Complainant

Respondent

 Parties

Christine Reilly

Aldi Stores (Ireland) Limited

Representatives

Emma Coffey

Emma Coffey Solicitors

Isabelle Mannix Flynn O’Driscoll 

Kiwana Ennis BL

Act

Complaint Reference No.

Date of Receipt

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

CA-00068813-001

20/01/2025

The Complainant alleges that she was rudely spoken to by a shop assistant when she explained that she had recently undergone spinal surgery and couldn’t lift her tray of water bottles onto the checkout belt. It is alleged the assistant stated that it was company policy for shoppers to place their shopping onto the checkout belt. After a long exchange it is alleged, the assistant begrudgingly helped. It is alleged that in a subsequent conversation a manger told the Complainant that she didn’t have to shop at the store.

The Respondent denies the allegations and states the opposite occurred. The store assistant in fact lifted the tray onto the belt.

It is also stated by the Respondent that the matter should not be heard as the statutory notice was not complied with. While the Respondent was written to by the Complainant’s solicitor, they were not informed of the Complainant’s intent to refer the matter to the Commission.

The Complainant alleges that she was rudely spoken to by a shop assistant when she explained that she had recently undergone spinal surgery and couldn’t lift her tray of water bottles onto the checkout belt. It is alleged the assistant stated that it was company policy for shoppers to place their shopping onto the checkout belt. After a long exchange it is alleged, the assistant begrudgingly helped. It is alleged that in a subsequent conversation a manger told the Complainant that she didn’t have to shop at the store.

The Complainant was in fact reasonably accommodated and there is no merit in the claims based on age and/or disability.

The alleged incident occurred on or about the 6th of September 2024.

On or about the 30th of September 2024 the Complainant’s solicitor wrote to Aldi seeking compensation and an apology relying on alleged age and disability discrimination for seeking compensation.

The manual complaint form was lodged with the Commission on the 24th of January 2025.

The Equal Status Act sets out a required notification to the Respondent within 2 months of the alleged prohibited conduct:

Section 21(2) states the following:

(2) Before seeking redress under this section the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act

The Respondent argued that the Complainant failed to meet this requirement and therefore should be dismissed. The Act provides for an extension of time of a further 2 months for reasonable cause and in exceptional circumstances this requirement maybe waived; however, in law exceptional presents a high bar.

I note that in Irish Life and Permanent Plc v Dunne [2015] IESC 46 [Record No: 259/2013] Clarke J stated:

4.11 Section 5(1) of the 2005 Act is in the following terms: -

"In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)—

(a) that is obscure or ambiguous, or

(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of—

(i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2(1) relates, the Oireachtas, or

(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned, the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole."

4.12 So far as it is material to this case, it would seem that the section applies where, on a literal interpretation, a construction would be absurd or would fail to reflect the plain intention of the Oireachtas. In such cases, the provision should be given a construction which reflects that plain intention of the legislation where same can be ascertained from the legislation as a whole. In considering that provision in Kadri v. Governor of Wheatfield Prison [2012] I.E.S.C. 27, I said the following at para. 3.6:-

"It seems to me that there is at least a broad similarity between that area of jurisprudence and the intent behind at least aspects of s.5(1) of the Interpretation Act, 2005. It is important to note that the construction which that section requires is one that ‘reflects the plain intention of (the legislature) where that intention can be ascertained from the Act as a whole’. It is clear, therefore, that it not only is necessary that it be obvious that there was a mistake in the sense that a literal reading of the legislation would give rise to an absurdity or would be contrary to the obvious intention of the legislation in question, but also that the true legislative intention can be ascertained. There may well be cases where it may be obvious enough that the legislature has made a mistake but it may not be at all so easy to ascertain what the legislature might have done in the event that the mistake had not occurred."

The decision to dismiss and the consequence of not allowing the case to be heard must be carefully considered. 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:

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 this case the Complainant wrote to the Respondent seeking compensation and also referencing the grounds for making the claim relying on the Equal Status Act.

While the Complainant did not specifically reference that the claim if not resolved would be referred to the WRC, the relevant section in the Act states the following at section 21(3):

(3) (a) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may—

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,

and, where such a direction is given, this Part shall have effect accordingly.

The intent of the legislator clearly is where there are exceptional circumstances a claim should not be dismissed. The Respondent did receive notice of the dispute on the 30th of September 2024 and then notification from the WRC on the 28th of January 2025 which is just outside the 4-month window based on reasonable cause, as the alleged prohibited conduct occurred on the 6th September 2024. As the Respondent was on notice of the complaint within weeks of the incident, it would be harsh to dismiss the case based on one omission and to deny the right to be heard would be unjust. I am satisfied that it is reasonable in the particular circumstances of the case to direct that subsection (2) shall not apply. No prejudice arises to the Respondent as they were on notice of the allegations within weeks of the incident. The matter subsequently was processed within 6 months of the alleged incident to the WRC. On these facts I exercise my right not to apply subsection 2.

However, while I have determined that the case should be heard. The evidence of the cashier and the CCTV footage of the incident wholly corroborate the Respondent’s account that in fact the Complainant was reasonably accommodated, and her tray was lifted onto the belt by the Cashier. There is no merit in the claim. The Complainant alleges that she was spoken to rudely and also that a manager spoke to her rudely. There is no evidence to support that allegation. What is clear is that within seconds her tray was placed on the belt by the Cashier/Shop Assistant and she was reasonably accommodated.

I find that the Respondent did not engage in prohibited conduct as alleged based on age and/or disability and dismiss the complaints. The complaints are not well founded.

I find that the Respondent did not engage in prohibited conduct as alleged based on age and/or disability and dismiss the complaints. The complaints are not well founded.

Exceptional -Right to be heard-Intent of Legistlator