EQUAL STATUS ACTS 2000-2015
DECISION NO. DEC-S2016-056
PARTIES
Mark Savage
-AND-
An Post
(Represented by Seamus Clarke BL,
instructed by Paul Carroll, Solicitor for An Post)
File Reference: et-159390-es-15
Date of Issue: 14th September 2016
1. DISPUTE
1.1 This dispute concerns a claim by the Complainant, that he was discriminated against by the Respondent in relation to accessing the Respondent’s postal system, on the grounds of religion contrary to Sections 3(e) and 5(1) of the Equal Status Acts 2000-2015 (hereinafter also referred to as ‘the Acts’).
1.2 This complaint was lodged with the Director of the Equality Tribunal on 15th September 2015, an ES1 Notification having been sent to the Respondent on 13th April 2015. On 14th June 2016, in accordance with his powers under Section 75 of the Employment Equality Acts and under these Acts, the Director General of the Workplace Relations Commission (hereinafter ‘the WRC’) delegated this case to me, Aideen Collard, an Adjudication Officer / Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part III of the Equal Status Acts. This is when my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 17th June 2016. The Complainant represented himself and confirmed that he was familiar with the relevant procedures whilst the Respondent was legally represented. All evidence presented and submissions and documentation submitted before and during the hearing have been taken into consideration. I also indicated that I would be relying upon the key statutory provisions and relevant case law in my consideration of this matter.
1.3 This decision pursuant to Section 25(4) of the Acts is issued by me following the establishment of the WRC on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSIONS & EVIDENCE
2.1 The Complainant alleges that he was discriminated against by the Respondent on the grounds of religion arising from the manner in which it handled transmission of an envelope containing documentation by registered post relating to another complaint to the Equality Tribunal entitled ‘Savage -v- Boards.ie Ltd, File Reference et-154382-es-15’ from 2nd-16th March 2015. This complaint arose from his ban on 22nd January 2015 from the well-known Irish online discussion forum, ‘Boards.ie’ arising from his postings expressing his personal views in relation to same sex marriage and homosexual lifestyle. He contends that as local independent politician involved in the ‘no’ campaign for the forthcoming Marriage Equality Referendum, his religious views were well known. In particular, he alleges that the Respondent’s staff conspired to intercept the envelope in question and delayed delivery of same to the Equality Tribunal. This is based upon the post-office set-up, the WRC Customer Service confirming that same had not been received by 12th March 2015 and difficulty accessing the Respondent’s online tracking system from his own computer. He sought to have the member of the WRC Customer Service called but I ruled that there was no requirement for same as I fully accepted his evidence in relation to their conversations. I allowed the Complainant an opportunity to examine the original file containing the envelope, documents and date stamp in question but he refused to accept that his complaint had been delivered the next day.
3. SUMMARY OF THE RESPONDENT'S SUBMISSIONS & EVIDENCE
3.1 The Respondent wholly refutes the Complainant’s claim that its staff conspired to intercept and delay post of his complaint, giving rise to discrimination on the grounds of religion. Documentary proof that his complaint was delivered to the Equality Tribunal the next day without delay or incident was provided. Overall, it was submitted that the Complainant’s claim was made in bad faith and/or is frivolous, vexatious, misconceived and relates to a trivial matter and therefore should be dismissed.
4. FINDINGS & CONCLUSIONS
4.1 The issue for my decision is whether the Respondent discriminated against the Complainant on the grounds of religion in relation to accessing its postal system and the facts adduced must be assessed in light of the relevant law. Section 3(1) of the Equal Status Acts provides that discrimination shall be taken to occur “where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)..." Section 3(2)(e) defines the discriminatory grounds of religion as arising in circumstances when as between any two persons “that one has a different religious belief from the other, or that one has a religious belief and the other has not." In relation to the disposal of goods and provision of services, Section 5(1) provides: “A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public” There is no issue that the An Post postal system constitutes a service to the public within the meaning of Section 5(1) of the Acts.
4.2 Section 38A of the Equal Status Acts sets out the burden of proof which applies to all claims of discrimination under the Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. 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. Having examined the original envelope in question and the Respondent’s confirmation of delivery, I am satisfied that the envelope was delivered to the Equality Tribunal the next day without delay and further that there is no evidence of any tampering with same and therefore no factual basis whatsoever for this complaint.
5. DECISION
5.1 I have concluded my investigation of this complaint and based on the aforementioned, I find pursuant to Section 25(4) of the Acts, that the Complainant has not established a prima facie case of discrimination by the Respondent on the grounds of religion requiring rebuttal and accordingly dismiss same.
__________________________
Aideen Collard
Adjudication / Equality Officer
14th September 2016