Complainant

Respondent

Parties

Alan  Lee

City Direct Bus Limited

Complainant

Respondent

Anonymised Parties

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Representatives

  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-00051976-001

28/07/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant gave his evidence under affirmation while the witness for the respondent, the transport manager, gave his evidence under oath.

The complainant took his complaint under the Equal Status Act on the basis that he was discriminated against on the grounds of disability. He stated that he was denied service on the 20 January 2021 when he was told he had to wear a mask in order to board a bus.

During the hearing, the complainant outlined his hidden disability, which was diagnosed four to five years ago. The complainant stated that he was not sure that he ever made the respondent aware of the existence of his disability but that he used its services on a weekly basis. On the day in question the complainant stated that he waited at the bus stop and when the bus arrived the driver did not open the door but indicated that he had to put on a mask.

In order to facilitate communication, the driver opened the door and the complainant got on. The complainant stated that he told the driver that he had a reasonable excuse for not wearing a mask. He stated that he showed the driver a notice that he himself wrote to indicate that he had a reasonable excuse. He stated that the driver said that he had to protect the other passengers too and was not prepared to allow the complainant to board the bus. The complainant stated that rather than have a confrontation with the driver he got off the bus and the bus continued on its way.

The complainant stated that he submitted the ES1 form on or around 15 March 2021. He stated that he did not submit a copy of it to the WRC and during the hearing submitted postal receipt for two items he sent on 15 March 2021.

The complainant stated that he sought a copy of the CCTV from the bus but was not provided with it but noted that he videoed the encounter and had a copy of that himself.

The respondent submitted that it did not dispute that the incident happened along the lines outlined by the complainant. The witness stated that at that time the company policy was that it would accept a note from a GP that a person had a reasonable excuse and was excluded from wearing a mask. The witness stated that the respondent did not need to know the disability but simply needed a short letter from a GP.

In response to cross examination the witness stated that the bus driver was not wearing a mask as the driver's compartment was screened off from the bus in accordance with the regulations in place at that time. The respondent submitted that it applied the procedures laid down in the regulations governing dealing with COVID-19.

As regards the submission of the ES1 form, the witness submitted that it had a file of correspondence received from the complainant, but the required ES1 form was not amongst the documentation.

The complainant stated that he submitted the ES1 form on 15 March 2021. The only evidence he provided of this was a copy of a postal tracking receipt for that date which indicated that two items had been sent. It did not indicate to where the items had been sent and the tracking numbers were invalid at the date of the hearing.  The complainant stated that he sent two similar notifications to two separate parties on that date. The respondent indicated that it had a file of correspondence received from the complainant but that the ES1 form was not amongst the correspondence.

Section 21(2) and (3) of the Equal Status Act, 2000 state as follows:

 (2) Before seeking redress under this section, the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commissioner, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

(3) (a) On application by a complainant the Director of the Workplace Relations Commissioner, as the case may be, the Circuit Court may—

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,

and, where such a direction is given, this Part shall have effect accordingly.

 (b) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commissioner, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including—

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.

Having regard to Section 21(3) (b) of the Act, and to the respondent's acknowledgement that although the ES1 form was not amongst its correspondence, it was not denying that it received the form, I consider that it is fair and reasonable in the particular circumstances of this case to direct that subsection (2) shall not apply in relation to this complaint.  In deciding on this course of action I am mindful that the respondent indicated that it is fully aware of the circumstances of the alleged prohibited conduct and that there is no risk of prejudice to the respondent's ability to deal adequately with this complaint.

Section 38A of the Act states as follows:

38A.—(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.

The complainant indicated that he was not sure that he made the respondent aware of the existence of a disability and that he only showed the driver of the bus a handwritten note stating that he was exempt from wearing a face covering. He stated that he himself had written the handwritten note and that he only obtained the medical certificate submitted in evidence at a later date to support his complaint.

Section 38A of the act deals with the burden of proof and states that where in any proceedings facts are established from which it may be presumed that prohibited conduct has occurred in relation to him it is for the respondent to prove the contrary. Although the complainant as indicated that he was not provided with service on the date in question and the respondent agrees broadly with his account, I am not satisfied that the complainant has established that the bus driver’s treatment of him arises from the existence of a disability, the driver was simply following the regulations in place at that time. The complainant’s testimony is that the driver indicated to him that his reason for not providing the complainant with service was that he had to consider the safety of the other passengers. 

The regulations in place at that time required the driver to have consideration for his other passengers and the undisputed evidence of the respondent’s witness is that it complied with all of the requirements imposed upon it by the national transport authority, including for example ensuring that no two passengers sat beside one another.  The complainant himself provided the drivers reasoning for not giving him service and this reasoning is unconnected to the complainants disability.

On the basis of the written and oral evidence presented to me I find that the complainant has not established facts from which it may be presumed that prohibited conduct has occurred in relation to him on the basis of a disability.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the respondent did not engage in prohibited conduct.

Equal Status Act – disability – ES1 form – burden of proof not established