Complainant

Respondent

Parties

Vanessa  Corral

Commissioner of An Garda Siochana

Complainant

Respondent

Anonymised Parties

Representatives

Mark Rodgers BL,                       Tríona Feeney – Chief State Solicitor,

Rory Mannion – Garda Legal Section

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00059174-001

02/10/2023

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 2nd of October 2023.

In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to direct that all parties giving oral evidence before me, do swear an oath or make an affirmation as may be appropriate. In the interests of progressing this matter, I confirm that I have in the circumstances administered the said Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence.

The Complainant was not represented and made her own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant provided me with no submission outside that which had already been comprehensively detailed in her workplace relations complaint form. No documentary or other evidence with any probative value was presented in the course of her evidence. The Complainant sought to rely on her own oral account which was acceptable. The Evidence adduced by the complainant was minimally challenged by the Respondent’s Representative.

The Complainant alleges that she was discriminated against by members of an Garda Siochana in the taking of complaints and/or in the conducting of investigations and prosecutions. The Complainant asserts that she was discriminated against on the grounds of race and it is noted that the complainant is Spanish.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

As part of this process, and in the interests of fairness, I reserved my right to amend the Workplace Complaint Form so as to include complaints (under other employment statutes) which appeared to have been articulated in the Statement/narrative, but which had not been specifically particularised by this (unrepresented) Complainant.

The Respondent had full representation at this hearing. The Respondent provided me with a comprehensive written submissions dated the 16th of February 2024  which challenged my jurisdiction to hear this matter and which asserted in the alternative that the Complainant has made out no Prima facie case. No witness evidence was provided.

The Respondent rejects that there has been any discrimination in the provision of services provided.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully listened to the evidence adduced by the Complainant and considered this against the legal arguments presented by the Respondent as regards the outcome and conclusions which I might in law consider.

The Complainant is Spanish. The Complainant’s English was excellent, and it appears that she has been living in Ireland for some time. Over the course of 2023 the Complainant has suffered a series of unfortunate and seemingly unrelated events. The events were, on the fae of it, potentially criminal in nature. In January 2023 the Complainant was either verbally or physically assaulted by a tenant living in the same building as herself. In February 2023 the Complainant had a parcel addressed to her opened up by her line Manager or other superiors at her place of work. In April 2023 the complainant was, she says, held against her will in an elevator at her place of work. In May 2023 the Complainant had her hair pulled by a stranger in a public place.

At the outset it should be noted that I am only referencing these four incidents as they fall within a reasonable timespan prior to the issuing of the Complainant’s workplace relations complaint form (which issued in October of 2023). Other issues raised by the Complainant go back as far as 2011 and I do not think it reasonable or fair to try and investigate such incidents at this remove.

I have been advised by the Respondent that in line with the mandatory procedures followed by the Gardai each of the Complainants complaints have been recorded on the PULSE system as and when she has presented at her local Garda Station (Store Street) to report a crime. Each of the incidents have been given a PULSE number. This tends to suggest that each incident is recorded as a crime as there was found to be a reasonable probability that the circumstances (as outlined by the Complainant) amounted to a crime.

In her evidence the Complainant makes the case that the Gardai have failed to follow up or otherwise process or investigate these allegations made by her. The Complainant seeks to make the case that these failures on the part of an Garda Siochana is grounded in a wilful discriminatory treatment of her because she is Spanish. The inaction she says she has experienced is racially motivated.

The Respondent has a number of arguments in its arsenal of resistance. In the first instance, the Respondent has asked me to consider the breadth of function given to the Garda Siochana Ombudsman Commission (GSOC). It is clear that this is a body which has been set up for the purpose of looking at complaints made (including by members of the public) with respect to Gardai performance, conduct and exercise of duty. I would certainly accept that many of the issues raised by the Complainant might have appropriately been brought before GSOC. Certainly issues such as the speed of an investigation or the completeness of an investigation could potentially be dealt with by that institution.

However, whilst this might be generally correct, we are dealing with a complaint wherein the Gardai are being accused of delay, lack of timeliness and failure to investigate by reason of the fact that the Complainant is Spanish. This is a clear allegation of the complainant being treated less favourably than presumably an Irish person might be by reason of the fact that she is Spanish. The proposition is that the purported inaction on the part of the Gardai is because she is Spanish and therefore their treatment of the complaints she has made to the Gardai is discriminatory.

I accept that when Inspector Tormay in her email of 29 August 2023 informed the Complainant, upon receipt of Form ES.1 that the mechanism for the Complainant was to make a complaint to the Commission she did so in good faith. However, where an allegation of racial discrimination in the provision of a service is being alleged the Adjudication process cannot be excluded simply because another alternative forum is available. The Adjudication process must be allowed to perform its own function. Both avenues are open to the complainant in this matter.

