ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00046923
Parties:
| Complainant | Respondent |
Parties | Karl Fallon | Tesco Extra Drogheda |
| Complainant | Respondent |
Parties | Karl Fallon | TESCO |
Representatives | Catherine Lynch | Dajana Sinik IBEC |
Complaint(s):
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00057231-001 | 14/06/2023 |
Date of Adjudication Hearing: 17/07/2024 & 01/04/2025
Workplace Relations Commission Adjudication Officer: Brian Dalton
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015,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:
The complaint relates to an alleged incident that occurred on the 2nd of September 2022 relating to a Covid test, that on the following date he was forced to take a Covid test, and that on these dates the actions of the Respondent it is alleged were discriminatory and he asserts that this discrimination is continuous. The complaint was lodged on the 14th of June 2023 which is outside of the statutory 6-month window to lodge a complaint.
The Complainant has submitted medical documentation from his GP that states that the Complainant has a learning disability.
The Complainant is assisted by a next friend and states that due to his learning disability his claim was lodged late and seeks an extension of time as provided for under the Act.
The Respondent objects to the extension.
The alleged act of discrimination relates to what the Complainant describes as a forced COVID Test at work to avoid being sent home and being deducted pay for that absence.
The incident is closely related to a disciplinary sanction given to the Complainant for allegedly aggressively interacting with a work colleague. The colleagues expressed his concern about working with the Complainant to his Supervisor because it is alleged, the Complainant informed that colleague he had COVID. The Complainant denies that he ever informed any colleague that he had COVID. |
PRELIMINARY MATTER:
The Respondent rejects the application for an extension of time and states that they were never informed of the Complainant’s disability.
The Complainant asserts that due to difficulties in reading and absorbing the context of documents, he was unable to file his claim within the prescribed timeframe. If this indeed was the case, it is respectfully submitted by the Respondent that reasonable accommodations and accessible resources were available to assist the Complainant in filing his claim within the required period:
The Complainant has acknowledged having a primary caretaker, who could have helped in understanding the process. Equally the Complainant could have utilised his “Next “Friend sooner to ensure timely filing of his complaint. Additionally, it is known that the Complainant had Union presence during a recent process, therefore, he could have sought the Union resources in relation to filing his complaint.
Furthermore, the Workplace Relations Commission offers various sources of support, including guidance for individuals with disabilities and telephone assistance to assist in the filing process. The Complainant could have availed of these services for assistance too.
Moreover, the Complainant could have sought legal aid or free support, which are accessible through the Citizen Information Centres, both of which provide resources and aid for individuals seeking to file complaints or navigate legal processes.
Therefore, the Respondent contends that the Complainant had sufficient alternative options to ensure compliance with the filing deadline and that the explanation provided does not meet the threshold for reasonable cause.
It is therefore submitted that the late filing of the claim should not be excused under these circumstances.
The Respondent employer relies upon Skanska and the Labour Court’s decision is consistent with Minister for Finance v Civil and Public Service Union [2006] IEHC 145, Laffoy J at paragraph 38 wrote:
In the 2004 decision, the Labour Court observed that a relatively short time limit is provided in O. 84, r. 21, with discretion in this Court to extend the time where there is "good reason to do so". It is clear from reading the 2004 decision that the Labour Court accepted that the authorities on O. 84, r. 21 could be applied by analogy to s. 19(5). In particular, the Labour Court quoted, and, indeed, applied the seminal passage in the judgment of Costello J., as he then was, in O'Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301 (at p. 315) in which he construed the term "good reasons" as follows:
"The phrase 'good reasons' is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and that the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under Order 84, rule 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. There may be cases, for example where third parties had acquired rights under an administrative decision which is later challenged in a delayed action. Although the aggrieved plaintiff may be able to establish a reasonable explanation for the delay the court might well conclude that his explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights (State (Cussen) v. Brennan [1981] I.R. 181)."
