CORRECTION ORDER

ISSUED PURSUANT TO SECTION 29 OF THE EQUAL STATUS ACT 2000

This Order corrects the original Decision (ADJ-00032415) issued in August and should be read in conjunction with that Decision.

SECTION 29 OF THE EQUAL STATUS ACT 2000

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00032415

Parties:

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing:  14/06/2022

Workplace Relations Commission Adjudication Officer:  Caroline Reidy

Procedure:

In accordance with Section 21 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.  I confirmed the correct Respondent was SR Bray Ltd and this was confirmed by the Respondent.

I also explained the identities as the parties would be named in my decision as it was a public hearing.

I gave the parties an opportunity to be heard and to present evidence relevant to the complaint. 

Oral evidence was presented by both the complainant and the respondent. The parties were offered the opportunity to cross examine on the evidence submitted.

Both the Complainant and Ms Sexton confirmed they would take an affirmation to allow them to give oral evidence during the hearing. The Complainant was self-represented.

Background:

The Complainant confirmed that the incident occurred on 15 February 2021 where he alleged that he was discriminated against due to their race/nationality by ‘refusing to provide a service that she is only privileged to provide’. 

Summary of Complainant’s Case:

Mr Ayoade claims to have contacted the Respondents’ store landline on Monday 15 February 2021 at 09:19am to ask about broadband installation in his home.

The Complainant confirmed he is an international student in Dublin Business School currently in the penultimate year of his undergraduate degree.  Three friends (recent masters’ graduates) and himself moved into a new place of residence on 11 February 2021 and to complete the set-up of the new place they needed to have a new Internet broadband installed.  Because he was the one who needed this, he was charged with contacting eir, specifically eir since they found that all the houses around their home-made use of eir’s services, to purchase a broadband service. 

On that morning, at around 9:12 am, he checked the maps for the closest eir store and at 9:19am he called the number 01 4099550, which was supposedly the service number for the Crumlin store, as situated in 8c, Ashleaf Shopping Complex. The phone rang and it was picked up on the third or fourth ring.  To the best of his memory, the conversation went something like this:  Me:  Hi there, my name is Deyma, how are you? Store Manager: was shuffling but upon hearing his voice stayed still and responded, hi… Me…. (slight delay) well, like I said, my name is Deyma and I recently moved into a house in the Walkinstown area. I am calling to make inquiries about how to buy your Wi-Fi service or Internet broadband and get it installed in my house, as soon as possible. Thanks. Store Manager: (after a brief hesitation) We do not sell Wi-Fi here and I don’t want you calling this number again.  At that point, the call was dropped.  He was surprised and he tried ringing the number two more times but the call rang and rang and was not picked up either time.  He said it took him a second to wrap his head around what happened but he did eventually. 

He believed the person who picked up his call (which he found to be the store manager) discriminated against him by refusing to provide a service that she was only privileged to provide, hence abusing that privilege and in the same spirit infringed on his fundamental human right to being respected and not to be denied of any service on account of his/her race as stipulated by the Equal Status Acts 2000 – 2015. 

As a result of this, he sent the eir Store in Crumlin the ES1 form, together with a copy of the ES2 form as stated by the guidelines for making a complaint of this nature.  He received the ES2 form back with claims of poor connection as an excuse/reason for communication problems on that call with it further stating sales targets as reasons not to deny any prospective customer services. The ES2 form also said that the call was dropped and he never called back, which was not true because he did, twice.  Because of this, he has provided his phone records from his network provider (and was sent together with the copies of both ES1 and ES2 forms) which would clearly show that he called back, and it rang to a stop both times.   The store manager did not pick up his further calls he feels intentionally and he said they deny it by claiming he never called back when he said he did and his phone records he says prove that.

Summary of Respondent’s Case:

Ms Sexton, Store Manager stated she received a call at approximately 9.20am in the eir store in Crumlin.  It was early in the morning so when she starts work, she must check their stock on hand as well as double check their cash and visa sales from the day before and make sure that all has tallied correctly.  She was in the middle of checking the above when the phone rang.

