Complainant

Respondent

Parties

Dorin  Dusa

Bidvest Noonan (Republic of Ireland ) Limited

Representatives

                                                                             Damien Reillly

                                                                             Risk Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00041712-001

23/12/2020

The Complainant has brought a complaint against this Security company by way of a workplace relations complaint form dated the 23rd of December 2020. The Complainant says he has been discriminated against in the provision of goods and services on the grounds of his disability. He says he should have been given reasonable accommodation and that his treatment is unlawful.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the  Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

I can confirm that I explained to the parties the immediate impact that the recent Supreme Court decision in the constitutional case of Zalewski  -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) has had on how WRC hearings must now proceed. In particular, I have indicated that hearings must now (and in the interests of transparency in the administration of Justice) be open to the public.

I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

The Complainant gave evidence on his own behalf. The complaints against this Respondent are set out in a Workplace Relations Complaint Form dated the 23rd of December 2020. This is a comprehensive submission which also tended to identify other causes of action such as defamation and assault all of which are well outside the scope of any power the Adjudication Officer might have.

In the complaint form, the Complainant certainly states that he was discriminated against in the provision of goods or services. He also says he has been discriminated against on the grounds of his disability. He says, further, that the Respondent failed to give him reasonable accommodation for his disability, amounting to further discrimination. The Complainant makes the case that this is all unlawful or prohibited conduct.

The Complainant requested that this decision be anonymised. He cited his medical history as being personal and private.  As an Adjudicator, I can consider any application from a party to proceedings who asserts that due to the existence of special circumstances, the decision should be anonymised in whole or in part. I am not satisfied that any such circumstances exists in this instance, as it has not been necessary to reference any medical history.

The Complainant was not represented and made his own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth.

The Complainant tried to introduce medical evidence but was adamant the Respondent would not have sight of same. The matter proceeded and I reserved my position on whether or not such evidence would be relevant.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case, and in fulfilment of my duties as prescribed by Statute.

The Respondent herein was providing security operatives to the retail sector. A complaint of discrimination is being made against one of the Security Officers that this Respondent had placed outside a large retail unit in a commercial industrial park in August of 2020. I am satisfied that the individual in question has the appropriate licence issued by the PSA which is awarded following satisfactory completion of appropriate Guarding skills certificate.

The Respondent had representation at this hearing in the person of the Risk Manager. The Respondent provided me with a written submission. The Respondent rejects that it has discriminated against the Complainant

The Respondent acknowledges the importance of Equality, Dignity and Respect  across the organisation. I have been advised that intolerance bullying, and disrespect are all considered unacceptable in this company.

I have carefully considered the evidence adduced in the course of this hearing. The Complainant and his young daughter wanted to visit a large Homeware Department store situate in a commercial retail park in Dublin. The date in question was the 28th of August 2020. The date is significant as the country was just emerging from the first Covid lockdown, there was no vaccine on the horizon and a myriad of Covid restrictions governing almost every aspect of the citizens’ life were in operation.

I think I am bound to acknowledge the prevailing atmosphere was one of caution and wariness and, on the whole, people were abiding by what was being asked of them.

At the time SI No 269/2020 Health Act 1947 (Section 31A – Temporary Restrrictions) (Covid-19) (Face Coverings in certain premises and Businesses) Regulations 2020 was in operation and was intended to cover Department stores such as the one the Complainant wanted to shop in. It is worth noting that SI269/2020 was implemented in response to the immediate, exceptional and manifest risk posed to human life and public health by the spread of Covid 19. The regulations came into effect in August of 2020. Section 4(1) reads:

 “A person shall not, without reasonable excuse enter or remain in a relevant premises…without wearing a face covering.”  

For the purpose of the proceedings before me I am noting that a person with a reasonable excuse can be exempt from wearing a mask. This includes:

Section 5(a)(i) because of any physical or mental illness, impairment or disability,

As stated, the Complainant wanted to enter a department store. As the numbers allowed to be in the store were restricted at any one time, an orderly queue was formed outside and patrons waited their turn. The Respondent security firm had provided the security personnel to ensure to control of the queue and to control entry and exit and to ensure that patrons were wearing masks or other appropriate face coverings.

