ADJUDICATION OFFICER DECISION
A Service Provider
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 25 of the Equal Status Act, 2000following 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. Given the sensitivity of the issues involved in the within complaint, I have exercised my discretion to anonymise the names of the parties.
The complainant is alleging that he was discriminated against by the respondent in relation to access to a service on the basis that he is a member of the Traveller community.
Summary of Complainant’s Case:
The complainant submits that he attended the Trim civic amenity site on 17 September 2018 and in the process of unloading items, he was approached by a member of staff who made comments to him that he was putting items in the wrong place but would not let the complainant respond. The complainant states that the staff member said that “Travelling people are coming in and they are all knackers”. The complainant states that he replied that he was not a knacker, that he is a human being. The complainant submits that this conversation caused him great upset. The complainant states that after he left, he advised the Gardaí of the incident and he understands that the Gardaí attended at the site.
The complainant states that he attended the site again on 24 September 2018 but that he was informed that he was barred from entry. The complainant submits that he called the Gardaí who attended. The complainant states that the staff member advised that his boss told him to tell the complainant he was barred. The complainant states that the staff member said that he had made false allegations which is untrue. The complainant states that there was no barring order made against him. The complainant states that on the same day, he attended the Navan civic amenity site and was allowed access. However, on 29 September 2018, he attended the Navan site and was informed that he was barred from there also. The complainant states that he then attended the Kells site and was refused entry and told he was barred. The complainant submits that he was forced to drive as far as Dunboyne to use a facility there which is not operated or owned by the respondent.
It was submitted on behalf of the complainant that while the respondent has invoked section 15 (1) of the Equal Status Acts; this section is a high threshold to meet with regard to substantial risk. The complainant states that he did not act aggressively nor was he threatening in any way towards staff of the respondent. The complainant submits that he was discriminated against by being refused entry to the respondent sites on the basis of his membership of the Traveller Community.
Summary of Respondent’s Case:
The respondent outlines that it provides a professional and reliable waste collection service to customers across Ireland. In addition, the respondent provides consumer recycling and waste services at several civic amenity sites across the Midlands and North East. The sites in Co. Meath are located at Kells, Trim and Navan. The respondent states that each of the sites has clearly labelled sections for various waste types and waste types are also visible in each section which minimises issues with people putting the wrong waste in the wrong places. The respondent asserts that each of its sites has a clear sign stating that abusive language or aggressive behaviour will not be tolerated on site and may lead to a person being barred from site.
The respondent submits that the complainant visited the respondent’s civic amenity sites in three locations on several occasions prior to August 2018 and was repeatedly, but politely, requested to put the correct waste types in the correct sections of the yard. The respondent asserts that each waste type is clearly labelled and the type of waste each section holds is clearly visible (e.g. there are washing machines and electrical goods in the section labelled “Electrical Goods”). The respondent submits that in response, he was verbally abusive towards staff and his responses were to say he would “do whatever he wanted” or words to that effect.
The respondent submits that the complainant visited its civic amenity site in Trim on 27 August 2018 and the senior operative on duty on the day Mr. N noticed the same issues with the complainant as before (i.e. wrong waste type being put in wrong place). The respondent states that Mr. N spoke to the complainant to explain the position and in response the complainant responded in an aggressive manner. The respondent states that the complainant chose to ignore the direction he had been given in relation to proper disposal of his waste and continued to inappropriately address the operative. The respondent submits that as a result the complainant was barred from the respondent’s sites because the operative in charge deemed it likely that to allow the complainant entry in future was likely to produce a substantial risk of disorderly behaviour. The respondent submits that the complainant had been aggressive and threatening in his behaviour and language towards the operative on site, in response to the operative having calmly and politely asked him to properly dispose of his waste. The respondent contends that this conversation was within earshot of another operative, Mr. R.
The Manager of the sites in the North East, Ms. R was not on site during this incident. Ms. R confirmed that she would uphold the decision by the senior operative to “bar” the complainant as she was aware of the complainant and that he had made aggressive approaches to staff on a number of occasions. Mr. R stated that she felt she had a duty of care to protect her staff in line with the Safety, Health & Welfare at Work Act, 2005. The respondent submits that the complainant arrived on various sites on dates between 17 September 2018 and 24 September 2018 and was refused entry as he was known to be “barred”. On 24 September, the complainant attended on site and was informed by Mr. N that he was no longer welcome on the site. The respondent states that the complainant became abusive and Mr. N indicated that he would call the Gardaí. The respondent asserts that the complainant told him not to bother that he (the complainant) would call them. The respondent submits that as a result of the complainant’s behaviour, Mr. N locked himself in the office and called the Gardaí who were already on the way. The respondent submits that after the Gardaí arrived, the complainant ultimately left but complained of being discriminated against.
