THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
James McDonagh and John McDonagh
(represented by Gilvarry & Associates, Solicitors)
(represented by Garavan & O'Connor, Solicitors)
File References: ES/2008/008 & ES/2008/009
Date of Issue: 30th June 2011
Equal Status Acts, 2000 to 2008 - Section 3(1) - Direct discrimination, Section 3(2)(i) – Traveller community - Disposal of goods and provision of services, Section 5(1) – Harassment.
1. Delegation under the Equal Status Acts, 2000-2008
1.1 These complaints were referred to the Director of the Equality Tribunal on the 14th January 2008 under the Equal Status Acts. On 10th November 2009, in accordance with her powers under Section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the complaint to me, James Kelly, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000 to 2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I scheduled a hearing for the 27th August 2010. This hearing was adjourned due to illness on the part of the respondent and a subsequent hearing was scheduled for the 28th January 2011. Both parties were notified by Registered post and were in attendance on the day of the hearing. Final correspondence with the parties concluded on the 12th April 2011.
2.1 This dispute concerns a claim by the complainants that they were discriminated against by the respondent on the grounds of their membership of the Traveller Community, in terms of Sections 3(1)(a) and 3(2)(i) of the Equal Status Acts and in not being provided with a service contrary to Section 5(1) of the Equal Status Acts.
3. Summary of the Complainants' Case
3.1 The complainants, James and John McDonagh are brothers and are members of the Traveller Community. They claimed that on the 25th July 2007 they travelled to the respondent’s petrol station in Castlebar, Co. Mayo to view a car which they had noted was advertised for sale by Mr. McHale. Mr. John McDonagh was interested in purchasing the car and he had rang the respondent in advance on the evening before, and had spoken with Mr. McHale to arrange a visit to examine the car. The complainants both claim that on the day as they arrived at the respondent’s premises they were met by Mr. McHale who had his fists raised in the air and asked them if they were looking for trouble. The complainants claim that they informed him that they were there to look at the car he had advertised for sale.
3.2 The complainants claim that the respondent then “launched” into them and verbally abused them; continually accusing them of being involved in a robbery of his property and another property in the area. They claimed that they could not speak to Mr. McHale “as he was so vexed and full of hate for them”. The complainants claim that Mr. McHale was so irrational that they had a quick look at the car, made their excuses, and left.
3.3 Mr. John McDonagh claims that he had known Mr. McHale prior to this incident as he had lived in the locality for some time and had visited the respondent’s premises on occasion. He claims that Mr. McHale was always giving “smart comments” but he said that he had no real previous problems with him.
3.4 In evidence the complainants produced a recording of some of the conversation they claim they had with Mr. McHale on the 25th July 2007 which was taken on Mr. John McDonagh’s mobile phone. A copy of this audio evidence was submitted to the Tribunal and a transcript was also provided. The recording of the conversation is not from the beginning of the meeting between the parties, it is captured some way into their conversation. They claim that the recording establishes that Mr. McHale accused them of entering his premises and stealing thousands of euros worth of cigarettes. The complainants claim that Mr. McHale was not interested in selling the car to them because of their membership of the Traveller Community and was only interested in abusing them and accusing them of the robbery.
3.5 The complainants denied that they knew anything about the respondent’s claim that he had spoken to the local Gardaí and he was told that a large quantity of cigarettes was found in John McDonagh’s car. They also denied that an uncle of theirs was driving the car at the time. Mr. John McDonagh, when questioned by the respondent’s solicitor about this, denied having reported his car stolen in and around that time. However, then, he recounted in great detail what actually happened on the day when he reported his car stolen to the Gardaí.
3.6 The complainant’s solicitor presented a letter from An Garda Síochána which states that Mr. McHale received an Adult Caution in respect of an incident at Ballyvary on the 25th July 2007.
4 Summary of the Respondent’s Case
4.1 The respondent is the proprietor of a petrol station in Ballyvary, Castlebar, Co. Mayo. The respondent denies that it discriminated against the complainants on the grounds of their membership of the Traveller Community. He claims that he advertised a car for sale and he remembers taking a call from Mr. John McDonagh on the 24th July 2007 where they discussed a visit to view the car the following day and that they also discussed the price he was looking for the car (€3,500 circa.)
4.2 Mr. McHale claims that his premises was robbed some nine months prior to this incident, where a large amount of cigarettes were taken. He claims that the Gardaí informed him that a large quantity of cigarettes was found in one of the complainants’ cars and that the complainants’ uncle was driving the car at the time. However, he said that no one was ever charged with the robbery. He claims that he did put this to the complainants when they arrived to look at the car and he agrees that he did say something along the lines that they should consider doing a collection to help him cover his losses following the robbery. However, he claims that it was said in a jocular manner.
