Complainant

Respondent

Parties

William  Slevin

Kevin Duffy's Supervalu

Representatives

  Self

 No Attendance

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00046709-001

14/10/2021

This case is concerned with an incident and dispute between the named respondent and the complainant which occurred on February 2nd, 2021. The dispute was concerned with the insistence by the respondent that the complainant wear a mask when shopping and the refusal of the complainant to do so for stated reasons. An ES1 was issued on 26 March 2021 and date of the reply on the letter with the ES2 was April 14th, 2021. The date of receipt of the complaint under the Equal Status Act by the WRC was October 14th, 2021.

Mr Slevin outlined his case as follows:

The date of the complaint, February 2nd, 2021, was the fifth time he had been challenged in the store about not wearing a mask during the Covid restrictions/public health guidelines. It was the second time he was challenged by the owner of the store, Mr Kevin Duffy. And it was the second time a garda was involved.

The first time he was asked by a member of staff about not wearing a mask. He replied that he had a reasonable excuse-the term used in S.I.296 related to the 1947 Health Act. His explanation, that he had a reasonable excuse was accepted on that occasion.

The second time he was approached by a different member of staff and when he said he had a reasonable excuse, that person walked off.

The third time he was approached by Mr Duffy who demanded to know why he was not wearing a mask. The complainant replied that to wear a mask caused him severe distress. Mr Duffy was in his way almost underfoot on that occasion but after a while he did not see him again.

On Christmas Eve an unknown garda approached him at the shop asking why he was not wearing a mask. The Complainant referred to having a reasonable excuse and the garda accepted that reply.

On each of the forgoing four occasions the complainant was served.

On February 2nd, 2021, Mr Duffy approached him near the bakery/chilled meats section accompanied by another person. He asked the complainant did he have mask and the complainant replied no, he had a reasonable excuse for not wearing one. He was told he had to put a mask on, and he replied no, he couldn’t and again referred to a reasonable excuse saying that to wear a mask caused him severe distress. This went back and forth between the two men, with the complainant also saying that this was discrimination on medical grounds. Mr Duffy offered to do the shopping for the complainant who said that he was well able to do his shopping. Mr Duffy went off after referring to calling the guards and the complainant paid for his shopping. After he paid for his shopping and when he was leaving the shop in an area alongside but still within the shop, Mr Duffy told he had called the guards and he chose to stay in what was a really cold area until they arrived.

He named the Garda who arrived - TC. This was someone he had wanted to bring to the hearing as a witness because the response to the ESI form omitted any reference to a garda being there on the day and what was said. TC asked him why he was not wearing a mask and when he gave his explanation about the reasonable excuse, this was accepted by TC who then went on to try to mediate between the complainant and Mr Duffy who insisted that he must wear a mask in the store and that he would not be served if he did not wear one. He did suggest he would be prepared to do the shopping for the Complainant while he waited outside and the complainant continued to say that he could not wear a mask, he just cannot. After a while TC wrapped it up without any agreement between the two men. The Complainant has not returned to the store since that day. 

Asked at the hearing why he felt that what had occurred was discrimination on grounds of disability, the Complainant replied that he cannot wear a mask for medical reasons. He was treated differently to others who could wear a mask and to do so when it is a medical issue is discrimination. Wearing a mask causes him severe distress. He provided a letter from a doctor to this effect dated 11 March 2021-after the incident- and said that his doctor had provided other medical evidence on the same issue-confirming that he could not wear a mask for medical reasons. On 2 February, Kevin Duffy did ask him for proof, a letter saying that he had a medical condition which prevented him wearing a mask. The Complainant had replied that he was not obliged to do provide access to his medical information-that there was nothing in the legislation which said he had to do so.

Delay in submitting the complaint

Mr Slevin explained that he had misread the guidelines as meaning that he had six months from the date of the reply to the ESI to submit his complaint. That he had made the same mistake on another complaint. He spoke about the stress that all of his issues around the mask wearing had caused to him. In another situation he made a complaint to GSOC about a garda. He became so stressed about everything that he was overwhelmed when trying to complete the forms. Such was his level of anxiety that three times he ended up in the Emergency Department of his local hospital. Asked about those dates he checked during the hearing and advised that he was sure of April 25th and August 3rd was the final one. There may have been one in March.

There was no case presented by or on behalf of the Respondent who did not attend the hearing.

Preliminary Issue Time Limit

Before addressing the issue related to the time limits as set out in section 21(5), I feel it appropriate and necessary to record that the evidence of the complainant at the hearing was credible both in its presentation and the detail around the events which gave rise to the complaint.

The following is the relevant extract from Section 21 of the Equal Status Act which gives rise to the question of what are generally described as time limits.

(6)   (a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may notbe referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

I do not doubt that the Complainant made an error of judgement during a time when he was under stress related to the various events which he encountered related to the wearing or more properly perhaps, not wearing a mask in retail setting.

Acknowledging that the complainant attended hospital on occasion during the six months in question, none of these involved hospital stays. And while he did not receive the response to the ES1 form until mid-April-he waited a full six months to the exact date of that letter-14 April and 14 October i.e., the very last possible day according to his stated understanding of the time limit of six months before submitting the complaint. There was nothing which prevented him making this particular complaint during the months after he received the ES2 form once he had put the process required under the Equal Status Act in motion and nothing which explains why he would wait exactly six months after that date before making the complaint-14th October even if he had an incorrect understating of the six-month time limit involved. In other words, the question arises what had delayed in him initiating the complaint-and the conclusion is nothing, other than he was operating on his own understanding of the law and simply left it to the very last day of that understanding for no obvious reason. Such a conclusion does not form the basis for an adjudication officer to ignore the clear provisions of the legislation on the matter of time limits for making a complaint and in doing so to make a decision which could or would be an untenable precedent open to being cited by many people-not knowing or not realising. And while the Complainant was making his inquiries and his representations throughout on his own behalf, he is someone who has become well versed in legislation and has demonstrated a clear understanding of how it should apply to him or at least the capacity to make those arguments, based on legislation generally including anti-discrimination legislation.

The complaint was submitted beyond the time limit set out in Section 21(6)(a) and the explanation provided by the Complainant does not provide reasonable cause for an extension under the terms of Section 21(6) (b).

CA- 00046709-001 The complaint made by William Slevin against Kevin Duffy’s Supermarket under the Equal Status Act was not submitted within the required six-month statutory time limit. As reasonable grounds were not provided which would justify an extension of the sis month time limit, the complaint is statute barred. The substance of the complaint does not therefore fall to be considered.

Discrimination complaint-disability