Complainant

Respondent

Parties

Thomas Keenan

Topaz Energy Limited

Representatives

Sweeney McGann Solicitors

Harrison O’Dowd Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00014752-001

03/10/2017

The Complainant is a member of the Traveller Community. The Complainant claims that he was discriminated against by the Respondent on the grounds of his membership of the Traveller Community in terms of Section 3(1) and 3(2)(i) of the Equal Status Acts and contrary to Section 5(1) of the Acts in relation to the Respondent preventing him from refuelling his car without notice and requiring him to pay in advance for the fuel.

The Respondent submitted that the Adjudication Officer does not have jurisdiction to investigate the present complaint on the basis that the Complainant has failed to comply with the notification provisions of Section 21(2)(a) of the Equal Status Acts. The Respondent’s position is that the ES1 Form was sent to the Respondent outside of the time limits provided for in Section 21(2) of the Equal Status Acts. The Respondent stated that the legislation provides that the Complainant must notify the Respondent within 2 months after the prohibited conduct is alleged. In the instant case the form was sent on the 28th June 2017, some 2 months and 20 days after the alleged events took place. The Respondent further submits that the Complainant has not applied to the Director General of the Workplace Relations Commission (WRC) for an extension of the time limit provided for in the Act and failed to demonstrate a reasonable cause for extending the time limit. Moreover, the Respondent submits that the letter of 28th June 2017 is flawed in terms of its contents. Specifically, the letter does not comply with the requirements provided for in Section 21(2)(a)(ii) of the Acts on the basis that it fails to include any indication of the Complainant’s intention to seek redress under the Acts in relation to the matter in the event that he was not satisfied with the Respondent’s response to the allegation.

Solicitor representing the Complainant acknowledges that the ES1 Form was sent to the Respondent outside the provided time limit. However, she stated that the delay was due to her firm’s administrative error. She provided evidence confirming that the Complainant met with his solicitor on the 28th April 2017. However, due to administrative error on their part draft of the notification was not forwarded to the Complainant until 13th June 2017. The Complainant approved the draft in a timely manner and the notification letter was issued to the Respondent on 28th June 2017.

In respect of the content of the letter the Complainant’s position is that the letter sets out the details of the incident of discrimination. The letter does not refer specifically to the Equal Status Acts but it meets the requirement of the Acts in stating that the Complainant’s solicitor is “…instructed to issue the appropriate proceedings/ application against you.”

The Respondent raised two separate issues in relation to the jurisdiction of the Director General of the WRC to investigate the instant complaint. Firstly, the Respondent submitted that the Adjudication Officer does not have jurisdiction to investigate the present complaint on the basis that the Complainant has failed to comply with the notification provisions of Section 21(2)(a) of the Equal Status Acts in relation to the time limits. This provision requires that a person seeking redress under the Act must notify the service provider in question of the nature of the alleged discrimination within two months after the prohibited conduct is alleged to have occurred or where more than one incident of prohibited conduct is alleged to have occurred, within two months of the last such occurrence. Section 21(3)(a) of the Act stipulates that the Director General of the WRC may, for reasonable cause extend the time limit to period not exceeding four months. The Respondent submits that the Compliant has failed to apply to the Director General of the WRC for the extension of the time limits provided for in the Act and has not demonstrated reasonable cause for extending the time limit in accordance with the provisions of Section 21(3)(a)(i) of the Act.

Secondly, the Respondent submits that the letter which the Complainant’s solicitor sent to the Respondent on 28th June, 2017 does not comply with the requirements of Section 21(2)(a)(ii) of the Act on the basis that it fails to include any indication of the Complainant’s intention to seek redress under the Acts in relation to the matter in the event that he was not satisfied with the Respondent’s response to the allegation.