Section 77 (b) of the 1998 Act states:
- b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly
The wording in the Act does not use the phrase if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. The Act uses less fettered language that provides for a discretion and that discretion ultimately is directed to the balance of justice.
I note in the recent Supreme Court case of Kirwin v O’Leary & others [2023] IESC 27 a case about extending outside of an appeal time, which is not the case in this instance. However, it sets out key principles that apply when considering when to extend time and the standard to be applied when deciding if a case cannot be heard having regard to the strict wording in the relevant Act. The 1998 Act places a cap on the time when an appeal can be made which is 12 months.
By granting a right of appeal against the decision of the SDT, the Oireachtas has engaged the applicant’s constitutional right to litigate. The fact that the right to proceed to Court to appeal the decision in question is statutory does not affect this. Having conferred that right, a provision which restricts it must be strictly construed. Here, the language of s. 7(12B) does not preclude the possibility of an extension of time and, having regard in particular to the specific context in which that provision operates viz the regulation of the solicitors’ profession, it is appropriate that the section should be interpreted as enabling the grant of an extension of time for the making of an appeal in an appropriate case.
In applying that discretion, the overriding consideration is directed to the balance of justice:
That decision stresses that the Court has a discretion in determining whether or not to grant an extension of time for an appeal, confirms that the critical inquiry in applying that discretion is directed to the balance of justice, and requires that the discretion must be exercised having regard to where that balance lies in all the circumstances of a particular case. There are three questions that guide the exercise of that discretion – (a) whether the applicant formed a bona fide intention to appeal within the prescribed time, (b) whether the failure to appeal within that time is explicable by reference to some factor akin to a mistake, and (c) whether there are arguable grounds of appeal. These are the criteria first stated in Éire Continental Trading Co. v. Clonmel Foods Ltd. [1955] IR 170, at p. 173, and they remain the essential principles by reference to which the grounds advanced and evidence adduced by the applicant here fall to be judged. [104]
The Complainant has a learning disability that means he relies on others to explain his rights and his obligations when it comes to filing a claim. It is entirely unreasonable to apply the same standards to him based on his disability as he is ignorant of his rights without assistance. As the Act provides for an extension and the circumstances demonstrably show why a delay occurred and the discretion granted in the Act to extend time but not exceeding 12 months, I exercise that discretion as the balance of justice requires that his complaint be heard.
Summary of Complainant’s Case
The Complainant as detailed in the form lodged with the WRC states that: 2nd September 2O22 I was working s alongside a work colleague when I coughed. He went into a frenzy and started shouting "Cover your mouth the Virus" to which I replied I had tested for covid two months ago and was positive. I was ok now. The doctor told me to go back to work. I went outside to collect the trolley's. My work colleague came out for smoke, then the manger came out for a smoke. My work colleague and the manger were talking. I brought the trolley's up to the front of the shop, my work colleague and manager approached me, the manger was shouting at me "did you tell him that you had Covid and that you tested positive two days ago". I got such a shock and I grabbed him by the collar and shouted at him "you better not be telling her anything". I told you I was tested two months ago. The manager broke it up and settled the problem. She said "we are not going to have any meeting's about this * art . Let the top managers know. When I was finished work I went to the manager for a talk. She told me to go home and rest and come in tomorrow to start a fresh day. 3'd September 2022 I went into work. My manager asked me to Bo into the F.M.C. Room for a talk. She told me she had spoken to the top manager and there would be an investigation. She said I would have to do a Covid test and if I refused I would be sent home for a week with no pay. I asked if I could I get it done by somebody from the medical profession or Covid Centre. She said "we have them here". I did not feel comfortable and refused. She said I would have to go home and quarantine for a week with no pay. I was under duress. I said I would take the test. A second manager came into the room. I was refused a witness. I said I would do the test but I wanted one manager. I was refused and told "this is the manager that is doing the investigation. They were cruel with me and made me insert the tube. Then they said I had to put it up higher. I was made do both sides of my nose. My test was clear and I was allowed go back to work. I went to my doctor and had to get seeping tablets as I could not sleep. lt had a dreadful effect on me, as it brought back so many memories of the bullying I had gone through with them down through the years. The Complainant stated that he was discriminated against on the ground of disability, that he was harassed and discriminated in terms and conditions of employment. He also alleges victimisation. |
