ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000132
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00000174-001 | 11/10/2015 |
Date of Adjudication Hearing: 14/12/2016 - Three earlier hearings had taken place (13th January 2016, 5th May and 19th July 2016. All had been adjourned to allow further investigations/attendance of witness parties.
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 25 of the Equal Status Act, 2000 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
On the 27th June 2015 I was attempting to board a XX route bus operated by Respondent Bus in Clongriffin, when I was the subjected by an employee of Respondent Bus (the driver) to upsetting, contumelious and defamatory language which included the use of expletives, in the presence of witnesses. I suffer from rheumatoid arthritis and psoriatic arthritis such that I am afforded the use of a Free Travel Pass. The Respondent Bus employee stated words to the effect that I was not entitled to such a pass, that I was not in reality suffering from a disability, and that I would not be getting on the bus. I was subsequently allowed to travel on the bus. I was shocked and upset by this outburst, and was made to feel embarrassed and humiliated in front of others, and was initially refused entry onto the bus, all because of the non-overt nature of my disability and my use of a government benefit afford to persons such as myself suffering from a disability. |
Summary of Respondent’s Submission and Presentation:
On the basis of the details supplied by the Complainant and arising from the first and second Adjudication hearings the alleged incident was fully investigated. It was necessary first of all to identify the exact bus service/route and the exact time of the service against which the complaint was being made. Once done the investigation could reveal nothing untoward and the claim is denied.
Decision:
Section 25 of the Equal Status Act, 200 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
Issues for Decision:
Did an act of discrimination take place on the date in question?
Legislation involved and requirements of legislation:
Equal Status Act, 2000
Decision:
Burden of Proof in Equality/Equal Status cases.
It is settled law that the Complainant has to establish a prima facie case of discrimination before the need for a rebuttal arises from the Respondent.
Evidence
This case is marked by a complete conflict of evidence. After much investigation it was established that the bus involved was the 23:00 service and the correct driver was identified from Bus company records.
The Driver attended the hearing and had no recollection of any of the parties involved. The Complainants stated that they had all been wearing Gay Pride decorations/colourful clothing that should have made recollection easier for the driver.
The Complainant was clearly disabled and her two friends who also gave evidence appeared to be genuine in their concerns for the Complaint. Their recollections were a little hazy over details such as where they were standing on the bus and the possibility of overhearing conversations with the driver while standing on the stairs to the top deck of the bus. There was not absolutely convincing evidence of physical recognition of the driver by the Complainants. Issues of hair styles on the night by both parties did not add to clarity.
It appeared that some type of verbal exchange between the parties had begun at the terminus during a rest break for the driver and had continued at the first stop. The evidence was that the night was wet and the Complainants were upset at not being allowed to board the bus at the Terminus to shelter from the rain.
The Bus Company had a detailed training programme in Equality matters for all drivers and the driver acknowledged that he had been trained.
Conclusion
On the basis of the evidence from the Driver, the Complaint and her two friends I am prepared to make the following findings.
There is a very high probability that there was a verbal exchange with the Driver regarding boarding the bus at the Terminus when he was on his rest break. This more than likely coloured further conversation at the first stop when the Complainant’s boarded the bus.
There were no CCTV available or other independent witnesses.
There was no incontrovertible evidence as required by the Equal Status Act., sufficient to establish a prima facie case of discrimination, as opposed to a robust exchange with the driver,
Accordingly the claim has to be dismissed for want of sufficient evidence of discriminatory action or behaviour by the Respondent Driver.
However while dismissing the claim I strongly recommend that the Respondent Bus Company refresh all staff on the issues of good customer relationships when passengers may seek to board a stationary bus at a Terminus to shelter from inclement weather.
Dated: 10th March 2017