In the instant case the incident of discrimination is alleged to have occurred on 7th April, 2017. Therefore, the deadline for notifying the Respondent was 6th June, 2017. Notification to the Respondent of the alleged discriminatory act was made on 28th June, 2017 by way of the solicitor’s letter. This would set the notification outside the two-month statutory time limit required under Section 21(2)(a) of the Acts but within the four-month period for which time could be extended under Section 21(3)(a) of the Acts. At the hearing the Complainants solicitor agreed that the notification to the Respondent was sent outside the prescribed time frame and made an application for an extension of time to notify the Respondent. The solicitor stated that at the time of the alleged act of discrimination the Complainant informed the manager of the Respondent that his solicitor would be in contact. Therefore, it is submitted that the Respondent was on notice. The Complainant contacted his solicitor soon after the alleged act of discrimination took place and met with her on the 28th April, 2017 where he instructed the firm to correspond with the Respondent. The Complainant’s solicitor submits that due to reasonable cause, namely an administrative error on their part the draft letter was not forwarded to the Complainant until 13th June, 2017. He responded in a timely manner approving the draft and the notification was issued to the Respondent on 28th June, 2017.

I am conscious of the requirements imposed by Section 21(3)(a) of the Act, which stipulates that where reasonable cause can be shown the Director may extend the period in which the Complainant may give notice to the Respondent of the alleged prohibited conduct as required by the Act. The High Court on extending time where there is "good reason to do so" in the case of O'Donnell v Dun Laoghaire Corporation [1991] ILRM 301 where Costello J stated as follows: "The phrase "good reason" is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the Court should not extend the time merely because an aggrieved plaintiff believed he/she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay".

In Cementation Skanska v A Worker DWT0425 the Labour Court held that “…in considering if   reasonable cause exists, it is for the claimant to show that there are reasons, which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present his or her claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence, there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.In the context in which the expression reasonable appears in the statute it imports an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time.The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.”

While that case involved an extension of time under the Employment Equality Act, the principles are the same.

In Aldi Stores (Ireland) Limited v Murphy EET043 the Labour Court stated that “A Solicitor is an Officer of the Court who is held out under the authority of an Act of the Oireachtas as authorised to conduct legal business on behalf of clients. In the Court's view, having placed her affairs in the hands of an established and respected firm of solicitors, the applicant could not be fixed with responsibility for what subsequently occurred.

Having so decided the Court must go on to consider if there are countervailing factors which would make it unjust to enlarge the time for bringing the claim. The delay in this case was short. As already found the applicant cannot be held culpable for the delay. There is no suggestion that the respondent has suffered prejudice by the delay.”

Having considered the circumstances of the case before me, I grant an extension of time on the notification process to 4 months pursuant to S. 21(3)(a). To hold otherwise would deprive the Complainant unfairly of access to justice.

In relation to the Respondent’s contention that the letter dated 28th June, 2017 does not comply with the requirements provided for in Section 21(2)(a)(ii) of the Acts the Complainant’s disputes that and submits that it clearly sets out the details of the discrimination “…the only reason this pump was turned off when my client went to refuel his vehicle was because he is a member of the travelling community and you, your servant, agent or employee clearly discriminated against him.” The letter further states that “… I now call upon you to furnish me with proposals to compensate my client for the upset, distress and embarrassment caused to him, failing which, I am instructed to issue the appropriate proceedings/application against you.”

In examining the letter in question it is clear that the letter sets out the details of the incident of 7th April 2017 and clearly refers to discrimination on the grounds of the Complainant’s membership of the Traveller Community. It further clearly states that the Complainant is requesting proposals to compensate the Complainant in relation to the matter. The letter does not make any reference to the Equal Status Acts or to seeking redress under the Equal Status Acts. However, it very clearly signals the Complainant’s intention to seek redress in stating that the Complainant’s representative is “…instructed to issue the appropriate proceedings/application against you” failing the Respondent to revert with proposals to compensate the Complainant.

The Complainant also submitted that the Respondent was clearly aware of the nature of the incident of discrimination after the Complainant informed the employees of the Respondent that they will hear from his solicitor.

I note that the Respondent was represented. The Respondent’s representative replied to the notification of the alleged prohibited conduct by email dated 11th September 2017. In this response, the Respondent’s representative denied the occurrence of the alleged incident of discrimination. In light of this exchange of correspondence, I am satisfied that no prejudice arose in relation to the Respondent’s ability to defend the claim. The Respondent was not prejudiced in terms of its ability to defend these proceedings as a result of the lack of reference to the Equal Status Acts being included in this correspondence.

