Case Number: ADJ-00029039. Workplace Relations Commission

• Judgment Date: 07 September 2022
• Year: 2022
• Docket Number: ADJ-00029039
• Hearing Date: 27 May 2022
• Date: 07 September 2022
• Court: Workplace Relations Commission
• Respondent: Maxol Service Station

Procedure:

In accordance with Section 25 of the Equal Status Act, 2000, following 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.

Background:

On 11 June 2020, the Complainant submitted a complaint of discrimination on grounds of race against the named Respondent in this case. On that date, he submitted 3 pages. 1, 3 and 4 of an ES 1 form alongside details of what appeared to be a request for date under GDPR regulations and tracking details. On 13 July 2020, the Complainant submitted 4 pages from an ES1 form pp 1-4 and details of postage. The claim was notified to the named Respondent on 11 September 2020. There were a number of postponements on both sides in the case. The case was due for hearing in May 2021. The Respondent raised some concern regarding notification of the claim and secured a postponement. At that time the WRC sought access to a “legible “version of the ES1 form directly from the complainant. On 18 May 2021, the Complainant submitted some further handwritten detail which he clarified as “that is an approx. of what is contained in my ES1 form “ The Respondent Solicitor, Ms. Rice wrote to the WRC on 30 July 2021. In this letter. She outlined that the Respondent had tendered CC TV footage to the Gardai of the forecourt accident but had not engaged with either party to the accident. The case came for hearing again on 27 May 2022 following postponements secured. On 24 May 2022, I wrote to the Complainant prehearing seeking a copy of the ES1 form in the case. I asked that he bring three copies to hearing alongside any documentation on which he sought to rely. I repeated this request a hearing as the documents advanced under that guise were clearly fragmented. I will return to this point in my findings and conclusions. On the hearing day, the complainant presented a summary of a background to the case, which he had submitted in May 2021. He also submitted some detail on the Garda Ombudsman procedure he had engaged. I also wrote to the Respondent on the same date, seeking any documents they wished to rely on in the case. I received a response from the first Solicitors on record in the case. They had attempted to forward the “License Agreement “by email but this was not possible. The email confirmed that, “Term of the license Agreement was set out in paragraph 4.1 dated as 7 March 2020. The license reflected an agreement between Maxol Ltd and Herlihy’s Forecourt ltd They indicated that they were keen to secure the attendance of Garda Mc Carthy at hearing. The Respondent legal team (Agents) present at hearing did not advance this document and introduced the Respondent as a Licensee in charge of the Service Shop, which was Folio registered. On the conclusion of the hearing, I wrote to the Parties. On this occasion, I formally requested the notification of the car accident to the Insurance Companies and the status of those reports. This had featured in the Complainant’s evidence. I received a brief response dated 9 June 2020, which was shared with the Respondent, but did not attract a comment in response. I was unable to draw much detail from what the complainant submitted. I also requested that either party provide a record of the date of notification of the penalties to Ms. A. Neither party was able to provide that information.

Summary of Complainant’s Case:

The Complainant outlined his case that he was an Irish Black person who had been involved in a car accident on the forecourt of the Respondent Petrol station. He submitted that the Manager of the Garage provided CC TV footage to the Party involved in the accident, who was white. He said that he had been denied this footage because of his race. He said that he had been treated less favourably than the white lady, involved in the forecourt incident. The Complainant clarified that he was a litigant in person, with some legal training and would have one witness, who was late in attendance at hearing. The topic of the ES1 form continued to be of interest in the case. When asked to demonstrate the ES1 form, the Complainant submitted that it was lodged on 5 May 2020. It consisted of 14 pages and submitted a blended mix of a part ES1 and part WRC complaint form. I then proceeded to explain my jurisdiction under Section 21 of the Equal Status Act Evidence of the Complainant, on oath. The Complainant clarified that the earlier named Representative on record in the case was not attending the hearing and he proceeding as a Litigant in person. The Complainant outlined that on February 25, 2020, while he was present in the Respondent garage forecourt, a white woman reversed and collided with his car at the rear. The lady, Ms A, admitted liability and they exchanged insurance details. Both agreed to contact their respective Insurers for repair of their cars. The Complainant had been attending this Garage for 13 years. The Complainant submitted that both Insurance companies were on notice of the incident. Subsequently, he said Ms A refused to take his phone calls. Three days after the incident, the Insurance Agent for Ms A visited his home. She said that she had inspected the car and seen the CC TV footage. She said that the lady in the other car was ready to accept liability. On 5 March 2020, the Complainant submitted a data access request for the CC TV footage at the Garage but did not receive a response to his request. He was provided with the contact’s name of “Stephen “at head office. He said he spoke with Stephen during 2020, but he had hung up on the phone. The Complainant confirmed that his car was fixed in June 2020.It cost €1,500. He also confirmed that a Personal Injuries claim was in being as a result of the forecourt incident. The Complainant made a Statement under caution with the Gardai. He made a further complaint about this to the Garda Ombudsman, but later withdrew this when he was informed that the lady in the other car had been given a fixed notice and 5 penalty points. He was unable to identify the dateline associated with this withdrawal. He contended that he was purposefully excluded from accessing the CC TV footage due to his race. On 6 April 2020, the complainant told the hearing that he had accused “Mike “(Nick), a Chinese worker at the Garage of his discrimination. He said he was denied the CC TV footage by the garage. This conversation lasted 5 minutes. He recalled that the witness, Timi Olan was on his break at the garage and observed this interaction. The Complainant submitted that he forwarded the ES1 form on April 30 and confirmed postage. The Respondent refused to issue an ES2.Nick told him that he had passed the ES1 to the Manager He said that both the Insurance Agent and Ms A were white. The Complainant went on to set out that he had made a complaint before the Data Protection Commission, which remained live, but he had been informed to await the outcome of the WRC complaint. The Complainant was invited to exhibit any relevant documents in this regard, but none were exhibited. Cross Examination: Counsel for the Respondent asked the Complainant when he had filled out the ES1 form? The Complainant said that he had demanded CC TV footage on 28 February 2022. He was unsure of the ES1 date and referred to 9 March 2020. He added that the Insurance Agent had visited his home and the Insurer had covered the cost of his car repair. The Agent had told him during the month of March that she had seen the cc tv footage. The Complainant confirmed that he had not been provided with a reason on why he could not access the CC TV. The Complainant in response to Counsels questions regarding the data access request, confirmed that he had registered the first application. He subsequently changed this to his having “handed it in “He added that he had registered the second application. The Complainant said that on March 9, he was given a contact number. He confirmed that he had ultimately secured the CC TV footage but in the early aftermath of the incident, the Respondent had aided the Insurance Agent, which gave her more power. The Complainant disputed that the Respondent was not served with ES1...