EQUAL STATUS ACTS
DECISION NO. DEC-S2017-034
PARTIES
Aleksandra Bilik
(Represented by Ald. Padge Reck, P.C.)
-v-
Department of Social & Family Affairs
(Represented by Alek Caffrey, B.L., instructed by the Chief State Solicitors Office)
File reference: ES/2013/0099
Date of issue: 4 October 2017
Background to the Claim
1.1 The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2011 on the 18 September, 2013. On 22 May 2017, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 the Director General delegated the case to me, Valerie Murtagh, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on 24 May, 2017.
1.2 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 84(3) of the Workplace Relations Act, 2015.
2. Dispute
2.1 The dispute concerns a claim by the complainant that she was discriminated against by the respondent on the race ground in terms of Section 3 and contrary to Section 5 of the Equal Status Acts in relation to access to a service.
3. Summary of the Complainant's Case
3.1 The complainant, who is a Polish national, claims that she was discriminated against on race grounds by the respondent in that she was subjected to signing on daily in the local social welfare office where she was in receipt of a Jobseekers Allowance. The complainant submits that this arrangement was enforced on 12 September 2012. The complainant states that when she requested an explanation for said treatment, she was verbally told that she was suspected of a having a family and a business in Poland. The complainant maintains that she fulfils the qualifying criterion for Jobseekers Allowance and she should be treated like any other job seeker recipient. The complainant submits that she was actively seeking employment and was making the necessary arrangements to improve her employability including completing four FAS training courses. She states that all her visits to Poland were always reported in advance to the social welfare office and that she was never informed by an officer that these visits were not allowed. She also states that she kept the length of her visits within the two week period allowed by social welfare.
3.2 The complainant submits that on 27 February 2013 at 4 pm, two Gardaí called to her apartment. She states that these two officers were sent by the staff of the social welfare office. The complainant surmises that she asked too many questions in her case clearly showing impatience in not getting any answers and the staff in the social welfare office felt threatened. The complainant submits that she was very upset and frustrated with the situation. She feels that the daily signing arrangement, which had lasted 8 months with no opportunity for rebuttal was unfair and was a direct result of her race. The complainant states at no stage was she truculent or aggressive with the staff of the social welfare office. The complainant submits that after some interventions her signing agreement changed to signing on weekly in May 2013 which she states clearly demonstrates that the social welfare inspector acted maliciously against her.
4. Summary of the Respondent's Case.
4.1 The respondent states that the conditions for receipt of Jobseekers Allowance require that the customer concerned make himself/herself available for interview and that he/she is habitually resident in the State. The respondent submits that the complainant had funded a number of trips abroad with no visible means. The respondent contends that in the time immediately prior to the decision to put the complainant on daily signing, both she had her partner had been absent from the State for significant periods (i.e. 5 weeks in a four month period). The respondent states that the complainant was claiming benefits in respect of herself and her adult dependant who had opened up a business which was loss-making. The respondent contends that given the number of weeks the complainant was absent from the State, it gave rise to a suspicion that she may have been working with him in his business. Moreover, the respondent states that the complainant was not home when Social Welfare Inspectors SWI called. Consequently, the respondent states that the complainant was put on daily signing requirements as a control measure. The respondent states subsequently numerous house calls were made by the SWI to the complainant’s address at times when she was not on notified holidays and on each occasion with the exception of one, the complainant was not at home. The respondent submits that the complainant resides only two minutes’ walk from the social welfare office. The respondent states that it is important to highlight that the SWI in this case, who is appointed under Section 250 of the Social Welfare Consolidation Act, 2005, was at all times engaged in carrying out her duties and functions mandated under section 250(2) which provides;
“(2) Every social welfare inspector shall investigate and report to the Minister on any claim for or in respect of benefit and any question arising on or in relation to that benefit which may be referred to him or her by the Department..”
The respondent submits that it is a requirement that anyone who is in receipt of social welfare entitlements in the State must satisfy the habitual residence condition (i.e. habitually reside in this State). The respondent states that in general terms, the SWI is entitled to use her experience and judgement in determining how best to ensure that the social welfare system in the State is not subjected to abuse. In carrying out his/her functions, on occasion, it is necessary to impose more stringent signing-on requirements. In this regard the respondent states that a significant number of nationals and non-nationals in the State are currently required to sign-on on a daily basis.
