Complainant

Respondent

Parties

Geraldine  Fitzmaurice

Dublin Bus

Representatives

 CIE Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00042923-001

03/03/2021

The complainant attempted to board a Dublin city bus without a face mask on September 3rd, 2020 during a period when the wearing of masks was a legal requirement.

The complainant who has a medical condition had medical certification that she was not required to wear a mask.

 However, she did not have it ready for presentation to the driver on boarding a Dublin Bus vehicle and proceeded beyond him to sit down in order to locate the material, without paying a fare. She has a ‘free travel’ pass.

She says that all times that day she acted within the law, was respectful and worked within the guidelines of Statutory Instrument244 section 5, parts A and B which clearly state if you have a medical condition or medical health condition a person is exempt.

When she boarded the bus that day she says that she had all her medical paperwork in order and an exemption badge on a lanyard around her neck.

When the driver arrived at the bus stop at Donnybrook outside RTE on September 3rd, 2020 at about 5.20pm, the driver of the bus noticed a person boarding the bus who was not wearing a mask.

This person, who it later transpired was the complainant, was not only not wearing a mask but did not tag a ticket on the ticket reader machine opposite the driver's cab as she boarded the bus and did not show a pass to the driver.

The driver called the complainant up to the cab, but she remained seated.  The bus was still stationary at the bus stop.

The driver activated the alarm on the bus. There were a number of Gardai present at an anti-mask protest at the front gates of RTE and one of them came over and the driver told him what happened. The Garda approached the complainant and asked why she was not wearing a mask.

The driver saw the complainant show papers to the Garda and heard him say something to the effect of "these are the bye-laws about the mask wearing, not a mask exemption".

At this stage the Garda left the bus followed by the complainant and he told the bus driver to close the doors and drive off, which he did. The complainant subsequently made her complaint to Dublin Bus and also sent in a letter from her GP practice certifying a mask exemption.

Drivers are obliged both by the Covid regulations and by Dublin Bus to enforce mask wearing and are aware that certain exemptions are permitted. But in this case the  driver was not shown an exemption by the complainant or indeed anything at all.

The enforcement of mask wearing has caused difficulties for bus drivers, with conflict arising between passengers either for masks not worn or not worn properly. On several occasions Gardai have had to be called.

The facts of this regrettable incident are set out above. Neither party emerges from t with great credit.

The complainant boarded the bus clearly inadequately prepared to present her exemption from mask wearing to the driver, and he in turn appears to have mismanaged a situation, which in fairness to both parties was not an easy one.

By way of a preliminary matter the complaint has been made under the Equal Status Acts which imposes certain notification requirements on a complainant.

The incident giving rose to the complaint took place on September 3rd, 2020 and a complainant is initially required to serve an indication within two months of their intention to make a complaint by means of the service of Form ES1 on a respondent, which may be extended to four months, and indeed dispensed with entirely where it is ‘fair and reasonable’ to do so.

However, the Act specifies that this will only be in ‘exceptional’ circumstances.

In this case the Form was served on January 21st, 2021 some two weeks outside the four-month limit.

The complainant’s problems do not end there.

Her complaint to the WRC was also late, admittedly by only a day.

In explaining both delays the complainant stated that she had been waiting for further information (CCTV footage) before proceeding.

It emerged that she was under the mistaken impression that such supporting material is required to be included with a complaint.

It is not, of course; a person may make a complaint to the WRC on the basis of a very simple description of the nature of the alleged breach giving rise to it, although the complainant said she was not aware of this.

In considering the reasonableness of any extension of the time limits the complainant did in fact receive the CCTV and other materials she sought on October 22nd, 2020, a matter of five weeks after the incident.

In the circumstances, her complaint has not been made within the required time limits and nothing was offered that would meet the twin ‘explain and excuse test’, much less the exceptional circumstances required for an Adjudicator under this Act to exercise any discretion in relation to an extension of the time limits.

Accordingly, I find that her complaint is not within jurisdiction.

For the reasons set out Complaint CA-00042923 is not within jurisdiction and is not upheld.

Equal Status, Time limits.