Complainant

Respondent

Anonymised Parties

A service user

An accommodation service

Representatives

Self-Represented

Simon McArdle

McKenna McArdle Solicitors LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00060353-001

30/11/2023

The complainant and two witnesses for the respondent undertook to give their evidence under affirmation.  Two further witnesses for the respondent gave their evidence under oath.  Cross examination was facilitated for all witnesses.

This decision has been anonymised as there is a possibility that an asylum seeker may be identifiable from the details of the complaint.

The complainant submitted that he was discriminated against when the staff of the respondent used the phrase ‘black bastard’ to him on 19 July 2023.  The security staff came into his personal space, took his phone and deleted a video.  He submitted that the respondent did not bring in CCTV footage as evidence to prove themselves innocent of the charge of racial discrimination.

The complainant submitted that he never drank alcohol

Relevant oral evidence:

The complainant stated that he was due to come back to his accommodation at around 11 pm on 18 July 2023, the security guard got aggressive with him as he did not have late permission to return.  However, the complainant went to his room to sleep.  The next day he sought out the manager to complain but he was not there.  He was met by a security guard and he indicated that he wanted to meet the manager, but they immediately said no and started to get aggressive.  He stated that they told him ‘Where to go’ and used a specific phrase, including a racial slur.  They grabbed his phone and deleted the video he had taken and went to the trash folder and deleted it there too.  He stated that they took the phone by force.  He stated that he was afraid for his life and that there were three of them.  He went to the police station and as he left, he saw the manager and a security guard going into the police station.

He had to wait outside the hostel as the security team refused him entry and brought the remainder of his personal belongings down.  They had given the phone into the police station as they had kept it earlier.  He then returned to the police station to get his mobile phone.  He stated that the whole situation amounted to discrimination and racism in that they used a racial slur.

The complainant stated that the respondent should have brought CCTV with them.  He noted that the manager did not help him out in any way.  He stated that the respondent threw his stuff out.  He confirmed that he has never tasted alcohol and never used vulgar language.  He stated that the respondent’s version of events is a fabricated story.  He confirmed that he did not know where the security guards were from and so could not say who is from where.  The complainant also indicated that he had previously taken a case against a banking institution.

Under cross examination it was put to him that he had previously made a case that was held to be unfounded, and it was put to him that he had misrepresented matters there and that maybe it was misrepresentation now.  He was asked why, if his exclusion from the hostel was racially based, why he never mentioned this previously, why did he not mention the phrase used?  It was put to him that evidence of the phrase being used was not mentioned in either the ES1 form or the application.  In response the witness stated that the evidence was on the phone but had been deleted by the security staff.

The complainant was asked why he put down multiple grounds on the ES1 form but responded that he had completed it on his own.  It was pointed out the complainant that 30% of users of the hostel are single black men.  The complainant confirmed that he sought permission for a late return (prior to 11 pm) but it was put to him that he did not return at that time.  It was also put to him that he was drunk upon his return, but he denied that assertion. 

It was put to the complainant that there was an altercation the previous night, but he stated that the security guard was aggressive with him.  He was asked why he went to the police station and noted that the security guard the following morning had taken the phone off him by force.  The complainant was asked why he took a complaint to the WRC rather than a criminal complaint and responded that he would rather go to the WRC.  In reply to the respondent representative noted that the complainant knew enough to weigh up a criminal charge about the phone versus an equality complaint and thought it would be easier.  It was then put to the complainant that he was padding out the case, but he denied that saying it was not true and that the representative was putting words ‘on him’.

The witness was asked if he accepted that there was an incident when he returned the next day and agreed that there was.  It was put to him that he was involved in two incidents, one when he returned with alcohol on him and another the following morning.  It was put to him that he took umbrage at being asked about consuming alcohol.  It was put to the witness that the incident report form was filled out by the security staff before the end of their shift at 7 am and in included a note of the complainant using racist language to the security men the night before.  The complainant noted that if there was no investigation with both parties then the process was biased, and it was racially motivated.

