Complainant

Respondent

Parties

Michael  O'Brien

Kerry County Council ; Corporate Services

Complainant

Respondent

Representatives

Cillian Bracken BL instructed by Cathal Malone,   Solicitor of Thomas Coughlan & Co. Solicitors

 James Morris – County Solicitor’s Office and Council Officials

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00032117-001

11/11/2019

The issue in contention concerns an allegation by the Complainant, a member of the Travelling Community, that he was Discriminated under the Equal Status Act, 2000 on grounds of Race, Membership of the Travelling Community and Provision of Goods and Services by the Respondent County Council.

The alleged incidents took place in or about the 22nd July 2019 on the street outside the Complainant’s house and a few days later in the Council Offices.

The Complainant submitted written evidence and gave extensive Oral Testimony to the Hearing. He was reminded, at the start, that he was under a Religious Oath.

On the 22nd July 2019, a Monday, the Complainant was outside his House, No 3 in the Development. Two Kerry County Council workers arrived and entered House No 2. There was a problem with Smoke Alarm activations – effectively the batteries needed changing to avoid false activations that were disturbing the neighbours- the Complainant included.

One of the Council employees severely verbally abused the Complainant with reference to his Traveller background. The Complainant had remained calm. The second Kerry Council employee sympathised with the Complainant for the abusive verbal behaviour of his colleague. They had sat down on a low wall and conversed while the other, alleged offending employee, was out of earshot.

Some days later, Thursday the 25th, the Complainant had to go the Council offices regarding a water leak in his house. While in the Offices he decided to raise a complaint regarding the Monday incidents. He asked for Mr. TO’C but was not allowed to get to talk to him although he could be seen in the background. Sometime later a Mr.DO’L came out to speak to the Complainant. He did not wish to speak to Mr DO’L as he was the Council’s Homelessness Officer and the Complainant was not Homeless. He returned to the Reception desk and asked again for Mr.TO’C. After some time, an official came out but not Mr.TOC. The Complainant felt that he was being effectively shuttled about to avoid any proper engagement. In frustration he left to go home and planned to return but accompanied by a support person/witness.

His offhand and dismissive treatment in the Council Offices was further evidence of Discrimination on the Grounds of his Traveller Status.

In cross examination by the Council’s Solicitor the Complainant was a little vague on some of the details particularly the visit to the Council’s Offices but was clear regarding the verbal abuse at his house on the 22nd of July 2019. He confirmed that one of the Council’s employees, Mr. KK, from that day, was present at the Hearing. However, it was the other Employee, now known to have been Mr. O’Sullivan, an electrician, who had been the principal verbal abuser. He was not at the Hearing.

The Complainants’ Legal Representative pointed out the weakness in the Respondent case posed by the apparent and possibly most convenient absence of Mr. O’Sullivan.

The Respondent submitted a brief written statement and gave extensive Oral Testimony from a number of Staff. All were reminded that they were under Oath.

The first issue that was clarified was that the Two Employees on the 22nd were Mr. Kevin K (KK) of the Council and a Mr. Seamus O’Sullivan, a Contract Electrician employed by Murphy Electrical. Mr. KK gave clear evidence that he had attended at House No 2 as he had the necessary house keys. He had virtually no dealings, other than to open and close the house doors, with Mr. O’Sullivan, the electrician, who repaired the smoke alarms. Mr. KK knew the Complainant personally for many years as they had both grown up in the Town.

As far as he was concerned nothing untoward had happened, as far as he was able to recall, on the 22nd.  He had not apologised to the Complainant for anything Mr. O’Sullivan might have said as he had not heard anything. He had made no report to his Supervisor on the incident as there was nothing to report. In his view nothing had happened, as described by the Complainant, at the Houses.

It was not possible to get any evidence from Mr. O’Sullivan, who it was now alleged had been the verbal abuser, as he was no longer employed by Murphy Electrical and his whereabouts were unknow to the Council or to Mr. Murphy.

As regards the visit to the Council Offices a number of Officials gave Testimony. Basically, they could not recall anything out of the ordinary as regards the Complainant on the day- now believed to have been Thursday July the 25th.  At the time Mr.TO’C was dealing with another Customer, although visible to the Complainant through a glass partition. The Traveller Liaison officer Mr. DO’L was requested to speak to the Complainant. This did not happen as the Complainant refused to speak to Mr.DO’L.  All staff involved on the day were interviewed and none had anything to add. The Reception diary recorded the Complainant’s visit. He had been dealt with professionally and there was no case to answer of any sort.