The Complainant will still have to overcome the obstacle of adducing facts which tend to show prohibited conduct or acts on the part of the Gardai from which an inference of discrimination can be drawn. It seems to me that this might be a case where a sense of personal grievance and misplaced speculation will have to be carefully stripped away from those facts actually being relied on to demonstrate a prima facie case of discrimination.

In any event before I come to consider the complainant’s prima facie case, I must address the second issue raised by the Respondent in its submission. In particular, the Respondent has challenged the Adjudicator’s jurisdiction. The Respondent makes the case that the activities of members of An Garda Síochána in exercising their statutory function is excluded from the ambit of the Act of 2000  and that this has been well established by both the Workplace Relations Commission and its predecessor, the Equality Tribunal.

Section14(1)(a)(i) of the Act specifically excludes from the protection against discrimination provisions of the statute:

 “the taking of any action that is required by or under any enactment or order of a court”.

The Respondent argues that  section 7(1) 4 of the Garda Síochána Act 2005 sets out the function of An Garda Síochána as being to provide policing and security services for the State with the objective of, amongst other matters, “bringing criminals to justice, including by detecting and investigating crime”. Functions, of course, include duties so the function of An Garda Síochána to detect and investigate crime is clearly a statutory duty on members of An Garda Síochána. As such, it is by virtue of section 14(1)(a) entirely outside of the purview of the Act of 2000.

The Respondent opened up the case of  Donovan v Donnellan (DEC-S2001-011), wherein the complainant made a complaint under the Equal Status Act 2000 that he had been discriminated against by the Gardaí under section 5(1) on the grounds that he had been prosecuted for incidents relating to wandering horses on the grounds that he was a Traveller while others, who were not, had not been. The respondent, a Garda, objected to the investigation of the complaint by the Equality Tribunal on the grounds that it was outside the scope of the Act since the investigation and prosecution of crime by the Gardaí were not services within the meaning of section 2 of the legislation. In agreeing with the respondent that the complaint was outside the scope of the Act, the Equality Officer held that while certain aspects of the activities of a member of An Garda Síochána towards the public might be construed as services for the purposes of the Equal Status Act, it was clear that the investigation and prosecution of crime did not. In outlining its decision, the Equality Officer stated as follows:

“Having examined the wording of section 2(1) it is clear to me that the services which are covered by it are services which are available to the public or a section of it. A number of examples of such services are mentioned in the Act but it does not purport to be an exhaustive list. While State services are not specifically mentioned as being covered they are not specifically excluded either and I believe it is clear that certain services provided by the State are available to the public and are covered by the Act, e.g. social welfare services, health services, etc.

The issue in this case is whether the investigation and prosecution of crime are services which are available to the public. I consider that clearly certain aspects of the service provided by the Gardai may be services within the meaning defined in the Act e.g. a Garda witnessing a passport application, giving directions or taking a complaint. If a Garda did not provide these services to an applicant who was covered by one of the grounds covered by the Act then clearly it could be within the jurisdiction of the Director of Equality Investigations to investigate a complaint under section 21 of the Act arising from any such refusal.”

In those circumstances, he went on to hold that:

“I consider it is clear and plain from the wording of 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 Gardaí (and the Director of Public Prosecutions) 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 have quoted extensively from this decision as provided to me by the Respondent. This decision continues to make good sense I see no reason to unsettle it. I will, therefore, not look beyond the taking of the complaints made by the Complainant. How subsequent investigations were or were not conducted is beyond my remit.

Insofar as the complaint herein are now limited to the simple act or acts of lodging a complaint – which the complainant did on a number of occasions - I can find no evidence adduced or asserted by the complainant that the Gardai response with which she was met was in any way discriminatory. All the Pulse files were correctly created with the facts contained therein. The Complainant has not been able to identify any evidence to the effect that she was treated less favourably than anyone else, still less that she was treated less favourably than anyone else on account of her nationality.

Whilst I decline the invitation to find the Complainant’s complaints to be frivolous and vexatious, I cannot find that the complainant has made out a coherent, prima facie case of discrimination. As previously noted, the general sense of grievance and frustration undoubtedly being felt by the complainant (who has been the victim of a number of upsetting crimes) should not be allowed to be projected onto the gardai, turning them into the potential wrongdoers. This is quite simply misplaced anger on the part of the Complainant and an unreasonable assessment of the Gardai response.

Lastly I would say that I have taken the time to carefully review all the evidence both written and oral.  I have noted the respective position of the parties.   I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”. 

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

CA-00059174-001  - The Complainant has not made out a Prima Facie case and she was not discriminated against and the complaint herein fails.