Complainant

Respondent

Parties

Pierce  Parker

Fiachra Kealey trading as University College Dublin Estate Services

Representatives

Barra Faughnan BL instructed by Mason Hayes & Curran

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00051497-001

03/07/2022

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

CA-00051525-001

04/07/2022

The Complainant is a former PhD student of UCD. He completed his doctorate there between the years 2014 and 2021. The Respondent is an employee of the UCD’s estate and services company.

There is a wider background to this dispute which is encompassed by ADJ-00036331. For a period of time the Complainant began storing items and sleeping in the specialist research building he worked out of. After he completed his PhD he continued to return to the building on a daily basis despite being asked to stop doing so. He was referred to the University disciplinary process because of this and then submitted complaints that this reaction was due to his gender, civil status and race. The Adjudication Officer in that case considered his complaints frivolous and vexatious.

The Complainant has submitted two complaints in this matter they overlap somewhat and also mention the issues which arise in ADJ-00039910 which concerns the Complainant’s removal from the Respondent gym. However, for clarity I have distinguished them in the following way.

CA-00051497-001 primarily concerns the events of the 31st of May 2022 when the Complainant was followed by the Respondent, and they had an interaction. The Complainant alleges that this was discrimination on the basis of gender age and race.

CA-00051525-001 primarily concerns the decision to bar him from the campus indefinitely. This followed on from the above interaction and the Complainant alleges that the Respondent deliberately set up the above-mentioned interaction so that the Complainant could be barred from the campus.

The Complainant made extensive written submissions ahead of the hearing and gave evidence under affirmation.

On the 31st of May 2022 he had signed up to participate in a lab experiment. The Complainant routinely kept his bike locked at the Ag Science building in UCD and kept a bike lock attached to the bike rack outside that building where he normally parked. As such when he came onto campus he went there to leave his bike.

From there he walked to material science building which is in the opposite direction to the building which was the subject of ADJ-00036331 and from which he was banned. He was in incredible hurry and late. He did notice someone talking into their phone behind him as he walked and in hindsight realised that this was the Respondent.

He was about to join a 3 hour experiment so went to the bathroom when he reached the material science building. Mr Kealey was outside in the foyer when he left the bathroom. He was on the phone again. The Complainant asked him who he was. They had previously interacted in January but the Complainant had forgotten who he was.

The Complainant then recounted the January interaction. He had been in the cafeteria in the agriculture building. This is a very large room where students and members of the public would lounge around. Estate service employees would hang out there as well as it was right beside their canteen. The Complainant had seen them take naps and started to do the same. Mr Kealey had seen him there and asked him to produce his ID.

The Complainant then returned to the 31st of May interaction. At this point he knew why the Mr Kealey was following him. He was facially profiling him. He believed there could be nothing positive associated with him because he is not white. The Complainant became very upset. He confronted Mr Kealey but then didn’t have time to deal with it and walked away. He did the experiment and when it finished he was handed a letter barring him from the campus. The letter was drafted as if it was written by the legal department however the Complainant knew that it was a forgery as there was no wet ink signature.

The Complainant does not think that the ban was warranted. He believes that the Mr Kealey knew he might be in trouble for the interaction earlier and that the ban was an attempt to cover that up.

The Complainant had previously had been compliant when challenged by estate staff but this was just due to the level of microaggression he previously dealt with.

He referred to the Respondent’s Equality Diversity and Inclusion (“EDI”) policy. The Complainant argues that the Respondent acted in breach of the policy and was engaged in a misuse of power to humiliate or denigrate him. Mr Kealey provoked him in order to frame him.

The implication of this letter became clear later on he got a post doc fellowship from UCD and was then dismissed from the role because of the campus ban. The Complainant had tried to raise the campus ban with the Respondent’s EDI department so that he could ensure that he could return to campus and not be harassed by Mr Kealey. This then triggered his dismissal. This dismissal was communicated by Gavin Stanley’s letter of 31st of September 2023 who is the Respondent in a separate complaint. He is of the view that Mr Stanley could have behaved righteously but didn’t.

The Complainant’s understanding is that Mr Kealey and Mr Stanley do not know each other they just have a common enemy in the Complainant. It’s very important that they defeat him. Their supremacy is more important than anything else. To them he is just a racial caricature and his failure means their success.

