Complainant

Respondent

Parties

George-Calin  Breban

Bistrovia Limited t/a  Day Today News

Representatives

  Self-Represented

 Self-Represented

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00046419-001

28/09/2021

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

CA-00046419-002 WITHDRAWN

28/09/2021

The Complainant submits that he was  exempt from wearing a mask on the grounds of disability during the Covid-19 pandemic but that the Respondent shop discriminated against him under the Equal Status Acts 2000-2015 (the Acts) by: (1)  not providing him with goods and services and reasonably accommodating his disability and (2) Victimising him by a vengeful action by the Respondent in calling the Gardai. The Complainant withdrew the victimisation claim CA-00046419-002, during the hearing. The Complainant attempted to formally submit a new  complaint under section 12 of the Acts regarding illegal advertising,  towards the end of proceedings. The application was refused on the basis that I did not have jurisdiction to deal with such an alleged offence in the manner in  which it was presented.   

The Respondent denies the complaint.

The Complainant submitted a detailed account on the complaint form as well as giving evidence under affirmation.

He stated that the Respondent shop advertised 50 masks for €5 whereas he understood that an established chain of pharmacies were advertising masks at 2 for €3. He felt it needed further investigation.

On 27 May 2021 he took some of the masks from a display and went to the shop assistant to demand who supplied the masks. He accepted that he was not looking for goods or services but was concerned that the masks were not up to standard and were counterfeit. The shop assistant asked him who he was and asked if he was videoing her. He asked if the shop assistant called the Gardai. He waited and the Gardai arrived, and they arrested him under section 60 of the Garda Siochana Act 2005 for impersonating a member of the Gardai. The Complainant denies that he said to the Respondent staff that he was a member of Revenue, nor the Gardai, but that he was just a concerned citizen.

On the following day 28 May 2021, he entered the shop and asked to buy  a cigarette  lighter to obtain a receipt that would contain the details of the Respondent business. This purpose was related to the happenings of the day before. The shop assistant said to the male assistant (known to the Complainant as Russell) “Russell, he is not allowed in, he is not wearing a mask.” The Complainant said that he told the male assistant that he was exempt and showed him his medical certificate. The certificate from a General Practitioner, which was exhibited, stated that the Complainant suffered severe anxiety when wearing a face mask. He said he was asked to leave the shop. The Complainant said that the sign on the door was in contravention of section 12 of the Acts because it said, “No mask, no service.”

On 7 June 2021 the Complainant gave evidence that he entered the shop again on 7 June 2021 and stated that he handed a data access request in an envelope to Russel requiring footage from the incidents of 27 and 28 of May 2021. He asked for a packet of cigarettes but was told he was banned from the shop. He asked the male assistant as to why he was banned and was told that he (Russell) did not need to explain it to him.

The Complainant said he had an audio recording of the incidents that transpired but that he was not making it available at the hearing  because there were further legal proceedings pending.

Summary of the evidence of Nasrine Nahar – Shop Assistant.

The witness gave evidence under affirmation. She said that the Complainant entered the shop on 27 May 2021, grabbed a mask from the display and approached her. He held up his mobile phone whilst doing so and she said that she was not sure if she was being recorded. She said that the Complainant said to her that the masks had no proper numbers on them and that this was a criminal offence. She said that he said to her that she would be prosecuted if he saw her selling them again and that she must understand that she had been warned. She said that she asked him as to his identity and that he told her that he was a Revenue official. He then asked for details of the company including Insurance and VAT registration. The witness said that at that point she asked the Complainant to stay outside. She said that he kept recording her and was aggressive with a loud voice. She said that he was also rude with a lady customer who had challenged him. When she was going outside, she said that he told her he was a member of the Gardai, so she then called the Gardai. The witness said that after the Gardai were called the Complainant told her that he was just a concerned citizen. The witness stated that the Gardai arrived, and that the Complainant was arrested. The witness said that she told the Gardai that the Complainant was not welcome anymore because they did not feel comfortable with him in the shop.

