ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | A Complainant and his son | A Bus Company |
Representatives | Hugh Hannon Solicitor |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00015328-001 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 25 of the Equal Status Act, 2000 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant is alleging that he was discriminated against on the grounds of disability by the respondent company in relation to access to a service. A decision issued by me on 5 June 2018 wherein I found that the instant complaint was lodged outside the time limit prescribed by the Act and I held that I had no jurisdiction in the matter. This decision was appealed to the Circuit Court and the Circuit Judge held that reasonable cause had been shown and remitted the matter back to me for a decision on the substantive complaint on the basis of the evidence heard on 6 March 2018. |
Summary of Complainant’s Case:
1.1The complainant submits that he is entitled to free travel on the respondent services on the grounds of disability and is the holder of a “FT + C” Public Services Card. This card entitles the complainant to free travel and also provides for free travel for a person over 16 years of age accompanying the complainant. The complainant submits that on 27 April 2017 at 18.15, he together with his 17 year old son A boarded the No. 126 bus at Naas, Co. Kildare intending to travel to Dublin. The complainant asserts that as normal he swiped his travel card on the reader on the bus and indicated to the driver that his son was accompanying him as a companion on foot of his client pass. The complainant submits that the driver disputed the complainant’s entitlement for free travel for A and insisted that the complainant and his son would not be allowed travel on the bus if they were not willing to pay a fare for A’s travel. The complainant submits that that the driver stated that a companion must be over 18 to travel for free and was adamant in this regard. 1.2 The complainant submits that he was fully aware of the terms of the free travel arrangements and tried unsuccessfully to correct the driver’s erroneous understanding of the scheme. The complainant states that the driver would not listen to him and insisted that the complainant and his son would not be allowed travel without payment of a fare in respect of A. The complainant states that the incident occurred within earshot of other passengers and prompted other passengers to request the complainant to pay the fare for his son so as the bus could continue on its journey. The complainant’s son A gave testimony stating that the driver said he was not travelling on the bus unless he was 18 years of age. A stated that he had his learner driver’s permit with him on the day in question which had his date of birth on same. 1.3 The complainant submits that this incident was hugely embarrassing and distressing for him. He states that he was denied his legitimate travel and companionship entitlement and consequently alleges discrimination in this regard under the Acts. The complainant asserts that it was done in a manner which implied to other passengers that the complainant was attempting to avoid payment of a fare through an abuse of the free travel scheme. Ultimately, the complainant states that he and his son were obliged to disembark the bus and make alternative travel arrangements. 1.4 The complainant states that he reported the matter to the respondent and that the company had purported to carry out an investigation but that the company has declined to acknowledge that its driver had done anything wrong. The complainant asserts that a half-hearted apology “for any inconvenience caused” does nothing to address the breach of his rights. |
Summary of Respondent’s Case:
1.1 In relation to the substantive issue, the respondent denies the allegation of discrimination. The respondent states that the companion accompanying the pass holder must be 16 years or older. The driver gave testimony on the day of hearing and submitted that he has 12 years experience in driving with Dublin Bus and Bus Eireann. He states that he is well aware of the policies in relation to holders of a “FT + C” Public Services Card. The driver states that he said to the complainant that he would have to pay a child fare for his companion. He submits that he stated to the complainant that the person accompanying him must be 16 years of age. The driver states that he is within his right to make a judgement as to whether a person is of the required age and request ID on that basis if in doubt. The driver also stated that A did not offer to show the driver his identification i.e. his driver’s permit at the material time contrary to his testimony at hearing. 1.2 The driver submits that the complainant got highly animated and abusive towards him. The driver stated that he also shouted racial abuse at another passenger on the bus who was trying to assist saying “you go back to your own country”. The passenger who alleges that he was intimidated and subjected to verbal abuse gave evidence at the hearing and stated that the complainant became very abusive towards the driver and he gave his name and address to the bus driver at the next stop so as to act as a witness in the event of any further actions on behalf of the complainant. This witness also gave a written statement in this regard which was submitted at the hearing. 1.3 The respondent maintains that its drivers are entitled to look for identification in situations where they are in doubt over the companion’s age. But ultimately the driver states that the complainant was requested to disembark the bus on the basis of his intimidating and threatening behaviour. The respondent refutes the allegation of discrimination on grounds of disability. |
Findings and Conclusions:
The matter for decision is whether the respondent discriminated against the complainant on grounds of his disability. I 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/she can rely in asserting that prohibited conduct has occurred in relation to him/her. 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. Section 3(1)(a) of the Acts provides, inter alia, that discrimination shall be taken to occur where: " 3(1) For the purposes of this Act, discrimination shall be taken to occur— (a) 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 subsection (2) (in this Act referred to as the ‘‘discriminatory grounds)’’ Section 3(2) provides that as between any two persons, the discriminatory grounds are, inter alia: (g) that one is a person with a disability and the other either is not or is a person with a different disability (the "disability ground")". Section 2(1) defines ‘‘disability’’ to mean: (a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurement of a part of a person’s body, (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or (e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour;
It was accepted by both parties that the complainant is covered by the disability ground. The complainant states that the incident occurred on 27 April 2017 but this was disputed by the respondent who maintained that it happened on 20 April 2017. Having adduced the evidence, I am satisfied that the incident occurred on 20 April 2017. Having carefully considered all the evidence in the instant complaint, I prefer the evidence of the witnesses on behalf of the respondent as I found their testimony more cogent and convincing. The bus driver in question gave evidence that he had 12 years experience in driving with Dublin Bus and Bus Eireann. The driver stated that he informed the complainant that he was required to pay a child fare for his companion. The driver stated that he thought the companion looked under 16 years of age. He advised that he was very familiar with the rules on the FT & C Public Service Card given his considerable experience as a bus driver. While the complainant has alleged that the driver was adamant that his companion must be over 18 to travel for free, I do not find this testimony credible based on the evidence heard. The driver stated that he informed the complainant that the person accompanying him must be 16 years of age. The driver outlined that he is entitled to make a judgement as to whether a person is the required age and request ID on that basis if in doubt. On this issue, I note that the complainant at the hearing stated that his son had his driver’s permit on him on the day in question. In my view, if the complainant knew that his son had his driver’s permit with him, it is surprising that he did not ask him to produce it to prove he was over 16 years of age and this would have de-escalated the dispute. It would appear that the complainant got quite animated and aggressive on the issue at this point and I note that an independent witness who was a passenger on the bus on the day in question came forward to corroborate the driver’s evidence at the hearing. He stated that the complainant shouted racial abuse at him and used threatening and abusive behaviour towards the driver. Having carefully examined all the evidence, I am satisfied that the driver is entitled to seek identification in situations where he is in doubt over the companion’s age. The respondent gave testimony at the hearing in relation to the misuse and abuse in some instances of the Public Services Card and reiterated that in the instant complaint, the complainant’s son did not provide identification as to his date of birth. I accept the evidence of the driver that in the interests of safety, given the aggressive nature of the complainant that he was requested to disembark the bus on the basis of his intimidating and threatening behaviour. Accordingly, I find that the complainant has not demonstrated that he was treated less favourably on grounds of disability in relation to being refused service on the bus on the day in question. I find that he has not established a prima facie case of discriminatory treatment on grounds of disability and therefore his complaint fails. |
Decision:
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
I find that the respondent company did not discriminate against the complainant on grounds of disability. Accordingly, I find in favour of the respondent in this case. |
Dated: 24/04/2019
Workplace Relations Commission Adjudication Officer:
Key Words:
Equal Status Acts, discrimination, disability |