The respondent asserts that the complainant appears to allege that an inappropriate and derogatory term was used in relation to his membership of the Travelling community. The respondent submits that this is denied in the strongest possible terms. The respondent states that this word was not used by any operative of the respondent in their dealings with the complainant at any time and in fact the only person who used the word was the complainant himself.
In conclusion, the respondent submits that it “barred” the complainant on 27 August 2018 because of the reasonable belief (based on past experience of his visits and his particular behaviour on the day) that if allowed on site the complainant would be likely to engage in disorderly behaviour on its premises. The respondent submits that “barring” any individual is not discrimination in and of itself and the respondent holds that as a service provider, it has a duty of care (to the public and to employees) and can refuse entry to its premises for a variety of good and valid reasons such as disorderly behaviour. In the year 2018, the respondent has “barred” 3 other individuals, for similar behaviour to that shown by the complainant, none of them are members of the travelling community and this fact further contradicts the complainant’s assertion that he was barred based on his ethnicity. The respondent submits that it has many service users who visit its civic amenity sites, from a variety of differing ethnic backgrounds. It states that there are many members of the travelling community who use the respondent’s services and continue to be welcomed on its sites. It is the respondent’s position that the complainant was not discriminated against.
Findings and Conclusions:
The matter for decision is whether the respondent discriminated against the complainant by its refusal to allow him on site on the basis that he is a member of the Travelling community and that the company excluded him based on ethnic origin. I must first consider whether the existence of a prima facie case has been established by the complainant. Section 38A of the Equal Status Acts, sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. 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.
Section 3(1)(b) of the Acts provides, inter alia, that discrimination shall be taken to occur where:
“(1) For the purposes of this Act discrimination shall be taken to occur –
(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B), in this Act referred to as the ‘discriminatory grounds’ … “
Section 3(2) of the Acts provides that:
“(2) As between any two persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are:
(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),
(i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”).
It was accepted by both parties that the complainant is covered by the Traveller community and race grounds. While the complainant states that the incident occurred on 17 September 2018 this was disputed by the respondent who maintained that it happened on 27 August 2018. Having adduced the evidence, I am satisfied that the alleged incident occurred on 27 August 2018 based on the contemporaneous note in the respondent’s site diary which was submitted in evidence at the hearing.
Mr. N gave evidence stating that he has been working at this site for 15 years and this was his first occasion that he had cause to bar a person from the premises. Mr N refutes the allegation that he called the complainant a “knacker”. Mr. N stated that there is a halting site close by and that members of the Travelling community use the facility quite frequently and he has a very good relationship with them and on a first name basis with them. It was submitted that circa 25,000 customers use the site on a yearly basis. Mr. N states that there have been ongoing issues with the complainant and how he disposes of waste in the various bins and he continually puts waste in the wrong bins and flouts the house rules. Mr. R gave an example of the complainant placing a microwave in the scrap metal bin instead of putting it in electrical waste as it is a hazardous item. On the date of the incident in question, Mr. R, a general operative states that he was in the vicinity when he heard the complainant raising his voice and being threatening towards Mr. N.
Ms. R (Manager of the respondent’s three civic amenity centres) gave testimony stating that she returned from holidays on 29/30 August and the issue regarding the complainant was brought to her attention. She states that over 88,000 customers use their three sites per year. She states that about a quarter of its customers are of an ethnic background. She states that once a person is barred from a particular site then they are barred from all three sites. She stated that with regard to the operation of its civic amenity sites, only 3 persons have been barred and the other two persons are not members of the Traveller Community. Ms. R stated that her decision to bar the complainant was based on the complainant’s repeated aggressive behaviour and her duty of care to protect staff in line with the safety, health and welfare at work legislation.
Having carefully considered all the evidence in the instant complaint, I prefer the evidence of the witnesses on behalf of the respondent as I found their testimony more cogent and convincing. I am cognisant that only 3 persons have been barred from the respondent sites and the other two persons are not members of the Traveller Community. I note how rare it is for the respondent to undertake such a measure as to bar an individual. I also accept the evidence of Ms. R in relation to the respondent’s duty of care to protect staff in line with the Safety, Health and Welfare at Work Act. I further note that Mr. N stated that he had a good relationship with members of the Traveller community who are in a halting site adjacent to civic amenity centre and who use the facility and that he is on a first name basis with many of them. Taking all these factors into account, I find that the complainant has not demonstrated a nexus in relation to his ethic origin (membership of Traveller Community) with regard to the refusal of the respondent to allow him entry to its civic amenity sites. Accordingly, I find that the complainant has not established a prima facie case of discrimination and his case fails.
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
I find that the respondent did not discriminate against the complainant on the race or Traveller community ground within the meaning of Section 3 of the Acts.
Accordingly, I find in favour of the respondent in this case.
Workplace Relations Commission Adjudication Officer:
Equal Status Acts, race, Traveller community ground, prima facie case