ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00004804

Complaint:

Date of Adjudication Hearing: 03/04/2017

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Location of Hearing: Room 4.01 Lansdowne House

Procedure:

In accordance with his entitlements under the Equal Status Acts 2000 to 2012, the Complainant herein has made a complaint that he was discriminated against by the Respondent entity on the Grounds of Race. The Complainant has brought his complaint by way of Workplace Relations Complaint Form dated the 1^st of September 2016 and has also completed and served the appropriate ES1 Form which was delivered to the Respondent within the requisite two month period after the incident being complained.

Following the referral of this complaint to the Workplace Relations Commission I can confirm that at the direction of the Director General of the said WRC that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing. I have also considered the written submissions which were made available to me by the Respondent on the day and I confirm that I allowed the Complainant take whatever amount of time he required to consider same as this was the only matter scheduled for hearing.

Background:

The Complainant is from Africa and has lived, with his family, in Ireland for over ten years. On or about the 23^rd or 25^th of February 2016 the Complainant was using computer facilities which represent a part of the many services offered to the Public by the Respondent. An incident occurred which gave rise to an interaction between the Complainant and a servant or agent of the Respondent entity. It is the Complainant’s case that this interaction was racially motivated and that his treatment at the hands of the said servant or agent amounted to an Act of Discrimination.

Summary of Complainant’s Case:

The Complainant gave evidence that he was situate in the window of the Computer room in such a way that he had a direct line of vision with pedestrians moving up and down on the pavement outside.

The Complainant became aware of a group of young girls outside the window and his evidence is that they were being particularly noisy and were drumming their fingers against the window which he found distracting. In an effort to move them on, the Complainant jotted down the words “go back to school” on the back of an envelope. The girls indicated that they were finished class for the day and the Complainant again jotted down the suggestion that they should then go home. The communications do not appear to have been in any way hostile – and were simply an attempt by the Complainant to get on with his work. In any event the girls did move on.

The next thing that the Complainant knew is that he was being called out of the Computer Room by a member of staff and questioned about his interaction with a group of twelve year olds outside the window. The Complainant says that the lady that called him out started by saying “You. Come here!” used an accusatory tone and was pointing her fingers and generally being aggressive. In essence the Complainant says that this lady made the very serious allegation that the Complainant had taken photographs of the girls and in fact called him a paedophile. The Complainant says that this treatment at the hands of the Respondent’s employee amounted to a discrimination on the grounds of his skin colour or ethnic origin and it is his contention that a white Irish person would not have been treated in this way.

The Complainant says he was deeply offended and hurt by these allegations. The Complainant is a Father himself. The Complainant showed the Employee his telephone and there were no pictures of the sort being alleged thereon.

Summary of Respondent’s Case:

The Respondent‘s witness (HR) gave her own account of what happened on the day. She was on the premises when a member of staff approached her and said that a group of school girls were downstairs making a complaint about one of the facility users. In line with what is absolutely appropriate where the concerns of children’s health and welfare are at issue, the Employee took immediate steps to clarify what was going on. HR talked directly to the girls. HR was told by them that they were all in and around the age of 12. They gave to her a version of events which tallied with the version given by the Complainant to the hearing save in one respect – the girls said that the man in the window who had written the words as described also took up his phone and appeared to be pointing the lense at them as if he was taking pictures of them. HR took a description of the individual in question and it was on foot of the information that they provided that she went into the computer room and called out the Complainant.

There can be no doubt that a correct identitfication was made where the Complainant to this date still has the notes (“go back to school” and ”go home”) which he had posted in the window as part of his interaction with the girls.

HR is adamant that she was not overly aggressive or hostile or accusatory. However, in the circumstances and given what the minors had told her, she was bound to act with some urgency and she says that the staff manual relating to the “Safeguarding of children and young people policy” would have been a factor in wanting to ensure that the Respondent provides safe environment where the safety and welfare of children is paramount.

HR’s employer wanted it noted for the record that it stood over HR’s actions as being appropriate, measured and in line with policy.

HR says she did not use the word paedophile though it seems clear that she did call for an inspection of the phone and satisfied herself that no inappropriate pictures had been taken.

Findings and Conclusions:

HR and the Complainant give very different account of how this conversation went. It is clear that the Complainant is innocent of any wrongdoing in terms of taking inappropriate photos. It must be assumed that the girls got this wrong or that they misunderstood the Complainant’s intentions in picking up or otherwise handling his phone. HR however, was faced with an accusation being made about one of the facility users situate in a picture window with a bird’s eye view of the world outside. I accept fully that HR was bound to react in some way. Rightly or wrongly, HR opted to deal with this matter directly. A more prudent person might have called the police. Though I would be bound to accept, as it turns out, calling the police would have been overly drastic and it seems that HR probably did the right thing by making sure that any such photos had not been taken.

In approaching the Complainant on foot of the allegations made I cannot find that HR was in any way racially motivated. A group of twelve year old children had made a serious claim and HR was bound to follow it up no matter what the creed, colour or ethnic background of the individual might have been. I am absolutely satisfied that there has been no discrimination under the Equal Status Acts

Decision:

The claim fails under the Equal Status Acts.

Dated:   20^th June 2017

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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