ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006593
Parties:
| Complainant | Respondent |
Parties | Dariusz Bula | The Commissioner of An Garda Síochána, Nóirin O'Sullivan |
Representatives | Michelle Moran Richard Grogan & Associates | Maria Browne - Chief State Solicitor Chief State Solicitor's Office |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00008952-001 | 20/12/2016 |
Date of Adjudication Hearing: 29/03/2019
Workplace Relations Commission Adjudication Officer: Michael Ramsey
Procedure:
In accordance with Section 25 of the Equal Status Act, 2000following 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 seeking adjudication by the Workplace Relations Commission under Section 21 of the Equal Status Act, 2000 and has submitted that he was discriminated against by the Respondent due to his race and/or other grounds (CA-00008952-001) |
Summary of Complainant’s Case:
On or about the 9th March 2016 at approximately 11:30am the complainant while cycling, on the public highway, was hit by a car. The Complainant sustained injuries including a broken bone in his hand and severe bruising. A fire brigade ambulance attended the scene and treated the Complainant. The Complainant was not brought to a hospital was advised should there be any deterioration in his condition he should attend. The Complainant informed his work place he had been in an accident and was then brought home by a work colleague. The driver of the vehicle which allegedly hit the Complainant remained at the scene. Garda Síochána had not attended the scene and upon returning home the Complainant phoned the appropriate Garda Station informing them he had been involved in an accident but was told they could not send anybody and he should wait. The Complainant then attended hospital as he was in severe pain. The Complainant attended the Garda Station on the 10th March 2019 at approximately 15:20 to report the accident. Upon leaving the Garda station the Complainant was informed by a member of An Garda Síochána (hereinafter referred to as the member) that he had obtained the drivers details and would be in contact with the Complainant and/or his solicitor following inquiries with the relevant insurance company. The Complainant was then contacted by the relevant insurance company. The Complainant then engaged a solicitor and was informed that the identity of the driver was unknown and the Complainant then endeavoured to discover the name of the driver in the aforementioned accident. Ultimately, the Complainant received a letter from the driver’s insurance company and he passed this onto his Solicitor. The Complainant attended the Garda Station on the 2nd September 2016 and was informed the member dealing with this matter was not available. The Complainant attended on the 5th September 2016 and met with the appropriate member between 16:30 and 17:00. The Complainant explained he had the name of the driver and wished to give the member these details. The member explained a letter had been sent to the Complainant indicating that they did not know the identity of the driver and accepted that this was an error. Apparently, the driver had attended the garda station three days after the accident and provided appropriate details. The Complainant explained he was anxious for charges to be pressed for dangerous driving as he believed he had nearly been killed. The Complainant then gave details of the incident and then alleges the member said that “maybe you will talk as the (the driver) is a sound guy and lives in the area”. The Complainant submits he was discriminated against on the basis of his race (or otherwise) and in that regard cites that the aforementioned accident was not recorded, the member of An Garda Síochána dealing with this matter brought him out of the Garda Station for a conversation, the member of An Garda Síochána made the remarks about the driver and the Complainant’s solicitor did not receive any information or report in relation to the accident. This Complaint was received by the Workplace Relations Commission on the 20th December 2016. |
Summary of Respondent’s Case:
The Respondent accepts the timeline in relation to the aforementioned factual matters by the Complainant. The Respondent submitted that upon the Complainant contacting the Garda Station to report the accident, this call was logged with Priority 2P (Serious Traffic Accident). The incident report also indicates that a garda car was dispatched to the Complainant’s home on the 10th March 2016 at approximately 10:00 but there was no one in residence. The Respondent submitted that the Complainant attended the garda station on the 10th March 2016 and the member has recorded in his notebook that the Complainant was making “no complaint” and this was recorded later on the PULSE system. The driver of the vehicle was contacted by the member and was asked to produce his driver’s licence and insurance certificate which he duly did. Following on from this investigation, the driver’s insurance company contacted the Complainant in relation to the incident