On the following day, 28 May 2021, the witness said that the Complainant entered the shop but that he was asked to leave immediately by Russel because of what had happened the day before but also because he was not wearing a mask. She said the Complainant said that he had medical issues and fluttered a document from a distance.

In cross-examination the witness accepted that the Complainant said he was exempt and held up a document from a distance which she could not read. She said that the Complainant did not tell her the nature of his disability.

Summary of Evidence of Russell Rahman:

The witness described himself as the business owner/company director. He gave evidence on affirmation that on 27 May he was in the backroom office and heard the Complainant raising his voice in the shop. He saw him being ushered outside by Nasrine Nahar. On 28 May he told the Complainant that he was not welcome in the shop. He did not recall the events of 7 June, when the Complainant entered the shop where it was claimed the Complainant deposited an envelope with a Data Access request under GDPR.

Video footage of the happenings of 27 and 28 May was exhibited by the Respondent and viewed at the hearing.

The Burden of proof provision at section 38A of the Acts provides:

(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the respondent to prove the contrary.

This means that the Complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the Respondent. I am satisfied that the Complainant had a disability. However, I must now establish if the Respondent was aware of the nature of the Complainant’s disability.

 The Complainant links the happenings of 27 and May 28, as does the Respondent. The Complainant stated that he re-entered the shop on the 28 May with the sole purpose of receiving information about the Respondent, on account of the happenings of the previous day. This was to be achieved by obtaining a receipt to acquire further information.

The behaviour of the Complainant in entering the shop on 27 May, grabbing masks from a stand   with no intention of purchasing but rather with the intent of challenging the shop staff about the quality of masks being sold, was behaviour that was unreasonable. The Complainant denied that he was rude and aggressive, but the body language on the video footage that was exhibited and the fact that he refused to present an audio recording of the incident, which was solely in his possession, led me to prefer the evidence of the shop assistant that, on the balance of probabilities, his behaviour was as she described . The shop assistant gave cogent evidence that she told the Gardai when they arrived to arrest the Complaint that she felt uncomfortable and that he was no longer welcome in the shop.

On a stand-alone basis, the behaviour of the Complainant on 27 May 2021 which led to the Complainant being banned from the shop, can be seen as a reasonable response by the Respondent, devoid of any discriminatory intent.  However, the owner also stated that he (the Complainant) was not wearing a mask after telling him that he was not welcome. At this juncture, the Complainant stated to staff that he was medically exempt and produced a medical certificate of exemption from his local GP. Upon viewing the footage, it was clear to me that this certificate was held up and at distance from staff members. The Complainant accepted that he did not verbally disclose the nature of his disability and it can be reasonably deducted that the writing on the certificate could not be read from a distance.   I am satisfied that the Respondent was not aware of the nature of the Complainant’s disability on 28 May 2021 nor on 7 June 2021, when he again went to the shop to deliver a data access request. The Complainant gave no evidence that he declared the nature of his disability to Respondent staff on the latter date.

The Equal Status Act is a socially remedial statute that sets out to prohibit discrimination, harassment, and other related behaviour. The Complainant here claims he sought reasonable accommodation for his disability. What is inherent in the vindicating of this right is the obligation to act reasonably in doing so. Any reasonable consideration of the evidence shows that the actions of the Complainant on the relevant days pointed towards confrontation rather than seeking accommodation.  

I am satisfied, based on the evidence presented, that the main reason for refusal of service to the Complainant on the relevant days can be attributed to his behaviour on 27  May 2021 . After hearing the evidence on the relevant events, I conclude that such a refusal cannot reasonably be attributed to the fact of his disability.

 Furthermore, and significantly with regard to section 38A of the Act, I find that the Respondent was not made aware of the nature of the Complainant’s disability, both on 28 May and 7 June 2021, therefore I find that that the Complainant did not establish a prima facie case of discrimination against the Respondent. 

CA-00046419-001:

I find, for the reasons outlined above, that the Complainant did not establish a prima facie case of discrimination against the Respondent. 

Equal Status Act 2000, Covid-19, Mask Wearing, Disability.