The respondent submitted that the complainant was excluded from its premises because of two incidents and on foot of the complainant’s use of racist language.  It was submitted that there is a conflict of the complainant’s evidence and that there is a question of his credibility in that he appears to have thrown everything into the mix during the hearing but did not make reference to certain of the matters at all in the written submissions presented prior to the hearing. 

The respondent also submitted that the complainant indicated to gardai that he wished to pursue a criminal complaint relating to his phone but that this was nothing to do with the colour of his skin rather it was to do with the complainant’s conduct.  The respondent submitted that when the complainant returned to the accommodation on the evening of 18 July, a smell of alcohol was noted and accordingly, they were entitled to ask questions.

The first witness for the respondent was one of the security staff.  He stated that he worked his shift from 7pm to 7am.  He stated that when the complainant came back, he was stumbling a little and was asked whether he was drunk.  The witness noted that there was a smell of alcohol from the complainant.  He noted that he only let the complainant in because of the bad weather outside.  He noted that the complainant became adversarial and subsequently asked to leave for two minutes to consult his lawyer.  He stated that he wrote the note before the end of his shift.  The witness confirmed that his colleague did not become involved in the interaction as he remained on a nearby sofa.

Under cross examination he was asked why he did not note the complainant taking the time to ring his lawyer in the diary of events.  He replied that he forgot to put it there.  He confirmed that the complainant called them ‘Brazilian bastards’ but did not know why.

The second witness for the respondent was the other security guard on duty.  He was asked what he heard and noted that he heard his colleague ask the complainant if he had any drink taken.  He heard the complainant ask who he (the colleague) was and where was he from.  He also recalled hearing the complainant say that the first witness had no right to ask him about alcohol and heard his reply that he had to ask the question.

Under cross examination it was put to the witness that he had said “you call your lawyer”.  He confirmed that the complainant asked them where they were from and immediately afterwards used the phrase “Brazilian bastards”.

The third witness for the respondent was a security guard and noted that he only works the day shift.  He stated that he was working the following morning and was working with a colleague when the complainant came seeking the names of the night security staff.  He then used the phrase ‘Brazilian bastards.  He was asked to leave the premises to calm down.  He was told that the cameras are there for everyone’s protection and was told that he couldn’t record the witness.  The witness confirmed that he took the complainant’s phone but stated that he didn’t delete a video.  He noted that the complainant had left the building at that point.

Under cross examination the witness was asked why he took the complainant’s phone and respondent that the complainant had invaded his personal space, so he took it.  He confirmed that there was no note of his having taken the phone in the diary entry of the incident.  He noted that the complainant did not ask for his phone back but left the premises.  He confirmed that he did not know anything about the incident of the night before, but he had read the report on it.

The fourth witness for the respondent was the manager.  He stated that when he arrived to work the complainant was sitting outside.  He noted that he had been briefed by text to his phone about the situation.  He asked the complainant for 5 minutes to consider matters and to read the diary entry.  He couldn’t recall giving the complainant permission for a late return.  He stated that he made a decision to exclude the complainant from the building for his racist comments towards staff.  He gave the complainant a freephone number for emergency accommodation and excluded him from the premises for 6 months.

The witness confirmed that 90% of hostel users are non-nationals or non-Irish.  He noted that 60% of users are black men.  He stated that the reason that he excluded the complainant was for his racism and aggression towards staff.

Under cross examination the witness confirmed that he didn’t remember giving the complainant permission to be out late.  He was asked why he refused to talk to the complainant and noted that he wanted to see the reports.  He confirmed that he spoke briefly to the complainant who was sitting outside before reviewing the reports.  He noted that he sent an email to Dublin City Council and went to the complainant to inform him of this.

He stated that he went to the local Garda station to hand in the phone noting that it was taken as the complainant was trying to record staff in a private workplace.

The witness confirmed that he considered the complainant’s acts as amounting to gross misconduct toward staff and excluded him.  As to what amounts to gross misconduct he stated that it would depend on the circumstances.