following the investigation by the Garda. The Complainant’s solicitors engaged in a series of correspondence trying to obtain an abstract report but at the outset the location of the accident was not described and latterly described incorrectly which resulted in a letter being sent from the Gardaí dated the 1st June 2016 which incorrectly stated that the driver had not been identified. Upon the Complainant attending the garda station on the 5th September 2016 the member realised that matter had yet to be uploaded to the Pulse system and apologised for same. The member explained he had the driver’s information and this has already been conveyed to the Complainant on the 10th March 2016. The member spoke to the Complainant at the hatch on the garda station and later at the lobby area of the station as it was very busy at the counter at that time. The Complainant confirmed he wanted charges brought against the driver and this was attended to forthwith. Ultimately, the DPP decided to withdraw the case that had been set down for hearing on the 8th January 2018. In relation to the above perceived treatment, a Complaint was received from the Complainant’s solicitor and it was forwarded on to Garda Síochána Ombudsman Commission (GSOC) who investigated the matter pursuant to its statutory remit. The member received a sanction of advice in relation to his not recording the aforementioned incident on the PULSE system in a timely manner. The Respondent submitted that the Complainant was not discriminated against on the basis of race (or otherwise) and that he has not been able to identify any evidence to the effect that he was treated less favourably than anyone else. The Respondent submitted, in a preliminary objection, that the Workplace Relations Commission does not have jurisdiction to deal with the complaint herein as it is outside the scope of the concept of “service” within the meaning of the Equal Status Act. In that regard, the complaint herein centres on the duties of a member of the State body in its controlling role in performing its duties in the investigation and prosecution of an offence. It is submitted that a distinction must be drawn between “public functions” and “services”. In that respect Sections 2(1), Section 5 and Section 14 of the Equal Status Act, 2000 are referenced along with Section 7 (5) (a) of the Garda Síochána Act, 2005. The Respondent cited the case of Donovan -v- Garda Donnellan (DEC-S2001-011) wherein the meaning of “service” was considered in this context. At issue was whether the investigation and prosecution of crime by the Garda is a service that is available to the public within the meaning of the Section 2(1) of the Equal Status Acts. The Respondent also relied upon a number of other authorities including Woodhead and Sparkes -v- Swinford Garda Station (DEC -S2008-064), A Complaint -v- An Garda Síochána (DEC -S2005-037) and A Parent -v- An Garda Síochána (DEC-S2018-016). The Respondent submitted that there was nothing discriminatory about the manner in which the member dealt with the matters arising out of the aforementioned road traffic accident. Although the member was sanctioned due to the delay in logging the details on the PULSE system there was nothing arising out of that to suggest the member had discriminated against the Complainant. On both of the occasions that the member dealt with the Complainant it was for the clear purpose of carrying out his statutory functions under section 7 of the Act of 2005, being part of his controlling role of investigating and prosecuting offences and the Respondent relies on the exemptions as provided for in the section 14 of the Equal Status Acts. Following the preliminary objection, the Respondent further submitted that in the alternative if jurisdiction is accepted, then this case should be dismissed as the Complainant cannot succeed as he has not shown that someone else was or would have been treated better because of his race. In such a case, Section 38A of the Equality Status Act 2000-2015 (as amended to Section 85A of the Principal Act) deals with the burden of proof in discrimination complaints and this provision puts the onus on a complainant to provide evidence from which it may be presumed that prohibited conduct has occurred so as to establish a prima facie case. A Complainant must show, objectively, that he has established a prima facie case of discrimination. It is submitted that the facts established by the Complainant do not give rise to any conclusion that prohibited conduct occurred. In the circumstances of this case, it is submitted that the Complainant has failed to show to the requisite standard that this treatment was less favourable than the treatment that was or would have been afforded to another person in similar circumstances and accordingly his case does not reach the standard required under the Acts and must therefore fail. |
Findings and Conclusions:
In the circumstances of this matter, I have carefully listened to the evidenced tendered in in the course of this hearing by both parties.
