Complainant

Respondent

Parties

Geraldine  Fitzmaurice

(1)    Joey Baker Supervisor

               Supermacs and Papa Johns

(2)     Macs Place Limited trading as Supermacs and Papa Johns

Representatives

  Self

David Gaffney Gaffney Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00044614-001

11/06/2021

This matter was heard by way of a hybrid 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.  The Complainant attended the hearing in person and the Respondent and his legal representation attended remotely.

I heard a considerable amount of evidence during the hearing.  Both parties presented video evidence to me.

The witnesses gave evidence on oath and affirmation.  I allowed the right to test the oral evidence presented by cross examination.

Much of this evidence was in conflict between the parties. I have taken time to review all the evidence both written and oral. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or found superfluous to the main findings.  I have adopted the direction provided in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 at p.113 where O'Flaherty J. in the Supreme Court noted that minute analysis or reasons are not required to be given by administrative tribunals.

In relation to the Complainants post hearing complaint as regards the Respondents legal representative’s cross examination of her evidence at the hearing on the 13 June 2022, I do not accept that she has a basis for complaint. I did not consider the cross examination at the hearing to be inappropriate or oppressive and it did not last for an inordinate length of time. While I accept the Complainant found the hearing itself stressful, it was conducted in a calm manner, in accordance with fair procedures with the intention to yield justice to both sides.

This complaint relates to an incident which took place as the Supermacs plaza, Kinnegad, Co. Westmeath (hereinafter referred to as the “Kinnegad plaza”) on the 6 May 2021. The Complainant’s claim was that she was refused access to goods and/or services pursuant to the Equal Status Acts 2000 – 2018.

The Complainant filed a manual complaint form with the Adjudication service of Workplace Relations Commission on 11 June 2021.  She did not complete pages 3 and 4 of the Complaint form which set out the Complainants details and Respondents details. Instead on page 16 and subsequent pages she identified the Respondent.

Correspondence issued from the Adjudication service, Workplace Relations Commission on 7 July 2021 to both the Complainant and Joey Baker as Respondent.

On the 14 September 2021 the Complainant wrote to the Workplace Relations Commission. She set out

"May I add I did indicate in my submission notes that I was taking a case against "Joey Baker supervisor of Supermacs". You have it listed as just "Joey Baker". I hope this doesn't cause confusion on the day of the hearing.”

On the 15 September 2021, the Adjudication service, Workplace Relations Commission wrote to the Complainant and set out

"We note that the name of the Respondent on the ES.1 form you submitted is "Joey Baker Supervisor". We note that "Supervisor" was not part of the Respondents given name and omitted from the name of the Respondent in our correspondence. If you wish to have the name of the Respondent changed to "Joey Baker Supervisor" we can arrange to do so. Otherwise, it will be either for the Adjudication Officer at the hearing of this case to determine the correct name of the Respondent or you may wish to submit a new complaint form naming a different Respondent, provided you are in compliance with the requirements, including time limits, provided for in the Equal Status Act”.

On the 21 April 2022, the notification of the hearing date was submitted to the parties. It was proposed that a remote hearing would take place. After its issue, there were numerous emails between the Complainant and the Workplace Relations Commission seeking a face-to-face hearing. Ultimately, the Workplace Relations Commission facilitated the Complainant by holding a hybrid hearing.

The Complainant attended the hearing accompanied by her brother.

At the opening of the hearing, the Respondent submitted that he was not the correct Respondent. He submitted he was a supervisor who works for Supermac's but did not provide any services to the Complainant.  He submitted that the proceedings had issued against the Respondent in his personal capacity and should have been against his employer. 

The Complainant appeared distressed with the application.  She explained that she was ordered out of the restaurant by Joey Baker who identified himself as a supervisor.

I enquired if the Respondent would allow the amendment of the name to the Respondents employer.  The Respondent gave the correct legal name of the company operating the Kinnegad plaza as Macs Place Limited.  The Respondent declined and pointed out that it was more than six months after the alleged incident and any new claim brought by the Complainant would be statute barred.

I indicated to the parties that I would reserve my position regarding this preliminary application and address it in my decision.

While it is not usual practice to allow submissions post the hearing date, because of the importance of the issue, before I issued this decision, I wrote to the parties giving them an opportunity to comment on various case law and my powers to amend the name of the Respondent. 

The Complainant replied in numerous emails setting out her position on the lines of what I have outlined above.

The Respondents solicitor replied on 29 September 2022. He confirmed that Mr. Baker is a supervisor employed by Macs Place Limited and set out that he was requested by Macs Place Limited to provide legal representation to the Supervisor Respondent.

