Complainant

Respondent

Parties

William  Burchell

Garrett Advancing Motion

Representatives

Ger Mooney Connect Trade Union

Robin McKenna IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00050926-001

31/05/2022

The Complainant contends that the Respondent discriminated against him on grounds of disability, training and failure to provide reasonable accommodation in relation to his disability, being unable to wear a mask at work.

On behalf of the Complainant, it was stated that it is recognised that this complaint is submitted late.   However, it is argued that in light of the Covid 19 pandemic, a once in 100 years event, extraordinary times existed and allowances should be made for the inevitable hold up in ordinary life during the period.  In March 2020, the Complainant went to the Nurse in the Company and explained that he was unable to wear a mask.  He had to go home. It is argued that Statutory Instrument S.I. 296/2020 under the Health Act 1947 (Section 31A Temporary Restrictions) Covid 19 requires employers to make exceptions for workers who find wearing a mask stressful.  The Complainant suffers from PTSD.  The Complainant sought assistance from the Union on 3rd February 2021 and on advice from the Unions solicitor the claim was lodged through the industrial relations processes rather than through the civil courts.  The Union contests in the context of the ’12 month time limit’ for bringing a case to the Adjudication Services of the WRC , we are dealing with a very different situation during the Covid pandemic where everything was out of the ordinary.   

The Respondent submits that this claim is manifestly out of time. The claim under the Employment Equality Act 1998 was lodged by Mr Burchell on 31 May 2022. The last date of alleged discrimination outlined by the Complainant in his complaint form was the 30 March 2020. Mr Burchell then submitted a subsequent date, that being the 3 February 2021, as the last date of alleged discrimination in his submission to the WRC. In either instance, this complaint has been lodged well over twelve months following the date he alleges he was last discriminated against.

The Complainant, in this case, is quite clearly out of time. While the Adjudication Officer may, where a Complainant has “a good arguable case”, extend the timescales by an additional six months. However, this complaint was lodged with the WRC more than twelve months after the alleged discrimination. It is submitted that the Adjudication Officer does not have the requisite jurisdiction to hear this claim, nor can they proceed to hear the substantive case until this matter is determined.

The Respondent submits that the responsibility fell to Mr Burchell to submit the complaint on time, particularly in light that he was being represented by his Union. The alleged breach occurred as per the claim form on the 30 March 2020 and the complaint was not submitted to the WRC until 31 May 2022. The Company respectfully submits that this is well over not only the 6-month limit, but also the extended 12-month limit and therefore the Adjudication Officer is time barred from hearing it, and accordingly this complaint must fail.

For completeness, the Respondent outlined the background and events which led to the Complainant’s complaint.  The impact of the Covid pandemic and the necessity to protect employees was a priority of the Respondent. 

The Company had to introduce Covid-19 Medical Questionnaires in the first quarter of 2020, which all employees had to complete, to help the Company identify any ‘at risk’ employees on site. Mr Burchell filled out this form on the 13 March 2020, indicating no issues or complaints at the time of completion.

In May 2020, Occupational Health informed the Respondent that the Complainant would have to absent himself if required to wear a mask.  He was absent from work from 19 May 2020 and was deemed to be cocooning.  He received the Temporary Wage Subsidy Scheme accompanied by a €100 per week top up provided by the Company.

On the 1 September 2020 both the Temporary Wage Subsidy Scheme and the Cocooning programme had ended, and all employees were being phased back to work accordingly. Although it was anticipated that Mr Burchell would then transition onto the Company Sick Pay Scheme, he instead took holidays from the 1 to the 16 of September 2020 and intended to return to work thereafter. This was assisted by the positive progress made within the EAP, which was noted on a phone call between the Occupational Health Doctor and Mr Burchell on the 9 September 2020. Mr Burchell then returned to work on the 28 September 2020.

Following the period during which there were no issues or complaints, an altercation occurred between Mr Burchell and other employees on-site on the 3 February 2021. On this day Mr Burchell had been wearing his mask incorrectly. Mr Burchell was approached by manager Mr W on the shop floor during his shift and asked to wear his mask over his nose, which he had not been doing. Mr Burchell refused to do so, and Mr W reported this interaction to a second manager, Mr ON. Mr ON then approached Mr Burchell on the shop floor and asked him to wear his mask properly to ensure that no one was put at risk. Mr Burchell refused to do so and was subsequently told by Mr ON that he would have to wear his mask as instructed or leave the site. Mr ON then called Mr B, general supervisor, for assistance on the matter.

Mr B then met with Mr ON and Mr B on-site in the PLM office. During this meeting Mr B told Mr Burchell that he must wear his mask correctly in accordance with Garrett Motion and HSE guidelines. On that day Mr Burchell had signed a Covid-19 Medical Declaration form in which he agreed to follow Garrett Motion and local HSE guidelines, which included wearing a mask while on site.

Mr Burchell stated that he felt the Company was breaking the law by asking him to do this. Mr Burchell then stated that he would be engaging with a solicitor on the matter. Mr Burchell was then asked to clean his workstation before he left, in line with Garrett and HSE guidelines, but he stated that he would not and exited the meeting while making inappropriate hand gestures towards both Mr B and Mr ON.

Following this incident an investigation was launched by the Company which led to a disciplinary process, the outcome of which being that Mr Burchell received a Final Written Warning alongside a five-day suspension without pay. This outcome was delivered on the 12 December 2021 and was not appealed by Mr Burchell.    

The Respondent refutes all allegations that it in any way discriminated against Mr Burchell. The Company disputes the allegation that Mr Burchell was treated in a manner any different to other members of staff. The burden of proof rests with Mr Burchell to show that he was discriminated against on the ground of disability within the meaning of the Employment Equality Acts 1998 as alleged and it is the Company’s position that no evidence has been adduced to support such claims.

 Section 41 (6) of the Workplace Relations Act 2015 provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Section 41 (8) provides:

“an adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”.

The most recent date of alleged discrimination cited on the Complainant’s complaint form was 30th March 2020.  The Complainant’s Union representative outlined that the Complainant contacted them on 3rd February 2021.  I note this was the date on which the ‘altercation’ took place and when he was told he would have to wear his mask properly or leave the site.  It can be considered that this date, 3rd February 2021 was the most recent date of alleged discrimination. That means that the Complainant had until 2nd February 2022 at maximum to lodge his complaint.  The complaint was received by the WRC on 31st May 2022.   The law is quite clear in relation to time limits, and even in light of the pandemic, I am not authorised to make a ruling or decision outside the constraints of the legislation.  The complaint is out of time.

Employment Equality Act 1998, disability, complaint out of time.