In the aforementioned case of Donovan -v- Garda Donnellan (DEC-S”001-011), the Equality Officer stated that “..it is clear and plain from the wording of the Section 2 (1) that the investigation and prosecution of crime are not services which are available to the public, or a section of it, within the meaning of service defined therein. It is my belief that these are state functions which are carried out by Gardai (and the DPP) on behalf of and for the benefit of the public and society as a whole. They are clearly not services which the public have access to in the way that other services clearly are, such as access to facilities for banking, leisure or travel ….I am satisfied that the intention of the Oireachtas was not to include the investigation and prosecution of crimes as services within the scope of the Act when it enacted the legislation. It is my view that the drafting of the legislation succeeded in excluding from the scope of the act the controlling duties of the Garda Siochana, including those of the investigation and prosecution of crime, while at the same time legislating that the service aspects of policing come within its scope .. I decide that the complaint is outside the scope of the Act because the investigation and prosecution of crime are not services within the meaning of Section 2(1) of the Act” Section 7 of the Garda Síochána Act, 2005 provides: 7.—(1) The function of the Garda Síochána is to provide policing and security services for the State with the objective of— (a) preserving peace and public order, (b) protecting life and property, (c) vindicating the human rights of each individual, (d) protecting the security of the State, (e) preventing crime, (f) bringing criminals to justice, including by detecting and investigating crime, and (g) regulating and controlling road traffic and improving road safety. (2) For the purpose of achieving the objective referred to in subsection (1), the Garda Síochána shall co-operate, as appropriate, withother Departments of State, agencies and bodies having, by law, responsibility for any matter relating to any aspect of that objective. (3) In addition to its function under subsection (1), the Garda Síochána and its members have such functions as are conferred on them by law including those relating to immigration. (4) This section does not affect any powers, immunities, privileges or duties that members of the Garda Síochána have by virtue of any other enactment or at common law. (5) This section is not to be taken to confer on any person a right in law that he or she would not otherwise have to— (a) require the Garda Síochána to perform a function or provide a service referred to in this section or to desist from any action, or (b) seek damages for a member of the Garda Síochána’s performance of, or failure to perform, such function or for his or her provision of, or failure to provide, such service It is submitted that on both occasions when the member was dealing with the Complaint, it was for the clear purpose of carrying out his statutory functions under section 7 of the Act of 2005, being part of his controlling role of investigating and prosecuting offence and in the circumstances of this case this submission is supported by the fact that a case was prepared for prosecution and set down for hearing although ultimately withdrawn. Accordingly, in the circumstances of this case, I do accept the preliminary point that the investigation and prosecution of crime by An Garda Síochána are not services available to the public within the meaning defined in section 2 (1) of the Equal Status Acts. Members of the public cannot claim discriminatory treatment under the Equal Status Acts on the part of members of An Garda Síochána in relation to specific actions in the exercise of their statutory functions under Section 7(1) of the Garda Síochána Act, 2005 and as such they do not come within the jurisdiction of the Workplace Relations Commission pursuant to Sections 3 and 5 of the Equal Status Acts. It is accepted that the Garda Síochána Ombudsman Commission (GSOC) is the appropriate mechanism for complaints to be made regarding members in relation to the exercise of their functions under Section 7 of the Act of 2005 (A Complaint -v- An Garda Síochána (DEC -S2005-037) Although, I have accepted the preliminary objection as raised by the Respondent in the circumstances of this case, I also wish to address the substantive matter. Section 85A of the EEA 1998-2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by, or on behalf of, a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled and it requires the complainant to prove the primary facts upon which they rely in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. The appropriate test for determining is that if the complainant does not discharge the initial probative burden required the case cannot succeed. It is now well accepted that the first requirement for a successful claim lies in establishing a prima facie case. In that regard, I am conscious of the Labour Court’s comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that “… the court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent ..”. In establishing the facts to meet the burden of proof resting on a Complainant, the Labour Court commented in Cork City Council v McCarthy [EDA 0821] as follows: “The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a fact or a set of facts which are proved in evidence. At the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.” Further, in Valpeters v Melbury Developments Limited [2010] ELR 64 it is stated as follows: “Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. In the circumstances of this case and in the course of the hearing of this matter, I further find that the Complainant has not discharged the initial probative burden in respect of the allegation of discrimination by reason of race and /or otherwise and conclude that no prima facie case exists.
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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 Complaint (CA-0008952-001) under Section 21 of the Equal Status Act, 2000 fails |
Dated: 19th November, 2019
Workplace Relations Commission Adjudication Officer: Michael Ramsey