ADJ-00012625

Complainant

Respondent

Parties

Vanessa Corral

Revenue Commissioners

Representatives

None

Anthony Kerr, SC instructed by the Revenue Solicitor

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00016633-001

04/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00016667-001

06/01/2018

The complainant asserts that she was discriminated against by the respondent on grounds of race and disability. She also asserts that she was victimised by the respondent. The respondent, a public body, denies the claims.

In the ES1 form, the complainant asserts that she has been discriminated against on the race and disability grounds and victimised by the respondent. She refers to the 9th May 2017 as the date of the incident and to statements of racial nature she received following an FOI request. She submitted the complaint forms in January 2018, which refer to the events of the 9th May 2017.

The complainant outlined that she complained after being very badly treated at the respondent’s city centre public offices. She believed that this treatment was in retaliation for a previous interaction with the manager of the office. On the 15th December 2016, she had reported her employer for not paying her the national minimum wage. The manager had been threatening when she called to the counter. He said that this income was taxable and the complainant could be prosecuted. He was aggressive and she said she wanted to make a complaint. The complainant discovered through an FOI request made in December 2017 that the manager had recorded she wanted to make a complaint about him.

In May 2017, the complainant went to a specialist tax advice clinic at a Citizens Information Centre. She then entered the same offices, where there are several computers to access online resources. There is also a reception desk and one member of staff standing on the floor to answer queries. The complainant noticed that this was the same male member of staff on the floor as on her previous visit. She was about to open her mouth and he immediately told the complainant to go upstairs. She turned to the reception desk where the female staff member talked over the complainant and sent her upstairs. The complainant decided to be assertive and stated her query. A security man immediately approached her and pointed to her chest. He accused the complainant of being abusive and the complainant pointed to a CCTV camera.

The complainant said to herself that they were being abusive. She wanted support so rang the Samaritans. She lifted her phone and the security guard said she was taking a picture. She then phoned the Samaritans and said she needed assistance. The security guard had an ID Card but this was turned away. She wanted to get his details and asked the security guard for his number. He ignored her. She then approached the desk to make a written note.

The manager then approached her and placed his body close to hers. He leaned towards her and mocked her for making a complaint. He was leaning on the desk and put his folded arms on the page. He invaded the complainant’s personal space, who decided to call the Samaritans again. She was then close to the reception desk and the security man came out from behind the desk and literally pushed her. The complainant felt his hands and his belly. He took her bag and threw it outside the building. He took her phone, but did not throw it away. The security man grabbed her by her left arm and as she asked him to let go, he gripped her arm with greater force. She tried to pull her arm away as this hurt. As she pulled with greater strength, he released her arm, causing her to fall. As she fell she hit her head and hurt her elbow. She stood up and called the Samaritans again.

The complainant then calmed down and decided to call the Gardaí. She moved to a location in the office covered by CCTV. There happened to be Gardaí in the area and they spoke with the manager and then spoke with the complainant. She told the Gardaí that she had been assaulted. They initially believed that she had been abusive and told her to wait outside. The respondent had also called the Gardaí. The complainant called the Samaritans again. She said she would make a data access request for the CCTV and it took four months for the Gardaí to contact her. In June 2017, she was provided the CCTV footage, but on foot of her counsellor’s advice, she had not viewed it. There were four cameras, but the respondent only referred to there being two angles.

The complainant outlined that these events all took place on the 9th May 2017. She had panic attacks after the incident, especially when she visited Dublin. While the Gardaí did not use the word “barred”, they told her not to go to the respondent offices. She saw on the Freedom of Information request that the manager referred to a “barring order”. She said that nobody from the respondent had contacted her about the family she had worked for. In December 2016, the manager had told her that he was “freezing my taxes”. He also threatened her with prosecution.

The complainant outlined that she was in touch with the Assistant Principal after the incident. She believed that the May 2017 incident was discrimination as the manager’s statement referred to her nationality. She was also defamed. The complainant felt that the manager retaliated to make people think that she had serious issues. This was discrimination and occurred in May 2017.

The complainant sent the ES1 form on the 6th November 2017 and included victimisation. She received a response from the respondent, drafted by the Assistant Principal. She referred complaints in January 2018 and was concerned by the manager’s reports. The complainant denied that there had been incidents in August 2016, as stated in the respondent’s submission. In relation to these August incidents, she said that there was a judgmental attitude regarding her profession.

The complainant said that she lodged a complaint to the Workplace Relations Commission in 2016 against the first family. She lodged another complaint against the second family. She referred those complaints straight away as it was clear that the employers were wrong. However, it was only from the FOI request that the complainant knew of the equality issue with the respondent. There were three months when she had to be away on health grounds. It was only then that she could make the complaint. The three months came to an end in September 2017. The Gardaí said that she could not lodge a WRC complaint until the Garda investigation ended. The security company wrote to her on the same grounds. The complainant said that she met respondent on two occasions, on the 18th May and the 29th June 2017. She called to collect the CCTV. She commented that the manager had referred to her shouting and being a threat to the public.

The respondent provided the complainant with an ES2 form in reply to her ES1 form. This provides the respondent’s account of the events of the 9th May 2017 and refers to the complainant’s non-cooperation. It submits that the manager referred to the complainant’s nationality as a means of identifying her and this did not connate discrimination or victimisation. The ES2 form refers to the ES1 form not being sent within the required time limit and submitted that there was no reasonable cause to extend time.