The Complainant was cross examined by Barra Faughnan BL

The Complainant confirmed that he had previously written a letter of apology to estate services on the 4th of November 2021. In this letter he apologised for having created such a workload for them during his period of homelessness which had since ended. He thanked them for having dealt with him professionally and leniently when they had kept finding him in the research building which is the subject of ADJ-00036331. When asked whether this letter was genuine, he was not clear. He had been advised to write it as part of the disciplinary procedure he had been through.  

He does accept that estate services had dealt with him leniently and professionally and that he had created a burden on them and he was thankful to them. He is of the view that estate services changed post lockdown.

The Complainant had completed his doctorate in December 2021. He had finished his work a few months before that. He was no longer a student at UCD. The Complainant accepts that he no longer had a locker in the agriculture building and that his locker was emptied on the 14th of January 2022. He no longer had a locker and was no longer a student when he was found in the building in later January, February and May.

It was put to the Complainant that on the 26th of January he found in the Agricultural building at 7pm having made a up bed for himself. The Complainant accepts this and says that he was recuperating after a swim. He accepts that he had been challenged about this type of behaviour in the past and left when this was raised. He says he was yelled at.

On the 9th of February it had been reported that the Complainant was acting suspiciously and had stored his bike helmet and a package and food in a cupboard. The Complainant accepts that he was challenged for doing this.

The Complainant disputes that on the 30th of May he was seen scavenging in skip and was told to leave.

On the 31st of May the Complainant parked his bike at the Agriculture building. He kept a lock permanently on their bike rack because he went there all the time. He believed there was no issue about this as he was just banned from one building.  

The Complainant was asked why he considered the barring letter a forgery. He suggested that it was not a forgery but the signature on it was. He then suggested that the whole letter was a forgery carried out by Mr Kealey.

He believes that in order to be banned from the campus you need commit egregious misconduct such as violent misconduct, arson or attacking someone.

It was put to the Complainant that the Adjudication Officer in ADJ-00036331 found he plays the race card when challenged. The Complainant believes that this is an ad hominem argument suggesting that he is pathological.

The Complainant later applied for a research position in UCD and was successful. This was communicated to him on the 8th of September 2023 and the position was to last for 5 or 6 months. He was appointed by the academic who was leading the specific project he was hired to. The Complainant did not believe that he was obliged to tell her that he is banned from campus. He could have worked remotely or they could have lifted the ban.

The Complainant then wrote to UCD’s EDI department that same day signed the contract with UCD and then Mason Hayes and Curran two days letter. In these emails he outlined that they should advise  Mr Kealey not to stalk, provoke or harass him now that he was returning to campus.  He accepted that he was going to use the job to undo the campus ban.

UCD then terminated the contract on the 19th of September on the basis that he was barred from campus. The Complainant then challenged this under Section 20 of the Industrial Relations Act directly to the Labour Court and his case was rejected in their recommendation.

Mr Faughnan made oral and written submissions on behalf of the Respondent. A number of witnesses gave evidence.

Mr Julian Bostridge gave evidence under affirmation.

He is Director of Legal Services for UCD, he has worked there since 2015. He confirmed that the letter barring the Complainant dated the 31st of May was drafted by him. The do not use wet ink signatures in legal. They use pdf signatures if at all.

He confirmed that he was consulted on and gave advice about both the decision to ban and later terminate the Complainant.

Mr Bostridge was cross examined by the Complainant.

He confirmed that scanned signatures are normal.

On 31st of May he didn’t hand the letter to him personally. He sent it to estate services department by email pdf.

He first became aware of the Complainant in 2021 due to the issues related to ADJ-00036331

He agreed that very few people are barred from campus. He has issued at least one other barring letter. The bar for a campus ban is generally quite high.  He was of the view that the Complainant’s behaviour was egregious over a period of time.

He does not accept that this could have been a racial profiling mistake as he had no knowledge of the Complainant’s race when he drafted the letter.

He disputes that the Complainant was stalked and believes that Mr Kealey was carrying out his job in monitoring a person of concern. The Complainant was of concern because of his conduct and behaviour.