Having regard to the foregoing, I find that the Complainant has complied with the relevant notification requirements as provided for in Section 21(2)(a) of the Acts. Accordingly, I find that I have jurisdiction to investigate the substantive complaint of discrimination in the present case.

The Complainant submits that he is a well-known member of the Traveller Community as defined under Section 3 of the Equal Status Act, 2000. He submits that, whilst driving his brother’s car which had a UK registration number, he attended at TOPAZ Energy Station in Shannon, Co. Clare for the purpose of obtaining fuel. He claims that when he went to fill the tank with petrol, suddenly and without notice, the pump was turned off. He submits that other customers were refuelling their vehicles without any difficulty. The Complainant went into the shop premises to ask as to why the pump he was using had been suddenly turned off. He claims that he was advised that customers had to pay before they fuelled their car. While the Complainant was having this conversation, he noted that another customer who had refuelled their car in advance came in and paid for their fuel. The Complainant claims that he was left with no option but to pay for his fuel in advance. It was very clear to him that this was not the normal policy of the premises. The Complainant claims that he had been singled out for this treatment on the basis that he was a member of the Traveller Community, he was deeply embarrassed and upset by the incident. The Complainant submits that he has attended many other petrol stations, including Topaz outlets, and has never been treated in such a fashion. The Complainant submits that as he is readily identifiable as a member of the Traveller Community, in addition to the fact that he was driving a UK registered car on the day in question, this led to the Respondent taking this position with him. The Complainant attended with his family solicitor shortly thereafter and instructed them to make a formal complaint in the matter. An initial letter of claim was sent on the 28th June 2017 setting out what had occurred and seeking appropriate compensation. A response was not received until 11th September 2017 by way of email where the Respondent stated that “the pumps were stopped because there were two transactions outstanding on the till and the system doesn’t allow for a third pumping until one of the outstanding transactions has been cleared. We are informed that this was explained to your client at the time, but we understand that he was not interested in hearing the explanation provided. Our client has no knowledge of who was using the pump when it stopped so the fact that your client was a member of the Travelling Community has absolutely no bearing on what has occurred here and consequently the suggested discrimination has no basis.”

Thereafter, a Complaint Form was lodged with the WRC on 4th October 2017.

On 8th February 2018, a Data Access request was sent to the Respondent seeking a copy of all CCTV footage or any other documentation which may be held in respect of the Complainant. No response was received to date. The Complainant’s solicitor was advised by the Respondent’s agents firstly that they did not have any CCTV footage of the pump in question and afterward that they did not retain it. It is the Complainant’s position that CCTV footage of the pump area and the inner shop area would prove the Complainant’s case and would prove that:

·         The pump was turned off without notice

·         Other parties were refuelling without any difficulty

·         The Complainant went into the shop to query the issue

·         Other customers followed the Complainant in and were paying for their fuel without difficulty after they had refuelled

·         No other customers were waiting to pay for their fuel

It is clear that the Complainant was treated adversely on the grounds that he was a member of the Traveller Community in circumstances where all other customers had no difficulty in refuelling and thereafter paying, the Complainant was singled out for this adverse treatment whereby he was prevented from refuelling his car without notice and thereafter required to pay in advance. This caused him great upset and embarrassment. At no point was the Complainant provided with a copy of the policy of Topaz they are relying upon. Nowhere have they any sign within the shop indicating this policy. The Respondent is not in a position to provide a copy of CCTV footage that has been requested nor have acknowledged said request. The Complainant submits that he has established a prima facie case of discrimination and has satisfied three criteria in relation to this complaint:

1.       He is covered by a discriminatory ground (in this case the Traveller Community ground)

2.       That the specific treatment alleged by the Complainant did occur

3.       That there was evidence that the treatment received by the Complainant was less favourable than the treatment someone else who was not a member of the discriminatory ground would have received in similar circumstances.

The Complainant confirmed that although the station in question is not his usual choice he has previously, on one or two occasions shopped at the petrol station in question, albeit in the shop, not refuelling. He confirmed that he has not had any difficulties in accessing the Respondent’s services on these occasions. He also stated that, following the incident of alleged discrimination (some two months ago) he refuelled his car at the Respondent’s station and had no difficulty with accessing the service.

