ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00032623
Parties:
| Complainant | Respondent |
Parties | Katie Byrne | Express Check-Out (Kells) ULC trading as O' Brien’s Super Value |
Representatives | Self-Represented | Michelle Loughnane , Solicitor of Mullany Walsh Maxwells LLP |
Complaint
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00043052-001 | 13/03/2021 |
Date of Adjudication Hearing: 05/10/2022
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and 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.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties.
Full cross examination of Witnesses was allowed and availed of.
There were no issues raised regarding confidentiality in the publication of the decision.
Regrettably the preparation of the Adjudication decision was delayed due to a Covid situation.
1: Background:
The case concerns a complaint of Discrimination under the Equal Status Act, 2000. The Complainant stated that she has a medical exemption from wearing a Covid facemask. Despite this she was refused entry to the Retail Premises on the basis on not wearing a face mask. This was Discrimination on the basis of her Disability and a Refusal to Offer Reasonable Accommodation. The incident took place on the 23rd January 2021.
The Complainant was not seeking any Financial award rather an Apology from the Retail Store in question for their alleged Discriminatory actions.
The Store in question, an independent member of the Super Value chain of Stores completely refuted all the Complainant’s allegations and resolutely insisted that no Discrimination had occurred on the 23rd January 2021. |
2: Opening Legal Points
Legal Identity of Respondent Company.
The Respondent Legal representative, Ms. Loughnane, pointed out that the Complainant CA-00043052-001 had been lodged against “O’Brien’s Super Value” and or on the ES1 form “O’Brien’s Super Value Kells”. Neither entity has a legal existence, The correct name of the Respondent is “Express Check Out (Kells) UC”. This name is easily available on public Company Law websites such as Vision Net or the CRO etc.
Accordingly, the Complaint lodged CA-00043052-001 has no legal standing as it is against a Party that does not legally exist.
The Respondent pointed to the hypothetical situation of the case being Appealed to the Circuit Court. It would have a very high probability of being simply dismissed on this Legal point.
In Response the Complainant argued that the name “Super Value Kells” was over the Door of the Premises and was on all Receipts, Bank/Credit Card dockets etc.
It was the name that the Shop had used for years, and it was basically a cynical tactic of the Respondent to bring this argument up at this late stage.
The Adjudication Officer indicated that he would consider this matter, but the case should proceed, nonetheless.
3: Summary of Complainant’s Case:
The Complainant represented herself and gave a detailed oral testimony supported by a range of documentary materials. On the 23rd January 2021 she, accompanied by her mother and toddler nephew, was in the queue outside Super Value, Kells. She was not wearing a facemask. She was approached by staff member Ms D and Security Officer Mr K and informed that she could not enter the Store unless she wore a mask. They were well aware that she had a Medical exemption but ignored this fact. They stated “I know you have a medical exemption for face coverings, but we are not letting you in”. A number of weeks earlier she had offered to show the Store Owner, Mr. O’Brien, her GP letter, but he had shown little intertest and simply allowed her to proceed into the Shop. The conversation of the 23rd January took place in a very public space and resulted in severe embarrassment for the Complainant. She had then returned to her car and contacted Super Value Head Office on Facebook. An operator there, who had answered her phone call, assured her that she could enter the Store once she had a Medical exemption. In the interim she had met a member of the Gardai who had also advised her she could proceed provided she could produce and show her exemption to the Shop. She returned to the Store with copies of the Super Value HQ texts and the verbal report of the Guard, had offered to show her GP letter but was again refused entry. Some colourful language had taken place for which she apologised. On the 1st of February 2021 she posted an ES1 from to the Complainant Store but by the date of the complaint referral, the 13th March 2021, had not received any reply.