On May the 31st it was reported to Mr Bostridge by the head of estate services that the Complainant had been verbally aggressive to Mr Kealey. It was decided at that point that the Complainant should be barred. Mr Bostridge was not a witness to these events it was reported to him. He does not think it was a mistake and fit a pattern of behaviour.

Mr Bostridge accepted that “old man Belfield” had never been issued with a ban letter but points out that he was never the subject of complaints.

Mr Conor Maloney gave evidence under affirmation.

He is operations manager overseeing UCD estates. He has worked there since 2017 in different capacities. He first became aware of the Complainant in 2018.

At the time the cleaning team raised issues about an individual sleeping overnight. The head of that building at the time took a more lenient view and they just kept an eye on the issue.  

He did challenge Mr Parker on the use of the Agricultural building after he ceased being a student. He denies having shouted at him.

The Complainant cross examined Mr Maloney.

He formerly worked in the sports centre and knows the Respondent in ADJ-00039910.

The incident reports use the term POI which means person of interest.  This is used widely.  

When the estates staff referred to the Complainant they would use his name.  

Mr Maloney accepts that he approached the Complainant while he was eating. He disputes shouting at him. He agrees that the Complainant said he was violating EDI principles.  

Mr Maloney told him to finish what he was eating and leave and suggested he would call An Garda Siochana. This was due to the Complainant’s habitual misuse of university property which had been reported by multiple duty managers.

Fiachra Kealey gave evidence under affirmation.

He is the current facilities manager for UCD estate services. The duty managers report to him.

He had been aware of the Complainant’s previous misuse of the building he was ultimately banned from.  

He had an interaction in the Agriculture Science building earlier that year. The Complainant had set up two sofas together and was lying down sleeping. He refused to produce a student ID.

The duty managers hold handover meetings every shift. On the morning of the 31st they got handover from the previous nights shift.

Mr Kealey went through the incident report from the previous night where the Complainant had been seen in a skip. He later noticed the Complainant by the Agriculture Science building and did follow him because he was aware of the previous incidents and previous misuse. It was part of his role as the Duty Manager was unavailable.

He followed the Complainant to the material science building. He did not prevent him from going anywhere. The building has a large foyer. Mr Kealey was on the phone to another colleague. The Complainant approached him and he gestured that he was on the phone. Then the Complainant launched into a tirade and accused him of stalking. The Complainant referred to EDI signs but he couldn’t follow everything he was saying. It was an uncomfortable experience and really unexpected behaviour and it was an embarrassing situation to be involved in.

The Complainant did say he was going to the lab and the duty manager spoke to the lab supervisor who confirmed that he was a part of a public study.

He notified colleague Gary Smith who was head of operations at the time. He doesn’t remember specifically asking for the Complainant to be removed from campus but was upset and reported that he was.

Mr Kealey did not deliver the banning letter the duty manager did. He did see it but didn’t write it nor did he make the decision to ban the Complainant. That is made at directorial level.

Mr Kealey has known the Complainant to see for a long period of time.  In 2018 the Complainant was selected as winner of a competition that estates ran and got a bicycle.

He did not engineer a situation to get him kicked off campus. None of their interactions were affected by the Complainant’s race. He decided to follow him because of what had been on the logs from the night before and the previous issues they had had with him.

He was cross examined by the Complainant.

He did not confront the Complainant and wasn’t going to stop him. He was keeping an eye on him because of his recent actions on campus.  It is part of their job to monitor people on site. It’s part of their job and quite common.

The Complainant initiated the interaction that day. He was uncomfortable and embarrassed by the Complainant’s behaviour.  The Complainant did not use foul language but was aggressive and combative.

He accepts that the Complainant apologised to him when he saw him at 5pm that evening and that the Complainant had asked him whether he knew the Respondent in ADJ-00039910 and that he did.

While conducting cross examination the Complainant accepted that he approached Mr Kealey and that he was sitting in the foyer. The Complainant had to get him off the phone and believed that he wasn’t taken seriously in that Mr Kealey did not get off the phone immediately.  

Mr Tristen Aiken gave evidence under affirmation.

He is Chief People Officer of UCD. He reports directly to the President. He makes most HR decisions.

It was his decision to terminate the Complainant.

The Complainant was hired on a research contract. These vacancies are generally handled by the research team who have received funding. HR take a light touch approach to these roles. The hiring academic was not aware of the campus ban. The contract required the role to be done in person.