The Respondent submits that they have undertaken a thorough review of the circumstances alleged to have given rise to the complaint and based upon their findings they concluded that the allegation that the Complainant was discriminated against is denied completely. The Respondent submits that at no stage the Complainant was asked to pay in advance for the petrol. The pump in question was stopped because there were two transactions outstanding on the till and the system does not allow for a third pumping until one of the outstanding transaction had been cleared. The Respondent submits that this was explained to the Complainant at the time but he was not interested in hearing the explanation provided. The Respondent submits that they had no knowledge of who was using the pump when it stopped so the fact that the Complainant is a member of the Traveller Community has absolutely no bearing on what has occurred and consequently the suggested discrimination has no basis.

The Respondent objects that the Complainant is “well known” and “readily identifiable” member of the Traveller Community. The Respondent contends that in order to commit an act of discrimination they would have to know that the Complainant is a member of the Traveller Community at the time. They further argued that it was impossible for the staff members on duty, one of whom is Filipino and the other Romanian, to identify the Complainant as a member of the Traveller Community. In regards to the Complainant’s assertion that he could be identified because of the UK registration of the car he drove the Respondent submits that it is not unusual to see UK registered cars at the station in question, taking into consideration its close proximity to the international airport.

In respect of the request for the CCTV footage of the event, the Respondent submits that the request was received in February 2018, some 10 months post the event in question. The Respondent submits that it is a standard practice to re-run the tapes after period of time and in any event due to the Data Protection regulations recordings are not kept for an extended period of time.

The Respondent presented at the hearing printout of records of transactions conducted at the pump in question and a short video showing the operation of the system in the event of two outstanding transactions not being cleared supporting their contention that it would not be possible for a staff member to authorise a third transaction. They also presented email correspondence from the named company who write/own the software used at the station. This correspondence confirms that it is not possible to release a pump when there are outstanding fuel sales and clarified that all of Topaz sites are set to allow only two outstanding transactions.

Evidence of Ms A, Station Manager

Ms A provided a written statement dated 27th July 2017 and gave direct evidence at the hearing. She submits that she was called by an employee, Ms T to come out of the office as a customer wanted to talk to her. Once she came out, at till number 1 the Complainant told her that he was discriminated against by Ms T because she asked him to pay before filling fuel when all other customers were paying after refuelling. Ms A submits that it was explained to the Complainant at the time that there were two outstanding transactions and Ms T could not authorise another one. She claims that Ms T told the Complainant that she needs to wait until she would charge the customer who had used the pump before him. After she had charged the transaction she authorised the pump for the Complainant and his brother refuelled the car. Ms A submits that she then showed the Complainant the screen of the till and explained to him again that now, when his transaction is added the pump number on the screen is beeping and changing colour to yellow and she would not be able to authorise the pump again until one of the two outstanding transactions has been cleared. The Complainant paid for the fuel and said “you are going to get a solicitor letter”. Ms A submits that during the incident the Complainant shouted at Ms T “You stupid, keep your mouth closed, I want to speak to your manager”. In her direct evidence Ms A stated that the Complainant was aggressive, he called Ms T a “stupid bitch”. Ms A said that Ms T was crying and she had to take her to the office to calm her down. Ms A noted that the incident happened at lunch time when the station is very busy. It often happens that customers move their cars to let other customers refuel and then come to the shop to pay. This is sometime causing situations like this one when staff cannot authorise a pump for a customer who is waiting at the pump.

Evidence of Ms T, Sales Assistant

Ms T provided a written statement dated 28th July 2017 and gave direct evidence at the hearing. She submitted that she was working at till 1 when pump 1 began to beep on till. She was unable to authorise the pump as there were already two transaction on the till. She couldn’t see the person at the pump and she couldn’t let them know that the pump couldn’t be turned on. She submits that the Complainant entered the shop and began shouting at her to turn on the pump. The shop was very busy as it was near lunchtime and there was a queue at her till. She tried to explain the matter to the Complainant. He then called her stupid and said that she was allowing other customers to fill up but she wouldn’t let him fill up unless he paid up front. She said that she did not ask for money up front from the Complainant. She tried to explain it to him again but the Complainant told her to shut her stupid mouth and get her manager. In the meantime, a transaction was cleared and she authorised the pump for the Complainant. She submits that another person who was in the car with the Complainant refuelled the car. She called her manager and the manager spoke with the Complainant. Ms T in her direct evidence confirmed that she was not aware that the Complainant was a member of the Traveller Community. She said that she was very upset as the Complainant was aggressive and called her “stupid bitch”.