4.3 The respondent stated that he never refused a service to the complainants either in past dealings with them or when they visited to view the car for sale in July 2007. He claims that the complainants had a look at the car and asked for the price, they made him a counter offer and it was they who decided that “the car was dirty” and it was they who decided not to take up the service and terminated the deal. He claims he did not refuse or fail to provide them with a service for any reason.
4.4 The respondent highlighted that he has a long history of dealing with members of the Traveller Community in his shop, including Mr. John McDonagh, and that he continues to do so without any problem and this shows that he does not discriminate on this ground. He went on to say that a sister of the complainants is a valued customer of his business with a credit account and there has never been any problem with any member of the Traveller Community.
4.5 Mr. McHale denies that he ever verbally abused the complainants, that he referred to them as Travellers or accused them of breaking into his shop and stealing cigarettes. He also denied that he asked which of them were in jail.
4.6 Mr. McHale does agree that he received a visit from the Gardaí in relation to the incident on the 25th July 2007. However, he claims that he did not make “a big deal about the visit”; he just thought it was a “trivial matter” and he sent both complainants a letter of apology if they left hurt that his remarks caused them any offence. However, he claims this had nothing to do with the case of discrimination on the Traveller ground.
5. Conclusions of the Equality Officer in relation to the substantive issue
5.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainants. Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainants to establish, in the first instance, facts upon which they can rely in asserting that prohibited conduct has occurred in relation to them. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence made to me by the parties to the case.
5.2 Having regard to the circumstances of this case, the key questions which I must address in considering whether a prima facie case of discrimination has been established by the complainants is whether they were treated less favourably than another person would have been in a comparable situation because they are members of the Traveller Community. On review of all the evidence presented to me it is also apparent that both parties have addressed the respondent’s alleged verbal abuse of the complainants on the day. Therefore, as part of my investigation and in the interest of completeness, I have to address whether the complainant’s allegation amounts to harassment as prescribed as Section 11 of the Acts. In considering these questions and based on the evidence presented, I am satisfied that both of the complainants are covered by the specific ground under the Equal Status Acts.
5.3 I am satisfied that some of the facts before me are not disputed in this case. I note that Mr. McHale and Mr. John McDonagh knew each other before this incident and had dealt with each other in Mr. McHale’s shop and petrol station on occasion before. I am satisfied that there were no previous problems between the parties up to the meeting on the 25th July 2007. I also accept that Mr. McHale had advertised a car for sale and the complainants arranged to view the car by prior appointment over the phone and although Mr. John McDonagh was not sure if Mr. McHale knew it was he that was coming to view the car, he was of the opinion that Mr. McHale knew that it was a “Traveller” that was coming to view the car. Whereas, I note that Mr. McHale claims that he was aware that he was speaking with Mr. John McDonagh over the phone and they had discussed the asking price for the car. I am satisfied the meeting took place on the 25th July 2007. However, this is where the facts of the case become contested, inconsistent and very blurred.
5.4 The complainants have sought to present an audio recording, which was recorded on a mobile phone by Mr. John McDonagh, of the conversation between the parties on the day. The complainants have asked me to admit this into evidence on the basis that it supports their case against the respondent. The respondent objected to the inclusion of this audio recording being admitted into evidence on the basis that the Law requires such evidence to be authenticated before it is admissible and that as it only contains sections of the conversation between the parties and not the full picture that it poses a misrepresentation of events. I note a previous decision of this Tribunal in Laurentiu Engen Iacob –v- The Central Hotelwhere the Equality Officer had to decide whether he should admit an audio recording provided by the complainant into evidence in relation to this case before him for consideration. I note that the Equality Officer in question, having considered submissions from both parties, decided that he was not precluded from admitting such a recording into evidence. Accordingly, I invited and received submissions from the parties in relation to this issue, and having considered these submissions carefully I am also satisfied that I can admit this recording into evidence in the case before me for consideration.
5.5 Both parties have asked me to find in their favour on the basis that the credibility of the other parties’ evidence, which when tested, has been inconsistent, to say the least.
