Complainant

Respondent

Parties

Liam  Condon

Mary O Brien

Representatives

George Breban

Tom Casey Tom Casey 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-00046668-001

12/10/2021

The complainant submits that he was discriminated against by the respondent and victimised on the grounds of his disability and other.

The complainant submits that he was discriminated against by the respondent on the grounds of disability in receipt of services and goods and other and victimised when the respondent said she would call the gardaí.  The complainant submits this occurred on 14/4/21, 22/4/21 and 13/5/21 and submitted an ES1 to the respondent on 22/4/21 and received no reply.  The complaint was received by the WRC on 12/10/21. 

It was submitted that on 14/4/21 he entered the post office and was asked for his face mask.  The complainant said that he was exempt and was requested to show his letter but did not do so as this has his private medical data.  He submitted that the respondent continued to harass him, and that the complainant suffered an anxiety attack as a result.

The complainant told the respondent that he would file a complaint to the Workplace Relations Commission (WRC).  The respondent asked if this was a threat and said she would phone the gardaí.  It appeared to the complainant that the respondent threatened to send the gardaí to his house.  There was a sign saying No Mask No Entry and the complainant said this was also discriminatory.

On 22nd April 2021 the complainant entered the respondent’s premises, and the respondent demanded his exemption letter. The complainant again had to tell the respondent that he was exempt, and the respondent threatened to phone the gardaí again.  On 23rd April 2021 Garda X visited the complainant’s premises without permission.  The complainant had a conversation with him and showed Garda X his letter despite no requirement for him to do so.  On 13th May 2021 there were 2 other people in the post office and the complainant was asked to wear a mask and said that he did not have to wear a mask.  On 19th May 2021 two gardaí arrived at his house and knocked on his door loudly and looked in his window without a warrant.

The complainant submitted that he has a reasonable excuse within SI 296 of 2020 such that he does not have to wear a mask.  The respondent was advised that the complainant was exempted but degraded and humiliated the complainant.  After the complainant submitted his complaint to the WRC, the respondent changed the notice at the premises and sought that a doctor’s cert be shown to prove mask exemption.  The complainant submitted that the gardaí confirmed in writing to him that there is no requirement for him to produce a medical cert regarding his exemption.  It was submitted that the signage was adopted to accommodate discrimination as the respondent took action to remedy their guilt.  Victimisation occurred as a direct result of that, and that the complainant was stripped of his dignity who had to go through a gardaí investigation.  It was submitted that the behaviour of the respondent was unnecessary and excessive, and that the respondent failed to accommodate the disability of the complainant and that the complainant has a disability which is of a mental nature.

The complainant’s evidence was that he went to post a parcel during Covid Lockdown and attended the post office on 14/4/21, 22/4/21 and 13/5/21.  The complainant said he has a mask-wearing exemption and that he has a cert but did not submit this to the WRC nor to the respondent.  He also said the respondent has put up three different signs at the premises and that he was asked on all three occasions to wear a mask.  The complainant said that when the respondent said that she was phoning the gardaí there was no criminal activity taking place, and that the respondent was phoning the gardaí and told the complainant she could request the gardaí go to his house.  The complainant said that the only reason he showed the cert to the gardaí at his house was he felt threatened.  The complainant said that the gardaí was satisfied that the complainant was exempt.  The complainant said he was told by the gardaí that if he did not show his exemption that he would receive a ticket.

Under cross examination the complainant said that he was aware that some people may be exempt from mask wearing and that he did not have to disclose his disability and that the gardaí know his disability.  The complainant said that he did not disclose his disability to those who served him and that he did not have to disclose sensitive medical information and that it was of a mental nature.  The complainant confirmed that on the 14/4/21, 22/4/21 and 13/5/21 he received service at the post office.

Ms Staraitiene gave evidence that she visited the post office on 13 November 2021 and that she did not wear a mask and was not asked to wear a mask and was not asked to provide a medical cert.  There was no cross examination of her evidence.

The respondent submitted that the complainant must provide a provide a prima facie case of discrimination and he had failed to do so.  The complainant claimed discrimination on the grounds of disability under the Act but had not outlined what this disability was.  It was submitted there is a right to challenge where the disability is not obvious, and that the complainant was making a bold statement yet chooses not to disclose a disability.  The complainant had been afforded an opportunity to provide medical information but chose not to do so.

The respondent referenced Adj-00035915 to support their submission.

The complainant submits that he was discriminated against by the respondent on the grounds of disability in receipt of services and goods and other and victimised when the respondent said she would call the gardaí.  The complainant submits this occurred on 14/4/21, 22/4/21 and 13/5/21 and submitted an ES1 to the respondent on 22/4/21 and received no reply.  The complaint was received on 12/10/21 by the WRC.  The respondent denies the complaint.

Section 3(1) provides, inter alia, that discrimination shall be taken to occur:

(a) where a person is treated less favourably than another person is, has been or would be treated in     a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds)’’

Section 3(2)(g) provides that: as between any two persons, the discriminatory ground of disability is,

(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”),

Section 2 of the Equal Status Act, 2000 defines “disability”, as meaning

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.

Section 3(2) j provides that

(j) that one—

(i) has in good faith applied for any determination or redress provided for in Part II or III,

(ii) has attended as a witness before the Authority, the adjudication officer or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),

and the other has not (the “victimisation ground”)

Section 38A (1) provides

" 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."

It is for the Complainant to firstly establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the Respondent to rebut the presumption of discrimination.

The complainant did not disclose his disability to the respondent and did not specify his disability at the hearing other than to submit that it was a of a mental nature.  I note that the respondent did not give direct evidence at the hearing and that the complainant gave evidence under affirmation.

Having carefully examined all the evidence and submissions, I am satisfied that while the Complainant states he had an exemption he did not provide medical evidence on the day or at the day of the hearing. I also note that he was allowed to utilise the facilities of the post office.  A mere proclamation of exemption by the Complainant, without any further verifiable support was not in the circumstances sufficient.  With regard to the complaint of victimisation I do not find that the respondent victimised the complainant with suggestions of calling the gardaí when he mentioned the WRC as it would appear from all the circumstances of the case that the respondent felt this necessary. Having considered all the circumstances and evidence, I find that the Complainant has not adduced facts from which it may be inferred that an act of discrimination or victimisation has occurred and has not established a prima facie case on grounds of disability in provision of goods and services and other.  I find, therefore, that the respondent has not engaged in prohibited conduct and the complaint is not well founded.

Having considered all the circumstances and evidence, I find that the Complainant has not adduced facts from which it may be inferred that an act of discrimination or victimisation has occurred and has not established a prima facie case on grounds of disability in provision of goods and services and other.  I find, therefore, that the respondent has not engaged in prohibited conduct and the complaint is not well founded.

Mask wearing, prima facie case of discrimination, disability,