, the respondent shall pay to the complainant the amount of €1,400. For the sake of completeness, the claim of victimisation was not pursued by the complainant and given that the harassment related to a comment made by a passenger to the complainant, this element of the claim is not well founded.

Decision:

In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision: that the complainant has established a prima facie case of discrimination on the ground of race and this has not been rebutted by the respondent.

Therefore, as per Section 27(1) (a) I order the respondent to pay to the complainant €1,400 in compensation for the effects of the prohibited conduct.

Dated:   12^th October 2016