ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00036360
Parties:
| Complainant | Respondent |
Parties | Tomasz Pysz | Department of Health |
Representatives |
| Aisling O’Donnell BL Jennifer Murray and Brian McNamara Chief State Solicitor Azul O’Flaherty Department of Health |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00047568-001 | 08/12/2021 |
Date of Adjudication Hearing: 19/10/2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 21 of the Equal Status Act 2000 (as amended) an individual may seek redress in respect of any prohibited conduct that has been directed against him or her by referring a case to the Workplace Relations Commission. It is a condition precedent to bringing any such matter before the Workplace Relations Commission that the individual complainant shall have already notified the Respondent in writing (Form ES 1) of the nature of the allegation and the intention to seek such redress if not satisfied with the Respondent’s response. This Notice in writing shall be brought within two months of the said prohibited conduct or the last instance of same.
A Respondent may choose to reply with an explanation for the treatment by returning the attached ES 2 Form.
Pursuant to Section 25 of the Equal Status Act 2000 I have had the within matter referred to me by the Director General for the purpose of investigation into claims of discrimination and I have heard where appropriate interested parties and have considered any relevant documentation provided in advance of the hearing and in the course of the hearing. At the conclusion of any such investigation I am obliged to make a decision and, if I should find in favour of the Complainant, I shall provide for redress (s.25 (4)).
Generally, discrimination under this Act – per Section 3 - is taken to have occurred where a person is treated less favourably than another person is (or would be) treated in a comparable situation and by reason of any of the discriminatory grounds (as specified).
It is also noted that discrimination can occur where an apparently neutral provision would put such a person at a particular disadvantage compared with other persons unless the provision can be objectively justified by a legitimate aim. This is Indirect Discrimination and is covered in Section 3(1) (c).
Broadly, the Equal Status Act prohibits discrimination in the context of buying and selling goods from and to the public (or a section thereof) and also in the context of using and providing services available to the public (or a section thereof). The service is not necessarily being provided for consideration. The relevant section. Section 5 (1) prohibits discrimination in the following terms:-
“A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public”
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.
Under Section 27(1) of the Act redress may be ordered where there has been a finding in favour of the Complainant. The Act allows for an Order for compensation (up to a maximum amount) for the effects of the prohibited conduct. The Adjudication Officer can direct that a person or persons take a specified course of action. The AO Can also order that the service provider has to do something aimed at ensuring that similar discrimination does not happen again. For example, to take a specific course of action to upskill and train up staff. The maximum amount of compensation which can be awarded under the Equal Status Act is €15,000.00 (which is line with the maximum award available in District Court contract cases per Section 27(2). In assessing compensation, I can consider the effect that the discriminatory treatment has had on the Complainant.
Before making a final determination on the law herein, the Respondent has asked me to have some consideration to the operation of Section 21(2)(a) of the Equal Status Act 2000 -2015. That Section imposes an obligation on the Complainant to notify the Respondent (in Writing) of the allegation of prohibited conduct within two months of the last instance of that prohibited conduct having occurred. The Respondent should be notified of the nature of the allegation being made, seek information, and indicate what the Complainant’s intentions are if not satisfied with any response received.
If the Complaint concerning the prohibited conduct is not brought within two months the time limit can be extended to four months for reasonable cause.
Exceptionally, a full dispensation can be given where it is considered fair and reasonable neither of these time limits will apply pursuant to Section 21 (3)(a) (ii).
I have taken on board the reference made by the Respondent to the wisdom of Laffoy J. in the Minister for Finance -v- CPSY (2006) IEHC 145 where she stated :
“..the established jurisprudence in this jurisdiction is that knowledge or discoverability of a material fact is not the trigger which sets a statutory limitation period running, unless the legislature expressly so provides. This is clearly illustrated by the decision of the Supreme Court in the medical negligence case of Hegarty -v- O’Loughran 1 IR 148 “
There can be no doubt that the need to inform the proposed Respondent of an allegation of discrimination within a two-month period of the last act is mandatory.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road. In line with the 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) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public top attend this hearing. 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 where there is a serious and direct conflict in evidence between the parties to a complaint, that an oath or an affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence. |
Summary of Complainant’s Case:
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 relied on the submission outlined in the Workplace Relations Complaint Form. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative. The Complainant alleges that he was discriminated against by the Department of Health when he was forced (at the direction of the Department through its enacted regulations) to have expensive (and he says invasive) PCR tests every time he sought to travel back from Poland to his home in Ireland. The Complaint is set out in Workpalce Relations Complaint Form dated the 6th of December 2021. 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. |
Summary of Respondent’s Case:
The Respondent had representation at this hearing. The Respondent provided me with a written submission together with a book of authorities. The Respondent rejects that there has been any discrimination of the grounds of disability and challenges the premise upon which this complaint has been brought. 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.