The correspondence set out that the Complainant has not sought to join an additional Respondent despite the defence and arguments made by the Respondent. It went on to state that section 42 (3) of the Equal Status Act 2000 requires a Complainant to actually initiate proceedings against him Employer and name such employer from the outset. The correspondence set out that to add an additional Respondent was ultra vires my powers as Adjudication officer.

It was submitted that the Rules of the Superior Courts do not give authority to an Adjudication Officer to exercise a discretion.

As regards whether the hearing should be reconvened to allow the employer of Joey Baker to attend the hearing, the correspondence set out that "the evidence given at the hearing on the 13 June last remain unchanged and it would be unnecessary, unlawful and inappropriate to convene a further hearing in respect of matters that have already been fully heard".

As set out above, the Complainant filed a manual complaint form with the Adjudication service of Workplace Relations Commission on 11 June 2021.  She did not complete pages 3 and 4 of the Complaint form which set out the Complainants details and Respondents details. Instead on page 16 and subsequent pages she identified the Respondent.  I note that in the narrative, the Complainant named “Joey Baker Supervisor at the Kinnegad Plaza, Kinnegad, Co. Westmeath”. 

I hold that I have discretion as to the correct naming of the Respondent as set out in ADJ 00039655. 

I note that the WRC correspondence has been sent to Joey Baker, Supermacs and Papa Johns at the Kinnegad Plaza, Kinnegad, Co. Westmeath N91 N9YR until his legal representation came on record on the 19 May 2022.  I note that the legal representative has stated he was requested to provide legal services to the Supervisor Respondent by his employer.

Section 42(1) of the Equal Status Acts provides:

“Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.

The Superior courts have held that statutory adjudicative bodies should not adopt a more stringent procedural approach than that adopted in ordinary litigation.  Order 15 Rule 13 of the Rules of the Superior Courts makes provision for the amendment of proceedings initiated in the High Court in which parties are improperly named.  Order 14 Rule 11 allows for proceedings to be initiated against a firm in its business name. 

Having reviewed the manual complaint form filed by the Complainant on the 11 June 2021, I am satisfied that the Respondent she named was Joey Baker Supervisor, Supermac's and Papa Johns.  I accept that Joey Baker was the Retail and Forecourt Manager, an employee of Macs Place Limited trading as Supermac's and Papa Johns at the Kinnegad plaza on the 6 May 2021 and always acted in that capacity. 

I note that the seminal case on the circumstances in which proceedings before a statutory tribunal can be amended is County Louth VEC -v- Equality Tribunal [2009] IEHC 370 where the High Court held that: “If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.”

In view of all the above, I have decided to issue my decision in the names set out in the heading of this decision.

The Complainant's case is that she entered the Kinnegad Plaza at 8:30 a.m. on the 6 May 2021. She suffers from a disability and was unable to wear a face mask or face shield.  She explained that she carries a medical certificate with her and wears it on her person in a lanyard. She attended her doctor on a regular basis and due to a traumatic incident in her life, she cannot tolerate anything on her face.

She went to the bathroom to wash her face and put some make-up on. She was not in contact with anyone.

She went to the food section in the Kinnegad plaza. She advised that she has a gluten intolerance and there was a lot of choice as two different types of food. She ordered a coffee and decided on what food to order.

She confirmed that there were several people around her. She indicated that a man approached her in a polo shirt. He identified himself as Joey Baker supervisor. He told her to "get out", indicating to leave the restaurant area.

The Complainant queried the basis on which he had instructed her. She was wearing a lanyard and advised him that she was exempt from the requirement to wear a face mask.

The Respondents reply to her was that he didn't care about her exemption, he referred to her breaking the law and that "we have our own rules here".

The Complainant took out her phone and video recorded her interaction with the Supervisor Respondent.

She explained that he had no choice but to leave the venue. The Supervisor followed her walking very close to her. She felt humiliated and degraded and felt that people were laughing at her.  She submitted he was bullying her and described her treatment as brutalised abuse.

The Complainant submitted that she was refused service by the Respondent. She never received her food or petrol and she had intended to use the bathroom before she left. She submitted it was the only filling station for miles in the area. She was hungry, frustrated and felt degraded.

The Complainant explained that she was very stressed on the day and suffered a panic attack. She couldn't leave the car park for two hours after the incident.

She was cross examined by the Respondent solicitor.

In response to the submission that she was offered the opportunity for her to remain outside the building and be served via a hatch, the Complainant said she would be “treated like an animal”.

In response to the question as to what reasonable accommodation she sought, the Complainant submitted that “she wanted to be treated the same as everyone else”.