He had no previous engagement with the Complainant. He became aware of this matter when the Complainant wrote to Mason Hayes and Curran.

At this point he held a case conference. Mr Bostritch was there as was the Director of HR Business Partners. He also took external advice.

He made the decision outlined in Gavin Stanley’s letter and approved the text of the letter. It is normal to have someone lower in the chain to send out the letter. The decision was made because of the need to be on campus to deliver the role and there was an active campus ban in place.

There were emails in which the Complainant appeared to be targeting staff members and this was a factor in the decision to terminate him but it was an additional factor.

He didn’t give specific thought to the potential of remote working. It was a requirement of the role to be on campus. He had no prior awareness of the Complainant’s race and it wasn’t a factor in deciding to terminate the role.

The Complainant cross examined Mr Aiken.

Mr Aiken is not a racist. He understands UCD’s EDI policy he does not believe the ban is in breach of the policy as it relates to the Complainant’s conduct and not any of the protected grounds. He did not engage directly with the Complainant when he made the decision to terminate. He was satisfied that the facts were presented to him by his colleagues. He wasn’t seeking to test the ban but did call a case conference and ask for the background to the ban.

The ban does not necessarily mean any future employment in UCD impossible. It is possible that a remote working roles could be advertised in future.

Mr Gavin Stanley gave evidence under affirmation

He is head of UCD employee relations and policy.

The termination letter was issued in his name.  This is not unusual. He would often liaise with Mr Aiken and sign on his behalf. He did not make the decision to terminate the Complainant.

He was not the Complainant’s employer UCD was. He didn’t know the Complainant or his race.

The ban issued by UCD estate services. The Director of Estates made that decision.

Mr Stanley cross examined the Complainant

He signed letter following discussion with senior management specifically the Chief People Officer.

He didn’t think it was necessary to interview the Complainant before signing. The had a case conference and the estates department explained the background. He felt that the resulting actions were appropriate.

Mr Matthew Jones gave evidence under affirmation

He is a campus duty manager working in estate services. His report from the 30th of May was provided in evidence.  The incident occurred at 9pm during a 12 hour overnight shift.

Mr Jones would recognise the Complainant from the pool where he worked previously. He had been out on foot patrol and saw the Complainant in a skip. It wasn’t a 40 foot skip, it was more like a domestic skip. It was beside residences and duvets were outside having been disposed of in a turnover.

The Complainant exited the skip and he asked him what he was doing. The Complainant said he was looking for valuables. He told him to leave immediately and he did. He cycled off towards the Stillorgan road. He then asked the cctv to keep an eye out for him.

He is sure he recognised him. He had worked at the sports centre before. The entrance checkpoint produces an image for the person behind the desk when a client scans in. The Complainant was using the sports centre daily back when he was working there.  

He did a handover at the end of his shift.

Mr Jones was cross examined by the Complainant

He confirmed that POI is a common term used by the estates staff. It is specific to the incident. Not the person. He does not believe all Chinese people look alike.

Rooting through skips is not activity the university wants to invite. There are a lot of summer students and having them seeing that sort of behaviour doesn’t reflect well.  

He has nothing against the Complainant. He was just the person who was in the skip. He was not instructed to file the report it is part of his role.

Mr Gary Smith gave evidence under affirmation.

His is Head of Estate Services Operations. He has worked for UCD since 2000. He has had no interactions with Pierce Parker but would have heard of his activities.

He wrote the minute of the meeting where the decision to ban him was made. He had spoken to Mr Kealey who was very upset after the interaction earlier that day.

He recommended the ban to Mr Barron who is the Director and who made the decision. He doesn’t know why Mr Barron didn’t sign the letter. It ended up being drafted and signed by legal.

He did know the Complainant’s race at this point as he had been involved in some of the management responses to the Complainant’s allegations in the issues surrounding ADJ-00036331.

The Complainant’s race had nothing to do with the decision to ban him.

Mr Smith was cross examined by the Complainant.

The Complainant referred to the minutes of the meeting concerning his ban. Mr Smith confirmed that he took Mr Kealey’s report of the interaction at its face value and believed it was accurate.

He did not consider asking the Complainant his side of the story, he has implicit trust of Mr Kealey.