Ms Sexton remembers taking the call and it was of a really poor quality.  She was unable to make out much of the conversation on the phone.  From the snippets of what she heard, she thought it was a sales call and that someone was trying to sell the store broadband. To which she highlighted that they were through to the eir store.  She repeatedly said she was unable to hear them properly and told them the line was too bad.  When the quality of the call got too bad, she hung up the phone and went about doing her daily tasks.

At that time, she was in the store alone and only able to focus on one task at a time.  She was dealing with customers in and out of the store all morning as well as trying to complete her daily tasks which involved stepping away from the front desk into the back storage room. 

The Respondent stated that Mr Ayoade had produced phone records of which he would like to question the validity of these documents – some of the fonts are in different format and it was not in date order.  Also, the evidence of calling the store does not show that the store was called 3 times on 15 February as stated in the statement, the phone records do not have the Crumlin store number (01 409 9550) anywhere on the document.

The Respondent stated in February alone, there were only calls made on two separate days, four calls were made on 2 February and one call was made on the 21 February. The call made on 21 February seemed to be among the November calls, out of character of the document formatting assuming calls are in date range order.  Considering the alleged offence happened on 15 February, there were no records to show this from the evidence provided.

The respondent stated there was also a discrepancy in dates by Mr Ayoade. On the Workplace Relations Complaint form, the date in question was stated as 11 February and on the ES1 from the date was filled in as 15 February.

The Respondent stated the alleged call was made to the eir store in Crumlin in which Ms Sexton answered the call.  In Mr Ayoade’s statement, Ms Sexton, who is the Store Manager is named as ‘a customer care representative’, however this was not the case.  She is a member of staff working in the store and cannot give access to selling any items over the phone which is known as distance selling.

As a result of not being a distance seller, the call was not recorded.  The call did not go through to customer care in eir, it went through to the Store Manager in Crumlin store.

The Respondent stated the reason why they can’t be a distance seller was because they do not have authorisation from the network ‘eir’ to record calls, therefore they can’t provide a Voice Customer Authorisation Form (VCAF).

The Respondent representative stated that if the call was being recorded, Mr Ayoade would have been notified and informed before the conversation began, that was being recorded however that was not the case.

The Respondent representative stated, Ms Sexton, the Store Manager, had been working with Synchro since 2013, she is a loyal, honest, and very trustworthy employee.  In all her time working with Synchro she had served thousands of customers from different nationalities, disabilities and from different backgrounds and she never once has had one previous complaint against her.

The Respondent representative stated that as Ms Sexton was a sales staff member, every sale she completed earns her extra commission at the end of the month, she would never turn down a broadband sale as all sales help to hit her monthly target and earn extra commission.  Mr Ayoade’s address passes from 100mb FTTC so she would have happily asked him to come into the store with his proof of address and ID to sign up, had she been able to hear him properly on the phone.

The Respondent representative stated that Ms Sexton stated numerous times that the call was of poor quality.  Therefore, she was unable to hear him properly and could not have known any background of this person on the phone.  The Complainant, Mr Ayoade was never present in the store and Ms Sexton had no access to any ID or proof of address therefore Mr Ayoade was not discriminated again in any way.

Findings and Conclusions:

Mr Ayoade stated he was “gobsmacked” and he said that when he called back the store his call wasn’t answered which showed intent to treat him differently due to his race as his accent was African.

Ms Sexton who is the store Manager for the Respondent for 8 years gave evidence.  She gave evidence as per her statement below.

Ms Sexton, Store Manager stated she received a call at approximately 9.20am in the eir store in Crumlin.  It was early in the morning so when she starts work, she must check the stock on hand as well as double check the cash and visa sales from the day before and make sure that all has tallied correctly.  She was in the middle of checking the above when the phone wrang.

Ms Sexton remembers taking the call and it was of a really poor quality.  She was unable to make out much of the conversation on the phone.  From the snippets of what she heard, she thought it was a sales call and that someone was trying to sell the store broadband. To which she highlighted that they were through to the eir store.  She repeatedly said she was unable to hear them properly and told them the line was too bad.  When the quality of the call got too bad, she hung up the phone and went about doing her daily tasks.