The respondent submitted that theincident referred to by the complainant occurred on the 9th May 2017. The ES1 form must be referred within two months of the incident and the complaint must be referred to the Workplace Relations Commission within six months. This did not occur. In this case, there was a full Garda investigation, which concluded that there would be no prosecution. The Ombudsman was also in touch. On the 17th May 2017, the complainant submitted a written complaint and a data access request. The respondent replied on the 29th June 2017, including the CCTV which had to be pixelated. The Assistant Principal then met with the complainant and carried out a detailed investigation. He viewed the CCTV footage and concluded that the complaint was unsubstantiated.

The respondent’s report stated that the complainant was asked to go to the ticketing area, but instead approached a staff member for her query to be dealt with. There were three incidents in August 2016. The complainant asked to speak to “a manager” and the manager came. He later asked the complainant to leave the building. The manager is the floor manager and a HEO. There is no reference in the data access request to the complainant’s taxes being frozen or of a threat of prosecution. The Ombudsman has closed their file as “not upheld”. 

The Assistant Principal stated that there was no mention at the meeting of the 19th May 2017 that the complainant’s taxes were frozen. He commented that the office had a great many non-Irish nationals calling to the office.

CA-00016633-001 and CA-00016667-001

These are complaints of discrimination on the race and disability ground and victimisation pursuant to the Equal Status Act. The complainant is a taxpayer and the respondent is the public body charged with the collection of taxes. The case relates to incidents at the respondent’s offices at a city centre location. There were incidents in August 2016 and most significantly on the 9th May 2017. The complainant makes very serious allegations about how she was treated by respondent staff and security personnel on site. She also asserts that she has been threatened with her taxes being frozen and denied entry to the offices.

Section 21 of the Equal Status Acts provides the following notification requirements prior to the referral of a complaint:

“(2) Before seeking redress under this section the complainant — (a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of — (i) the nature of the allegation, (ii) the complainant’ s intention, if not satisfied with the respondent’ s response to the allegation, to seek redress under this Act, and (b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions. (2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent. (3) (a) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may — (i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or (ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction, and, where such a direction is given, this Part shall have effect accordingly. (b) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including — (i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and (ii) the extent of any risk of prejudice to the respondent’ s ability to deal adequately with the complaint.”

Section 21(6) provides that a claim for redress should be referred within six months of the most recent occurrence of discrimination, extendable with reasonable cause to 12 months.

Section 38A sets out the burden of proof in equal status complaints:

“Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.”

In many instances, the Equal Status Acts deal with parties who have no ongoing relationship and involve situations where members of the public interact with a service provider. This case is somewhat different. There were previous interactions between the complainant and the respondent’s staff at this city centre location. These were recorded by the respondent staff in various case notes, disclosed to the complainant via an FOI request. From looking at the records, the respondent was aware of the interactions with the complainant and it faced no risk of prejudice as it had contemporaneous notes. While the complainant did not submit an ES1 form within the extended four-month period, I, for the sake of completeness, examine the case, having applied section 21(3)(ii). I note that the respondent provides a public service to which the public is obliged to interact with, either by way of returns or the payment of tax. As stated by the respondent, it interacts with many people who are not Irish.

I note that the complaints were not referred to the Workplace Relations Commission within six months. The complainant referred to being unwell for a three-month period and it is appropriate to apply reasonable cause in these circumstances.

It is clear from the evidence that there were various interactions between the complainant and respondent staff at the offices. I note that the complainant initially denied that there were incidents in August 2016, but later accepted that they had occurred. I note that the staff of the respondent offices provided detailed statements of what happened from their perspective. They differ sharply from the complainant’s account. The complainant was provided CCTV footage of the incident, but has not viewed this or submitted it as evidence to this adjudication. The complaint was thoroughly investigated by the Assistant Principal, who viewed the CCTV footage. He found the complaint to be unsubstantiated. Other state bodies have examined the complainant’s complaints. Taking these factors together, I find that the respondent’s account of the events of the 9th May 2017 is correct.

In respect of the claim of discrimination on the ground of race, the only suggestion of discrimination is the manager’s report of the security guard’s reference to the complainant as a “Spanish lady”. In the context of the detailed notes provided by staff, this reference is insufficient to establish a prima facie case of discrimination. While the complainant submitted evidence of her disability, there is no fact of such significance to establish a prima facie case of discrimination on the disability ground. There is also no fact to establish a prima facie case on the victimisation ground, following the complainant raising these issues, submitting the ES1 form or making the complaints to the Workplace Relations Commission. There is no evidence of the complainant not being able to access the respondent offices or not being able to settle her tax affairs.

CA-00016633-001

In reaching my decision, I have taken into account all the submissions, written and oral, made by the parties. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision: the complainant has not established a prima facie case of discrimination on the grounds of race or disability or the victimisation ground contrary to the Equal Status Acts, 2000-2015. 

CA-00016667-001

This is a duplicate complaint and I find that the complainant has not established a prima facie case of discrimination on the grounds of race or disability or the victimisation ground contrary to the Equal Status Acts, 2000-2015.

Equal Status Acts

Notification requirements

Burden of proof