Summary of Respondent’s Case:
The Respondent stated that they were not aware that the Complainant had a disability. The Complainant has participated in all training like other work colleagues and had been assisted exactly in the same way. He demonstrated full understanding of the training and demonstrated his understanding of the training content and demonstrated his knowledge similar to other colleagues. The facts are that the Complainant was asked to take a Covid test; however, he was not forced to take a test. The fact that he took the test at the store is not a breach of any right. It is acknowledged that an internal appeal found that the test should not have taken place in an office. However, that is not a ground for discrimination. The circumstances and evidence will show that the Complainant had asked his supervisor to help him with taking the test. There was no duress in any shape or form The other manager in the office was simply stock taking. He will give evidence that the test was incidental to what he was doing and was not done to the employee rather was completed with the help of another work colleague. The Complainant was not treated less favourably to any other colleague without a disability and treated in the same way. While the Complainant now says he should have been reasonably accommodated, and the Respondent was not aware of his disability, in fact it did help him. The Complainant has the right to Union representation and in turn this provides him with the necessary protection and support during any disciplinary process. He was sanctioned for grabbing the collar of another colleague. The warning was a written warning and has expired. The Complainant was not discriminated against on the ground of disability, was not harassed as he asked for help, he was not victimised because of making a complaint and he was not discriminated against in terms and conditions of employment. |
Findings and Conclusions:
The Respondent stated that they did not know that the Complainant had no learning disability. That assertion is not credible. The hours that he worked is linked to a particular scheme that provides for a set number of hours and a disability payment. Also, evidence from the Complainant’s GP was opened that clearly show that he had a learning disability. At the first stay of hearing based on the evidence of the Complainant, his mother’s evidence; it was clear that the Complainant would require assistance and a next friend was approved to present the case as best they could. While the next friend has argued that the discrimination continued; the facts show that the incident complained about occurred on or about the 3rd of September 2022. The internal appeal related to the Complainant being disciplined for grabbing a colleague’s coat and determined that the Complainant should not have been tested in an office with another manager present. The next friend argued that the disciplinary hearing was prejudiced and flawed arising from the absence of any reasonable accommodation linked to the fact that the Complainant had a learning disability. The narrative lodged with the Commission does not particularise that complaint and it was detailed later in the Complainant’s submission: Fair Procedure 39. Due to the Respondent’s admitted ignorance of the Complainant’s disability, it must therefore stand that any measures taken by the Respondent with respect to disciplinary proceedings, interviews and meetings, investigations and indeed demands for covid19 10 tests were taken unlawfully and denied the Complainant’s personal rights guaranteed by Bunreacht na hÉireann. 40. The Complainant was refused physical interviews as requested and no mitigating circumstances were taken into account during the Respondent’s investigation and disciplinary procedures nor were any special or reasonable accommodations afforded the Complainant during the entirety of his employment with the Respondent nor was he afforded any mitigating circumstances due to his disability. The Complainant did receive a sanction at the time; however, that sanction is time bound and is moot at this point. It is not denied that he grabbed a colleague which is technically an assault and that admission is likely to have given rise to at least a written sanction. Therefore, I have concluded that arising from the delay to raise that issue of fair procedures earlier and the mootness of the sanction as it has expired, I have determined that complaint is out of time. The Complainant has stated that he was forced to take a COVID test. If that was so it was a serious breach of his right to decide to take the test in private and to administer the test himself. TESCO called 3 managers, the Store Manager, the Complainant’s supervisor, and the other management member who was present in the room where the test took place All witnesses gave sworn evidence. The other manager was there when the Complainant and Supervisor came into the room. He was inputting data into a computer for stock control. He did not act as witness for the taking of the test. His supervisor gave evidence that she was asked by the Complainant to help him take the test; that is credible if a person has a learning disability. While the supervisor stated she wasn’t aware that he had such a disability, it is credible that she would want to help a colleague. The taking of a Covid test at your place of work where