At that time, she was in the store alone and only able to focus on one task at a time.  She was dealing with customers in and out of the store all morning as well as trying to complete her daily tasks which involved stepping away from the front desk into the back storage room. 

She stated the line was very bad and so went silent.  Ms Sexton stated she asked the caller to call back but no call back occurred. Voicemail was set up for call back.

Under cross examination the company representative for the Respondent, Ms Burke asked why the Complainant Mr Ayoade didn’t call the store to sort the broadband after the call.

Mr Ayoade stated he was in college that Monday 15 February so he couldn’t call into the store and he had only moved into the area a few days previous.

Ms Burke also asked why he didn’t call back at a later time during his college breaks or why did he not leave voicemail.  Mr Ayoade stated he only moved to Ireland 3 years ago and wasn’t used to voicemail.

The Complainant stated he called back a few times directly after the first call but it didn’t go to voicemail.

The Complainant asked why they didn’t call him back.  Ms Sexton said she would have, if there was a voicemail but he didn’t leave a voicemail.

Ms Sexton stated the phoneline was horrendous and she would have called him back if he left a message. She would have then advised him to come into the store as they can’t process broadband over the phone.

Ms Burke, respondent representative also stated that Ms Sexton would have not treated the customer any different and had always treated everyone professionally and never would discriminate a person or not take a sale.

The Equal Status Acts 2000-2015, prohibit discrimination in the provision of goods and services, the provision of accommodation and access to education, on any of the nine grounds set out in the legislation.

The Burden of proof provision at section 38A provides

(1) 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the respondent to prove the contrary.

Section 38A of the Act mirrors Section 85A of the Employment Equality Acts 1998-2015 in its main provision with regard to the initial burden of proof for a complainant in equality legislation.  In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how Section 85A is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant 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.”

There is an onus on a complainant seeking redress pursuant to the Act to establish that (a) he sought to access a service of the respondent that was available to the public generally and (b) he was discriminated against on at least one of the stated grounds of discrimination. 

I also considered the matter under section 22 of the Acts which provides that the Director may dismiss a claim at any stage if of the opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

I find that no discrimination occurred in this case, the complainant called the store the line was poor quality there was no inference or indication of any discrimination in relation to the evidence presented and the store manager who gave evidence for the Respondent was very credible in that regard.

Decision:

The Equal Status Acts 2000-2015, prohibit discrimination in the provision of goods and services, the provision of accommodation and access to education, on any of the nine grounds set out in the legislation. 

There is an onus on a complainant seeking redress pursuant to the Act to establish that (a) he sought to access a service of the respondent that was available to the public generally and (b) he was discriminated against on at least one of the stated grounds of discrimination.  

The Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant provisions under the Act. I find that he did try to access the service in question but I do not find that he was not discriminated and the claim is not well founded based on the evidence provided and fails accordingly.

Dated:   08-08-2022

Workplace Relations Commission Adjudication Officer:  Caroline Reidy

Key Words:

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference:  ADJ-00032415

Parties:

Complaint(s):

Date of Adjudication Hearing:  14/06/2022

Workplace Relations Commission Adjudication Officer:  Caroline Reidy

Procedure:

In accordance with Section 21 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.  I confirmed the correct Respondent was SR Bray Ltd and this was confirmed by the Respondent.

I also explained the identities as the parties would be named in my decision as it was a public hearing.

I gave the parties an opportunity to be heard and to present evidence relevant to the complaint. 

Oral evidence was presented by both the complainant and the respondent. The parties were offered the opportunity to cross examine on the evidence submitted.

Both the Complainant and Ms Sexton confirmed they would take an affirmation to allow them to give oral evidence during the hearing. The Complainant was self-represented.

Background:

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

Dated:   08-08-2022

Workplace Relations Commission Adjudication Officer:  Caroline Reidy

Key Words: