Complainant

Respondent

Anonymised Parties

A Business Customer

A Bank

Act

Complaint Reference No.

Date of Receipt

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

CA-00021597-001

05/09/2018

The complainant asserts that the respondent bank discriminated against him on the race ground. He alleges that a named bank official stole money from his account. An amount of €66,000.82 was received to his account on the 23rd August 2017 and a further €96,708.54 was received on the 6th October 2017. The complainant asserts that €588,725.89 was remitted to him on the 31st October 2017, but this money has gone “missing”. The respondent says that the remitting bank (a German branch of a Chinese bank) cancelled this transaction and has sought to recover all the sums paid to the complainant. The respondent denies the allegation of discrimination. It states that the complainant’s allegations are scurrilous, defamatory, entirely without substance and entirely false and malicious.

The complainant said that he set up a business recruiting nurses to work in Ireland and was looking for finance to develop this business. He outlined that business partners were advancing him money and there was a transfer of €97,000 from the German branch of a Chinese bank. The respondent informed the complainant that the money did not “hit” his account. He was first told that the respondent would run a trace on the payment, but later told that it was for him to get a trace. He said that the €588,725.89 paid on the 31st October 2017 went missing and there is no trace.

The complainant said he believed that someone else in the respondent was operating the account. He opened the account in 2016 and it was a business account for a sole trader. The respondent flagged a payment of €66,000, which he had accessed. There was a balance of around €25,000 but when he checked the account, there was only a balance of €150. The respondent said it would investigate the source of the funds. The remaining monies were not available to him.

The complainant outlined that he lodged a complaint with the respondent in accordance with their procedure. He should have received a response within five days. He made complaints from the end of August 2017 to June 2018. He emailed the respondent on the 12th June 2018 and messaged their facebook customer service page on the 5th June 2018. He also emailed on the 27th June 2018 and there was other correspondence and tweets in May and June 2018. The complainant sent the ES1 form in August 2018 and the respondent replied on the 16th August 2018.

The complainant outlined that his complaint deserved to be heard. The letter of the 19th February 2018 was the respondent’s final say but there was no appeal available to him. He played no role in the investigation and was not invited to reply to their allegations. He had not referred the matter to the Financial Services Ombudsman because he hoped to speak to someone in the respondent. He did not challenge their decision to close the account as this was within their discretion.

The complainant said that he provided documentation to the respondent and while they were not initially satisfied, they later released the monies. He was then told they would close the account, but it could still be used until then. The respondent later wrote to say that his card was compromised. He had not reported that the card was lost, stolen or compromised. He did not ask for the card to be renewed. When the complainant tried to lodge money to the account, there were times that he could do so and times when he could not. He was told that he had to lodge money via one branch and could not lodge money in other branches or via online banking

The complainant commented that the account history documentation submitted by the respondent was ‘okay’ but there are entries not included. There should be a record of €25,000 withdrawn on the 30th August 2017 and then put back in. This shows that the entries are not accurate. He was later able to drawdown this money.

The complainant said that the respondent replied to company queries but did not reply to his queries, although they had done so later. It was his word against the respondent’s and there was no reason other than race why they did not respond to him. The letter of the 19th February 2018 is such a response and there were no details about the investigation. His complaint with the respondent has not been heard and he needed a platform to say what he needed to say. The complainant had no view whether this decision should be anonymised.

The respondent outlined that large payments were made to the complainant’s account from the German branch of a Chinese bank. This included €66,000 made on the 23rd August 2017 and €96,708 on the 6th October 2017. There were three other payments that did not hit the account. The Chinese bank tried to recall all five payments.

The respondent submitted that the complainant has made the serious allegation that a named manager took money from his account. The respondent did not accept that there were complaints in June 2018 as they were made via twitter or to incorrect email addresses. The latest complaints were those made in January 2018. The last date of discrimination was in January 2018, so the complaint was made out of time. The notification was also out of time.

The named manager dealt with the €66,000 payment made in August and the €20,000 taken out. The account was frozen with a balance of €25,000. The Chinese bank did not respond to the respondent’s query. The respondent informed the complainant that this account could not be used for a company he was not a director of. There was no restriction on the account receiving money and the payment of €96,000 was received to the account. Other payments were not received. The complainant was persistent in trying to contact the named manager, including via her personal facebook page. The respondent complaints team investigated and found that the remitting bank (the Chinese bank) pulled the monies.

The respondent submitted that there was no credible link to race. The complainant had not said why race was relevant. There was a second investigation and a further response to the ES1 form. The respondent submitted that its preference was for the decision to be anonymised.

Following notification on the 18th September 2017, the respondent closed the complainant’s business account on the 8th December 2017. The complainant does not challenge this decision. He asserts that the respondent has not addressed his complaints regarding the management of the account. He asserts that this is because of his race. He makes the serious allegation that a named bank official is “misusing” the account and has “stolen” funds.

The complainant sent the ES1 form on the 20th July 2018 and engaged in ongoing correspondence (or attempted correspondence) with the respondent. The complaint was referred to the Workplace Relations Commission on the 5th September 2018.

The respondent submits that the complaint is out of time as its investigation ended in January 2018. It submits that exceptional circumstances do not exist to dispense with the notification requirement. It says that the complaints in June 2018 went to incorrect email accounts or were made on social media. It submits that the complainant cannot use this correspondence to bring this action within time.

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.”

It is well-established that “[m]ere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” (see Melbury v Valpeters (EDA0917)).

While the respondent makes a strong case on the time limitation point, I note that the complainant makes very serious allegations regarding the actions and probity of a named bank official. Surprisingly, these allegations are ventilated by way of the Equal Status Act and not via the Financial Services Ombudsman or to An Garda Siochána. It is clear from the evidence that the respondent acted on concerns arising from large sums being deposited into the complainant’s business account. It froze the account and then closed the account. The remitting bank later sought to recover these monies.

While the complainant has been most persistent in raising his concerns and very pointed in his allegations against the named bank official, there is nothing at all to suggest that her actions, or the actions of the respondent, are anything to do with race. The complainant has not established a prima facie case of discrimination on the race ground.

The named bank official attended the adjudication and listened to the complainant’s evidence. She was remarkably restrained in the face of the complainant’s “scurrilous” allegations. The complainant failed to provide a shred of evidence to substantiate his allegations. I find as fact that the named bank official acted with the upmost probity and in line with her professional and regulatory obligations. I agree with the respondent’s characterisation of the complainant’s allegations as scurrilous, false and entirely without substance.

CA-00021597-001

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 contrary to the Equal Status Acts, 2000-2015. 

Equal Status Act / financial services