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4: Summary of Respondent’s Case:
The Respondent was represented by Ms Loughnane. A written submission was presented and supported by Oral testimony from Ms O’R and Mr O’B, Shop Managers. The opening point regarding the correct “Legal Persona” of the Respondent is touched on above at Section 1. Ms Loughnane refereed to Sections 3 and 4 of the Equal Status Act ,2000 to make the point that no discrimination as defined in the Act actually took place. All Reasonable Accommodation was provided for any Shop usersunable for whatever reason, disability or not, to use the Shop in a standard manner. Click and Collect, Home Delivery etc were all available. Attention was dawn to Section 4 (1) of the Act “where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination” In this context asking customers to wear face masks, in keeping with Government guidelines, in SI 296 of 2020 and SI 20 of 2021 was perfectly reasonable and not in any way discriminatory. In addition, the Shop had to have regard to the Safety, Health and Welfare at Work Act,2005 regrading the Safety of their own staff. Many of the Staff had vulnerable family members at home and could not allow breaches of the Covid defence regulations in their place of work. The Respondent pointed to a lengthy list of precedent cases in this area. The case of Eilis Ronan v O’Gorman and Co Ltd ADJ 34652 was quoted in particular as was McGrath v Aurivo Co Op /Homeland Adj 33207 both landmark decisions. The issue was that SI 296 of 2020 and SI 20 of 2021 were effectively the “Law of the Land” making mask wearing compulsory. The Equal Status Act defines Disability in Section 2 and the five grounds for Discrimination -Section 4 (1). None of these apply to the Complainant in this case and in the event, that even if so, were more than comprehensively provided for in the “Reasonable Accommodation” provisions of the Store. If you could not wear a mask in the Store, the legal requirement/position, there were reasonable steps provided to assist a customer in completing their shopping. The Respondent also pointed to the aggressive behaviour of the Complainant, pushing shopping trolleys etc, on her second visit to the Store. Oral Testimony from Ms O’R and Mr O’B reiterated all the points made above. Mr. O’B emphasised his personal circumstances with family members suffering from ill health and his accordingly very strong emphasis on all proper Covid defence matters. It was accepted that prior to the 23rd January 2021 the Complainant may have been allowed into the Shop without a mask, but this had changed due to subsequent Customer and indeed Staff Health & Safety concerns. A number of staff had “vulnerable” family members at home and were most anxious regarding Covid. In closing comments the Legal Representative argued that the proper focus for the Complainant’s complaints should have been the various Statutory regulations rather than a baseless claim of Discrimination under the Equal Status Act, 2000. |
5: Findings and Conclusions:
5:1 Opening Legal Point – The correct “Legal persona” of the Respondent. The Respondent Legal Advisor, Ms Loughnane, was technically correct in her evidence. The “Legal persona” of the Respondent is and was Express Check-Out (Kells) Unlimited Company. However this has to be weighed against the fact that the Store in question has traded for many Years as “Super Value ,Kells” with , as pointed out by the Complainant, customer bank /credit card receipts using this name. On the day of the Oral Hearing the Store appeared at the Hearing, ready to proceed, with a full line up of Managers as witnesses. In discussions with the Adjudication Officer and the Complainant it was agreed on the balance of convenience and reasonableness, to let the case proceed. However, the Respondent wished to have their Legal objection/ position on this point clearly noted, 5:2 The Legal position-Equal Status Act,2000 and Legal precedents. Sections 2, 3 and 4 of the Equal Status Act, 2000 are pertinent. The key is in Section 3 (1) where it is stated that discrimination shall be taken to occur 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 listed in sub section (2) Disability Section 2 (1) is defined as “disability” means— (a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurement of a part of a person’s body, (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or (e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.
Section 4 is also relevant Discrimination on ground of disability. 4.—(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service. (2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question. (3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination. (4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.
Section 38 A is also relevant where the Burden of Proof is placed on the Complainant to establish, in the first instance a prima facie case or essentially a reasonable inference that Discrimination Occurred. The Leagl precedents cited are informative and persuasive. ADJ-34652 is a good example. Ronan v O’Gorman and Co Ltd trading as O’Gorman’s Super Value as is ADJ -35055 Carberry v O’Huiginn & A Comlucht Teo. In essence the Adjudicators in these cases drew attention to the major and required distinction between a case involving Discrimination (with all the necessary proofs required) and a case such as this basically, at its core , challenging the Mask wearing regulations of the Government, SI 20 of 2021 and SI 296 of 2020. In this case, having listed carefully to all the Arguments, both Oral Testimony and Written materials submitted it was hard to see a properly set out case of Disability Discrimination (as set out in Sections 2,3& 4 of the Act quoted above). The GP letter of the 20th July 2020 could not be seen as a comprehensive proof of a Disability. Accordingly it was challenging, for an Adjudicator ,to see which of any of the grounds listed in Sections 2 & 4 of the Equal Status Act 2000, (above ) could be seen to apply directly and convincingly to the Complainant. Even if this Discrimination complaint was allowed by the Adjudicator the Reasonable Accommodations provided by the Store/Respondent were more than adequate. Mask Wearing rules and regulations, is and was an issue, set out by Law in the Statutory Instruments, as stated “The Law of the Land” The Complainant in this case may feel she has grounds for a Complainant against the Minister for Health, the author of the SIs referred to. This area is not the remit of the WRC. 5:3 Adjudication Conclusion In conclusion a prima facie case of Discrimination as required by the Equal Status Act, 2000, against the Respondent in this case has not been made out and the Complaint has to fail.
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6: Decision:
CA: 00043052-001
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
A case of Discrimination has not been made out.
The Complaint fails.
Dated: 02nd March 2023
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Equal Status, Discrimination, Covid Mask wearing, SI 20 of 2021 and SI 296 of 2020. |