The complainant submitted that he was discriminated against when staff of the respondent organisation used racist language against him and excluded him from the hostel where he was staying. They took his phone and deleted video from it. The complainant submitted that the staff did not bring in CCTV evidence which could have showed that they were innocent. He stated that he never drank alcohol and that the story against him was fabricated. He stated that he didn't know where they were from, and it accordingly could have not engaged in racial abuse himself. He submitted that he is still suffering from the consequences of these acts.

The respondent submitted that the complainant was excluded from their service is not on the basis of his race but on the basis that he used racist language against its staff. The respondent submitted that there is a question of credibility on the part of the complainant in that he threw the kitchen sink at this complaint and that he doesn't mention a single piece of evidence prior to the hearing. He never mentioned the phrase “black bastard” in the documentation submitted prior to the hearing.

The respondent submitted that the complainant had taken a previous case against the bank which was held to be not well founded and this undermines the veracity of his complaint. The respondent submitted that he did not want to pursue a criminal case against its staff as an equality claim would be easier to establish. It was noted that the complainant’s exclusion from the services was not related to his race but on the basis of his conduct when he returned back to the accommodation smelling of alcohol.

The present case is one where the evidence of the complainant is at odds with the evidence of the respondent. There were 4 witnesses for the respondent who all had the same or similar accounts of the incident the night before and of the incident on the day the complainant was excluded from the accommodation services of the respondent. The respondent submitted a document in support of its version of events. However, I note that the documentation submitted does not support the version of events put forward by the respondent.  The diary entries do not appear to be contemporaneous in that a later diary entry was supposed to have been written before an earlier entry.  However, the earlier entry makes reference to something that happened after the later entry.  Logically this could not have been the case.  Therefore, I find it highly improbable that the diary entry was written at the time that a number of the respondent’s witnesses stated that it was.  This brings the oral evidence of several of the respondent’s witness into question.  Additionally, the note of the complaints against the complainant were not written by the people who made the complaints but were compiled, after the fact, by a manager.  This is evidenced from the use of language in the account but also on the basis of the oral evidence of the respondents witnesses who indicated that they had already left for home when the manager came into work.  This calls into question the whole process by which the manager considered the complainant’s exclusion from the accommodation

I also note that the respondent suggested that the complainant never mentioned the exact racist phrase used against him before the hearing, however he did make reference to it in the original application forms submitted to the WRC and in the ES1 form submitted to the respondent.

In addition, there is also the issue of the mobile phone which was taken from the complainant. He stated that he had a video of how he was being treated and a witness for the respondents stated that the complainant was taking a video and that is why he took the phone off him. He stated he did not delete the video, however someone did, the video was not on the phone when the complainant received it back. The complainant submitted this video captured the respondents staff using racist language. 

On the basis of the foregoing, I prefer the complainant's account of events. Although the complainant himself may have used racist language the night before, the respondents’ witnesses do not appear credible when the alleged contemporaneous documentation is considered. As to the use of racist language on the part of the respondent’s security staff, the question remains as to why the complainant’s phone was taken, and a video was deleted if it did not show questionable behaviour on the part of the respondent’s staff.

As to the exclusion of the complainant the respondent’s accommodation, this appears to have been done without recourse to any, or any proper, investigation on the part of the respondent.  It was made on the word of the respondent’s staff without the manager having considered the submissions of the complainant.

On the basis of the foregoing, I am satisfied that the complainant has raised facts from which it may be presumed that discrimination has occurred against him. For their part the respondent to my mind has not provided evidence to rebut the inference of discrimination.  Accordingly, I find that the complainant was discriminated against.

In all the circumstances of this complaint, I am satisfied that an award of compensation of €2000 is appropriate for the effects of the prohibited conduct concerned.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was discriminated against, and I award him compensation of €2000 for the effects of the prohibited conduct.

Equal Status Act – credibility of witnesses - discrimination established – award of compensation