The Council employees who had interacted with the Complainant on his visit were cross examined by the Complainant’s Legal representative but nothing of additional substance was discovered.

3:1          The Legal Position.

It is well settled Law that in an Equality Act ,1998 or an Equal Status Act, 2000 case the first requirement is to establish what is generally called a prima facie case. In plain English the question is whether or not the Complainant can establish by inference alone, if needs be, if he or she has a valid case worth investigating.

In an Equal Status case such as here it is also necessary to establish certain Legal issues -these being

1.       In the Complainant covered by the Discrimination provisions of Section 3 and 5 of the Equal Status Act, 2000. in other words, is he eligible to bring a claim?

2.       If so was he discriminated against?

3.       Was the treatment of the Complainant less favourable than that which would apply to another individual not covered by the Discriminatory ground?

4.       Depending on these answers the Provisions of Section 38A “The Burden of Proof “of the Equal Status Act,2000 then apply. In plain English the onus is on the Employer to prove that no discrimination occurred.

There is significant case law in support of the above points - the starting point would be the decision of the Labour Court in Southern Health Board v Mitchell, AEE/99/E a decision which remains the leading decision on the shifting of the burden of proof. The Court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

Notwithstanding legal precedent all cases rests on their own particular facts and evidence and I will, using the points above, now consider the case. The Oral Testimony of the witnesses is the crucial part of this case.

3:1:1          The prima facie test – Monday the 22nd of July and Thursday the 25th July.

The Oral Testimony from the Complainant and Mr. Kevin Kerins, the direct employee of the Council, was completely contradictory. Mr. Kerins knew the Complainant well as they were both locals to the Town. He presented as a capable conscientious Council employee. He gave good clear evidence. In his recollection nothing untoward happened that would require his giving a Report to his Supervisor.

The Complainant was equally forthright in his recollections of being verbally abused by the other Council worker, whom we now know was the Electrician Mr. O’Sullivan,

The absence of Mr. O’Sullivan and the inability of the Council or his former Employers, Murphy Electrical, to contact him was problematic. He was believed to be still “in the County”. His former employer Mr. Murphy was unable to offer any assistance as to where he might be.  The Complainant Legal representative found the inability of the Respondent to make contact with Mr. O’Sullivan a most “convenient” situation.

In the final analysis the issue came down to a Adjudicator judgement as to which version of events to accept, Mr. Kerins or the Complainant.

A similar issue arises in relation to the events of the Thursday following the 25th. All the Respondent witness, giving evidence under Oath, stated that nothing of a Discriminatory Nature occurred at the Council Offices. He had not been “shuttled about” to avoid answering questions because he was a Traveller. It was a busy office and inevitably staff were going to be dealing with other members of the public when the Complainant arrived. The Traveller Liaison Officer had come to talk to him as Mr.TO’C was engaged at the time. Nothing of a Discriminatory nature or bad Customer service had taken place.

3:1:2        Conclusion: The prima facie test – Monday the 22nd of July and Thursday the 25th July.

The law requires evidence to support a case.

On balance and reviewing all the evidence and the Oral Testimony I have to find that the Complainant has not made a sufficient prima facie case.

There was no supporting evidence such as other witnesses, other family members or neighbours on the Housing Estate, for example, on the Complainant’s side. There were no public witnesses from the Council Offices on the Thursday to support the allegations made.

The Complainant simply does not have any supporting evidence to back up his version of events.

The absence of Mr. O’Sullivan was a problem. His former employer, Murphy Electrical, gave evidence, again under Oath, of genuine efforts to contact him but without success. Mr. Murphy was clear in his testimony and was reminded that he was under Oath.

The Council had the sworn testimony of numerous Council Officers and in particular Mr. Kerins in support of their case. The witnesses were under Oath.

Accordingly, and strictly on the basis of the limited evidence presented I find that the Complaint does not have a prima facie basis and has to be deemed Not Well Founded.

On this basis the other questions posed above in Paragraph 3:1 do not need to be considered further.

The Complaint, lacking supporting Complainant evidence, is Not Well Founded.

Traveller Rights, Discrimination, Provision of Services.