Mr Smith was aware of the Complainant’s previous issues with the university. He is not glad to see the outcome of him getting banned but he is glad to see the that the continued misuse of property.

They were concerned he would use the Agriculture science building as he had the specialist research  building he had previously been banned for. He considered this the end of a long road. Estates services were generally relieved when the Complainant ceased being a student and assumed these issues would cease but they did not. He felt enough was enough.

There are a number of potential issues regarding the scope of the Complainant’s complaints and the equal status acts. While the Respondent’s representative has raised some of these by way of legal submissions I also note that the Respondent, his colleagues and his employer were keen to address the accusation of racism directly.

I also note that because of the relationship between these events and the Complainant’s Employment Equality claims the issues will probably need to be determined either way.

Ultimately, having heard all the evidence I believe the appropriate thing to consider the Complainant’s allegation that his exclusion from the UCD campus was in some way linked to his race. I note that he simply failed to outline his allegations of gender discrimination and age discrimination despite having filed them against the Respondent and allowed them to proceed to hearing. That failure does damage his credibility more generally and supports the Respondent position that he fabricates complaints as a means of retaliation against those who thwart him.

The Complainant has a history of sleeping overnight in UCD academic buildings. Aside from this surprising and unusual conduct he also clearly spent a large portion of his day on campus and seems to have permanently or semi-permanently stored his property in communal spaces. In 2021 he had to be excluded from a building due to this pattern of behaviour. As outlined in ADJ-00036331 this was unrelated to his race. He had a long and well documented history of using UCD property in a way that UCD did not approve of. He was well aware of this and was challenged many times.

By January 2022 his focus had clearly moved to the Agricultural Science building. He was found to have made up a bed there and was found to be storing his property there. He kept a bike lock permanently at the building. At this time, he was no longer a student. He was a member of the UCD sports club, but he had no reason to be in any of the academic buildings in UCD. It is clear from Mr Smith’s evidence that the estate’s staff were generally fed up with the Complainant’s behaviour after his 7 year stint as a PhD student.

Mr Jones provided clear and convincing evidence that he saw the Complainant rooting through a skip on the night of the 30th of May. The Complainant denied having done so but offered no other account of the evening. It was not entirely clear during the course of his cross examination of Mr Jones that he maintained the denial. In either event I am not investigating this incident in of itself I am considering it in the context of what had happened on the 31st of May.

On the 31st the Respondent had received handover and reasonably believed the Complainant had been seen in a skip the night before. He and his colleagues were concerned by this ex-student’s behaviour and when he saw the Complainant outside the Agricultural Science building he followed him to the Material Science building. He did not know that the Complainant has signed up to participate in an experiment as a member of the public.

The Complainant does not seem to dispute the detail of what occurred next. He approached the Respondent in the foyer of the material science building. The Respondent was on a phone call and the Complainant was frustrated when the Respondent sought to complete the call before talking to him. The Complainant then accused the Respondent of stalking and breaching UCD’s EDI policy loudly and aggressively and publicly.  The experience was upsetting to the Respondent, something the Complainant seemed to recognise later that day when he apologised to him.

By this time the Respondent the issue to his superiors and they had determined to ban the Complainant from the building. The Complainant has provided no evidence of any kind to sustain his extraordinary allegation that the Respondent had manufactured the incident because of the Complainant’s race.

 The Complainant behaved in a persistently inappropriate way towards UCD’s property. His misconduct resulted in his ban. I see no evidence of any discriminatory factor and I see no basis for the Complainant to have come to that conclusion. The context of his relationship with UCD and particularly estate services was well known to him.

I am of the view that the Complainant has taken the known facts and context of his ban from campus and superimposed allegations of racism without providing any sort of reasonable basis to support the claim.   

I have authority, under Section 22(1) of the Equal Status act, to dismiss a complaint at any stage if I am of opinion that it has been made in bad faith or vexatious or misconceived. On review of the  evidence before me, I am satisfied these complaints must either be misconceived, vexatious or made in bad faith.

CA-00051497-001

I dismiss the complaint pursuant to Section 22(1) of the Equal Status Acts 2000-2018.

CA-00051525-001

I dismiss the complaint pursuant to Section 22(1) of the Equal Status Acts 2000-2018.