that work has been designated an essential service is entirely practical and reasonable and ensures fast feedback to the employee and helps to protect other colleagues and customers. The account provided by the Complainant is in stark contrast to that given by the two TESCO managers in the office at the time. Those accounts are clear that it was only done to assist the Complainant at his request and was never demanded or insisted that it would be required to be taken. There is a marked difference between helping a colleague and having tests available on site so that any work colleague can be tested and making someone take a test. On balance I must determine that the supervisor was only assisting the Complainant and helped him the way she would help any other colleague and only assisted him because she was asked by him to help with the test. As I have determined that he was not treated less favourably to a colleague who had no disability I dismiss his complaint and find that he was not discriminated on the ground of disability. Harassment: The Employment Equality Act 1998 as amended defines harassment at section 14 A as: (7) (a) In this section— (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and (ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. (b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material. I note that in Employment Equality Law 2nd ed (Bolger, Bruton and Kimber) Round Hall Press the scope of harassment is defined and also under the Act what constitutes harassment, importantly it can be a single event. It is important to remember that the scope of harassment on a protected ground is an act which subjects a person to unwanted conduct on any of the protected discriminatory grounds, for example, sexual harassment, religious harassment or racial harassment. The Employment Equality Acts do not apply to a generalised bullying or harassment which has no link to the discriminatory grounds. In addition, the definition of bullying which has been accepted by the Supreme Court and High Court refers to “repeated inappropriate behaviour” and specifically excludes a single event. There is no similar requirement in the definition of harassment or sexual harassment in the Employment Equality Acts. Therefore, a single complaint of harassment or sexual harassment can breach the Acts. The Act is clear that the conduct complained of must be unwanted and based on the evidence given at the hearing the supervisor was assisting the Complainant because she was asked by him to help with the administering of the test. On the evidence I must find that the Complainant was not harassed. As the Complainant was not forced to take the Covid test and was provided with a free choice to take a Covid test at work he was not discriminated against on the ground of disability relating to his terms and conditions of employment. No evidence has been put to support a claim for victimisation as defined at 74(2) of the Act: (2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to— (a) a complaint of discrimination made by the employee to the employer, (b) any proceedings by a complainant, (c) an employee having represented or otherwise supported a complainant, (d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act, (e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment, (f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or (g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs. As no evidence has been presented to ground this complaint, the complaint is dismissed and the Complainant was not victimised. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
The Respondent asked for a Covid test to be completed so that a work dispute could be resolved as others had concerns that the Complainant had Covid. That request in the circumstances would have been made to any colleague and was solely linked to what was reported as a case of Covid. In that context the request was reasonable. The account provided by the Complainant is in stark contrast to that given by the two TESCO managers in the office at the time. Those accounts are clear that it was only done to assist the Complainant at his request and was never demanded or insisted that it would be required to be taken. There is a marked difference between helping a colleague and having tests available on site so that any work colleague can be tested and making someone take a test. On balance I must determine that the supervisor was only assisting the Complainant and helped him the way she would help any other colleague and only assisted him because she was asked by him to help with the test. As I have determined that he was not treated less favourably to a colleague who had no disability, I dismiss his complaint and find that he was not discriminated on the ground of disability. The Act is clear that the conduct complained of must be unwanted and based on the evidence given at the hearing the supervisor was assisting the Complainant because she was asked by him to help with the administering of the test. On the evidence I must find that the Complainant was not harassed. As the Complainant was not forced to take the Covid test and was provided with a free choice to take a Covid test at work I find that he was not discriminated against on the ground of disability relating to his terms and conditions of employment. There is no evidence of victimisation and I find that the Complainant was not victimised. |
Dated: 24-04-2025
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
Learning Disability -Extend time |