It came time for the Complainant to enter. Despite initially thinking that it was okay for him to enter the shop without a mask on, the Complainant was stopped just inside the threshold of the shop and advised that he could not enter without wearing a face covering. I understand the Complainant’s daughter was wearing a mask although she was under thirteen. The Complainant showed the Security Officer that he had a mask about his person but indicated that he would rather not wear it and offered instead that he would ensure that he would keep 2 meters away from other patrons. The Security Officer was very clear that his instructions were to ensure that everybody entering had to wear a mask and advised the Complainant that those were his instructions. I accept that the Security Officer might have been forceful in his insistence and the Complainant does certainly state that he was quite surprised by the security Officer’s tone of voice. However, I do accept that the Security Officer must have been somewhat perplexed by the stance taken by this individual who had a mask but simply didn’t want to wear it.

The Complainant raised the spectre of a possibility of his having an exemption, without actually saying he had an exemption, and certainly without proving that he had an exemption. The Complainant appeared to challenge the Security Officer for following his instructions. To my mind, and based on the evidence I have heard, I accept that the Complainant engaged in a somewhat confrontational conversation about the legality or illegality of barring access to someone who might be exempt from wearing a mask. It appears this line of conversation gained no traction with the security officer who was standing by his instructions to ensure any and all customers coming into the shop were wearing a mask.   

Interestingly, and despite the apparently heated nature of this exchange, the security Guard eventually gave up and let the Complainant move into the shop, and the Security Officer returned to his position at the door. I consider this last fact to be important as it means that whatever transpired in the course of that conversation, the Complainant was not prevented from availing of the goods and services on offer in the Department store.

I understand that the Complainant made a complaint to the Store Manager about his interaction with the security Officer.

Some time later the Complainant was leaving the shop. The Complainant decided to go back to the Security Officer for the purpose of taking his picture for future identification. Not surprisingly, the security Officer took exception to this, and a stand-up row ensued outside the shop in this busy car parking area. The Complainant tried to make another complaint regarding this behaviour.

I note that the Complainant is aggrieved that nobody from management ever contacted him about the series of events.

In relation to the applicable burden of proof, Section 38A of the Acts is applicable to all complaints of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which a discrimination can be inferred. It is only when such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination.

The Respondent is adamant that the Complainant has simply not discharged his burden of proof and has not demonstrated the Prima Facie case of discrimination that is required. The Complainant says he was discriminated against on the grounds of his disability and specifically in the provision of goods and services.

Having considered the evidence given, it seems to me that the Complainant’s case is that it was discriminatory of the Security Guard to challenge him for not wearing a mask because he was exempted from wearing a mask by reason of a disability. In making this claim, the Complainant’s case must be that the Security Guard was purporting to prevent the Complainant from accessing the Goods and Services available in the Department Store. This is the Complainant’s case in terms of the Equal Status Act. I am articulating this carefully, so that there can be no confusion that the other long litany of complaints and grievances set out in the workplace relations complaint form are seen by me as anything other than irrelevant to the narrow issue I have the jurisdiction to deal with. This is a discreet issue

The Respondent has, quite rightly, referenced the very oppressive atmosphere around Covid at this time. There was a very real sense of risk. A biological hazard was in our midst. Everyone was nervous and everyone was obeying the rules. Nothing more was being asked of the Complainant than was being asked of anyone. He was being treated no less favourably says the Respondent.

I am satisfied that the Complainant made no claim on the day in question that he had a disability such that would exempt him from wearing a mask. Indeed, on the day in question, he pulled a mask from his pocket and even went to put it on in some sort of half-hearted way. I know that the Complainant has since tried to put into evidence some sort of medical history that may or may not disclose information which would have entitled the Complainant to an exemption in August of 2020. The point is made by the Respondent that that was not disclosed or even alluded to at the time of the incident.

The Complainant has sought to introduce this medical history evidence now, in the course of these proceedings. Unusually, the  Complainant has invited me, as Adjudicator, to look at and consider the information but has refused to allow the Respondent have sight of same. Quite rightly, the Respondent has objected to the admissibility of any such evidence, and I accept that it would be inappropriate to have regard for any evidence which the Respondent has not been allowed to consider  and test by cross examination. I have therefore opted not to look at same.

In any event, there is no suggestion that the fact of a relevant disability was made known on the day of the incident complained of. The Complainant did not specifically assert that he had any disability which allowed him not to wear a mask. When challenged, the Complainant appears to have goaded and annoyed security staff who eventually just left him to it. He was not, in fact, denied access to any goods or services that day.

Based on the foregoing, I am satisfied that the Complainant has not established, in the first instance, facts from which a discrimination can be inferred. There is therefore no prima facie case which would have the effect of shifting the onus to the Respondent to rebut the inference of discrimination.

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

CA-00041712-001  - The Complainant has failed to establish a prima facie case of prohibited conduct and this complaint is dismissed.