When asked about the certification of her disability, the Complainant stated that the Respondent did not want to look at her medical certificate.

When queried as to how she was victimised, the Complainant said that she advised the Supervisor Respondent that he was discriminating against her, and he told her to get out.

The Supervisor Respondent gave evidence that he was a retail and forecourt manager at the Kinnegad Plaza and Macs Place Limited was his employer.

He explained that he spoke with the Complainant after two customers complained to him that they were uncomfortable that she was not wearing a mask.

He approached and advised her that it was the company policy that she was required to wear a mask in the restaurant. He pointed to her options how she could be served other than being in the restaurant without a mask namely via the drive-through in her car or through a hatch at the Spar part of the Kinnegad Plaza.

He explained that the Complainant began shouting and roaring and claiming that she was being treated like a third-class citizen. She recorded their interaction on her phone. She referred to how the Germans treated the Jews and how the British treated the Irish.  She disputed that there was a pandemic. She asked, “where are all the sick people”?

The Respondent said that the Complainant never asked for access to any other facilities.

He explained that after she left the building, he reviewed her attendance on the CCTV footage. He noted that she entered the disabled toilets at 8:03 AM and left at 8:33 AM. She ordered coffee at 8:41 AM and was at the milk dock at 8:43 AM. At that stage he approached her. She left the building at 8:47 AM

The respondents CCTV showed that the Complainant went to the milk dock and positioned herself between two customers. One customer stepped back on this happening. She joined a queue with four other individuals and sat on a chair that had a sign on it " Do not sit". The chairs were out of use due to Covid. There was no indoor dining allowed at the time.

In reaching my decision I have considered all the submissions, oral and written, made to me during my investigation as well as the evidence at the hearing.

This complaint is a discrimination case brought onto the Equal Status Act 2000 (as amended).  As set out in page 7 of the Judy Walsh book on the Equal Status Acts, the legislation "does not give people a right to obtain a particular item or service… Rather it seeks to ensure that where goods and services are already provided the conditions under which they are supplied are cleansed of bias against members of particular social groups".

In a discrimination case, the Complainant is required to prove, that she has a disability and that because of that disability she was treated less favourably by the Respondent than a person in the same situation as she was, who did not have a disability.

On the date of the incident 6 May 2021, Statutory Instrument 296 of 2020 was in force, being the Health Act 1947 (Section 31A – Temporary Restrictions) (Covid 19) (Face Coverings In Certain Premises and Businesses) Regulations 2020. This was introduced because of the risk posed to human life and public health by the spread of Covid – 19.  Section 4(1) set out the requirement for the public to wear a face covering in listed public settings.  Retail owners and operators were required to ensure compliance with this requirement. 

It was clear at the hearing that the Complainant was familiar with this Statutory Instrument.  However, the complaint she has brought is under the Equal Status Act which is different from whether she had a defence to a charge that she was in breach of the enactment of SI 296 of 2020.

It has been identified by other Adjudication Officers with similar equal status cases, Complainants have unfortunately conflated these two matters. Just because someone with a disability may be entitled to assert a defence of reasonable excuse if he/she was charged with a failure to wear a mask, does not mean that, a retailer’s request that they wear a mask, is evidence that they have been discriminated against.  See ADJ-00033208

The statutory exemption set out in Section 14 of the Equal Status Act must also be taken into account.  This sets out

14.— Nothing in this Act shall be construed as prohibiting—

(a) the taking of any action that is required by or under—

(i) any enactment or order of a court

The word ‘enactment’ covers Statutory Instruments.  I have reviewed the Statutory Instrument 296 of 2020.  The Statutory instrument itself allowed for a reasonable excuse for not wearing a face covering.  As the "taking of any action" was not absolute, I have decided not to apply this Section 14 exemption.

The matter for decision is whether the Respondent

 Discriminated against the Complainant on grounds of disability pursuant to Section 3(2) of the Equal Status Acts 2000 – 2018 (the Act) and failed to provide the Complainant with reasonable accommodation for that disability pursuant to Section 4 of the Act

And whether the Complainant suffered

Harassment pursuant to Section 11 of the Act and /or

Victimisation pursuant to Section 3 (2) (j) of the Act

I note that the Complainant attended the Respondents premises on the 6 May 2021 without wearing a face covering and accessed the toilets and purchased a coffee.  The evidence presented to me was that she was in the building for 45 minutes in total.  When she was approached by the Respondent supervisor, she tried to provide her medical evidence that she was suffering from severe panic disorder and unable to tolerate wearing a face covering or visor.  

Discrimination on the “disability” ground occurs where there is less favourable treatment of one person compared to another person because one person has a disability and the other either is not or is a person with a different disability.  Section 3(2) of the Act provides that “as between any two persons, the discriminatory grounds … are … (g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”).