4.2 The respondent maintains that despite the clear factual basis upon which the decision was made, the complainant alleges in the instant claim that she was subject to a daily signing requirement because of her Polish nationality and that there is no other person who is subject to the same treatment. The respondent refutes the assertion that the daily signing was related to her nationality and state in fact that most persons required to sign-on daily are Irish nationals. The respondent states that as of 9 July 2013, there were 18 daily signers attending the social welfare office, 10 of these individuals were Irish and 8 were other nationalities. The respondent submits that there is no basis to the complainant’s claims of discrimination and that she is motivated by malice. The respondent states that on more than one occasion, the complainant has been very abusive in her language regarding the SWI. It states that on one particular occasion on 3 January 2013, a staff member received the following e-mail;
“she said that it is completely unacceptable to keep her daily signing and if you do not correct her immediately, she will be left with no option but to follow you home and knock on your door so you will have to talk to her. She also said she is going to play with your life like you are playing with hers. She is going to make you pay by lodging complaint after complaint against you until you take her off daily signing. She says she will destroy you to make you pay for her having to daily sign”. In the circumstances, the respondent maintains that the complaint should be dismissed on the basis that it frivolous, vexatious or misconceived.
5. Conclusions of the Equality Officer
5.1 The Equality Officer/Adjudication Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him. 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. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
5.2 Having carefully examined all the evidence in relation to the instant case, I note from the documentation submitted there is a requirement in the legislation that any person who is in receipt of social welfare entitlements in the State must satisfy the habitual residence condition (i.e. be habitually reside in this State). The respondent has stated that the complainant was placed on daily signing requirements because she had been absent from the State during the periods 29/04/2012 – 13/05/2012, from 21/06/2012 – 08/07/2012 and 19/08/2012 – 26/08/2012 without notifying the social welfare office. The respondent states that on 6, 7 and 9 September 2012, a social welfare inspector made void calls to the complainant’s address. As a result, the complainant was placed on a daily sign-on which commenced on 12 September 2012. Having carefully examined the evidence, I find that the complainant was placed on a daily sign-on requirement as she was absent from the State for a significant period i.e. five and a half weeks in a four month period. The SWI called on a number of occasions to the complainant’s address but got no reply until 21 November 2012. I am satisfied that according to the guidelines laid down by the Department that a person in receipt of Jobseekers Allowance is required to make herself/himself available for interview when required to do so and also to be habitually resident in the jurisdiction. I note from the statistics submitted at hearing that at that juncture, there were 18 daily signers attending the social welfare office, 10 of these persons were Irish and 8 were other nationalities.
5.3 The complainant also asserts that she was treated less favourably, in that, two Gardaí called to her address. The respondent states that following abusive and threatening behaviour towards staff at the social welfare office including using foul language and spitting at one of the staff, a call was made to the local Garda station on 27 February 2013 about the complainant’s behaviour. The respondent states that this had nothing to do with her race but related to her threatening behaviour. The respondent states that this procedure would apply and has been applied to any individual whether it is an Irish national or a different nationality who would act in such a manner. The respondent (following a letter from an advocacy group
which stated that daily signing was affecting the complainant psychologically) reviewed the matter and the complainant was returned to weekly signing in May 2013 and monthly signing in July 2013. The respondent submits that shortly into her monthly signing, the complainant took a 20 day trip to Boston. The respondent reiterates that it has a duty to ensure that a person is habitually resident in the State in order to be in receipt of Job Seekers Allowance. Having carefully evaluated all the evidence in the instant case, I find that the complainant has not demonstrated a nexus in relation to her treatment and her race, therefore, I find that she has not established a prima facie case on grounds of race under the Equal Status Acts and the complainant’s case fails.
6. Decision
6.1 Inreaching my decision, I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision.
6.2 I find that the complainant has not established a prima facie case of discrimination on the grounds of her race.
________________
Valerie Murtagh
Equality Officer/Adjudication Officer
4 October, 2017