5.6 The complainants have claimed that they were refused a service by Mr. McHale because of their membership of the Traveller Community and that he accused them as being the Travellers who had stolen cigarettes from his shop. I note from the evidence presented that it was the complainants who decided that “the car was not clean” and that they would not meet the asking price (even though it would appear from Mr. McHale’s evidence and from the audio evidence presented by Mr. John McDonagh that they made a bid on the car.) I also note from the audio evidence that there is no reference made by the respondent to the complainants as being members of the Traveller Community. Finally, I have taken oral evidence from Mr. John McDonagh that he never reported his car as being stolen. And then I note that after a number of questions put to Mr. John McDonagh he remembered in great detail the day that his car was stolen from outside his house. Therefore it is clear that there is inconsistency in the complainants’ evidence.
5.7 The respondent has denied that he ever accused the complainants of breaking into his shop and stealing cigarettes. He also denied that he asked which of the complainants were in jail and that he was only joking with them and only made a remark about doing a collection for him as he was out of pockets for the stolen cigarettes. However, I note there is definite evidence that he did directly ask the complainants about which of them broke into his shop and stole his cigarettes and he did ask them whether one of them were in jail. It is also clear that the tone of the conversation is far more serious than the jovial manner that Mr. McHale stated in his submissions to the Tribunal. Therefore it is clear that there is inconsistency in the respondent’s evidence.
5.8 I have to consider all of the evidence and determine on the balance of probabilities if the complainants have established a prima facie case. As noted above there are inconsistencies in both the complainants’ and the respondent’s evidence. Therefore given that the parties account of the events in question are totally contradictory, it is critical for me to make a determination as to what actually took place on the 25th July 2007.
5.9 I note on the referral form to the Equality Tribunal that the complainants have claimed that the respondent “… refused to deal with me in a proposed purchase of a car”. The audio evidence is quite clear and consistent that there was discussion about the sale of the car, the price of the car was discussed and the car’s cleanliness, or lack of, was also discussed and I note from the recording and the evidence from the parties that it was the complainants who decided not to pursue the purchase of the car. Accordingly, I am satisfied that there was no refusal of service by the respondent to the complainants as was claimed and therefore I am satisfied that I cannot find that there was direct discrimination under the Section 3(1)(a) and 3(2)(i) of the Acts.
5.10 It is very clear that the complainants have indicated on the Form ES.3 that they were “… verbally abused and falsely accused ... of criminal acts” and they indicated that this abuse or harassment was because they were members of the Traveller Community. I note that Mr. McHale was visited by An Garda Síochána and he was served with an adult caution. It is not within my jurisdiction under the equality legislation as set out under the Equal Status Acts to determine whether Mr. McHale’s act of accusing the complainants of a criminal act or question whether they were in jail is unlawful. It is clear that this belongs to a different forum. It is only when the complainants can establish that such actions were or conceivably could be linked to one of the grounds of discrimination - the Traveller Community ground, that I have jurisdiction under the Equal Status Acts. I note from the respondent’s evidence that he was informed by the local Gardaí that one of the complainant’s car was stopped while an uncle was driving it, and a large amount of cigarettes was found inside and that is why he addressed the complainants on the 25th July 2007 in the way that he did. I note that some of the language used was unpleasant, aggressive and is not what in common parlance I would regard as “jovial”, as described by Mr. McHale. However, I have to determine whether this amounts to harassment as provided by the legislation, which I have to be satisfied that on the balance of probabilities that the treatment the complainants received was based on their membership of the Traveller Community.
5.11 To assist me in making that determination I considered what the likely situation would have been had the two complainants not been members of the Traveller Community and had the same circumstances still existed. [i.e. had Mr. McHale met with members of the settled community who were under suspicion, correctly or incorrectly of the robbery of his premises. I am satisfied that Mr. McHale in such circumstances would have acted in an identical fashion to the way he did on the 25th July 2007 to the McDonagh brothers.] I believe that Mr. McHale’s approach to the complainants was hostile, unfriendly, unprofessional and far from jovial, as he suggests himself. I am not condoning Mr. McHale’s approach. However, I am not satisfied that this approach was motivated or in anyway linked to the complainants’ membership of the Traveller Community but rather a chance to address persons that he was convinced were under suspicion for an attack on his property. Accordingly, I find that the complainants have failed to establish a prima facie case of harassment contrary to Section 11 of the Equal Status Acts.
6.1 I find that a prima facie case of discrimination and harassment has not been established by the complainants on the Traveller community ground in terms of sections 3(1), 3(1)(b), 3(2)(i) and section 11(5), of the Equal Status Acts and accordingly, I find in favour of the respondent in the matter.
30th June 2011
Laurentiu Engen Iacob –v- The Central Hotel – DEC-E2010-147