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Findings and Conclusions:
I have carefully considered the evidence adduced by both parties in this matter. There is no doubt that the Complainant believes that he has been discriminated against. In general terms, the Complainant has objected to the fact that as an unvaccinated person he was required to take a PCR test when arriving into Dublin Airport. The Complainant is from Poland and has been living and working in Ireland for two years. The Complainant had a Road traffic accident in 2020 and opted to come under the care of the Polish medical services in the recovery process arising from the injuries sustained in that accident. This has meant having to travel to and from Ireland regularly and sometimes up to twice a month. The Complainant was forced to restrict his travelling when the Covid pandemic started. In 2021, with the rollout of the Vaccine programme a limited amount of travel and movement was allowed. The Complainant did not get a vaccine and stated that he was advised not to get one by his Neurosurgeon. No evidence of this was provided. It is noted that some time has elapsed since hearing this matter and no medical evidence has since been provided regarding any medical reason which disallows the Complainant availing of a Vaccine. The Complainant was not being prevented from travelling to Poland, but he was obliged to take a PCR test within 24 hours of any return flight to Dublin. His vaccinated fellow passengers would have had to provide a certificate of vaccination or a certificate of having just recovered from Covid. The Complainant believes he was discriminated against in that he was being treated differently to his fellow passengers. The crux for him was having to spend up to €80.00 each time he wanted to come back through Dublin Airport (or any Irish Airport). I can understand that the Complainant, who was travelling regularly, felt this was an onerous financial obligation being imposed (albeit circuitously) by the Respondent. The Complainant did not suggest that the alternative arrangement provided for by the regulations was an option i.e. that he quarantine in his place of residence for fourteen days beginning on the date of arrival back into Ireland. I can understand that, given the frequency of his return trips to Poland, quarantining was not an option The Respondent is, of course, the Department which introduced all the relevant Statutory Instruments introduced under the Health Act of 1947. Both SI 135 and 367 of 2021 were opened to me in the course of the hearing. On his Workplace Relations Complaint Form the Complainant purported to create a new discriminatory ground of “medical status” though accepted that the Equal Status Act allows only for nine well defined and known Grounds. At best he might have hoped to fall within the “disability” ground – though on the evidence I would find that the evidence offered made any finding of “disability” by me, is problematic. The Complainant has not established he had a disability which prevented him from availing of the freely available vaccination programme. The Complainant wrote to the Department in September of 2021 outlining his travel arrangements and seeking guarantees on the effectiveness of the vaccine. The Department was unable in it’s response to guarantee that there would be no side effects and that a mild or moderate side effect might occur. The letter dated the 8th of October described the scrutiny imposed by the Department and encouraged the Complainant to get vaccinated. The Complainant wrote an email to the Department on the 29th of November 2021 indicating an intention to place a “lawsuit for discrimination” for the reasons outlined. I am satisfied that this communication satisfies the obligation imposed on the Complainant to notify the Respondent of the nature of the allegation within two months of the alleged prohibited conduct as prescribed by Section 21(2)(a) of the Equal Status Act. I appreciate it is not in the usual ES1 format but note that there is no format specifically required under Statute. I also note that the Complainant gave the date of the 21st of November 2021 as the most recent date of discrimination. It is therefore to be assumed that the Complainant had been obliged to expend monies on a PCR test on that day. He says the discrimination began in and around July of 2021. On the evidence provided, the Complainant has not established that he has a disability as defined in Section 2 of the Equal Status Act of 2000. That Section allows for five different classes of condition which would allow a person to be described as having a disability. It is not possible to shoehorn the not taking of a vaccine into any one of these. Whilst the Complainant has indicated that his medical advice is that he should not take the vaccine I have not been provided with that advice. It is also worth noting that the Complainant did ultimately get the vaccine at the end of 2021 and in his evidence, he stated that this was because of the expense of having to pay for a PCR test every time he travelled. Not having the vaccine appears therefore not to have been a medical decision but one based on an understandable apprehension. I am therefore, on balance, not satisfied that the Complainant can make Prima Facie case on the grounds of a recognised discrimination ground. It should be noted that the Respondent robustly defended its position in this hearing. In particular the Respondent has opened the case of Donovan -v- Garda Donnellan DEC S2001 -011 wherein an Equality Officer was required to determine whether the functions of the Garda Siochana amounted to the provision of services for the purpose of the Employment Equality Act. I am inclined to accept the proposition approved in that decision wherein the then Minister for Justice had stated: “Not all actions of the state vis a vis members of the public can be regarded as services. There is a difference between controlling duties exercised by the State and Services provided by the State. I am advised that immigration and citizenship matters, for example, are not services within the meaning of the Equal Status Bill but rather an expression of the State’s duty as a sovereign power to control who it admits to the State. Controlling duties in the areas of policing, defence, immigration and prisons would likewise not be regarded as services. The service aspect of policing, immigration defence and prisons will however come within the scope of the Bill. For example, while a decision to grant a visa would not be covered by the Equal Status Bill, the interaction between officials and the visa applicant and the collateral services and facilities such as access to buildings and information would come within the scope of legislation” On balance I accept the proposition that the Department of Health was exercising a controlling function rather than providing a service to the public. These were unprecedented times and the Government opted to protect the citizens by ensuring – as far as was practicable - that persons travelling from outside the jurisdiction were not infected with Covid. Whilst the practicalities at an individual level may have seemed onerous, it is the States duty and function to protect its citizens in whatever way it deemed necessary. The approach taken, and the regulations adopted were rational and fair. To my mind therefore even if the Complainant had been able to establish he had a disability, his claim would have otherwise fails. |
Decision:
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 CA-00047568-001 – The claim fails where the Complainant has not made out a Prima Facie case.
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Dated: 10th November 2022.
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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