The matter referred for investigation turns upon whether or not the Complainant was discriminated against contrary to Section 3(1)(a) and 3(2)(i) of the Equal Status Acts and in terms of Section 5(1) of that Act. Section 3(1)(a) provides, inter alia, 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 this case the Traveller community ground). Section 3(2)(i) provides that: “As between any two persons, the discriminatory grounds ... are ... (i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”)”. Section 5(1) of the Act 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". Section 38A of the Acts sets out the burden of proof which applies to a claim of discrimination under the Equal Status 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 of discrimination 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, written and oral, made to me by the parties to the case. The issue for consideration in the instant case is whether the Complainant was prevented from refuelling his car on the date in question unless paid upfront on the grounds of his membership of the Traveller Community contrary to the Equal Status Acts. First, I must consider whether the Complainant has succeeded in establishing a prima facie case of discrimination. In order to do so, the Complainant must satisfy three criteria in relation to his complaints. He must (1) establish he is covered by a discriminatory ground (in this case the Traveller Community ground); (2) it must be established that the specific treatment alleged by the Complainant actually occurred and (3) there must be evidence that the treatment received by the Complainant was less favourable than the treatment someone who was not a member of the discriminatory ground would have received in similar circumstances. There was no dispute at the hearing that the Complainant is a member of the Traveller Community thus satisfying the first of the criteria outlined above. The claim of discriminatory treatment in the present case is based on the events that took place during the course of the Complainants' visit to the Respondent’s station on 7th April 2017. The precise reason and facts surrounding the incident of the pump being turned off is very much in dispute between the parties. The Complainant, on the one hand, denies that the reasons for the staff member not being able to authorise the refuelling were explained to him. He denies that he engaged in disruptive or threatening behaviour during his interaction with the Respondent’s staff on this date and claims that the reason he was requested to pay upfront for refuelling was directly attributable to his membership of the Traveller Community.  The Respondent, on the other hand denies that the Complainant was requested to pay for the petrol upfront. They argue that at the time, it was explained to the Complainant that the system in place would not permit a third refuelling if there had been two outstanding transactions.

Therefore, the question that I must address in the circumstances of the present case is whether or not the turning off of the pump was attributable to the Complainant’s membership of the Traveller Community or was directly related to the setup of the Respondent’s till/pumps technical system.

I note the submissions of the parties differ greatly and cannot be reconciled. Accordingly, I will be making my findings on the balance of probabilities.

In coming to my conclusion, I have taken into consideration that the Complainant had been afforded service without any difficulty in the Respondent’s station on some occasions prior and after the incident that occurred on 7th April 2017. I have also viewed the video and the records presented by the Respondent and I find the Respondent’s evidence compelling. I have also found the evidence of the Respondent’s Manager and Sales Assistant (who were both present in the store on 7th April 2017) to be credible. I accept their evidence in relation to the operation of their till / pumps system and the written evidence provided by their IT service provider regarding shut down of pump on a third transaction until one is cleared. Furthermore, I accept their evidence that neither of them were aware of the Complainant’s Traveller identity. I also note that the Complainant did in fact refuel his car. Therefore, there was no actual refusal of service.

On the balance of probabilities, I am satisfied that the reason for turning off the pump in question was not linked to the Complainant’s membership of the Traveller Community.

Having regard to the totality of the evidence adduced, I am satisfied that the action taken by the Respondent on this date was in no way attributable to the Complainant’s membership of the Traveller Community. Having regard to the foregoing, I find that the Complainant has failed to establish a prima facie case of discrimination on the grounds of his membership of the Traveller Community.

In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision. I find that the Complainant has failed to establish a prima facie case of discrimination on the ground of membership of Traveller Community in terms of sections 3(1), 3(2)(i) and 5(1) of the Equal Status Acts.  Accordingly, the complaint fails.

Discrimination, member of the Traveller community, prima facie case not established