Complainant

Respondent

Parties

John Obara, Jr

Dublin Bus

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00026740-001

04/03/2019

The complainant was a student in DIT studying social care at the time. The complainant was doing a placement in Tallaght and got the Luas from Abbey Street with a leap card. It broke down at Smithfield and an announcement said that any Luas tickets can be used on any Dublin Bus so the complainant went back to Abbey street and got on a bus at Eden Quay. He explained to the respondent about the Luas breakdown. The driver said he had to pay to get on the bus or get off so the complainant payed the fee. Twenty five minutes later, at Crumlin, a white Irishman got on the bus and told the respondent about the Luas. The respondent let him on without paying. The complainant then asked the man if they were on the same Luas and he confirmed that they were. The two men went up to the respondent and asked him for proof of purchase for the complainant’s ticket. The respondent refused to give him proof of purchase and when the complainant asked him why he had asked him to pay and not the Irishman, the respondent didn’t respond. The complainant got off the bus.

The respondent started his route at Eden Quay at 8:25a.m. The complainant got on and told him about the Luas breakdown. The respondent explained that he hadn’t heard over his radio that there was a breakdown so he couldn’t let him on without paying. The respondent isn’t allowed to talk over the radio between terminuses so he couldn’t verify the complainant’s story. When the Irishman got on at Crumlin the respondent had received a call about the breakdown, so he let the Irishman on free of charge. The complainant approached him and asked him for a receipt. He informed him that he couldn’t give him a receipt because the information is wiped off the system after four minutes. The respondent accepts that the driver who was on the bus on the earlier shift had been informed about the Luas. The notification about should things is relayed to driver every fifteen minutes. The driver who was on the bus when the complainant got on didn’t get the notification until he was about ten minutes into his journey. The respondent explained that the complainant could get a refund at the Dublin bus headquarters on O’Connell street. The complainant got off the bus and the respondent continued on his route.

Section 3 —(1) For the purposes of this Act, discrimination shall be taken to occur where—

(a) on any of the grounds specified in subsection (2) (in this Act referred to as “the discriminatory grounds”) which exists at present or previously existed but no longer exists or may exist in the future, or which is imputed to the person concerned, a person is treated less favourably than another person is, has been or would be treated,

(b) (i) a person who is associated with another person is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated, and

(ii) similar treatment of that person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

or

(c) (i) a person is in a category of persons who share a common characteristic by reason of which discrimination may, by virtue of paragraph (a), occur in respect of those persons,

(ii) the person is obliged by the provider of a service (within the meaning of section 4 (6)) to comply with a condition (whether in the nature of a requirement, practice or otherwise) but is unable to do so,

(iii) substantially more people outside the category than within it are able to comply with the condition, and

(iv) the obligation to comply with the condition cannot be justified as being reasonable in all the circumstances of the case.

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),

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 he relies 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 her case cannot succeed.

In consideration of this smatter, I am conscious of the decisions of the Labour Court in Nevins, Murphy, Flood v Portroe Stevedores Limited [2005] 16 E.L.R. 282 confirmed the English position that discrimination can be conscious or sub-conscious and can therefore be difficult to prove.

“Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.”

The complainant in this matter is from Uganda. He was travelling out to Tallaght on the Luas. When it reached Smithfield, all occupants were informed that due to an incident on the line, they had to disembark and that their tickets were valid on Dublin bus. The complainant got onto the respondent’s bus at Eden Quay. The driver stated that he had just come on duty and had not been informed that there was a problem on the Luas. He accepted, when cross examined, that the previous driver had been informed. The respondent’s policy is to repeat the notice to drivers every fifteen minutes. The complainant got onto the bus in that time between when the first driver had been informed and the second notification went out. I accept the respondent’s evidence that drivers are not permitted to use the radio whilst driving. Therefore, the driver could not call into the Head Office to check whether the complainant was telling the truth. Everyone who got onto the bus after he had been notified were allowed to use their Luas ticket. The driver did tell the complainant that he could get his bus fare refunded if he presented his ticket at the office in O’ Connell street. The complainant did not apply for a refund.

In all of the circumstances I find that the complainant has established a prima facia case of discrimination on grounds of race, however the respondent has objectively justified why he was not permitted to board the bus without buying a ticket. All in all, it came down to bad timing. Had the driver been permitted to use the radio whilst driving he would have been able to verify what the complainant had told him about the Luas but the respondent’s policy on such matters prevented him from doing so. Once he had been informed about the Luas he did inform the complainant that he could get a refund.

The complaint fails.

The complaint fails