For the purposes of deciding this case I accept that the Complainant is classified as a person with a disability.

As regards the complaint that the Respondent failed to provide the person with the disability with a reasonable accommodation, section 4(1) applies in this case.

 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.

The question that I must address here is whether the Respondent did all that was reasonable to accommodate the needs of the Complainant, as a person with a disability, by providing special treatment or facilities on the 6 May 2021. This is not the same as treating her the same as “everyone else” to use the Complainants words. 

I accept that Complainant did receive the required service from the Respondent until the intervention of the supervisor and from then on, the Respondent did suggest other ways for the Complainant to be served.   The two types of accommodation offered by the Respondent was

a)       via the drive-through in her car or

b)      through a hatch at the Spar part of the plaza. 

The Complainant rejected the accommodation offered.  Under cross examination the Complainant stated that she wanted to be treated the same as everyone else and explained to be served from a hatch would be treating her “like an animal”. 

The proposed accommodation of the disability by a Respondent is to be judged as to whether it was reasonable in all the circumstances.  I note that the Complainant was only approached by the Supervisor after complaints were made by two customers.  She was not prevented from entering the building and using the toilets and café until then.  At the time SI 296 of 2020 applied and there was no provision for indoor dining.  

What constitutes ‘less favourable treatment’ will depend on the facts of the case. A difference in treatment is not necessarily less favourable treatment. For the Complainant to succeed, she must have experienced some form of detriment.

I am satisfied that the Respondent actively tried to engage in a process of consultation with the Complainant.

Having reviewed all the evidence, I accept that the Complainant received a service until her interaction with the Supervisor and thereafter was offered reasonable accommodation.  I find that she was not discriminated against by a failure to provide a reasonable accommodation as defined in section 4(1) of the Equal Status Act 2000. This complaint is not well founded.

Harassment

As set out in Section 11 (5) (a) of the Equal Status Act, harassment is 'any form of unwanted conduct related to any of the discriminatory grounds' and this conduct has 'the purpose or effect of violating persons dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person'.  The section on harassment goes on to supply examples of unwanted conduct.

There was a conflict of evidence between the parties. 

Having reviewed the CCTV footage and video played by the Complainant at the hearing I have found the evidence of the Supervisor to be credible.  I am satisfied that the Respondent was presented with a challenging situation and attempted to get a solution for the benefit of both the Complainant and the other customers in the Kinnegad Plaza. I am satisfied that the Supervisor acted in an appropriate and professional manner. I have not been presented with any evidence from which I could reasonably conclude that the Respondent acted in anything other than a professional manner in terms of its interaction with the Complainant.

I find that the complainant has failed to establish a prima facie case of harassment within the meaning of Section 11(5) of the Equal Status Acts, 2000 to 2008.  This complaint is not well founded.

Victimisation

Section 3 (2) (j) of the Equal Status Act 2000 sets out protection for a person who brings or assists in discrimination proceedings. The criteria to be satisfied to establish a prima facie case of victimisation the Complainant most show:

1.            that she applied in good faith for redress under the Act, indicated an intention to do so or otherwise satisfied section 3 (2) (j)

2.            That she was subject to specific acts of treatment by the Respondent after she did so and

3.            That this treatment was less favourable than would have been afforded to a person in similar circumstances were not taken the action at 1 above

The Complainant's case is that she said the words "you are discriminating against me" and in response the Supervisor told her to leave the building because she was not wearing a mask.  She later said to the Supervisor "you are going to be served".

The colloquial meaning of victimisation differs from the statutory definition above.

I am satisfied that the first occasion on which the Complainant took any definite action which could reasonably be construed as having invoked a protected act within the meaning of Section 3(2)(j) of the Equal Status Act occurred on 7 May 2021 when she sent the ES1 form to the Respondent. The alleged detriment pre-dated this act and could not amount to an act of victimisation contrary to the Acts.

Even if I was to accept the words "you are going to be served" by the Complainant on the 6 May 2021as being a protected act, the alleged detriment was claimed to have taken place before she uttered those words and could not amount to an act of the victimisation.

In the circumstances, I find that the Complainant did not take any action which could be construed as a protected act within the meaning of Section 3(2)(j) of the Acts prior to the date or time upon which the alleged detriment occurred.

Accordingly, I find that the Complainant has failed to establish a prima facie case of victimisation contrary to Section 3(2)(j) of the Equal Status Act.  This complaint is not well founded.

This complaint is not well founded.

Reasonable accommodation.  Victimisation.  Harassment.  Equal Status Act.